IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA
(CORAM: MBAROUK, J.A., MZIRAY, J.A. And MWANGESI, J.A.)
CRIMINAL APPLICATION NO. 5 OF 2013
PROCODENCE PHILIPO…………..……………………. APPLICANT
VERSUS
THE REPUBLIC……………….…………………………. RESPONDENT
(Application for Review from the Judgment of the Court of
Appeal of Tanzania at Arusha)
(Nsekela, Msoffe, And Mjasiri, JJJ.A.)
dated the 3rd day of October, 2011
in
Criminal Appeal No. 233 of 2008
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RULING OF THE COURT

9th & 11th August, 2017

MBAROUK, J.A.:

In the District Court of Moshi, the applicant was

charged and convicted with the offence of rape contrary to

sections 130 and 131 of the Penal Code. His appeal before

the High Court of Tanzania at Moshi (Mchome, J.) was

unsuccessful. Undaunted, the applicant preferred an appeal

to this Court (Nsekela, J.A., Msoffe, J.A. and Mjasiri, J.A.)

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where his appeal was dismissed, hence this application for

Review.

By way of notice of motion made under Articles 13 (6)

(a) and 117 (1) of the Constitution of the United Republic of

Tanzania; Rule 66(1) Tanzania Rules, 2009 (the Rules), the

applicant is seeking review of the decision of this Court in

Criminal Appeal No. 233 of 2008 dated 4th October, 2011.

The affidavit of Procodence Philipo was attached in support

of the notice of motion.

The affidavit in support of the notice of motion contain

the following grounds and we reproduce them as they

appeared, namely:-

“(i) That the Honourable justice of

Appeal and their lordships the justice
of appeal erred in law and in fact for
conviction the appellant with the
offence which was not proved at all.
(sic).

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(i) That the Honourable justice of
Appeal and their lordships the justice
of Appeal erred in law and fact
holding and making findings relying
on the contradiction on in the
evidence of the prosecution
witnesses on the number of days the
victim of rape. PW1 Dianad was
admitted to Hospital. This proved
that the case is nothing but
fabricated one. (sic).

(ii) That the Honourable justice of

Appeal and their lordships the justice
of Appeal erred in law and fact for
allowing MRS MINDE as a “watching
brief” your lord there in no provision
for watching brief by anybody. Your
lords Mr. Minde by his mount
promised me that she will teach me a
lesson and for sure she successed by
teaching all the prosecution witness.
Your lord this is danger in justice

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 while I am an innocent person.
(sic.).

(iii) That the Honourable justice of

Appeal and their lordships the justice
of Appeal erred both in law and fact
for failing to note on contradicted
evidence of PW1. Your lords PW1 at
charge sheet claimed to leave at
Marangu Mshiri Village but at Pg 8 of
the typed proceeding of the lower
claimed to leave at Mande Mamba.
This is a different place and different
villages and for actually it is not a
neighboring Village your lords this
also proved that the case against me
is nothing but framed one. (sic.).

(iv) That, the Hohourble justice of appeal

and their lordships the justice of the
appeal erred in the law and fact for
holding and making through the
evidence of PW1 was not raped that
why she failed to look at stained

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 clothes as per sect. 39 of CPA not
only that on she issue of age PW1 at
pg 1 of the charge claimed to here
age of but at pg 8 she said to have to
age of 11 this also propel that the
case against me is fabricate. (sic.).“

In this appeal, the applicant appeared in person

unrepresented, whereas Mr. Charles Kagirwa, learned State

Attorney represented the respondent / Republic.

At the hearing, the applicant opted to allow the

learned State Attorney to submit first in response to the

application and he will give his rejoinder submission after

him.

Mr. Kagirwa responded to each ground presented by

the applicant. As for the first ground, he said, the issue as

to whether the offence was proved was fully examined and

decided at page 7 paragraph 2 of the decision sought to be

reviewed, hence cannot be raised as a ground of review.

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 In his response to the second ground, on a claim of

contradiction in the evidence of the prosecution witnesses

on the number of days when the victim of rape PW1 was

admitted at the hospital, the learned State Attorney

submitted that, at page 3 paragraph 1 of the decision sought

to be reviewed that claim was taken care of, hence cannot

be raised as a ground in this review.

As to the third ground, Mr. Kagirwa submitted that

the issue of allowing Mrs. Minde as the “watching brief” was

also examined and decided in the decision subject to this

review at page 8 of the decision sought to be reviewed,

hence cannot be raised as a ground in the Review.

In his response to the fourth ground, Mr. Kagirwa

submitted that, this ground was not raised in the appeal

before this Court, it is a new ground raised at this stage of

Review. He therefore urged us not to consider it.

