Lecture Notes On Civil Procedure 2 For L-64379681

LECTURE NOTES ON CIVIL
PROCEDURE 2 FOR LAW STUDENT
CIVIL PROCEDURE II NOTES
Abstract
This study manual presents a comprehensive analysis of law and practice
surrounding the civil procedure law in Tanzania and thus is geared to enrich law
student with relevant and adequate knowledge in civil procedure law
KARIM G. MUSSA
karimbinmussa@gmail.com
MANUAL ON CIVIL PROCEDURE 2 | KARIM MUSSA-MUM 2020
TABLE OF CONTENT
1. INTERLOCUTORY PROCEEDINGS
2. JUDGMENT AND DECREE
3. EXECUTION OF COURT DECREE
4. REFERENCE, REVIEW AND REVISION
5. CIVIL PROCEDURE IN PRIMARY COURT
https://www.Mum2011.academia.edu/KarimMussa
KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO


INTERLOCUTORY PROCEEDINGS
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 a pending suits. The most
common interlocutory is injunction. Injunction is the court 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 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 as was stated in the case of;
University of Dar es salaam Vs 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”
Rationale behind, in other words the aims 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.2 But according to proviso to Order XXXVII Rule 1of 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
1
1998 TLR 175.
2
Refer order xxxvii Rule 1 para, A & B of the civil procedure Code, Cap 33 R.E 2019

1
last.3 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.4
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,5 Also was stated in the case of Augustine Lyatonga Mrema and Two Others v. Abdallah
Majengo and Two Others.6
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.7 Whereby the court said that three conditions must exist before
temporary injunction is made;
3
Refer order xxxvii Rule 3 of the civil procedure code, Cap 33 R.E 2019
4
[1998] TLR 48.
5
[1987] TLR 78.
6
[2001] TLR 67.
7
1969 HCD NO. 28
2
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 were discussed in the case of HARUNA MPAGAOES AND OTHERS VS
TANZANIA PORTLAND CEMENT COMPANY LTD.8
CASES ON INTERLOCUTORY PROCEEDINGS

 The court may be extended from time to time for a period not exceeding one year –
Knitwear v. Ismail [1989] TLR 48.
 Notice must be given to opposite party - Augustine Lyatonga Mrema and Two Others
v. Abdallah Majengo and Two Others [2001] TLR 67.
 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.
 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
Alloys Authority Duwe (1979) L.r.T n. 26p.
8
Civil reference n.3 of 2007 court of appeal of Tanzania at Dar es Salaam.

3
Attilio v. Mbowe (1971) H.C.D. n. 249.
Jani Mohamed (1953) 20 E.A. C. A. 8
Hans Wolfgang v. General Manager of Morogoro Canvas
Mill Ltd [1987] TLR 78
Thompson (1944) 2 All E.R. 477.
Tahfif Mini Super Market v. B.P. Tanzania Ltd [1992] TLR 189.
4
JUDGEMENT AND DECREE
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.
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.
Moreover order 20 (4) provides for or set out the essentials elements of a judgment can;
 Contain concise statement of the case
 The points of determination
 Decision thereon
 Reason of such decision with order 20 (3) of the civil procedure code, cap 33
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
5
In the case of Amirari Ismail V. Regina 19, 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. 1. The Hon, attorney general 2. 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”
PRONOUNCEMENT OF THE JUDGMENT
According to order 20 (3) of the Civil procedure code cap 33, judgment should be pronounced in
open court and when its signed by judge or magistrate shall not afterword be altered or added to
save as provided under section 96 or on review.
Though the word used in the rule is may it is mandatory upon the seceding judge to pronounce the
judgment prepared but not delivered by his presences and it is not open to him to re-open the whole
matter rationale behind is to save judicial time in the case of; V I P ENGENERING AND
MARKET LTD & TRA V. S.G.S & TANZANIA SUPERUTENDENCE CO. LTD10
Effect of pronouncing judgment
Read:
 Kashanga v. Ernest Kahoya (1976) LRT n. 10
 Tanganyika Haulage Ltd v. CORETCO LTD. (1974) LRT n. 45.
 Halbury’s Laws of England vol. 22 (3rd) 740.
9
TLR 370
10
Civil revision No 5 of 2011 CAT (Unreported).

6
 Mansion House Ltd (1954) 21 E.A.C.A. 98, 102
 Stanslaus Rugaba Kasusurei & A-G v. Phares Kabuye (1982) TLR 338.
 Rashid Nkiingu v. Ally Mohamed [1984] TLR 46
 Papari v. Shah (1961) E.A. 676.
 Salum Sururu v. Zahor Abdulla [1988] TLR 41
CLASSIFICATION OF JUDGMENT
 Judgment in Rem (determines the Rights of the parts i.e. Probate matters)
 Judgment in personae
 Judgment interlocutory
 Judgment in final
Legal concepts “arrest before judgment” and “attachment before judgment” in the civil
procedure law.
There are situations in which there can be an attachment, we may call that attachment the “pre
emptive attachment” or “attachment in anticipation” it is what is called arrest before judgment and
attachment before judgment are pre-emptive; they are intended to statutory empower the courts to
prevents the ends of justice from being defected by some unscrupulous defendants. To those
provisions we now turn into the two concepts;
ARREST BEFORE JUDGMENT
In any suit, other than suit referred to section 14 (a) and (d)11 at any stage of the suit, the court may
issue warrant to arrest the defendant and bring him before it to show cause why he should not
furnish security for his appearance.
11
The Civil Procedure Code CAP 33 R.E. 2019.

