Civil 02 Procedure and Practice LST Hamidu Draft Last Edit - Docx Original Notes Take It

COMMENCEMENT OF CIVIL SUIT IN TANZANIA
DEMAND LETTER
Demand notes, is a letter stating legal claim which make a demand for performance of some obligation.
 Before institute a civil proceeding you have to serve a demand notice
 Different laws require demand letters to be served before a plaint is drawn. Before writing a
demand letter one cannot `proceed to draw a plaint.
 By implication a demand letter is necessary in Tanzania in respect of any action although it is not
specifically so provided in the CPC.
 Order 70 of the Advocate Remuneration Order of 2015 provide for consequence of failure to issue a
demand notice to individual suit. That no cost will be awarded to the person who did issue a demand
notice except on special order of the court or tribunal.
 When you want to sue a government you are required to issue a 90 days statutory notice to both local
government and central government. The title of the notice will be “A 90 Days statutory notes”
Order 70 of the Advocate Remuneration Order, 2015 provides that a plaintiff cannot file a plaint
before he has written a demand letter.
Order 70:
“If the plaintiff in any action has not given the defendant notice of his intention to sue, and the
defendant prays the amount claimed or found due at or before the first hearing, no
advocate’s costs will be allowed except on a special order of the judge.”
This rule has been interpreted by three cases.
1. AMRADHA CONSTRUCTOR CO. vs. SULTAN STREET AGIP SERVICE STATION (1967) HCD
321 – (1968) E.A. 85.
2. KARIMJEE & OTHERS VS. COMMISSIONER GENERAL OF INCOME TAX (1972) HCD 61,
and
3. ABDUL AZIZ VELJI RATANSI vs. SHARI SINGH (1968) HCD 453.
It is necessary to have a letter of demand and because such a letter will show that the suit has been brought
to court bona fide and the plaintiff has been compelled to do so.
A court will rarely award costs against a defendant who did not receive a letter of demand. Letter of demand
is also important as it serves as a reminder.
Contents of the Demand letter
1. Facts establishing your claim – This means the facts that combined to give rise to a legally
enforceable right or judicial action.
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2. The legal right interfered – This can either be interference of Tortious, contractual or business
relations etc.
3. The remedy that has to be honored – This is the judicial relief to be honored by the Court itself like
enforcing right, imposing penalty, or nay another Court order.
4. Default clause – This is the clause which tells what to be done when someone fails to respond with
the complains against him in time set by in Demand letter.
5. Time within which you need a defendant to act – This is whether 7 days, 14 days or 21 days.
The following are usually the words used in a demand letter.
”I am instructed by Mr. A of ……………………… to demand from you the sum of Tshs.

…………………… which is due to him from you under the contract of ………………. Between you and
the said A.
Take notice that if the said amount is not paid to me by the ……………… day of ……………….. 20….
I am instructed to institute a suit for the recovery of the said amount against you and the costs will be
at your risk.
Yours sincerely,
Sample of the Demand letter
NTINGINYA & CO.ADVOCATES

Advocates, Notaries Public and Commissioners for Oaths
PlotNo.96/1, Old Dar – es – Salaam Road, P.O. Box 397, Dodoma.
NAMEOFADVOCATE, Mobile:
LL.B (Mzumbe); PGDLP (Law School of Tanzania) LL.M ( Udsm ),
Managing Counsel
Email:
________________________________________________________________________________
Our Ref: No.GCA/L/11/13/2017

13th November, 2017
To
Omari Issa Mpaka,
P.O Box 84,
DAR – ES SALAAM,
TANZANIA.
Dear Sir,
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RE: FOURTEEN (14) DAYS DEMAND NOTICE AND INTENTION TO SUE IN THE RESPECT OF TZS
400,000,000/=
Kindly refer to the heading above,

We have been instructed by our client JUMA KIKOMO MKUU (herein after referred to as Our Client) of P.O
Box 1234, Mazimbu - Morogoro Tanzania to communicate with you regarding the above captioned matter as
follows;
That, on 27th March 2022 you agreed with our client to sell a piece of land located at Plot No. 34,
Block C Sinza area, Dar – es – salaam, for the agreed amount of Tsh. 800,000,000/= our client already make
an advance payment of Tsh. 400,000,000/= and the remaining amount of Tsh. 400,000,000/= was to be paid
within three months from the date you entered into an agreement.
That, on 27th June, 2022 before the expiration of three months our client tried to pay you the
remaining amount of Tsh. 400,000,000/= but you refused to take the remaining amount hence the amount
was not paid up to now
That, on 2nd August you informed our client that, and proposed to sell her different piece of land
located at Plot 16, Block F, located at Madale road.
That, despite our client persistent remainder you have not refund her the already paid amount,
because she does not want to continue with the business.
HEREBY, I demanded you that, you are required to refund our client, the sum of Tsh. 400,000,000/=
our client paid to you as an advance payment. Also you are required to pay our client cost of 20% from the
paid amount.
Kindly note that; the said transaction should be made direct to our client Bank account Number 5437663876
NMB Bank, with account name JUMA KIKOMO MKUU
TAKE FURTHER NOTES THAT; you are supposed to pay our client within fourteen (14) days upon
service of this letter, failure to do so our client will have a cause of action against you and he will take further
legal procedure to enforce your liability to his right.
It is my sincere expectation that you will abide to this Demand Notice by paying our client the claimed
amount immediately as directed so that you will not force us to costs and other incidentals.
FURTHERMORE, the demand notice is WITHOUT PREJUDICE to and shall not be construed as a
waiver of any remedies which Our Client have including and without limitation to the right to make further
demands in respect of the said claim.
WE THEREFORE, as a matter of Courtesy, suggest that you make urgent contact with our client,
MR. JUMA KIKOMO MKUU, or Our Office to make suitable arrangements of the payment of the said claim.
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You are so demanded.
DRAWN AND PREDENTED BY

…………………………..
HAMIDU M. MUSSA (ADVOCATE)
For and behalf of NTINGINYA & CO.ADVOCATES
COPIES TO BE SEVED UPON

Our client
Institution of suit
Summary;
Every suit is instituted by presentation of a plaint by the plaintiff. The plaint must contain the particulars of the
plaintiff, the particulars of the defendant, and the particulars of the cause of action and the particulars of the
relief sought. A plaint must also state facts showing that the court in which the suit is instituted has jurisdiction
to try the suit. Upon presentation of the plaint the court will issue a summons to the defendant.
There are two types of summons. There is a summons which requires the defendant to appear and answer
the claim on a day to be specified in the summons, and there is a summons which requires the defendant to
file his written statement of defense within the time specified in the summons. The latter type of summons
may be issued only by a court other than the High Court. If the defendant fails to file a written statement of
defence within the time specified in the summons the Plaintiff will be entitled to apply for judgment against the
defendant. Where a summons to appear has been served on the defendant and the defendant appears, he
may be allowed to file a written statement of defense within such time as the court may decide.
In certain cases the plaintiff may apply for a summons for summary proceedings, where a summons for
summary proceedings is issued the defendant is not entitled to defend his suit save with the leave of the
court. He must first file an application for leave to defend and the court will grant him an application for leave
to defend only if the court is satisfied that he has a prima facie defense. Such a summons may be issued only
where the suit is based upon a bill of exchange or is for the recovery of income tax, or of a debt due to the
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Government, to a local government authority or to certain parastatal organizations. A summary suit may also
be instituted for claims arising out of mortgages whether legal or equitable.
The summons in every case must be served on the defendant personally. In certain cases the plaintiff may
apply for the summons to be served by substituted service and the court will make an order prescribing the
manner in which the summons may be served. Normally, substituted service is affected by publication of the
summons in a newspaper. A copy of every summons is posted on the notice board of the court in which the
suit has been instituted, and in the case of a substituted service a copy must also be affixed on the property
where the defendant normally resides or is last known to have resided. Where a summons to appear has
been issued and the defendant fails to appear on the date and time specified in the summons, the court may
enter judgment against him if it is satisfied that the summons has been served. The defendant may apply to
set aside the judgment and enter ex parte if he satisfies the court that he was prevented from appearing by a
sufficient cause.
Where a defendant files his written statement of defense the plaintiff may, with the leave of the court, file a
reply. The plaintiff must file a reply if the defendant, in his written statement of defense, has raised a counter-
plaint or a set-off, because every counter-plaint or set-off deemed to be a plaint and the basic rule is that
where any statement or claim alleged in the plaint is not specifically denied in a written statement of defense,
the statement or claim shall be deemed to have been admitted.
When all the pleadings have been filed the court fixes a date for the hearing of the suit and the suit is heard in
the normal way. The Plaintiff adduces his evidence and the defendant then adduces his evidence and the
court then decides the issues. Before the hearing commences the court determines the issues involved in the
suit, as disclosed in the pleadings, and the parties are bound by the issues and they can only produce
evidence which relates to the issues. Each witness called by a party to a suit may be cross-examined by the
other party. The taking of evidence is governed by the Evidence Act, 1967, which is also based on the Indian
Evidence Act.
After the court has heard the evidence it gives its judgment. The judgment must decide each issue and give
reasons for the decision. From the judgment the court extracts a decree which sets out the reliefs awarded by
the court. The party in whose favor the decree is given is called the decree holder and the other party is
called the judgment debtor. The decree holder may apply for execution of his decree. A decree may be
executed either by attachment of the judgment debtor or by attachment of his property. Where an application
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is made for the execution of the decree by attachment of the judgment debtor, the court may issue a warrant
for the arrest of the judgment debtor who is then produced before the court. The court may examine him as to
his means and may either order him to pay the decretal amount immediately or by installments.
If the judgment debtor fails to comply with the order of the court he may be committed to a civil prison. The
maximum period for which a judgment debtor may be committed to a civil prison is six months.
Where the decree holder has applied for execution by way of attachment of the judgment debtor’s property,
the property is first attached by the court and after a certain period the court may order the property to be sold
by public auction. Attachment is effected in the case of movable property by seizure by court bailiff, and in the
case of immovable property by the court issuing a notice of attachment which is served on the judgment
debtor and also posted on the immovable property. Certain properties may not be attached. These include
personal clothing, cooking vessels, beds and bedding, tools of artisans and agricultural tools, houses and
buildings occupied by the judgment debtor where the judgment debtor is a farmer, and books of account.
Rights in future may also not be attached. Where the property attached is money of salary then so much of
the property as is sufficient to satisfy the decree holder’s claim is delivered to the decree holder. In the case
of any other property, it is sold and the proceeds of sale are applied in satisfying the decree. The balance in
every case is paid to the judgment debtor. With regard to salary, only one-third of the judgment debtor’s
salary may be attached. Where a judgment debtor’s salary has been attached under two or more decrees
even then only one-third of his salary is liable to attachment and that one-third is then divided pro rata
between the decree holders. Where several decrees have been passed against a judgment debtor and in
each case the same property has been attached, the proceeds of the sale of the property are divided pro rata
between the decree holders. Where attachment of a property does not result in sufficient funds being
available to satisfy the judgment debt the decree holder may resort to another mode of execution for the
recovery of the balance remaining due. Where there is any dispute in connection with the property attached
the dispute will be determined by the court issuing the attachment and in the court.
The Civil Procedure Code also provides for the doctrine of res judicata. No court is empowered to 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 part or between parties under whom they or any of them claim, litigating in
the same title, in a court competent to try such subsequent suit in the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such court.
PLEADING (Order VI)

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The purpose of pleading is to lodge a legal claim for determination of formal civil action. Suits are commenced
by the presentation of a plaint (Order VII) and the Written Statement of Defense (Order VIII).
PLAINT (Order VII)

Plaint is a pleading served by the plaintiff in a Court action containing the allegations made against the
defendant and the relief sought by the plaintiff.
Contents of a plaint (Order VII Rule 1 of CPC)

The plaint shall contain the following particulars;-
a. the name of the court in which the suit is brought;
b. the name, description and place of residence of the plaintiff;
c. the name, description and place of residence of the defendant, so far as they can be ascertained;
d. where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
e. the facts constituting the cause of action and when it arose;
f. the facts showing that the court has jurisdiction;
g. the relief which the plaintiff claims;
h. where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed
or relinquished; and
i. A statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court
fees, so far as the case admits.
j. Dated and signed
SAMPLE OF A PLAINT
THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA
(DAR – ES -SALAAM DISTRICT REGISTRY)
AT DAR – ES - SALAAM
CIVIL CASE NO. ..........OF .............2022
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BETWEEN
JUMA MKUU............................................................ PLAINTIFF
AND
ZUMBA CONSTRUCTION LTD...............................................DEFENDANT
PLAINT
The Plaintiff above named states as follows:-

1. That, the Plaintiff is a natural person, adult, ordinarily residing at Mwanza, District and his proper
address of service for the purposes of this suit shall be under the care of:-
ABC LAW CHAMBERS (ADVOCATES),
3RD FLOOR NSSF TOWER,
UHURU ROAD,
P.0.BOX 64285,
DAR – ES - SALAAM, TANZANIA.
2. That, the Defendant is a limited liability company established under the laws of Tanzania carrying on
business at Dar – es - salaam and his proper address for service and purpose of this suit shall be
communicated to the Court process server in due cause.
3. That, the Plaintiff claims against the defendant the payment of 500 million arising from the contract
for construction of residential house.
4. That, on 28th May, 2017 the Plaintiff and Defendant entered into agreement for the construction of
the residential house at the consideration of 500 million. The copy of the said agreement is hereby
attached and marked as “DT-1” and leave of the Court is sought to form part of the Plaint.
5. That, the whole amount of 500 million which is subject to the contract was paid in the same day when
the agreement was signed.
6. That, the completion date of the contract agreed between Plaintiff and Defendant was 19 th April,
2018, to date nothing has been done.
7. That, by the matter aforesaid (above), the Plaintiff suffered loss and damage arising as his time and
money were wasted by the defendant, as to date nothing has been done though the whole amount
was paid in the same day.
8. That, the cause of action arose in Mwanza and the orders sought are within the jurisdiction of this
honorable Court.
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WHEREFORE: The Plaintiff prays for judgment and decree against the defendant as follows, for:-
1. An order declared that a defendant has breached the contract.
2. An order for payment of Tshs 500 millions being amount paid to the defendant for the construction of
the house.
3. An order for payment of 20% interest for the amount stated of 500 millions and for the time wastage.
4. An order for payment of general damages to be assessed by the Court.
5. An order for payment of 20% on general damages.
6. An order for payment of costs.
7. Any other relief the Court may deem fit and just to grant.
DATED at DAR – ES - SALAAM this .......... day of --------------2022
…........................... ............................
PLAINTIFF PLAINTIFF'S ADVOCATE
VERIFICATION
I Denis Temba, being Plaintiff herein do hereby verified that what is stated in paragraphs 1, 2, 3, 4, 5, 6, and
7 is true to the best of my knowledge, while paragraph 8 is the information I received from my advocate.
Verified at DAR – ES - SALAAM this...........day of ….........2022

....................................
PLAINTIFF
Presented for filing this .......... day of ...........,2022
.........................................
REGISTRY OFFICER
COPY TO BE SERVED UPON:
DEFENDANT
DRAWN AND FILED BY:

JUMA SUNA (ADVOCATE),
KENYATTA ROAD,
P.O. BOX 12285,
DAR – ES - SALAAM, TANZANIA.
WRITTEN STATEMENT OF DEFENCE
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Is a defendant's written answer or reply to a statement of claim (Plaint), admitting or denying each and every
one of the facts contained in the statement of claim (Plaint) and alleging such facts as the defendant wishes to
assert at trial in opposition to the plaintiff's case.
As under CPC CAP 33 ORDER VIII RULE 1.-(1) Where a summons to appear has been issued, the
defendant may, and if so required by the Court shall, within seven days before the first hearing, present a
written statement of his defense.
SAMPLE OF A WRITTEN STATEMENT OF DEFENCE

(DAR – ES - SALAAM DISTRICT REGISTRY)
AT DAR – ES - SALAAM
CIVIL CASE NO. ..........OF .............2022
BETWEEN
JUMA FILIMBI............................................................ PLAINTIFF
AND
CHACHA CONSTRUCTION LTD...................................................DEFENDANT
The defendant herein states as follows;-
1. That, the contents of paragraph 1 & 2 of the Plaint are noted, save that the Defendant's address shall
be in the care of:-
NTINGINYA & CO ADVOCATES
Ruaha Street, Plot No. 1777
P.O. Box 79633,
Dar es Salaam.
2. That, the contents of paragraph 3 of the Plaint are denied. The Defendant denies claims and liability
as alleged.
3. That, the contents of paragraph 4 are noted.
4. That, the contents of paragraph 5 and 6 are disputed and Plaintiff is put into strictly proof.
5. That, the contents of paragraph 7 of the Plaint are disputed. The Defendant denies liability for any
losses and damages alleged to have been suffered by Plaintiff.
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6. That, save to the Jurisdiction of the Court, the contents of paragraph 8 of the Plaint are disputed.
WHEREFORE, the Defendant prays for dismissal of the suit with costs.
DATED at DAR – ES – SALAAM this.........day of..................2022
….....................…................
PRINCIPLE OFFICER OF THE DEFENDANT
DULY AUTHORIZED TO SIGN AND ABLE
TO DEPOSE TO THE FACTS OF THE CASE.
….......................
ADVOCATE FOR THE DEFENDANT
VERIFICATION
I , PETER MABULA, the Managing Director of the Defendant herein, do hereby verified that what is stated in
paragraphs 1, 2, 3, 4, 5, and 6 is true to the best of my knowledge.
Verified at MWANZA this...........day of ….........2022
….........................
PETER MABULA
.........................................
REGISTRY OFFICER

OMARI MOHAMED (ADVOCATE),
KENYATTA ROAD,
P.O. BOX 64285,
MWANZA, TANZANIA.
DRAWN AND FILED BY:
SAIDI KHAMISI (ADVOCATE)

