laura lucas chogo vs international commercial bank of t ltd 2024 tzhccomd 20 5 march 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL CAUSE NO.131 OF 2023 (Arising From Misc. Commercial Application No.88 of 2020) LAURA LUCAS CHOGO............................................................... APPLICANT VERSUS INTERNATIONAL COMMERCIAL BANK OF TANZANIA LIMITED............................................. RESPONDENT RULING Date of Last order: 08/12/ 2023 Date of Ruling: 05/03/ 2024 GONZI, 3, On 19th May 2012, a company known as Euro Design Limited applied for a loan from the Respondent bank. Euro Design Limited was under directorship of Mr. Richard Mtaita, Ms. Tracy Mtaita and Mr. Luganga Mapunda. The respondent Bank advanced the requested loan to Euro Design Limited by way of an overdraft facility (Secured Overdraft) vide Ref. ICBTZ/HO/2012/108 worth TZS 200,000,000/=. The Overdraft facility was secured by 1st party mortgage over a property (a house) which was described as CT. No. 80752, Plot 33 Block "C", Land Office No.349657, Mtongani Area, Kinondoni Municipality, Dar es Salaam City owned by Mr. Richard Reuben Mtaita (the late husband of the Applicant). The second security for the overdraft facility was a joint and several i guarantee of all directors of Euro Design Limited, namely: Mr. Richard Mtaita, Ms. Tracy Mtaita and Mr. Luganga Mapunda. The borrower company defaulted to repay the loan, hence the Respondent Bank instituted Commercial Case No. 143 of 2014 in this Court in order to recover the loan amount. The Respondent Bank was the Plaintiff while the Defendants were Euro Design Limited, Mr. Richard Mtaita, Ms Tracy Mtaita and Mr. Luganga Mapunda. On 13th March 2015, the parties to the Commercial Case No. 143 of 2014 executed a deed of settlement which was duly filed in Court and a Judgment by consent was passed. A decree was entered in favour of the Respondent herein against Euro Design Limited, Mr. Richard Mtaita, Ms Tracy Mtaita and Mr. Luganga Mapunda. Subsequently the Judgment debtors failed to satisfy the decree arising out of the consented Judgment in Commercial Case No. 143/2014 and thus the Respondent herein, as the Decree holder, commenced execution process thereof. Upon being served with the relevant notices and execution order, Laura Lucas Chogo, the Applicant herein, rushed to Court and filed Misc. Commercial Application No.88 of 2020 against the International Commercial Bank (T) Limited and Euro Design Limited only. That application was brought under Section 95 and Order XXI Rule 57 and 58 of the Civil Procedure Code, Cap 33 RE 2019; section 59(1) of the Law of Marriage Act, Section 114(l)(a) and (b) and section 2 of the Land 2 (Amendment) Act, 2004. The applicant in Misc. Commercial Application No.88/2020 sought for orders that: i.This court be pleased to order a postponement of a sale of the Applicant's matrimonial property by issuance of a temporary injunction restraining the Respondent itself, its agents or servants, or others from selling or alienating the Applicant's matrimonial property on plot No.33 Block "C", Kunduchi Mtongani, Kinondoni Municipality, registered under the CT. No.80752, pending investigation of the claim and objection by the applicant herein. 2. The honourable Court be pleased to investigate the legality of the decree in respect of High Court Commercial Case No. 143 of 2014 issued on May 13th 2015 as a compromise of suit executed on the 11th March 2015 and execution order dated 19th May 2020. 3. Any other order the honourable Court may deem fit and just to grant and the costs of this application be provided for. After hearing the parties on the Misc. Commercial Application No.88/2020, this Court (as per Hon. Nangela, J.) in its Ruling dated the 8th December 2021 granted the application. Ultimately, the Court issued the following Orders: 3 1. That an injunction is hereby issuedpermanently restraining the Respondents, its agents or servants, or any other person from selling or alienating the Applicant's matrimonialproperty on Plot No.33 Block "C", Kunduchi Mtongani, Kinondoni Municipality, registered under the CT. No.80752. 2. That the compromise of suit and the decree issued in respect of High Court Commercial case No. 143 of 2014, was obtained by fraud. Since the decree was obtained by fraud, the same is illegal, null and void. 3. It is hereby ordered that Mr. Innocent Mushi, Advocate Roll No.2103, be summoned and made to appear before the Court andshow cause why he should not be referred to the Advocates' Committee for disciplinary action in respect of the conducts which were hitherto exhibited in this ruling. 