7
A court however may issue warrant of arrest of defendant if the court satisfied that; the defendant,
with intent to delay the plaintiff, or to avoid any process of the court or to obstruct or delay the
execution of any decree that may be passed against him;12
 Has absconded or left the local limits of the jurisdiction of the court; or
 Is about to abscond or leave the local limits of the jurisdiction of the court; or
 Has disposed of or removed from the local limits of the jurisdiction of the court his
property or any part there;
 That the defendant is about to leave Tanzania under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution
of any decree that may be passed against the defendant in the suit..
Also in the case of Fernandes v. Commercial Bank of Africa limited.13 The court may issue a
warrant of arrest where it is satisfied by affidavit or otherwise that the defendant has absconded,
is about to abscond, has disposed of or removed property from the jurisdiction.
In addition, before a court can act on such a prayer, it has further to be satisfied that the suit is bona
fide and not mala fide.
Request for arrest by telegram
If the defendant be outside the local limits of the courts in which the suit is filed, the court issuing
the warrant may, by telegram, request any district court within the area of whose jurisdiction the
defendant is believed to be to arrest him and cause him to be taken under escort to the court which
issued the warrant.14
Security
If he fails to show cause, why he should not be made to furnish security for his appearance, the
court will have to order him either to deposit in court money or other property sufficient to answer
the claim against him, or to furnish security for his appearance at any time when called upon while
the suit is pending and until satisfaction of any decree that may be passed against him in the suit
12
See Order XXXVI, Rule 1 (a) (b) of the Civil Procedure Code CAP 33 R.E. 2019.
13
[1969] EA 482.
14
See Order XXXVI Rule 2 (1) of the Civil Procedure Code Cap 33 R.E. 2019.
8
or make such order as it thinks fit in respect of the sum which may have been paid by the defendant
at the time of arrest.15
Procedure on application by surety to be discharged
A surety for the appearance of a defendant may at any time apply to the court in which he became
such surety to be discharged from his obligation. On such application being made, the court shall
summon the defendant to appear or, if it thinks fit, may issue a warrant for his arrest in the first
instance, On the appearance of the defendant in pursuance of the summons or warrant, or on his
voluntary surrender, the court shall direct the surety to be discharged from his obligation and shall
call upon the defendant to find fresh security.16
Procedure where defendant fails to furnish security
In such a case, the court may commit him to civil prison until the decision of the suit or, where a
decree is passed against him, until the decree has been satisfied. However, no person must be
detained in civil prison in such a case for more than six months nor for a longer period than six
weeks when the amount or value of the subject matter of the suit does not exceed one hundred and
fifty shillings- Provided also that, no person shall be detained in prison under this rule after he has
complied with such order.17
ATTACHMENT BEFORE JUDGMENT
If any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent
to delay or obstruct the execution of any decree that may be passed against him in the suit,18 is
about to dispose of the whole or any part of his property from the local limits of the jurisdiction of
the court, the court may direct the defendant, within a time to be fixed by it, either to furnish
security, in such sum as may be specified in the order, to produce and place at the disposal of the
15
16
See Order XXXVI Rule 4 (1) (2) (3) of the Civil Procedure Code Cap 33 R.E. 2019.
17
See Order XXXVI Rule 5 of the Civil Procedure Code Cap 33 R.E. 2019.
18
9
court when required, the said property or value of it, or such portion of it as may be sufficient to
satisfy the decree, or to appear to show cause why he should not furnish security.19
Where cause is shown
Where the defendant shows such cause or furnishes the required security and the property specified
or any portion of it has been attached, the court shall order the attachment to be withdrawn, or
make such other order as it thinks fit.20
Property attached before judgment not to be reattached in execution of decree
Subject to the Rule 12 of Order XXXVI of the CPC, Where property is under attachment by
virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff,
it shall not be necessary upon an application for execution of such decree to apply for reattachment
of the property. Application for the attachment of any agricultural produce in the possession of an
agriculturist, or to empower the court to order the attachment or production of such produce shall
not be attachable.
In the case of Mtale v January Kapembwa.21Sisya, Ag, J., said at page 27;
“No doubt, the main object of this rule is to enable the plaintiff to realize the amount of decree, if
one is eventually passed, from the defendant’s property, however before invoking the provisions
of this rule the court must be “satisfied by affidavit or otherwise, that the defendant, with intent to
obstruct or delay the execution of any decree that may be passed against him” is about to commit
the mischief about which the complaint is made. It is my considered opinion that power to attach,
in these circumstances, should not be exercised lightly and without proof of the mischief aimed at.
In the case of Gulamhussein Fazal v Muzafar Gulamali.22 Should the defendant fail to show
cause or furnish security within time fixed by the court, the court may order that the property
specified or such portion of it as appears sufficient to satisfy the decree which may have passed in
the suit, be attached.
19
B.D. Chipeta. (2002). Civil Procedure in Tanzania a Student Manual. Dar es Salaam. Law Africa Publishing. PP
297-298.
20
21
(1976) LRT n.7.
22
(No. 2) (1976) L.R.T n.64).
10
EXECUTION OF THE DECREE
Is the process whereby the court uses its coercive power to compel a judgment debtor to comply
with the order of the court by giving the decreed reliefs to the decree holder? Order 21 of the civil
procedure code. Is a governing provision as far as execution of the decree is concerned. Execution
the decree is not automatically upon delivering of a judgment it requires a decree holder to make
application for execution of the decree and application is made before the court which passed the
decree however in special circumstances the application for execution may before the court which
did not pass the decree.
Application is not made by chamber summons supported by affidavit but it’s made in prescribed
form with specific contents to be shown in that form. Once a form or application is filed before
the court a new case has stated for execution, therefore the judgment debtor shall be given
summons and a copy of that application form of the execution, thus summons is a notice to show
course why execution should not be ordered or done,
Read: Manson House Ltd v. Wilkinson.23
Sheikha v. Halima.24
 Distinction between Judgment, Ruling, Decree and Order.
Read Manson House’s and Sheikhai’s above.
MODE OF EXECUTION OF DECREE
There are different ways of executing a decree depending on nature of the decree, relief specified
in decree, nature of the assets which execution lies section 42 and order 21 of the civil procedure
code provides for the methods thus are,
23
(1954) EACA 98.
24
(1959) E.A. 500.

11
According to the provisions, the following are methods,
 By delivering of any property specified decree
 By attachment and sell or by sell without attachment; this is guided under section 42 (B),
48 and 52 and order XXI, Rule 40 and 60 of the Civil Procedure Code.
 By arrest and detention in prison of any person, under section 44 and order XX1 R. 35 of
the civil Procedure code.
 By appointment of the receiver, this is by virtues of order XXXVII of the Civil Procedure
Code.
Such other manner as a nature of the reliefs my required
 By garnishee order i.e. in Banks
 Demolition order
 Eviction order
 Restitution
By Delivery of Any Property Specifically Decreed
When the decree is for immovable property, the property can be delivered to the person to whom
it has been adjudged or the representative of that person, this delivery has to be made after
removing any person bound by the decree who refuses to vacate the property; when the decree is
for the joint possession of immovable property, the possession shall be delivered after affixing the
copy of the warrant in a place that is visible.25
25
https://blog.ipleaders.in/mode-of-execution/ as accessed at 14th July 14, 2020 in 1:14 PM

12
By attachment and sale or by selling without attaching
The aim of this mode is to pressurize the judgment debtor, usually done by the court brokers whom
freeze the property of the judgment debtor in order to comply with the court order to pay the
decreed amount to the creditor, attachment always leads to into sale of the property only if the
freeze property have not yet been yield by the judgment debtor, if this happens the court brokers
will sell the property with public auction.
However the law requires the court broker to attaches the property for specified period of time
before selling them, thus property are usually attaches for 14 days, after expiration of those days
the court brokers shall request for an order of selling. The once the order is granted by the court
the court brokers have to wait for 15-30 days to see whether the judgment will compel to the
decreed amount or not. If the judgment debtor fails to pay, the court broker shall proceed to sell
the assets by public announcement, when the sell is completed the court shall issue an order
procumlation of sale to show that property have been sold and court broker will prepare report on
how the public auction was conducted. Thus under provision of 42(b), 48, 52 and Order XXI
Rule 40 and 63 of the CPC.
CONCEPT OF ATTACHMENT AND SALE
Is among the mode of execution of decree whereby the property of judgment debtor are attached
and sale in a public auction by the court brokers when he fail to compel the decree in favour of
him. The aim of attachment is to put pressure to the judgment debtor.
The following herein under are property liable to attachment and sale in execution of decree
as provided under Section 48(1).26
Lands
Exception to this is, Any land used for agricultural purposes by the village thus an ujamaa village,
a co-operative society, or an individual whose livelihood is wholly dependent upon the use of such
land shall not be subjected to attachment and sale.27
26
The Civil Procedure Code, Cap 33 R.E 2019.
27
See section 48(1) (d) of the Civil Procedure Code, Cap 33 R.E 2019.

