CHAPTER 33
CIVIL PROCEDURE CODE

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

   Section

Title

PART IA
PRELIMINARY PROVISIONS

   1.   Short title.

   2.   Application.

   3.   Interpretation.

   4.   Subordination of courts.

   5.   Saving of procedure prescribed in other laws.

   6.   Pecuniary jurisdiction.

PART I
JURISDICTION OF COURTS AND RES JUDICATA

   7.   Jurisdiction of courts.

   8.   Stay of suit.

   9.   Res judicata.

   10.   Bar to further suit.

   11.   When foreign judgment not conclusive.

   12.   Presumption as to foreign judgment.

Place of Suing

   13.   Court in which suits may be instituted.

   14.   Suits to be instituted where subject matter situate.

   15.   Suits for immovable property situate within jurisdiction of different courts.

   16.   Place of institution of suit where local limits of jurisdiction of courts are uncertain.

   17.   Suits of compensation for wrongs to person or movables.

   18.   Other suits to be instituted where defendant resides or cause of action arises.

   19.   Objections to jurisdiction.

   20.   Power to transfer suits which may be instituted in more than one court.

   21.   General power of transfer and withdrawal.

Institution of Suits

   22.   Institution of suits.

Summons and Discovery

   23.   Summons to defendant.

   24.   Service of summons where defendant resides outside jurisdiction of court.

   25.   Power to order discovery and the like.

   26.   Summons to witness.

   27.   Penalty for default.

Judgment and Decree

   28.   Judgment and decree.

Interest

   29.   Interest on judgment debts.

Costs

   30.   Costs.

PART II
EXECUTION

General

   31.   Application to orders.

   32.   Definition of "court which passed a decree".

Courts by which Decrees may be Executed

   33.   Courts by which decrees may be executed.

   34.   Transfer of decree.

   35.   Result of execution proceedings to be certified.

   36.   Powers of court in executing transferred decree.

   37.   Precepts.

Questions to be Determined by Court Executing Decree

   38.   Question to be determined by the court executing decree.

Limit of Time for Execution

   39.   Execution barred in certain cases.

Transferees and Legal Representatives

   40.   Transferee.

   41.   Legal representative.

Procedure in Execution

   42.   Powers of court to enforce execution.

   43.   Enforcement of decree against legal representative.

Arrest and Detention

   44.   Arrest and detention.

   45.   Subsistence allowance.

   46.   Detention and release.

   47.   Release on grounds of illness.

Attachment

   48.   Property liable to attachment and sale in execution of decree.

   49.   Seizure of property in dwelling house.

   50.   Property attached in execution of decrees of several courts.

Sale

   51.   Private alienation of property after attachment to be void.

   52.   Purchaser's title.

   53.   Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff.

Distribution of Assets

   54.   Proceeds of execution sale to be rateably distributed among decree-holders.

Resistance to Execution

   55.   Resistance to execution.

PART III
INCIDENTAL PROCEEDINGS

Commissions

   56.   Power of court to issue commissions.

   57.   Commission to another court.

   58.   Letter of request.

   59.   Commissions issued by foreign courts.

PART IV
SUITS IN PARTICULAR CASES

Suits against Public Officers

   60.   Exemption from arrest and personal appearance of public officers.

Suits by Aliens and Foreign States

   61.   When aliens may sue.

   62.   When foreign State may sue.

Interpleader

   63.   Where interpleader suit may be instituted.

PART V
SPECIAL PROCEEDINGS

Arbitration

   64.   Arbitration

Special Case

   65.   Power to state case for opinion of court.

Suits relating to Public Matters

   66.   Public nuisance.

   67.   Public charities.

PART VI
SUPPLEMENTAL PROCEEDINGS

   68.   Supplemental proceedings.

   69.   Compensation for obtaining arrest, attachment or injunction on insufficient grounds.

PART VII
APPEALS

Appeals from Decrees

   70.   Appeal from original decree.

   71.   Appeal from final decree where no appeal from preliminary decree.

   72.   Decision where appeal heard by two or more judges.

   73.   No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

Appeals from Orders

   74.   Orders from which appeals lie.

   75.   Other orders.

General Provisions relating to Appeals

   76.   Powers of the High Court on appeal.

PART VIII
REFERENCE, REVIEW AND REVISION

   77.   Reference to High Court.

   78.   Review.

   79.   Revision.

PART IX
RULES

   80.   Application of rules in First and Second Schedules.

   81.   Powers of Chief Justice to make rules.

   82.   Matters for which rules may provide.

PART X
MISCELLANEOUS PROVISIONS

   83.   Courts to respect privacy of women enjoined by religion or custom.

   84.   Arrest other than in execution of decree.

   85.   Exemption from arrest under civil process.

   86.   Procedure where person to be arrested or property to be attached is outside jurisdiction.

   87.   Assessors in causes of salvage, etc.

   88.   Orders and notices to be in writing.

   89.   Application for restitution.

   90.   Enforcement of liability of surety.

   91.   Proceedings by or against representatives.

   92.   Consent or agreement by persons under disability.

   93.   Enlargement of time.

   94.   Transfer of business.

   95.   Saving of inherent powers or court.

   96.   Amendments of judgments, decrees or orders.

   97.   General power to amend.

PART XI
REPEAL AND TRANSITIONAL PROVISIONS

   98.-100.   [Omitted.]

   101.   Forms.

FIRST SCHEDULE
THE CIVIL PROCEDURE RULES

   Rule

   1A.   Citation.

ORDER I: PARTIES TO SUITS

(a) Joinder of Parties

   1.   Who may be joined as plaintiffs.

   2.   Power of court to order separate trials.

   3.   Who may be joined as defendants.

   4.   Court may give judgment for or against one or more of joint parties.

   5.   Defendant need not be interested.

   6.   Joinder of parties liable on same contract.

   7.   When plaintiff in doubt, from whom redress is to be sought.

   8.   One person may sue or defend on behalf of all in same interest.

   9.   Misjoinder and non-joinder of parties.

   10.   Suit in name of wrong plaintiff.

   11.   Conduct of suit.

   12.   Appearance of one of several plaintiffs or defendants for others.

   13.   Objections as to non-joinder or misjoinder.

(b) Third Party Procedure

   14.   Leave to file third party notice.

   15.   Contents of notice.

   16.   Service of notice on third party and other parties to the suit.

   17.   Defence by third party.

   18.   Directions.

   19.   Judgment against third party in default.

   20.   Costs.

   21.   Provisions of the Code and Law of Limitation to apply to third party proceedings.

   22.   A third party may present a third party notice.

   23.   Co-defendant as a third party.

ORDER II: FRAME OF SUIT

   1.   Frame of suit.

   2.   Suit to include the whole claim, relinquishment of part of claim, and omission to sue for one of several reliefs.

   2A.   [Omitted.]

   3.   Joinder of causes of action.

   4.   Only certain claims to be joined for recovery of immovable property.

   5.   Claims by or against executor, administrator or heir.

   6.   Power of court to order separate trials.

   7.   Objections as to misjoinder of causes of action.

ORDER III: RECOGNISED AGENTS AND ADVOCATES

   1.   Appearances, etc., may be in person, by recognised agent or by advocate.

   2.   Recognised agents.

   2A.   Certification by the Council for Legal Education.

