Jenifer Albinius Nyamete

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO LAND APPEAL NO 687 OF 2024 [Appeal from the decision of the District Land and Housing Tribunal for Morogoro District at Morogoro in Land Application No 11 of 2022] BETWEEN JENIFER ALBINUS NYAMETE APPELLANT VERSUS 1. CECILIA KUMBATA MAISANGRA RESPONDENT 2. KUMBATA MUTATIRO MAISANGARA 2"" RESPONDENT JUDGMENT MRUMA,J This Appeal originates from Land Application No 11 of 2022 of the District Land and Housing Tribunal for Morogoro District at Morogoro. It is on all family affairs. The first Respondent Cecilia Kumbata Maisangara is the mother of the second Respondent Kumbata Mutatiro Maisangara and the mother in law of the Appellant Jenifer Albinus Nyamete. The first Respondent Cecilia Kumbata Maisangara instituted Land Application No 11 of 2022 against the Appellant and the second Respondent for a declaration order that she was the rightful owner of a 1 piece of land described as Plot No 404 Block G located at Lukobe area within Morogoro Municipality In Morogoro Region. In her pleadings before the trial tribunal, the first Respondent stated that she was the rightful owner of a piece of land described as Plot No 404 Block G located In un surveyed area at Lukobe within Morogoro Municipality. The said Plot was part of a farm measuring two acres that she claimed to have purchased from Its original owner one Janet Kafumu on 6^^ November 1992. According to the first Respondent at the time she purchased that farm It was within the administrative jurisdiction of Klhonda Ward. She divided It Into several plots among them the disputed plot. In 2006 she constructed a house on the disputed plot and lived therein. In 2009 the second Respondent Kumbata Mutatiro Malsangara (her son) married the Appellant Jenifer Alblnus Nyemete and the couple lived In the disputed house as a family but later on they relocated to Nzega where the second Respondent Kumbata Mutatiro Malsngara was working. In 2012, the second Respondent was terminated from work and he decided to return to his mother's house In the disputed Plot and he lived there with his wife, the Appellant. Whilst living there the first Respondent advised him to renovate the house which he did. Sometimes in 2021 the marriage between the second Respondent and Appellant broke down and they divorced vide Matrimonial Cause No 1 of 2021 of the Resident Magistrate Court of Morogoro at Morogoro between Jenifer Albinus Nyamete Versus Kumbata Mutatiro Maisangara. In the Matrimonial proceedings the disputed plot was included as part of matrimonial properties. The trial court found that the plot formed part of the matrimonial assets and ordered for its division at the ratio of 60% to 40%. Execution proceedings ensued and the plot in question was sought to be attached and sold and hence these proceedings. After hearing the parties the trial tribunal declared the first Respondent Cecilia Kumbata Maisangara to be the rightful owner of Plot No 404 Block G, Lukobe in Morogoro. The Appellant was aggrieved and he has come to this court by way of an appeal on the following grounds:- 1. That, the trial chairperson of the District Land and Housing Tribunal erred in law and fact failing to consider the adverse possession on the disputed land. 2. That, the trial chairperson of the District Land and Housing Tribunal erred in law and facts by hearing the case without jurisdiction. 3. That, the trial chairperson of the District Land and Housing Tribunal erred in law and fact by failing to make good valuation of the evidence which was adduced by parties during the hearing of the case. 4. That, the trial chairperson erred in law and fact by failing to consider other decision which adjudicating the disputed property. 5. That, the trial chairperson of the District Land and Housing Tribunal erred in law and fact by failing to adjudicate justice after hearing of the case. On those grounds the appeilants prayed for this court to allow the appeal and set aside the decision of the District Land and Housing Tribunal for Morogoro and award costs to the Appellant. At the hearing of this appeal parties were represented. The Appellant was represented by Mr Derick Vincent, learned advocate whereas the first Respondent was represented by Mr Gabriel Kitugutu learned advocate and the second Respondent was represented by Ms Kabula Barnabas also learned advocate. The learned counsel argued the appeal orally. In his submissions in support of the appeal Mr Dereck abandoned the first ground and submit on the rest, submitting on the second ground which relates to the jurisdiction of the District Land and Housing Tribunal in in trying the dispute relating to the disputed land, Mr Derick submitted that since the disputed Plot was adjudicated to be a matrimonial property by the Resident Magistrate court and was divided among the parties therein It was wrong for the District Land and