20120525 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA I {CORAM: MUNUO, J.A., KIMARO, J.A. And MJASIRI, J.A) TABORA CRIMINAL APPLICATION NO. 2 OF 2007 TABU NYANDA @ KATWIGA ••••••..•.•••••••••••••••••....••••••.•••••••••....•• APPLICANT VERSUS THE REPUBLIC ........................................................... ,! • • • • • • • • • RESPONDENT (Application for Review from the Judgment of the Court of Appeal of Tanzania at Mwanza) (Lubuva. Mroso, Rutakangwa, JJJ.A.) dated 16th day of March, 2007 in Criminal Appeal No. 220 of 2004 ...•••........... RULING OF THE COURT 25 & 28 May, 2012 MUNUO, l.A: The applicant was convicted of murder and sentenced to death in Criminal Sessions Case No. 51 of 1997 in the High Court of Tanzania, I I ' before Mwita, J. Aggrieved, he lodged Criminal Appeal No. 220 of 2004 in the Court of Appeal of Tanzania which was determined by Lubuva, Mrosso and Rutakangwa, JJJA's. The applicant lost the appeal. He then brought the present review. Mr. Kamaliza Kayaga, learned advocate appeared for the applicant. The respondent Republic was repre sented by Mr. Edwin 1 I 1 . ' Kakolaki, learned Principal State Attorney who was assisted by Mr. Hashim Ngole, learned Senior State Attorney. When the application was called out, Mr. Kayaga observed that under Rule 66(5) of the Court Rules, 2009, review should be before the same panel. Mr. Kakolaki conceded. That is indeed the correct position in law save that in this review two of the justices have since retired which means two other justices would succeed them to constitute a panel of three. However, the learned Principal State Attorney further observed that the review is not properly before the Court in any event because the grounds of review have not been stated in the Notice of Motion pursuant to the provisions of Rule 66 (1) and (3) of the Court Rules, 2009. He cited a similar case in Abdallah Hamisi Salim @ Simb~ versus Republic Criminal Appeal No. 15 of 2008 (CA at Tanzania) (unreported) wherein the Court ruled that the grounds of review must be stated in the Notice of Motion citing the case of Chadrakant Joshubhai Patel as authority. 2 Counsel for the applicant contended that the applicant's sole ground ' for review would be that there is an apparent error on the face of the record so the review is properly before the Court. On this, the Principal State Attorney contended that the alleged error or errors apparent on the face of the record should be pleaded in the Notice of M,otion in compliance with Rule 66 (3) of the Court Rules which states: 11 66 (3) The Notice of Motion for review shall beI filed within sixty days from the date :of the judgment or order sought to be reviewed. It shall set out clearly the grounds of review.." The issue before us is whether the review is competent. ' We are mindful of the provisions of Rule 66 (1) of the Court Rules, 2009 which read verbatim: 11 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 error on I the face of the record resulting in the mi~carriage ofjustice; or (b) A party was wrongly deprived of an opportunity to be heard; 3 .' (c) The court's decision is a nullity; or (d) The court has no jurisdiction to entertain the case; or (e) The judgment was procured illegally, or by fraud or perjury'~ We are of the settled view that where the applicant relies on Rule 66 (1) (a) as counsel for the applicant intends to do in this application, the apparent errors manifest on the face of the judgment sought to be reviewed must be stated as grounds for review in the Notice of Motion to enable the other party to grasp the nature of the sought review. This has not been done in this application. We therefore agree with the learned Principal State Attorney that the review is not properly before the Court. Non-compliance with Rules 66 (1) and (3) of the Court Rules, 2009 renders the review incompetent. The review is also time barred. Under Rule 66 (3) of the Court Rules cited supra/ the review should have been filed within sixty days from the date of the judgment. The present review should have been filed before the 16th May, 2007, that is sixty days from the date of judgment on the 16th March, 2007. The review was filed on the 22nd May, 2007, almost a week out of time. 4 I In view of the above, we are satis~ed that this review is incompetent. We accordingly strike out the application for review. , I th DATED at TABORA this 25 day of May, 2p12. E.N.MUNUO JUSTICE OF APPEAL ' I I N. P. KIMARO JUSTICE OF APPEAL 5. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. ' (Z. A.if!a) DEPUTY REGISTRAR COURT OF APPEAL 5