4. The Respondents are to pay costs of this application. Looking at the nature of the parties and the enabling provisions used, the Miscellaneous Commercial Application No. 88/2020 was in fact in the nature of objection proceedings. Subsequent to winning the Miscellaneous Commercial Application No. 88/2020, the Applicant herein sought to enforce the orders therein by demanding the return of the original 4 Certificate of Title for Plot No.33 Block "C", Kunduchi Mtongani, Kinondoni Municipality, registered under the CT. No.80752 which was deposited as mortgage security when securing the loan from the Respondent Bank. To this effect, on 24th April 2023, the applicant instituted in court execution proceedings which were also registered in the same Court case file and numbered as Misc. Commercial Application No.88 of 2020 but against the Respondent herein only. The execution proceedings, as per the procedures and practices of the Commercial Division of the High Court, are presided over by the Hon. Judge Incharge or another Judge as may be instructed by the Hon. Judge Incharge. Therefore, the Execution Application entitled as Misc. Commercial Application No.88 of 2020 was presided over by Hon. Mkeha, Judge Incharge. At this juncture it is pertinent to say that there were two separate sets of proceedings which happened at sifferent times and which were presided over by different Judges but bearing the same case reference number. These are Misc. Commercial Application No.88 of 2020 which was in the nature of Objection proceedings and was presided over by Hon. Nangela, J., on one hand and Misc. Commercial Application No.88 of 2020, on the other hand, presided by Hon. Mkeha, J i/c which was an application for execution of the Orders granted in the objection proceedings. For the sake of clarity, though at the risk of sounding too repetitive, I may have to repeatedly distinguish the two applications by making reference to the respective Judge who determined the particular application. After hearing the parties, in Misc. Commercial Application No. 88 of 2020, which was an application for execution presided over by Hon. Mkeha, J i/c, at page 7 of his Ruling he had the following to say while declining to grant the application: 5 "In the present application, the applicant seeks to execute an order which is completely lacking in the operative portion of the decision sought to be enforced as appearing herein above. That is not a deficiency capable of being rectified by the executing court, in the circumstances whereby the trial court appears to have granted to the applicant, all the reliefs sought in the chamber summons. The applicant is advised to revert to trial court to obtain a specific order compelling the respondent to surrender the disputed certificate of Title to her or any other person legally entitled to receive the same after the demise of the mortgagor. The executing court will no doubt be able to execute such a specific order of the trial court if obtained." In an attempt to implement the directive given by Hon.Mkeha, J i/c, in his Ruling dated 26th July 2023, the Applicant has returned to this Court as the trial Court and has filed the present application which was lodged in court on the 25th August 2023. This is the present application before me as the Successor Judge, since Hon. Nangela, J., is no longer serving in this station following his promotion and transfer to another station. Under the representation of Mr.Kayinga, Heri L Esq, Advocate for the Applicant, the Applicant in the Chamber Summons has prayed for orders that: 1 . the Respondent do forthwith execute and handover to the Applicant an instrument of 6 discharge of the Legal Charge registered under filed document No.143591 on 21st December 2012 along with the original Certificate of Title No.80752 and in default of executing such instrument, the Registrar of the High Court do execute the same on behalf of the Respondent. 2 .Exemplary and general damages. 3 .Costs of this Application and any other relief(s) this Honourable Court may deem fit and just to grant. In the affidavit of the Applicant, after giving a background of her application, she concluded at paragraph 9 that: "Subsequently on 26th day of July 2023, the Executing Court upheld the Respondent's Objection and advised the applicant herein to revert to the trial court to obtain a specific order compelling the Respondent to surrender the disputed certificate of title to her or any other person after the demise of the mortgagor, hence this application." When the Respondent was served with the application, he responded by filing a counter affidavit resisting the application. In addition, the Respondent raised preliminary points of objection to the effect that: - 1. That the application is res judicata. 