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P.O.BOX 1234
Uhuru Street, Plot No. 1777
P.O. Box 79633,
Dar es Salaam.
SAMPLE OF NOTICE OF PRELIMINARY OBJECTION

IN THE DISTRICT COURT OF KINONDONI
AT KINONDONI
CIVIL CASE NO. ..........OF .............2022
BETWEEN
JUMA FILIMBI............................................................ PLAINTIFF
AND
CHACHA CONSTRUCTION LTD...................................................DEFENDANT
The defendant herein states as follows;-
NOTICE OF PRELIMINARY OBJECTION
The Notice is hereby given that, on the first day of hearing of this suit or any other date as the case shall be
adjourned, the defendant shall raise a preliminary objection on the point of law that, the court has no
jurisdiction. The court shall bare to be moved to dismiss the suit with cost
IN THE ALTERNATIVE BUT WITHOUT PREJUDICE TO THE PRELIMINARY OBJECTION
The defendant shall state as follows;
1. That, the contents of paragraph 1 & 2 of the Plaint are noted, save that the Defendant's address shall
be in the care of:-
Ruaha Street, Plot No. 1777
P.O. Box 79633,
Dar es Salaam.
2. That, the contents of paragraph 3 of the Plaint are denied. The Defendant denies claims and liability
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as alleged.
3. That, the contents of paragraph 4 are noted.
4. That, the contents of paragraph 5 and 6 are disputed and Plaintiff is put into strictly proof.
5. That, the contents of paragraph 7 of the Plaint are disputed. The Defendant denies liability for any
losses and damages alleged to have been suffered by Plaintiff.
6. That, save to the Jurisdiction of the Court, the contents of paragraph 8 of the Plaint are disputed.
WHEREFORE, the Defendant prays for dismissal of the suit with costs.
DATED at DAR – ES – SALAAM this.........day of..................2022
….....................…................
PRINCIPLE OFFICER OF THE DEFENDANT
DULY AUTHORIZED TO SIGN AND ABLE
TO DEPOSE TO THE FACTS OF THE CASE.
….......................
ADVOCATE FOR THE DEFENDANT
VERIFICATION
I , PETER MABULA, the Managing Director of the Defendant herein, do hereby verified that what is stated in
paragraphs 1, 2, 3, 4, 5, and 6 is true to the best of my knowledge.
Verified at MWANZA this...........day of ….........2022
….........................
PETER MABULA
.........................................
REGISTRY OFFICER

OMARI MOHAMED (ADVOCATE),
29
KENYATTA ROAD,
P.O. BOX 64285,
MWANZA, TANZANIA.
DRAWN AND FILED BY:
SAIDI KHAMISI (ADVOCATE)

P.O.BOX 1234
Uhuru Street, Plot No. 1777
P.O. Box 79633,
Dar es Salaam.
MORE EXAMPLES ON PLEADINGS

AT MBEYA
CIVIL CASE No….. 2022
MZIGO COMPANY LTD……………………………………………PLAINTIFF
VERSUS
MIGU ELI……………………………………………………1ST DEFENDANT
ANNA HULLYA…………………………………………….2ND DEFENDANT
MALLY CHUI…………………………………………………….3RD DEFENDANT
PLAINT.
1. The plaintiff is a corporate body registered under the corporate laws of Tanzania and its address for
this purpose of the suit shall be in the care of ABC Attorneys.
ABC Attorneys,
Miembeni Street,
P.O Box 959,
Old Forest,
Mbeya.
2. That the 1st defendant is a natural person ,a business man working for gain in Mbeya City as a Real
Estate Argent and his address of service for the purpose of this suit shall be,
Migu Eli,
Real State Argents,
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2nd floor/New Century Plaza Building,
Mwanjelwa Area,
Mbeya.
3. That the 2nd Defendant is a natural person ,a business man working for gain in Mbeya City as a Real
Anna Hullya,
Real State Argents,
Mwanjelwa Area,
Mbeya.
4. That the 3rd Defendant is a natural person ,a business man working for gain in Mbeya City as a Real
Mally Chui,
Real State Argents,
Mwanjelwa Area,
5. That on 2nd April 1999 the defendants entered into a written contract with the plaintiff , as the
defendants were to provide three storey residential houses (House No 09/445,House No.008/908
and House No.012/112), located in Chunya street, old Forest area in Mbeya Region.
6. That in the contract it was agreed that the plaintiff should pay Tshs79.09 millions as consideration for
the three residential houses for the term of three years starting from January 2000.
7. That it was also agree that the plaintiff should pay the said rent through joint bank account of the
three defendants in the Credit and Realization of Debts Bank CRDB.
8. That it was further agreed until the plaintiff paid the money the defendant will not deriver the said
house to the plaintiff.
9. That in December 1999 the plaintiff paid the said Tshs79.09 million through Credit and Realization of
Debts Bank- Mafiati branch in the Account of the defendants.
10. That though the plaintiff paid the agreed sum of money but the defendants failed to honor the
deliverance of the said three houses as this act amount to breach of contract.
11. That after few days the plaintiff wrote a demand letter and intention to sue the defendants in which
the plaintiff demanded the defendants to deliver the three agreed storey houses, or payback the sum
paid by the plaintiff Tshs79.09 millions.
12. That following the failure of defendants to honor the demand letter the plaintiff then decided to file this
suit against the defendants.
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13. That the course of action arose in Mbeya city and both the plaintiffs and defendants works for gain in
Mbeya City and that the amount of damages claimed by the plaintiff is well within pecuniary
jurisdiction of this court, and so this honorable court has jurisdiction to try this suit.
WHEREFORE the plaintiff prays for judgment and decree in the following prayers,
i. Recovery of sum of money for the breach of contract.
ii. That the defendants be ordered to pay the plaintiff damages of Tshs50 millions (fifty millions).
iii. That the costs of this suit be provided for.
iv. Any other relief this honorable court may deem fit to grant.
VERIFICATION.
The plaintiff verifies that what has been stated herein above from paragraph 1 to 13 is true to the best of
knowledge of the plaintiff and belief.
………………………………….
THE PLAINTIFF.
Date by the plaintiff on this……..day of………..2009
…………..................................
THE PLAINTIFF.
Presented for filling on…………this day of……….2009
…………………………………
COURT CLERK.
DRAWN AND FILED BY

ABC Attorneys,
Miembeni Street,
P.O Box 959,
Old Forest,
Mbeya
COPY TO BE SERVED TO
Migu Eli,
Real State Argents,
Mwanjelwa Area,
Mbeya.
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Anna Hullya,
Real State Argents,
Mwanjelwa Area,
Mbeya.
Mally Chui,
Real State Argents,
Mwanjelwa Area,

AT MBEYA
MZIGO COMPANY LTD ……………………………………………PLAINTIFF
VERSUS
WRITTEN STATEMENT OF DEFENCE FOR THE 1ST, 2ND, AND 3RD RESPONDENTS.
Notice of Preliminary Objection on Points of law.
TAKE NOTICE THAT, at the date of hearing of the suit the Defendants shall raise preliminary objections on
points of law that:-
1. The plaintiff has no course of action since the suit has been filed out of time.
In the ALTERNATIVE and WITHOUT Prejudice to the preliminary objection raised, the Defendants wishes to
reply to the rest of the contents of the plaints as follows.
1. That the contents of paragraph 1, 2, 3 and 4 of the plaint are noted.
2. That the contents of paragraph 5 and 6 of the plaint are admitted to the extent that plaintiff and the
defendants entered into a written agreement to provide three storey residential houses for Tshs79.09
millions as consideration for the three residential houses.
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3. That the contents of paragraph 7 and 8 are admitted to the extent that the money will be paid to the
defendants accounts for the defendants to deliver the said house.
4. That the contents of paragraph 9 of the plaint are here by disputed and the defendants wishes to
state that the plaintiff did not pay the said Tshs79.09 millions as it was agreed in the contract for the
deliverance of three storey houses. The plaintiff is put to the strict proof thereof.
5. That the contents of paragraph 10 are hereby disputed and the Plaintiff shall be put to strict proof
thereof since the money agreed was not delivered hence there is no breach of contract.
6. That the contents of paragraph 11 and 12 are noted.
7. The contents of paragraph13 of the plaint are disputed as the court has no jurisdiction since the suit is
filed out of time.
COUNTER CLAIM.
8. That that the plaintiff through the Chief Executive Officer one LEE JINA went to the office of the
defendants and demolished the said office.
9. That after a rough estimation it is realized that the value of the damage was Tshs108.01 millions.
WHEREFORE the defendants prays for

i. Dismissal of this suit
ii. The court allow the counter claim
iii. Coasts of the suit be proved for
iv. Any other remedies this honorable court may deem fit to grant.
VERIFICATION.
The defendant verifies that what have been stated here in above from paragraph 1 to 9 is true to the best of
knowledge of the defendants and belief.
………………….
THE DEFENDANTS
Dated by the defendants on this………… day of ………..2009
……………………...
THE DEFENDANTS
Presented for filing on…………….this day of…………..2010
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………………………
COURT CLARK
DRAWN AND FILED BY
The defendants,
ABC Attorneys,
Miembeni Street,
P.O Box 959,
Old Forest,
Mbeya

AT MBEYA
MZIGO COMPANY LTD ……………………………………………PLAINTIFF
VERSUS
REPLY TO THE WRITTEN STATEMENT OF DEFENCE
The plaintiff herein replies to the Written Statement of Defense of the defendants as follows;-
ON THE PRELIMINARY POINT OF OBJECTION.
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The preliminary objection is hereby denied and not legally sounds in law, as the plaintiff sought leave in court
to institute suit out of time.
WHEREFOR in view of the above circumstance the plaintiff will pray that, the preliminary objection be
dismissed with costs and have the matter heard and decided on merits.
WITHOUT PREJUDICE to the aforesaid, the plaintiff states as follows;-

1. The plaintiff repeats the contents of the claims.
2. Paragraph 1, 2, 3 of the Written Statement of Defense is admitted as the true version of the matter.
3. With regard to paragraph 4 of the Written Statement of Defense are disputed on the ground that the
plaintiff paid the said amount, in December 1999 the plaintiff paid the said Tshs79.09 million through
Credit Realization and Debts Bank at Mafiati branch in the accounts of the defendants.
4. Furthermore, the contents of paragraph 5 of the Written Statement of Defense are disputed as the
law imposes liability for the parties to contract to fulfill their agreements and the one breaching the
contract will be liable for breach of contract, the plaintiff furnished the consideration by fulfilling the
duty of payment in which the defendants failed to supply the three houses , therefore the plaintiff
denies to have breached the contract entered with the defendants but the defendants are the ones
breached the contract by failure to provide the houses.
5. That the contents of paragraph 6 are noted as well.
6. With regard to paragraph 7 of the Written Statement Defense the plaintiff avers that, the High Court
has jurisdiction to try this matter, and it is the same court that granted leave to proceed with the
matter.
ON THE COUNTER CLAIM .
7. The contents of paragraph 8 of the Written Statement of Defense the plaintiff is denied and the
defendants are put to strict proof thereto. Since the plaintiff did not demolish the office of the
defendants.
8. The contents of paragraph 9 are hereby denied and the defendants are put to strict proof thereto.
9. Save as specifically admitted herein, the plaintiff deny each and every allegation contained in the
Written Statement of Defense as if the same was set out herein and specifically traversed seriatim.
10. The plaintiff humbly prays in this Honorable Court for judgment and decree against the defendants as
prayer in the plaint.
Dated at Mbeya this ……… day of……………….2009

………………………..
36
PLAINFIFF
VERIFICATION
MZIGO COMPANY LTD, being the plaintiff herein, hereby verifies that all what is stated above in paragraph 1
to 9 is true to the best of my own knowledge.
………………………
PLAINTIFF
Presented for filing this ……….. day of ……..… 2007
…………………………
COURT CRERK
DRAWN AND FILED BY
ABC Attorneys,
Miembeni Street,
P.O Box 959,
Old Forest,
Mbeya.
Migu Eli,
Real State Argents,
Mwanjelwa Area,
Mbeya.
Anna Hullya,
Real State Argents,
Mwanjelwa Area,
Mbeya.
Mally Chui,
Real State Argents,
Mwanjelwa Area,
37
Amendment of pleading
The party who think there are facts necessary which were omitted may play for amendment and such relief
must be before commencement of hearing the case as per Order VI rule 17 of the Civil procedure Code
Determination of interim Application arise during Pleading
As per Order VIIIB Rule 17(1) of the CPC. “The court shall within fourteen days, after completion of pleadings,
on it is own motion direct the party to the pleadings to appear before it, for the order or direction in relation to
any interim application or other preliminary matters which the party have raised or intend to raise as it deem
fit, for the just, expeditious and economic disposal of the suit.
 the aim of this is for the court to determine interim applications raised during pleading stage
Upon hearing of the parties on interim application the court shall deriver it is ruling within a period of fourteen
days. As per Order VIIIB Rule 17(2) of the CPC
Where any party fail to appear the court may dismiss the suit, strike out the defense or counterclaim as the
case may be or make such other order as it considers just. As per Order VIIIB Rule 17(3) of the CPC
THE FIRST PRE – TRIAL CONFERENCE
Without prejudice to Rule 17 of order VIII B, at any time before any case is tried, the court may direct parties
to attend to the First pre trial conference relating to the matter arising in the suit or proceeding
38
The First Pre-Trial Conference, is a first meeting of the parties to a case conducted prior to trial after the
Plaintiff has filed a Plaint and the Defendant has been given a summons to appear before the Court. The
conference is held before the trial judge or a magistrate.
 The parties shall be informed by the court of the date and time appointed for the holding of the first
pre trial conference
Conditions for the First Pre-Trial Conference
1. The Plaintiff filed a Plaint.

2. The Defendants' summons to appear before the Court has been issued.
3. Defendant filed a written statement of defense.
4. There must be contentions (disputed) matters in a suit.
PROCEDURE FOR THE PRE-TRIAL CONFERENCE
The First Pre-Trial Conference shall be held within a period of twenty-one days after the conclusion of
pleadings for the purposes of either:-
1. Determine the speed truck of the case,

2. Determine the case through Mediation or
3. Other procedures not involving a trial.
As Under CPC Cap 33 Order VIIIB Rule 22 A judge or magistrate to whom the case has been assigned
shall, within a period of twenty one days after conclusion of pleadings, hold and preside over a first pre trial
conference, attended by the parties or their recognized agents or advocates, for the purpose of ascertaining
speed track of the case, resolving the case through the use of procedure of alternative dispute resolution such
as negotiation, conciliation, mediation, arbitration or any such procedure involved in trial.
(2) In ascertaining the speed track of the case, the presiding judge or magistrate, shall after consultation with
the parties or their recognised agents or advocates, determine the appropriate speed track for such a case
and make a scheduling order, setting out the dates or time for future events or steps in the case, including
preliminary applications, affidavits, counter affidavits and notices, and the use of procedures for alternative
disputes resolution.
SPEED TRACK OF CASES

39
As under CPC CAP 33 ORDER VIIIB RULE 22(1). The appropriate speed track of a case shall be
determined as follows-
(a) Speed Track One shall be reserved for a case considered by the judge or magistrate to be fast cases,
capable of being or are required in the interests of justice to be concluded fast within a period not
exceeding ten months from commencement of the case;
(b) Speed Track Two shall be reserved for cases considered by the judge or magistrate to be normal cases
capable of being or are required in the interests of justice to be concluded within a period not exceeding
twelve months from commencement of the case;
(c) Speed Track Three shall be reserved for cases considered by the judge or magistrate to be complex
cases capable of being or are required in the interests of justice to be concluded within a period not
exceeding fourteen months;
(d) Speed Track Four shall be reserved for cases considered by the judge or magistrate to be special cases
which fall in none of the three above mentioned categories but which nonetheless need to be concluded
within a period not exceeding twenty-four months.
NOTE: Where a scheduling conference order is made, no departure from or amendment of such order shall
be allowed unless the court is satisfied that such departure of amendment is necessary in the interest of
justice and the party in favor to whom such departure is made shall bear the cost of such departure or
amendment, unless the court direct otherwise, As per Order VIIIB Rule 23.
Consequences of or more parties failure to appear in the 1st Pre trial Conference.
As per Order VIIIB Rule 20(1) where at the time appointed for the pre trial conference one or more parties
fail to attend, the court may dismiss the suit or proceeding if the defaulting party is the plaintiff, strike out the
defense or counter – claim if the defaulting party is a defendant, enter judgment or make such order as it
considers fit.
c) MEDIATION STAGE
Mediation – This is a form of alternative dispute resolution (ADR) in which disputing parties reach an
agreement on their own. There is a neutral third party called the mediator, guiding the entire process.
40
As under ORDER VIIIC RULE 1. Where negotiation or mediation or other similar alternative procedure for
resolving the matters in dispute between the parties is directed by the court under a scheduling order made
under sub-rule (2) of rule 3 of Order VIIIA or under sub-rule (1) or rule 3 of Order VIIIB, such negotiation,
mediation or similar alternative procedure, other than arbitration, shall be conducted in accordance with
directions issued by the Chief Justice.
d) FINAL PRE-TRIAL CONFERENCE STAGE

Final pretrial - This is where the parties inform the court whether the case is ready for trial, and if a
settlement is reached.
PROCEDURE FOR FINAL PRE-TRIAL CONFERENCE

A Final Pre-Trial Conference shall be held, presided over by the judge or magistrate assigned to try the case
for the purpose of:-
1. Giving the parties a last chance to reach an amicable settlement of the case
2. Enabling the Court to schedule the future events.
The court shall be guided by the Speed Track to which the specific case is allocated. The conference shall be
held within a period not exceeding thirty days, forty days or sixty days from the time of full compliance
with the first pre-trial conference order. Where an amicable settlement of the case is not reached the judge or
magistrate after consultation with the parties or their advocates shall frame issues and fixing the trial date or
dates.
As under ORDER VIIIB RULE 3.-(1) Where, after full compliance with the directions made under sub-rule (2)
of rule 3 of Order VIIIA, the case remains unresolved, a final pre-trial settlement and scheduling conference
shall be held, presided over by the judge or magistrate assigned to try the case for the purpose of giving the
parties a last chance to reach an amicable settlement of the case and for enabling the Court to schedule the
future events and steps which
are bound or likely to arise in the conduct of the case, including the date or dates of trial.
(2) In making a final pre-trial conference order, the court shall be guided by the Speed Track to which the
specific case is allocated.
(3) The final pre-trial settlement and scheduling conference shall be held within a period not exceeding thirty
days, forty days or sixty days from the time of full compliance with the first pre-trial conference order in
respect of cases allocated to Speed Track One, Two or Three respectively.
41
(4) Where an amicable settlement of the case is not reached pursuant to the provisions of sub-rule (1) of this
rule, the judge or magistrate presiding at such conference, shall, after consultation with the parties or their
recognised agents or advocates, make a final pre-trial conference order therein framing the issues
according to provisions of Order XVII of this Code, and fixing the trial date or dates and generally providing for
matters necessary for the expeditious trial of the case according to the relevant Speed Track.
INTERLOCUTORY APPLICATION
Take an example; the client contracted you as an advocate claiming that his neighbor trespassed into his land,
and start construction activities in his land, he want you as an advocate to advise him on what he should do so that
to stop his neighbor from such interference. In this situation you as an advocate you will advise your client to apply
for Interlocutory proceedings or stopping order from the court.
Interlocutory Proceedings
Are proceedings, which are instituted in the court with the view to obtain Interlocutory Order for the purpose
of deciding a particular point or matter that do not finalize the case or for the purpose of preventing
irreparable harm or loss or for the purpose of maintaining the status quo of the parties while the main
suit is still pending. Also this was stated in the case of; University of Dar es salaam V Sylvester Cyprian
and 210 others1; Interlocutory proceedings where defined to mean,
“proceedings that do not decide the right of parties but seek to keep things in status quo pending
determination of those rights or enable the court to give direction as to how the cause is to be
conducted or what is to be done in the progress of the cause so as to enable the court ultimately to
decide on the rights of parties”
Order xxxvii of the civil procedure code provides for an opportunity for the parties to seek leave of the
court for granting of an order in the matter of emergency to pending suits.
The most common interlocutory is injunction. Injunction is the court order whereby a party is required to do,
or refrain from doing any particular act. It is a remedy in a form of an-order of the court addressed to the
1 1998 TLR 175.

