image3985

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 15383 OF 2024 (Originating From Misc. Application No. 269 of 2023, Temeke District Land and Housing Tribunal) ACCESS BANK TANZANIA LIMITED (currently, Selcom Microfinance Bank Tanzania Limited)..... APPELLANT VERSUS HALIMA OMARY 1®^ RESPONDENT KIMBEILE OMARY ALLY 2^° RESPONDENT I MAIGA SALEHE SAIDI 3^° RESPONDENT ASHURA HASSAN OMARY 4™ RESPONDENT JUDGMENT 3rd j-Q i2^h September, 2024 E.B. LUVANDA,J This appeal emanate from Misc. Application No. 269 of 2023 at the Tribunal where the First Respondent named above who is the Decree Holder in Application No. 51 of 2016, staged an application for execution for a decree in Application No. 51 of 2016, asking the Tribunal to make an order compelling the Appellant herein and Judgment Debtor therein to handover a residential licence of the property located at Bagidadi, Mbagala Mzinga in Temeke Municipality Dar es Salaam, in satisfaction of the said decree. When the Appellant was served with notice to appear for hearing of execution, she heeded to the summons and asked to file an affidavit to show cause why the execution should not proceed. In the affidavit, the Appellant stated that the application for execution by the First Respondent cannot proceed, on the explanation that in the application for execution seek to execute orders that were not granted in the judgment and decree of Application No. 51 of 2016. Tl^e Tribunal ignored that argument and ordered execution to proceed and assigned Tribunal's broker one Ms. Kabango General Business(T) Ltd to ensure I the controversial residential licence is handed over to the Decree Holder therein who is the First Respondent herein. Hence this appeal. The Appellant grounded that; One, the Honorable Chairperson erred in law and fact by ordering the Appellant to handover residential licence No. TMK/MBGL/KZG5/207 to the First Respondent contrary to the decree in Land Application No. 51 of 2016; Two, the Honorable Chairperson erred in law and fact by granting execution orders that vary the judgment and decree in Land Application No. 51 of 2016. Ms. Violeth Mipawa learned Counsel for the Appellant, for ground number one, submitted that it is clear stated under Order VI rule 7 of the Civil Procedure Code Cap 33 R.E. 2019, that parties must be bound by their pleadings. She submitted that In Land Application No. 51 of 2016 the First Respondent preferred an application for execution before the Tribunal, where she applied for orders which were neither sought in her main application nor granted by the Tribunal in its decree, argued it is contrary to the stipulation of Order VI rule 7, Cap 33 (supra). For ground number two, the learned Counsel submitted that it is trite law that the executing court/tribunal give effect to the terms of the decree and not beyond or contrary to the decree, citing Rachel Nankware Mgeni (As the Lawful Attorney of Sangiwa Amani Mgeni) vs Josephine Joseph Magelanga t/a Apex Car Care, Execution No. 28 of 2022 which cited V. Rmaswami vs T.n.v. Kailash Theyar, AIR 1951 s.c. 189 (192). She submitted that the Tribunal departed from judgment and decree vide its own order dated 12/06/2024, where the Tribunal granted the prayer for handing over the residential licence above mentioned on the ground that even if the order was not sought in the First Respondent's application No. 51 of 2016, she is still entitled since she is a Decree Holder. She submitted that in so doing the Tribunal tried to alter and translate its own decree to cover the First Respondent, argued its unfair and contrary to the law. She submitted further that the First Respondent is not the rightful owner of the disputed property only spouse of the Second Respondent. She submitted that the Tribunal ordered beyond its own decree which renders its order unjustifiable hence injustice to the Appellant. In reply, the First and Second Respondent submitted that the Honorable Chairperson did not err in law and fact by ordering the Appellant to handover the residential licence No. TMK/MBGL/KZGS/207 to the First Respondent, on the explanation that the decree in Land Application No. 51 of 2016 was in favour of the First Respondent and the residential licence was part of the disputed property. They submitted therefore that the Honorable Chairperson