Housing Tribunal to entertain the dispute over the same property. The learned counsel contended that the District tribunal ought to have taken judicial notice of the case and dismiss the application. He cited the case of Hamis Mohamed (As Administrator of the estate of late Risasi Ngawe) vs. Mtumwa Moshi, which was cited by this Court (Malata J) In the case of Venance Benedict Minde vs. Musa Ally Lwayo and other. Submitting In support of the third ground Mr. Dereck contended that the District Land and Housing Tribunal failed to analyse the evidence adduced before It. He said that on the evidence on record the Respondent never challenged the assertion that the said property was a matrimonial property despite the fact that she was a witness In that case. The learned counsel contended further that, the first Respondent did not challenge the Inclusion of the said house In the matrimonial cause despite the fact that she was aware of that fact. The learned counsel concluded that the evidence of the Appellant showing that the suit house was a matrimonial property was heavier than that of the Respondent who claimed that he was the rightful owner of the same. Responding to the submissions of the counsel for the Appellant, Mr Kitungutu advocate for the first Respondent contended that it was correct for the trial tribunal to enter judgment in favour of the first Respondent because there was sufficient evidence to prove that the suit land belonged to her. The learned counsel contended that for a property to be considered a matrimonial property there must be evidence that it is owned by a couple. He said that although in Matrimonial Cause No 1 of 2021 house on Plot No 404 Block G, located at Lukobe area within Morogooro Municipality also known as House No 5057 was declared a matrimonial property, but as the first Respondent was not a party to the said Matrimonial cause her forum was land courts as provided for by Section 3 of the Land Disputes Courts Act as she resorted to in this case. On her part Ms. Kabula for the second Respondent opposed the appeal on the argument that the District Land and Housing Tribunal had jurisdiction to determine the matter before it and on the evidence adduced it was the Appellant who included the suit property in the Matrimonial Proceedings. Regarding third ground of the appeal Ms. Kabula Submitted that on the evidence on record the trial tribunal properly evaluated the evidence before it and came to its conclusion that the suit land belonged to the first Respondent and therefore this court should ignore the Appellant's complain on that ground. In his brief rejoinder, Mr Derick contended that as Respondents do not dispute existence of matrimonial cause and its decision and orders, then their appropriate remedy was to file objection proceedings to challenge the inclusion of the suit land in Matrimonial Proceedings and not to institute land dispute in another. I have taken liberty to thoroughly consider parties' rival submission, the records of the trial tribunal, the grounds of appeal and relevant laws and in my view there are two issues for determination by this court. The first issue is about jurisdiction of the District Land and Housing Tribunal in matters arising out of court decisions and orders in other civil proceedings and specifically from Matrimonial and sometimes Probate causes; and the second issue (which will depend on the answer of the first issue) is whether the trial tribunal properly analysed the evidence presented. Admittedly civil courts gets into confusion on how to deal with a landed property which happens to be the subject matter in a Matrimonial or Probate Causes and land in land disputes at the same time. That is so because the law vests jurisdiction to deal with the same property in different courts. While section 76 of the Law of Marriage Act vests jurisdiction in matrimonial proceedings in the High Court, a Court of Resident Magistrate, a District Court and a primary Court. Section 3(1) of the Land Disputes Courts Act vests jurisdiction of every dispute or complaint concerning land in land courts specified therein. In terms of section 114 of the Law of Marriage Act courts have power, when granting or subsequent to the grant of a decree of divorce to order the division between the parties of any assets acquired by them during the marriage. Assets acquired by the parties during their marriage may include a matrimonial home or house which is a landed property. The question now is how such a property should be dealt with when (like in this case), it is claimed by a third party? From the records available there is no dispute that the plot the subject of these proceedings that is described as Plot No 404 Block G or House No 5057 Block SQ Lukobe was adjudicated by the Resident Magistrate Court in Matrimonial Couse No 1 of 2021 to be a matrimonial property and therefore it was subjected to division