42
particular person that either prohibit or orders him to come out a certain act. This order of injunction is
normally issued by the court where the hearing of the main suits is yet to be completed.
Purpose of Interlocutory Order
 To prevent irreparable loss i.e. loss that cannot be repaired to the applicant
 For the purpose of maintaining the status quo of parties
 To protect the subject matter of the case while the suit is still pending
The object of temporary injunction is preventive, the whole purpose is to prevent or restrain so as to preserve
the subject matter of the suit in status quo for the time being. The word "status quo" is defined in the case of
Garden Cottage Food Limited versus Milk Market Board as follows: "Is the state of affairs existing immediately
before the filling of the application"
The object of grant of temporary injunction should be to maintain the existing status before determination of
the suit and any order which has the effect of changing or disturbing or altering the status quo is not covered
by Order 37 rule 1.
Example; A and B are in land dispute as they are claiming for ownership of land from which B have started
construction activities on the land. A take the matter to the court while the suit is still pending A may apply for
Interim or Interlocutory Order to stop B to continue with the activities
In other words the aim behind this is to maintain the status quo of the main suit. Moreover the application
of this order must be made before the court in which the main suit is instituted and they are normally made as
miscellaneous application which means trial within a trial. But according to proviso to Order XXXVII Rule 1 of
the civil procedure code, an order of granting a temporary injunction shall not be made against the
government but the court may in lieu thereof make an-order declaratory order of the rights of the parties.
Therefore ones the order is granted it will last until the court issues a further order or until the main suits is
finally determined but the court may determine or may decide within which the orders will last.2 Order xxvii
rule 3 is to the effect that the order shall be in force for a period specified by the court, but not exceeding 6
months as it was stated in the case of knitwear V. Ismail.3
Nature of Interlocutory and Interim Orders
a. This order do not finalize the main case
b. They do not be issued if they have effect of finalizing the case.
The test on whether the interlocutory Order finalizes the case
 The court will look on nature of the dispute itself. Example the dispute is on who is the rightfully owner of
the land, in this you can not apply for an interlocutory Order for the court to order that you are a right owner
of the land. This is because by doing so it will finalize the main case.
Example; A and B are partners in their business there is a certain cargo which they are supposed to
receive from the port, at the time they wait to receive the goods they enter into a dispute. From which B
institute a suit to the court and apply for interlocutory Order for the court to allow him to receive the goods.
2 Order XXXVII Rule 3 of the Civil Procedure Code

3 [1998] TLR 48
43
On the reply A objection that by allowing B to receive the goods it will finalize the case because the
dispute is on the goods. In this situation the court will not grant the interlocutory Order.
c. They cannot be issued if there is no pending suit, as per Order XXXVII of the CPC it require this order to
be issued only if there is pending suit before the court.
 The injunction which can be issued even if there is no pending suit is called MAREVA INJUNCTION
APPLICATION FOR TEMPORARY INJUNCTION

The parties to the suits who desires interim orders to be issued has duty of moving the court by making formal
application. The application may be made at any stage of the suits provided that the court has not yet make a
final judgment the application is made by way of chamber summons supported by an affidavit a companied by
certificate of urgency.
This enabling provision for this application is Order XXXVII Rule 2(1) and 7 of the civil procedure once the
application is made before the court, the notice of application shall be given to the opposite party, this is
according to order xxxvii Rule 4 of the civil procedure code unless it appears that the giving of such notice
would cause un-due delay and that the object of granting the injunction would thereby being defected under
the case of Golcher v. General Manager M. C. M,4 Also was stated in the case of Augustine Lyatonga
Mrema and Two Others v. Abdallah Majengo and Two Others.5
However before the granting an interim order or temporally injunction the court must certified itself as to the
existence of the elements that where established by the court in the landmark cases of ATILIO VS MBOWE. 6
Whereby the court said that three conditions must exist before temporary injunction is made;
There should be an existence of series issues to the parties thus the main suits between the parties.
There should be possibility for the applicants to suffer loss that cannot adequately being
compensated. Balance of convenience. The same condition was discussed in the case of HARUNA
MPAGAOES AND OTHERS VS TANZANIA PORTLAND CEMENT COMPANY LTD.7
NB: In granting an interlocutory order the court must consider three conditions as it is raised in the case of
Attilio v. Mbowe (1971) H.C.D. these conditions are
a. There must be triable issues between the parties with a probability that it may be decided in
the applicant's favor. However, that requirement of the probability of applicant's success in the main
suit cannot be interpreted to mean that the facts at hand should declare the applicant a winner, but
rather the applicant should show that though evidence has not been given, the allegations so far
made by him, prima facie portray him as having been aggrieved by the respondent entitling him to the
reliefs being sought in the main suit.[See Commercial Case No.5 of 1999, Tanzania Tea Packers
Ltd versus The Commissioner of Income Tax and Another)
4 [1987] TLR 78.

5 [2001] TLR 67.
6 1969 HCD NO. 28
7
Civil reference n.3 of 2007 court of appeal of Tanzania at Dar es Salaam.
44
b. The circumstances should be such that if the Court does not issue the order, then the applicant
would suffer irreparable loss even if subsequently he succeeds in the actions(main case) and
c. On the balance of convenience, the applicant stands to suffer more if the injunction is not granted
than what Respondent would suffer if granted.
Kalegeya J (as he then was) in the case of Millo Construction Company Limited versus NBC Ltd and
Saddoti Dotto Magai, Commercial Case no.105 of 2003 which is yet to be reported “It is a trite law that all
the three conditions underlined in Atilio case must be fulfilled”.
The other sees the principles as having two distinct criteria (i) "Prima facie case" and (ii) "Probability of
success"., The former is construed to the first school of thought, while the latter refers to the relative strength
of the case. But the controversy was settled by the court of appeal in the case of C.P.C International Inc.
versus Zainabu Grain Millers Limited, civil appeal no 49 of 1995 (C.A) (unreported) where it was held that “in
dealing with the proceeding for interlocutory injunction, a judge should not decide issues which will be
resolved and determined in the main suit, but should only consider whether on the facts as disclosed from the
affidavits and pleadings, a prima facie case has been shown”.
NATURE OF INTERLOCUTORY ORDERS

a. These orders cannot be issued if they have the effect of finalizing the main case. You have a
matter pending in court and the dispute is on who is the rightful owner of land. If you apply for an
order of the court to declare you temporarily as the rightful owner of the premises pending
determination of the main case. This is pre-determining the case. The temporary order issued
will be finalizing the main case.
b. These orders cannot be issued if there is no pending case, Mareva injunction is the exception.
c. They are not appealable, reviewable or subject to revision. This is because they do not finalise
the main case. However, these rights can accrue after the main case has been determined.
Originally before 2002, these orders were appealable, reviewable and subject to revision. In
2002, there was enacted Written Laws (Miscellaneous Amendments) Act No. 25 of 2002. The
Act amended three statutes, MCA, CPC and AJA. For the MCA, section 43(2) was introduced to
prohibit appeals and review and revision against interim orders. In the CPC, section 74(2), 78(2),
79(2) were introduced to prohibit appeals, reviews, and revision. In the AJA, section 5(2)(d) was
introduced to prohibit also appeals, reviews, and revision from interlocutory orders. However, this
does not mean that there is no remedy. If an order is issued and it has the effect of finalizing the
main case, you can appeal, review and ask for revision. The general remedy is Order XXXVII Rule
5.
CASES ON INTERLOCUTORY PROCEEDINGS

A. The court may be extended from time to time for a period not exceeding one year – Knitwear v.
Ismail [1989] TLR 48.
B. Notice must be given to opposite party - Augustine Lyatonga Mrema and Two Others v. Abdallah
Majengo and Two Others [2001] TLR 67.
C. Notice to be dispensed with where it will cause undue delay or where it will defeat the object of the
application – Golcher v. General Manager M. C. M [1987] TLR 78.
45
D. The Order is not appealable unless it has the effect of finally determining the suit – Act No. 25 of
2002, Managing Director, Souza Motors Limited v. Riaz Gulamali and Another [2001] TLR 405
READINGS
 Read Order XXXVII RULE 1-10 of the civil procedure code

 Section 68 (e) of the Civil procedure code, Cap 33 R.E 2019
CASES
 Attilio v. Mbowe (1971) H.C.D.
 Hans Wolfgang v. General Manager of Morogoro Canvas
 Tahfif Mini Super Market v. B.P. Tanzania Ltd [1992] TLR 189.
MAREVA INJUNCTION
 Is the injunction issued by the court if there is no pending suit before the court
 It is the common law remedy if you want to apply for this order go to the Judicature and Application of
Laws Act
 Mareva ni meli yenye mizigo ilikuwa imeshikiliwa mahali, kwahiyo mahakama ikatoa order meli hiyo
iachiliwe wakati huo hakukuwa na kesi yoyote mahakamani
 The case was the case of Mareva Compania Naviera
 When applying for Mareva injunction do not cite or use the CPC instead use the JALA
 This orders are not appealable, reviewable or subject to revision
 Before the year 2002 people were allowed to appeal, review or revision against this orders. But in the
same year there is the enactment of the Written Law Miscellaneous Amendment Act No. 25 of 2002 this
law amends three statutes i.e. the CPC by introducing Section 74(4),78(2) & 79(2) which prohibit appeal,
revision and review to interlocutory Order. Also the Magistrate Court Act was amended by introducing
Section 43(2) and the Appellate jurisdiction Act was amended by introducing Section 5(2)(d) for the same
purpose.
 If you want to challenge the decision on interlocutory proceedings you are supposed to wait until the end of
proceedings and appeal against the entire Judgment and decree
 Therefore from 2002 up to date you cannot file an application for appeal, revision or review on interlocutory
Order.
Exception
 You can file an application for appeal, revision and review against Interlocutory Order if the order aim at
finalizing the main case
The Case of UDSM V Silivester Cyprian and 2010 others, 1998 TLR 175, This case provide that the aim of
interlocutory application is to maintain the status quo of the person.
How to apply / mode of Application
46
 In all courts subordinate to the court of Appeal, the documents required is Chamber summons supported
by an Affidavit as per Order 43 rule 2 of the CPC
 In your chamber summons don’t cite Order 43 of the CPC
 In the Court of Appeal the documents required are Notice of motion supported by an Affidavit
 If the Application is in agency situation file the application under the certificate of urgency
TYPES OF ORDERS
1. Temporary injunction
2. Declaratory order
3. Attachment before judgment, is an order directed towards the property of the defendant
pending determination of the main case.
4. Arrest before judgment
5. Security for costs
01. SALE BEFORE JUDGMENT (sale pending determination of the main case) Order XXXVII Rule 7.
 It’s an interlocutory proceeding
 Order 37 Rule 7 of the CPC provides for sale before Judgment, this order for sale is applied in cases for
perishable goods
 It deals with perishable items before the determination of the main case. You will have to apply for
an order of sale before judgment and the money is deposited with the court. After the determination,
the court
 Also Section 68(e) of the CPC provides for the sale before Judgment.
 Its applied by the way of Chamber Summons supported by an Affidavit.
02. INTERIM PAYMENT (payment before judgment; payment pending determination of the main case)
 Order 37 Rule 10 of CPC together with section 68(e) provide for Interim payment
 Order XXXVII Rule 10 of the CPC provides that “Where the subject matter of a suit is money or some
other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a
trustee for another party, or that it belongs or is due to another party, the court may order the same to be
deposited in court or delivered to such last-named party, with or without security subject to the further
direction of the court.
 Example you have sued a person claiming 50 million and the defendant on his WSD denied that you do
not owe him 50 million but only 40 million in this situation you will make an application to the court to order
such person to pay first such 40 million he admit and then the main suit will proceed.
03. DETENTION, PRESERVATION OR INSPECTION OF PROPERTY

 Order 37 rule 8 and section 68(e) of CPC
47
04. Security for cost
 Order 25 of the CPC provides for security for cost
 This is when the plaintiff stay out of Tanzania i.e it is the foreign company and does not possess any
sufficient immovable property within Tanzania other than property in suit, the court either on its own motion
or on the application of any defendant, order the plaintiff or plaintiffs within a time fixed by it, to give
security for the payment of all cost incurred and likely to be incurred by the defendant.
 In this situation the court will ask such foreigner to deposit some amount of money in the court account as
a security for cost.
 This is the remedy for the defendant who is sued by the foreign person or company
 As per Section XXV Rule 2 in case the foreign person or company fail to furnish the security within the
time fixed by the court the court make an order to dismiss the suit
 If the suit is dismissed the plaintiff cannot bring the fresh suit
Remedy available to the plaintiff
 Withdrawal of the suit. When they withdraw the suit they have an ability to bring the fresh suit at the time
they got the security of cost required by the court
Example
 You have been given a scenario that the Windhoek company located in Malaysia headquarters decide to
enter a contract with one company located in Tanzania, that such company will act as an agent to
distribute Windhoek beer within East and Central Africa countries and they agreed that the company in
Tanzania will be responsible for collection of money and send such money to the company at the end of
every month. The company in Tanzania accept the deal and start the business of distributing Windhoek
beer within East and Central Africa but Tanzania company did not sent any money to the Windhoek
company in Malaysia. Due to this the Windhoek company brought the suit in Tanzania court suing the
Tanzania company.
 In the situation above the court on it is own motion or on the application of the plaintiff may ask the
Windhoek company which is the foreign company in Tanzania to pay the security of cost. In case the
plaintiff fail to pay such money as the security of cost the court may dismiss the suit.
5.0 TEMPORARY INJUNCTION

 It is the restrain order issued by the court for the purpose of staying, preventing the wasting, damages,
alienation, and sale, loss of value, removal or disposition of anything that is subject to the Proceeding in
the court until final determination of the main suit or until the main order.
 This is famously known as stop order, too. This is essentially a restraining order. The purpose
is for staying and preventing the wasting, damaging, alienation, and sale, loss of value, removal or
disposition of anything that is subject of the proceedings in court until the final disposal of the
main suit or until further orders. Life span of an injunction is 6 months. After expiration, there is no
defying court order or contempt when the other party proceeds, for example, to build his house
pending determination of the main case. Thus, when the injunction expires, you need to apply for
extension. It needs to be applied immediately before it expires. The second application needs not be
formal. You can apply it orally and informally before the court.
48
 Order 37(1) of the CPC provides for temporary Injunction
 It is applied by the plaintiff or defendant
How to apply it / modes of application

