20170822 TZHC Tabora

IN THE COURT OF APPEAL O!= TAtr.!Zl\N!~.. 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 REPUBLIC ••••••••••••••••••••••••••..•••.•.•.•.••••••••••••••••••••••••••••.• RES,PON.DE.NT (Application for review from the judgment of the Court of Appeal of Tanzania at Tabora) (Msoffe, Kimaro, And Mandia,JJJ.A.) Dated 1 st 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 (1) (a) and (b) of Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit sworn by the applicant himself. He is inviting_ the Court to review its own decision in Criminal Appeal No. 162 of 2009. Before us1 the applicant appeared in person anrl fPnrled for himself, while the respondent Republic enjoyed the services of Mr. Juma Masanja, 1 .., ,earne 1 d ,Sernor . :::,tate ALt.Orney. r" 1\-1-l-- , 1 ed an a.Ff"d ,He ,:·1 1 avk in rep Iy :n "t- • . v\hh".ic h, ,..,1e 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 in 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 fi~nd~ 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 ..., propounded t!lree grounds under which an application for review could be considered, which grounds are now made part of Rule 66 ( 1) 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 order✓ but no application for review shail 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 ( cl) · 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 Rules. Certainly, the grounds raised are, but grounds of appeal. In a way therefore, this is an attempt by the applicant to make the 3 Court drift into rehearing the appeal against its own decision, which. cannot . ... ·• ..:•. . • '¥'. ... be allowed. See the case of Lakhamshi Brothers Ltd 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~KYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 4