   3.   Service of process on recognised agent.

   4.   Advocate to produce written authority when required.

   5.   Service of process on advocate.

   6.   Agent to accept service and appointment to be in writing and to be filed in court.

ORDER IV: INSTITUTION OF SUITS

   1.   Suit to be commenced by plaint.

   2.   Register of suits.

   3.   Instituted suits to be assigned within four days.

ORDER V: ISSUE AND SERVICE OF SUMMONS

Issue of Summons

   1.   Summons.

   2.   Summons to be signed and sealed.

   3.   Copy of plaint.

   4.   Further directions in summons to appear.

   5.   Appearance of defendant.

   6.   Fixing day for appearance.

   7.   Personal appearance of the parties.

   8.   No party to be ordered to appear in person unless resident within certain limits.

Service of Summons

   9.   Delivery or transmission of summons for service.

   10.   Mode of service.

   11.   Service on several defendants.

   12.   Service to be on defendant in person when practicable or on his agent.

   13.   Service on agent by whom defendant carries on business.

   14.   Service on agent in charge in suits for immovable property.

   15.   Where service may be made on any adult member of defendant's family.

   16.   Person served to sign acknowledgement.

   17.   Procedure when defendant cannot be found.

   18.   Endorsement of time and manner of service.

   19.   Examination of serving officer.

   20.   Substituted service.

   21.   Service by post.

   22.   Service of summons where defendant resides within jurisdiction of another court.

   23.   Duty of court to which summons is sent.

   24.   Service on defendant in prison.

   25.   Service on officers of the Government and local government authorities.

   26.   Service on members of the armed forces.

   27.   Duty of person to whom summons is delivered or sent for service.

   28.   Service where defendant resides in a neighbouring country.

   29.   Service where defendant resides outside Tanzania.

   30.   Service by post, when effective.

   31.   Service by the plaintiff or his agent.

   32.   Service through the courts of other countries.

   33.   Procedure for procuring service through courts of other counties.

ORDER VI: PLEADING GENERALLY

   1.   Pleading.

   2.   Service of pleading on parties to the suit.

    3.   Pleading to state material facts and not evidence.

   4.   Particulars to be given where necessary.

   5.   Further and better statements or particulars.

   6.   Condition precedent.

   7.   Departure.

   8.   Denial of contract.

   9.   Effect of document to be stated.

   10.   Malice, knowledge, etc.

   11.   Notice.

   12.   Implied contract or relation.

   13.   Presumption of law.

   14.   Pleading to be signed.

   15.   Verification of pleading.

   16.   Striking out pleading.

   17.   Amendment of pleadings.

   18.   Failure to amend after order.

ORDER VII: PLAINT

   1.   Particulars to be contained in plaint.

   2.   In money suits, precise amount of money to be stated.

   3.   Where the subject matter of the suit is immovable property, identification required.

   4.   When plaintiff sues as representative.

   5.   Defendant's interest and liability to be shown.

   6.   Ground of exemption from limitation law.

   7.   Relief to be specifically stated.

   8.   Relief founded on separate grounds.

   9.   List of documents.

   10.   Return of plaint and procedure on returning plaint.

   11.   Rejection of plaint.

   12.   Procedure on rejecting plaint.

   13.   Where rejection of plaint does not preclude presentation of fresh plaint.

Documents Relied on in Plaint

   14.   Production of document on which plaintiff sues.
List of other documents.

   15.   Statement in case of documents not in plaintiff's possession or power.

   16.   Suits on lost negotiable instruments.

   17.   Production of shop book and original entry to be marked and returned.

   18.   Inadmissibility of document not produced when plaint filed.

ORDER VIII: WRITTEN STATEMENT, SET-OFF AND COUNTERCLAIM

   1.   Written statement of defence.

   2.   New facts must be specially pleaded.

   3.   Denial to be specific.

   4.   Evasive denial.

   5.   Specific denial.

   6.   Particulars of set-off to be given in written statement and effect of set-off.

   7.   Defence of set-off founded on separate grounds.

   8.   New ground of defence.

   9.   Counterclaim.

   10.   Counterclaim against plaintiff and third party.

   11.   Reply to counterclaim.

   12.   Court may order separate trial of counterclaim.

   13.   Subsequent pleadings.

   14.   Failure to present written statement of defence.

   15.   When all pleadings presented.

ORDER VIIIA: FIRST PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE

   1.   Application.

   2.   Exemption from application of certain rules.

   3.   Scheduling and settlement to be held within twenty-one days.

      Speed track of cases.

   4.   Prohibition of further amendment to an order.

   5.   Orders against defaulting party.

   6.   Prohibition of adjournment of conference.

   7.   Sessions of pre-trial conference.

ORDER VIIIB: FINAL PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE

   1.   Application.

   2.   Exemption from application of any rule under this order.

   3.   Final pre-trial conference.

ORDER VIIIC: ARBITRATION, NEGOTIATIONS AND MEDIATION PROCEDURE

   1.   Directions to be made by the Chief Justice.

   2.   Procedure on arbitration

ORDER IX: APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-APPEARANCE

   1.   Parties to appear on day fixed in summons or on day fixed for hearing.

   2.   Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.

   3.   Where neither party appears suit to be dismissed.

   4.   Plaintiff may bring fresh suit or court may restore suit.

   5.   Dismissal of suit where plaintiff, after summons returned unserved, fails for three month to apply for fresh summons.

   6.   Procedure when only plaintiff appears.

   7.   Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.

   8.   Procedure where defendant only appears.

   9.   Decree against plaintiff by default bars fresh suit.

   10.   Procedure in case of non-attendance of one or more of several plaintiffs.

   11.   Procedure in case of non-attendance of one or more of several defendants.

   12.   Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.

