JUDGEMENT AND EXECUTION OF DECREES IN TANZANIA UNDER THE CIVIL

PROCEDURE.

AGGREY ENOCK MUONGI 1 AND YOHANA MGOBI ANDREW2

Judgement

This is a court decision and the reasons for the decision based on the facts of the case
made at the conclusion of the trial. See Order XXI of the Civil Procedure Code, which
contains, but is not limited to, the date the document was handed, the signature of
the magistrate or judge, and a summary of the evidence or facts for both parties.
Concerns concerning the case and its resolution NB: A decree is issued as a result of
the judgement. In court, you will be given a decree stating which orders must be
carried out.

Ruling (Preliminary Judgement)

Is the court’s decision on a legal subject during the process of trial, either on a
preliminary issue, matter, or side issue. It is made in interlocutory applications such
as interim injunction, attachment before judgement, and security for costs, etc. A
ruling can also be issued in cases involving a stay of execution. When you rule on
execution, you get the drawn order, which contains the orders to be carried out.

A decree

is a section of a judgement that announces the legal consequences of the facts

discovered in the case and orders that the court’s decision (judgement) be followed
out.In other terms, a decree is the authorization part of a judgement.The contents of
the decree (see section 3 for a definition of the term decree and Order XX Rule 6 of
the Civil Procedure Code) include, but are not limited to, the name of the court that
passed it, the number of the case, the names or descriptions of the parties to the

1 Certificate in Law at the University of Dar es Salaam, Diploma in Law at the Institute of Judicial
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court, the particulars of the claim, the reliefs granted by the court, the prayer made
in the plaint (what was prayed in the plaint and the court’s decision)

Finally, but not least, it must clearly state the amount if any of the court in the suit
to be paid, in other words, it must contain an order that “the case is coming for
judgement and decree the court hereby orders as follows the 1st and 2nd plaintiffs the
court is ordered to be paid 3 Millions due to the defendant’s negligence acts.”To see
examples of the contents of a judgment and decree, go to Civil procedure
(Approved forms).

Types of Judgement

Declaratory Judgement

This is a legally binding decision that establishes the ririgjt and other legal
relationships of the parties without providing for or directing enforcement. In other
words, it is a type of ruling that is simply proclaimed, with no call for particular
performance, to determine whether or not the plaintiff is a winner.see Civil Procedure
Code Section 7(2)

Consent Judgement

This is a type of ruling that occurs when the parties to a civil matter or case achieve
a settlement in respect to the suit. In other words, a written agreement recorded by
parties to settle a disagreement is understood to be a consent judgement, as reflected
in consent decrees. See Civil Procedure Code Order XXXIII Rule 3.

Final Judgement

Except for the award of costs and the enforcement of the judgement, this is the
court’s ultimate decision that settles the parties’ rights and disposes of all issues in
controversy. For the substance of a final judgement, see Order XX Rule 4 of the Civil
Procedure Code, but it includes, but is not limited to, the points for determination,
conclusion on issues (findings), reasons for findings on issues, and a succinct
explanation of the case.

➢ EXECUTION OF DECREES
Execution. In other words, this is the process of enabling the decree holder to realise
his reliefs as granted in the decree, which is done by the court using the service of
the court brokers who are officers of the court directed order to go and carry out the
orders of the court, implement what was ordered by the court see Order XXI of the
Civil Procedure Code.

Which Court Can Execute Decrees

➢ Trial Court
➢ Transferee Court see sections 34,35,36 CPC and Order XXI CPC

The trail court is the court that made or passed the decision.

Transferee court is another court other than the trial court to which the decree is
sent, shared, or transmitted for the purpose of execution. It may be very necessary
and critical to transfer the decree to another court because it may happen that after
the trial court has passed the judgement or decision and the property which must be
executed against the judgement debtor is not within the jurisdiction of the court, so
the trial court may transfer such decree to a different court.

For example, the trial court is the Kinondoni resident magistrate court, which passed
the said judgement and decree; however, the judgement debtor’s properties are
located in Iringa; therefore, when the judgement holder wins the case in Kinondoni
resident magistrate court, the decree is transferred from Kinondoni resident
magistrate court to Iringa resident magistrate court in order to execute the properties.