13
Houses or other buildings
Provided that under section 48(1) (e) state any residential house or building, or part of a house or
being occupied by the judgment, his wife and dependent children for residential purposes shall not
be liable to such attachment and sale.
Money
All money payable or attached under a decree shall be paid as follows, namely- into the court
whose duty it is to execute the decree; out of court to the decree-holder; or otherwise as the court
which made the decree directs
Banknotes
This includes a piece of paper money constituting a central’s banks notes to pay a started sum to
the bearer on demand. Shall be liable for attachment.
Bonds or other securities for money debts
Where property is deposited in a court, nor in the custody of a public officer, the attachment shall
be made by actual seizure and the instrument shall be brought into court and held subject to further
orders of the court.
Movable or immovable property belonging to the judgment debtor
Where the property is immovable, the attachment shall be made by an order prohibiting the
judgment debtor from transferring or charging the property in any way, and all persons from taking
any benefit from such transfer or charge.
Share in a corporation
Any share of the judgment debts under a company of which he or she possess shall be liable for
attachment by the creditors of whom he execute the decree.
Not only them but the following are also liable for attachment; Sealable property, Bills of
exchange, Promissory notes Government’s securities, Cheque, Goods.
14
By Arrest and Detention in Prison
Under proviso of section 44 and XXI Rule 35. In the cause of arresting the judgment debtor the
court shall issue the notice to him requiring him to show course why the order of arrest should not
be granted thus arrest shall only be granted only to those people with have money to pay and not
poor, furthermore the Civil Prisoner does not belong to the government and its intertied for the one
who sent him to refund him during the time at prison. Thus payment of food during the time at the
Prison shall be added upon to him.
Appointment of a Receiver
Under order XXXVIII of the CPC, a decree holder can appoint a receiver to manage the business
of a judgment debtor in order to correct some money and pay to a decree holder this mode apply
where judgment debtor has got income generating activity. Every receiver so appointed shall- (a)
furnish such security (if any) as the court thinks fit, duly to account for what he shall receive in
respect of the property; (b) submit his accounts at such periods and in such form as the court
directs; (c) pay the amount due from him as the court directs; and be responsible for any loss
occasioned to the property by his willful default or gross negligence.
However, the following are other manner as a nature of the reliefs may be granted
Garnishee Order.
The Principal Secretary, Ministry of Defence and National Service vs D.P. Valambhia.28 CAT
at Dar. A garnishee order cannot be directed against the government even where the government
was a party in a contract, leave alone where, as it was in this case, the government was not a party.
The garnishee order against the government and the subsequent notice to show cause directed to
the Principal Secretary, Ministry of Defence and National Service were irregular and contrary to
the law.
28
Civil Appeal No. 33/92.

15
Demolition order
This order can be issued for a variety of reasons. In some cases, partial demolition order can be
issued. In other cases, an entire structure may have to be demolished most used in councils. Thus
demolition of building is the act of deliberately often in order to do.
Eviction order
This is a legally enforceable order from the court to leave the property.
Restitution order
This is an order require the offender to pay victim for financial losses the victim suffered because
of the offenders Act. Thus can only be ordered for losses up to the time the offender is sentenced.
In simple word it means an act of restoring or a condition of being restored such as making good
of or giving an equivalent for some injury.
CHALLENGING THE EXECUTION OF THE DECREE
When the decree is executed or has been executed there are remedies to the aggrieved part who
can challenge the execution of the decree, the methods used to challenge depends on the stage
reached on the execution whether it’s completed or in the cause of being executed. Again it
depends on whether the objector is apart or a 3rd part to the decree.
Where Objector Is A 3rd Part
Order 21 rule 57 where objector is not a part to the suit may challenge the execution by using
objection proceedings once the objection proceeding is entered execution should stay. The tittle
will be objector vs. Decree holder and judgment debtor. This application shall be file in the court
in which is executing the decree.
16
When objection proceeding fails the remedy is not to appeal, revision or review but what is
needed is to file for a new suit to assent the rights against decree holder and judgment debtor as
in the case of NBC VS. COSMASS M MKOJI29
Where the execution stage is completed
Under order XXI Rule 87-89 the person may apply to set aside or to nullify the sale which was
carried on in the execution of a decree the parties to the case shall be.
Decree holder
Buyer
And objector
Application is moved by chamber summons and affidavit and the objector must prove the existence
of irregularity as a ground to setting aside the sale either ground include
 The auction was not public
 It was not sold within the required time
 It was not sold in the highest bidder
Then after been granted set aside you will be required to seek the order of “Status Quo”
Stay of Execution
When the execution is in the process and not completed, a party can apply under Order 21 for stay
of execution this is a remedy available to the judgment debtor to stop the execution process in
order that he can pursue judiciary remedy. This remedy is moistly applied when a judgment debtor
appealed or applied for review, revision or references or applying for setting aside expert judgment.
However pending appeal is not a bar to the execution under order 35 rule 5(1) of the CPC under
29
[1986] TLR 127.

17
order 21 Rule 24 (1) the court to which a decree has been sent for execution, shall upon sufficient
course be shown, stay of execution of such decree for a reasonable time. In the light of above
provision the court may stay the execution upon sufficient course to be shown by the judgment
debtor.
Sufficient course are as far as execution is concerned are not defined anywhere therefore to cure
this LACUNA courts have come out with the tests before granting stay of execution. This is so
because stay of execution is a matter of judiciary discretion and this have to be concerned or
exercised judiciary; the courts have come out with tests which will guide them on whether or not
to stay of execution which are developed by the case law and are some to temporary injunction as;
 The chances of success of intended appeal
 Unless the execution is stayed the applicant will suffer substantial loss
 Balance of convenience
As developed in the case of Haruna mpanagous v. Tanzania Portland cement LTD.30
In the case of Tanzania electric supply company (Tanesco) v. Independent Power Tanzania
Ltd (IPTL) and two others.31 Court of Appeal of Tanzania at Dar es Salaam (Samatta, J. A) In
Tanzania it is now well settled that the principal factors a court should consider whether or not to
grant a stay of execution are the following:
 Whether the appeal has a prima facie likelihood of success,
 Whether its refusal is likely to cause substantial and irreparable injury to the applicant,
 And balance of convenience,
30
Civil Reference 3. (2007) court of Appeal of Tanzania (Unreported).
31
[2000] TRL 324.

18
NOTE
The grant or refusal of stay is an exercise of the courts discretion.
In determining whether the applicant has made a case meriting the exercise of the discretion in
favour of granting the stay, the court will examine the facts disclosed in the affidavit supporting
the application. Although the grant or refusal of stay of execution is at the discretion of the court,
the court must consider the general rules or guiding principle highlighted above in arriving at a
decision.32 Ultimately, a clear understanding of the law and procedure applicable to the concept of
stay of execution is necessary, so as to convince the court to decide in a party’s favour. The exercise
of the court discretion notwithstanding, the duty of the court remains to do justice according to the
law.
PERSONAL CIRCUMSTANCES WHICH CAN RENDER OUT GRANT OF STAY OF
EXECUTION;
Failure to attach the notice of appeal and a decree sought
In the case of Niko Insurance (Tanzania) Ltd and 5 others v. Gulf Bulk Petrolium.33 The court
of appeal stated the documents accompanying an application for stay of execution Rule 11(7).34
Includes; -
Notice of appeal and the decree sought to be stayed, it cannot be remedied by supplementary
affidavit notice of appeal; A decree or order of appealed from; A judgment or ruling appealed
from; and A notice of intended execution. In an application for stay of execution, failure to attach
the notice of appeal and a decree sought to be stayed, renders the application incompetent which
cannot be remedied by a supplementary affidavit and or overriding objective principle. Hence the
court stated;
32
Kibuuka, P. (March, 9th, 2019). “Stay of execution of the decree of a court”. The Citizen, No. p.28.
33
Civil Appeal No. 51 of 2016 [2020] TZCA 234 (Unreported).
34
Court of Appeal (Rules) R.E 2009 as amended vide GN. NO. 344 of 2019.
19
“Since it is not in dispute that the present application is incompetent on account of not being
accompanied by the…”
Failure to compel with the all the conditions necessary to entitle the applicants get the
remedy.
The application must made before the expiration of the time allowed for appealing and good cause
must be shown. The applicant must also show that he will suffer substantial loss if the order for
stay is not granted and it must be made without reasonable delay. Lastly the applicant must furnish
security for the due performance of the decree or order that may ultimately be binding to him or
her. As in the case of Seleman Zahoro and two others v. Faisal Ahmed Abdul and one.35 The
court stated;
“Although perusal of the affidavit filed in support of the application is clear evidence that the
applicant has not compelled with all the conditions necessary to entitle the applicants get the
remedy they are asking for. For instance the decree or order complained of is not attached to the
application.”
No appeal filed no stay of execution to be granted

In the case of E R MUTAGANYWA v AHMED J ALADIN AND OTHERS.36 In this case the
application of stay of execution was filed where there was no appeal. Thus an appeal must be in
being before an application for stay can be entertained by the court appealed from. Thus the court
cannot entertain an application for stay of execution pending appeal when no appeal has been filed
hence the preliminary objection is upheld, and the application was dismissed.
Failure to disclose fact in affidavit
In determining whether the applicant has made a case meriting the exercise of the discretion in
favour of granting the stay, the court will look if the facts disclosed in the affidavit supporting the
application the prayers therein are persuasive and if not the court under its discretion will strike
out the application upon on preliminary objection. Although there are general rules that court
determines.
35
Civil Application No. 1 of 2008 (unreported).
36
[1996] TLR 285.

20
EXECUTION OF DECREES INVOLVING THE GOVERNMENT
Where involving the government, or any decree contains any order in favour of any person against
the government or an officer of the government the provision for Civil Procedure code shall not
convey but the provision of the government proceedings Act cap 5 of 2019. Specifically section
15-17 shall apply under order 21 Rule 2(A)
However any order made in favour of the government against any person in any civil proceeding
to which a government is the party may only be enforced in the same manner as an order made in
an auction between private people under section 17 of the Governments Proceedings Act.
Questions for reflection
 With the aid of not less than four decided cases, discuss how the court exercise their
judiciary excretion in granting or not granting stay of execution.
 With the aid of legal provision, discuss the property liable to attachment and sell in
execution of decree.
 With the aid of legal provision and case law, discuss the legal concepts “arrest before
judgment” and “attachment before judgment” in the civil procedure law.
 Discuss the modes of execution of decree in civil procedure support your answer with legal
authority.
21
APPEAL, REVIEW, REVISION AND REFERENCE
APPEAL
Is the judicial examination of the decision of an inferior courts done by a superior court regarding
correctness of the decision in both form and contents of the decision of inferior court OR the
judicial examination of the decision by higher court of the decision of an inferior court.
The Civil Procedure code does not define the meaning of appeal but the governing proviso are
section 74, 76 and order XXXIX of the Civil Procedure Code Cap 33 R.E 2019. Also see the case
of JULIUS PETRO v COSMAS RAPHAEL.37
 An appeal can lie from Primary Court to District Court, district court to High court or High
court to Court of Appeal, the superior court exercises appellant jurisdiction over inferior
court have both original and appellant jurisdiction i.e. High court and District Court.
 Basing on this the laws to be used are different depending on which court the appeal is
coming from therefore for all appeal appeals originated from Primary courts the governing
law shall be In The procedure to be followed in civil appeals is set out in the Civil
Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 (GN
No. 312 of 1964). Although these Rules do not directly concern primary court magistrates,
they should at least be familiar with the provisions of rules 3, 7, 12, 14, 16 and 17 that they
can explain the correct procedure to party hearing the appeal in primary court the District
or Resident Magistrate Court will have to apply this Rules.
INITIATION OF AN APPEAL
There are three stage to follow here this are,
 Filing of notice to appeal
37
[1983] TLR 346.

22
 Filling a memorandum of appeal
 Attachment to a memorandum of appeal
FILLING OF NOTICE TO APPEAL
This is a document lodged by the appellant to the court which passed a decree informing the court
of his intention to appeal the notice must be in prescribed time as follows;
 For a decision of primary court notice is within 45 days
 For a decision of district court and High court notice is within 30 days
The aim of notice is to make the court aware that its decision is subjected of an appeal.
MEMORANDUM OF APPEAL
This is a document which contains the grounds of appeal and remedy sought out under Order
XXXIX RULE 1(1) however if the appeal rise before district court from primary court the
document used is called a memorandum of Appeal if the appeal is referred to High Court
documents used is petition of Appeal. But in court of appeal the document used is Memorandum
of Appeal, the documents shall set forth;
 Concisely and under distinct heads the grounds of objection
 Grounds must be set without any argument or narrative
 Grounds shall be numbered consecutively under order XXXIX Rule 3 (1) of the civil
procedure.38
In the situation whereby a memorandum is not drawn up by manner of law it may be rejected or
returned to the appellant under order XXXIX Rule 3(1).
38
Cap 33 R.E 2019

