20151005 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA

ATMTWARA (CORAM: OTHMAN, C.J., MJASIRI, J. A. And MMILLA, l.A.) CRIMINAL APPLICATION NO. 3 OF 2010 SAIDI ALLY ISMAIL •.•••.••..••..•..•.....••.••.••..•••••.......•................•.... APPLICANT

VERSUS THE REPUBLIC •••••• ■■ •••••••••••••• I ••••••••••••••••••••••••••••••••••••••••••••••••••••••• RES PON DENT (Application for Review from the Judgment of the Court of Appeal of Tanzania at Mtwara) (Ramadhani, C.l, Munuo, l.A, Mjasiri, l.A) dated 27th day of.November, 2009 in Criminal Appeal No. 241 of 2008

RULING OF THE COURT 30th September & 5th October, 2015 MlASIRI, l.A.: ·By a Notice of Motion dated January 15, 2010, the applicant is seeking a review of the judgment of the Court dated November, 27, 2009. The application is supported by the affidavit of the applicant. The background to this application is that in the Resident Magistrate's Court of Mtwara, the applicant was charged and convicted of armed robbery contrary to sections 285 and 286 of the Penal Code (the Penal Code) and was sentenced to thirty 1 -r (30) years imprisonment. Being dissatisfied with the decision he unsuccessfully appealed to the High Court and the Court of Appeal. The applicant has now filed an application for review of the judgment of this Court. The major ground of ·complaint raised in paragraph five (5) of his affidavit is that both the Resident Magistrate's Court and the High Court wrongly relied on the doctrine of recent possession. In this application, the applicant had no legal representation and had to fend for himself while the respondent Republic was represented by Messrs. Ladislaus Komanya and Paul Kimweri, learned Senior State Attorneys. Review is provided under Rules 66 (1) of the Tanzania Court of Appeal Rules 2009 (the Court Rules). Rule 66 (1) sets out specific requirements to be met. It provides as under:- "66 (1) The Court may review its Judgment or order, but no application for

review shall be entertained except on the following grounds:- 2 (a) The decision was based on a manifest error on the face of the record resulting in miscarriage of justice; or (b) A party was wrongly deprived of an opportunity to be heard; or (c) The Court's decision is a nullity; or (d) The Court had no jurisdiction to entertain the case; or (e) The judgment was procured illegally, or by fraud or perjury." At the hearing of the application, Mr. Komanya submitted that there are irregularities in the notice of motion filed in Court and that the requirements of the law have not been met. He stated that the notice of motion did not cite the enabling provisions of the law. He argued that Rule 48 (1) of the Court Rules was not complied with. Mr. Komanya submitted further that the application does not meet the requirements under Rule 66 (1) of the Court Rules. 3 The applicant on his part being a layman did not have much to say, as the issue raised is on a point of law. He informed the Court that he solely relied on the assistance of the prison authorities to prepare his legal documents. We shall commence with the issue of non- compliance with Rule 48 (1) of the Court Rules. Rule 48 (1) provides as under:- ''Subject to the provisions of sub-rules (3) and to any other rule allowing informal application every application to the Court shall be by notice of motion supported by affidavit.

It shall cite the specific rule under which it is brought and state the ground for the relief sought;, (Emphasis provided) It is evident form the record that the notice of motion filed in Court does not cite the specific rule under which the Court is being moved. The law is settled, once a party choose to move the Court formally by a written application, it is a mandatory requirement that the specific rule under which it is brought must be cited. In Edward Bachwa & 3 Others 4 v. The Attorney General & Another, Civil Application No. 128 of 2006 CAT (unreported) it was stated thus:- "Wrong citation of the la~ section subsections and/or paragraphs of the law will not move the Court to do what is asked and renders the application incompetent. " See:- Maneno Abdallah v. Republic, Criminal Application No. 2 of 2005; Marcky Mhango v. Tanzania Shoe Company, Civil Application No. 37 of 2003 (CAT) (unreported); Almas Iddie Mwinyi v. National Bank of Commerce and Another, Civil Application No. 88 of 1998; Citibank Tanzania Limited v. Tanzania Telecommunications Company (both unreported). It is the citation of the relevant law which gives the Court the jurisdiction to grant the relief or order sought. Failure to do so is a fatal omission and/or irregularity which renders the application incompetent. In view of our finding on the non-compliance with Rule 48 ( 1) of the Court Rules, we need not delve into whether or not the requirements under Rule 66 (1) of the Court Rules have been met. 5 In the event, and for the foregoing reasons, we find the notice of motion to be incompetent and it is hereby struck out. DATED at MTWARA this day of 2nd October, 2015. M.C.OTHMAN

CHIEF JUSTICE S. MJASIRI

JUSTICE OF APPEAL B. M. K. MMILLA

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

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 6