CRIMINAL APPLICATION NO 47 01 OF 2021 SALEHE RAMADHANI OTHMAN SALEHE BEJJA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. J.A., MWANDAMBO. J.A. And KAIRO, J.A.^ CRIMINAL APPLICATION NO. 47/01 OF 2021 SALEHE RAMADHANI OTHMAN @SALEHE BEJJA........................APPLICANT VERSUS THE REPUBLIC..................... ......... .......................... ....... .RESPONDENT [Application for review of the decision of the Court of Appeaiof Tanzania, at Dares Salaam] (Lila. Kerefu and Kairo, JJA,.^ dated 4th day of October, 2021 in Criminal Appeal No. 532 of 2019. RULING OF THE COURT 2$hApril & I ff' May, 2024 KAIRO. J.A.: This ruling is in respect of an application for review lodged by Salehe Ramadhani Othuman @ Salehe Bejja, the applicant It has been brought by way of notice of motion filed on 25th November, 2021 and supported by an affidavit affirmed by the applicant. The same is preferred under the provisions of section 4 (4) of the Appellate Jurisdiction Act, Cap 141 R. E. 2019 and Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009, (the Rules) on the sole ground that, the decision of the Court was based on manifest error on the face of the record resulting in the miscarriage of justice. The applicant's illustration on the stated ground had two limbs: first; that 1 PW1 (the victim) was not credible and/ or truthful to be relied upon solely to ground the applicant's conviction as his story was not proved to exist by the prosecution, and second; that the charge was incurably defective as the scenes of crime mentioned by PW1 were not shown in the charge sheet in order to enable the applicant prepare and marshal a proper defence. The application was resisted by an affidavit in reply deposed by Kija Luzungana, learned State Attorney, on behalf of the respondent Republic. Briefly the facts that resulted to this application as can be discerned from the record of application are that; the applicant was convicted by the District Court of Kinondoni at Kinondoni of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. He was sentenced to thirty years imprisonment. The applicant's first appeal before the High Court of Tanzania at Dar es Salaam was dismissed, so also was his second appeal to the Court. Still dissatisfied, the applicant has decided to lodge the present application for review on the ground alluded to above. At the hearing of this application, the applicant appeared himself, unrepresented. On the other hand, the respondent Republic was represented by Ms. Daisy Makakala, learned State Attorney. When invited to amplify his ground for the application, the applicant prayed to adopt his notice of motion with the supporting affidavit, together with his written submission filed on 25th April, 2024 with no more. Amplifying on the stated error for the first limb as per his written submission, the applicant submitted that, section 127 (2) of the Evidence Act was not complied with before taking the evidence of the victim who testified as PW1. It was his elaboration that, there was no examination conducted by the trial court to test his competence and whether he knew the meaning and nature of oath. Yet, the trial court jumped into conclusion that PW1 promised to tell the truth, without first having tested his competence. He went on submitting that PW1 being a child of a tender age, his evidence was not supposed to be received on affirmation. The applicant therefore contended that, the affirmed evidence of PW1 was invalid and had no evidential value. He cited the cases of Godfrey Wilson vs The Republic, Criminal Appeal No. 168 of 2018 and Faraji Said vs The Republic, Criminal Appeal No. 172 of 2018 (both unreported) to back up his contention. Stressing on the fatality of defying the legal requirement to test the competence of PW1, the applicant cited the cases of Issa Nambaluka vs The Republic, Criminal Appeal No. 272 of 2018, 3 Hamisi Issa vs The Republic, Criminal Appeal No. 274 of 2018 and Jafari Majani vs The Republic, Criminal Appeal No. 402 of 2014 (all unreported). The applicant further contended that, besides the pointed-out omission, PWl's promise was also incomplete as he only promised to tell the truth, leaving aside a promise not to tell lies. Thus, contrary to the requirement under section 127 (2) of the Evidence Act. Winding up, he concluded that in the circumstances, PWl's evidence was not credible or truthful to be relied upon to ground the conviction against the applicant, nor was it safe to sustain the applicant's conviction. Regarding the defectiveness of the charge, the applicant submitted that, the scene of crime stated in the charge was at variance with the ones mentioned by PW1 in his evidence, thus, it was not easy to ascertain the actual scene of crime. According to him, no amendment or alteration or