 Chamber summons supported by an Affidavit for the High Court; In the Court of appeal it is Notice of
Motion and affidavit. You can ask for the stay of execution with the trial court and in case it is
rejected, you can appeal.
 Or it can be done by oral application
How to address the court when you are arguing your application orally.
Address the court this way,
“your honor, before you is an application for an injunctive order restraining the respondent from
demolishing the house situated at Sinza, the application being made under Order XXXVII Rule 1 and
is supported by the affidavit of the applicant in this case. Then prayer for the adoption of that affidavit
to form part of your submission. Otherwise, you will not be allowed to read it. From there, read your
affidavit. The three conditions must feature clearly in the affidavit. You have your annexure in your
affidavit and you do not need to produce documents any longer at the hearing. You need only to
state it. You will produce the documents in the main case. Then you pray for the application to be
granted and that you ask for costs. Instead of saying “I”, say the applicant.
49
Requirements of Notice, Order XXXVII Rule 4.
Before granting an injunction, notice of the application has to be given to the other side. Order XXXVII Rule
4 provides that “The court shall in all cases, before granting an injunction, direct notice of application for the
same to be given to the opposite party, except where it appears that the giving of such notice would cause
undue delay and that the object of granting the injunction, would thereby be defeated.
Take an Example
that you have received a notice of demolition to be executed tomorrow, you quickly prepare your
chamber summons, plaint and affidavit, and certificate of urgency and file them today. Certificate of urgency
means you need the case to reworked today.
In solving this issue, you are supposed to go to the court and see the High Court Registrar and inform him of
what is happening tomorrow and depending on the nature of the case, the summons can be issued on the
same day and the parties can be called to appear on the same day. But the person to appear on the court
might not have prepared any documents but will still appear before the court. While there, he will ask for the
time to be extended for him to file counter-affidavit. Then the court will ask the applicant what he is praying
before the court. He will ask the court not for an injunction because the defendant has not replied with
counter affidavit but for the maintenance of the status quo pending the determination of the inter-parte
application (for the injunction application). The chamber summons must have two prayers (a) maintenance
of the status quo of the parties ex-parte at the top, and if suing the government, you also add another prayer
that the requirement for the expiry of 90 days’ notice be dispensed with; (b) granting temporary injunction
inter-partes, pending determination of the main suit. The second order will be granted after the other side
has filed counter affidavit. Ex-parte or inter-parte prayers can come at the top of the prayer and in front of the
specific prayer. Thus, the reason of exparte comes in the context that the other party has not yet replied
with his documents. The second order once granted, will overtake the first order of application.
There is no suit against the government without notice of intention to sue the government, section 6 of
the Government Proceedings Act.
Example 02
Imagine the government wants to demolish your house tomorrow and how will you rescue your client
tomorrow? There is no injunction against the government. So, what will you do? The first thing to do, you
have to comply with section 6. You issue the notice of the intention to sue, 90 days’ notice. The requirement
is mandatory. Make sure that you have proof of service. Then prepare you plaint, chamber summons,
affidavit and certificate of urgency. How do you put your prayers? What do you state in your chamber
summons? And there are no ex-parte proceedings against the government. Ex-parte here will have two
prayers (a) Honourable court to dispense with the expiry of the 90 days’ notice; (b) maintenance of
the status quo of the parties pending determination of the application for injunction. Then Inter-partes (c)
the honourable court to issue an injunctive order to restrain the defendant (government) from demolishing
the house, pending determination of the main case (the order the court will give is that of declaration of the
rights of the parties, which is essentially an injunctive order maintaining the status quo). But make sure you
have proof of service.
Conditions necessary for temporary Injunction to be issued

These are laid down in the case of Attilio v Mbowe [1969] HCD 284.
a. There must be a prima facie case, to be tried on the basis of facts alleged
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b. The plaintiff is likely to suffer irreparable losses. Therefore the court is required to interfere so that to
prevent loss to the plaintiff and if the loss is not prevented from occurrence the suit will not have any merit
to the plaintiff.
c. The balance of convenience is such that the plaintiff tends to suffer more if the order is not granted than
how the defendant will suffer if the order is granted.
Lifespan of temporary Injunction
 It’s only six months. Immediately before the temporary Injunction expired you are supposed to make an
application to extend a temporary Injunction.
Declaratory Order
 This is when you want to execute against the government
 The temporary Injunction cannot be issued against the government as per order 37 Rule 1(b)
 When you want to execute against the government the order given by the court is called the declaratory
order
 It is an order which aim at maintaining the status quo
 When you want to execute against the government, in your application ( Chamber summons) you may
write that you want the court to issue the declaration order, to maintain the status quo
 The declaratory order have an effect of only maintaining the status quo of the person
NB. The law of limitation Act extend the meaning of Government to include the local government Authorities
 Therefore even if you want to sue the local government i.e village government, district, region, municipal
government you are supposed to include the Attorney General in your application
 In application against the government you’re supposed to issue a 90 days Notice
How to issue a 90 days notice to sue the government

Take an example; you have received a demolition notice from the government and in that notice it is that within 7
days the government will demolish your house
Remember that; in any Proceeding against the government you are supposed to issue a 90 days. And the
demolition notice is within 7 days and by issues the 90 day notice your house will be demolished. The issues
here is how to balance the 90 days notice and the 7 days demolition notice.
Procedure to follow
a. Issue a 90 days statutory notice. Remember that the 90 day notice is the Mandatory notice so you
must wrote a notice and file the notice to the court. And during service of notice you must have a proof of
service
b. Plaint. The plain is main for institution of suit. The injunction cannot be brought if there is in no suit in the
court so the plaint is for institution of suit
c. Chamber summons. In your chamber summons you must first ask for exparte and second interparty. In
your chamber summons put a prayer for the court to waive the expiry 90 days notice and the statutory
prayer which is injunction or declaratory order
d. Affidavit
e. Certificate of urgency for an application to be heard in urgency situation.
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NB. All suits which involve the government must go to the High Court
 What if the suit is against the village authorities and it’s cost is 300000. In this go to the subordinate court
and sue the district execution director
Sample of the Chamber summons

1st example; Interparty
DAR -ES – SALAAM DISTRICT REGISTRY
AT DAR -ES – SALAAM
MISCELLANEOUS APPLICATION NO…………OF 2022
(arising from land case No 5 of 2021)
HAMIDU MUSSA …………………………………….. APPLICANT
VERSUS
PERMANENT SECRETARY MINISTRY OF ENERGY…….1ST RESPONDENT
ATTORNEY GENERAL………………………2ND RESPONDENT
CHAMBER SUMMONS
(Made under Order 37 rule 1 and Section 68 (c) and Section 95 of the CPC and any other enabling provision of
law)
LET ALL PARTIES concerned appear before Honorable………….. in chamber on …………. Day of
…………2022 at 9:00 am in the forenoon or so soon thereafter as the applicant can be heard on the application
for the following Order;
1. That, this honorable court be pleased to wave the of 90 days statutory notice issued by the
respondent due to urgency nature of the matter
2. That, this honorable court be pleased to issue a temporary Injunction, restraining the respondent,
their assignee, Agents, workmen to demolish the applicant property located at Plot No. 768.
Sinza Madukani, Ubungo Municipality, located at Dar – es – es salaam pending final and
determination of the main suit
This application has been taken at the instance of ABCD Attorney Supported with an affidavit of HAMIDU M.
MUSSA, the applicant and other grounds and reasons to be adduced at the hearing.
GIVEN under my HAND and SEAL of the court this …………day of …….2022
………………………….
REGISTRAR
Presented for filling this …………..day of ……………2022
……………………..
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REGISTRY OFFICER
2nd example ; exparte and interparty

(arising from land case No 5 of 2021)
HAMIDU MUSSA …………………………………….. APPLICANT
VERSUS
PERMANENT SECRETARY MINISTRY OF ENERGY…….1ST RESPONDENT
ATTORNEY GENERAL………………………2ND RESPONDENT
CHAMBER SUMMONS
(Made under Order 37 rule 1 and Section 68 (e) and Section 95 of the CPC and any other enabling provision of
law)
EXPARTE; let the applicant above be heard before Honorable………….. in chamber on …………. Day of
…………2022 at 9:00 am in the forenoon or so soon thereafter as the applicant can be heard on the application
for the following Orders;
6. That, this honorable court be pleased to wave the of 90 days statutory notice issued by the
respondent due to urgency nature of the matter
7. That, this honorable court be pleased to issue an order maintaining the status quo of parties
pending the determination of an interparty application of an applicant for injunction
INTERPARTY; LET ALL PARTIES concerned appear before Honorable………….. in chamber on …………. Day
of …………2022 at 9:00 am in the forenoon or so soon thereafter as the applicant can be heard on the
application for the following Order;
1. That, this honorable court be pleased to issue a temporary Injunction, restraining the
respondent, their assignee, Agents, workmen to demolish the applicant property
located at Plot No. 768. Sinza Madukani, Ubungo Municipality, located at Dar – es –
es salaam pending final and determination of the main suit
This application has been taken at the instance of ABCD Attorney Supported with an affidavit of HAMIDU M.
MUSSA, the applicant and other grounds and reasons to be adduced at the hearing.
GIVEN under my HAND and SEAL of the court this …………day of …….2022
………………………….
REGISTRAR
Presented for filling this …………..day of ……………2022
………………………..
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REGISTRY OFFICER
Sample of Affidavit
(arising from land case No. 7 of 2021)
HAMIDU MUSSA ………………………..……….. APPLICANT

VERSUS
JUMA MATOFALI………………………….1ST RESPONDENT
MSHUU MALIMBA…………………………2ND RESPONDENT
AFFIDAVIT
I HAMIDU MUSSA adult Muslim DO HEREBY affirm and state as follows;
1. That, I am the applicant in the application and thus conversant with the facts I am about to depose;
2.That, there is a pending suit in this Honorable court, Land Case No. 9 of 2022 in which I am plaintiff and the two
respondents are defendant
3. That in the said case I have sued the defendant for which I am challenging the defendant decision to demolish
my house
4. That, while the case is still pending the respondent intend to demolish my property located at Plot No. 786
Sinza area, and they have issued a 3 days notice for that purpose copy of the said notice is annexed here to and
marked as ANNEXTURE HM 1 forming part of the affidavit
5. The applicant seek a court order restraining the respondent from demolishing my house
6. That, in the event the application will not be granted the applicant will suffer irreparable loss
7. That the applicant will suffer more if the order is not granted than the defendant will suffer if the order is granted
8. That, it’s for the interest of justice that I depose the affidavit in support of the application.
Dated at Dar – es – salaam this……….day of……………..2022
VERIFICATION
I HAMIDU MUSSA do hereby verify that what is started in paragraph 1,2,3,4,5,6,7 and 8 is the best true to my
knowledge
Verified at Dar – es – salaam this……….day of……………..2022
…………………………
DEPONENT
AFFIRMED at Dar- es- salaam
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By the said HAMIDU M. MUSSA
Who is known to me by………..
In my present this…..day of…2022
BEFORE ME
NAME;…................
ADDRESS…………….
QUALIFICATIONS……….
Presented for filling this…………day of …………. 2022
DRAWN AND FILED BY
SPECIAL CATEGORIES OF SUIT

 This includes the Representative suit, Summary Suit and Third party procedure
Representative suit
 Is the group of action. In this a selective group of person represent other group of people who have the
same interest
 Order 1 rule 8 provides that one person may sue or defend on behalf of all having the same interest
 Where there are numerous person having the same interest in one suit, one or more of such person may
with permission of the court to sue or be sued or may defend in such suit or on behalf of others.
 In this there must be a meeting of the parties with the same interest and in that meeting they are required
to sign the meeting
 In making an application you must attach the minutes
Document required.
 An application for Leave to act on behalf of the rest.
 Application for leave is made by Chamber summons supported by an Affidavit
 Remember to attach/ annex minutes
 In your application ask for court to grant a leave to representative suit as per Order 1 rule 8
 Once the leave is granted you my proceed with the case
Condition for filling the Representative suit
 Numerous person i.e the parties are many
 Common interest
 The relief must be beneficial to all
 Leave has to be sought or granted
The case of Silivester Cyprian and 2010 others V the University of DSM is one of the representative suit case
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Procedure for Hearing of Representative Suit
 Those fees who have been appointed to represent others will be notified and produce Documents on
behalf of others.
 Order 1 rule 8 of the CPC
 They are supposed to first make the meeting and sign the minutes which are supposed to be attached to
by chamber summons supported by an Affidavit
Summary Suit ( Order 35)
 Is the suit that does not give the defendant an automatic right to defend.
 Example of this suit is the suit by the TANESCO, suit to recover rent, suit to recover of income tax, suit
upon bills of exchange, suit arising out of mortgage
 In this suit the defendant is only given a summons to appear but he did not have a right to speak or
defend himself.
Institution of summary Suit
 It is instituted by the way of plaint in the usual form but endorsed “Order XXXV: Summary procedure
“
 The summons should be given so as to inform the defendant
Remedy available to defendant
 File an application to the court to obtain a leave from the court to defend. As per Order 35 of CPC
Documents required for leave
 Chamber summons supported by an Affidavit
Possible defense by the defendant
 Unauthorized Alteration
 Clerical errors
 Expiration of cheque
 Mistake of fact or misrepresentation of tact
What if the court deny to grant a leave to the defendant
 In this situation the defendant will wait until the completion of case, so he can wait until the exparte
application is complete
Third party procedure (Order 1 rule 14)

 This is the procedure instituted by the defendant
 Is the procedure to call party who is not a party to the Proceeding
 Order 1 rule 14 of the CPC is the governing provision and it happened when the defendant is claiming
indemnification from the third party e.g. insurance company
How to institute a third party proceedings
 Leave to the court, as per Order 1 rule 14 (b) defendant to present to the court a third party notice
 The third party may also apply for the leave to save notice to another third party
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Documents required
JUDGEMENT, DECREE, RULING AND DRAWING ORDER