7 2. That this honourable court is improperly moved by wrong citation of the law. 3. That the applicant has no locus standi to claim orders sought. The Respondent therefore prayed that the application be dismissed in its entirety with costs. This Ruling is in respect of the preliminary objections as raised by the Respondent. Pursuant to the orders of the Predecessor Trial Judge (Hon. Nangela, J.) dated 1st November 2023, the preliminary objections were argued by the way of written submissions. The Applicant enjoyed the legal services of Mr. Kayinga Heri, learned advocate, while on the other side the respondent was represented by Mr. Richard Madibi, learned advocate. Submitting in support of the first preliminary objection that the application at hand is res judicata, Mr. Madibi submitted that a matter that has finally and judicially been decided on its merits cannot be litigated again between the same parties. To substantiate his argument, he referred this court to the case of Jansa Mwakipesile (Administrator of the Estate of the Late Jafari M Mwakabole) vs. Benedictor Mwambwila, Land Appeal No.52 of 2021, (High Court of Tanzania, Mbeya Sub Registry). He submitted that in that case Hon. Ebrahim J., held that from the provision of section 9 of the Civil Procedure Code, the conditions for res 8 judicata must co-exist for it to bar a subsequent suit and that the conditions are: the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; the former suit must have been between the same parties or privies claiming under them or the parties must have litigated under the same title in the former suit; the court which decided the former suit must have been competent to try the subsequent suit; the matter in issue must have been heard and finally decided in the former suit. Based on that authority, Mr. Madibi submitted that the present application is res judicata as the same has been determined in Miscellaneous Commercial Application No. 88 of 2020 as it can be proved by the Ruling of the said application annexed as LLC-1 to the counter affidavit. He insisted that the present application is similar to Miscellaneous Commercial Application No. 88 of 2020 (before Hon. Nangela, J.,) in which this honourable court nullified the mortgage transaction after the objection proceedings were determined in favour of the applicant. The learned advocate for the Respondent argued further that in the present application, the applicant is moving the court for similar prayers like in the previous proceedings namely Misc. Comm. Application No. 88 of 2020 which was also filed by the applicant herein against the same Respondent herein. It was the submission by the respondent's counsel that the court is now being moved 9 by same provisions which are for objection proceedings and hence this application is essentially the repetition of what was prayed in Miscellaneous Commercial Application No. 88 of 2020 before Hon. Nangela, J. Furthermore, the respondents counsel submitted that the prayers in the present application are resjudicata as the same were determined in the application for execution which was before Hon. Mkeha J i/c., and its ruling was delivered on 26th July 2023. He argued that in the said application for execution, the applicant was applying for an order of the court to compel the respondent to handover the Certificate of Title No. 80752 to the applicant but the court told the applicant that the Ruling in Misc. Application No.88 of 2020 in the objection proceedings, had no specific enforciable order compelling the respondent to hand over the said certificate of title to the applicant. He argued that, surprisingly, the applicant has decided to file another objection proceedings now presumably against execution of the orders granted in her favour. He argued that the application in the nature of objection proceedings has already been heard and determined to its finality. Mr. Madibi submitted that that if this Court now entertains on merits, and grants, the application at hand in the way it is, it means that ultimately io the resulting Ruling and drawn order will have to be enforced as such. Enforcing the orders sought in the present application will entail the applicant filing in court another application for execution aimed at compelling the respondent to handover to the Applicant, the original Certificate of Title No.80752. He argued further that the order would contradict the Ruling made by this very court in the former application for execution which was before Hon. Mkeha J., and which stated that the ruling in Misc. Application No. 88 of 2020 issued by Hon. Nangela J., has no specific order of compelling the respondent to hand over the certificate of title to the applicant. He concluded that the court is now functus officio to deal with a matter already decided. The second preliminary point of objection raised was that this Honourable Court is improperly moved by the applicant citing wrong provisions of the law. On this objection, the respondent's counsel submitted that the court lacks jurisdiction where it is not properly moved. He referred this court to the case of John Marco vs. Seif Joshua Malimbe (Misc Land Application No. 66 Of 2019) 2020 TZHC 865 (26th May 2020) to buttress his point. ii The learned counsel for the Respondent submitted that the applicant has cited enabling provisions which apply to objection proceedings. These are Order XXI rule 57(1), (2) and 58 of the Civil Procedure Code, Cap 33 R.E 2019. He submitted that the applicant has already successfully filed an application in the nature of objection proceedings via Misc. Commercial Application No. 88 of 2020 and which was determined by Hon. Nangela, J. He argued that there is no other pending application for