23
ATTACHMENT OF MEMORANDUM OF APPEAL
The attachment shall be accompanied by the following documents,
 Notice of intention of appeal
 Certified copy of judgment
 Certified copy of decree
 Certified copy of proceeding
In the situation whereby any document is missing, the appeal is incompetent and it may be struck
out for being defective however according to parties, the person may appeal by merely attaching
the certified copies of the judgment.
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
24
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
MATRIMONIAL APPEALS
A matrimonial appeal lies to the High Court from a decision or order of a court of a resident
magistrate, a district court or a primary court in a matrimonial proceeding may appeal. The
Appeal must be filed in the magistrate's court within forty-five days of the decision or order
against which the appeal is brought. However, appeals against certain declaratory decrees may
be filed within ninety days of such decree. The Matrimonial Appeal to the High Court is
commenced by a Memorandum of Appeal. A Memorandum of Appeal may be either in
Kiswahili or in English and must state briefly the grounds of objection to the decision, order or
decree appealed against.
25
Upon the receipt of the memorandum of appeal, the subordinate court will transmit to the High
Court, the memorandum of appeal together with the complete record of the matrimonial
proceeding to which the appeal relates. The High Court cannot reject or refuse to entertain a
memorandum of appeal by reason only of a defect in the form of the memorandum. The
provisions of Rules 9 to 37 (inclusive) of Order XXXIX of Civil Procedure Code apply mutatis
mutandis to Matrimonial Appeals.
Appeals although,
(a)where a respondent wishes to take a cross-objection to the decree, he may do so without being
required to file a memorandum of such cross-objection;
(b)in determining an appeal, the court is not be confined to the grounds of objection raised in
the memorandum of appeal but may, after giving the parties an opportunity of being heard
thereupon, decide the appeal on any ground not raised in the memorandum of appeal; and
(c) The High Court must decide every appeal according to substantial justice without undue
regard to technicalities of procedure and without undue delay.
26
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 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 Code33 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.
In the case of Jewels & Antiques (T) Ltd vs. National Shipping Agencies Co. Ltd 39 In which
the High Court held that, “clerical and arithmetical errors in the judgment may be corrected in
39
[1994] TLR 107

27
accordance with section 96 of the Civil Procedure Code and Rule 53(3) of the 1983 even after the
judgment has been dated and signed”.
Similar, the same issue was discussed in the case of Tanganyika Haulage Ltd vs. CORETCO
Ltd the High Court held that, although the judgment once written, dated and signed cannot be
altered, the Magistrate or Judge can effect correction to the typographical errors.
THE CONDITION OF GROUNDS OF REVIEW
In the case of Ottu on behalf of P.L ASENGA & 106 others v. Ami (Tanzania Limited)40
pointed out the five grounds of review which are; Mussa J, A pointed out the five grounds thus;
 Court decision is nullity
 Court had no jurisdiction to entertain the case
 The judgment was pronounced illegal or by fraud
 Party was wrongly declined under opportunity to be held
 Decision was based on a manifest era on the face of the record resulting in the discourage
of justice.
A discretion of the court to review its own decision or order is not on basis of sky’s the limit the
court is barred from granting an order of review outside the five grounds as analyzed above.
A review does not contemplate a right to second bite that is to say, where an application of review
has been made and disposed the decision by the court on the review shall be final and no further
application for review shall be entertained in the same matter. This requirement is obviously
premised on public policy demand for finality and certainty of the law it’s a judge or magistrate
who tried a case on trial who will be called to review it.
40
Civil Application No. 20 of 2014 Court of Appeal at DSM.

28
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.
The civil procedure code has some provision regarding revision. Section 79 of the Civil Procedure
Code mentions revisional powers of Higher Courts. It states that the higher court may call for the
record of any case which has been decided by any subordinate court and to which no appeal lies.
Act 25 of 2002, the Written Laws (Miscellaneous Amendments) (No. 3) amended Section 79
of the Civil Procedure Code as follows:- (i) by designating the old Section 79 as 79 (1); and (ii) by
creating a new subsection (2) which provides as follows:-
"Notwithstanding the provisions of subsection (1), no application for revision shall lie or be made
in respect of any preliminary or interlocutory decision or order of the Court unless such decision
or order has the effect of finally determining the suit."
Actually, Act 25 of 2002 effected amendments to the Appellate Jurisdiction Act, 1979; the Civil
Procedure Code and the Magistrates Courts Act which disallowed appeals and applications for
revision on preliminary and interlocutory decisions of the High Court to the Court of Appeal and
those of the Resident Magistrate Court and the District Magistrates Court to the High Court.
29
Undoubtedly, Revision is exercised if the subordinate court has exercised a jurisdiction not vested
in it by law or failed to exercise a jurisdiction so vested or has acted illegally or with material
irregularity.
The above position was emphasized in the case of ABDAL HASSAN v. MOHAMED AHMED41
(per Katiti J.), It was stated that
“The High Court revisional power under Section 79 (1) of the Civil Procedure Code of 1966 are
limited to cases where no appeal lies and issue such as whether the Subordinate Court has
exercised jurisdiction not vested, if vested, whether it has failed to exercise the same or has acted
illegally or with material irregularity."
REVIEW AND REVISION DISTINGUISHED
Essentially, a review and a revision are two different matters. A revision, under the Civil Procedure
Code envisages a correction of errors; apparent on the face of the record. But, the correction higher
court not the same court.
41
[1989] TLR 181.

30
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.
CONDITIONS FOR REFERENCE
The right of reference, however, is subject to the conditions prescribed by Order XLI Rule 1 and,
unless they are fulfilled, the High Court cannot entertain a reference from a subordinate court. The
rule requires the following conditions to be satisfied to enable a subordinate court to make a
reference:
(i) There must be a pending suit or appeal in which the decree is not subject to appeal or a pending
proceeding in execution of such decree;
(ii) A question of law or usage having the force of law must arise in the course of such suit, appeal
or proceeding; and
(iii) The court trying the suit or appeal or executing the decree must entertain a reasonable doubt
on such question. Questions of law on which a subordinate court may entertain a doubt may be
divided into two classes:
31
(i) Those which relate to the validity of any Act, Ordinance or Regulation; and
(ii) Other questions. In the latter case, the reference is optional, but in the former case it is
obligatory if the following conditions are fulfilled
(i) It is necessary to decide such question in order to dispose of the case; (ii) The subordinate court
is of the view that the impugned Act, Ordinance or Regulation is ultra vires; and (iii) There is no
determination either by the Supreme Court or by the High Court to which such court is subordinate
that such Act, Ordinance or Regulation is ultra vires.
The court making a reference may either stay the proceedings or pass a decree contingent upon the
decision of the High Court on the point referred, such decree or order not being executable until
the receipt of a copy of the judgment of the High Court upon the reference42.
The High Court after hearing the parties, if they desire to be heard, shall decide the points and
transmit a copy of its judgment to the court which made the reference. Such court shall then dispose
of the case in conformity with the decision of the High Court. The costs consequent on a reference
for the decision of the High Court shall be costs in the case.43
Power of the High Court
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.
Power to refer to High Court questions as to jurisdiction
At any time before judgment a court in which a suit has been instituted may refer to the High Court
questions as to jurisdiction where it entertains doubts whether the suit is cognizable by a court of
42
Order XLI, Rule 2 of the Civil Procedure Cod
43
Order XLI, Rule 3 and 4 of the Civil Procedure Code

32
small causes or not. On receiving the record and statement, the High Court may order the
court either to proceed with the suit or to return the plaint for presentation to such other
court as it may in its order declare to be competent to take cognizance of the suit.44
44
Order XLI, Rule 6 (2) of the Civil Procedure Code