was right to order the Appellant to handover the residential licence to the First Respondent as the rightful owner of the disputed property. They submitted that the execution orders granted by the Tribunal are in full compliance with the provisions of regulation 23 of the Land Disputes Courts (The District Land and Housing Tribunal) Rules, GN No. 174 of 2003. For ground number two, the First and Second Respondent submitted that the Honorable Chairperson was within her powers to grant the execution orders to ensure full implementation of the decree. They submitted that the Chairperson gave effect to the terms of the decree and did not go beyond its terms as claimed by the Appellant. They cited Maharaj Kumar Mahmud Hasan Khan vs Moti Lai Bankers on July, 1960, AIR. To start with ground number one. In the judgment Application No. 51 of 2016 subject for execution in the above captioned matter, the Tribunai ruled at its finai verdict, I quote, 'Nafuu zipi Wadaawa wanastahiH. MIeta Maombi aliomba zuio, Mjibu Maombi azuiwe kuuza nyumba hiyo. Mjibu Maombi wa Piiiaiiomba maombihaya yatupiiiwe mbaiikwa gharama. Mjibu Maombi wa Kwanza aiikubaii maombi haya dhidi yake. Wadaiwa wa tatu na wanne hawakufika kwenye baraza. Maombi haya yanakubaiiwa ninakubaiiana na maoni ya Rutami Masunu na Fatuma Chikwindo waiiotoa maoni kwamba, maombi yakubaiiwe kwa kuwa Mieta Maombi hakushikirishwa kama mke wa Mjibu Maombi wa Kwanza ambaye anaonekana kama Mdhamini. Kiia upande utabeba gharama zake' In the decree which was extracted from this judgment (verdict), the Tribunal decreed as follows, '(i) Maombi haya yanakubaiiwa. (ii) Kiia upande utabeba gharama zake' In the impugned ruling, the Tribunai ordered that, Kwa hiyo, Mshinda tuzo anakuwa sahihi anapoieta maombi haya akidaiieseniya makazi, mume wake, Kimbeiye OmaryAiiy aiiyoitoa Hi Maiga Saiehe Said apate mkopo. Maombi haya yanakubaiiwa. Leseni ya Makazi Na. TMK/MBGL/i<ZG5/207, Mdaiwa wa piii aitoe kwa Mshinda Tuzo, Haiima Omary ndani ya siku 14' According to Order XX rule 6(1) Cap 33 (supra), provides, I bold the relevant part, 'The decree shall agree with thejudgment;It shall contain the number ofthe sulf the names and descriptions of the parties and particulars of the claim and shall specify clearly the reliefgranted or other determination ofthe suit Iri the decree of Application No. 51 of 2016, the question of handing over of LesenI ya MakazI Na. TMK/MBGL/KZG5/207, was neither among Issues for adjudication nor conclusively determined as among the rights of the parties to I the suit with regard to all or any of the matters In controversy. What the Tribunal ! decreed was a permanent Injunction restraining the Appellant to sale the suit property. Indeed the said permanent Injunction was restricted or confined to bar the Appellant not to exercise her right of sale of mortgaged property towards recovery of the loan subject for mortgage over which the suit property was created. The said decree did not confer right of ownership to the First Respondent. Indeed no such relief was sought, neither evidence tendered to substantiate that the First Respondent Is the proprietor of the suit property. To my view such reliefs could not be available for reason that In Application No.51 of 2016 subject i for execution, the Tribunal was called for to determine the question of the validity of mortgage as opposed to ownership of residentiai iicence No. TMK/MBGL/KZG5/207 To my respective view, an appiication for execution is iimited to seek the assistance of court or tribunai to execute what was granted in the judgment or decreed upon. There is no window for the Decree Hoider to insert strange reiiefs which were neither sought or pieaded, nor subject for adjudication and not granted or decreed in her favour. Therefore the Tribunai had no jurisdiction to venture into executing orders or reiiefs which were not granted in the judgment and neither decreed upon. This is because, the executing court/tribunal do not enjoy an adjudicative roie, rather its mandate is strictly to execute what was judged and decreed upon. In the persuasive case of Marharaj Kumar Mahmud Hassan Khan (supra), it was commented, '/ hold it to be a correct proposition of iaw that a Court executing a decree is bound by the terms of that decree and cannot go behind them. It is equaiiy