Setting Aside Decrees Ex Parte

   13.   Setting aside decree or judgment ex parte against defendant.

   14.   No decree or judgment to be set aside without notice to opposite party.

ORDER X: EXAMINATION OF PARTIES BY THE COURT

   1.   Ascertainment whether allegations in pleading are admitted or denied.

   2.   Oral examination of party or companion of party.

   3.   Substance of examination to be written.

   4.   Consequence of refusal or inability of advocate to answer.

ORDER XI: DISCOVERY AND INSPECTION

   1.   Discovery by interrogatories.

   2.   Particular interrogatories to be submitted.

   3.   Costs of interrogatories.

   4.   Interrogatories relating to corporations.

   5.   Objections to interrogatories by answer.

   6.   Setting aside and striking out interrogatories.

   7.   Filing of affidavit in answer.

   8.   No exception to be taken.

   9.   Order to answer or answer further.

   10.   Application for discovery of documents.

   11.   Affidavit of documents.

   12.   Production of documents.

   13.   Inspection of documents referred to in pleadings or affidavits.

   14.   Time for inspection when notice given.

   15.   Order for inspection.

   16.   Verified copies.

   17.   Premature discovery.

   18.   Non-compliance with order for discovery.

   19.   Using answers to interrogatories at trial.

   20.   Application of Order to minors.

ORDER XII: ADMISSIONS

   1.   Notice of admission of case.

   2.   Notice to admit documents.

   3.   Notice to admit facts.

   4.   Judgment on admissions.

   5.   Affidavit of signature.

   6.   Evidence of notice to produce documents.

   7.   Costs.

ORDER XIII: PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

   1.   Documentary evidence to be produced at first hearing.

   2.   Effect of non-production of documents.

   3.   Rejection of irrelevant or inadmissible documents.

   4.   Endorsements on documents admitted in evidence.

   5.   Endorsements on copies of admitted entries in books, accounts and records.

   6.   Endorsements on documents rejected as inadmissible in evidence.

   7.   Recording of admitted documents and return of rejected documents.

   8.   Court may order any document to be impounded.

   9.   Return of admitted documents.

   10.   Court may send for papers from its own records or from other courts.

   11.   Provisions as to documents also applicable to material objects.

ORDER XIV: SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON

   1.   Framing of issues.

   2.   Issues of law and of fact.

   3.   Materials from which issues may be framed.

   4.   Court may examine witnesses or documents before framing issues.

   5.   Power to amend, and strike out, issues.

   6.   Questions of fact or law may by agreement be stated in form of issues.

   7.   Court, if satisfied that agreement was executed in good faith, may pronounce judgment.

ORDER XV: DISPOSAL OF THE SUIT AT FIRST HEARING

   1.   Parties not at issue.

   2.   One of several defendants not at issue.

   3.   Parties at issue.

   4.   Failure to produce evidence.

ORDER XVI: SUMMONING AND ATTENDANCE OF WITNESSES

   1.   Summons to attend, to give evidence or produce documents.

   2.   Expenses of witnesses.

   3.   Tender of expenses to witnesses.

   4.   Procedure where insufficient sum paid in and expenses of witnesses detained more than one day.

   5.   Time, place and purpose of attendance to be specified in summons.

   6.   Summons to produce document.

   7.   Power to require persons present in court to give evidence or produce document.

   8.   Summons, how served.

   9.   Time for serving summons.

   10.   Procedure where witness fails to comply with summons.

   11.   If witness appears attachment may be withdrawn.

   12.   Procedure if witness fails to appear.

   13.   Mode of attachment.

   14.   Court may of its own accord summon as witnesses strangers to suit.

   15.   Duty of persons summoned to give evidence or produce document.

   16.   Obligation of person summoned to attend hearing.

   17.   Application of rules 10 to 13.

   18.   Procedure where witness apprehended cannot give evidence or produce document.

   19.   No witness to be ordered to attend in person unless resident within certain limits.

   20.   Consequence of refusal of party to give evidence when called on by court.

   21.   Rules as to witnesses to apply to parties summoned.

ORDER XVII: ADJOURNMENTS

   1.   Court may grant time and adjourn hearing and costs of adjournment.

   2.   Procedure if parties fail to appear on day fixed.

   3.   Court may proceed notwithstanding either party failing to produce evidence, etc.

   4.   Procedure where no application is made on suit adjourned generally.

   5.   Suit may be struck out if no step taken for three years.

ORDER XVIII: HEARING OF SUIT AND EXAMINATION OF WITNESSES

   1.   Right to begin.

   1A.   Assessors.

   1B.   Absence of assessors.

   2.   Statement and production of evidence.

   3.   Evidence where there are several issues.

   4.   Witnesses to be examined in open court.

   5.   How evidence shall be taken.

   6.   Any particular question and answer may be taken down.

   7.   Questions objected to and allowed by court.

   8.   Remarks on demeanour of witnesses.

   9.   Power to direct shorthand record.

   10.   Power to deal with evidence taken before another judge or magistrate.

   11.   Power to examine witness immediately.

   12.   Court may recall and examine witness.

   13.   Power of court to inspect.

ORDER XIX: AFFIDAVITS

   1.   Power to order any point to be proved by affidavit.

   2.   Power to order attendance of deponent for cross-examination.

   3.   Matters to which affidavits shall be confined.

ORDER XX: JUDGMENT AND DECREE

   1.   Judgment, when pronounced.

   2.   Power to pronounce judgment written by judge's or magistrate's predecessor.

   3.   Judgment to be signed.

   3A.   Judgment in the Commercial Division of the High Court.

   3B.   Opinion of assessors.

   4.   Contents of judgments.

   5.   Court to state its decision on each issue.

   6.   Contents of decree.

   7.   Date of decree.

   8.   Procedure where judge or magistrate has vacated office before signing decree.

   9.   Decree for recovery of immovable property.

   10.   Decree for delivery of movable property.

   11.   Decree may direct payment by instalments.

   12.   Decree for possession and mesne profits.

   13.   Decree in administration suit.

   14.   Decree in pre-emption suit.

   15.   Decree in suit for dissolution of partnership.

   16.   Decree in suit for account between principal and agent.

   17.   Special directions as to accounts.

   18.   Decree in suit for partition of property or separate possession of a share therein.

   19.   Decree when set-off allowed and appeal from decree relating to set-off.

   20.   Certified copies of judgment and decree to be furnished.

Interest

   21.   Interest on judgment debts.

ORDER XXI: EXECUTION OF DECREES AND ORDERS

Payment under Decree

   1.   Modes of paying money under decree.

   2.   Payment out of court to decree-holder.

   2A.   Satisfaction of orders against the Government.

Courts Executing Decrees

   3.   Lands situate in more than one jurisdiction.

   4.   Mode of transfer.

   5.   Procedure where court desires that its own decree shall be executed by another court.

   6.   Court receiving copies of decree, etc., to file same without proof.

   7.   Execution of decree or order by court to which it is sent.

   8.   Execution by High Court of decree transferred by other court.

Application for Execution

   9.   Application for execution.

   10.   Oral and written applications.

   11.   Application for attachment of movable property not in judgment debtor's possession.

   12.   Application for attachment of immovable property to contain certain particulars.

   13.   Application for execution by joint decree-holder.

   14.   Application for execution by transferee of decree.

   15.   Procedure on receiving application for execution of decree.

   16.   Execution in case of cross-decrees.

   17.   Execution in case of cross-claims under same decree.

   18.   Cross-decrees and cross-claims in mortgage suits.

   18A.   Continuous order for attachment in certain cases.