33
SUIT BEFORE 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:-
(A) award any amount claimed;
(b) Award compensation;
34
(c) Order the recovery of possession of land (note that currently the Primary Court has no longer
such power);
(d) Order the restitution of any property;
(e) Order the specific performance of any contract;
(f) Make orders in the nature of an injunction, both mandatory and prohibitive (i.e. that certain
things shall or shall not be done);
(g) Order the payment of any costs and expenses incurred by a successful party or his witnesses;
(h) Promote reconciliation and encourage and facilitate the settlement, in an amicable way, of the
proceedings on such terms as are just:
(i) Make any other order which the justice of the case may require. If property has to be handed
over or restored, it should be properly described, and its value should be noted in the order. It is
not sufficient to order that a box be returned. The box must be recorded and described properly.
This helps to avoid or settle subsequent disputes.
POWERS OF PRIMARY COURTS IN ADMINISTRATION CASES
Section 18 (2) of the Magistrates’ Courts Act empowers the Chief Justice, by order published in
the Gazzette, to confer upon a primary court jurisdiction in the administration of deceased’ estates
where the law applicable to the administration or distribution of, or the sucession of deceased’
estates where the law applicable to the administration or distribution of, or the sucession to, the
estate is Customary law or Islamic law. An exception to this provision is where Islamic Law is
applicable by virtue of the provisions of the Marriage, Divorce and Succession (Non-Christian
Asiatics) Act.
By administrative arrangement, the jurisdiction in the administration of diceased’ estates will
normally be exercised at the primary court houses at District Headquarters.
35
The powers of primary courts in administration cases are set out in Part I of the Fifth Schedule to
the Act.
There are certain instances where a primary court cannot appoint an administrator, and these are
set out in paragraph 1(2) of Part I of the Fifth Schedule. For example, a primary court shall not
appoint an administrator where a grant of administration has been made under the provisions of
the Probate and Admnistration Estate Act, [Cap 352 R.E 2002]. Furthermore a primary court
will not hear disputes where the administrator has been appointed by a court other than a primary
court.
Paragraph 2 of Part I of the Fifth Schedule sets out the powers of primary courts in administration
cases. In brief, a primary court upon whom jurisdiction in the administration of deceased’s’ estates
has been conferred may appoint an administrator:-
(a) One or more persons interested in the estate of the deceased, or
(b) An officer of the court, or
(c) Some reputable and impartial person able and willing, for a fee, to administer the estate.
With regard to (b) above, the term “officer of the court” does not include a primary court
magistrate, as the primary court magistrate may, if the administrator is unable to bring the heirs to
agreement, have to adjudicate upon a dispute in the primary court.
36
PROCEDURE IN CIVIL PROCEEDINGS
The procedure to be followed in civil proceedings is set out in the Primary Courts Civil Procedure
Rules. 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.
It should be noted from rule 2 that “sign” includes, the affixing of a mark or thumbprint. 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:-
(a) The name of the court in which the proceedings is brought;
(b) The name, occupation and place of residence or place of business of the claimant;
(c) The name, occupation and place of residence or place of business of the defendant, so far as
they can be ascertained;
(d) The facts on which the claim is based and when and where it arose;
(e) The relief claimed; and
(f) Where property is claimed, the value of the property.
37
After the court fees have been paid or remitted as required by GN No. 247/2018 second schedule,
as the case may be, a case file must be opened and the proceedings numbered and entered in the
register accordingly.
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.
INJUCTIONS
The provisions regarding applications and procedure for injunctions (orders for things to be done
or not done) are set out in rule 17. At any time after a civil proceedings has been instituted any
party may apply to the court for an injunction to restrain any person from alienating, destroying,
wasting, damaging, or otherwise injuriously dealing with any property which is the subject of the
proceeding.
Before ordering an injunction the court may, if it thinks it necessary, examine the applicant in
order to satisfy itself that grounds for ordering an injunction do really exist.
Every order for an injunction must be served on the person having possession of the property and
on such other person as the court may think fit.
Where the property is of a perishable nature, e.g. vegetables, the court may direct an officer of the
court to sell the property either by public auction or by private treaty, and the costs incurred shall
be paid out of the proceeds of the sale. The net proceeds of the sale should be placed on deposit
pending the conclusion of the proceedings.
38
TAKING OF EVIDENCE OTHER THAN AT HEARING
The provisions for the taking of evidence otherwise than at the hearing are set out in rules 42 and
43. The power (rule 42) to examine a witness immediately might be exercised. E.g. where a witness
is about to leave the jurisdiction of the court. Notice of the day fixed for the examination of a
witness must be given to the parties.
Rule 43 provides that where a witness is residing at such a distance from the court that his
attendance at the hearing would involve undue delay, expense or inconvenience, the court may
request another primary court which is situated in close proximity to the residence of the witness
in Tanzania to record the evidence of such witness. The court which records such evidence must
send it to the court which made the request. Such evidence must be read at the hearing the
proceeding and will form part of the record of the case. It should be noted that a court for good
cause may at any time vary or rescind an injunction order.
It must be stressed, however, that if the witness concerned is a key witness the court might be well
advised not to invoke the provisions of rules 42 and 43, and this is a matter for decision by the
court.
SUMMONSES AND SERVICE-CIVIL PROCEEDINGS IN RESPECT OF DEFENDANT.
In addition to the sections of the Act referred to in paragraph 22, reference should be made to rules
18 and 19 of the Primary Courts Civil Procedure Rules.
Normally every summons on a defendant should be issued in duplicate, but it may have to be
issued in triplicate, e.g. where the court directs that the summons be served by affixing a copy of
the summons on some conspicuous part of the last known residence of the defendant and another
copy on the court notice board: in such instance the third copy will be placed in the case file.
39
The summons must state briefly the nature of the claim.
The summons should normally be served on the defendant personally, but if he has an agent
authorized to accept service it may be served on such agent. The defendant or his agent should
sign one copy, and the person serving the summons should make an affidavit on the same copy
which should be returned to the court and placed in the case file as evidence of service. The
defendant or his agent should, retained the other copy.
Where the court is satisfied that the summons cannot be served on the defendant or his agent
personally without undue delay or expense, it may direct service of this summons by one of the
following five methods.
(1) By post, or
(2) By leaving it with an adult male member of the family of the defendant, or
(3) By leaving it with some adult male servant residing with the defendant, or
(4) By leaving it with the defendant’s employer, or
(5) By affixing a copy of the summons on some conspicuous part of the last known residence of
the defendant and another copy on the court notice board.
Where a summons is not served personally on the defendant or his agent, service may be proved
in the case of (1) above by evidence that a postal packet was received by the defendant, together
with a certificate of an officer of the court that the post packet contained the summons, and in the
case of (2), (3), (4) and (5) above by the affidavit or evidence on affirmation of the person effecting
the service of the summon.
If a defendant duly served fails to appear in answer to a summons, the court has no power to issue
a warrant of arrest to secure his attendance. The procedure to be adopted is described in paragraph
40
14. A summons may be served on a defendant within any part of the district with which the
primary court exercises jurisdiction.
If the summons is to be served on a defendant residing in another district, it should be sent to the
primary court or the district court of the other district for service. The magistrate receiving the
summons for service must endorse it before service.
IN RESPECT OF WITNESSES
In addition to the sections of the Act referred to paragraph 22, reference should be made to rules
31 to 41 of the Primary Courts Civil Procedure Rules. With regard to the summoning of witnesses
in civil proceedings the following main points should be remembered:-
(1) A witness summons is only issued after application by one of the parties if the court on its own
motion decides to call a witness (rule 31 and 37);
(2) The party applying for a witness summons must pay the prescribed fees, deposit into court a
sum of money to cover the travelling and other expenses of the witness. No deposit for travelling
expenses need be paid if the witness lives within three miles of the court which he is required to
attend (rule (1));
(3) a magistrate, justice of the peace or court clerk can require the party calling the witness to make
an additional deposit to cover the expenses of the witness; in default of payment the court may
direct attachment and sale in respect the expenses already incurred (rule 32 (2) and (3). The
expenses to be paid to witnesses are laid down in the First Schedule to the Primary Courts Civil
Procedure Rules (rule 33). See also rule 37;
(4) The expenses of witnesses must be paid expeditiously as laid down in rule 37;
(5) A witness summons must be issued in duplicate and person served the summons should make
an affidavit on the same copy which should be returned to the court and placed in the case file as
41
evidence of service. The witness should retain the other copy. If the witness cannot be found both
copies of the summons should be returned to the court and the person serving the summons should
endorse on one copy the reason why the summons could not be served on the witness;
(6) If a witness, duly served, fails to attend the court, the court may issue a warrant of arrest (rule
40 (1).
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. At
Appendix 1 will be found a specimen of proceedings in a civil case. Some of the more important
points to remember are set out below:-
(a) at the start of the case find out what the parties admit or deny, and then write down the matters
in issue, i.e. the matters on which the court has to make a decision;
(b) Normally the claimant first states his case and produces the evidence in support of his case;
(c) Then the defendant states his case and produces the evidence in support of it;
(D) after all the evidence has been recorded the parties may, if they wish, address the court, first
the defendant and then the claimant;
