2010NA TZCA Dar es Salaam

IN THE COURT OF THE COURT OF APPEAL OF TANZANIA ..

AT DAR ES SALAAM (CORAM: MUNUO. J.A., KIM~RO, J.A., And MJASIRI. J.A.) I . . ...... •.. ,., :.·. . l.:. . CRIMINAL APPLICATION NO. 4 OF 2007: .· ABRAHAMANI MAPUNDA AND OTHERS ......................................... APPLICANTS VERsJs·. . THE REPUBLIC ......................................... J. ...................................RESPONDENT I . (Application for Review of the judlgment of the Court of Appeal of Tanzania at Dar es Salaam) (Munuo,J.A;. Kaji,J.A+hd Kimaro, J.A.) · · Cri::: :::e:::r::: :f0::02 . -, I ,,;i '1'n r:H,L"-''c',':t'.-i'1'''f')'N .. r, ·:, . ...... :_,-,-.Ji , t I "j , ,.l ,., :r_ ... r-:. !: r ·J. 1·'1. t :,... , ;._•N·ih , \., . .,•. • 0i:-' ... , • ')(\ .. . •~ , JUDGMENT O.F,THE COURT 19th February & KIMARO, J.A.: The applicants were charged in. the istrict Court of Bagamoyo at Bagamoyo, ·',, ,.; ';·,_, .. '' :; ;•; ~;; · l'.,t_; 1/ll:W' O! LI ll\•j•u0grHUi1L e,., u ]l: ·~0,J; ..;·;_;,·. ,.;; , ; ,., ·; :, . . 1 . . and convicted of the offence of robbery contrary to sections 285 and 286 of the Penal Code, Cap 16 R.E 2002. They were sente~cJd to a term of fifteen years imprisonment. The applicants were aggrieved and ,they1fi!edf Griminal-Appeal No.75 of 1999 in the High Court of Tanzania at Dar es Sal~~'Tl. Regi~try. bq~, it unsuc~essful. n was dismissed but the sentence was en~anced to thirty yea~J impr;sonment because the first appellate court found

that the applicants committed gJng robbery. . . ·~vLJ\Jr,Ll'\1! ,U.11 l'::L •-~-UH.•_ • • ••, I Still aggrieved, the applicants lodged Criminal Appeal No.114 of 2002 in the Court which was also dismissed for lack of merit. Still protesting their innocence, the applicants are before the Court again with an application for review of its judgment.. They relied on Rule 44 of the Court of Appeal Rules 1979. Their joint supporting affidavit shows that they are challenging the prosecution evidence on the identifying circumstances which they claimed not to be conducive for their correct identification. They also complain that the. torch which assisted the witnesses to identify the applicants was not tendered in the trial court as exhibit. They prayed that the judgment of .this Court .be reviewed and .set aside and they be acquitted. During the hearing of the application, the applicants were not represented. They appeared in person. Mr. Boniface, the Principal State Attorney appeared for the . ~ ... .. ,, ' respondents. In support of the application1 the applicants generally reiterated what they averred in their joint affidavit. They also added that failure to conduct a preliminary hearing under section 192 (1) and (2) of the Criminal Procedure Act, Cap 20 of 2002 • • ·-. ; ~.' j " •~ "":' j ... , • : ; - -~.. • • ' : • • also influenced the proceedings in that the trial court failed to

give a fair decision. They prayed that the application be allowed: On his part the learned Principal State Attorney had a very brief reply. He vehemently challenged the application on two grounds. First, was the limitation period for filing the appB~ation .. ij,H~i(s~iSrJ,~~Li~,P,P,l!~pJigpp}X~~/!1~8 .,out()f .time. because the judgment the applicants are challenging . is dated on 22 nd December 2006 while the application was filed on 4th May, 2007. The limitation period for filing applications for . 2 ri . - - - --.---1-..- - - . - - ' . . ·~ review, contended the learned Principal Stat~ Attorney is sixty days. ; Since the application was filed beyond the sixty days, Mr. Boniface said it was time barred. • _. .. . . .. .. ........; .:, ,.,. •. . . .. . .. r·. , ~-- . .... ., • Second, was the reason for filing the applicatio~. In his view the applicants have not I ·. ! given any ground which permits the Court to all~w a review because what is before the Court is a second appeal and not a review. • I . • In their brief rejoinder, the applicant sa,dthe application was filed within time because the judgment was not delivered on the: date it was signed but was delivered on 23 rd March 2007 as reflected on the first page of the judgment. On this point we agree I with the applicants that the application was filed within time because the date of the I· delivery of the judgment which