execution of the decree in Commercial Case No. 143/2014 filed by the respondent which could attract and justify the applicant's present application for orders in the nature of objection proceedings. The Respondent's counsel submitted that the applicant has cited the provisions of the Law of Marriage Act and Land Act being matters over which this Division of the High Court has no jurisdiction. The Respondent's Counsel concluded that the provisions cited by the applicant and the prayers sought are not compatible in relation to this application. On the third objection the respondent's counsel argued that the applicant has no locus standi. The respondent submitted that as it is the rule of equity, in order for a person to stand and sue in a court of law, one has to establish that he has an interest over the subject matter or has been legally given permit to represent the one who has interest over the subject 12 matter. To substantiate this argument, the Respondent's counsel referred this court to the case of Peter Mpalanzi vs. Christina Mbaruku (Civil Appeal No. 153 of 2019) 2021 TZCA 510 dated 23rd September 2021 where Hon. Mwampashi, J.A at page 6 of the Judgment said that: "Further, locus standi is a point of law rooted into jurisdiction. It is for that reason that it must be considered by a court at the earliest opportunity or once it is raised. In the instant case, the High Court Judge, was, with respect, wrong when he brushed aside the issue of locus standi once raised before him. The issue ought to have been considered by the high court regardless of having been improperly raised or raised at a late stage." The respondent's counsel argued that the applicant in this case has come to court in her own name and in an individual capacity; but she has claimed some reliefs under her legal capacity purporting to be the wife of the deceased person namely Richard Robert Mtaita. The Respondent's counsel submitted that the Applicant has not even attached a marriage certificate nor death certificate of the deceased in relation to their marriage. Mr. Madibi argued that Misc. Commercial Application No.88 of 2020 (objection proceedings before Hon. Nangela, J., was not a matrimonial cause for determining the applicant's interest in the said suit 13 property. Rather, the court determined the legal charge of the said property, and it did not order the respondent to hand over the disputed certificate of title to the applicant. He argued that the applicant was supposed to follow the legal procedure for her to claim her interest if she was a wife of the demised Richard Reuben Mtaita. The Applicant's Counsel, Mr. Kayinga, Heri filed brief reply submissions in response to the Respondent's arguments. On the point of res judicata, the applicant's counsel submitted that that the matter at hand is not res judicata and the court is not functus officio. He argued and reasoned that the issue of whether or not the Respondent should hand over the original Certificate of Title in dispute free from any encumbrance, was not determined by this Court in the Objection Proceedings Misc. Commercial Application No.88/2020 before Hon. Nangela, J. The Applicant's counsel relied on the Black's Law Dictionary, Nineth Edition, where the term functus officio is defined at page 743 as follows: "[Latin having performed his or her office"] (19c) of an officer or official body without further authority or legal competence because the duties and functions have accomplished.......From the definition given above for the doctrine of functus officio to apply, the court must have full filled its function its function by determine the question in 14 dispute, and therefore ,subject to the power of review and correction of errors, of no further force or authority on the question determine. " Mr. Kangiwa Heri, learned advocate for the applicant, therefore, argued that the court is not functus officio as the court has not fulfilled its function of determining the question in dispute. He distinguished the authorities cited by the Respondent's Counsel as inapplicable. With regard to the preliminary objection that the honourable court is moved under wrong enabling provisions of the law, and that it lacks jurisdiction, the Applicant's Counsel denied to have done so. He reasoned that even the learned counsel for the respondent has not shown which are the proper provisions of the laws to move this court to issue orders sought in the applicant's chamber summons. He emphasized that the enabling provisions cited are proper and therefore the preliminary objection is misconceived and devoid of merit. On lack of locus standi to claim the orders sought in the chamber summons, the applicant's counsel submitted that the evidence on records clearly shows that in Misc. Commercial Application No. 88 of 2020 before Hon. Nangela J., was decided in favour of the applicant herein. Further he argued that it is an undisputed fact that this court determined, among 15 other things, the validity of a legal charge which was used to secure the loan which was registered