   19.   Simultaneous execution.

Notice before Execution

   20.   Notice to show cause against execution in certain cases.

   21.   Procedure after issue of notice.

Process for Execution

   22.   Process for execution.

   23.   Endorsement on process.

Stay of Execution

   24.   When court may stay execution and power to require security from or impose conditions upon judgment debtor.

   25.   Liability of judgment debtor discharged.

   26.   Order of court which passed decree or of appellate court to be binding upon court applied to.

   27.   Stay of execution pending suit between decree-holder and judgment debtor.

Mode of Execution

   28.   Decree for payment of money.

   29.   Decree for specific movable property.

   30.   Decree for specific performance, for restitution of conjugal rights, or for an injunction.

   31.   Execution of decrees for restitution of conjugal rights.

   32.   Decree for execution of document or endorsement of negotiable instrument.

   33.   Decree for delivery of immovable property.

   34.   Decree for delivery of immovable property when in occupancy of tenant.

Arrest and Detention in Prison

   35.   Discretionary power to permit judgment debtor to show cause against detention in prison.

   36.   Warrant for arrest to direct judgment debtor to be brought up.

   37.   Request for arrest by telegram.

   38.   Subsistence allowance.

   39.   Proceedings on appearance of judgment debtor in obedience to notice or after arrest.

Attachment of Property

   40.   Examination of judgment debtor as to his property.

   41.   Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.