is being challenged is reflected on judgment. I issue can be found in the new Court of AppealI Rules 2010, which became effective on 1st February 2010. The relevant rule is 66. Under rule 66(1) an application for review • ··-· - •--·· I •• cannot be entertained except on the following !grounds: I I. I (a) "The decision was based on a manifest error on the face of the record resultin in the miscarriage of g 1 . . . . , .. i . ·: i -f 1 n-thr-~f trst-=-paat~r-ot-tnr·,. !l !·'\(q: ;r 'i l~ - ..... (b) A party was wrongly qeprived of an opportunity to be heard. (c) The court's decision i~ a. nl,lllity; or . , n \ ,'"'. '.i:~' i·~ (,(~· :! }n(~()f ,: ' r - / ~ \ 1 , ... , 3'I (d) The court-had nojurisdiction to entertain the case; or (e) The judgment was procuted illegally, or by fraud or perjury." ' Sub rule 2 of rule 66 deals with- the mode for filing a r~view. Subject to necessary modification, a review has to b_e instjtuted in the same mode as a revision. I Sub rule (3) of rule 66 sets the limitation period for filing an application for review and it is sixty days. It is mandatory to set out clearly the grounds for review. ·-·. - Back to the application, we must out tightly say that th~ application has no I merit. None of the grounds set out in rule. 66(1) of the Rules has been. satisfied by the applicants. As the learned Principal State A~orney said, correctly in our view,

the applicant have not filed a review but a• secohd appeal. They have not in any way . I . ---~·--+-·- I. ~-r -· challenged the judgment of the Court. The applicants have not even complied with the . . ' '1··•, .,, . . . proper procedure for filing the application; ~ut we appreciate that they are lay men and the application was filed under th~ ol~ repealed rules which did not have a provision dealing with a review. ·-~ ~, . , ... Neverth~'less, as... ,;~.., !,111, .... , ....11.. 1vl1_jjJLllt"''..._ i..,..,, we ~ ...have , •.• stated, they have not,. · 1 faulted the judgment of Court. Instead, they -., . ' kept on repeating the ground of appeal . ' , . I '•i .''I f • on identification, which was relied upon when they filed their appeal in this Court. In I dealing with that issue we said: "The learned judge considered the issu_~ of identification of, the appellants 1 . ' and held-· • ,··,,:.·.! ,·1 n_,vic!vv ·1JL.rt ,r:s'ecoricJ·•r.1r-•,)( c:I, · 111,,,. ,,;·,.,:. 1 1 " .. .In the judgment the trial magistrate in my view . . '·. ' , .. . ' . analysed exhaustively the testimony of the main prosecution witnesses, to wit, P.W.1, P.W.2, P.W.3 and P.W.4 and found as established that· those witnesses properly identified the appellants at the scene of the crime on the basis of familiarity prior to the robbery and due to existence of favourable circumstances i.e. moo~ and torch light on

the fateful night. Like .the trial ·magistrate I. find it established from the prosecution witnesses ~hat the appellants were properly identified and further that there is corroboration on identification by P, W,1,P.W.3 and P.W.4 who saw the • • • ' r ·.' ' • • i ; ,. ' .l ·~q , I ., I { .\ •/ ;• ;• •· ' • ~. ' • • • • ' . . . ., :_·.• w •• • :1<•. 1 ...,;,_1uvLA'f·•-.rlc•Li.:...~~\.l~h.if,,71t.,,. Ul\:..·,t,,._,,,,. ,•.·.,_··-:• •. •. • . appellants at the scene of crime at different intervals i.e. P.W.3 and P.W.4 were together while P.W.1 came to the scene of crime moments later." number, had with them a pressure lamp, whose bright light properly lit the go down thereby enabling them to steal 600 bags of salt which they loaded in a small boat which was about five paces 'from the go down. P.W.1, P.W.3, P.W.4 identified one Marwa who escaped and is at large. We are satisfied that the conditions of identification and visibility were favourable which was why the appellants were identified by P.W. and . ,h\s watchmen. Out of the 20 gang of t i-,~rl:r'·i~~c. ·l~~t-r r. ,., . 1 invaders, P.W.1, P.W.3, P.W.4 and P.W.5 only identified the appellants who were 5' familiar persons; they could not identify the strangers. We are settled in our minds that the identification of the appellants by the bright light of the pressure ' lamp was watertight so the conviction was: properly

grounded.'.' ...,.... . ,-:...:-- - '. The applicants have not pointed out the :error we committed in the analysis of . ' ' how the issue of identification was dealt with i.n the courts below and why we were satisfied that the analysis was correct. Instead,lthey brought the issue of identification fresh as if it has not been dealt with. Obviously this is wrong. The court is ''funtus I officio"in as far as their appeal is concerned as:Jthas already been determined. Since ·, the applicants have failed to satisfy the conditiohs for granting a reyiew, the application is dismissed. JUSTICE OF f.PPEAL • ,'L..,.,, u.....:u1L1 v. . 1"\..i ! 11 1 • I \., 1. I JUSTICE OF :APPEAL JUSTICE , OF;·j A_PPEAL 1. I I . . - -- - - - - . I - - ..· · • , - - - - - - . - - - . I i ,,:J U::/1 1Cb Of. Ar;'Ht_;,; G: - ,-Jt;:::i I JC..;6-{Jr--A\-lf-'r:.1-,1 -- 1