(e) The evidence of each witness must be taken orally in open court;
(f) Except in the case of a child of tender years, the evidence of each witness shall be given on
affirmation;
(g) The magistrate must record the substance of the evidence in Kiswahili and at the conclusion of
a witness’ evidence must read it over to him and record any amendments or corrections. The
magistrate must certify that he has done so;
(h) A witness shall first be questioned by the party who called him;
42
(i) Each party shall be entitled to cross-examine the witnesses called by the other party;
(j) The decision of the court must-
(I) be in writing;
(ii) Be signed by the magistrate and assessors who heard the proceedings;
(iii) Be pronounced in open court; and
(iv) Be dated as of the day on which it is pronounced.
(k) The parties must be informed of their right of appeal.
(l) Examine the unsuccessful party as to his means of satisfying the decision; after the examination
the court must fix a date for the implementation of the decision, and at the same time it must inform
the defendant in the presence of the claimant that if he (the defendant) does not satisfy the decision
by the day specified then the claimant will be entitled to institute execution proceedings which
may involve the attachment and sale of the defendant’s property.
PARTIES ABSENT IN CIVIL PROCEEDINGS
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).
43
 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.
44
 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 nonattendance of one or more
of several defendants.
SETTING ASIDE ORDER FOR “EXPARTE” PROOF (RULE 29 OF THE PRIMARY
COURTS CIVIL PROCEDURE RULES)
Where the court has allowed the plaintiff to prove his claim in the absence of the defendant,
and the defendant appears at any time before the decision is given, what should the court do?
The court should first ask the defendant his excuse for being late. If the excuse is reasonable
and the defendant can produce evidence in support of his excuse, the court shall commence the
hearing afresh. If the hearing is commenced afresh, it is not necessary to record all the evidence
again provided that the evidence is read over to and confirmed by the person who gave it.
SETTING ASIDE AN
“EX-PARTE” DECISION (RULE 30 OF THE PRIMARY COURTS CIVIL
PROCEDURE RULES)
Where the plaintiff has proved his claim and a decision has been given against the defendant
in his absence, and then the defendant applies, on payment of the prescribed fee, to have the
ex parte decision set aside, what should the court do? The court should consider the following
points before making an order:-
45
 Is the defendant’s application time-barred? If it is then the court should make an order
refusing the application.
 Was the summons duly served? If the court is satisfied that the summons was not duly
served, the court shall set aside the ex parte decision.
 Was the defendant prevented by any sufficient cause from appearing at the hearing,
e.g. was he too ill to travel, or was the country side impassable due to floods, or did the
bus in which he was travelling break down? The defendant must produce evidence in
support of his excuse. If the court is satisfied that the defendant had a good reason for
not attending, the court shall set aside the ex parte decision.
Where an application is made to have an exparte decision set aside, the court shall give notice
to the applicant and other parties of the date and time for the hearing of the application.
If the court refuses to set aside an ex parte decision, the defendant can appeal against the court’s
decision not to re-open the case, but this does not of course mean that if the district court agrees
to have the case re-opened it will itself hear it. If the district court does agree the case will be
returned to the Primary court for re-hearing.
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.
46
When a primary court has made an award or order for the payment of money and such money
has not been paid on the day fixed by the primary court, the award debtor order may be enforced
by the primary court by attachment and sale of the property of the judgment-debtor.
It should be noted that where property sought to be attached and sold is:-
(a) A share in the capital of a company, co-operative society or other corporation or
(b) The judgment-debtor’s share in any partnership property or profits, not being a share liable
to attachment and sale under the provisions of rule 57 (execution of an order against a firm),
The primary court shall, with the consent of the district court, transfer the application for
execution to the district court.
Where a court has made an award or order for the restitution of moveable property and the
person in actual possession of the property refuses or fails to deliver up the same, the party to
whom it was awarded may apply to the court to enforce the order.
There are certain restrictions on the entry into dweling houses and these are set out in rule 59.
For example, no person executing an order shall enter any dwelling house between sunset and
sunrise, except with the consent of the householder.
Warrants may be executed (rule 60) by-
(a) A court broker appointed by the court; or
(b) Any other person, whether or not an officer of the Government or of a local authority,
whom the court may think it necessary or desirable to appoint. Currently, see the Second
Schedule of GN 247/2018 on fees payable in Primary Courts.
The charges payable in connection with the enforcement of awards and orders are set out in
the Second Schedule to the Primary Courts Civil Procedure Rules. It should be noted that where
47
a warrant is executed by an officer of a Local Authority, the charges should be credited to the
local treasury concerned.
The judgment-debtor can obtain his release from detention in a civil prison at any time by
paying the amount awarded against him. Sums disbursed by the decree holder for the substance
of the judgement-debtor in the civil prison are deemed to be costs in the suit, and the judgment-
debtor cannot be detained in the civil prison or arrested on account of any sum so disbursed.
ATTACHMENT
The provisions regarding attachment are set out in rules 62 to 71. Some of the more important
points are set out below:-
(a) If any money payable under an award or order has not been paid on or before the day fixed
by the court under rule 54 (3) it is the responsibility of the Judgement-creditor to apply to the
court for the attachment of the property of the judgement-debtor. It should be noted that it is
not necessary to notify the judgement-debtor of the application because he will have been
warned at the conclusion of the hearing of the case of the consequences of non-payment:
(b) Every warrant of attachment shall contain:-
(i) The names of the parties;
(ii) The amount of money awarded or ordered to be paid any costs payable;
(iii) A description of the property attached in sufficient detail to enable it to be identified:
(iv) A statement that the owner of the property, is prohibited from transferring or charging it
in anyway;
(c) Where the property attached is a building, a copy of every warrant of attachment must be
posted on the main door thereof;
48
(d) Growing crops should not be seized before the time when they are ready to be cut or
gathered;
(e) Where the property seized is liable to deteriorate the court may order its immediate sale;
(f) Where cattle are to be seized, the court may require the judgement creditor, before seizure,
to provide for the care and sustenance of such cattle while they are in the custody of the court;
(g) In certain circumstances (see rule 69) the judgement-debtor may apply to the court to
rescind or vary the warrant of attachment, but no warrant of attachment shall be rescinded or
varied unless the judgment-creditor has been given an opportunity of being heard:
(h) Any person, other than the judgment-debtor, who claims to be the owner of or to have some
interest in property which has been attached by the court may apply to the court to release the
property from attachment. He must state the grounds on which he bases his objection. Notice
of the day and time for hearing the objection must be served upon the objector, the judgement-
creditor and the judgement –debtor. Further provisions are contained in rule 70 which should
be studied;
(i) rule 71 deals with the recision of an attachment order; sub-rule (2) requires explanation as
to how a judgement-creditor can default; for example, where property has been attached the
judgment-creditor may fail to apply for the sale of the property in accordance with rule 72 or
he may fail to pay the required charges, his failure to do so puts him in default and the court is
unable to proceed with the execution.
(j) When an attachment has been rescinded a notice of recision must be served on every person
who was served with the notice of attachment.
49
SALE IN EXECUTION
The provisions regarding sale of property in execution are set out in rules 72 to 85.
The five most important points to remember are contained in rules 72, 75 and 85. These are:-
 no order for sale of property can be made by the court unless the judgment-creditor
makes an application for an order for sale and pays the charges;
 notice of an application for an order for sale does not require to be given to the
judgment-debtor for the very good reason that he will have already been served with a
warrant of attachment and will thus be aware of the consequences of his failure to
satisfy the decision of the court;
 an application for an order for sale may be made by the judgment creditor at any time
after the expiration of fifteen days from the date of service of a warrant of attachment
(other than a warrant of attachment of wages) or the seizure of the property, whichever
is the earlier;
 no sale of immovable property shall take place until after the expiry of thirty days from
the date of issue of the order for sale: the only exception to this is where the property
is liable to deteriorate (see rule 66);
 an application to set aside a sale in execution must be made within thirty days of the
date of sale; it should be noted that no sale once it has taken place shall be set aside
unless the judgment-creditor, the judgment-debtor, the purchaser and any other person
affected has been given an opportunity to be heard and produce evidence.
The particulars to be contained in an order for sale are set out in rule 73, and the provisions
regarding posting and advertisement of an order for sale are set out in rule 74.
50
The court has the power to adjourn a sale (rule 76) but it should be noted that where a sale is
adjourned for more than thirty days, the sale must be advertised.
 Rule 77 makes provision for the conduct of the sale of property. It should be noted that
except where the law provides that produce or cattle should be sold to a co-operative
or other marketing organization, such produce or cattle should be sold at a market if
there is one nearby: if there is not a market nearby, then the sale should be by special
public auction.
 A judgement-creditor shall not, without the leave of the court, be entitled to bid for or
buy property offered for sale in execution (rule 79).
 Where moveable property is sold, the purchase price must be paid in cash at the time
of the sale or as soon thereafter before the conclusion of the sale. Where immoveable
property is sold one-quarter of the purchase price must be deposited in cash at the time
of the sale and the balance must be paid in cash into court within fifteen days thereafter.
*********************************END********************************
WABILLAHI TAWFIQ
“First thing we do, let’s kill all the Lawyers”
51