In Civil case the end result is the Judgment or decree. At the end of the Judgment we have the Judgment
Debtor and the Decree Holder.
The one, who have lost the case, will normally take the remedy to challenge the Judgment and decree; he
may either institute an application for Appeal, Revision, Reference and Review.
The decree holder will institute a load of Enforcement of Judgment and decree. In order to realize the
decree this was given by the court so he will initiate an application for execution of the decree
The judgment Debtor will also make an application to interfere the application for execution process by
exercising the remedy of stay of execution.
That is let the execution be stayed pending an appeal, revision, reference and review. That the applicant for
execution can be stopped pending the determination of an application by the judgment debtor
Example the Execution on the sale of the land, the one may file an application to nullify the Execution to sale
the land.
JUDGEMENT
A judgment is defined under section 3 of the civil procedure code, Cap 33 to mean statement given by a Judge or
magistrate of the ground for the decree or order. Or is the decision/ determination of the court and reason for the
determination.
A judgment can also be defined to mean a final decision of the court to the parties which is formally
pronounced or delivered in an open courts according to order 20 (3) of the Civil procedure code, cap 33.
The judgment shall be written by or reduced to writing under the personal direction and superintended of the
presiding judge or magistrate in the language of the court and shall be signed and dated by such presiding
judge or magistrate.
Example; people go to court with issues and the court determine the issues and the court is required to give a
reason why he decide such decision in favor of such party.
Section 3 of the CPC defines what judgment is and Order 20(4) of the CPC set out the essentials elements of a
judgment.
Essentials elements of a judgment
a. Name of the court
b. Name of the parties
c. Summary of evidence of both parties
d. Issues for determination i.e. the law and fact
e. The determination of those issues
f. The reason why he determine the issues in one way or another
g. Orders i.e. what is ordered by the court
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h. Signature and date
A good judgment should contain all the essential elements of the judgment and that when a judge
or magistrate writes a judgment it’s important that;
 To ensure there are no irregularity
 Judgment should not be vague and certain points should not be left to interface
 It must be of points raised in the pleadings in the course of trial
 It must record all points raised by all parties
In the case of Amirari Ismail V. Regina, Abernethy, J made some observations on what a judgment should
contain he said; “A good judgment is clear, systematic and straight forward”
In other case of Nutter Symborian Nelson V The Hon, attorney general & Ibrahim said msabaha, civil
appeal No. 24 of 1999 C.AT (unreported) it was observed that “A judgment must convey some indication
that the judge or magistrate has applied his mind to the evidence on the record although it may be
reduced to a minimum, it must show that no material portion of the evidence raised before the court
has been ignored”
Judgment is covered under Order 20 of the CPC talks about judgment and its components also Judgment is
covered under Form No. E/1 of the Civil Procedure Approved form
Enforcement of Foreign Judgment
Cap 8 of the Reciprocal Enforcement of Foreign Judgment Act, as it talks about enforcement of foreign
Judgment in Tanzania
Example in case there is the matter in Kenya Court and such Judgment and decree is supposed to be enforced
in Tanzania; in this situation the law applicable is the Reciprocal Enforcement of Foreign Judgment Act,
The foreign award emanates from foreign arbitral awards in this you will use the arbitration Act and the New
York Declaration on enforcement of foreign judgment
if it’s the foreign judgment from the ordinary court in a foreign country and you want to institute it in
Tanzania, you are required to use the Reciprocal Enforcement of Foreign Judgment Act
Judgment
A judgment, is the decision/ determination of the court and reason for the determination.
Example; people go to court with issues and the court determine the issues and the court is required to give a
reason why he decide such decision in favor of such party.
Section 3 of the CPC defines what judgment is and Order 20 of the CPC provide for contents of the judgment.
Contents of Judgment
i. Name of the court
j. Name of the parties
k. Summary of evidence of both parties
l. Issues for determination i.e. the law and fact
m. The determination of those issues
n. The reason why he determine the issues in one way or another 58
o. Orders i.e. what is ordered by the court
p. Signature and date
Decree
A decree is the formal expression of the court orders or is the authoritative part of the judgment which contain
orders for execution and enforcement of the judgment.
 Is defined under Section 3 of the CPC.
 Order 21 of the CPC provides for execution of decrees
 Form No. E/2 of the Civil Procedure Approved Form rules provide for sample of the decree i.e. how the
decree looks.
 What is executed is not a judgment, what is executed is the decree. When a person is appealing he will
appeal against the decree and not a judgment
 The decree is very short as it contain the prayers and relief granted
 A decree emanates/extracted/originate from the a judgment and must tally to the judgment and there
should be no variation between the decree and judgment
 In case the decree is variance with the judgment such decree is declared to be a declared to be a
defective decree and any variation will make the decree to be unenforceable.
Categories of judgment
(a) Judgment in Rem Vs Judgment in Personae
Judgment in Rem, Is the judgment which deal with the property right e.g. the judgment which declare who is
the right owner of the motor vehicle, land, laptop, mobile phone
 The Judgment in Rem binds the whole world
 Once the Judgment in Rem is given by the court you can not bring another suit claiming the
ownership of property against the property when the court have declared someone as the rightfully
owner of the property.
 In Judgment in Rem, the property can be inherited, also in case the person die while he or she is
owed the property of another person. Heirs can inherit the debt. And they are required to pay
 In case the party who is the suing to the property die the heir will step into the shoes of the one who
die
Example in the dispute between A and B on ownership of land , A win the case. In this circumstance in
case B die heirs of B may step into the shoes of B and A can claim payment to his properties from the
heir of B.
 the subsequent suit will be Barred as per estoppel of record. No any person in the world is required to
bring any proceeding in the court based on the property.
Example A and B is claiming on the ownership of Mobile phone as who is the right owner of the phone.
In this issue A brought the suit against B and the court enter the judgment in favor of A that A is the right
owner of the Mobile Phone. After the end of proceedings C raise and claim that neither A or B is the
owner of the Mobile phone. In this situation the law prohibit any in the world to file the suit objecting the
ownership of property once the court have passed judgment or decision no any person or no any suit can
be instituted in the court objecting.
 The only remedy available to C is to challenge by way of Revision , to the HC so that the HC to
declare that the application is barred in law and that the court to allow him to open a fresh suit
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Judgment in Personae, is the judgment relating to personality of the person i.e aim to protect the status
of the person
 Example the judgment on defamation that the one is defamed is the judgment in Personae, the
judgment on Assault, Battery is the judgment in Personae
 It binds only parties to the suit. Example in death of one party the heir are not responsible
 In case one of the party die, the proceedings ends there
Example in the dispute between A and B for defamation, A win the case. In this circumstance in
case B die A cannot claim anything from the heir of B.
(b) Adjudication Judgment and Non Adjudication Judgment
ADJUDICATION JUDGMENT, is the judgment which is reached by the court after the court conduct hearing.
NON ADJUDICATION JUDGMENT is reached by the court without conducting hearing or trial.
 Example the judgment in consent, Judgment on admission, Judgment by default
Judgment by consent is when the parties entered reached into amicable settlement out of the court e.g. in ADR.
Example in ADR suppose the parties reach the agreement during mediation and that they make the deed of
settlement the court will give its Judgment based on the consent ( deed of settlement)
 You can not appeal against the judgment in consent. You only can make an application for revision
 Example there fraud, threat you can make an application for revision that there was a threat or fraud
at the time of making the consent.
Judgment on admission is the Judgment which is reached after the defendant admit to the claim or contents of
the Plaint i.e. he is not in dispute with the claim raised in the plaint
For example A claim some amount of money to B and he did not serve him with the demand letter instead he
file the application direct to the court, in his Written Statement of Defense B agree with all claims against A that
he is ready to pay the claimed amount. In this case the judgment entered by the court will be called the judgment
on admission
Judgment by default, is the judgment which is entered where the parties to the suit fail to take necessary steps
e.g. Non appearance as per Order 1X Rule 2 of the CPC the suit will be dismissed. Such Judgment will be called
a Judgment by default.
 Another example is failure to amend the plaint, the Judgment will be dismissed by default
REMEDIES AVAILABLE
Restoration of suit as per order IX Rule 3 of the CPC. The application is made by filling the Chamber
summons supported by an Affidavit
 On the absence of the defendant the case can proceed exparte
 Exparte Judgment is entered when the plaintiff is allowed to proceed on the absence of the defendant
when it comes for hearing
 In exparte Judgment the plaintiff is required to call his witnesses and examine in Chief, frame issues ,
tender evidence and the court will make a judgement called an exparte Judgment
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REMEDIES WHEN THE EXPARTE JUDGMENT IS ENTERED
 As per order IX Rule 8 the one can make an application to set aside an exparte Judgment or
pursuing an appeal directly without making an application to set aside an exparte Judgment
(a) Setting aside an exparte Judgment
 Order IX Rule 9 of the CPC Provides for an application to set aside an exparte Judgment
 The application should be brought within 30 days from the date of exparte Judgment was delivered
 The application should be made in the same court which pass an exparte Judgment
 The application is made by the way of Chamber summons supported by an Affidavit
 In your chamber summons you are supposed to show a good reason why you did not appear during the
hearing of the case
(b) Pursuing an appeal directly without making an application to set aside an exparte Judgment
 If you are appealing you will appeal based on the decision of the plaintiff that his evidence is
insufficient for the court to reach decision
 In this you can file an application to challenge the merit of the judgment
 The issues to pursue appeal direct to the court without making an application to set aside an
exparte Judgment is not a statutory remedy but it is based on case laws
The case of Dangote Industries Limited Tz V Warner Com. Tz Ltd, Civil Appeal No. 13 of 2021 CAT DSM (
Unreported) in this case one of the issues was whether can a person appeal against an exparte Judgment
without firstly attempting to set aside an exparte Judgment, the court held that it is possible under Section 70(2) of
the CPC that where one intends to challenge the merit of the judgment he may Appeal.
Also in Cosmas Construction Co. Ltd V Arrow garment Ltd (1992) TLR No. 20 where the CAT held that even
where the case proceed exparte the defendant must be notified to attend on the date of judgment delivery. The
defendant must be served with the summons to attend on the date of exparte Judgment. If he did not appeal all
Proceedings will be nullity.
RULLING
A Ruling is the preliminary judgment. It is the decision of the court on preliminary matters like interlocutor
application, objection proceedings etc
 Normally the decree does not determine the substance of the dispute
 It is the decision made on an incidental proceeding in connection with or arising out of the main
proceeding
Example; A &B was in dispute of land as both were claiming on the ownership of land, one party raises the issue
that the case is time barred so in this issue the court will issue a ruling that the case is time barred something
which will make the proceeding to an end.
If the court make a ruling that the case is not time barred the, in this situation the case will proceed.
 Sometimes the ruling can finalize the case e.g. the suit is time barred as per section 3 of the law of
limitation Act, if the suit is time barred the suit end there
 There are some ruling will make the decision to an end while other ruling will make the case to an ends
 As the generally rule the ruling is supposed not to make the case to an end
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Example the application for injunction, attachment before judgment, filling representative suit, security for
cost, interlocutory matters – the end results of all this application is a Ruling
 The way you write a ruling is the same as a judgment
 The order which is given so as to enforce the ruling is called a Drawing Order
DRAWING ORDER
 Drawing order is an authoritative part of the ruling which contain order of the court for the purpose of
execution of the ruling.
 We will not enforce the ruling we enforce the drawing order
Example on an injunction to stop the demolishing of house the one against one the ruling is issued one does
not respond to the order of the court to stop demolishing the house. In this you have to go to the court and
apply for the court to issue a Drawing order for one to obey to the order of the court for injunction as per
order 68 (d) of the CPC
N.B The Miscellaneous Amendment Act, No 25 of 2002 come to amend all procedural law by prohibiting appeals
or revision on all laws on preliminary decision. All appeals or revision on Ruling and drawing orders are
prohibited.
 Exception to the General rule that one can not appeal against the ruling or drawing order is that; one
may appeal against that order if such order finalize the matter before the court
Example The issues is that the there is the ruling on the jurisdiction of the court that the court have no
jurisdiction and the ruling was entered by the court that the court have no jurisdiction to entertain the
matter in this situation the matter end there because the issue of jurisdiction is crucial. In that
circumstance you can appeal because the ruling finalized the case.
 If the ruling or drawing order does not finalize the case you can not appeal against such an order until
the main case is over. The appeal is allowed after the completion of the main case.
 In the Court of Appeal there are some ruling which are appealable with the leave of the court while other
does not require leave of the court.
 The test on whether the ruling finalize the matter is whether further Proceedings will be after the
pronunciation of the ruling
Example A sue B for Breach of contract during the proceeding B raises the Preliminary Objection as the
case is time barred as it was filed out if time, this is because the law require the case on contract to be
filed within 6 years but in such Proceeding in hand A filed the application after the end of 7 years. In this
situation when the court issue a decree the decree will finalize the case
Example 2 Based on the above example if A file an application before the expiration of 6 years as
required by the law; in case there is the P.O and the court make a ruling that the application was filed
within a time. In this situation after the ruling the main suit will proceed. And therefore you can not appeal
against the ruling.
EXECUTION OF COURT DECREE OR ORDER

After hearing, the court may produce the judgment and any party aggrieved by the judgment may seek for
remedies available i.e. Appeal, revision and review.
As per Article 13(6)(a) of the Constitution of the United Republic of Tanzania, which provide that “
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“when the rights and duties of any person are being determined by the court or any other agency, that
person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the
decision of the court or of the other agency concerned;
Then the person to whom the judgment has been issued on his side the court has to issue a Decree to enforce or
give effect to the judgment.
Decree
section 3 of the CPC define a decree to mean the formal expression of an adjudication which, so far as regards
the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in
controversy in the suit.
A decree can be Preliminary/ interlocutory decree or Final degree.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and
partly final;
Content of a decree
Order XX rule 6 of the CPC provides for contents the decree which provide that a decree shall contain
 Name of the court
 it shall contain number of the suit
 Title
 names and descriptions of the parties and
 Particulars of the claim and shall specify clearly the relief granted or other determination of the suit.
Parties to the Suit

There are two parties to the suit i.e. the Decree holder and Judgment debtor. Section 3 of the CPC provides for
the definition of these two terms.
"decree-holder" means any person in whose favor a decree has been passed or an order capable of execution
has been made; while the
"Judgment debtor" means any person against whom a decree has been passed or an order capable of
execution has been made;
NOTE;
 What is subject to execution is the decree and not a judgment.
 For a decree to be capable for execution it must conform/agree with the judgment. (Order. XX rule 6(1)
of CPC). If the decree does not conform to the judgment it must be declared defective.
 The decree shall bear the date of the day on which the judgment was pronounced. (Order. XX rule 7 of
CPC) If the date of the decree is different then the decree is defective.
 If the decree is declared defective, the remedy available is that; the one has to go to the registrar and
given the other rectified copy but subject to limitation of time.
 When the judge or magistrate is satisfied himself that the decree has been drawn up in accordance with
the judgment he shall sign the decree (Order. XX rule 7 of CPC). The decree which is not been signed is
the defective decree.
 When the judge or Magistrate has vacated office after pronouncement of the judgment but without
signing the decree, a decree drawn in accordance with the judgment may be signed by his successor, a
registrar, a deputy registrar or district registrar. (Order. XX rule 8 of CPC)
 When we have the decree with cost then we have to start with the Bill of Cost, and when the cost is
certified, then execute a decree. But in practice many advocates execute the decree but with exclusion
of the cost of the cost of the case. The bill of cost is subject to limitation of time limited to 60 days as per
Order 4 of the Advocate Remuneration Order
63
 The decree shall state the amount of costs incurred in the suit and by whom or out of what proper and in
what proportions such costs are to be paid (Order. XX rule 6(2) of CPC)
EXECUTION OF THE DECREE

Execution
 In the CPC there is no statutory meaning of the term execution
 In the case of Re Overseas Aviation Engineering (GB) Ltd (1962) 3 All ER 16, the term execution is
defined as “ the process of enforcing or giving effect to the judgment of the court; and it is completed
when the judgment creditor gets the money or other things awarded to him by the judgment.
 It is the legal process
 Its purpose is to help the creditor realizes the fruit of the judgment
 It give effect to the judgment
From this definition, when the judgment of the court has been delivered, that is not the end of civil proceeding.
For you to enjoy the fruits of civil proceedings, you need to go to the next step of execution.
 Execution is the part of the judgment. It is absence render the judgment a picture only.
 When issuing a writ of execution, a court typically will order the court broker or other similar official to take
possession of property owned by the judgment debtor
Transferability of the decree (Section 34 of CPC)

 According to the law the decree can be executed by the court which passed it or by any other court in
which the decree is transferred
Factors/circumstances in which the decree can be transferred
 The location of the property subject for execution
 The availability of judgment debtor e.g. the judgment debtor place of business is in other place beyond
the territory where the decree is passed
 Jurisdiction of the court i.e the court which pass the decree have no jurisdiction e.g. the decision is
passed by the quas - judicial body like an arbitral award by CMA such award is subject to execution in the
HC labor division
Executing court
 The executing court can be the court which pass the decree or the court in which the decree is
transferred for execution
The case of integrated Property Investment (T) and two others V the Company for habitat and Housing in
Africa, Civil Application No. 162 of 2015 CAT DSM this case provide that it is not important for the decree to be
substantial similar with the judgment as per Order XX of the CPC
Qn After death of the decree holder who will be responsible for execution? The heir ( administrator of ) will be
responsible for execution of the decree after the death of the decree holder
What will happen if the person who is the Judgment debtor dies? After death of the judgment debtor the
administrator of estates of the judgment debtor will be responsible to facilitate the execution process
64
MODES OF EXECUTION
a. Attachment and sale
 It is used when dealing with execution of money but the one has the property which have some value
as the money claimed in this situation the property will be attached and sold so that the decree
holder can get the amount of money claimed.
 Example you are a decree holder and you are entitled for payment of 10 million by the judgment
debtor and the judgment debtor does not have such an amount but he has the property valued with
the same amount claimed in this situation during execution of decree the decree holder may attach
and sale such property so as to execute the decree.
 Note that, you as an applicant you do not have power to attach and sale the property direct; you are
supposed to make an application to the court and the court can appoint the Court Blocker, the court
Blocker are responsible for execution of the court decree
 The court Blocker have territorial Jurisdiction only, they can exercise their power within their territory
as they can not exercise their power outside their territory
 They are required to attach and sale the property in public auction
 After the sale they can deposit an amount obtained from auction to the court account and the court
can pay you or they can deposit direct to your Bank account
What if the person do not have any property
 Such person is required to enter a plea of poverty
 You can file an application to the court so that such person can be declared as a insolvency
person as per order XXII Rule 8 of the CPC
 Being declared insolvency means that you can not take loans to any financial institution so it has
some effect to the plaintiff
 When the person is declared insolvency you can not be paid anything
Can you execution the property of person who is not part to the suit? example the property of wife in
respect to the claim against his husband or mother in law?
 You cannot execute the property of a person who is not a party to the suit
 The case of Kazungu Lushinge V Juakali Degulla (1985) HC in this case the cattle of Kazungu
Lushinge as the father of Judgment debtor was attached by Juakali Degulla to the decree for
execution, on appeal to the High Court the HC held that you can not execute on the properties
which belong to the party who is not a party to the suit. So the HC ordered the property to be
returned owner because ever man should bear his action and if the decree holder want to
execute the decree he is required to attach the property owned by the judgment debtor and
execution can not be done to property which are not in possession of the judgment debtor
b. Arrest and detention as the Civil Prisoner

 This mode of execution is applicable when the judgment Debtor or the administrator of estates of
the judgment Debtor deny to comply with the court order
 In this the judgment debtor have money or property for execution but he deny such process of
execution to be enforced by the court.
 The purpose is to compel such person to comply with the court order
 Such person arrested as a civil prisoner will be discharged soon after accepting to comply with
the execution
 Upon compliance the person should be left at liberty 65
Note: you must state the modes of execution at the time you apply for execution in the court .
 In execution, the decree holder is not allowed to make execution on his own instead he is required to
make an application to the court it is the court which is responsible to appoint the court Blocker for
execution. The one who enforces execution of the court decree is the court Blocker
 You can object the appointment of court Blocker orally in the court
 If they proceeding you can make an application to challenge the entire execution process i.e the learned
judge erred in law by appointing the court Blocker with no jurisdiction to execution
Limitation
 That, the person can not be arrested and detained without being given a summons to show
cause to the court why he deny to comply with the court order for execution. If the person fail to
show good cause why he should be taken as the Civil prisoner the court shall issues the warrant
of arrest
 The decree holder must be capable of paying the cost to keep such person into custody as the
Civil prisoner
 In this the decree holder will go to the prison office and explain on the status of life of the
judgment debtor and you will be given figure/ amount to pay for maintenance of such person
while he or she is in custody after that the decree holder will go to court and pay such an amount
for maintenance of such person while he is in custody
 The Custodian time is Six (6) month
 If it is the company first file the application to lift the corporate Vail of the company than after that
file an application to arrest and detain managers or directors of that company as a civil prisoner
 Note that, this mode of execution is only used when other modes of execution fail.
c. Seizure and delivery

 This is used for physical property
 The Decree Holder can apply for properties of the judgment debtor to be executed
 Example the judgment debtor is in possession of the motor vehicle the judgment debtor may
make an application to the court so that the court Blocker can be appointed by the court so as to
seizure such property and delivery such property to the decree holder
 If the property is located in dwelling house the seizure must be done after sunrise and before
sunset
d. Garnishee order
 This is the common law mode of executing decree
 It is applicable through the reception clause i.e the 1920 backward
 It is used in execution of monetary decree i.e decree relating to money
Stages of Garnishee order
i. Garnishee order nisi, under this stage the decree holder will make an application through the method
called Garnishee and the court will give the Garnishee order which prohibit the Garnishor not to withdraw
the money
 The order will be given by the court so that the Garnishor not to allow the judgment debtor not to
withdraw any amount that will affect the decree holder
 This order aim to restrict the withdraw of money
 Example the person have money to his bank account the court will order the bank ( as the Garnishor)
to restrict withdraw of any amount into the judgment debtors account but the judgment debtor is
allowed only to deposit money into his account 66
ii. Garnishee order absolute
 This is the second stage after the garnishee order nisi
 Under this stage the 3rd party (Garnishor) is ordered by the court to release a certain amount of
money as per the decree. So such an amount will be taken from the account of the judgment debtor
and paid to the court account or the decree holder account
 Upon issuance of the summons the third party may be give notice to the judgment debtor that there
are certain amount required to be removed from his account and be paid to the court so as to affect
execution of decree.
 Section 44(2) of the CPC together with order 21 rule 39 of the CPC
MODE / PROCEDURES FOR EXECUTION

