20141027 TZCA Tabora

AT TABORA (CORAM: LUANDA, J.A., MMILLA, J.A. And MWARIJA, J.A.) CRIMINAL APPLICATION NO. 9 OF 2014 SHIJA S/0 SHILOTO .... "." .. "........................................................ ·... _... _....... APPLICANT VERSUS THE REPUBLI(; ...................................................................................................... RESPON.DENT {Application for review from the judgment of the Court of Appeal of Tanzania at Tabora) (Msoffe, Kimaro, And Mandia,:JJJ.A.) Dated 1st day of July, 2011 in Criminal Appeal No. 162 of 2009 RULING OF THE COURT 21 st & 23 rd August, 2017 MMILLA, J.A: This is an application for review lodged by Shija s/o Shiloto (the applicant). It is founded under Rules 42 (1), 48 (1), (2) and 66 (l} (a) and (b) of Court of Appeal Rules, 2009 (the Rules). It is supp~rted by an ' affidavit sworn ~y the applicant himself. He is inviting the Court to review its own decision in Criminal Appeal No. 162 of 2009. Before us,. the applicant appeared in perso!l anrl fP.nded for himself, while the respondent Republic enjoyed the services of Mr. Juma Masanja, 1 ea1--1ed _:, 1 1 • . . !.,... ,....l-_te A++o•--ne·v ,....e· 1·1•101--I ::::,t,d LL II , • Ue I I .. fil,-.rl IICU n ..... Clll aHirla, IIIU ,it- VII.. ·1n· I\ ..0...·.Pl'V . ini i "•h"1rh vV.l~t ht:) iiC strongly opposes this application for reasons which will soon be made clear. The applicant's notice of motion has raised four grounds which may be rephrased as follows; one that, the two lower courts erred in believing and relying on the evidence of PWl who was not a truthful witness; two that, the evidence of PW3 was improperly held to have. corroborated the evidence of PWl; three that, the Court erred in believing that the complainant (PWl) was below· the age of 18 years; and four that, the offence of rape was not proven to the standard required by law. Apart from lamenting that he has been iri prison for 13 years now, therefore that the Court should have mercy on him, the applicant's oral submission did not go beyond the contents of the grounds shown above. On the other hand, Mr. Masanja submitted that all the four grounds·· raised in the notice of motion do not conform to the requirements set down in Rule 66 (1) of the Rules. He added that what is quipped in the notice of motion is nothing else but grounds of appeal. He cited to us the case of Chandrakant Joshubhai . Patel v. Republic [2004] T.L.R. .343, a _ case which was decided before the promulgation of the Rules. The Court 2 11 i'Opounded three grounds under vvhich an application forreview could be 1 . . considered, which grounds are now made part of Rule 66" (t) of the Rules. He urged the Court to dismiss this application. At the outset, we agree with Mr. Masanja that anyone who intends to move the Court to review its own decision as is the case here is required to advance the grounds envisaged under Rule 66 (1) of the Rules. That Rule provides that:- "66 (1) The Court may review its Judgment or orde0 but no application for review shall be entertained except on the following grounds:- (a) the decision was based on a manifest error on the face of the record resulting in miscarriage ofJustice; 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 illegal!½ or by fraud or perjury." We similarly agree with Mr. Masanja that none of the grounds raised by the applicant in the notice of motion conform to those envisaged under Rule 66 (1) of the Ruies. Certainiy, the grounds raised are, but grounds of appeal. In a way therefore, this is an attempt by the applicant to make the 3 . '5e allowed'~. ·see the case of'Lakhamshf Brothers ·ttd' v. 'Raja Sons, (1966) E.A 313 in which the Court of Appeal of East Africa stated that:- ''In a review the Court should not sit on appeal against its own judgment in the same proceedings. In a review the Court has inherent jurisdiction to read its judgment in order to give effect to its manifest intention on what clearly would have been the intention of the Court had some matter not been inadvertently omitted. ,,,[Emphasis added.] For the reasons we have assigned, the present application lacks merit. We accordingly dismissed it. DATED at TABORA this 22 nd day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE -OF APPEAL I certify that this is a true copy of the original. P.W~A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 4 IN THE COURT OF APPEAL OF TANZANIA ATMWANZA ✓ CRIMINAL APPLICATION NO. 8 OF 2014 SALUM NHUMBILI ............................................................... APPLICANT VERSUS THE REPUBLIC ................................................................ RESPONDENT {Application for extension of time to apply for Review of the Decision of the Court of Appeal of Tanzania at Mwanza) {Bwana. Mjasiri. Mandia. JJJ. A.) dated 11th day of September, 2012 in Criminal Appeal No. 120 of 2009 RULING 22 & 28th October, 2014 MMILLA, l. A.: The applicant was charged with and convicted before the District Court of Sengerema in Sengerema District in the Region of Mwanza of the offence of rape contrary to section 130 (1) (2) (c) and 131 (1) of the Penal Code as amended by the Sexual Offences Special Provisions Act No. 4 of 1998. He unsuccessfully appealed in the High Court at Mwanza. His second appeal to this Court was also dismissed on 11th September, 2012. 1 Still determined to pursue justice, the applicant filed a notice of motion under Rule 10 and 75 ( 4) of the Tanzania Court of Appeal Rules of 2009 (The Rules) asking this Court to extend a time in which to lodge an application for review against this Court's decision of 11th September, 2012. It is supported by an affidavit sworn by the applicant himself and a supplementary affidavit sworn by ASP Z. M. Tibwakawa. The reasons for the delay are stated in paragraphs 2 and 5 thereof. Briefly, the applicant is saying that he delayed to file the application for review because he was not readily supplied with a copy of a judgment, and that he should not be blamed for such a delay because it was out of his control. His prayers however, have been strongly challenged by the respondent Republic who, through the service of Mr. Juma Sarige, learned State Attorney, filed an affidavit in reply in which he stated in paragraph 5 thereof that the delay was due the applicant's own negligence. When this application came up for hearing on 22.10.2014, the applicant appeared in person and was not represented. He elected for the respondent to submit first, undertaking to respond thereafter if need there be. 2 Mr. Sarige submitted that under Rule 10 of the Rules, the applicant is duty bound to show sufficient cause for failure to file his application for review in time. He said that the applicant has failed to assign good cause to that effect. According to him, the applicant's reason that he was not supplied with a copy of the judgment at the earliest possible opportune does not constitute sufficient cause because that was due to his own negligence on account that the applicant neither mentioned in his notice of motion or in his affidavit that he applied for the copy of judgment nor did he show that he made any effort in getting the said copy in time. It was also the submission of Mr: Sarige that for the applicant to succeed in an application of this nature, he was required to show either in his notice of motion or in his affidavit that if the Court grants his application, he had chances of succeeding in whichever aspect among those shown under Rule 66 (1) clauses (a) to (e) thereof, which according to him, was not done. He relied on the case of Nyakua Orondo v. Republic, Criminal Application No. 2 of 2014, CAT (unreported). He therefore prayed for this application to be dismissed. On his part, the applicant conceded that it is true he did not apply for that copy of the judgment and also that he did not make any efforts to follow ups. He also conceded that he did not indicate in his notice of motion or in his 3 affidavit the ground which would have shown that he had a chance of succeeding if the application is to be granted, but was quick to plead that he was resting the matter in the hands of the Court. I have carefully gone through the submissions of both parties. Rule 10 of the Rules is clear that in order for the Court to exercise its powers to grant an application for extension of time, the applicant must show good cause for the delay. See the cases of Eliya Anderson v. Republic, Criminal Application No. 2 of 2013, CAT and William Ndingu @ Ngoso v. Republic, Criminal Appeal No. 3 of 2014, CAT (both unreported). In the present application, as correctly submitted by Mr. Sarige, the applicant did not show either in his notice of motion or in his affidavit that he ever applied for the copy of the judgment. As such he cannot be heard to complain that the Court did not promptly supply him with a copy of the same because it was in the first place not moved to supply him with the said copy of the judgment. As aforesaid, he conceded on that. Given such circumstances, I agree with the learned State Attorney that the applicant failed to assign sufficient cause for the Court to exercise its powers under Rule 10 of the Rules. 4 I similarly agree with Mr. Sarige that on the authority of Nyakua Orondo v. Republic and Eliya Anderson v. Republic (supra), the applicant ought to have shown in either his notice of motion or in his affidavit that if the . Court grants his application, he had chances of succeeding in whichever aspect among those shown under Rule 66 (1) clauses (a) to (e) thereof. In the cases of Eliya Anderson v. Republic (supra), the Court stated that:- ''.An application for extension of time to apply for review should not be entertained unless the applicant has not only shown good cause for the delay, but has also established by affidavit evidence, at the state of extension of time, either implicitly or explicitly, that if extension is granted, the review application would be predicated on one or more of the grounds mentioned in paragraphs (a) or (b) or (c) or (d) or (e) of Rule 66 (1)." Ipso facto, it is intended to do so for the purposes of shading light as to why in the first place making such an application. As already stated earlier on, that was not done in the present application. Given the fact that the applicant failed to show good cause as per Rule 10 of the Rules, and because he did not also show in either his notice of motion or in 5 ~ his affidavit that if the Court grants his application, he had chances of succeeding in whichever aspect among those shown under Rule 66 (1) clauses (a) to (e) thereof, he has utterly failed to convince the Court to exercise its discretion to extend time. In the circumstances, the application is dismissed. Dated at Mwanza this 2ih day of October, 2014. B. M. MMILLA JUSTICE OF APPEAL Ic I [ \<:· 6