IN THE COURT OF APPEAL OF TANZANIAAT OAR ES SALAAM

CRIMINAL APPLICATION NO.9 OF 2014

(CORAM: MBAROUK, l.A., MZlRAY, l.A., And MWANGESI, l.A.)

EMMANUEL YUSUPH @ NORIEGA APPLICANTVERSUS

THE REPUBLIC RESPONDENT(Application for Review of the decision of the Court of Appeal of

Tanzania at Tabora)

(Kimaro, Mbarouk,And Massati, lll.A)

Dated the 29th day of October, 2009in

Criminal Appeal No. 152 of 2005

RULING OF THE COURT

1Jth & 24th August, 2017MBAROUK, l.A.:

In the High Court of Tanzania siting at Tabora (Mwita, J. as

he then was) in Criminal Sessions No. 34 of 1997, the applicant

was charged and convicted of the offence of murder contrary to

section 196 of the Penal Code, Cap 16. R.E. 2002. He was alleged

,. to have intentionally killed Ismail Omary Mkanga at I1agala village,

within Kigoma District on the 3rd November, 1995. His appeal

before this Court (Kimaro, J.A., Mbarouk, J.A. And Massati, J.A.) in

Criminal Appeal No. 152 of 2005 held at Tabora was dismissed in

its entirety on 29th October, 2009. Hence, the applicant has now

preferred this application.

In this application made by way of notice of motion citing

Rule 66(1) of the Court of Appeal Rules, 2009 (the Rules), the

applicant is seeking review of the decision of this Court stated

herein above. The affidavit of Emmanuel Yusuf @ Noriega was

attached in support of the notice of motion.

In his notice of motion, the applicant has stated only one

ground to support his application, namely that he was deprived an

opportunity to be heard as the counsel who represented him in his

appeal before this Court also represented the respondent/Republic

at the early stages before the High Court.

When the application was called on for hearing, the applicant

appeared in person, unrepresented, whereas Mr. Credo Rugaju,

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learned Senior State Attorney assisted by Ms. Emelda Mushi,

learned State Attorney, appeared for the respondent/Republic.

The applicant opted to allow the learned Senior State Attorney to

submit first and give his rejoinder submission later.

From the outset, Mr. Rugaju opposed the application for the

reason that no manifest error has been established by the

applicant. He submitted that, the reason that the applicant was

denied his right to be heard has no substance, because the said

advocate (Mr. Kabuguzi) only appeared at the preliminary hearing

(PH) stage. He further added that in his appeal sought to be

reviewed, this Court examined that issueat page 5 of its judgment

and came to a conclusion that, the appearance of Mr. Kabuguzi to

prosecute the appeal on behalf of the applicant was inappropriate

and it was not ethical. Mr. Rugaju was of the firm view that no

prejudice was occasioned and the issue did not go to the root of

the matter and that is why this Court proceeded to hear both sides

in that appeal and reached to its decision.

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Mr. Rugaju then urged us to find that, the ground given by

the applicant is not covered under Rule 66 (1) (a) - (e) of the

Rules because the applicant was properly heard in his appeal. In

support of his submission he cited to us the decision of this Court

in the case of Mbigima Mpigaa and Another v. Republic,

Criminal Application No.3 of 2001 (unreported).

For that reason, the learned Senior State Attorney prayed for

the application to be dismissed.

In his rejoinder submissions the applicant simply reiterated

his ground of complaint and prayed for the Court to examine in

depth on what he has complained and give a just decision.

To begin with, we have found it prudent to be guided by the

provisions of Rule 66 of the Ruleswhich provide as follows:-

1166-(1) The Court may review its judgment

or order. but no application for review shall

be entertained except on the following

grounds:-

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(a) The decision was based on a

manifest error on the face of the

record resulting In the

miscarriage ofjustice; or

(b) A party was wrongly deprived of

an opportunity to be heard;

(c) Thecourt's decisionis a nullity; or

(d) The court had no jurisdiction to

entertain the caseor

(e) Thejudgment wasprocured illegally,

or by fraud or perjury.H

[Emphasis added].

It is now settled that after the coming into force of the Court

of Appeal Rules, 2009, no application for review shall be

entertained except if the requirements under Rule 66(1)(a) - (e)

are complied with. SeeKarim Ramadhani v. Republic, Criminal

Application No. 4 of 2007, Karim Kiara v. Republic, Criminal

Application No. 6 of 2007, Mbijima Mpigaa & Another v.

,.Republic, Criminal Application No. 3 of 2011, Procodence

Philipo v. Republic, Criminal Application No. 5 of 2013, and

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Samson Matiga v. Republic, Criminal Application No.6 of 2011

(all unreported) to name of few.

In the decision of this Court in Samson Matiga (supra) it

was stated as follows:-

"50/ it is not each and every ground qualifies

to be a ground for a review. To put it

differently those grounds which are not

mentioned in the cited Rule are excluded as

grounds for review, hence the Latin Maxim

Expressionunius exclusionalter ius est. (The

expression of one thing excludes the other). The

insistence of this aspect is not far to seek-if each

and evety ground in the judgment is subject for a

review/ then no litigation will come to an end. This

is against the public policy which demand the need

for litigation to come to an end (interestei rei

pub/icae ut sit finis litium).,.6

[Emphasis added].

In the instant case, the applicant preferred to support his

application by claiming that, he was not heard at this appeal

because an advocate who represented him also appeared for the

respondent/Republic at an earlier stages of his case before the

High Court. On our part, we fully agree with learned Senior State

Attorney that the record shows that it is true Mr. Kabuguzi, learned

advocate did appear at the PHstage and later at the appeal level

but as painted out by this Court, the act is unethical, but did not

prejudice the applicant, and proceeded with hearing both parties

in that appeal. We therefore find no merit in this ground as both

parties were properly heard. As painted out in the caseof Samson

Matiga (Supra) that not every ground qualifies to be a ground for

a review. As far as the ground preferred by the applicant has

already been dealt with earlier on by this Court at page 5 of the

decision sought to be reviewed, that ground cannot be utilized as

a back door method to allow the applicant to re-argue his appeal.,.7

For that reason, we find the application devoid of merit and

hence dismiss it.

DATED at DAR ES SALAAM this 18th day of August, 2017.

M.S. MBAROUKJUSTICE OF APPEAL

R.E. MZlRAYJUSTICE OF APPEAL

s.s, MWANGESIJUSTICE OF APPEAL

I certify that this is a true copy of the original.

A.H. M UMIDEPUTY REGSTRARCOURT OF APPEAL

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