 Application for execution is generally shall be done in written form as per order XXI Rule 10 of the CPC
 Form No 5 of the Civil Procedure Approved form rule G.N 363
 The form must be accompanied with the following documents; copy of certified Decree you want to
execute, any other relates to things you want to execute e.g. you want to execute land you are
required to attach the certificate of title if such land is surveyed. and the sale agreement if such land is
unsurveyed land or the evaluation report which is endorsed by the chief evaluator
 Order 21 rule 10(2) Provides for oral application
 The summons should be served by the court server to the judgment debtor before execution. If the
summons is denied the court server must affirm or take an oath and the court can proceed exparte.
How will you get the document if the document is in possession of another person
 Example in land issue, you may do official search to the registrar of tittle or you may use the land
evaluator. If it is a motor vehicle go to TRA. If you want to apply for garnishee go to the Bank
Time limit for execution
 The time limit is 12 years from the date of delivery of decree as per Section 39(1) of the CPC together
with Item 20 part 3 of the schedule to the law of limitation Act
Extension of time for execution
 If the time for execution expire you may apply for extension of time to the court which issue the decree
What if the Judgment debtor pay an amount but not all
Example in the case between A and B; the court award the decree to A at the time of execution B negotiate with
A that he accept to execute the court decree on payment of sum of money but at such time he has financial
problem so he want A to accept the payment of money by installments
Note; if the judgment debtor want to pay by installments.
 The judgment debtor is required to make an application to the court by showing a good cause on why he
want to affect payment in such way and the decree holder must consent on such mode of payment the
court may allow the judgment debtor to make payments by installments as per Order 20 rule 11 of the
CPC
 The judgment debtor must show a good cause why he will not make payments in a lamp sum.
Documents required for payment by installments
67
REMEDIES AGAINST EXECUTION

1. STAY OF EXECUTION
 It is the remedy available to the judgment debtor in execution Proceeding when the judgment debtor
intends to challenge the execution
 You can not apply for stay of execution when the Execution does not start you can only apply for stay of
execution when there is execution
 Order 21 rule 24 of the CPC provide for the stay of execution
 It aim to stop execution Proceeding
Documents for an application to stay execution
Things that must be shown by the applicant
b. The judgment debtor must show that he have taken some steps in the court to challenge the decree e.g.
he already filed the notice of appeal.
 The notice of intention to appeal must be attached to the affidavit
c. The judgment debtor must show that he is the one who will suffer serious loss if the application will not be
granted by the court.
 The applicant must show good reason that he will suffer more serious losses compared to the respondent
if the application is not granted by the court
 If the application will not be granted his appeal will be useless
d. It’s the applicant who has an obligation to convince the court on why it should grant the stay of execution.
2. OBJECTION PROCEEDINGS
 Is the remedy in execution which can be used by the third party who is not the party to the Proceeding
but he/she can be affected by the execution
 Order 21 rule 57 provides for an Objection Proceeding. It is known as Investigation of claim
 In this the third part file an application to the court in order the court to investigate the claim or objection
Documents required for an application for objection proceedings
Reply by the judgment debtor and decree holder
 The reply of an objection proceedings is by way of Counter Affidavit. Upon receiving the application
Time Limitation to file an obligation proceeding by 3 rd party
 The application is required to be brought before the end of execution Proceeding
 The 3rd party or his Advocate may file the application
 The third party may ask the decree holder to attach another property which belong to the judgment debtor
Remedy to the third party for filling an obligation proceeding after the completion of execution
68
 Revision, 3rd party aggrieved by objection proceedings by subordinate court may apply for revision
Remedies to the judgment debtor & decree holder
 Revision, any party aggrieved by objection proceedings by subordinate court may apply for revision. In
the CA the remedy is Appeal as per Section 5 of the Appellate jurisdiction Act,
Document
General remedy to Execution
 If it is in the High Court and Subordinate courts the only remedy available against execution is
REVISION
Documents required for revision
 If the applicant is not represented by an advocate the application can be by way of formal letter
In the court of appeal
 In Court of Appeal the remedy available is Appeal, as per Section 5 of the Appellate jurisdiction Act,
 You can not appeal in all other court except in the Court of Appeal
Example in case you have been given a scenario a person is aggrieved by the decision of the High Court on
execution. He is required to make an application to the court of Appeal.
As per Section 5(2) of the appellate jurisdiction Act, the one is required to make an application for APPEAL to
the CA. Firstly you are required to seek for leave of the HC
Document required in applying for Leave of High Court to appeal to the Court of Appeal
Documents required for appeal to the Court of Appeal
 Notice of Appeal and the Memorandum of Appeal
EXECUTION AGAINST THE GOVERNMENT

 As per order 21 rule 2A of the CPC Provides that in execution against the government you have to go to
Section 16 of the Government proceedings Act
 You make an application to the court i.e. formal letter and attach the certified copies of decree, the court
will attach the certificate of payment then the application will be sent to the treasure registrar
when executing a decree against the Government of Tanzania in Tanzania, a party must also obtain a certificate
as a condition of executing the decree against the government.
In the case of Karata Ernest and Others V The Attorney General, Civil Revision No.10 of 2010 (unreported), ,
the Court of Appeal of Tanzania had this to say:
“Ordinarily, the execution of decrees passed by the High Court is governed by Sections 31 to 55
and Order XXI of the [Civil Procedure Code]. However, in suits involving the government, the application
69
of Order XXI has been expressly disallowed in execution of decrees against it, by Rule 2A of the same
Order. Instead, the execution process is governed by Section 16 of the Government Proceedings Act,
Cap 5 R.E 2002.”
The said Section 16 reads as follows
“16-(1) Where in any civil proceedings by or against the Government, any order, including an order as to
costs, Is made by a Court in favor of a person against the Government or against an officer of the
Government as such, the proper officer of the Court shall, on an application in that behalf made by
or on behalf of that person, issue to that person a certificate containing particulars of the order:
Provided that if the court so directs, a separate certificate shall be issued with respect to the costs to be
paid to the applicant.
(2) If the Order provides for the payment of the money by way of damages or other relief, or of costs, the
certificate shall state the amount so payable and Permanent Secretary to the Treasury or such other
Government accounting officer as may be appropriate shall subject to the herein provided, pay to the
person entitled or to his advocate the amount appearing by the certificate to be due to him together with
any interest , lawfully due thereon;: Provided that the court by which any such Order as is mentioned in
this section is made or any court to which an appeal against this order lies, may, if it considers
reasonable to do so direct that pending an appeal or other legal proceedings payment or part of any
amount payable shall be suspended and if the certificate has not been issued, may order any such
directions to be inserted therein”.
In other words, to execute a decree as against the Government of Tanzania in Tanzania, it is necessary to obtain,
pursuant to an application, a certificate containing particulars of the underlying decree, including the amount
payable by the Government of Tanzania
Once a certificate is obtained, it is then presented to the Permanent Secretary to the Treasury or such other
Government accounting officer as may be appropriate for payment. As the Court of Appeal of Tanzania stated in
the Karata’s case.
Execution against local government
The law governing
 The local government (District Authority) Act
 The local government (Urban Authority) Act
The Interpretation of laws Act, provides for the meaning of Government to include local government Authorities
NB.
 All proceedings against the government must include the attorney general
TAXATION OF COST
 When a court have decided the case in civil nature, the court is required to issue an order for cost
70
 According to the general rule the winner of the case is entitled to an order for cost
 There are other circumstance when the court may decide not to award the winner of the case an order for
cost. If that happen then the court is required to give reasons why such victor of the case is not entitled to
cost
 There are certain cases an order for cost will not be awarded example cases which have public
interest, bad conduct of the winning party during the trial process
How to enjoy/ get the cost awarded to you by the court

 Read the advocate remuneration order
 Order 4 of the Advocate Remuneration order provide that the party entitled to cost is required to make
an application by the way of bill of cost, such an application should be filed within 60 days from the date
of the decree
 Order 55 of the Advocate Remuneration order provide for contents of the bill of cost
 Order 6 provides for Notice of taxation which is issued by the taxing officer. After filling an application
the taxing master is required to issue a notice of taxation 5 days before Hearing, the notice must provide
on the date and place of hearing
 If the party is served with the notice and did not appeal the taxing officer may proceed exparte as per
order 68 of the Advocate Remuneration order
 The Bill of cost must be accompanied with the certificate as to Folio. The certificate as to Folio is
prepared for the purpose of certifying the contents of the Bill of cost.
Document required in making an application for taxation
 The certificate as to Folio
 The Bill of cost
 Notice of lodgment of the bill of cost
Where to apply
 You apply to the court which issued the cost
Who is the taxing master
 When the bill of cost is lodged to the High Court the Registrar of the High court will be the Taxing
master
 If it is lodged in the district court or Resident magistrate court the taxing master is the Resident
magistrate in charge
Aggrieved by decision of the taxing master
 When the person has been aggrieved with the order of the Resident Magistrate in charge as the
Taxing Master, may file an application for Reference to the High Court as per order 7(1) of the
Advocate Remuneration order,
 Reference is filed by the way of chamber summons supported by an Affidavit, as per order 7(2) of
the Advocate Remuneration order
 When the one is aggrieved by the decision of the Registrar or deputy registrar of the High Court
as a taxing master may file an application for Reference to the High court, from which the Judge of
the High Court will act as the Taxing master
71
 If you are aggrieved by the decision of the single judge of the High Court you may file an application
for reference to the same high court whereby the application will be heard by three (3) judges of the
High Court as a taxing master.
Documents for Reference
 Chamber summons supported by an affidavit as per order 7 (2) of the advocate remuneration order
Application out of time
 When you are out of time to file an application for taxation, you may apply for extension of time
 Application for extension of time shall be made by way of Chamber summons supported by an Affidavit
 This two documents for extension of time should be served within Seven days before Hearing
Sample of the Bill of cost

IN THE DISTRICT COURT OF DAR – ES – SALAAM
AT KISUTU
(Arising from Civil Case No……..of 2022)
MSUMALI KIPANGA………………………. DECREE HOLDER
VERSUS
JULIUS MFUPI…………………….….. JUDGMENT DEBTOR
BILL OF COSTS
a)Cost of the case
S/N Date Particulars Amount claimed Amount taxed
1. 01.01.2022 Consultation fee TSH.100,000/=
2. 01.01.2022 Instruction fee to file land case TSH. 5,000,000,000/=
3. 02.01.2022 Fees for filling WSD TSH.50,000/=
4. 03.01.2022 Transport to court to file TSH. 50,000/=
5. 10.01.2022 Transport to court for mention TSH. 50,000/=
SUB -TOTAL(A) TSH.5,000,250,000/=
b) Disbursement
S/N Date Particulars Amount claimed Amount Taxed
1 03.01.2022 Fees for printing WSD TSH. 80,000/=
2 11.01.2022 Transport and meal for witnesses TSH.100,000/=
SUB– TOTAL (B) TSH. 180,000/=
SUB -TOTAL (A) + (B) = 5,000,250,000 + 180,000 = 5,000,430,000/=

GRAND TOTAL = 5,000,430,000
Bill taxed at……….this ……..day of……..2022
……………………….. 72
TAXING MASTER
Presented for filling……….this ……..day of……..2022
………………………..
TAXING MASTER
DRAWN AND FILED BY:
HAMIDU MUSSA (ADVOCATE)
ABC ATTORNEYS
UHURU HOUSE 3rd FLOOR, MKWAJUNI ROAD
P.O BOX 1234
DAR – ES – SALAAM
COPY TO BE SERVED UPON

JUDGMENT DEBTOR
CERTIFICATE AS FOLIO
IN THE DISTRICT COURT OF DAR – ES – SALAAM
AT KISUTU
(Arising from Civil Case No……..of 2022)
MSUMALI KIPANGA………………………. DECREE HOLDER

VERSUS
JULIUS MFUPI…………………….….. JUDGMENT DEBTOR
CERTIFICATE AS TO FOLIO
I MSUMALI KIPANGA, as an advocate of the High Court and Subordinate courts thereto, of the applicant above
mentioned DO HEREBY Certifies that the number of Folio mentioned in the attached bill of cost of the applicant is
collect to the best of my knowledge.
Dated at Dar -es – salaam this 29th day of September, 2022.
……………………………….
(ADVOCATE OF THE APPLICANT)
Presented to be filling this …….day of …………. 2022
…………………………
REGISTRAR OFFICER
QUESTIONS 73
A and B were parties in a civil suit as a plaintiff and defendant respectively, the suit was brought before the High
Court at Dar – es – salaam District and the case was decided in favor of B with an order of cost in his favor which
was issued on 1st day of march 2022. B comes to you for assistance on what he can do to realize the cost
(a) Say what B can do so to realize cost and if there is any law cite it.
(b) Upon doing what is required B successful applied for cost but on the date of hearing he got sick together
with his advocate and failed to appear, the Taxing Master dismiss the application. B comes to you for
legal opinion on what he can do and under which law
(c)
A. What B can do to realize the Cost?
In order for B to realize the cost, I will advise him as the decree holder to file an application for Bill of Costs so
that he can realize the cost, but before doing so he has to consider the followings;
a. The time limitation to file an application for bill of cost
b. Procedures to be followed so as to realize the cost
Based on the scenario given the cost was issued on 1 st march 2022 and the application for cost is issued on 29 th
September 2022 (to date). Based on Order 4 of the G.N No.264/2015 which provide for time limitation for
application of taxation to be 60 days from the date of awarding the cost. Due to this our application will be out of
time, therefore we are required to first file an application for Extension of time as per section 14 of the Law of
Limitation Act,8
An Application for Extension of time can be made by the way of Chamber Summons supported by an Affidavit.
In his affidavit he shall state the reasonable or sufficient cause, for extension of time.
After being granted an extension of time I will advise B to proceed with the application for Bill of Costs, so that
he can realize the cost
As per order 4 of the G.N. No. 264/2015, the party entitled for cost is required to make an application for taxation
by way of Bill of Cost, prepared in the manner provided for under Order 55. In making an application for bill of
cost, he shall attach the following documents Certificate of Folios, Bill of Costs and the Notice of lodging the
Bill of costs.
this application for bill of cost will be lodged to the High Court of Tanzania, Dar – es – salaam District Registry,
the court where the cost was granted. And the application will be determined by the Registrar of the High court as
the taxing master.
Therefore by following the above mentioned procedure B will be realize the fruits of cost awarded by the court to
him as the decree holder.
8
[CAP 89 R.E. 2019] 74
B. If the application for cost is dismissed by the taxation officer due to non – appearance of the decree
holder. I will advise the decree holder (B) on the following remedies;
As an advocate I will advise B to file an application for Restoration of the Bill of Costs because the Taxing
Master had not decided anything yet in respect of Taxation of Costs.
Since the case was dismissed for want of prosecution, I will borrow a leaf from the provisions of Order IX rule 3 of
the Civil Procedure,9 which provide for the remedy of restoration of suit by the plaintiff where the suit is dismissed,
the plaintiff may bring a fresh suit or he may apply to set aside the dismissal order if he satisfies the court that
there was a good cause for non – appearance.
The application for restoration of suit is made by way of Chamber Summons supported by an Affidavit. In his
Chamber Summons the decree holder (B) is supposed to show the good cause for non – appearance. As per our
scenario the reason for non – appearance was that because he and his advocate was sick thus why he did not
appear during the hearing of taxation of cost.
Therefore I will advise the applicant to apply for restoration of bill of cost, this is because the Taxing master
had not decided anything yet in respect of Taxation of costs as per the contextual meaning of Order 7 (1) of GN
No.264/2015, this is because the order require the person to make an application for reference from the decision
of the Taxing Master only when there is a complete suit in the court and the one is aggrieved by the decision by
such decision. In the scenario given the matter before the court was not yet decided as the matter was dismissed
for non appearance of the judgment debtor, having found that the applicant ought to have filed an application for
restoration instead of filling an application for reference.
As it was discussed in the case of Benjamini Mwakyala V Geofrey A. Ndalanda, 10 whereby in this case
Ebrahim J. held that the applicant is required to apply for restoration of the Bill of Costs as the Taxing Master had
not decided anything in respect of which a reference could be preferred. In this case the Judge also argued that “I
tried to pass through the Order 7(1) of the Advocate Remuneration Order, G.N. No. 264 of 2015, but I found
nothing relating to how the order for dismissal for the want of prosecution can be challenged.
Also, I will advise B to file an application to set aside the dismissal of Bill of Cost; this is because the Taxing
master has denied the applicant the Right to be heard. As it was discussed in the case of Mary Kimambo (As
the Administrator of the estate of Kezia Zebedayo Tenga V Simon Godson Macha (As the Administrator of the
estate of the late Godson Macha),11 whereby in this case Agatho J. held that “ I grant a leave to re – file a proper
Application for Bill of Costs before the court. In that way the right to be heard will be secured too.
Based on the decision of the case above I will advise B to file an application to set aside the dismissal order of
Bill of cost this is because the Taxing master for denied the applicant the Right to be heard, as he acted beyond
his law as the law require the Taxing Officer to proceed to taxation Exparte, as per Order 68 of the Advocate
Remuneration Order, 12 which require the taxing officer to proceed exparte in the default of appearance of either
or both parties or their advocates.
9
[Code, Cap 33 RE 2022]
10
Land Reference No. 6 OF 2020 (HC) at Mbeya.
11
Taxation Reference No. 01 of 2021 (HC) at Tanga
12
G.N. No. 264 of 2015 75
APPEAL, REVISION, REFERENCE AND REVIEW
APPEAL
An Appeal is the judicial examination by the superior court over the decision of the inferior court.
 An appeal consider both substance and procedure i.e. grounds of appeal can be based on the substance
of the court or on the procedure which are followed or not followed
 It is exercised/ done by the superior court and it is initiated by parties to the case.
 Under the court hierarchy; appeals from the Primary court go to the District court, appeal from the
District court and Resident Magistrate court go to the High Court, appeal from the High Court or
Resident Magistrate with extended jurisdiction go to the Court of Appeal.
NOTE: The Resident Magistrate court does not have appellate and revision jurisdiction. So you can not
appeal from the Primary Court to the Resident Magistrate Court.
In Zanzibar there is the PC and DC so appeals from the PC go to the DC and to the Regional court (in
Zanzibar there is no Resident Magistrate court) then from the Regional court to the High Court of Zanzibar
then the Court of appeal of Tanzania
 The Court of appeal of Tanzania does not have the same power/ jurisdiction as it is in Tanzania. The
jurisdiction of the CAT in Zanzibar is narrow in Zanzibar there is matters end in the High court of
Zanzibar.
 The constitution of Zanzibar gives power to the Representative Parliament of Zanzibar to decide/
make choice on matters to go the Court of appeal of Tanzania.
Procedure of Appeal from the PC or Dc & RMC to the High Court

 Appeals from the PC go to the DC and are governed by section 20 of the Magistrate Court Act,
 Also there is the G.N No. 312 which is the Civil Procedure (Appeal and proceedings originated from the
Primary court rules of 1964.
 Appeals from PC go to the DC and the time limitation is 30 days.
 Appeals from the PC are governed by the Magistrate Court Act and the Civil Procedure (Appeal and
proceedings originated from the Primary court rules of 1964.
Documents required
 Petition of Appeal as per section 20 (3) of the MCA
 Only one document is required
Appeal out of time

 When a person is rate to lodge/file an appeal out of time he or she is required to make an application for
extension of time.
 Section 20(4)(a) of the Magistrate court act, empowers the Primary Court to extend time to lodge an
appeal.
Documents required
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 Chamber summons supported by an Affidavit and Statement of ground of Appeal ( the statement of
ground of appeal is the requirement from Civil Procedure (Appeal and proceedings originated from the
Primary court rules of 1964)
 The documents are lodged to the District court.
Appeals from the District court to the High Court.

