Judg Civ

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CIVIL APPEAL CASE NO. 26849 OF 2024 (Originating from Execution Case No. 19657 of 2024 Decision of Hanang Juvenile Court) NEEMA WEMA WELWEL ………………………………………………APPELLANT VERSUS TIMOTHEO HHAWU THUMAY………………..….………………. RESPONDENT JUDGMENT 28th November & 17th December, 2024 Kahyoza, J. This is an appeal originating from an application for execution. Neema Wema Welwel applied for execution of the order of the Juvenile Court. The executing resident magistrate in charge granted her, some of the reliefs granted by the trial court by the trial magistrate and denied or to grant some reliefs or altered the reliefs granted. She was not amused and resolved to appeal to this court. A brief background is that; Neema Wema Welwel (Neema) applied for maintenance costs of her child before Juvenile court against Timotheo Hhawu Thumay (Timotheo). The court found in favor of Neema and ordered 1 Timotheo to provide maintenance to his child at Tzs 40,000.00, 20 kg of maize and 3 kg of beans and one sack of charcoal per month, 2 kg of sardine per month, 5 kg of rice per month and finally to provide for medical expenses. It is on record that Timotheo paid maintenance costs as ordered by the court and stopped after making payment for some time. After Timotheo stopped paying as ordered, Neema applied for execution of the maintenance order. Upon receipt of the application for execution the resident magistrate in charge issued a summons to show cause. Timotheo did not appear as ordered. The executing resident magistrate in charge ordered Timotheo’s employer to deduct Tzs. 1,000,000.00 which was unpaid amount for 14 months. He further ordered Timotheo’s employer to deduct Tzs. 40,000.00 monthly from Timotheo salary and give it to Neema. The executing court did not order Timotheo to effect other reliefs as the trial court had ordered and he did not provide any reason. Neema appealed contending that the executing court erred in fact for failure to enforce other reliefs granted to her. The respondent did not reply to memorandum of appeal. He appeared during the hearing of the appeal 2 and submitted that he stopped paying maintenance costs as ordered because the applicant told her that he was not the father of the child. The appellant disputed the allegation that the respondent was not the father of her child. Having reviewed the proceedings and pleadings, I entertain doubt as to whether Neema was entitled to appeal or move this Court by any other form apart from an appeal. It is on record that the matter was heard by the Juvenile Court and it was the same court which executed the maintenance order. I wondered whether it was proper to open a fresh file for execution. I will not address the issue as parties did not address him. Given the background and the party’s submission, the issue is whether this execution court had mandate to vary the relief granted. It is glaring evident that trial court granted several reliefs as show above but the execution resident magistrate in charge enforced only an order for payment Tzs 40,000.00 as maintenance costs. The executing resident magistrate varied or revised the order of his fellow trial magistrate. The resident magistrate in charge’s duty was to execute the decree or the order of the trial magistrate. A decree is “the formal express of an 3 adjudication which, so far as regarding the court expressing it conclusively determines the right of the parties with regard to all or any of the matter in controversy in the suit and may be either preliminary of final and it shall be deemed to include the rejection of a plaint and the determination of any question within section 38 or section 89 but shall not include…” (See section 3 of the Civil Procedure Code, [Cap. 33 R.E. 2019]. I wish to insist that the decree is the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties. Thus, the right of the parties was conclusively determined by the trial magistrate, the executing magistrate’s mandate was to enforce the decree as it was. He had no right, whether the decree was illegal or unjustified to alter, vary or rectify it in any way. The Court of Appeal in Balozi Abubakar Ibrahim & Another vs Ms. Benandys Ltd & Others (Civil Revision No. 6 of 2015) [2015] TZCA 5 (18 November 2015) explained the meaning of execution by referring to the decision of Lord Denning, M.R. in Re Overseas Aviation Engineering (GB) LTD [1962] 3 All E.R.12 at page 16, thus- "Execution means, quite simply, the process for enforcing or giving effect to the judgment t of the court: and it is completed when the 4 judgment creditor gets the money or other thing awarded to him by the judgment." It was wrong and illegal for the executing court to pick and choose which relief from the decree of the trial magistrate to enforce. I find that the executing resident magistrate in charge ought to have enforced decree as it was. I therefore, allow the appeal and order the resident magistrate in charge to execute the decree or order as the trial magistrate decreed and to do so without failure. I make no orders as to costs because the respondent is not to blame for resident magistrate in charge’s failure to execute the decree as per the law. It is so ordered. Dated at Babati this 17th day of December, 2024. John R. Kahyoza, JUDGE 5 Court: Judgment delivered in the presence of the appellant and the absence of the respondent. John R. Kahyoza, JUDGE 17/12/2024 6