ALOYCE FAUSTINE scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 31930 OF 2024 (Originating From Application No. 17 of 2024, Hala District Land and Housing Tribunal) ALOYCE FAUSTINE MVULA............................ APPELLANT VERSUS BUPENDO SAMWEL MWASOMOLA.................................................... RESPONDENT JUDGMENT 06th to 20th March, 2025 E.B. LU VAN DA, J The Appellant is appealing against the decision of the Tribunal which dismissed his claim for want of jurisdiction. According to averments in the pleadings suggest that parties herein were husband and wife who cohabited for twenty years, before they parted ways on 21/07/2022 following issuance of a decree of divorce by the District Court at One Stop Judicial Center of Temeke, vide Matrimonial Cause No. 49 of 2021. The matrimonial court also ordered division of matrimonial properties in line with the deed of settlement dated 21/07/2022, captured at page four of the matrimonial court's judgement. It appears in the course of execution of decree for division of matrimonial assets arose a dispute as to what the matrimonial court had decreed on 21/07/2022. Thereby on 7/06/2023, the executing court in Execution Cause No. 22 of 2022, issued an addendum styled correction order i to the judgment and decree in the above mentioned matrimonial cause. In the said correction note, the executing court crashed down the contention by the Appellant that there are three plots existing at the suit property which the matrimonial court had blessed and endorsed to be allotted to the Respondent as per the terms of the deed of settlement. Sequel to that, in the written statement of defence presented by the Respondent at the Tribunal, she pleaded a letter Ref. Na. DSM/CB.181/296/03/107 dated 6/11/2023 annexure BM-4, crafted by the Principal Secretary Ministry for Lands and Housing Development, cementing the verdict by the executing court that the suit property named ILA/TBT/TKS 26/104 comprising of 913 square meters, cannot be subdivided into three plots as suggested by the Appellant, describing it as tiny piece of land which is accessed by foot. It is the reason that the Tribunal proprio motuxtisoAz concern as to whether had jurisdiction over the matter filed before it. This led to its eventuality, dismissal as aforesaid. In the memorandum of appeal, the Appellant raised two grounds of appeal: One, the trial Tribunal erred in deciding that it had no jurisdiction to try the matter following a wrong interpretation of the facts leading to the case; Two, the learned trial Chairman erred both in law and fact in concluding that, the two 2 plots bought 1995 and 1996 were part and parcel of the matrimonial house given to the Respondent in their Matrimonial Case 49 of 2021 ignoring the fact that, Respondent was given a built up house and not a bare plot. The Appellant who was under gratis of the Legal Committee, University of Dar es Salaam, prefaced that the subject matter of this case concern the plots of land adjoining and neighboring the house at Tabata now belongs to the Respondent. He submitted that the bone of contention boils on the question of ownership, in which case each of the parties asserts to be owner of the two plots. He submitted that the Respondent took an advantage of being close to the properties, by causing them to be surveyed and issued with a title which treat the house and the adjoining piece of land as one property, arguing that all was done without involving the Appellant. He narrated to have made ( ’ t complaints to various institutions with eventually of filing the suit at the Tribunal. For ground number one, the Appellant submitted that the Tribunal correctly established that the case originated from a matrimonial cause in which the parties made a settlement to divide their matrimonial assets and the said settlement was taken by the court as its decision, arguing that this decision was later executed through Execution No. 22 of 2022 and since then parties have 3 been living in harmony. He submitted that the Tribunal went further to note that the issue of the two plots adjoining the house at Tabata Kisiwani was raised by the Appellant during Execution No. 22 of 2022 and that the court ruled in favour of the Respondent intimating that the decision in matrimonial course (sic, cause) had divided the same to her. He submitted that the finding by the Tribunal that it is unclothed with jurisdiction to determine the issue already determined, arguing it being erroneous as a result of misinterpretation of the facts to the case. He submitted that it was the Respondent who commenced the matrimonial cause and in her claim for division of matrimonial assets, she never talked of the two plots of land. He submitted that later when parties agreed to settle the matter, it was only the motor vehicles and buildings which formed the list of matrimonial properties distributed between the parties and this was also content of the judgment of the court. He submitted that when the Respondent sought to execute the decision of the court, it was the Appellant who was warned that the execution should be limited to the building and should not include the two plots of land. He submitted that the interpretation of how • * it. .k ' 4* '* \ J . » . ' the court responded to this warning is key in settling this dispute. He submitted that the Tribunal held that the executing court found the two plots to be part and parcel of the house at Tabata Kisiwani, arguing that a necessary question at this juncture is whether this interpretation was correct, citing Justin Moses 4 . • . . .