substitution of the charge was done in terms of section 234 (1) of the Criminal Procedure Act (the CPA). Yet, the Court concurred with the findings of the trial and first appellate court. It was his contention that, in the said circumstances, the charge remained incurably defective and the omission cannot be saved by the provisions of section 388 of the CPA arguing that, the miscarriage of justice was occasioned to the applicant as he was embarrassed and prejudiced in preparing his defence. Ultimately, the trial was not fair due to procedural irregularities in the court proceedings; he contended. In conclusion, he urged the Court to grant his application, quash the conviction and the sentence meted to him, and order for his release. In her brief response, Ms. Makakala refuted both of the reasons advanced by the applicant arguing that, they do not depict any error on the face of the record as submitted. She further submitted that, both of the said complaints were thoroughiy dealt with in the trial and first appellate courts (lower courts). Elaborating, Ms. Makakala stated that, the issue of defective charge was discussed and determined by the Court at pages 15-16 of its judgment. As regards the credibility of PWl's evidence, the Court analysed it at pages 21-22 of the Court's judgment. She charged that, bringing them up again to Court, amounts to reopening the appeal. In other words, it is the same as asking the Court to sit and determine its own appeal, which in law is unacceptable. Illustrating on the phrase "error on the face of the record", Ms. Makakala referred us to the Court's decision in Salehe Siasa vs The Republic, Criminal Application No. 22/01 of 2020 wherein the Court observed that, errors on the face of the record simply means a plain error which is so obvious and substantial. She contended that, the alleged errors did not pass the test stated in the cited case. On that account, she implored the Court to find this application without merit and dismiss it The applicant had nothing to rejoin and reiterated his prayer to have his application granted. Having considered the notice of motion, affidavits for and against the application, the applicant's written submission and respondent's oral submission, the issue for our determination is whether the applicant's complaints has met the benchmark set under rule 66 (1) of the Rules to enable the Court exercise its review jurisdiction. Essentially, review is not ai automatic right and has a very limited scope. The primary purpose of review is not to challenge the merit of the decision, but to address irregularities of a decision which have caused injustice to a party. The remedy thus, is allowable only in exceptional situations as provided under rule 66 (1) of the Rules which provides "66 (1) The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds:- (a) the decision was based on a manifest 6 error on the face o fthe record resulting in the miscarriage o fjustice; or (b) a party was wrong/y deprived o f an opportunity to beheard; (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 orperjury". Going by the above exposition of the law, it is clearthat the applicant must satisfy at least one of the conditions itemised in paragraphs (a) to (e). In the instant application, the applicant has premised his prayer for review under rule 66 (1) (a)of the Rules alleging that there is manifest error on the face of the record, resulting in miscarriage of justice. In the case of Chandrakant Joshubhai Patel vs Republic [2004] T.L.R 218 the Court elucidated the phrase "manifest error" to mean an error apparent on the face of the record, which is obvious and self-evident, and which may result in miscarriage of justice. [See also Edson Simon Mwombeki vs Republic, Criminal Application No. 06/08 of 2017 and Twaha Michael Gujwile vs Kagera Farmers Cooperative Bank, Civil Application No. 156/04 of 2020] (both unreported) and Salehe Siasa (supra) cited by the respondent. 7 Subjecting the above for this application,the question therefore is whether the complaints qualify to be called apparent errors in terms of rule 66 (1) of the Rules. Our answer is in the negative and we shall demonstrate shortly. Perhaps we have also to state what record is being referred to in rule 66(1) of the Rules before determining whether or not the alleged errors are apparent. The case of The Attorney General vs Mwahezi Mohamed (as an administrator o f the estate o f the fate Do/iy Maria Eustace) and 3 Others, Civil Application No. 314/12 of 2020 (unreported) will serve as a guidance on this aspect into which the Court stated as follows regarding the said term: "Rule 66 (1) o f the Rules is very dear thatf the Court may review its "judgment" or "order'; which means, for the Court to determine an application for review