Lecture Notes On Civil Procedure 2 For L-64379681

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lecture Notes On Civil Procedure 2 For L-64379681

Uploaded by

Copyright:

Available Formats

LECTURE NOTES ON CIVIL

PROCEDURE 2 FOR LAW STUDENT

CIVIL PROCEDURE II NOTES

2. JUDGMENT AND DECREE

3. EXECUTION OF COURT DECREE

4. REFERENCE, REVIEW AND REVISION

5. CIVIL PROCEDURE IN PRIMARY COURT

KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO

KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO

to be completed as was stated in the case of;

court ultimately to decide on the rights of parties”

KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO

APPLICATION FOR TEMPORARY INJUNCTION

supported by an affidavit a companied by certificate of urgency.

Majengo and Two Others.6

temporary injunction is made;

compensated. Balance of convenience.

TANZANIA PORTLAND CEMENT COMPANY LTD.8

CASES ON INTERLOCUTORY PROCEEDINGS

Knitwear v. Ismail [1989] TLR 48.

v. Abdallah Majengo and Two Others [2001] TLR 67.

Another [2001] TLR 405

Read Order XXXVII RULE 1-10 of the civil procedure code

Section 68 (e) of the Civil procedure code, Cap 33 R.E 2019

Alloys Authority Duwe (1979) L.r.T n. 26p.

KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO

Attilio v. Mbowe (1971) H.C.D. n. 249.

Jani Mohamed (1953) 20 E.A. C. A. 8

Hans Wolfgang v. General Manager of Morogoro Canvas

Mill Ltd [1987] TLR 78

Thompson (1944) 2 All E.R. 477.

JUDGEMENT AND DECREE

by a Judge or magistrate of the ground for the decree or order.

and dated by such presiding judge or magistrate.

 Contain concise statement of the case

 The points of determination

or magistrate writes a judgment it’s important that;

 To ensure there are no irregularity

 It must be of points raised in the pleadings in the course of trial

 It must record all points raised by all parties

judgment should contain he said;

“A good judgment is clear, systematic and straight forward”

evidence raised before the court has been ignored”

PRONOUNCEMENT OF THE JUDGMENT

save as provided under section 96 or on review.

Effect of pronouncing judgment

 Kashanga v. Ernest Kahoya (1976) LRT n. 10

 Tanganyika Haulage Ltd v. CORETCO LTD. (1974) LRT n. 45.

 Halbury’s Laws of England vol. 22 (3rd) 740.

KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO

 Mansion House Ltd (1954) 21 E.A.C.A. 98, 102

 Rashid Nkiingu v. Ally Mohamed [1984] TLR 46

 Papari v. Shah (1961) E.A. 676.

 Salum Sururu v. Zahor Abdulla [1988] TLR 41

ARREST BEFORE JUDGMENT

KARIM G. MUSSA | MUSLIM UNIVERSITY OF MORORGORO

Request for arrest by telegram

Procedure on application by surety to be discharged

Procedure where defendant fails to furnish security

ATTACHMENT BEFORE JUDGMENT

Where cause is shown

Property attached before judgment not to be reattached in execution of decree