■ Sanga t/a Ellyalice Enterprises vs KCB Tanzania Ltd & Another, Mise. Land Application No. 72 of 2021. He submitted that the role of the court is to assist the decree holder by deciding on the manner through which his decreed rights may be acquired, arguing that the executing court is not a trial court, it can neither re-hear parties nor make new orders contradicting the decreed orders. He queried as to whether the executing court can make corrections to the order and what should be the extent of such correction. He submitted that this question is relevant for an argument that the Tribunal decision based on the corrected order. He cited section 96 of the Civil Procedure Code, Cap 33 R.E. 2019; The Black's Law Dictionary, regarding the definition of the phrase clerical error and dwelled himself deliberating on it. He submitted in the nutshell that the Tribunal had jurisdiction to hear the parties and the subject matter of the case is yet to be determined by any court. He submitted that jumping from the case, the Tribunal was blessing the Respondent who has intentionally and ■■ • ■ illegally trespassed into the Appellants land. For ground number two, the Appellant submitted that the judgment of the trial court in matrimonial cause contained a list of matrimonial properties and the two plots were never featured in the list. He submitted that exclusion of the said properties means that they were not matrimonial assets for they were then parties would have included as they did for other properties. He submitted in 5 .UX replica to ground one, that even the application for execution never mentioned the properties. He submitted that it was the Respondent who identified all the properties during the case and the house at Tabata Kisiwani was a matrimonial home to the couple before their separation. He submitted that during settlement the parties agreed on the division and it was in her best interest that the Respondent be given the house at Tabata Kisiwani. He submitted that the division did not extent to plots of land for an argument that the same was known to be the personal properties of the Appellant acquired by his sweat and toil way before their holy marriage. He submitted that one wonders then, how did the Tribunal reach the conclusion in the absence of any material evidence to that effect. He submitted that the judgment of the court and original decree were silent on the matter except for the corrected order. He submitted that at the end one would realize that it was because of the wrong interpretation of the corrected order and failure to understand the limits of the powers of the court when making corrections. In reply, Mr. Emmanuel H. Hyera learned Counsel for the Respondent submitted that parties herein were husband and wife since 1995 at all time they were living at Plot No. P34471 Block ... Tabata Kisiwani Hala Dar es Salaam. He submitted that during the divorce issues, the parties tabled at the matrimonial court that they have only two immovable properties that they have which means 6 the plot and house on it, at Tabata Segerea Hala Dar es Salaam and Plot No. P34471 Block ...Tabata Kisiwani. He submitted that, in short, the plot at Tabata Segerea was relocated (sic) to Appellant and the remaining Plot No. P34471, Block ... Tabata Kisiwani to the Respondent. He submitted that the distribution of matrimonial assets was reached by amicable settlement whereby the parties themselves agreed as described in above paragraph. He submitted that the story of separate plots from the main title was neither tabled before the trial t ■- . a \ . magistrate nor in division of matrimonial properties, but the issue of three plots J '• 'I I I . was raised during the execution, arguing that, good enough the Magistrate Hon. Msafiri during the execution delivered the order on that point, to cement that what was given to Respondent was a parcel of land as a single plot with house on it. He submitted that during the execution of that matrimonial cause, the Appellant forced the court to separate un-separated plot at Tabata Kisiwani which belongs to the Respondent into three pieces of land without even disclosing measurements or demarcation claimed for, while the claimed land is surveyed with title deed. He submitted that during the trial of matrimonial cause he never disclose that information. He submitted that the execution court denied to grant the prayer and executed as per decree. He submitted that, the same Appellant knocked the door of the Tribunal with the same issue with same 1 ■ ■ : jot • ’’ ■ T parties while knowing that the issue was answered in affirmative by the Temeke •?"' ’ * •* ■»[.;/ * '' 7 ... - ■ • District Court at One Stop Judicial Center having concurrent jurisdiction with the Hala District Land and Housing Tribunal (DLHT). Regarding the question of the jurisdiction of DLHT, he was of the view that, the learned Chairman after reading the judgment of the Matrimonial Cause No. 49/2021 and order of the Execution No. 22 of 2022, faced the same issue claimed by the Appellant, was already solved and concluded by the competent court with concurrent jurisdiction, arguing, that's why he came in conclusion that the Tribunal lacked jurisdiction to entertain the matter. He submitted that, if the Appellant is aggrieved by the executing court (Temeke District Court) he can seek his rights by challenging the order of the execution court to the legal streams by way of revision or reference, arguing he contravened the law to institute the new application to the new court to challenge the order from Execution. No 22of 2022 which emanated from Matrimonial Cause No. 49 of 2021. For the second ground of appeal, regarding the argument of the Appellant that the plots tabled for division as the matrimonial properties was only two plots with house erected on it, that is to say, the plot at Tabata Segerea and plot at Tabata Kisiwani, that was only two plots disclosed and tabled for division as matrimonial properties acquired during the lifetime. 