   42.   Attachment of movable property, other than agricultural produce, in possession of judgment debtor.

   43.   Attachment of agricultural produce.

   44.   Provisions as to agricultural produce under attachment.

   45.   Attachment of debt, share and other property not in possession of judgment debtor.

   46.   Attachment of share in movables.

   47.   Attachment of salary.

   48.   Attachment of partnership property.

   49.   Execution of decree against firm.

   50.   Attachment of negotiable instruments.

   51.   Attachment of property in custody of court or public officer.

   52.   Attachment of decrees.

   53.   Attachment of immovable property.

   54.   Removal of attachment after satisfaction of decree.

   55.   Order for payment of coin or currency notes to party entitled under decree.

   56.   Determination of attachment.

Investigation of Claims and Objections

   57.   Investigation of claims to, and objections to attachment of, attached property and postponement of sale.

   58.   Evidence to be adduced by claimant.

   59.   Release of property from attachment.

   60.   Disallowance of claim to property attached.

   61.   Continuance of attachment subject to claim of incumbrancer.

   62.   Saving of suits to establish right to attached property.

Sale Generally

   63.   Power to order property attached to be sold and proceeds to be paid to person entitled.

   64.   Sales, by whom conducted and how made.

   65.   Proclamation of sales by public auction.

   66.   Mode of making proclamation.

   67.   Time of sale.

   68.   Adjournment or stoppage of sale.

   69.   Defaulting purchaser answerable for loss on re-sale.

   70.   Decree-holder not to bid for or buy property without permission.

   71.   Restriction on bidding or purchase by officer.

Sale of Movable Property

   72.   Sale of agricultural produce.

   73.   Special provisions relating to growing crops.

   74.   Negotiable instruments and shares in corporations.

   75.   Sale by public auction.

   76.   Irregularity not to vitiate sale, but any person injured may sue.

   77.   Delivery of movable property, debts and shares.

   78.   Transfer of negotiable instruments and shares.

   79.   Vesting order in case of other property.

Sale of Immovable Property

   80.   What courts may order sales.

   81.   Postponement of sale to enable judgment debtor to raise amount of decree.

   82.   Deposit by purchaser and re-sale on default.

   83.   Time for payment in full of purchase money.

   84.   Procedure in default of payment.

   85.   Notification on re-sale.

   86.   Bid of co-sharer to have preference.

   87.   Application to set aside sale on deposit.

   88.   Application to set aside sale on ground of irregularity or fraud.

   89.   Application by purchaser to set aside sale on ground of judgment debtor having no saleable interest.

   90.   Sale, when to become absolute or be set aside.

   91.   Return of purchase money in certain cases.

   92.   Certificate to purchaser.

   93.   Delivery of property in occupancy of judgment debtor.

   94.   Delivery of property in occupancy of tenant.

Resistance to Delivery of Possession to Decree-Holder or Purchaser

   95.   Resistance or obstruction to possession of immovable property.

   96.   Resistance or obstruction by judgment debtor.

   97.   Resistance or obstruction by bona fide claimant.

   98.   Dispossession by decree-holder or purchaser.

   99.   Bona fide claimant to be restored to possession.

   100.   Rules not applicable to transferee pendente lite.

   101.   Orders conclusive subject to regular suit.

ORDER XXII: DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

   1.   No abatement by party's death if right to sue survives.

   2.   Procedure where one of several plaintiffs or defendants dies and right to sue survives.

   3.   Procedure in case of death of one of several plaintiffs or of sole plaintiff.

   4.   Procedure in case of death of one of several defendants or of sole defendant.

   5.   Determination of question as to legal representative.

   6.   No abatement by reason of death after hearing.

   7.   Suit not abated by marriage of female party.

   8.   When plaintiff's insolvency bars suit and procedure where assignee fails to continue suit or give security.

   9.   Effect of abatement or dismissal.

   10.   Procedure in case of assignment before final order in suit.

   11.   Application of Order to appeals.

   12.   Application or Order to proceedings in execution of decree or order.

ORDER XXIII: WITHDRAWAL AND ADJUSTMENT OF SUITS

   1.   Withdrawal of suit or abandonment of part of claim.

   2.   Limitation law not affected by fresh suit.

   3.   Compromise of suit.

   4.   Proceedings in execution of decrees not affected.

ORDER XXIV: PAYMENT INTO COURT

   1.   Deposit by defendant of amount in satisfaction of claim.

   2.   Notice of deposit.

   3.   Interest on deposit not allowed to plaintiff after notice.

   4.   Procedure where plaintiff accepts deposit as satisfaction in full or in part.

ORDER XXV: SECURITY FOR COSTS

   1.   When security for costs may be required from plaintiff.

   2.   Effect of failure to furnish security.

ORDER XXVI: COMMISSIONS

Commissions to Examine Witnesses

   1.   Cases in which court may issue commission to examine witness.

   2.   Order for commission.

   3.   Where witness resides within court's jurisdiction.

   4.   Persons for whose examination court may issue commission.

   5.   Commission or request to examine witness not within Tanzania.

   6.   Court to examine witness pursuant to commission.

   7.   Return of commission with depositions of witnesses.

   8.   When depositions may be read in evidence.

Commissions for Local Investigations

   9.   Commissions to make local investigation.

   10.   Procedure of commissioner and evidential status of report and deposition in suit.

Commissions to Examine Accounts

   11.   Commission to examine or adjust accounts.

   12.   Court to give commissioner necessary instructions; and evidential status of proceedings and report.

Commissions to Make Partitions

   13.   Commission to make partition of immovable property.

   14.   Procedure of commissioner.

General Provisions

   15.   Expenses of commission to be paid into court.

   16.   Powers of commissioners.

   17.   Attendance and examination of witnesses before commissioner.

   18.   Parties to appear before commissioner.

ORDER XXVII: SUITS BY OR AGAINST MILITARY PERSONNEL

   1.   Officers or soldiers who cannot obtain leave may authorise any person to sue or defend for them.

   2.   Person so authorised may act personally or appoint advocate.

   3.   Service on person authorised, or on his advocate, to be good service.

ORDER XXVIII: SUITS BY OR AGAINST CORPORATIONS

   1.   Subscription and verification of pleading.

   2.   Service on corporation.

   3.   Power to require personal attendance of officer of corporation.

ORDER XXIX: SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

   1.   Suing of partners in name of firm.

   2.   Disclosure of partners' names.

   3.   Service.

   4.   Right of suit on death of partner.

   5.   Notice, in what capacity served.

   6.   Appearance of partners.

   7.   No appearance except by partners.

   8.   Appearance under protest.

   9.   Suits between co-partners.

   10.   Suit against person carrying on business in name other than his own.

ORDER XXX: SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

   1.   Representation of beneficiaries in suits concerning property vested in trustees, etc.

   2.   Joinder of trustees, executors and administrators.

ORDER XXXI: SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

   1.   Minor to sue by next friend.

   2.   Where suit is instituted without next friend, plaint to be taken off the file.

   3.   Guardian for the suit to be appointed by court for minor defendant.

   4.   Who may act as next friend or be appointed guardian for suit.

   5.   Representation of minor by next friend or guardian for the suit.

   6.   Receipt by next friend or guardian for the suit of property under decree for minor.

   7.   Agreement or compromise by next friend or guardian for the suit.

   8.   Retirement of next friend.

   9.   Removal of next friend.

   10.   Stay of proceedings on removal, etc., of next friend.

   11.   Retirement, removal or death of guardian for the suit.

   12.   Course to be followed by minor plaintiff or applicant on attaining majority.

   13.   Where minor co-plaintiff attaining majority desires to repudiate suit.

   14.   Unreasonable or improper suit.

   15.   Application of rules to persons of unsound mind.

ORDER XXXII: SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

   1.   Parties to suits for foreclosure, sale and redemption.

   2.   Preliminary decree in foreclosure suit.

   3.   Final decree in foreclosure suit, power to enlarge time and discharge of debt.

   4.   Preliminary decree in suit for sale and power to decree sale in foreclosure suit.

   5.   Final decree in suit for sale.

   6.   Recovery of balance due on mortgage.

   7.   Preliminary decree in redemption suit.

   8.   Final decree in redemption suit and power to enlarge time.

   9.   Decree where nothing is found due or where mortgagee has been overpaid.

   10.   Costs of mortgagee subsequent to decree.

   11.   Right of mesne mortgagee to redeem and foreclose.

   12.   Sale of property subject to prior mortgage.

   13.   Application of proceeds.

   14.   Suit for possession.

   15.   Interpretation.

   16.   Mortgages by deposit of title deeds and charges.

ORDER XXXIII: INTERPLEADER

   1.   Plaint in interpleader suits.

   2.   Payment of thing claimed into court.

   3.   Procedure where defendant is suing plaintiff.

   4.   Procedure at first hearing.

   5.   Agents and tenants may not institute interpleader suits.

   6.   Charge for plaintiff's costs.

ORDER XXXIV: SPECIAL CASE

   1.   Power to state case for court's opinion.

   2.   Where value of subject matter must be stated.

   3.   Agreement to be filed and registered as suit.

   4.   Parties to be subject to court's jurisdiction.

   5.   Hearing and disposal of case.

ORDER XXXV: SUMMARY PROCEDURE

   1.   Application of Order.

   2.   Institution of summary suits.

   3.   Defendant showing defence on merits to have leave to appear.

   4.   Power to set aside decree.

   5.   Power to order bill, etc., to be deposited with officer of court.

   6.   Recovery of cost of noting non-acceptance of dishonoured bill or note.

   7.   Procedure in suits.

ORDER XXXVI: ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before Judgment

   1.   Where defendant may be called upon to furnish security for appearance.

   2.   Request for arrest by telegram.

   3.   Security.

   4.   Procedure on application by surety to be discharged.

   5.   Procedure where defendant fails to furnish security or find fresh security.

Attachment before Judgment

   6.   Where defendant may be called upon to furnish security for production of property.

   7.   Attachment where cause not shown or security not furnished.

   8.   Mode of making attachment.

   9.   Investigation of claim to property attached before judgment.

   10.   Removal of attachment when security furnished or suit dismissed.

   11.   Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale.

   12.   Property attached before judgment not to be re-attached in execution of decree.

   13.   Agricultural produce not attachable before judgment.

ORDER XXXVII: TEMPORARY INJUNCTIONS, DECLARATORY ORDERS AND INTERLOCUTORY ORDERS

Temporary Injunctions

   1.   Cases in which temporary injunction may be granted or declaratory order made.

   2.   Injunction to restrain repetition or continuance of breach.

   3.   Procedure where no application is made on suit adjourned generally.

   4.   Before granting injunction court to direct notice to opposite party.

   5.   Order for injunction or declaratory order may be discharged, varied or set aside.

   6.   Injunction to corporation binding on its officers.

Interlocutory Orders

   7.   Power to order interim sale.

   8.   Detention, preservation, inspection, etc., of subject matter of suit.

   9.   Application for orders to be after notice.

   10.   Deposits of money, etc., in court.

ORDER XXXVIII: APPOINTMENT OF RECEIVERS

   1.   Appointment of receivers.

   2.   Remuneration of receiver.

   3.   Duties of receiver.

   4.   Enforcement of receiver's duties.

ORDER XXXIX: APPEALS FROM ORIGINAL DECREES

   1.   Form of appeal, contents of memorandum and attachments.

   2.   Grounds which may be taken on appeal.

   3.   Rejection or amendment of memorandum.

   4.   One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.

Stay of Proceedings and of Execution

   5.   Stay by Appellate Court or by court which passed the decree.

   6.   Security in case of order for execution of decree appealed from.

   7.   No security to be required from the Government or a public officer in certain cases.

   8.   Exercise of powers in appeal from order made in execution of decree.

Procedure on Admission of Appeal

   9.   Registration of memorandum of appeal and register of appeals.

   10.   Appellate Court may require appellant to furnish security for costs.

   11.   Power to dismiss appeal without sending notice to lower court.

   12.   Day for hearing appeal.

   13.   High Court to give notice to court whose decree appealed from; and other requirements.

   14.   Publication and service of notice of day for hearing of appeal.

   15.   Contents of notice.

Procedure on Hearing

   16.   Right to begin.

   17.   Dismissal of appeal for appellant's default and hearing of appeal ex parte.

   18.   Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs.