 When a person is appealing from District Court to the High Court. The procedure depends on whether
the District court is exercising Appellate or revision or original jurisdiction over matter started from
Primary court the procedure will be governed by the Magistrate Court Act and the Civil Procedure
(Appeal and proceedings originated from the Primary court) rules of 1964
Document required
 An appeal from the DC to the HC will be by way of Petition.
 Section 25(1) of the Magistrate court act, provide for time limitation of appeal to be 30 days
 The Petition of appeal must be accompanied by certified copies of judgment, decree
 The petition will be lodged in the District Court and the district court will file the application to the High
Court.
 This is when the District court is exercising Appellate jurisdiction from the matter originating from the
Primary court.
Appeal out of time

 When a person is rate to lodge/file an appeal out of time he or she is required to make an application for
extension of time.
Document required for filing an application out of time

Appeal from the District Court or Resident Magistrate Court to the High Court.
 This is when the DC or RMC is exercising original jurisdiction
 Appeal go to the HC and is regulated by the Civil Procedure Code and the law of Limitations Act
 Order XXXIX and Section 70 of the CPC
 Appeal will be lodged within 90 days as per Part 2 of law of Limitations Act
Documents for Appeal

 Memorandum of Appeal, which will be filed within 90 days as per Order XXXIX of CPC
 The memorandum of Appeal will be lodged to the High Court
 The CPC does not provide the limitations of time and due to that we look into the law of Limitations act at
part 2 of the law which provide for 90 days time for filling the memorandum
 The memorandum of Appeal will be accompanied by the Certified copy of judgment, decree and
Proceedings.
Memorandum & Petition of appeal

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Are written document which initiate an appeal in the superior court Mainly they contain grounds for Appeal, relief
and remedies which are thought by part intend to appeal.
 The memorandum of Appeal, is the document filed to initiate an appeal from DC or RMC to the High
Court
 Petition of appeal, is the document lodged to initiate Proceeding from DC to High Court
Example of the Memorandum of Appeal

(DAR – ES – SALAAM DISTRICT REGISTRY)
AT DAR – ES – SALAAM
CIVIL APPEAL NO …….OF 2022
(Originating from the Judgment and Decree of the District court of kinondoni at kinondoni as per Hon. Hamidu
RM drivers on 29th September 2021)
JUMA FILIMBI ……………………………………APPELLANT
VERSUS
MATOFALI JOGOO ……………………………RESPONDENT
MEMORANDUM OF APPPEAL
The Appellant above named being aggrieved by the judgment and decree of the District Court of Kinondoni at
Kinondoni in civil case No. 20 of 2022 delivered on 29 th September 2022 as per Hon. Hamidu RM. DO HEREBY
APPEAL to this honorable court against the whole Judgment and decree based on the following grounds;
1. That, the learned trial magistrate erred in law by entertaining the case which was time barred
2. That, the learned trial magistrate erred in law and fact for failure to evaluate properly the evidence of PW
1 thereby arriving at an erroneous conclusion.
WHEREFORE the Appellant prays that this honorable court to quash and set aside the judgment and decree
in civil case No. 20 of 2022 of the Primary court of Kinondoni at Kinondoni which was delivered on 29 th
September 2022 as per Hon. Hamidu RM and with cost of this appeal.
Dated at Dar – es – salaam this………..day of…….…..20……
……………………..
ADVOCATE
Presented for filling in the court this……day of……….20…..
Drawn and filled by;
ABASI M. ISMAIL ( Advocate)
ABC Attorney
P.O Box 1234
78
Dar – es – Salaam
Copies to be Served Upon;
Defendant
NOTE:
THE PROCEDURES OF APPEALS TO THE HIGH COURT WHEN CASES ORIGINATING FROM THE
PRIMARY COURT.
The appeals to the High Court against the decisions of the District Courts for proceedings Originated from the
Primary Courts are preferred by way of the Petition of Appeal. This is provided under Section 25(3) of the
Magistrates` Courts Act and Rule 4(1) of the Civil Procedure (Appeals in Proceedings Originating in
Primary Courts) Rules of 1964. The Petition of Appeal must set out clearly the grounds of Appeal, furthermore it
is very important for the Petition of Appeal to indicate prayers of the Appellant though this requirement is not
expressly provided by the Magistrates` Courts Act and the Civil Procedure (Appeals in Proceedings Originating in
Primary Courts) Rules of 1964. This requirement was stated in the case of Zacharia Milalo v Onesmo Mboma.
Moreover, Rule 4(1) of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules of 1964
demands the Petition of Appeal to be signed by the Appellant or the Advocate for the Appellant or the
Recognized agent of the Appellant if any but not by the two of them.
THE PROCEDURES OF APPEALS TO THE HIGH COURT WHEN THE CASE ORIGINATES IN THE
SUBORDINATE COURTS.
Appeal from the decision of the subordinate Courts are made by way of memorandum of appeal as provided
under Order XXXIX Rule 1(1) of the Civil Procedure Code. The memorandum of appeal must contain the
grounds of the objection to the decree appealed without argument or narration, it should also contain the relief
which the appellant is seeking from the High Court. The memorandum of appeal has to be signed by the
appellant, by his advocate if any, or by the recognized agent of the appellant but not both of them as provided
under Order XXXIX Rule 1(2) of the Civil Procedure Code
APPEAL IN THE COURT OF APPPEAL

 This appeal emanates from the High Court or from the RMC with extended Jurisdiction
 The procedure of appeal is regulated by the Appellate jurisdiction Act and the Court of Appeal rules
Note: the CPC, laws of limitation Act and the Magistrate Court Act is not applicable in Appeal to the Court
of Appeal
Procedure to Appeal to the Court of Appeal
1. Notice of appeal, appeal is initiated by lodging a notice of Appeal which is the prescribed form under the
Court of Appeal rules Form D ( Rule 83 of the Court of Appeal rules)
 The notice of appeal should be filed within 30 days from the date of decision of the HC or RMC with
extended Jurisdiction
 The notice of appeal should be lodged to the High Court but the title will be “ IN THE COURT OF
APPPEAL OF TANZANIA “
2. Formal letter to the Registrar of the HC, the formal letter requiring the certified copies of Judgment,
decree and Proceedings. This letter is sent to the Registrar of the HC after that you have 60 days to file
the memorandum of Appeal 79
3. Memorandum of Appeal, rule 93(1) of the court of Appeal rules provide for the memorandum of appeal.
Form F in the First schedule of the Court of Appeal rules provide for samples of the memorandum of
appeal
 The memorandum of appeal must be accompanied by the records of Appeal contain the judgment,
decree, proceedings, pleadings and all documents which are in the court file
4. Written Submission of defense, under rule 106 of the court of Appeal rules, the written Submission
should be lodged within 60 days from the date of filing Memorandum of Appeal and record of appeal
5. Written submission by the respondent within 30 days to file reply from the date of receiving a copy of
Appellant written submission.
6. Filing Authorities, Both parties are required to file list of authorities not less than 40 days before
Hearing. Authorities means case laws or any other authorities you want to use even reported cases or
journals.
7. Oral hearing, this is when the parties appeal before the panel of justice of Appeal. Each side is given 30
minutes to do oral hearing
 Oral hearing is optional. A person my plea to rely on his written submission. The court of appeals are
allowed to ask the part who want to rely on the written submission to make some clarification on a certain
issues.
NOTE: Any document you file you must save upon the other party within 14 days otherwise the application will be
to struck out.
 If you fail to do so your appeal will be struck out for failure to abide the law
 In all applications you are supposed to file and submit Eight (8) copies
Appeal to the Court of Appeal out of time

 If you are rate to file an appeal you may file an application for extension of time. Either in the HC or CA by
showing a good cause on why you delayed.
 Section 11 of the Appellant Jurisdiction Act,
 If the HC did not grant extension of time you may apply to the CAT for extension of time by filling the
Notice of motion supported by an Affidavit as per
Appeal from the DC or RMC – HC – in applying for extension of time the law applicable is the CPC and in
applying for extension of time the law applicable is the Law of limitation Act
Appeal from the DC to HC for extension of time, the law applicable is the CPC. And the law applicable is the
Law of limitation Act as per Section 14 of the law of limitation Act
NOTE: the law of limitation Act does not apply to the Court of Appeal in the CA use the Appellant Jurisdiction Act
and Court of Appeal rules. Section 11 of the AJA
 In extension of time you first start in the Matter from DC or RMC and if the extension of time is denied you
will go to the CA
- If the HC does not grant an extension of time you will make an application to the CA
Document required to apply for extension of time to the CA

 Notice of motion and an affidavit
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Section 5(1)(a)(b)(c)(d) of the Appellate jurisdiction Act, provide that there are some decision on the HC where
person can only appeal with the leave of the HC or CA
REVISION
Revision is the power of higher courts to call for and examine the record of an inferior court for
the purpose of satisfying as to the correctness, legality or propriety of any finding, sentence or
order recorded, imposed or passed by such inferior court and as to the regularity of any
proceedings of such court.
It is not a substantive right of the parties but is a mere privilege granted to them. The higher
court’s interference while exercising revisional powers must be limited to correction of errors of
jurisdiction or non-compliance of any statutory provisions of law and interference must not be on
merits.
 If the matter is in the DC or RMC revision can be done by the High Court. Also if the
matter is in the HC revision can be applied to the Court of Appeal
 It is governed by Section 25 of the Magistrate Court Act, Section 78 of the CPC, The
Appellate jurisdiction Act
 The superior court have power to conduct revision over the lower court
 It can be initiated by any person who is aggrieved by the decision of the lower court
 Any person who has an interest in a certain matter can apply for revision to the higher
court against decision of the lower court
 The court with Higher Jurisdiction have power to check or supervise on the decision of the
lower court
Example Currently in Iringa region there is the decision of the district court on which craft,
from which the lower court convict a person five years imprisonment for witchcraft. Based
on that decision the High Court of Tanzania at Iringa District Registry call records of the
case and make revision on the proceeding and ordered that the accused person to be
acquitted
 Revision can be done even if the court have not passed any Judgment i.e even if the
proceedings have not come to an end or after delivery of Judgment
 The court of resident magistrate do not have revision power over the district court
however the Resident Magistrate in charge have got power to call the record from another
Resident Magistrate or District court and consider their appropriateness and if the
Residents magistrate in charge found that there are some illegalities he may transfer
the file to the High Court because he has nothing to do with them
 In Revision the lower court do not consider the merit of the lower court but what they
consider is procedural irregularities
Section 22(1) of the Magistrates Court Act, provide that the District Court mat call and
examine the decision of the Primary Court 81
In Case of the District Court, revision can be done by the High Court, as per Section 43(2) of
the Magistrate Court Act
In case of High Court, the Revision can be done by the Court of Appeal , as per S 4(2) of the
Appellate jurisdiction Act
In case of Court of Appeal, the revision can be done by the court of appeal. As per Rule 66(1)
of the Court of Appeal rules provide that the court of Appeal may review it’s Judgment or order
NB: You can only Apply for Revision only if there is no Right to Appeal
Documents required for filling revision
 In the lower court it is initiated by way of Chamber summons supported by an Affidavit
 In your Affidavit you have to narrate some facts which show illegalities like lack of
jurisdiction, procedural irregularities. Also you have to show grounds for revision as per
Section 79 (1), (a)(b) and (c) of the CPC
Time Limitation to file revision
 The law of limitation Act, provide for 60 days to file for revision
REVIEW
 It’s a remedy which is exercised by the same court through its own decision and make
correction or changes in it it’s done by the same trial court.
 Review means to look once again and the rationale behind of granting review is of a
judgment is Reconsideration of the same matter, by the same judge and certain condition.
 Review is one of the exception we have to general rule of “funtus officio” which means
that once a court makes a decision it ceases to have any power over it.
 The law governing proviso is under section 78 of the CPC and Order XLII. Exception to
the funtus officio rule.
 Functus officio rule is a principle is general rule which has it exception and its exception
is known as the “Slip Rule” or “Lapsus calami” or “lapsus linguae”.
 This rule is provided for by Section 96 of the Civil Procedure Code and proviso to Rule
53(3) of the Magistrates’ Courts (Civil Procedure in Primary Court) Rule of 1983.
 Section 96 of the Civil Procedure Code states that, “Clerical or arithmetical mistakes in
judgments, decrees or Orders, or errors arising therein from any accidental slip or
omission may, at any time, be corrected by the court either of its own motion or on the
application of any of the parties”.
 The slip rule provides that, the Magistrate or Judge who has written the judgment is
allowed to correct clerical, typographical and arithmetical errors on already written, dated
and signed judgment.
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 Section 78 of the CPC and Order 42 of the CPC provides for review
 It is the process whereby the court go through it is own decision and look or examine it is
correctness
 This is done where in the judgment there are some mistakes need to be collected.
Document required for review
 Review is an application as per Order 42 of the CPC it is done by the Memorandum of
Review
 In your Affidavit you will write “ Miscellaneous Civil Application “
 The Memorandum of Review is the same as the Memorandum of Appeals
 The Time Limitation is 30 days as per the law of limitation Act
REFERENCE
The underlying object for the provision for reference is to enable subordinate courts to obtain in
non-appealable cases the opinion of the High Court in the absence of a question of law and
thereby avoid the commission of an error which could not be remedied later on.
 Such provision also ensures that the validity of a legislative provision (Act, Ordinance or
Regulation) should be interpreted and decided by the highest court in the State.
 Section 77 of the Civil Procedure code, empowers a subordinate court to state a case and
refer the same for the opinion of the High Court. Such an opinion can be sought when the
court itself feels some doubt about a question of law.
 The High Court may make such order thereon as it thinks fit. Such opinion can be sought
by a court when the court trying a suit, appeal or execution proceedings entertains
reasonable doubt about a question of law.
The remedy of Reference is applied in the following areas
a. Taxation of Bill of cost
 Is the Remedy used to challenge the decision of the Taxing Master. Under the
Advocate Remuneration order. It is done by the way of Chamber summons
supported by an Affidavit .
b. In the Court of Appeal
 It is Remedy of challenging a decision of a single justice of Appeal by panel of
justice 3 Justice of Appeal.
 Example a single judge denied the application for extension of time, in this you
may file an application for reference to the 3 Justice of Appeal.
c. The subordinate court may make an application for reference to the High Court when the
court itself feels some doubt about a question of law
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 The magistrate will state the facts before him and difficulties he face with and send
the application to the High Court so that the High Court can guide or direct him on
what to do.
 Reference always made by the court but the party may file an application for
reference on a matter
Power of the High Court in reference

 The High Court may on reference return the case for amendment, or alter, cancel or set
aside any decree or order which the court making the reference has passed or made, and
make such order as it thinks fit. This provision shows that when the High Court hears a
reference it acts like a court of appeal.
PRACTICAL ASPECTS IN HANDLING LABOR DISPUTE

Time Limitation to file labor case
 30 days is the time limit to lodge an application for labor
Who can represent a person in labor dispute
 In the Commission for Mediation and Arbitration an advocate or non Advocate can
represent a person
Qn; What procedure to take in labor dispute so as to help a person who have been wrongful
terminated from employment
 In this you will ask your client on if there is any reasons for termination
 Ask on procedures taken by the employee after termination
 Advise your client on where you will first take the Proceeding. Whereby in this dispute you
will go the CMA
Necessary documents to institute proceedings in the CMA
 Fill the CMA No. 1. It is the prescribed form found under the Commission for Mediation
and Arbitration Rules
 The CMA Rules is just as a “plaint” you can not institute any labor proceeding without it.
 After writing the CMA form No. 1 duplicate it with 3 copies. One of it send to the CMA, one
to the adverse party and remain with one document
 Make sure that the documents are signed
 Create your client file
What if the application is out of time
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The question here is that , how can you go to court for labor if the client approaching you at the
time when the time to file an application is over
 Apply for Condornation. It is an application for extension of time
How to make an application for Condornation
The application is made by attaching four components which namely
 Form Number 1, Form Number 2( Application for Condornation), Notice of Application
( Rule 29(2) )together with Affidavit ( Rule 29(4) of the G.N 64.
NB; in case you oppose fill the notice of Intention of Opposition by Counter Affidavit
 The CMA will open the file and appoint the mediator, the summons will be given and
arrangement of date of hearing
On the date of hearing
The hearing is done through Mediation process. Rule 9 of the G.N No. 67 provide for stages of
mediation.
Stages of mediation
1. Introduction
Introduction is done by
 The Colum introduce itself e.g. Before Hon. Hamidu M. M, Mediator.
 After introduction of the Colum, parties and their Advocates also introduce themselves and
if they are unrepresented parties introduce themselves.
 After introduction the Mediator determine the language used. It is for the parties
themselves to choose the language which is to be used during mediation
 If the mediator have a conflict of interest the mediator have to declare
 Lastly the mediator will explain advantage of mediation to parties like it save time,
amicable settlement of dispute, parties autonomy, no legal technicality
2. Information gathering ( Hearing)