As on the fifth ground, concerning the claim of failing

to look at blood stained clothes, the learned State Attorney

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submitted that in the decision sought to be reviewed at page

4, that issue was examined and a decision was reached that,

producing and admitting the clothes in court as evidence

could not have served any useful purpose. Hence cannot be

raised as a ground of review.

Mr. Kagirwa, further submitted that all the five

grounds raised by the applicant are not in line with the

requirements under Rule 66 (1) (a), (b) and (c) of the Rules.

In support of his submission, he cited to us the two decision

of this Court, one is that of Karim Ramadhani v.

Republic, Criminal Application No. 4 of 2007 (unreported)

where he said at page 6 a decision of Abel Mwamwezi V.

The Republic, Criminal Application No. 1 of 2013

(unreported) was cited therein and stated that “a ground

of review inviting the Court to reconsider any

evidence afresh amount to inviting the Court to

determine an appeal against its own judgment.” Two,

is the decision of Karim Kiara v. The Republic, Criminal

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Application No. 4 of 2007 (unreported), where at pge 7 of

the decision, the erstwhile East African Court of Appeal Civil

Application No. 6 of 1966 between Lakhamshi Brothers

Ltd Vs. R. Raja case, was cited and was stated that “ In a

review the Court should not sit on appeal against its

own judgment in the same proceedings.”

For the reason he has given, Mr. Kagirwa urged us to

find this application devoid of merit, hence it should be

dismissed.

In his rejoinder submission, the applicant prayed for us

to grant him a chance to add a new ground at that stage,

but after the Court extensively enlightened him on the

procedure and the requirements in an application for review,

he acceded and had nothing to add. He however, urged the

Court to look in depth to the anomalies he has shown so as

to reach to a just decision.

After the coming into force of the Court of Appeal

Rules, 2009 various decisions of this Court have emphatically

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stated that the requirements under Rule 66 of the Rules

have to be strictly complied with. For instance see Karim

Ramadhani (supra) Karim Kiara (supra), Abel

Mwamwezi (supra) Mbijima Mpigaa & Another v. The

Republic, Criminal Application No. 3 of 2011, and Samson

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

(both unreported), to name of few.

In the case of Samson Matiga (supra), this Court

stated as follows:-

“ So, 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 Expression unius
exclusion alterius est. (The
expression of one thing excludes the
other). The insistence of this aspect
is not far to seek-if each and every
ground in the judgment is subject for
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 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 publicae ut sit
finis litium).” (Emphasis added).

As pointed out earlier, the grounds enumerated in Rule

66 of the Rules are the only grounds for the Court to

entertain in an application for review. To re-assess the

evidence is not one of the grounds enumerated in Rule 66 of

the Rules. For clarity, we have found it prudent to

reproduce Rule 66 of the Rules, which provides as follows:-

“ 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 the face of
the record resulting in the
miscarriage of justice; or

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 (b) a party was wrongly deprived of
an opportunity to be heard;
(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 illegally,
or by fraud or perjury.”
[Emphasis added].

In the Indian case of Meera Bhanja vs. Nirmala

Kumari Choudury (1955) ISCC, it was held that:-

“ The review should not be

utilized as a backdoor method to

unsuccessful litigants to re-

argue their case. Seeking the re-

appraisal of the entire evidence on

record for finding the error, is

tantamount to the exercise of

appellate jurisdiction which is not

permissible.”
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 (Emphasis added).

Again in the decision of this Court in Blue Line

Enterprises Ltd Vs. The East African Development

Bank, (EADB), Civil Application No. 21 of 2012 cited in the

Case of Mirumbe Elias @ Mwita v. The Republic,

Criminal Application No. 4 of 2015 (both unreported) it was

stated that:-

“ As long as the point is already

dealt with and answered, the

parties are not entitled to

challenge the impugned

judgment in the guise that an

alternative view is possible

under the review jurisdiction.”

(Emphasis added).

In the instant application, the grounds preferred in the

affidavit in support of the notice of motion, are nothing but

grounds of appeal apart from the earlier appeal of this Court

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and that cannot be allowed and cannot be utilized as a back

door method to the appellant to re-argue his case, that is

not permissible.

In the upshot, for the reason that, none of the

grounds in this application has met the requirements under

Rule 66(1) (a) (b) or (c) of the Rules, we are constrained to

find this application devoid of merit and we therefore dismiss

it.

DATED at ARUSHA this 10th day of August, 2017.

M.S. MBAROUK
JUSTICE OF APPEAL

R.E.S. MZIRAY
JUSTICE OF APPEAL

S.S. MWANGESI
JUSTICE OF APPEAL

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

A.H. MSUMI

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DEPUTY REGISTRAR
COURT OF APPEAL

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