   19.   Re-admission of appeal dismissed for default.

   20.   Power to adjourn hearing and direct persons appearing interested to be made respondents.

   21.   Re-hearing on application of respondent against whom ex parte decree made.

   22.   Upon hearing, respondent may object to decree as if he had preferred separate appeal.

   23.   Remand of case by High Court.

   24.   Where evidence on record sufficient, High Court may determine case finally.

   25.   Where High Court may frame issues and refer them for trial to court whose decree appealed from.

   26.   Findings and evidence to be put on record, objections to finding and determination of appeal.

   27.   Production of additional evidence in High Court.

   28.   Mode of taking additional evidence.

   29.   Points to be defined and recorded.

Judgment in Appeal

   30.   Judgment, when and where pronounced.

   31.   Contents, date and signature of judgment.

   32.   What judgment may direct.

   33.   Power of High Court.

   34.   Dissent to be recorded.

Decree in Appeal

   35.   Date and contents of decree.

   36.   Copies of judgment and decree to be furnished to parties.

   37.   Certified copy of decree to be sent to court whose decree appealed from.

ORDER XL: APPEALS FROM ORDERS

   1.   Appeals from orders.

   2.   Procedure.

ORDER XLI: REFERENCE

   1.   Reference of question to High Court.

   2.   Court may pass decree contingent upon decision of High Court.

   3.   Judgment of High Court to be transmitted and case disposed of accordingly.

   4.   Costs of reference to High Court.

   5.   Power to alter, etc., decree of court making reference.

   6.   Power to refer to High Court questions as to jurisdiction.

ORDER XLII: REVIEW

   1.   Application for review of judgment.

   2.   To whom application for review may be made.

   3.   Form of applications for review.

   4.   Application, where rejected or granted.

   5.   Application for review in court consisting of two or more judges.

   6.   Decision where application heard by more than one judge.

   7.   Order of rejection not appealable and objections to order granting application.

   8.   Registration of application granted, and order for re-hearing.

   9.   Bar of certain applications.

ORDER XLIII: MISCELLANEOUS PROVISIONS

   1.   Powers of Registrars.

   2.   Applications to be by chamber summons supported by affidavit.

   3.   Process to be served at expense of party issuing and costs of service.

   4.   Orders and notices, how served.

   5.   Directions of High Court may be notified by telegram.

SECOND SCHEDULE
THE CIVIL PROCEDURE (ARBITRATION) RULES

   1A.   Citation and application.

ARBITRATION

ARBITRATION IN SUITS

   1.   Order of reference to arbitration.

   2.   Appointment of arbitrator.

   3.   Order of reference.

   4.   Where reference is to two or more arbitrators, order to provide for difference of opinion.

   5.   Power of court to appoint arbitrator in certain cases.

   6.   Powers of arbitrator or umpire appointed under rule 4 or 5.

   7.   Summoning witnesses and default.

   8.   Extension of time for making award.

   9.   Where umpire may arbitrate in lieu of arbitrators.

   10.   Award to be signed and filed.

   11.   Statement of special case by arbitrators or umpire.

   12.   Power to modify or correct award.

   13.   Order as to costs of arbitration.

   14.   Where award or matter referred to arbitration may be remitted.

   15.   Grounds for setting aside award.

   16.   Judgment to be according to award.

ORDER OF REFERENCE ON AGREEMENTS TO REFER TO ARBITRATION

   17.   Application to file in court agreement to refer to arbitration.

   18.   Stay of suit where there is an agreement to refer to arbitration.

   19.   Provisions applicable to proceedings under rule 17.

ARBITRATION WITHOUT THE INTERVENTION OF A COURT

   20.   Filing award in matter referred to arbitration without intervention of court.

   21.   Filing and enforcement of such award.

SCHEDULES

CHAPTER 33
THE CIVIL PROCEDURE CODE

An Act to provide for the procedure and related matters in civil proceedings.

[1st January, 1967]
[G.N. No. 410 of 1966]

Acts Nos.
49 of 1966
11 of 1976
G.Ns. Nos.
375 of 1966
363 of 1968
376 of 1968
79 of 1970
228 of 1971
23 of 1984
509 of 1991
422 of 1994
140 of 1999

PART IA
PRELIMINARY PROVISIONS (ss 1-6)

1.   Short title

   This Act may be cited as the Civil Procedure Code.

2.   Application 1

   Subject to the express provisions of any written law, the provisions of this Code shall apply to all proceedings in the High Court of the United Republic, courts of resident magistrates and district courts.

3.   Interpretation

   In this Code, unless the context requires otherwise–

   "advocate" has the meaning ascribed to it in the Advocates Act *;

   "court", except in the expression "foreign court", means the High Court of the United Republic, a court of a resident magistrate or a district court presided over by a civil magistrate and references to a district court are references to a district court presided over by a civil magistrate;

   "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final and it shall be deemed to include the rejection of a plaint and the determination of any question within section 38 or section 89, but shall not include–

   (a)   an adjudication from which an appeal lies as an appeal from an order; or

   (b)   any order of dismissal for default.

         Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

   "decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made;

   "foreign court" means a court situated beyond the limits of Tanzania which has no authority in Tanzania;

   "foreign judgment" means the judgment of a foreign court;

   "High Court" means the High Court of the United Republic;

   "judgment" means the statement given by a judge or a magistrate of the grounds for a decree or order;

   "judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made;

   "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sue or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued;

   "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

   "movable property" includes growing crops;

   "order" means the formal expression of any decision of a civil court which is not a decree;

   "rules" means the rules contained in the First and Second Schedules or made under sections 29, 45 or 82;

   "share in a corporation" shall be deemed to include stock, debenture stock, debentures, or bonds; and

   "signed", save in the case of a judgment or decree, includes stamped.

4.   Subordination of courts

   For the purposes of this Code, every court of a resident magistrate and every district court is subordinate to the High Court, and every district court is subordinate to the court of the resident magistrate within the area of whose jurisdiction it is situate.

5.   Saving of procedure prescribed in other laws

   In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time being in force.

6.   Pecuniary jurisdiction

   Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

PART I
JURISDICTION OF COURTS AND RES JUDICATA (ss 7-30)

7.   Jurisdiction of courts

   (1) Subject to this Act the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

   (2) No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and a court may make binding declarations of right whether or not any consequential relief is or could be claimed.

8.   Stay of suit

   No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed.

         Explanation: The pendency of a suit in a foreign court does not preclude the courts in Tanzania from trying a suit founded on the same cause of action.

9.   Res judicata

   No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.

         Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

         Explanation II: For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.

         Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

         Explanation IV: Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

         Explanation V: Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

         Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

10.   Bar to further suit

   Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any court to which this Code applies.

11.   When foreign judgment not conclusive

   A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except–

   (a)   where it has not been pronounced by a court of competent jurisdiction;

   (b)   where it has not been given on the merits of the case;

   (c)   where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Tanzania in cases in which such law is applicable;

   (d)   where the proceedings in which the judgment was obtained are opposed to natural justice;

   (e)   where it has been obtained by fraud;

   (f)   where it sustains a claim founded on a breach of any law in force in Tanzania.

12.   Presumption as to foreign judgment

   The court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Place of Suing (ss 13-21)

13.   Court in which suits may be instituted

   Every suit shall be instituted in the court of the lowest grade competent to try it and, for the purposes of this section, a court of a resident magistrate and a district court shall be deemed to be courts of the same grade.

14.   Suits to be instituted where subject matter situate G.N. No. 375 of 1966">

   Subject to the pecuniary or other limitations prescribed by any law, suits–

   (a)   for the recovery of immovable property with or without rent or profits;

   (b)   for the partition of immovable property;

   (c)   for foreclosure, sale or redemption in the case of a mortgage of or a charge upon immovable property;

   (d)   for the determination of any other right to, or interest in, immovable property;

   (e)   for compensation for a wrong to immovable property; or

   (f)   for the recovery of movable property actually under distraint or attachment,

shall be instituted in the court within the local limits of whose jurisdiction the property is situate:

   Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business or personally works for gain.

