The prosecution and defence locked horns on whether the judgment holding both conviction and life imprisonment sentence imposed on a prominent Congolese Musician, Nguza Vikings, alias Babu Seya and his son, Johnson Nguza, alias Papii Kocha, should be reviewed.
While prosecutors Jackson Bulashi, Angaza Mwipopo, Emmaculatha Pazi, Joseph Pande and Apimaki Mabrouk, said the application for review of the judgment given by the Court of Appeal on February 11, 2010 should be dismissed, advocate Mabere Marando for the two applicants submitted to the contrary.
In the application, the two are requesting Justices Nathalia Kimaro, Mbarouk Mbarouk and Salum Massati to go through their judgment again, holding them liable of raping Mashujaa Primary School pupils aged between six and ten years in 2003 at Sinza in Kinondoni District.
Advancing reasons to fault the decision in question, Mr Marando told the panel that there were some errors in records that materially caused miscarriage of justice to his client, including failure to draw advance inference to the prosecution for not calling essential witnesses during the trial.
He submitted that under the law, it was a requirement for the trial court to be satisfied that a child of tender age when giving evidence must understand the meaning of speaking the truth and such proceedings must be recorded in the court’s file.
The failure to follow such procedure, Mr Marando submitted, could lead the evidence of such witness to be expunged from the record. In the case in hand, he alleged, the court was satisfied that such procedure was not followed, but could not disregard the evidence because it was corroborated.
“This is an apparent error. The court has set the procedure of taking evidence from a child of tender age that after the court forms opinion that the child understands the nature of oath, such opinion must be recorded. It is clear from the records that such proceedings were not recorded,” he submitted.
Advocate Marando further pointed out that the court erred in accepting evidence that at the house where the crimes were committed, there was a door where the children could get access into it without being noticed, while there was no any prosecution witness who testified to that effect during the trial.
In responding to the submissions, the prosecution told the panel that the reasons advanced by advocate Marando to support the application in question could not meet the tests to invite the court to exercise its powers to review its judgment.
Mr Bulashi, a Principal State Attorney, submitted that for the court to sit on its judgment for the purpose of review must be satisfied that there was an apparent error on face of the record, which is manifest and if left to prevail may cause a miscarriage of justice. “In this case there is no error.
If this court will entertain the application will go contrary to the laid down principles. If the applicants were not satisfied by the decision that created different opinions the proper remedy for them was to go to the full court and not come by way of review,” he submitted.
Mr Pande, a Senior State Attorney, added his voice urging that the grounds submitted by the defence were good for the purpose of appeal. He noted that all the reasons advanced were also given during hearing of the appeal and the court had already made some findings on them.
“This is an abuse of court process aimed at creating endless of litigation. What the applicants are trying to do is to argue a fresh appeal behind doors. This is not acceptable.
This application should be dismissed in its entirety,” he submitted. After hearing the submissions from the parties, the justices said they would deliver their judgment on the matter on a date to be announced later.
Court records show that the applicants and two freed Babu Seya sons, Nguza Mbangu and Francis Nguza, were arraigned at Kisutu Resident Magistrate’s Court in the city in 2003 charged with ten counts of raping minors.
By FAUSTINE KAPAMA, Tanzania Daily News