under the filed document No. 143591 on 21st December 2012 based on the applicant's matrimonial property in respect of Certificate of Title No. 80752 and that the court nullified the said mortgage deed. It was therefore the submission of Mr. Kayinga, learned advocate, that the respondent's continued holding certificate of title of the Applicant's matrimonial landed property in dispute is not proper. Mr. Kayinga argued further that already there is in existence a court's order vide Misc. Commercial Application No. 88/2020 recognizing the applicant's interest in the matrimonial property in dispute and therefore the question of locus standi being raised now is an afterthought, misconception and devoid of merits. The Applicant's counsel concluded by praying that the preliminary objections to be dismissed with costs. In the rejoinder submission the respondent's counsel reiterated his earlier submission by insisting that this application is res judicata in that the matter has been finally decided on merits hence it cannot be litigated again between the same parties. He stressed that the court in the present application is functus officio as the same has already been determined by Hon. Mkeha J., in the execution proceedings in Misc. Commercial Cause No.88/2020 and that the Honourable Judge Incharge while presiding over 16 the execution proceedings gave directions on what the applicant was supposed to do. After going through the application and taking into consideration the rival arguments by the learned counsel for both sides, the court is now in a position to determine the preliminary objections raised by the Respondent's counsel Mr. Richard Madibi. I will start with the first preliminary objection on Res Judicata. Section 9 of the Civil Procedure Code, Cap 33 of the Laws of Tanzania states that: 9. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. The relevant question is whether or not the present application is res judicata Misc. Commercial Application No.88/2020 which was objection proceedings application decided by Hon. Nangela, J, or the Application for Execution Proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, Judge Incharge? As it has been shown above in order for a 17 suit or an issue to be res judicata, firstly, it must be proved that the parties to the subsequent case are the same like the parties in the previous case or claiming under the same title. It is not disputed that the parties in the present application and in both previous cases described as Misc. Commercial Application No. 88/2020 are the same, although the Applicant somehow dropped some of the original parties to Commercial Case No. 143 of 2014. Originally the parties were the Respondent as the Plaintiff, in one hand and Euro Design Limited, Mr. Richard Mtaita, Ms. Tracy Mtaita and Mr. Luganga Mapunda were the Defendants on the other hand decree was issued in favour of the Respondent against the other parties above mentioned. When the decree arising out of Judgment by consent of the parties was entered in favour of the Respondent herein, and during the process of execution thereof, the Applicant as a stranger to the suit, emerged as an Objector and filed the Misc. Commercial Application No. 88/2020 and this application was filed only against two persons namely the Respondent Bank herein and Euro Design Limited. Somehow the other parties to the original suit were not added. That is past tense now. The Miscellaneous Commercial Cause No.88/2020 before Hon. Nangela, J., was in the nature of objection proceedings premised upon Order XXI Rule 57 and 58 of the Civil Procedure Code. From these objection proceedings the Applicant obtained broad orders and sought to execute them by filing 18 another application in this court for execution of the orders resulting from the objection proceedings. This application was before Hon. Mkeha, Judge Incharge. In this application for execution, the Applicant, once again, somehow further dropped one more party namely Euro Design Limited and filed the application for execution against the Respondent Bank herein only. That is also past. Therefore, it is clear that the parties in the present application were also among the parties to the Misc. Commercial Application No. 88/2020 which was objection proceedings and who were also among the parties later on in another Misc. Commercial Application No. 88/2020 which was for execution. Hence the requirement that to constitute res judicata there should be same parties in the previous and subsequent cases, is fully satisfied. The other condition for a suit or an issue to be res judicata is that the matter which is directly and substantially in issue has been directly and substantially in issue in a former suit. That is the present and the previous cases should have dealt with substantially the same subject matter. In the Execution Proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c., the Applicant was seeking an enforcement of the Orders emanating from the Ruling of Hon. Nangela, J., in Misc. Commercial Application No. 88/2020 