         Explanation: In this section "property" means property situated in Tanzania.

15.   Suits for immovable property situate within jurisdiction of different courts

   Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate if, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such court.

16.   Place of institution of suit where local limits of jurisdiction of courts are uncertain

   (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction:

   Provided that the suit is one with respect to which the court is competent as regards the nature and value of the suit to exercise jurisdiction.

   (2) Where a statement has not been recorded under subsection (1), and an objection is taken before an appellate or revisional court that a decree or order in a suit relating to such property was made by a court not having jurisdiction where the property is situate, the appellate or revisional court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice.

17.   Suits of compensation for wrongs to person or movables

   Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.

18.   Other suits to be instituted where defendant resides or cause of action arises

   Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction–

   (a)   the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain;

   (b)   any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

   (c)   the cause of action, wholly or part, arises.

   Explanation I: Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect any cause of action arising at the place where he has such temporary residence.

   Explanation II: A corporation shall be deemed to carry on business at its sole or principal office in Tanzania, or, in respect of any cause of action arising at any place where it is has also a subordinate office, at such place.

19.   Objections to jurisdiction

   No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

20.   Power to transfer suits which may be instituted in more than one court

   Where a suit may be instituted in any one of two or more district courts within the area of the jurisdiction of a court of a resident magistrate, and is instituted in one of such courts, not being the court of the resident magistrate–

   (a)   if before any evidence has been taken all the parties to the suit consent to the suit being transferred to the court of such resident magistrate, the court in which the suit has been instituted shall record the fact of such consent and shall transmit the record to such resident magistrate who shall in due course try the suit;

   (b)   on the application to such resident magistrate of a party to the suit and after notice to the parties and after consideration of objections (if any) of any party such resident magistrate may, at any stage before any evidence has been taken in the suit, transfer the suit for trial by himself; or

   (c)   of his own motion, such resident magistrate may, at any stage before evidence has been taken in the suit, transfer the suit for trial by himself:

   Provided that the exercise of the powers conferred by paragraph (b) or (c) hereof shall be subject to such limitations or conditions, if any, as the Chief Justice shall impose by rules of court and provided further that this section shall not affect the powers of the High Court under section 21.

21.   General power of transfer and withdrawal

   (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage–

   (a)   transfer any suit or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

   (b)   withdraw any suit or other proceeding pending in any court subordinate to it, and–

      (i)   try or dispose of the same;

      (ii)   transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

      (iii)   retransfer the same for trial or disposal to the court from which it was withdrawn.

   (2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.

   (3) The powers of transfer and withdrawal of suits conferred by this section and section 20 shall be in addition to and not in substitution for the powers contained in Part V of the Magistrates' Courts Act *.

Institution of Suits (s 22)

22.   Institution of suits

   Every suit shall be instituted by the presentation of a plaint or in such other manner as any be prescribed.

Summons and Discovery (ss 23-27)

23.   Summons to defendant

   Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed.

24.   Service of summons where defendant resides outside jurisdiction of court

   (1) A summons may be sent for service to another court in Tanzania within the local limits of whose jurisdiction the defendant may be believed to be residing.

   (2) The court to which such summons is sent shall, upon receipt thereof, proceed as if it has been issued by such court and shall then return the summons to the court of issue together with the record (if any) of its proceedings with regard thereto.

25.   Power to order discovery and the like

   Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on application of any party–

   (a)   make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

   (b)   issue summonses to person whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; or

   (c)   order any fact to be proved by affidavit.

26.   Summons to witness

   The provisions of sections 23 and 24 shall apply to summonses to give evidence or to produce documents or other material objects.

27.   Penalty for default

   The court may compel the attendance of any person to whom a summons has been issued under section 25 and for that purpose may–

   (a)   issue a warrant for his arrest;

   (b)   attach and sell his property;

   (c)   impose a fine upon him not exceeding one thousand shillings; or

   (d)   order him to furnish security for his appearance and in default commit him as a civil prisoner.

Judgment and Decree (s 28)

28.   Judgment and decree

   The court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

Interest (s 29)

29.   Interest on judgment debts

   The Chief Justice may makes rules prescribing the rate of interest which shall be carried by judgment debts and, without prejudice to the power of the court to order interest to be paid upon to date of judgment at such rates as it may deem reasonable, every judgment debt shall carry interest at the rate prescribed from the date of the delivery of the judgment until the same shall be satisfied.

Costs (s 30)

30.   Costs

   (1) Subject to such conditions and limitations as may be prescribed and to the provisions of any law from the time being in force, the costs of, and incidental to, all suits shall be in the discretion of the court and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

   (2) Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing.

   (3) The court may give interest on costs at any rate not exceeding seven percent per annum and such interest shall be added to the costs and shall be recoverable as such.

PART II
EXECUTION (ss 31-55)

General (ss 31-32)

31.   Application to orders

   The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

32.   Definition of "court which passed a decree"

   The expression "court which passed a decree" or words to that effect shall, in relation to the execution of decrees, unless there is any thing 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.

Courts by which Decrees may be Executed (ss 33-37)

33.   Courts by which decrees may be executed

   A decree may be executed either by the court which passed it or by the court to which it is sent for execution.

34.   Transfer of decree

   (1) The court which passed a decree may, on the application of the decree-holder, send it for execution to another court–

   (a)   if the person against whom the decree is passed actually and voluntarily resides or carries on business or personally works for gain, within the local limits of the jurisdiction of such other court;

   (b)   if such person has no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court;

   (c)   if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it; or

   (d)   if the court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other court.

   (2) The court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.

35.   Result of execution proceedings to be certified

   The court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution or, where the former court fails to execute the same, the circumstances attending such failure.

36.   Powers of court in executing transferred decree

   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.

37.   Precepts

   (1) Upon the application of the decree-holder the court which passed the decree may, whenever it thinks fit, issue a precept to any other court which would be competent to execute such decree to attach any property belonging to the judgment debtor and specified in the precept.

   (2) The court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

   Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the court which passed the decree or unless, before the determination of such attachment, the decree has been transferred to the court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.

Questions to be determined by Court Executing Decree (s 38)

38.   Questions to be determined by the court executing decree

   (1) All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

   (2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding any may, if necessary, order payment of any additional court fees.

   (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.

Limit of Time for Execution (s 39)

39.   Execution barred in certain cases

   (1) Where an application to execute a decree, not being a decree granting an injunction, has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from–

   (a)   the date of the decree sought to be executed; or

   (b)   where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

   (2) Nothing in this section shall be deemed–

   (a)   to preclude the court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or

   (b)   to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, as applied to Tanzania.

Transferee and Legal Representatives (ss 40-41)

40.   Transferee

   Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment debtor might have enforced against the original decree-holder.

41.   Legal representative

   (1) Where a judgment debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased.

