Execution of Decree in Tanzania: The Ultimate Guide

This guide covers everything you need to know about execution of decree in Tanzania including;

  • law governing execution in Tanzania
  • meaning of execution
  • how to apply for execution
  • modes of execution
  • the time limit for execution
  • Restrictions and Limitations on Execution Process
  • etc.

Let’s get started

Laws governing execution in Tanzania

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The laws that govern execution processes in Tanzania include;

Principle Legislations

  1. The Civil Procedure Code [Cap. 33 R.E. 2019].
  2. The Government Proceedings Act [Cap. 5 R.E. 2019]
  3. The Reciprocal Enforcement of Foreign Judgments Act [Cap. 8 R.E.
    2019].
  4. The Drugs Control and Enforcement Act [Cap. 95 R.E. 2019].­
  5. The Criminal Procedure Act [Cap. 20 R.E. 2019].
  6. The Economic and Organized Crimes Control Act [Cap. 200 R.E.
    2019].
  7. The Employment and Labour Relations Act [Cap. 366 R.E. 2019].
  8. The Judicature and Application of Laws Act [Cap. 358 R.E. 2019].
  9. The Labour Institutions Act [Cap. 300 R.E. 2019].
  10. The Land Disputes Courts Act [CAP. 216 RE 2019]
  11. The Law of the Child Act [Cap. 13 R.E. 2019].
  12. The Local Government (District Authorities) Act [Cap. 287 R.E.
    2002].
  13. The Local Government (Urban Authorities) Act [Cap. 288 R.E. 2002].
  14. The Magistrates’ Courts Act [Cap. 11 R.E. 2019].
  15. The Proceeds of Crime Act [Cap. 256 R.E. 2019].
  16. The Wildlife Conservation Act [Cap. 283 R.E. 2010].

Subsidiary Legislations

  1. The Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, 2017, GN. No. 363 of 2017.
  2. The Labour Court Rules, 2007, (GN. No. 106/2007)
  3. The Law of the Child (Juvenile Court) (Procedure) Rules, 2016 GN. No. 182 of 2016.
  4. The Magistrates’ Courts (Civil Procedure in Primary Courts) ) Rules GNs. Nos. 310 of 1964 and 119 of 1983.
  5. The Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003
  6. Civil Procedure (Approved Forms) Notice, 2017
See also  Execution of decree against Government in Tanzania [procedures]

What is execution?

In simple terms, execution refers to the legal process by which a court order or judgment is enforced.

Lord Denning(Master of Rolls) in Re Overseas Aviation Engineering (G.B) Ltd (1962) 3 ALL ER 12 defines execution as the process for enforcing or giving effect to the judgment of the court: and it is “completed” when the judgment creditor gets the money or other thing awarded to him by the judgment.

Black’s Law Dictionary 8th Edition page 609 defines execution as the act of carrying out or putting into effect a court order.

Here is how execution works;

Generally, a person who won the case does not automatically get the remedies sought in the proceedings.

Sometimes, the party who loses a court case may willingly comply with the court’s order without any coercion. In such cases, court intervention is unnecessary.

However, if the losing party refuses to comply, the winning party must initiate the execution process to compel them to adhere to the court’s order.

The following hypothetical scenario may help you understand what we are talking about here;

Imagine that John files a lawsuit against Sarah for breach of contract. After the court proceedings, the judge issues a decree stating that Sarah must pay John a specified amount of money in damages for breaching the contract.

However, despite the court’s order, Sarah refuses to pay the damages to John voluntarily. In this case, John can seek enforcement of the decree through the execution process.

The execution process concludes the litigation journey. Before this, there are two preceding stages: firstly, the pre-trial phase, which involves initiating the case and resolving preliminary issues, and secondly, the trial phase where decisions are made based on evidence and arguments presented.

Rationale of execution

The rationale for the execution of a decree lies in the fundamental principles of justice, enforcement of legal rights, and upholding the rule of law.

Several key rationales underpin the execution process:

Enforcement of Court Orders

The primary purpose of execution is to ensure that court orders and judgments are not merely symbolic pronouncements but are effectively enforced.

Without enforcement mechanisms, court decisions would lack teeth, rendering them ineffective in resolving disputes and upholding rights.

Preservation of Legal Rights

Execution safeguards the legal rights of parties involved in legal proceedings. It provides a mechanism for enforcing contractual obligations, recovering debts, obtaining compensation for damages, and securing other forms of relief granted by the court.

This helps prevent injustice and ensures that individuals are not deprived of their rights unlawfully.

Deterrence of Non-Compliance

By providing consequences for non-compliance with court orders, execution serves as a deterrent against parties who may otherwise disregard their legal obligations.

The prospect of facing enforcement actions encourages parties to comply with court decisions voluntarily, fostering a culture of respect for the rule of law.

Maintenance of Social Order

Execution contributes to the maintenance of social order by promoting stability, predictability, and fairness in the resolution of disputes.

When parties can rely on the enforcement of court judgments, they are more likely to abide by legal rules and fulfill their obligations, thereby reducing conflicts and promoting social harmony.

Access to Justice

Effective execution mechanisms ensure that individuals have meaningful access to justice by providing them with a practical means of enforcing their rights and obtaining remedies awarded by the court.

This promotes equality before the law and enhances trust in the judicial system.

What is capable of being executed?

When it comes to execution, not everything that the court says is capable of being executed.

In East Africa Development Bank vs. Blue Line Enterprises (Civil Application No. 57 of 2004) court stated that A decision capable of being executed should be one that has given rights to the party seeking to execute.

Section 31 of CPC is to the effect that only orders and decrees are capable of being executed.

Section 3 of CPC defines Decree to mean a formal expression of an adjudication that conclusively determines the rights of the parties with regard to the controversy between the parties but it does not include any order for dismissal for default.