by seeking an order of the Court to 19 compel the Respondent to hand over to the Applicant the original Certificate of Title of her matrimonial property following the nullification of the mortgage agreement in respect of which the Respondent came to be possessing the Certificate of Title as the security thereof. In Execution Proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, Judge i/c this Court raised an issue as to whether it could make an order to compel the Respondent to hand over the said Certificate of Title to the Applicant pursuant to the orders in Misc. Commercial Application No.88/2020 decided by Hon. Nangela, J? This Court declined to grant the application and Hon. Mkeha,J i/c determined the pertinent issue as it can be seen at page 7 of the Ruling that: "In the present application, the applicant seeks to execute an order which is completely lacking in the operative portion of the decision sought to be enforced as appearing herein above. That is not a deficiency capable of being rectified by the executing court, in the circumstances whereby the trial court appears to have granted to the applicant, all the reliefs sought in the chamber summons..." I find therefore that the matter directly and substantially in issue in the present application has already been determined in the Ruling by Hon. 20 Mkeha, J i/c as shown above. Whereas in the present application, the applicant is seeking enforcement of the orders made in the objection proceedings by way of an order to compel the respondent to hand over to her the disputed certificate of title, in absence of any specific order to that effect, this same court has already held in the execution proceedings in Misc. Commercial Application No.88/2020 (Hon. Mkeha J i/c) that in absence of a specific order compelling the Respondent to surrender the disputed certificate of title to the Applicant, or any other person legally entitled to receive the same, this court cannot grant the orders sought by the Applicant. The Applicant was supposed to institute relevant proceedings in this court or other competent court to secure the required specific order and not to try once again to enforce the same orders granted in her favour in the objection proceedings which orders this court has already declared to be unenforceable. The applicant has not yet instituted in court the appropriate proceedings to secure the specific orders in the decree or drawn order compelling the Respondent to surrender the disputed Certificate of Title. This application is prematurely attempting to enforce the would be specific orders which the applicant is yet to apply for and obtain in the proper proceedings. In all sincerity, the applicant has brought a similar application against the same parties and same subject matter in issue as was the issue in Execution Proceedings in 21 Misc. Commercial Application No.88/2020 before Hon. Mkeha, Judge i/c. She cannot expect this same court to determine the same issue all over again and arrive at a different conclusion. Essentially, the same order was sought by the Applicant, resisted by the Respondent and declined by this very court in the Execution Proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c . The matter in issue was whether or not this court, on the basis of the orders in Misc. Commercial Application No.88/2020 (before Hon.Nangela,J), could order the respondent to return the original certificate of title for Plot No.33 Block "C", Kunduchi Mtongani, Kinondoni Municipality, registered under the CT. No.80752 which was deposited as mortgage security when securing the loan from the Respondent Bank? Looking at the prayers in the Chamber summons and paragraph 9 of the affidavit, substantially the same matter in issue is now being brought forward before me in this application by the Applicant for this Court to determine, once again, against the same Respondent Bank as to whether, on the basis of the orders in Misc. Commercial Application No.88/2020 (before Hon.Nangela,J), this Court can compel the Respondent to forthwith execute and handover to the Applicant an instrument of discharge of the Legal Charge registered under filed document No.143591 on 21st December 2012 along with the original Certificate of Title No.80752? I find that the present application deals with 22 the same subject matter in dispute as was the subject matter in the Execution Proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c. The same questions of fact and law arise in both cases. The major question is whether or not the Ruling Misc. Commercial Application No.88/2020 before Hon. Nangela, J., contains a specific and enforceable order which can be enforced by compelling the Respondent to hand over the Certificate of Title. This issue has already been answered in the Ruling of Execution Proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c. I understand that unlike the proceedings which were before Hon. Mkeha,J i/c, the proceedings before me are not execution proceedings but the nature of the order sought is squarely one for enforcing