20150320 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OF TANZANIA

ATDAR ES SALAAM (CORAM: RUTAKANGWA, J.A., MJASIRI, 3.A, And MUSSA, 1A.) - CRIMINAL APPLICATION NO 7 OE2Oi1 - JIBUAMIRi@ - MUSSA[ SAID ALLY @ MANGANYr ................... .... APPLICANTS

VERSUS IHE REPUBLIC ................................... ......... ......... ........................ RESPONDEF'1 -- of Tanziaatres$alaam) (Munuo1-Ns.ekela-Aiid -K-alegeva, JThA) - dated the 19 day of April, 2011 in Criminal Appeal No. 249 of 2009

RULING OFTHE COURT 16 " 26" March, 2015 --- MJASI.RI, 1A.: . This is an application for review of the judgment of the Court dated April 19, 2011. The application is made under Rule 66(1) of the Tanzania Court of Appeal Rules 2009 (the Court Rules) and is supported by the applicants' affidavit. According to the' applicants, the decision of the Court of Appea' was .,,bsecLoira.Jnan.i.fesLerLo.ron n 1 stated in the applicants' affidavit in support of the application The background - to this application is as follows. The applicants were charged a nd convicted of the offcofrohberywlth.violence_cQntrary_tosections_ 285 and 286 of the Penal Code, Cap 16 R.E. 2002 in the District Court of Temeke. Aggrieved by the conviction and sentence, the applicants . . ___pu rsued of appeal all the way_tothis_CouiiL. However their aØ5eãls-to-both-t-he--High Court and the Côurf 1Appeal--were-unsuccessful, hence this application for review. At the hearing of the application, the applicants appeared in person and were unrepresented. They did not have much to say and simply asked the Court to adopt their notice of Motion and affidavit as part of their submission. The respondent Republic had the service of Ms. Tumaini Mfikwa, learned State Attorney. Ms. Mfikwa did not support the application. She submitted that the requirements under Rule 66(1) of the Court Rules were not met. According to her, the

applicants have failed to establish that there was a manifest error on the record. We on our part are inclined to agree with the submissions made by the learned State_Attorney. The applicants_have not established any error 2 on the face of the record. This is the only ground which was relied upon in their application. "66(1) The Court may review -its-judgment or order, but no appilcation for review shall be entertained except on the followiiggrounds.- j The deA ........ error on the face of the record resulting in miscarriage ofjustice, or a party was wrongly deprived of an opportunity to be heard, or the Court's deciion is a nullity, or "d) the c'ourt had no jurisdiction to entertain the case; or .. - (e) the judgment was procured illegally, or by fraud or perjury. The law is settled. The Court's powers of review ought to be exercised sparingly and only in the most deserving cases. In Tanzania Transcontinental Co. Ltd v Design Partnership Ltd, Civil Application No. 62 of 1996 CAT (unreported) the Court stated thus: - 3 -- - " The court will not readily extend the I/st of --- circumstances for review, the idea being that the courts power of review ought to--be-exercised cases, bearing in mind the demand of public poilcy for finality of lltigation and for certainty of the law as dedared by the Hi'hest Court." See --- Ka rirn---Kiara -v-Republic, Cr1 ml na I

Applitatio:niiN4oi2flu7iicAL± (unreported) and Thunga Bhadra Industries v Andhra Pradesh (1964) SC 1372. In Marcky Mhango and 684 Others v Tanzania Shoe Limited and Another, Civil Application No. 90 of 1999, CAT (unreported). The need of having a legal system Which guarantees the certainty of its - judgments and their enforceability was emphasized. It was stated as follows:- "There can be no certainty where dedsions can be varied at any time at the pressure of the losing party and the machineiy ofjustice as an institution would be brought into question..." 4 The objective of Rule 66(1) of the Court Rules, is not to provide a mechanism of filing an appeal against afirial decision of the Court. The Under Rule 66 (1) many applications that do not meet the requirement have been filed. A modality: has to be established to restrict such applications. For the foregoRig reasons, we see no merit in the appcion We hereby dismiss the application accordingly. DATED at DAR ES SALAAM this 20th day of March, 2015. E.M.K. RUTAKANGWA

JUSTICE OF APPEAL - S. M3AS1RI - --- JUSTICE OFAPPEAL K.M. MUSSA

JUSTICE OF APPEAL I certify that this is a true copy of the original.

COURT OF APPEAL 5