asia ally mahamba vs sudi salum mdaki 2023 tzhc 22390 13 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA CIVIL REFERENCE NO. 3 OF 2023 (Arising from PC. Civil Appeal No. 7 of 2019 in the High Court of Tanzania at Tabora) ASIA ALLY MAH AM BA............................................... APPLICANT VERSUS SUDI SALUM MDAKI................................................RESPONDENT RULING Date of Last Order: 09/10/2023 Date ofJudgment: 13/10/2023 MATUMA, J. This is a Civil Reference instigated by this Court suo moto upon a complaint letter from the applicant against the respondent to the effect that the respondent has refused to honour the Settlement Order issued by this Court on 10th October, 2019 and handle some properties to her. The background of this case goes a way back to the Primary Court of Upuge within Uyui District where the applicant herein instituted a matrimonial case praying for divorce and distribution of matrimonial properties to wit; 3 houses, a shamba of 20 acres, an electric machine (mashine ya umeme), 1 motocycle, 1 cow>and 5 goats. After a full trial i the trial magistrate issued a divorce decree and ordered a 50% division of matrimonial properties to each of the parties. Dissatisfied by the trial court's decision, the respondent herein appeal to the District Court of Tabora where he was not victorious because the first appellate court upheld the trial court's decision. The respondent still aggrieved by the District Court's decision further appeal to this court, but the appeal was not heard to its finality since the parties negotiated and entered a deed of settlement in the presence of their family members and registered the same before this court. In the deed of settlement entered by the parties, they agreed that all the matrimonial properties be divided amongst the children of the respondents who were born from two wombs i.e, the applicant's womb (Asia Ally Mahamba) and the womb of one Halima Ally Yusuph (the second wife). Three years from when the deed of settlement was entered by both parties, the applicant herein wrote a letter to the Deputy Registrar of the High Court at Tabora complaining that the respondent is refusing to give her the share of the properties as was distributed by the trial court i.e 50X50. It is upon such complaint that this court saw it right to call both parties through this civil reference so that they could be heard on whether their deed of settlement is executable or a reference be made to the Court of Appeal to have it determined and appropriate order and directives be given the essence being that the settlement order which was dully endorsed by this Court before Honourable Justice Amour as he then was At the hearing of this application both parties appeared in person and made brief submissions as follows; The applicant stated that her children refused the properties given to them and they told her to use the properties but it is the Respondent who is enjoying them. She therefore wanted to be given the said properties. On his part, the respondent submitted that they agreed that the properties be given to their children and executed the deed of settlement accordingly and thus they do not have properties. The applicant shortly rejoined that when the children want to use the properties, the respondent chases them. After hearing the parties and gone through the proceedings of this court vide PC. Civil Appeal No. 7 of 2019, it is not disputed by either party that they both signed a deed of settlement to the effect that all their matrimonial properties be distributed amongst their children. What seems to be the major complaint is that the respondent has superseded on the use of the said properties compared to the applicant. The settlement order as I have said was executed by the parties to the effect that the properties should change hands from them to their children. With such order on record, the parties herein have no property that can be the basis of complaint against the other. Therefore, the Applicant is not even the proper person to make any complaint in regards to the properties. Only their children to whom the said properties were given can lodge complaint against either party in to purport guarding the properties for the children against the other. If either party thinks that the settlement order has turned into being injurious to him or her contrary to the expectations anticipated at the time of executing the settlement should take appropriate measures to do away with the settlement order. Such settlement order being issued on appeal has an effect of doing away with the lower courts' decision regarding the distribution. The Applicant should therefore understand that the division made by the trial court and later confirmed by the District court in the first appeal does no longer exist. In the circumstance, this court refrains from referring this matter to the Court of Appeal by way of reference since none of the parties are in dispute about the legality of the deed of settlement and the settlement order. They are only fighting over properties not belonging to them without any locus so to do. 4