the Orders in Misc. Commercial Application No.88/2020 before Hon. Nangela, J., as they are while this very court (Hon. Mkeha, J i/c) has already held that the orders which were granted in the objection proceedings had a deficiency and as such are not enforceable without the trial Court firstly introducing in the decree or drawn order a specific and enforceable order as such. The learned Counsel for the Applicant, Mr. Kayinga has argued that the present application is on a new issue of return of the certificate of title and that the same has never been determined in the objection proceedings before Hon. Nangela, J. That argument is correct but only to the extent of the objection 23 proceedings but not with respect to the execution proceedings before Hon. Mkeha J i/c. Mr. Kayinga's argument would also make sense if the present proceedings were aiming at obtaining a specific order in the decree/ drawn order to compel the respondent to return the certificate of title. But the applicant in the present application, as it can be seen in her chamber summons, is simply applying to enforce the same court orders as issued in Misc. Commercial Application No.88/2020 before Hon. Nangela, J. He is not attempting to procure a decree/drawn order which incorporates the specific orders for return of the certificate of title as was directed by this court. Unfortunately for the applicant, the present application for enforcement/ execution has been met with resistance in the form of preliminary objections which prevent the court to go into the merits of the application. Making progress with res judicata elements, I have found that parties are not in dispute that the Execution proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c were presided over and determined by the court which was seized with jurisdiction to do so. Equally, it is not in dispute that ordinarily this court would have jurisdiction to make the orders sought herein if there was in existence an enforceable order to that effect. Hence there is no issue for determination in respect of this particular element of res judicata. 24 Further, I find that the previous application, that is Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c, was decided to finality and on merits of that application. The order sought was for the court to order the respondent to return the original certificate of title for Plot No.33 Block "C", Kunduchi Mtongani, Kinondoni Municipality, registered under the CT. No.80752 which was deposited as mortgage security when securing the loan from the Respondent Bank. After hearing the parties the Court (Hon. Mkeha,J i/c made his decision that: "Z/7 the present application, the applicant seeks to execute an order which is completely lacking in the operative portion of the decision sought to be enforced as appearing herein above. That is not a deficiency capable of being rectified by the executing court, in the circumstances whereby the trial court appears to have granted to the applicant, all the reliefs sought in the chamber summons. The applicant is advised to revert to trial court to obtain a specific order compelling the respondent to surrender the disputed certificate of Title to her or any other person legally entitled to receive the same after the demise of the mortgagor. The executing court will no doubt be able to execute such a specific order of the trial court if obtained." 25 With the above holding, it is undoubted that the application was decided on merits where the Court declined to grant the application. In short, I find that all the elements of res judicata exist in the present application when evaluated in the light of the Execution proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c. It is also true as argued by the learned advocate for the applicant that the enabling provisions used in the Execution proceedings in Misc. Commercial Application No.88/2020 before Hon. Mkeha, J i/c are different from the ones used in the present application. In the present case the applicant has relied on provisions applicable to objection proceedings; but that does not anyhow change the position of the law on res judicata. The proof of res judicata is not dependent upon similarities or differences between the applicable provisions of the law in the two or more comparable cases, rather on similarity of the factual circumstances prevailing in the two or more cases involving the same parties in respect of substantially the same matters in dispute. I have noted with concern that the Applicant in the present case actually won in Objection Proceedings application No.88/2020 before Hon. Nangela,J and that the court nullified the mortgage agreement on the 26 basis of which the Respondent is holding the original Certificate of title for the applicant's matrimonial property. Naturally it would follow that the continued holding of the applicant's original certificate of title by the respondent on the basis of a nullified mortgage agreement, would be illegal and that the Applicant would be entitled to claim it back. It