MODES OF EXECUTION

There are three modes of Execution but, there are two mostly used modes of Executing the decretal amount which was awarded by either the Judge, Registrar, or Magistrate.

The time limit for filing the execution is 12 years.

The different modes of carrying out execution are set out under section 42 of Civil Procedure Code Cap. 33 RE 2019. The section reads:

Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order execution of the decree-

(a) by delivery of any property specifically decreed:

(b) by attachment and sale or by sale without attachment of any property:

(c) by arrest and detention in prison:

Those two mostly used modes of Execution include:

i) Attachment of properties of the Debtor.

In this mode of Execution is whereby the Decree Holder attaches any property that is owned or possessed by the Debtor. The Decree Holder must have the Tin Number of the Debtor so that the Decree Holder can conduct a search at TRA to obtain the properties which are owned by the Debtor and the search is important as the Decree Holder will be able to choose what property he wants to attach.

When the Decree Holder prays to Court that the said property for example: a truck or car to be attached and when the Court issued an order to do so.

Firstly, the Court will give us the letter which we will have to give it to TRA with the sole purpose of TRA to notify us if the said property indeed belongs to the Debtor.

After there, the TRA officer will reply to the said letter to the Court and if it is found that the said property does belong to the Debtor then the Court will choose a Court Broker who will apprehend the said property.

And then if Execution will be done before the elapse of one year from the date the judgment was received then, the process of selling the said property will follow so as the Decree Holder can get the outstanding money which he was awarded by the Court. The Court Broker will proceed to hold an auction for sale of the said property.

In this mode of execution, the Law requires for the Decree Holder to pay the Court Broker for his costs which he will use starting from

apprehending the said property from the Debtor until to the completion of the sale of the said property.

It is when the Court Broker will file to Court his Bill of costs claiming for the costs that he used during apprehending of the said property from the Debtor until to the completion of the sale of the said property.

The said payments to the Court Broker will be done as provided under the fourth schedule of the Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) G.N No. 36

The prescribed fees, charges and allowances shall, unless stated otherwise, be deemed to include all expenses of attachment, advertisement, sale, inventories, catalogues and necessary charges for safeguarding the property under attachment:

For selling movable property where the amount realized does not exceed Tshs. 5 Million, exceed Tshs. 5 million 10% Tshs. 500,000/= plus 7% of the amount above Tshs. 5 million provided that the amount payable shall not exceed 10,000,000/=.

Furthermore, despite the above requirements provided by the Law the payments of the Court Brokers for their services may also be done as listed below:

If the property sold has more value than the decretal amount, the Decree Holder will be awarded the decretal amount.

The remaining balance will be used to pay Court Brokers and the rest will be given back to the Judgment Debtor. In here, if the Court Brokers are paid then, they cannot file bill of cost in the court since they are already paid.

Further take note that, the Court may upon its discretion, request both decree holder and judgment debtor to agree for the contribution on how to pay the compensation to Court Brokers.”

ii) Attachment of the Bank Account of the Debtor a legal term is Garnishee Order Nisi.

· Where the execution process involves garnishment, the Court will issue a garnishee order nisi through a Court Broker or Court Process Server to serve the said order directing the third party (Garnishee) and it can include a Bank where the Judgment Debtor operates his account directing him to attach the said account and require him to furnish the Court with a report through a Court Broker or Court

Process Server on how the order was complied with or refused to be complied with including status of the Judgment Debtors account in not less than 14 days.

In absence of any objection against the garnishee order nisi in 14 days and upon a report filed in court by a third party (Garnishee), the Court shall issue a Garnishee order absolute after 30 days from the date when the garnishee order nisi was issued.

The order is to direct the garnishee to pay and remit the sum of money stated in the order into the special Judiciary account supervised by the Chief Court Administrator who will upon the order of the Court, pay the Decree Holder.

The final mode of Executing the costs which was awarded in Court is by Arrest and Detention of the judgment debtor.

The position of the law relating to the arrest of Judgement Debtor as a civil prisoner is provided for under sections 42 to 47 and rules 28, 35 to 39 of Order XXI of the Civil Procedure Code Cap. 33 RE 2019.

The Court has a duty to weigh whether the conditions under Order XXI rule 39 (2) of the Civil Procedure Code Cap 33 RE 2019 have been satisfied before making any order of arrest and detention. The respective provision provides that:

“The wording of section 42 mentioned above presupposes that the decree holder is at liberty to choose the mode of execution appropriate in the circumstances of his case. That prerogative is subject to "such conditions and limitations as may be prescribed by the court".

In the GRAND ALLIANCE LIMITED VS. MR. WILFRED LUCAS TARIMO & OTHERS (CIVIL APPL. NO. 187 OF 2019) [2020] TZCA 191; [21 APRIL 2020 TANZLII] the Court of Appeal (Sehel, J. A) highlighted the preconditions to be considered before ordering imprisonment of a judgment-debtor:

(a) there must be an application for execution of a decree for payment of money by arrest and detention in prison of a judgment-debtor.

(b) executing court has to issue a notice to show cause to the person against whom execution is sought.

(c)the executing court has to satisfy itself as to whether the conditions mentioned under Order XXI rule 39 (2) exist or not.

Upon consideration of the above factors, the executing court may exercise its discretion to make orders allowing or disallowing an application for the arrest and detention of the judgment-debtor.

Upon consideration of the above factors, the executing court may exercise its discretion to make orders allowing or disallowing an application for the arrest and detention of a judgment debtor.

For arrest and detention, the fees of doing so for each person are to be borne by the decree-holder.

During Arrest and detention, the decree-holder will pay the following fees for the judgment debtor.

1. Towel-Tshs. 12,000/=

2. Mattress- Tshs. 100,000/=

3. Pillow- Tshs. 10,000/=

4. Net- Tshs. 13, 000/=

5. A pair of bed sheets- Tshs. 20, 000/=

6. Slippers- Tshs. 3,000/=

7. Toothpaste- Tshs. 2,000/=

Total: 160,000/=

Food expenses per day

1. Tea-Tshs. 2,500/=

2. Drinking water. Tsh1,500/=

3. Food-Tshs. 8,000/=

Total: Tsh 12,000 per day @ 30 days = Tshs 360,000/= per Month

Caution money per month-800,000/=

The total amount for the arrest and detention of a civil prisoner in respect of the execution of a decree is Tanzanian Shillings 1,320,000/= as per the information from the Police Force.

However, this mode of Execution by way of Arrest and Detention of the judgment debtor as a civil prisoner does not necessarily mean that the Director of the judgment debtor will be discharged from his or her debt after being detained as a civil prisoner, which is often for six months, and after the lapse of those six months and the judgment debtor is released from the prison after serving those six months. This has been well stipulated in the case of HANS AINGAYA MACHA VS DIRA NEWSPAPER COMPANY LTD AND MUSA MSAMA IN EXECUTION NO. 59 OF 2022 IN THE HIGH COURT (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM).