THE CONCEPT OF A DECREE

Section 3 of the Civil Procedure Code [Cap. 33 R.E 2002] defines a “decree” to 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. ‘It is a summary of the contents of a judgment – i.e. an extract of a judgment. Under Section 3 of the CPC, a decree does not include an adjudication from which an appeal lies as an appeal from an order; or any order of dismissal for default (Mansion House Ltd. v John Stansbury Wilkinson (1954) 21 EACA 98, 102) referred in various cases including the case of Franco Esposito v Centro Diricarga & another [2008] eKLR. A decree may either be preliminary or final. 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. A decree may be partly preliminary and partly final. In Tanzania under CPC, there are about ten (10) categories of decrees as set out in Order XX of the CPC, namely; A decree for the payment of money (Section 15(1) of Government Proceedings Act Cap. 5 and Order XX, rule 11(1)); a decree for recovery of immovable property (Order XX, rule 9); a decree for delivery of movable property (Order XX, rule 10); a decree in suit for dissolution of partnership (Order XX, rule 15); a decree may be passed for possession and rent/mesne profits (G.N. No. 376/1968 and Order XX, rule12(1)); a decree passed in a situation where set-off has been allowed by the court (Order XX, rule 19(1); a decree passed in a suit for partition of property or separate possession of a share therein (Order XX, rule 18); a decree passed in suits relating to administration (Order XX, rule 13); a decree passed in pre-emption suit (Order XX, rule 14); and a decree in a suit for account between a principal and an agent (Order XX, rule16).Execution of a Decree As in other jurisdictions, to any decree must be executed or enforced so as to give effect to the judgment of the Court, and it is completed when the judgment creditor gets the money or other thing awarded to him by the judgment (see, Re: Overseas Aviation Engineering (G.B) Ltd. (1969) 3 All ER 12.(per Lord Denning, M.R.) adopted in various cases in Tanzania including that of Ok Plast Limited Versus Edha Awadhi & Company Limited, Civil Application No. 188 of 2016 Court of Appeal of Tanzania, (Unreported). In Shell and PB Tanzania Ltd. v UDSM, Court of Appeal of Tanzania, Civil Application No. 68 of 1999 (unreported) it was held as follows: “Execution is the final act, that is, the satisfaction of the judgement [...]. The nature of the subject matter would dictate the mode of execution.” Execution is the satisfaction of the judgement (see, Tanzania Motors Services Ltd. v Tantract Agencies Ltd. Court of Appeal of Tanzania, Civil Application No. 86 of 2004 (unreported). Execution as a Process in Tanzania To execute a decree the procedure to be followed is described under O. XXI of the Civil Procedure Code [Cap. 33 R. E 2002 ]of the Laws of Tanzania and the said procedure is also deduced from case laws including the case of Tanzania Motor Services Ltd v Tantrack Agencies Ltd (Civil Application No. 86 of 2004) [2005] TZCA 22; (12 May 2005), where Kaji, J.A. (as he then was) held as follows:- “In the instant case, execution of the judgment was not a single process. It entailed several events. All of them had to be undertaken before execution was deemed to be completed. These included the process of issuing the attachment order, the attachment of the property to be attached, proclamation for sale, sale of the attached property, and finally payment of the sale proceeds to the decree holder. When all these are completed, that is when execution in cases of this nature is completed. “ [Emphasis added] Therefore, from the decision of Court of Appeal in Tanzania Motor Services Ltd v Tantrack Agencies Ltd (Supra), it is an obligation of the Judgment Debtor to apply for a decree and once he or she obtains a decree as a Decree- holder he or she has to ensure that the said decree from Judgement or court order of the court of whatever kind,is executed through set out procedures in the law in order to realize his or her rights from the judgment or order. It is an obligation of the Decree- holder to make an application for execution in the appropriate court for enforcement of a decree. Depending on the nature of the proceedings, he may also apply for a warrant of attachment to obtain order of attachment by the court; initiate attachment process for the property as ordered by the court (if it is for a private matter decree); make an application for a proclamation for sale of the attached property; initiate sell proceeds for the attached property to recover his claimed damaged. Choice of a Mode of Execution The choice of a certain mode of execution of a decree depends on the nature of the respective decree and the property subject of execution. So, it is up to the decree-holder to choose a proper mode of execution. The court has to satisfy itself that the proposed mode of execution and the application for execution are in conformity with the law to ensure that they are not intended to be an abuse of the court process. Although there are many modes of execution of a decree under the law, the following are the most common: i. Where a decree is for payment of money, it may be executed by attachment and sale of the judgment-debtor’s property, or by his detention as a civil prisoner, or by both, or by garnishee order; or ii. Where it is a decree for any specific movable property (like a motor vehicle), such decree may be executed by seizure (where practicable) of such property and by delivering it to the decree-holder, or by attachment of his property, or by his detention as a civil prisoner, or by all such means; etc. Decree Against the Government Proceedings against the Government in Tanzania are partly governed by the The Government Proceedings Act, [Cap. 5 R.E. 2019]. This Act doesn’t provide for a comprehensive procedure for execution of decrees against the Government. Such procedure is set out in the Civil Procedure Code (Order XXI), applicable under section 15(1), of the Government Proceedings Act [Cap. 5 R.E. 2019] which states as follows:- ‘The provisions of any written law relating to the payment of interest where a decree is for the payment of money and to the payment of interest on costs shall apply in the case of Government as they do in the case of a private person.’ Certificate In general, when executing a decree, section 33 of the Civil Procedure Code applies, which states that any decree may be executed by the court which passed it or by the court to which the decree is sent to execution upon application by the decree-holder or on its own motion. However, when executing a decree against the Government of Tanzania in Tanzania, a party must also obtain a certificate as a condition of executing the decree against the government. In the case of Karata Ernest and Others, Civil Revision No.10 of 2010 (unreported), , the Court of Appeal of Tanzania had this to say: “Ordinarily, the execution of decrees passed by the High Court is governed by Sections 31 to 55 and Order XXI of the [Civil Procedure Code]. However, in suits involving the government, the application of Order XXI has been expressly disallowed in execution of decrees against it, by Rule 2A of the same Order. Instead, the execution process is governed by Section 16 of the Government Proceedings Act, Cap 5 R.E 2002.” The said Section 16 reads thus: “16-(1) Where in any civil proceedings by or against the Government, any order, including an order as to costs, Is made by a Court in favour of a person against the Government or against an officer of the Government as such, the proper officer of the Court shall, on an application in that behalf made by or on behalf of that person, issue to that person a certificate containing particulars of the order: Provided that if the court so directs, a separate certificate shall be issued with respect to the costs to be paid to the applicant. (2) If the Order provides for the payment of the money by way of damages or other relief, or of costs, the certificate shall state the amount so payable and Permanent Secretary to the Treasury or such other Government accounting officer as may be appropriate shall subject to the herein provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with any interest , lawfully due thereon;: Provided that the court by which any such Order as is mentioned in this section is made or any court to which an appeal against this order lies, may, if it considers reasonable to do so direct that pending an appeal or other legal proceedings payment or part of any amount payable shall be suspended and if the certificate has not been issued, may order any such directions to be inserted therein”. [Emphasis added] In other words, to execute a decree as against the Government of Tanzania in Tanzania, it is necessary to obtain, pursuant to an application, a certificate containing particulars of the underlying decree, including the amount payable by the Government of Tanzania. The Court of Appeal of Tanzania has stated that: “… Section 16(1) imposes a mandatory duty on the proper officer to issue a certificate of the court order or decree against the government”. Once a certificate is obtained, it is then presented to the Permanent Secretary to the Treasury or such other Government accounting officer as may be appropriate for payment. As the Court of Appeal of Tanzania stated in the Karata’s case (supra), “if the involved parties are acting in good faith, their implementation by either the court and/or the Permanent Secretary, ought not to present any difficulties, once the validity of the decree has been established or is not disputed. The Court of Appeal of Tanzania went on to hold: “… under the mandatory provisions of sub-section (2), once a proper certificate has been issued and presented to the Permanent Secretary subject to the provisions therein, the latter has a duty to pay the amount appearing on the certificate. If any dispute arises… at any stage, then that dispute must be determined by the executing court under Sec. 38 of the [Civil Procedure Code]”. Accordingly, the process for enforcing an order of the Tanzanian High Court against the Government of Tanzania under Tanzanian law, involves seeking a decree, bringing an application for a certificate, obtaining that certificate and then presenting the certificate to the Permanent Secretary or other appropriate government officer for payment. With respect to the timing for that process, under Part III, item 20 of the Schedule in the Law of Limitation Act [Cap. 89 R.E 2019],the