   (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability, the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

Procedure in Execution (ss 42-43)

42.   Powers of court to enforce execution

   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;

   (d)   by appointing a receiver; or

   (e)   in such other manner as the nature of the relief granted may require.

43.   Enforcement of decree against legal representative

   (1) Where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

   (2) Where no such property remains in the possession of the judgment debtor and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally.

Arrest and Detention (ss 44-47)

44.   Arrest and detention

   (1) A judgment debtor may be arrested in execution of a decree at any hour and on any day and shall, as soon as practicable, be brought before the court, and the court may order his detention:

   Provided that, for the purposes of making an arrest under this section–

   (a)   no dwelling-house shall be entered after sunset and before sunrise;

   (b)   no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment debtor is to be found; or

   (c)   if the room is in the actual occupancy of a woman who is not the judgment debtor and who, according to her religion or local custom, does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:

   And provided further that where the decree in execution of which a judgment debtor is arrested is a decree for the payment of money, and the judgment debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

   (2) Where a judgment debtor is arrested in execution of a decree for the payment of money and brought before the court, the court shall inform him that he may apply to be declared an insolvent, and that he will be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.

   (3) Where a judgment debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the court, that he will within one month so apply and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the court shall release him from arrest and, if he fails so to apply and to appear, the court may either direct the security to be realised or commit him as a civil prisoner in execution of the decree.

45.   Subsistence allowance

   The Chief Justice may make rules prescribing scales of monthly allowances payable for the subsistence of judgment-debtors.

46.   Detention and release

   (1) Every person detained as a civil prisoner in execution of a decree shall be so detained–

   (a)   where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period of six months; and

   (b)   in any other case, for a period of six weeks:

   Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be–

   (i)   on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison;

   (ii)   on the decree against him being otherwise fully satisfied;

   (iii)   on the request of the person on whose application he has been so detained; or

   (iv)   on the omission by the person on whose application he has been so detained to pay subsistence allowance:

   Provided further that he shall not be released from such detention under clause (ii) or clause (iii) without the order of the court.

   (2) A judgment debtor released from detention under this section shall not, merely by reason of his release, be discharged from his debt.

   (3) Where a judgment debtor has been released from detention under this section before the expiration of the period of six months or six weeks, as the case may be, for which he was ordered to be detained, and the decree against him has not been fully satisfied he shall, if he was released on the request of the person on whose application he was detained but not otherwise, be liable to be re-arrested under the decree in execution of which he was detained.

   (4) A judgment debtor who has been re-arrested under the provisions of subsection (3) of this section shall be detained as a civil prisoner for the remainder of the period of six months or six weeks, as the case may be, for which he would have been detained under the provisions of subsection (1) of this section if he had not been released from such detention under the proviso to that subsection:

   Provided that he shall be released from such detention before the expiration of the remainder of the said period of six months or six weeks, as the case may be, in any of the circumstances specified in the first proviso to subsection (1) of this section.

47.   Release on grounds of illness

   (1) At any time after a warrant for the arrest of a judgment debtor has been issued, the court may cancel it on the ground of his serious illness.

   (2) Where a judgment debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained as a civil prisoner.

   (3) Where a judgment debtor has been committed as a civil prisoner, he may be released–

   (a)   by the officer in charge of the prison in which he is confined, on the ground of the existence of any infectious or contagious disease; or

   (b)   by the committing court, or any court to which that court is subordinate, on the ground of his suffering from any serious illness.

   (4) A judgment debtor released under this section may be re-arrested but the period of his detention as a civil prisoner shall not in the aggregate exceed that prescribed by section 46.

Attachment (ss 48-51)

48.   Property liable to attachment and sale in execution of decree Act No. 11 of 1976 Sch.">

   (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, cheque, bills of exchange, promissory notes, Government securities, bonds or other securities for money debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor or by another person in trust for him or on his behalf:

   Provided that the following shall not be liable to such attachment or sale, namely–

   (a)   the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

   (b)   tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such;

   (c)   houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him;

   (d)   any land used for agricultural purposes by a village, an Ujamaa Village, a co-operative society, or an individual whose livelihood is wholly dependent upon the use of such land;

   (e)   any residential house or building, or part of a house or building occupied by the judgment debtor, his wife and dependant children for residential purposes;

   (f)   books of account;

   (g)   a mere right to sue for damages;

   (h)   the salary of an employee to the extent of–

      (i)   the whole of the salary where it does not exceed one hundred and fifty shillings monthly;

      (ii)   one hundred and fifty shillings monthly where the salary exceeds one hundred and fifty shillings and does not exceed two hundred and fifty shillings and does not exceed two hundred and twenty-five shillings monthly; or

      (iii)   two-thirds of the salary in any other case;

   (i)   the expense allowances of any employees;

   (j)   an expectancy of succession by survivorship or other merely contingent or possible right or interest;

   (k)   a right to future maintenance; or

   (l)   any other property declared by any written law not be liable to attachment.

   Explanation: The particulars mentioned in classes (f) and (g) are exempt from attachment whether before or after they are actually payable.

   (2) Subject to the provisions of any written law, nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.

   (3) For the purposes of this section–

   "expense allowance" means any sum paid to an employee by an employer which is a bona fide payment to meet an expense incurred or to be incurred by the employee wholly and exclusively in or for the purposes of the performance of the duties of his office or employment or in discharging functions authorised by the employer; and

   "salary" includes any sum of money granted to an employee by an employer other than an expense allowance.

49.   Seizure of property in dwelling house

   (1) No person executing any process under this Code directing or authorising seizure of movable property shall enter any dwelling-house after sunset and before sunrise.

   (2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the person executing any such process had duly gained access to any dwelling-house he may break open the door of any room in which he has reason to believe any such property to be.

   (3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to her religion or local custom, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution consistent with these provisions, to prevent its clandestine removal.

50.   Property attached in execution of decrees of several courts

   (1) Where property not in the custody of any court is under attachment in execution of decrees of more courts than one, the court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or, where there is no difference in grade between such courts, the court under whose decree the property was first attached.

   (2) Nothing in this section shall be deemed to invalidate any proceeding taken by a court executing one of such decrees.

51.   Private alienation of property after attachment to be void

   Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.

   Explanation: For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

Sale (ss 52-53)

52.   Purchaser's title

   Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

53.   Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff

   (1) No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or behalf of someone through whom the plaintiff claims.

   (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third persons against the real owner.

Distribution of Assets (s 54)

54.   Proceeds of execution sale to be rateably distributed among decree-holders

   (1) Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons:

   Provided that–

   (a)   where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;

   (b)   where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the court may with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

   (c)   where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied–

      (i)   in defraying the expenses of the sale;

      (ii)   in discharging the amount due under the decree;

      (iii)   in discharging the interest and principal moneys due on subsequent incumbrance (if any); and,

      (iv)   rateably among the holders of decrees for the payment of money against the judgment debtor who have, prior to the sale of the property, applied to the court which passed the decree ordering such sale for execution of such decrees and have not obtained satisfaction thereof.

   (2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

   (3) Nothing in this section affects any right of the Government.

Resistance to Execution (s 55)

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.