See also  Legal Research and Writing in Tanzania (students guide & examples)

The same section defines the Order to mean the formal expression of any decision of a civil court that is not a decree.

While both decrees and orders are formal expressions of judicial decisions, the key distinction lies in the finality and conclusiveness of the determination they represent.

A decree conclusively determines the rights of the parties regarding the underlying controversy, whereas an order encompasses a broader range of judicial decisions that may not have the same finality or conclusive effect.

In other words, a decree represents a definitive resolution of the dispute and establishes the rights and obligations of the parties.

Orders may address interim matters, procedural issues, evidentiary rulings, or other aspects of case management, but they do not represent the final adjudication of the dispute.

Okay enough!

Let’s get back to the point

A decree that does not indicate the specific reliefs granted cannot be executed.(see Nawab Abdulrahim Mulla  Vs International Commercial Bank (Tanzania) Limited & Another Miscellaneous Commercial Application No. 153 OF 2021 HC Comm. DSM)

In the case of Prada Enterprises Co. Limited vs Joyce Alex Khalid & Others (Civil Application No.279/01 of 2020) [2023] TZCA 17468 (3 August 2023) the court expounded that the order dismissing the case does not grant the executable right to any party thus it is incapable to be executed.

It was further revealed that the dismissal order had the effect of restoring the parties to their original status as none of the parties was granted a right which
could be executed.

Which court to apply for execution?

Section 33 of CPC is very clear that a decree may be executed either by the court which passed it or by the court to which it is sent for execution.

Court which passed a decree

Section 32 of CPC defines the court which passed a decree as follows;

The expression “court which passed a decree” or words to that effect shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include—
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance; and
(b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Let’s consider an example to illustrate this point

Imagine a case where Alice sues Bob for breach of contract in a District court. The court finds in favor of Alice and issues a decree requiring Bob to pay damages to Alice.

However, Bob disagrees with the court’s decision and decides to appeal to a High Court. The High Court reviews the case and upholds the original decision, affirming the decree in favor of Alice.

Now, if Alice wants to enforce the decree and collect the damages awarded to her, she would typically apply for execution of the decree.

In this scenario:

a) The “court which passed the decree” would include not only the High Court that affirmed the decree but also the District Court where the case was initially heard. This means Alice can seek enforcement of the decree in either the appeals court or the original local court.

b) However, let’s say that by the time Alice applies for execution, the original District Court has been closed down or no longer has the authority to enforce decrees. In this case, the “court which passed the decree” would refer to the court that would have jurisdiction to hear the case if Alice were to file her lawsuit at the time of applying for execution. This could be another District Court with jurisdiction over the same geographical area and subject matter as the original court.

The court to which the decree is sent for execution (Transfer of decree)

This is governed by Section 34 of the CPC.

According to that section, there are two instances where the decree may be sent to another court for execution;

  1. When the decree-holder applies for the transfer.
  2. The court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.
See also  Summary procedure notes in Tanzania (+pdf)

The decree-holder is allowed to apply to transfer the decree to another court;

  • whose local limits of the jurisdiction the judgment debtor actually resides or carries on business
  • In whose local limits is the property situated

When courts passing the decree decide to transfer the decree to another court, it must consider the territorial jurisdiction of the executing court.

Powers of executing court on transfer

The executing Court must take the decree as it stands and execute it according to its terms it is not allowed to change anything.

Discussing the jurisdiction of the executing Court in Maharaj Kumar Mahmud Hasan Khan vs Moti Lai Banker on 7 July 1960, AIR 1961 All 1 it was observed that

“hold it to be a correct proposition of law that a Court executing a decree is bound by the terms of that decree and cannot go behind them. It is equally true as a general proposition that such Court can neither add to such a decree nor vary its terms.”

The same was cemented in the case of Mihayo Mazuki Misana vs Abdallah Mashimba Nzingula (Land Revision 3 of 2021) [2022] TZHC 12021 (29 July 2022) where the court stated that;

“the powers of the executing court are limited to the implementation of the decree brought before it unless it is objected to by the parties. For that reason, a decree cannot be altered anyhow during execution except by a superior court acting on appeal or in revision or by the court passing it on review”

Procedure where court desires that its own decree shall be executed by another court (O. XXI R. 5-8)

The court sending a decree for execution to another court shall send

  • a copy of the decree;
  • a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court by which it was passed or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and
  • a copy of any order for the execution of the decree; or, if no such order has been made, a certificate to that effect.

The court that receives the decree will file the copies and certificates without needing more evidence of the decree or the order for execution unless the judge or magistrate has a special reason and records it in writing.

If the court it’s sent to is a resident magistrate’s court, the court can enforce it or pass it on to a lower court that has the power to enforce it.

Where the court to which the decree is sent for execution is the High Court, the decree shall be executed by such Court in the same manner as if it had been passed by such Court in the exercise of its ordinary original civil jurisdiction.

The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself, and all persons disobeying or obstructing the execution of the decree shall be punishable by such court in the same manner as if it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. -(Section 36 of CPC)

Effect of Transfer

Does the transfer take away the jurisdiction of the Courts of the first instance?

CPC is silent regarding this issue.

C.K. Takwani, Civil Procedure, pg. 420 wrote that

“Once a Court which has passed the decree transfers it to another Competent Court, it would cease to have jurisdiction and can not execute the decree”

This is in respect of only the extent of transfer and not other matters

How to Apply for Execution

All proceedings for execution commence with the filing of an application for execution by any of the following persons:

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Conclusion

My aim here was to share with you everything you need to know about the execution of decree in Tanzania.

Hope you have found this spot useful.

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Read also: Execution of Foreign Judgment in Tanzania

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