is also apparent that the court in the Ruling arising from the objection proceedings granted verbatim all the orders as prayed by the applicant in the chamber summons in favour of the applicant. However, due to Applicant's own deficiency in drafting the prayers or orders sought, ended up obtaining Orders which could not effectively remedy her specific grievance of the Respondent's continued holding of the original certificate of title. There was no order sought by the applicant nor granted by the court in the objection proceedings, to compel the Respondent to return the original certificate of title to the Applicant. The execution proceedings before Hon. Mkeha J i/c as well as the present application have been instituted by the applicant in an attempt to enforce a non-existent, but desired, court order, on the part of the applicant. But in law, a decree or an order once issued is to be executed in the way it is. In execution proceedings the court cannot introduce new orders which are not borne out of the decree or order sought to be enforced. That is why in Misc. Commercial Application No.88/2020 before Hon. Mkeha J i/c, the court 27 advised the Applicant to revert to the trial court and obtain a specific order to compel the Respondent to hand over to her the original certificate of title. Instead of heeding to that directive of the court, the applicant has once again brought this application whose substantive prayer is trying, once again, to enforce a non- existent court order rather than being proceedings which could end up with the trial court issuing the specific decree/ order needed to compel the respondent to hand over to her the original certificate of title. Therefore, once again, I wish to direct the applicant to comply with the directives issued by this Court in the Ruling of Hon. Mkeha J i/c in the execution proceedings in Misc. Commercial Application No.88/2020. The court being a neutral forum that will determine validity of the form and substance of the relevant proceedings which may be instituted by the Applicant against the Respondent so as to obtain the specific order to compel the Respondent to hand over to the applicant or any suitable person the original certificate of title in dispute, cannot go any further as to advise the applicant precisely what to do in the circumstances. The Applicant's counsel has a role to play in that regard. What is apparent now is that the present application is not the one envisaged in the Ruling of Hon. Mkeha J i/c in Execution Proceedings in Misc. Commercial Application No.88/2020 and therefore the Respondent's Counsel was right to raise the preliminary objections against 28 this application. The present application is, with respect to the applicant's counsel, a confused blend of objection proceedings in absence of pending execution proceedings and an application for execution of a non-existent order. I should comment by passing that it appears in this case that as the applicant in Misc. Commercial Application No.88/2020 which were objection proceedings, successfully moved the Court to grant in her favour all her prayers in the chamber summons, then she has taken it for granted that the legal provisions of Order XXI Rules 57 and 58 of the Civil Procedure Code, Cap 33 of the Laws of Tanzania, which are essentially for the institution of objection proceedings, to be her "Aladin's magic lamp", trying to utilize the same provisions all over again, in each and every application she makes! In the present application, when reading the substantive prayer in the chamber summons, the Applicant is seeking enforcement of the court order (which is not in existence) to compel the Respondent to hand over to her the original certificate of title in respect of her matrimonial landed property. Yet she has moved the court under the provisions which she had earlier on used in Misc. Commercial Application No. 88/2020 when she successfully filed the objection proceedings. And in this application, she is seeking the same court orders like the ones she sought in vain in the execution proceedings in Misc. 29 Commercial Application No.88/2020. The Applicant needs a proper legal guidance on this aspect. As already held, the application at hand is res judicata the execution proceedings in Misc. Commercial Application No.88/2020 between the same parties. As the remedy for a case being res judicata is dismissal of the case, I find that there is no practical utility of determining the other preliminary points of objection with respect to locus standi and wrong citation of the enabling provisions which were also raised by the respondent's counsel and argued by the parties. Their outcome would be inconsequential to the fate of the present application. In the end, I sustain the first preliminary point of objection on res judicata raised by Mr. Madibi, learned advocate for the Respondent. The application at hand is res judicata Misc. Commercial Application No.88/2020 which was before Hon. Mkeha J i/c and the same is hereby dismissed with costs. It is so ordered. 30