all it needs to have before it is the impugned decision and not the evidence adduced during trial or decisions o f subordinate court(s) as submitted by Mr. Malata. We need to emphasize here that, the record referred in review is either the "judgment" or "order" subject o f review". [Emphasis added] [See also: Karim Ramadhani vs Republic, Criminal Application No. 25 of 2012, Isaya Linus Chengula (as administrator 8 o f the Estate o f the late Linus Chengu/a) vs Frank Nyika (as administrator o f the Estate o f the late Asheri Nyika), Civil Application No. 487 of 2020 (both unreported)] Basing on the authorities cited above, the Court emphatically observed that, the record referred to for purposes of review is the impugned judgment or order and not any other record. Looking at his complaints, the applicant invites the Court to go through the charge and evidence adduced during trial in order to determine the veracity of his complaints, which is not within the purview of the Court when exercising its review jurisdiction. We can state without hesitation that, the complaints will require the Court to revisit the record of appeal which we are not seized with, in this application. Besides, revisiting the evidence in the record of appeal will amount to sitting on appeal from on our own decision. The Court cannot therefore re-examine the record of appeal when reviewing its judgment or order [see: Ernest Jackson Mwandikaupesi and Another vs The Republic, Criminal Application No. 46/01 of 2021 (unreported). That apart, the applicant's complaints require a long process of reasoning, and thus cannot qualify to be an apparent error as per the decision of Chandrakant Joshubhai Patel (supra). In expounding how obvious the error is supposed to be, the Court in the cited case observed as follows: "An error apparent on the face o f the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points which there may conceivably two opinions... A mere error o f law is not a ground for review under this rule. That a decision is erroneous in law is no ground for ordering review...It can be said o f an error that is apparent on the face o f the record when it is obvious and self-evident and does not require an elaborate argument to be established’". [Emphasis added]. It is also noteworthy that the errors complained of have already been dealt with thoroughly by the Court as correctly submitted by Ms. Makakala. To bring them again amounts to reopening an appeal which is contrary to the spirit of Rule 66 (1) of the Rules. In the case of Tanganyika Land Agency Limited and 7 Others v. Manohar Lai Aggrwai, Civil Application No. 17 of 2008, the Court aptly stated that: - "For matters which were fully dealt with and decided upon on appeal, the fact that one o f the parties is dissatisfied with the outcome is no ground at all for review. To do that would, not only be an abuse o f the Court process, but would result to endless litigation. Like life, litigation must come to an end". In further discouraging litigants from resorting to review as disguised appeals, and underscoring the cherished principle insisting on an end to litigation, in Patrick Sanga v. Republic, Criminal Application No. 8 of 2011 the Court emphasized as follows: - "The review process should never be allowed to be usedas an appeal in disguise. There must be an end to litigation, be it in civil or criminal proceedings. A call to re-assess the evidence, in our respectful opinion, is an appeal through the back door. The applicant and those o f his like who want to test the Court's legal ingenuity to the lim it should understand that we have no jurisdiction to sit on appeal over our own judgements. In any properly functioning justice system, like ours, litigation must have finality and a judgment o f the final court o f the land is final and its review should be an exception. That is what sound public policy demands". [Emphasis added]. As regards the cases cited by the applicant as a back-up to convince the Court to grant his application, suffice to state that, the 11 same are distinguishable as they are all appeals which challenged the merits of the decisions of the lower courts wherein the Court was exercising appellate jurisdiction and not review. In the event and for the reasons we have given above, we find that the application is without merit and we accordingly dismiss it in its entirety. It is so ordered. DATED at DAR ES SALAAM this 15th day of May, 2024. S. A. LILA JUSTICE OF APPEAL L. 3. S. MWAN DAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The Ruling is delivered this 16th day of May, 2024 in the presence of the Appellant via video link and Mr. Cathbeth Mbilingi and John Edger both Principal State Attorneys for the respondent, is hereby certified as a true copy of the original.