20130221 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (PC) CIVIL APPEAL NO. 51 OF 2010 _ [(Appeal from the decision of the Kibaila District Court , in Misc. Civil Application No. 1 of 2010 (Mwiseja, RM)] - CHRISTIAN ABDUL KOBA ................................ ~ ......................... APPLICANT VERSUS SECILIA GAMA ............................................................... RESPONDENT JUDGMENT F. Twaib, J. This appeal was filed on 4th May 2011. { On 29th January 2009, the Kibaha District Court 1(Mwaisaje, RM) delivered a I . judgment in Matrimonial Cause No. 2 of 2008 in which he dissolved the marriage between the parties herein and further ordered, inter alia, that "All the matrimonial assets be equally divided between the Petitioner [herein Appellant] and the Respondent [herein the Respondent]." However, the District Court did not determine what these matrimonial assets are. Hence, when the Respondent sought to execute the order by attachment of certain properties, the Appellant filed objection proceedings under Order 21 rule· 24 of the Civil Procedure Code, Cap 33, praying for stay of execution "pending determination of objection proceedings" filed in the District Court. However, th~~e. is nothing in the lower Court's record that shows that any such proceedings were ever filed. Besides, the application was filed unc~er a legal provision that is ! Page 1 of 4 'I I applicable where execution is being carried out by a transferee Court and not the Court that passed the decree as was the case herein. In such circumstances, the application was clearly. misconceived and should not have been entertained by the District Court: There ~was nothing before the Court pending the determination of which an order could ~be I made under Order 21 rule 24 and the Court being called upon to act was not a transferee Court. In the objection proceedings, the Appellantraised a number of issues on the ownership of the properties attached, claiming, generally, that they are not matrimonial properties as they were not jointly acquired and/or that the Respondent is not entitled to equal share thereof. In essence, the Appellant had re-raised a number of issues relating to certain specific assets which the District Court in Matrimonial Cause No. 2 of 2008 should have been determined, but did not. The District Court had ordered that all matrimonial assets be equally divided between the parties, but did not say what these~ assets are. That judgment, therefore, has left an important issue undetermined! As there has been no appeal therefrom, it remains unchallenged to date. The District Court could not have altered that decision in the objection proceedings. Neither can this Court, in these proceedings, as the Appellant appears to argue. Doing so would be to sit on appeal on the trial Court's decision over a matter that it did not decide. That would be tantamount to re-opening the trial on the issue of distribution of assets-a procedure that cannot be applied in these proceedings; And since the judgment in Matrimonial Cause No. 2 of 2008 remains intact, the issue of what those matrimonial assets really are or were at the time the divorce was granted remains undetermined. Page 2 of 4 ,(' It is thus no wonder that the Appellant sought the matter to be determined by filing the objection proceedings. - However, as already intimated, these proceedings were wrongly instituted from the very beginning. Whatever orders that were made by the District Court herein were ri,ade without jurisdiction. The ' entire proceedings are a nullity.They ought to ben:ullified with an order striking out the application. I would thus substitute the orders of the District Court with an order striking out Miscellaneous Civil Application No. 1 of 2010. However, the trial Court in Matrimonial Cause No. 2 of 2008 failed had to discharge left the issue as to what were the matrimonial assets undetermined, . This was a duty the. InAgro Industries Ltd. v Attorney General [1994]TLR 43, the Court of Appeal stated: "When a trial Court allows parties to address it on any issues, the Court must conclusively determine those issues, notwithstanding that the issues were not in the pleadings." I In view of the foregoing, I have toyed with the id~a of calling up the record in /, Matrimonial Cause No. 2 of 2008 for purposes of /evising the same and order :, that the trial Court should decide the issue as to what really were the matrimonial I properties which should be equally divided between the parties. It is to be understood that this does not mean that the District Court should reconsider the shares for each party. That has already been decided. All that the Court should is to determine the following issue: "What are/were the matrimonial properties the parties jointly acquired during the pendency of their marriage?" This question is to be determined from the evidence already adduced by the parties during trial. ! . j Page 3 of 4 I' As this issue leading to this order was raised suo motu by the Court, I would make no order as to costs. 21 st February 2013 Page 4 of4