enforce a judgment, decree or order of any court where the period of limitation is not provided for in the Act or any other written law must be made within twelve (12) years from the date of the decree. Section 31 of the Civil Procedure Code prescribes that the provisions of the Civil Procedure Code relating to the execution of the decrees shall, so far as they are applicable, be deemed to apply to the execution of Orders. Section 5 of the Law of Limitation Act provides that a right of action in respect of any proceeding shall accrue on the date on which the cause or action arose. In other words, the 12 years limitation period begins to run on the date that an order is issued by the Tanzanian High Court unless the Tanzanian High Court agrees to extend that time period for any reasonable cause. So as to further address the issue, the Government Proceedings Act was amended in 2019 by Act No. 11 of 2019, by introducing the provision of section 6A (1) which provides as follows:6A(1) The Attorney General shall, through the Solicitor General, have the right to intervene in any suit or matter instituted by or against ministries, local government authorities, independent department and other government institutions. (2) Where the Attorney General intervenes in any matter in pursuance of subsection (1), the provisions of this Act, shall apply in relation to the proceedings of that suit or mater as if it had been instituted by or against the ministries, local government authorities, independent department and other government institutions. Under the proviso to subsection (2) however, the notice requirement did not apply in the circumstance. Subsection 3 imposed a duty of the relevant government institutions to notify the Attorney General of any impending suit. The amendment did not sufficiently address the issue as the application of protection under section 16(3) was not automatic. It depended upon there being an intervention by the Attorney General. Therefore, in 2020, the Government Proceedings Act was further amended by Act No. 1 of 2020 which amended 6(3) by abrogating the provision and replacing it with a new provision to the effect that, any proceeding against the Government, local government authority, Executive Agencies, public corporations, parastatal organization or public corporation shall be preceded by the 90 days notice and the AG shall be impleaded as a necessary party. Section 16(3) was also amended to widen the definition of the terms government include the said government institutions. Under section 16(1), where a person is possession of a decree or order against the Government, the executing Court may, upon application, issue a certificate containing particulars of the decree or order. Under the proviso to subsection (1), if the court so directs, a separate certificate shall be issued to with respects to the costs ordered to be paid to the applicant. Ordinarily therefore, a certificate has to combine the reliefs awarded in the judgment and costs. This would correspond with the provision of order XX rule 6(2) of the CPC which requires a decree or order to state the amount of costs incurred in the suit and by whom or out of what property and in what proportion such costs are to be paid. It has to be noted however that, under section 49 (2) of the Advocates Act read together with the Advocates Remunerations Order, G.N. No. 264/2015, bill of costs has to be dealt with under the procedure set out therein. There would appear to be a conflict between the respective provision of the CPC and the Advocates Act. In TRA vs. Prisca Kihengu,2 the High Court was of the considered opinion that, the said conflict is reconcilable under section 5 of the CPC which provides as follows:- “ 5. 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. Under section 5(2), If the decree is for payment of money, the certificate shall state the amount so payable and the Permanent Secretary, the treasury or any accounting officer shall pay the person entitled or his advocate. In the case of Karata Ernest and Others 2 Civil Appeal No. 49 of 2015, (HC, Mwanza, Unreported) vs. the Attorney General,3 the Court of Appeal held in relation to enforcement by certificate as follows: “… under the mandatory provisions of sub-section (2), once a proper certificate has been issued and presented to the Permanent Secretary subject to the provisions therein, the latter has a duty to pay the amount appearing on the certificate. If any dispute arises… at any stage, then that dispute must be determined by the executing court under Sec. 38 of the [Civil Procedure Code]”. Stay of Execution If the decree is against the Government is not under CPC, It is under section 16 (2) the suspension may be inserted in the certificate if not issued or a separate order. NOTES: Is a certificate a decree or an execution order or a decree? Can a certificate be executed without there being an execution order? If not, what is that such other order? Under subsection 16 (3), such other order cannot be an order for personal attachment of the relevant Government officer. Can it by enforced way of prerogative order of mandamus as it is done in other jurisdictions? If so will that order not be equated with a decree subject to further order for execution ? Much can be said.