 The mediator will pass through Form No. 1
 Also he may allow the parties to clarify on their cases
 The mediator will pose questions to parties to know the reason and area of the dispute
 It’s through this area of dispute you will get the issues.
 What if the parties fail to settle
Hearing session ( mediation sessions)
a. First joint session. In this stage all parties are brought together and discuss on
the issue. If this stage fail the mediator conduct a separate session
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b. Separate session. In this the mediator call one party after another. In this the
mediator should be careful in sedimentation.
 The good mediator must say “ I understand both parties interest that the
Plaintiff claim…… if the defendant deny the claim. So I would like to talk to
you both but separately and then I will talk to the other party.
c. Final joint session. In this stage the mediator bring all parties.
 The mediator provide the standing of both parties and if they agree together
it mean that the mediation is successful
 If they disagree it mean that the mediation have failed
d. Conclusion. In this the mediator fill the Form No. 6 the Certificate of settlement or
Non settlement
 If they agree fill the Certificate of settlement and if they disagree fill the
Certificate of non settlement
 Lastly, fill form No. 7 in this form fill all things agreed by parties to the
dispute
 The parties sign the documents
NOTE; For all other dispute regarding unfair termination other than termination you can file the
application within 60 days as per rule 10(1) &(2) of the G.N No. 67
What if parties fail to agree on mediation
 If the parties fail to agree the Certificate of settlement will read as a “ THE CERTIFICATE
OF NON – SETTLEMENT “ which is Form No. 7 of the CMA forms
 The copies will be sent to both parties
 The Form No. 8 titled “ Notice to refer the dispute to Arbitration” will be filled attached
together with the Certificate of Non settlement i.e Form No. 7
 The application will be send to the CMA for mediation. The CMA will appoint the Arbitrator
 Summons will be issued and date for hearing is settled
Pecuniary Jurisdiction of the CMA
 The CMA has unlimited pecuniary Jurisdiction. It has no limit
ARBITRATION PROCEDURE
There are five Arbitration procedures which is provided under Rule 22 of G. N No. 67 of the GN
No. 67 of 2007.
Arbitration procedures
a. Introduction
 At this stage the Arbitrator will introduce the column, the parties introduce themselves,
determination of language to be used, declaration of conflict of interest 86
b. Open statement and narrowing of issues
 After introduction the Arbitrator will order both parties to file open statement like whether
the reason for termination was fail, to what relief was the parties entitled, whether the
respondent follow the procedure
 The mediator will order the parties to file list of documents entitled to rely upon like
termination letter, disciplinary procedure, minutes
 Both document will be served to both parties
c. Evidence stage (Hearing)
 Where the parties are represented Cross Examination, Examination in Chief and Re –
Examination and tendering of documents
d. Closing Argument ( argument stage)
 In normal Proceeding it’s called Final submission
e. Award
 Section 88(11) of the Employment and Labor Relation Act
How to challenge an arbitral awards
 The Arbitrator award is not appealable, it is subject Revision as per Section 91 of the
Employment and Labor Relation Act
 Section 91 of the Employment and Labor Relation Act provides on how to challenge the
Arbitrator award
 The Arbitrator award can be challenged on procedural irregularities
 Section 7(8) of the Employment and Labor Relation Act provide that the employee shall
prove
 Section 16 of the ELRA make mandatory for the employer to produce or give contract to
the employee
 Section 61 of the Employment labor and Relation Act provide for the presumption of
employment. It provide for control and organization test.
Enforcement of Arbitrator award
 An arbitral award can be enforced in the High Court as the decree.
NOTE; The CMA has no power to determine dispute over the civil servants.
 The public servant have to go to the public service commission
 The application to the public service commission go by the way of revision
 If you are aggrieved go to the president
SUIT BEFORE PRIMARY COURTS

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Laws governing Civil Proceedings in Primary Court
 The Constitution of the United Republic of Tanzania
 The Magistrate Court Act,2019
 Written law Miscellaneous Amendment Act, No.3 of 2021
 MCA ( Civil Procedure in Primary Court) Rules of 1964.
 Magistrate Court ( Approved form for Primary Court) Rules of 2020 G.N No. 943
 Magistrate Court ( Limitation of Proceeding and Customary laws)
Institution of suit in Primary Court
 The governing law is Magistrate court (civil procedure in primary court) Rules of 1983
 in the primary court suits are instituted using informal procedure this means that suits are
instituted without any documents, but they are instituted either orally or by informal writing
called application under rule 15(1).
Civil Jurisdiction of Primary Courts
 The provisions relating to the jurisdiction of primary courts in civil proceedings are set out
in sections 18 (1), 19 (1) (b) and 19 (1) (c) of the Magistrates’ Courts Act and in the
Fourth and Fifth Schedules to the Act.
 Section 20 of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016
amended section 18 of the Magistrates Act and set the pecuniary Jurisdiction of the
Primary court to be thirty to fifty millions Tanzania shillings.
 Further to that, a primary court’s civil jurisdiction extends to proceedings where the law
applicable is customary law or Islamic law (but there are certain exceptions which are set
out in the proviso to section 18 (1) (a) (i));
 proceedings for the recovery of civil debts, rent or interest due to the Republic, the
Government, a District Council, etc.;
 administration of deceased estates where the Chief Justice has conferred such
jurisdiction:
 and all proceedings in respect of which jurisdiction is conferred by any other law.
Powers of Primary Courts in Civil Proceedings
 The powers of a primary court in civil proceedings are set out in paragraph 3 of the Fourth
Schedule to the Magistrates’ Courts Act.
A primary court in civil proceedings may:-
 award any amount claimed;
 Award compensation;
 Order the recovery of possession of land (note that currently the Primary Court has no
longer such power);
 Order the restitution of any property;
88
 Order the specific performance of any contract;
 Make orders in the nature of an injunction, both mandatory and prohibitive (i.e. that
certain things shall or shall not be done);
 Order the payment of any costs and expenses incurred by a successful party or his
witnesses;
 Promote reconciliation and encourage and facilitate the settlement, in an amicable way,
of the proceedings on such terms as are just:
 Make any other order which the justice of the case may require.
Establishment of Primary Court
 It is established in districts. In every district there is only one Primary court. But there are
so many branches of Primary court in the district
 Section 3 of the Magistrate Court Act provide for the establishment of Primary Courts
 PC is duly constituted when it is resided by the Resident Magistrates
 If the matter involve customary or Islamic law, the Primary Court is presided by the
Resident Magistrate
Civil Proceedings in Primary Courts
 All proceedings in Primary court are governed by the Primary Court (Civil Procedure in
Primary Court) Rules
 All Application in primary court are initiated by filling the form which is in the Primary
Court (Civil Procedure in Primary Court) Rules. When a person have an issue before
the court, he or she is required to go to the court and Court clerk will fill form
 In accordance with rule 5 all applications to primary courts may be made in writing and
must be signed by the applicant.
 Applications may also be made orally, in which case the substance of the application
shall be recorded by the magistrate or the court clerk, and the applications as recorded
must be signed by the magistrate or court clerk, as the case may be, and the applicant.
 In accordance with rule 7 all summonses, notices, orders, warrants and other processes
issued by the court must be sealed with the seal or stamp of the court.
Institution and withdrawal of Proceedings.
The procedure for the institution and withdrawal of civil proceedings is set out in rules 15 and 16.
A civil proceeding is instituted by an application (the plaint) which must specify:-
 The name of the court in which the proceedings is brought;
 The name, occupation and place of residence or place of business of the claimant;
 The name, occupation and place of residence or place of business of the defendant, so far
as they can be ascertained;
 the facts on which the claim is based and when and where it arose;
 The relief claimed; and 89
 Where property is claimed, the value of the property. Court
Under the provisions of rule 16, the claimant may withdraw the proceedings or abandon part of
his claim at any time after the institution of a proceedings, and if he does so he is not entitled to
institute any fresh proceedings unless at the time of such withdrawal or abandonment he has
obtained the leave of the court to institute a fresh proceeding. The court should only grant such
leave for a good and sufficient reason.
Jurisdictions of Primary Courts
 Section 18 of the MCA
 The pecuniary Jurisdiction of Primary Court Does not exceed 50 million
 It can handle cases on which the amount of money does not exceed 50 million
 Rule 15 of the Primary Court (Civil procedure) rules
 Rule 16 provide that at any time you may withdraw the application if the pecuniary
Jurisdiction of the court is above the level
Temporary Injunction in primary court
 Rule 17 of The Magistrates’ Courts (Civil Procedure in Primary Courts) Rules provide
that the application for temporary Injunction is done Orally to the court and the court can
hear the application exparte.
 Aggrieved person will go to the court and show the good cause for such an application
Procedure at hearing of Civil Proceedings
 The procedure to be followed at the hearing of civil proceedings is set out in rules 44 to 55
Appearance and consequence of Non – Non appearance (Rule 20 – 30)
Appearance of parties
 When the defendant get the summons he is supposed to appear before the court, he has
to appear with evidences and witnesses for hearing
 In the same date for hearing the case can be decided there is no time to call witnesses
Non – Appearance of parties
What should be done if only one party appears or both parties do not appear? In a civil case
there are three possibilities:-
 Both the plaintiff and defendant may be absent (rule 22 of the Primary Courts Civil
Procedure Rules);
 The plaintiff may be absent, with the defendant present (rules 24, 25 and 28 of the
Primary Courts Civil Procedure Rules),
 The defendant may be absent, with the plaintiff present (rules 23 and 26 of the Primary
Courts Civil Procedure Rules).
90
 If (1) occurs, and the plaintiff has not sent word to the court to explain to the satisfaction
of the court why he cannot attend or send a representative on the day and at the time set
down for hearing, the court should dismiss the proceedings, and the plaintiff must then
pay the fees a second time if he wishes the case to proceed. If the plaintiff has sent an
explanation to the satisfaction of the court for his nonappearance to the court, the court
may adjourn the hearing to another day, and shall direct that notice of such adjourned
hearing be served on the parties.
 If (2) occurs, and the plaintiff has not sent word to the court to explain to the satisfaction
of the court why he cannot attend or send a representative on the day and at the time set
down for the hearing, the court should dismiss the proceeding, unless there are
exceptional circumstances which could have prevented the attendance of the plaintiff,
e.g. the wash away of a road or heavy floods, or unless, the defendant admits the claim
or any part thereof, in which case the court should make such order as may be
appropriate. If the proceedings has been dismissed because of the non-appearance of
the plaintiff, the plaintiff may, subject to any law of limitation, bring a fresh suit on payment
of fees a second time, or he may apply for an order to set aside the dismissal, and if the
court considers that the plaintiff has produced good reasons, it may set aside the
dismissal of the proceeding and appoint a day for the hearing. If the plaintiff has sent to
the court an explanation to the satisfaction of the court for his non-appearance, the court
may adjourn the hearing to another day, and shall direct that notice of such adjourned
hearing be served on the parties, Rule 25 lays down the procedure to be followed in the
case of non-attendance of one or more of several plaintiffs.
 If (3) occurs and the whereabouts of the defendant are not known the court may adjourn
the case while news of him is being sought. If a long time has elapsed, e.g. perhaps three
months, or more, and it still cannot be found out where the defendant is, the court may
strike out the case.
Rule 26 lays down the procedure to be followed in the case of non appearance of one or
more of several defendants.
Summons of witnesses
 Rule 32,34 and 35 provides for summons of witnesses
 Where the witness fail to comply with the summons he can be arrested and taken to court
as a civil prisoner
Taking Evidence (Rule 42,43)
 In Primary Court, the court may record evidence in behalf of another court e.g. a person
committed an offence in Arusha and fled to Dar es salaam and arrested in Dar es salaam
for the offense committed, in this he can be taken to any primary court in Dar es salaam
and the court can take evidence whereby later such person and his evidence will be
transferred to Arusha
91
Procedure of hearing
 Rule 44, 47 and 48 provide for framing of issues on the first date of hearing. Issues will be
framed on the first day of hearing
Succession of Magistrate
 One Magistrate may act on evidence recorded by another magistrate
Decision Making
 Rule 52 & 55 provide that After listening to evidence the court may provide it is decision
 If the party agree out of the court may go before the magistrate and record the
Compromise
 After the decision the court will ask the one who loss the case on means of payment so as
to satisfy the court decree and the court may discuss on means of payment
Execution
 The provisions covering the enforcement of awards and orders for the payment of money
in civil proceedings are set out in rules 56 to 61.
 The provisions regarding attachment (rules 62 to 71) and sale in execution (rule 72 to 85)
are explained in paragraph 18 and 19 respectively.
 Rule 86 provide that the execution against Company may be transferred to the District
Court
 Court brokers do not appear to the Primary Court. When the matter is taken to the DC the
DC will appoint the Court Broker
 In Primary Court, the local government Authorities are the one to make execution
 The Second Schedule to the Primary Courts Civil Procedure Rules. It should be noted that
where a warrant is executed by an officer of a Local Authority, the charges should be
credited to the local treasury concerned.
 Once the property have been attached you may apply to the court so that such property to
be released by the court
Sale in execution
 The provisions regarding sale of property in execution are set out in rules 72 to 85.
 Rule 85 provide for sale that the court may suspend sale if the person pay the amount
claimed.
Objection Proceedings
 The property must not belong to the third party. Third parties are allowed to make an
application in the court for objection proceedings
Appeal
92
 Section 20 of the Magistrate Court Act, which provides that all decisions of the PC is
appealable to the District Court.
 If there Procedural irregularities you may apply for revision as per Section 22 of the
Magistrate Court Act,
Appearance of Advocates to Primary Court

 The Advocates are allowed to appear to the Primary court only if the Presiding Magistrate
is the Resident Magistrates.
93

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COMMENCEMENT OF CIVIL SUIT IN TANZANIA

”I am instructed by Mr. A of ……………………… to demand from you the sum of Tshs.

Sample of the Demand letter

NTINGINYA & CO.ADVOCATES

Our Ref: No.GCA/L/11/13/2017

Kindly refer to the heading above,

DRAWN AND PREDENTED BY

COPIES TO BE SEVED UPON

PLEADING (Order VI)

PLAINT (Order VII)

Contents of a plaint (Order VII Rule 1 of CPC)

THE UNITED REPUBLIC OF TANZANIA

JUMA MKUU............................................................ PLAINTIFF

ZUMBA CONSTRUCTION LTD...............................................DEFENDANT

The Plaintiff above named states as follows:-

DATED at DAR – ES - SALAAM this .......... day of --------------2022

Verified at DAR – ES - SALAAM this...........day of ….........2022

DRAWN AND FILED BY:

WRITTEN STATEMENT OF DEFENCE

SAMPLE OF A WRITTEN STATEMENT OF DEFENCE

THE UNITED REPUBLIC OF TANZANIA

The defendant herein states as follows;-

PRINCIPLE OFFICER OF THE DEFENDANT

DULY AUTHORIZED TO SIGN AND ABLE

TO DEPOSE TO THE FACTS OF THE CASE.

ADVOCATE FOR THE DEFENDANT

Verified at MWANZA this...........day of ….........2022

Presented for filing this .......... day of ...........,2022

COPY TO BE SERVED UPON:

SAIDI KHAMISI (ADVOCATE)

SAMPLE OF NOTICE OF PRELIMINARY OBJECTION

THE UNITED REPUBLIC OF TANZANIA

The defendant herein states as follows;-

NOTICE OF PRELIMINARY OBJECTION

IN THE ALTERNATIVE BUT WITHOUT PREJUDICE TO THE PRELIMINARY OBJECTION

The defendant shall state as follows;

PRINCIPLE OFFICER OF THE DEFENDANT

DULY AUTHORIZED TO SIGN AND ABLE

TO DEPOSE TO THE FACTS OF THE CASE.

ADVOCATE FOR THE DEFENDANT

Verified at MWANZA this...........day of ….........2022

Presented for filing this .......... day of ...........,2022

COPY TO BE SERVED UPON:

SAIDI KHAMISI (ADVOCATE)

MORE EXAMPLES ON PLEADINGS

Date by the plaintiff on this……..day of………..2009

Presented for filling on…………this day of……….2009

DRAWN AND FILED BY

IN THE HIGH COURT OF TANZANIA

6. That the contents of paragraph 11 and 12 are noted.

WHEREFORE the defendants prays for

IN THE HIGH COURT OF TANZANIA

REPLY TO THE WRITTEN STATEMENT OF DEFENCE

ON THE PRELIMINARY POINT OF OBJECTION.

WITHOUT PREJUDICE to the aforesaid, the plaintiff states as follows;-

5. That the contents of paragraph 6 are noted as well.

ON THE COUNTER CLAIM .

Dated at Mbeya this ……… day of……………….2009

Determination of interim Application arise during Pleading

Conditions for the First Pre-Trial Conference

1. The Plaintiff filed a Plaint.

PROCEDURE FOR THE PRE-TRIAL CONFERENCE