Both transferee and transferor courts must have the same jurisdiction in so far as the
execution of the said decree is concern. Decrees are transferred downwards from the
resident magistrate court to district court to the primary court,so the decree passed
or made by the resident magistrate court is transferred to the district court outside
the region for purpose of execution so decrees can not be transferred to the court
which has no any jurisdiction to determine the matter hence execute such decree

WAYS ,METHODS OR MODES OF EXECUTION OF DECREES

The modes of decree execution are as follows:

➢ ATTACHMENT AND SALE Order XXI CPC

This is the form of decree execution in which the court instructs the court brokers to
attach the judgement debtor’s property, sell it at public auction, and then pay the
decree holder.So the court broker is told to go and attach the judgement debtor’s
possessions and sell them so that the money acquired would pay the judgement
holder.Attachment refers to the legal seizure of a person or property, or both, in order
to put it or him under the jurisdiction of a court of law.

The phrase “sale” It refers to the process of selling attached property, which occurs
when the decree holder will remain with attached property until the judgement debtor
has obeyed a court decree; if the judgement debtor refuses to comply, the decree
holder may apply to have the attached property sold to pay him. See CPC Order XXI
Rule 63 and Rule 72 of civil procedure code in main court. Should the attachment be
denied? See Section 48 of the Civil Procedure Code and Rule 58 of the Civil Procedure
Rules in Primary Court.Also, attachment removal. See CPC Order XXI Rule 54 and Rule
71 of civil procedure in main court.

Examples of attachment

By actual seizure, the actual seizure it occurs when the

Movable property is a type of agricultural output that the judgement debtor has.See
Order XXI Rule 42 of the Civil Procedure Code and Rule 55 of the Civil Procedure Code
under main court regulations, under which the property will be in the custody of the
attaching officer but may be sold if it is prone to rapid and natural deterioration. See
also Rule 66 of the Civil Procedure in the Primary Court.

By prohibitory holder see Order XXI Rule 46 and 53 of the CPC

➢ DEMOLITION

This is the mode of execution of decrees that apply to land disputes, in which the land
in dispute that is in the possession of the judgement debtor is destroyed in order to
give the decree holder vacant possession. This occurs when the land in dispute was
constructed by the judgement debtor, so if the decree holder wins the case, such
building structure that was constructed by the judgement debtor will be destroyed in
order to give the decree holder vacant possession.

➢ EVICTION

This is the form of judgement execution in regard to landlord and tenant, or the
trespasser the court order to forcibly remove the judgement debtor who is the
trespasser from the land premises and delivers vacant possession to the decree holder.

➢ RESTITUTION

This is the technique of decree execution in which the judgement debtor is ordered to
repay or restore the service that was previously withheld from the decree holder.For
example, in a lawsuit against Tanesco, the electrical service was terminated from the
decree holders’ home. The court will order Tansesco to return or restore the electricity
service to the decree holder’s premises, and after the decree holder has won, the
decree holder will go to court to execute the decree, and the court will order the
previously installed electricity service to be returned as normal and as usual as
concern.

See Order XXI Rule 31 of the CPC, which allows for the restitution of conjugal rights,
in which one spouse sues another for the conjugal rights.So the court would award
conjugal rights to a man from her wife, but a husband or a man is permitted to give
her wife a sum of money in lieu of conjugal rights to her wife. So his marital rights
against the lady are only to be restored to him.

➢ ATTACHMENT OF DEBTS/GARNISHEE ORDERS

This is the way through which the decree holder can obtain money owed to the
judgement debtor, with the money in the hands of a third party. A garnishee is held
by the third person in whose hand the money is assumed to be connected.And the
garnishee order, which instructs a third party (the garnishee) to make payment to the
decree holder instead of the judgement debtor.

In other words, it is a court order directing an entity or a person (third party) who is
holding money belonging to the judgement debtor to return the money to the court
so that it can be used to meet the judgement. So, instead of sending the money to
the decree holder, this is an order to the third party that is keeping the money.
However, that money is taken before a court of law so that it can be utilised to pay
the holder of the decree. So, instead of giving the money to the decree holder, the
court will order that the money be produced before the court and paid to the decree
holder.

Financial institutions such as banks (for example, CRDB Bank and NMB Bank) that the
court will order the amount of money belonging to the judgement debtor to be
removed from his or her account and presented before the court of law so that the
decree holder will be paid

Terms used in garnishee orders

Garnishee order nisi

This entails freezing the bank account holder’s funds so that the judgement debtor
cannot remove funds from his bank account in an amount that is adverse to the decree
holder’s claim against the judgement debtor.For example, the judgement debtor’s
bank account contains 70 million Tshs, and the sum owing by the decree holder to the
judgement debtor is 50 million Tshs.So now the court will issue a garnishee nisi order
to prevent this judgement debtor from withdrawing more than 20 million Tshs, and if
the decree holder wins the case, he will be paid his 50 million Tshs.However, a
garnishee order does not prevent money from being deposited; rather, it is an order
that restricts money from being removed.

