ST.

AUGUSTINE UNIVERSITY OF TANZANIA

SCHOOL OF LAW

2nd SEMESTER

2023-2024 Academic Year

TEST II MARKING GUIDE

Programme: Bachelor of Laws (LLB)

Course: Civil Procedure II

Course Code: SLW221

Date: 24th & 25th June, 2024

Venue: M13 & M15

Time Allowed: 40 minutes

Instructions to Candidates:

1. This examination consists of TWO questions which carry 20 Marks each.

2. Answer either of the TWO questions.

3. The examination is partial open. Students may refer to CLEAN and UNANNOTATED copy of any

material of their choice. TAKE NOTE THAT Lecture Notes, Smart Phones and Smart watches

are STRICTLY PROHIBITED into the examination room.

4. Candidates are urged to be brief.

1. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza at Mwanza. The Honorable Court granted all reliefs as prayed. Thereafter
SUNCHE decided to execute the decree so as to be paid a total of Twenty Million
Tanzanian Shillings (Tshs. 20,000,000/=). When the Auction was conducted CHEYO
emerged the highest Bidder. However, the said CHEYO only paid 25% of the costs and it
is a month now he hasn’t paid the remaining amount. Advice SUNCHE on the way
forward.

ANSWER: SUNCHE has to complain to the executing court. Authority is section 38 of

Civil Procedure Code (the CPC) which mandates the executing court to determine all
questions relating to execution. This can be done through an Official Letter.

2. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SUNCHE decided to execute the decree
thereof seeking for an attachment and sale of motor vehicle with registration no. T999
CEM. Surprisingly, KAPETO has emerged again and filed an application for objection
proceedings, an application that is still pending in court. Advice SUNCHE on the way
forward

ANSWER: SUNCHE has to file notice of preliminary objection on objection proceeding

preferred by KAPETO. Objection Proceeding is for the third party not judgment debtor
like KAPETO.

3. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SUNCHE decided to execute the decree
thereof as a result of which the Court issued an attachment order for motor vehicle with
registration no. T999 CEM, property of KAPETO. On the same date KAPETO sold the
attached property to CHEYO. Advice SUNCHE on the way forward

ANSWER: SUNCHE has to complain to the executing court. Authority is section 38 of

Civil Procedure Code (the CPC) which mandates the executing court to determine all
questions relating to execution. This can be done through an Official Letter.
ALTERNATIVELLY, SUNCHE may bring an application for contempt of court
proceedings against KAPETO which would allow the court to summon KAPETO to
show cause why he should not be committed to prison for going against court order.
This has to be done through use of Chamber Summons supported with an affidavit.
4. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SUNCHE decided to execute the decree
thereof as a result of which the Court issued a garnishee Order nisi against KAPETO’s
Bank Account. However, as KAPETO went to the bank to withdrawal two million for his
daughter school fees, the manager informed him that even though His bank balance
exceeds the decretal sum still he is not allowed to draw any money until he pays
SUNCHE. Advice KAPETO on the way forward

ANSWER: SUNCHE has to complain to the executing court. Authority is section 38 of

Civil Procedure Code (the CPC) which mandates the executing court to determine all
questions relating to execution. This can be done through an Official Letter.
Ordinarily, Garnishee Order nisi doe not retrain a person to access his or her excess
amount.

5. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SUNCHE decided to execute the decree
thereof as a result of which a motor vehicle with registration no. T999 CEM was
attached. Thereafter, CHEYO emerged and claimed the Car to be his, an application that
is denied by the court. Advice CHEYO on the way forward

ANSWER: ANSWER: The remedy available to CHEYO is to file a fresh suit to establish
his rights. This stem from the provisions of Order XXI Rule 62 of the Civil Procedure
Code. That is the only remedy available when an objection proceeding is preferred and
disallowed. Relevant document will be plaint against both SUNCHE & KAPETO.

6. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SUNCHE decided to execute the decree
thereof. He unsuccessfully attached KAPETO properties. Believing that KAPETO has
money but he doesn’t want to pay him SUCHE has now decided to execute the decree
by asking for arrest and detention of KAPETO but he is unaware of the procedure to be
followed. Advice SUNCHE on the way forward

ANSWER: 1. an application by Decree Holder. 2. Summoning of the Judgment Debtor

to show Cause 3. Commit as Civil Prisoner by the Court.

7. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court dismissed the suit with costs. Then, SUCHE appealed to the High
 Court of Tanzania at Mwanza which held that the Resident Magistrate Court of Mwanza
had erred in law for denying SUNCHE of his rights. The same High Court granted all
reliefs. Advice SUNCHE on where to file his application for execution

ANSWER: By virtue of section 32 (a) the Application has to be filed in the Court of First
Instance, the Resident Magistrate Court of Mwanza. SUNCHE need to identify his
mode of execution and lodge his application

8. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. KAPETO was aggrieved and he has
appealed to the High Court of Tanzania, Mwanza Sub registry. Knowing that an appeal is
not a bar to execution SUNCHE decided to execute the decree by seeking attachment
and sale of motor vehicle with registration no. T999 CEM an application that is still
pending in court. Advice KAPETO on the way forward

ANSWER: The way forward for KAPETO is to file an Application for stay of execution
in the Appellate Court. See Order XXXIX Rule 5 of the Civil Procedure Code. Relevant
documents are Chamber Summons supported with an affidavit. Applicant may also
include a Certificate of Urgency.

9. SUNCHE instituted the suit for breach of contract against the ministry of work. He also joined
the Attorney general as the 2nd defendant. In its decision dated 4th January, 2020 the High Court
of Tanzania at Dodoma granted all prayers. SUNCHE is now before you on how he can proceed
with execution against the judgment debtors. Kindly advice on the way forward

ANSWER: The way forward for SUNCHE is to seek and obtain Certificate Containing
Particulars of Payment from the Court. As per the case of Ernest Karata and Others
vs. Attorney General such an application can be made just through an Official letter or
Chamber Summons supported with an Affidavit.

10. SUNCHE and KAPETO are Tanzanians who trades in Tanzania and in Uganda. Sometimes in
2023 a dispute arose as a result of which SUNCHE sued KAPETO before the High Court of
Uganda in Kampala. In its decision dated 4 th January 2024 the said court granted all prayers.
SUNCHE is now before you for advice as to how he can execute the said decision against
KAPETO in Tanzania. Kindly advice on the way forward

ANSWER: The way forward for SUNCHE is to apply for registration of such Judgment
before the High Court of Tanzania. See the Reciprocal Enforcement of Foreign
Judgment Act.
11. SUNCHE sued KAPETO before the Resident Magistrates Court of Mwanza. The Court
granted all reliefs as prayed. SUNCHE decided to file an application for execution
seeking an attachment of a motor vehicle with registration no. 999 CEM. The court
issued an attachment order. Someone CHEYO appeared and filed Objection
Proceedings, an application that has been struck out by the court for wrong citation.
Advice CHEYO on the way forward

ANSWER: The way forward for CHEYO is to prepare another Objection proceeding and
file it in the same court. When an application is struck out for wrong citation it is as if it
has not been made before.

12. SUNCHE sued KAPETO before the Resident Magistrates Court of Mwanza. The Court
granted all reliefs as prayed. SMG was appointed as the court broker as a result of which
Motor vehicle with registration no. 999 CEM was sold by public auction. The highest
bidder was CHEYO. Later CHEYO discovered that the car did not belong to KAPETO but
MOSSES. Advice CHEYO on the way forward

ANSWER: The way forward for CHEYO is to apply to set aside sale on the ground that
the judgment debtor has no saleable interest. See Order XXI Rule 89 of the Civil
Procedure Code. Relevant documents are Chamber Summons supported with an
affidavit.

13. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SUNCHE decided to file an application
for execution. Before it is determined KAPETO filed an application for objection
proceedings, an application that has been struck out by the court. Advice KAPETO on
the way forward

ANSWER: The way forward for KAPETO is to file an Application for stay of execution
to the executing Court under Order XXI rules 24-27 of the Civil Procedure Code. From
the factual pattern given it seems his Objection proceeding application was struck out
because it was not preferred by a third party.

14. SUNCHE sued KAPETO for Defamation before the Resident Magistrates Court of
Mwanza. The Court granted all reliefs as prayed. SMG was appointed as the court
broker. However, instead of auctioning KAPETO’S house attached he sold his different
house. Advice KAPETO on the way forward.
ANSWER: The way forward for KAPETO is to file Revision. The High Court of Tanzania
has to call for proceedings of the Resident magistrate Court to satisfy itself on
propriety and legality.