between the husband and-wife. An appeal to challenge the decision of the Resident Magistrate court was unsuccessful and no further appeal was preferred. Following conclusion of the matter the present Appellant lodged an Application for Execution No 14 of 2023. In other words the disputed property was a subject of valid decree of the court. It is on that ground that it has been submitted that since the disputed property was declared a matrimonial property, the District Land and Housing Tribunal had no jurisdiction to entertain the matter. As stated above jurisdiction of a court is the creature of the statute. Matrimonial causes are governed by the Law of Marriage Act. Section 76 of that Act vests original jurisdiction in Matrimonial Proceedings in the High Court, A court of Resident Magistrate and Primary Court. As is with all other cases always there is a room for appeal to the higher court for any party aggrieved by the decision of a lower court. The law does not allow parallel proceedings of any suit or issue in which the matter is directly and substantially in issue in a former suit between the same parties. In the case at hand parties may not seem to be the same but as the Respondent are a mother and son on the one hand and the Appellant and the second Respondent were wife and husband on the other hand, they can be considered as parties under whom they were claiming or litigating under the same title. In such a situation there was huge danger of two courts in the same jurisdiction making conflicting decision and orders over the same property. For instance, in the case at hand the Resident Magistrate court ordered the property to be divided between the Appellant and the second Respondent while the District Land and Housing Tribunal declared that the disputed property belonged to the first Respondent, the question is how these two conflicting decree could be executed?. The Parliament in enacting the law foresaw such a situation and enacted Rule 57 of Order XXI of the Civil Procedure Code [Cap 33 R.E. 2019] which protect interest of persons who are not parties to the proceedings but whose interests in a property may be at risk of being alienated from them. The law gives that person the right to institute objection proceedings. The said Rule provides:- "(1) Where any claim is preferred to or any objection is made to the attachment of, anyproperty attachedin execution ofa decree on the ground thatsuch propertyis notiiabie to such attachment, the courtshaiiproceed to investigate the ciaim or objection with the iike power as regards the examination of the claimant or objector and in aii other respects as ifhe was a party to the suit" 10 Provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed. Under sub-rule (2) of the same Rule it is provided that:- "(2) Where the property to which the claim or objection applies has been advertised for saie, the court ordering the saie may postpone itpending the investigation ofthe daim or objection" Under Rule 62 of Order XXI of the Civil Procedure Code the law says:- "Where a daim or objection is preferred, the party against whom an order is made may institute a suit to establish the right which he daims to the property in dispute but subject to the result of such suit, ifany the order shaii be conclusive" The gist of the first Respondent's complaint was that the suit property was not part of the matrimonial property as found by the Resident Magistrate Court because it was her property. In my view and following the decision of this court (Malata J) in Vanesi Benedict Minde's case (supra), the correct approach for the first Respondent was to institute objection proceedings as provided for under Rules 57 and 62 of Order XXI of the Civil Procedure Code [Cap 33 R.E. 2019] and to avoid conflicting 11 decisions on the same subject, objection proceedings must be instituted in the court which passed the order or decree which is being executed. The Order of the court investigating the claim would have been conclusive on the ownership of the disputed property. Litigating the dispute by way of a land suit in land courts resulted into conflicting on the same subject matter of two courts in the same jurisdiction. Execution of the two conflicting decree would be problematic. For reasons discussed above, I allow the Appellant's appeal. The proceedings of the District Land and Housing Tribunal for Morogoro District in Land Application No 11 of 2022 are quashed and the resultant decree/orders are set aside. If the first Respondent has any claim against the property the subject of the decree of Resident Magistrate Court of Morogoro in Matrimonial Cause No 1 of 2021 she can challenge it (subject to limitation of time) in the same court by way of objection proceedings as discussed above. As parties are closely related I make no orders as to the costs. Order accordingi OF rf O (J A .MRUMA or LSI A a \5 JUDGE 12 26.11.2024 13