DAR ES SALAAM: THE Court of Appeal has dismissed the application filed by Indonesian Mychel Andriano Takahindengeng, who sought to challenge the life imprisonment sentence imposed on him for trafficking 3,932.44 grammes of cocaine hydrochloride.
Justices Shaban Lila, Lugano Mwandambo and Leira Mgonya ruled against Takahindengeng, agreeing with the Senior State Attorney that his application lacked legal merit. In their judgment, the justices emphasised that the applicant’s request for a review of both his conviction and sentence was unfounded.
“We agree with the learned Senior State Attorney that the application is without merit and it is hereby dismissed,” the justices declared in their ruling delivered in Dar es Salaam recently.
During the hearing, Takahindengeng argued that the court’s judgment, which upheld both his conviction for trafficking narcotic drugs and his life sentence, was based on manifest errors.
He claimed this resulted in a miscarriage of justice and that he was wrongfully deprived of an opportunity to be heard. The justices addressed the complaint regarding manifest errors, noting the difference between an error manifest on the face of the record—eligible for review—and an erroneous decision, which could be appealed.
They pointed out that it is wellestablished that a manifest error on the face of the record is distinct from an erroneous decision subject to appeal.
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After reviewing the judgment, the justices found that the trial court had properly addressed the issues surrounding the seized narcotic drugs, particularly the chain of custody. They concluded that there was no tampering with the drugs that would render the evidence inadmissible.
“The applicant’s request for a review on the grounds of an alleged failure to properly scrutinise the evidence serves no other purpose than to have the court revisit its previous judgment. This is not permitted under the Appellate Jurisdiction Act. The court has no power to sit in appeal of its own decisions,” the justices stated.
Referring to the case of Charles Barnabas v Republic (Criminal Application 13 of 2009), the justices highlighted that a review is not an avenue to challenge the merits of a decision, but rather to address procedural irregularities that may have resulted in injustice.
“Certainly, a failure to scrutinise evidence is not an irregularity warranting a review. As such, this ground is misconceived and must fail,” they ruled.
Regarding the applicant’s claim that he was not given an opportunity to be heard, the justices found that the applicant had failed to provide a case to support this assertion.
They clarified that the complaint was based on an alleged failure to re-evaluate evidence properly, which is an issue appropriate for an appeal, not a review.
“We need not delve further on this point, but to stress that such a complaint is suited for an appeal, not a review application. Unfortunately for the applicant, there is no appeal against this court’s decision, which is final,” the justices concluded.
The case details reveal that Takahindengeng, an Indonesian national, had been in Tanzania since August 6, 2012 and was set to depart on August 12, 2012, for other destinations. On the day of his departure, while checking in at Julius Nyerere International Airport (JNIA), his baggage was subjected to routine screening.
A security officer noticed a suspicious image on the X-ray machine and instructed another officer to conduct a physical search of the bag. When Takahindengeng refused to open the bag, the officers opened it themselves in the presence of a police officer stationed at the airport.
Inside the bag, the officers found four packets containing what they suspected to be narcotic drugs. Laboratory tests conducted by the Chief Government Chemist confirmed the substance was indeed cocaine. As a result, Takahindengeng was arrested, charged, convicted and sentenced to life imprisonment.