Once a garnishee order nisi is issued, it is the bank’s responsibility to inform or notify
the judgement debtor about the issuance of the garnishee order nisi. This notification
is made by writing an email or a regular letter to the bank account holder (judgement
debtor) informing him that his account has been blocked by the bank and that he will
not be able to withdraw money from his bank account.So the client, the judgement
debtor who owns the bank account, should attend to court right away.and
demonstrate in court the reason or reasonable grounds why the garnishee order
should not be made absolute

In other words, the judgement debtor goes to the court and makes an application that
the garnishee order should not continue, and the court now has the option of either
lifting the garnishee order nisi and declaring it null and void, or continuing to issue
garnishee absolute orders.

Garnishee absolute This is a court order requiring the bank to withdraw money from
the judgement debtor’s bank account, and the amount removed will be presented
before the court of law and paid to the decree holder by the court.When a garnishee
absolute is issued, it is an order to remove money from the judgement debtor’s bank
account and bring it to court to pay the decree holder.

NB: Although garnishee orders are common law practise, the following provisions may
be invoked to resolve the matter. See section 2(3) of JALA because this is a common
law practise under JALA, section 95 CPC because it empowers the court to grant many
orders, and order XXI rule 10(2)(j)(v) CPC.

➢ ARREST AND DETENTION OF JUDGEMENT DEBTOR

At this juncture I will deeply scrunize this mode by using several decisions in different
perceptions when the decree holder invoking the mode of arrest and dention, starting
with the case of Princes shabaha Company LTD v Nic Bank Tanzania Limited
( commercial Case of 94 of 2015 where the point was point of view that for the
judgement debtor to be detained as civil prisoner he must pay the money in case
default thereof he will sent to prison, it goes mutatis mutandis with the O.XXI Rule 20
of Civil procedure Code Cap 33 R:E 2019 herein after referred as CPC .guided by the
decision of High Court in respect of the case of Peta Mhoma( as the Adimistratrix
of the estate of the late Jumanne Mhoma v Charles Hans kirenga Execution
no 76 of 2020 Mgeyekwa J observed that Before ordering the detention of the
Judgment Debtor as a civil prisoner , the applicant was required to identify the
properties of the Judgment Debtor or bank account to execute the award of this court.
He went further by saying that you can not ride two horse at once that is to mean
If the normal procedure for execution fails then the applicant can opt for the last resort
of executing the decree of this court by filing an application to detain the Judgment
Debtor in civil prison not otherwise see section 42 (a) and (b) of the Civil Procedure
Code Cap.33 [R.E 2019].
However judgement debtor may be arrested and detained for failing to comply with
the court’s order. Sections 44-47 of the CPC are relevant.However, before a warrant
of arrest is issued against the judgement debtor, the court will issue a notice
summoning him or her to appear in court to show cause why he or she should not be
imprisoned.See CPC sections 44(1), 46, and 47.

➢ EXECUTION OF DECREES AGAINST THE GOVERNMENT

When a decree holder wins a decree against the Tanzanian government, his execution
is governed by the Government Proceedings Act rather than the CPC. According to the
Government Proceedings Act, a decree against the government can only be executed
by writing a formal letter to the treasury registrar requesting payment.This formal
letter will be sent together with a certified copy of the verdict and decree that must
be implemented against the government.The treasury registrar will register the
amount to be paid in the list of government debts upon receipt of such official letter
containing the request to pay the decree holder, and this debt deriving from the
decrees will be paid in the same manner as other government debts are paid.

The government is a legal entity that can own money and properties, and all of the
government’s properties are in the name of the treasury registrar, who prepares the
list of creditors in both external and internal lists of debts and submits it to Dodoma
so that the government can locate the budget to pay.So, if you win the decree against
the government, you must wait until the money is approved by the legislature during
budget sessions.However, you cannot attach or sell government properties while
being paid money in execution of orders against the government; this is extremely
difficult and you have nothing to do since you are at the mercy of the government.

➢ REMEDIES DURING THE EXECUTION OF DECREES

The remedies accessible to the party aggrieved by the execution of a decree, of which
there are various, the application of which depends on the stage reached in the
execution of decrees.Whether the execution is complete or not(complete execution)or
whether the execution is pending or not(pending execution)
Whether the applicant or person seeking the remedy wa s a party to the decree,in
other words whether the one who is aggrieved is he or she a party to the judgement
and decree or a stranger (somebody who is interested in the suit)

The following are the remedies

Stay of execution See order XXXIX Rule 5 CPC and order XXI Rule 24 of the CPC

The aforementioned stay of execution laws apply in various instances.