8 The learned Counsel was of the view that, the Appellant forced the surveyed plot to be separated at the district level. He submitted that, what we know, the decree in matrimonial court, ordered the Respondent herein to possess the plot No. P34471 Block ....Tabata Kisiwani and Appellant to remain with plot located at Tabata Segerea, not otherwise. He submitted that, there is no way the Tribunal can have the jurisdiction to entertain that issue which was already determine in full from the original case that is to say in Execution No. 22 of 2022. ' • ’ I « * ’ • ■_ ‘ ' 'V There was no rejoinder filed. Essentially, the Appellant on ground number one, made a concession that the Tribunal correctly established that the case originated from a matrimonial cause in which the parties made a deed of settlement to divide their matrimonial assets which deed was adopted by the court as its decision and later was executed vide Execution No. 22 of 2022. Again, on ground number two, the Appellant argued that at the end one would realize that it was because of the wrong interpretation of the corrected order and failure to understand the limits of the powers of the court when making corrections. In view of the above two segments featuring in the arguments of the Appellant, I asked myself, a question regarding merit of this appeal and as to why the Appellant preferred this appeal on the first place. 9 In the corrected order, pleaded by the Appellant into his pleading (application filed at the Tribunal) as annexure AP-3, the executing court, at page two, ruled in respect of the two or three suit plots, I reproduce and bold portion of interest, 'I have carefully scrutinized their application, the order of the court issued on 21/7/2022and noted that the court has already distributed the said properties in the sense that the decree holder will remain with the house located at Tabata Kisiwani whereas the judgment debtor will have a house located at Tabata Segerea. The issue that there are three plots at Tabata Kisiwani is not canvassed in their agreement. It is equally to say that it is an afterthought that the court in executing the order issued by Hon. Mpessa cannot entertain the decree holder's assertations. In such short, suffice to say that each party to remain with his/her property as ordered by Hon. Mpessa. There is no room at this moment to entertain the judgment - . • - J**' ' ? ... ' /\ V- ' ' - ' ii, • ■ ■/./ , •' debtor's version that there are three plots that was not whole given. No proof that it real exists and if so, was to be raised during the hearing of the case before the same was finally determined' To my perspective view, if the Appellant had issues with the above corrected order, if he thinks it was wrongly interpretated or the court exceeded its mandate or entertained outside the scope permissible for correction of clerical error or incorporated on the order/decree suits properties which were not 10 subject for discussion or impleadment in Matrimonial Cause No. 22 of 2022, a proper recourse was to seek redress in terms of section 80(1) to the Law of Marriage Act, Cap 29 R.E. 2002, which provides, 'Any person aggrieved by any decision or order of a court of a resident magistrate, a district court or a primary court in a matrimonial proceeding may appeal therefrom to the High Court' Therefore, it was wrong for the Appellant to stage his complaint by way of filing fresh suit to the Tribunal, which has no mandate to alter or reverse the findings by the District Court notwithstanding correctness of the impugned order. In that regard, the learned Chairperson was quite correct to rule that the Tribunal had no jurisdiction to entertain the matter filed before it. For the sake of argument, the Appellant faulted the Tribunal's decision to have based on the corrected order. The Appellant went on faulting the executing court, for going beyond the scope or permissible range for correcting clerical errors, citing section 96 Cap 33 (supra) and The Black's Law Dictionary. May be, I should make it clear that the so called corrected order was not made in the Matrimonial Cause No. 49 of 2021, rather it was made vide Execution Cause No. 22 of 2022 in view of giving effects to the decree in Matrimonial Cause No. 49 of 2021. As such what the learned Principal Resident Magistrate was ii embarking for, was not intended to make clerical errors or mistakes on the decree subject for execution as alleged by the Appellant, rather was construing a decree or interpreting it for purpose of giving clarity to its terms and conditions for smooth execution proceedings. To my view, rules allow the executing court to venture into making some construction of the decree here and there. However, such construction 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, •«* 1 . f11 • 4( /<■/<’ G i'. •. M ; 'If 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 tatter, 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 12 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, ifat 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 ' ' Jr 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 enforced against the property in the hands ofher legal representative. The construction ofa decree must be governed by the pleadings and the judgment. And the court should, if 13 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' Be as it may, if the Appellant was not contented with the corrected order, ought to take the matter to an appropriate forum as depicted above. The appeal is devoid of merits whatsoever. It is wholly dismissed. No order for costs, because litigants are divorced couple. 14