true as a generai proposition that such Court can neither add to such a decree nor vary its terms' On simiiar footing, the Tribunai siept into serious error, by attempting to twist the decree in favour of the First Respondent. There is no gain saying that the First Respondent won the suit in Appiication No. 51 of 2016, but her victory was narrowed and scaied down to mereiy injunctive orders. Lack of spouse consent did not mean that she was deciared a winner for everything. If she wished the 7 Tribunal to make such orders for handing over residential licence or being declared owner, she could had specifically pleaded and proved to that effect and not to bring a new issue at the stage of execution. Arguably, the executing Tribunal may venture into making some construction of the decree here and there. However, such constructions is limited to interpreting a decree in view of giving clarity to its terms but cannot go beyond what was adjudged in the judgement, creating new decree, or materially altering the terms of the decree, going behind the decree. Mulla, The Code of Civil procedure. Seventeenth Edition, Volume I, at page 659 to 660, commented, I quote at length, Tf a decree is free from ambiguity, the court of execution is bound to execute it whether it be right or wrong. But it cannot, under the guise of interpretation, make a new decree for the parties. Altering the terms of the decree must be clearly understood in contrast of construing a decree or interpreting a decree or giving clarity to its terms and conditions. In the garb of the latter, the court cannot create a new decree which is neither intended nor passed by the court of competent jurisdiction. Executing court can provide clarity, interpret or construe the decree, by keeping the decree as passed by the court of the competent jurisdiction intact and undisturbed. While exercising its jurisdiction, if the executing court, in the guise of these ingredients, materially alters the terms and conditions of the decree, to the prejudice of any of the parties to the decree, which ought to have, if at all, fallen in the domain of courts of competent jurisdiction, ie appellate or the court that passed the decree, certainly the executing court would outgress its jurisdiction as an executing court. Permitting an executing court to alter the terms of the decree would be opposed to all settled canons of civil jurisprudence. A decree which has been passed and has not been assailed in the regular appeals which were available to the parties against whom the decree was passed, such party cannot be permitted to abuse the process of law before the executing court to alter the decree, which has attained finality in all aspects. But though a court executing a decree cannot go behind the decree, it is quite competent to construe the decree where the terms of the decree are ambiguous, and to ascertain its precise meaning, for, unless this is done, the decree cannot be executed. There is no question is such a case of the executing court going behind the decree. If, on examination of the nature and contents of the decree, the court finds that is a purely declaratory decree, it must refuse to execute it. If the decree creates a charge on property in which the judgment- debtor had a widow's estate, the executing court has jurisdiction to inquire if the charge continued after the widow's death and if it could be I enforced against the property in the hands of her legal representative. The I construction of a decree must be governed by the pleadings and the judgment. And the court should, If possible, put such a construction upon the decree as would make it in accordance with law. When a particular construction has been put upon a decree in a former execution proceeding, it is not open to the court in a subsequent application to treat that construction as erroneous' Herein, In that regard, I fault the findings by the Tribunal and set aside its ruling and order Therefore this appeal is allowed. Each party will bear its costs. uv DA a Mi GE ★ 12/;)9/2024 Judgment delivered in the presence of First Respondent, Second Respondent Ms. Beatrice Tonya learned Counserholdlng brief for Ms. Violeth Mipawa learned Counsel for Appellant, and in the absence of the Third and Fourth Respondent. E.B. V NDA O U:- JWGE s VJ09/2O24 12/ ■ 7^ 10