Order XXXIX Rule 5 of the CPC(It involves the pending appeal or pending
revision )

This stay of execution applies if there is a pending appeal or revision and you are
requesting a stay of execution before the appellate court. So, when the judgement of
the resident magistrate court is made, the aggrieved party files an appeal with the
High Court, and when an appeal is ongoing in the High Court, the applicant files an
application to stay the execution awaiting an appeal.

Oder XXI Rule 24 of the CPC(It involves the transferee court)

Applicant for the transferee court, to which the decree was moved for execution.For
example, if the decision and decree were passed by the Kinondoni resident magistrate
court (Trial court) and transferred to the Iringa resident magistrate court (Transferee
court) for the purpose of execution, you might apply to the transferee court for a stay
of execution. The transferee court to whom the decree was sent from the trial court
for the purpose of execution.

NB:A mere pending appeal does not prevent execution unless the court orders a stay
of execution. Procedure for stay of execution pending appeal is made by way of
chamber summons supported by affidavit See Order XLIII Rule 2

Conditions must be met before a person is granted an order of stay of execution. The
conditions are similar to those of an injunction in that there must be irreparable
damage or loss, and if the stay of execution is not granted, the applicant will suffer
great irreparable damage or loss.that if a stay of execution is not granted, the
applicant would be inconvenienced more than the respondent
So, the chamber summons contains the plea for stay of execution, and the affidavit
provides the grounds or reasons for such prayer, so in the event of a stay of execution,
such affidavit shall disclose any one or more of the conditions under the stay of
execution.

SeeSthee case of Tanzania Marketing Board v Cogecot Cotton Company TLR

No63 (1997) It specifies the conditions that must be met in order for a stay of
execution to be granted, which include irreparable damage, balance of conviniency,
and the application must be filed by a party to the litigation.

➢ OBJECTION PROCEEDINGS

This is one of the remedies available against the execution of a decree under Order
XXI Rule 57 of the Civil Procedure Code, which is a remedy accessible to a third party,
a person who is not a party to the litigation but whose property has been attached in
the execution of a decision.

The judgement debtor's properties were attached by the court brokers in order to pay
the decree holder, but such properties which were attached against the judgement
debtor in order to pay the decree holder are not owned by the judgement debtor but
by a third party (objector/applicant) who makes an application by way of chamber
summons supported by affidavit to object to the attachment of his or properties which
are not owned by the judgement debtor. So the applicant, known as the objector, is
the one who files the application against both (the decree holder and the judgement
debtor).In the objection procedures, you must indicate in the affidavit that the
properties attached by the judgement debtor against the decree holder are not the
properties that were liable to be attached.

This third party or objector is not a party to the proceedings, but his property has
been attached as part of the decree's execution. A judgement reached during
objection procedures can be appealed by filing a new action with a plaint and no
revision or appeal. In the matter of Amor Habib Salum v. Hussein Bafagi, the
CAT made a ruling.The court rules that if a person is dissatisfied with the judgement
resulting from the objection processes, his only option is to file a new action, and he
has no right to appeal or ask for revision. In other words, if an objector files an
objection process and is dissatisfied with the court's ruling, he has no recourse other
than filing a new suit.Also see Order XXI Rule 62.

➢ FILLING A SUIT

This is the remedy accessible to the aggrieved party against the decree's execution,
wherein this decree is executed at the point when the execution of the decree is
complete but there is a person who is aggrieved against the execution of the decree.
Because the execution of the decree has already been finished, the only remedy is to
bring a suit. You cannot delay or stop the execution at this stage because the
execution of the decree has already been completed. There is nothing to remain or
stop.So, after the execution is complete, you cannot halt it; however, you may sue
the court broker, decree holder, or judgement debtor to have the execution set aside
by the court.So, while the execution is ongoing, you may seek objection procedures
from a third party or seek a stay of execution, but once the execution is completed,
there is nothing to delay or halt; all is gone.

In the case of AB Mashoto v HK Kavenga, the court stated that when the execution
is declared to be complete, the aggrieved party may bring a suit and not submit an
application for stay of execution or objection procedures So the execution is
considered to be complete when the decree holder receives what was executed in the
decree. If the execution was accomplished by method of attachment and sale, the
judgement debtor's possessions were previously attached and sold, and the decree
holder was paid.In the case of Tanzania Motors Services Limited and Others v
Mehar Singh t/a Thaker Singh

Asante sana