CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CIVIL APPEAL NO. 27327 OF 2024 (Arising from the Order of the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Execution Case No. 30 of 2023 (Hon. F. S. Kiswaga, PRM) dated 19th August 2024. ______ RICHARD AUGUSTINO ZUBERI…...……….…..….….. APPELLANT

VERSUS TANZINDIA ASSURANCE COMPANY LIMITED…1ST RESPONDENT CMC AUTOMOBILE LIMITED.....…………………..2ND RESPONDENT

JUDGEMENT Date of last order: 5th February 2025 Date of Ruling: 14th February 2025 MTEMBWA, J.: As can be discerned from the facts, the parties herein had previously litigated in the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Civil Case No. 124 of 2016, which ended in the Appellant’s favor. It could appear that, having failed to enjoy the benefits of the decree on time, the Appellant filed Execution No. 42 of 2021, seeking to enforce the Judgement of the trial Court where a total sum of Tanzanian Shillings 114,303,030/= was claimed 1 comprising of the principal sum and interest. According to the records, the claimed sum was paid in full by 15th March 2023. The records reveal further that on 10th May 2023, the Appellant filed Execution No. 30 of 2023 seeking recovery of Tanzanian Shillings 52,800,000/=, being twenty months unpaid interest accrued from 30th June 2021, when Execution No. 42 of 2021 was filed, to 15th March 2023, when the sum of Tanzanian Shillings 114,303,030/= was paid in full. Having determined the submissions by the parties, the learned Magistrate resolved as follows and I quote in verbatim; I have gone through the file and the submissions of both parties. The Decree Holder’s claim is on the months from when he fild the execution cause No. 42/2021 to the date he was paid the money. So, his claim is the months the matter was on execution which he

said was not in calculation in Tshs. 114,303,030/=. To my view the decree holder’s calculations cannot proceed after he filed execution cause No. 42/2021. Otherwise there can be endless of litigation. The fact that J/debitor paid decree holder principle amount of Tshs. 26,400,000/= and Tshs. 6,000,000/= this interest of Tshs. 73,920,000/= and Tshs. 7,022,400/= making a total of Tshs. 114,303,030/= that was end of calculations of interests. There can not be more claims. Thus, the Decree Holder has no more claims of interest against the J/Debitor. The J/Debitor has shown sufficient 2 cause as to why execution should not continue against her. Thus, the present execution is hereby struck out. The Appellant was dissatisfied. Still undaunted, he laid before this Court the following grounds of appeal and I quote; 1. Having decreed in Civil Case No. 124 of 2016 that the interest on decretal sum of (a, b) was to be paid by the Respondents from the date of the judgment to the date when the decree is satisfied in full, the executing Court erred in law and in fact by denying the Appellant the balance of the decreed interest to the tune of Tshs. 52.800,000/= which had accrued before the decretal sum of (a and b) was paid in full.

2. That the executing Court erred in law and in fact by failure to consider that up to 15th March 2023, the decretal sum plus interests issued by the trial court on the 11th February 2019 had accrued to the tune of This, 167,103,030, and thus upon payment of Tshs. 114,303,030/= the Appellant was entitled to the balance of Tshs. 52.800,000/= from the Respondents.

3. That the executing Court erred in law and in fact by overruling the judgment and decree of the Court which had ruled out that the Appellant was entitled to the interests of the decretal sum from (a and b) from the date of Judgment until the payment in full. When the matter came for orders on 11th December 2024, the Appellant was represented by Mr. Philimon Mutakyamirwa, 3 the learned counsel, who also had the briefs of Mr. Yusuph Sheikh, the learned counsel for the Respondents. When prompted, the learned counsel agreed to argue this Appeal by way of written submissions. Having passed through the records, I am satisfied that the parties adhered to the agreed schedule to which I am indebted. Having prefaced on what transpired before, Mr. Mutakyamirwa combined the grounds of appeal and argued them together. He complained that the trial Court erred in law and fact by overruling the Judgment and Decree of the Court, which had ruled out that the Appellant was entitled to the interests on the decretal sum from the date of Judgment to the date of full payment. He added further that the date of full payment was not on 30th June 2021, when the Appellant filed the execution, but on 15th March 2023, when the decretal sum had accrued to the tune of Tanzanian Shillings 167,103,030/=. As such, the payment of Tanzanian Shillings 114,303,030/= did not satisfy the whole claim as Tanzanian

Shillings 52,800,000/= remained unpaid. Pressing further, the learned counsel argued that in the previous Application for Execution, 28 months 4 were calculated from the date of Judgement, which is 11th February 2019, to 30th June 2021, which was the date of filing the Application for Execution. As such, the total sum as interest chargeable on the principal sum was Tanzanian shillings 73, 920,000/=. It was argued further that the word “endless litigation” in the execution proceedings was misplaced, as the decree-holder has the right to enjoy the benefit of the decree until fully satisfied. In his further observation, the Court does not become functus officio simply because an order of execution has been issued. He cited the cases of NSK Oil and Gas Limited vs. M/s Mhango Filling Station, Civil Revision 1 of 2021 (unreported) and Ongujo Walabar Nyamanua vs. Prime Catch (Exports) Co. Ltd and Another, Commercial Case No.80/2016 (unreported). Lastly, he beseeched this Court to allow the appeal. In response, Mr. Sheikh argued in length about what transpired before this battle. It was argued on behalf that in view of what happened before, the Judgement Debtors were convinced that the Decree executed in Execution Application No. 42 of 2021 was already 5 satisfied. To the surprise of most, he was served with Application for Execution No. 30 of 2023, tagged as originating from Civil

Case No.124 of 2016. He insisted that the decree sought to be executed in the later Application was already satisfied earlier in Execution No. 42 of 2021. He contended that Execution No. 30 OF 2023 is res judicata to Execution No. 42 of 2021, and the Court could not have revisited its earlier conclusion. The learned counsel vigorously refuted the assertion that the Decree Holders' claim is on interests accrued from the date Execution Cause No. 42 of 2021 was filed to the date when the claimed sum was fully paid. He observed that there cannot be more calculations on interest after Execution No. 42.2021 was filed. Equally, he joined hands with the learned Magistrate on his assertion that allowing the claim by the Appellant would result in endless litigation. He distinguished the cited case of Prime Catch Export Ltd. Mr. Sheikh further insisted that the bill of costs was entirely determined, and thus, Execution No. 30 of 2023 is manifestly res 6 judicata brought into play to re-open the matter that has been determined. Pressing reliance on the decision of Athanasia T Massinde T/A Abefi Primary Aschool vs. National Bank of Commerce, Commercial Case No. 34 of 2016 quoted with approval the case of North West Water Ltd vs. Bannier Partner All ER (1990) Vol 3 at page 547 Kerr LJ, the learned counsel observed that an attempt to re-litigate in another cause of action which has been fully

investigated and decided in former action may constitute an abuse of the Court process. Lastly, he implored this Court to dismiss the Appeal with costs. In his brief rejoinder, Mr. Mutakyamirwa observed that the Respondents have not denied that the trial Court decreed that the Appellant is entitled to interest until the principal sum is fully paid. Equally, the Respondents’ counsel has agreed that the payment was made in respect of interest accrued from the date of Judgment to 30th June 2021, when Execution No. 42 of 2021 was filed. In his view, the calculation of interest commenced from the date of Judgement to the date of full payment. By 10th March 2023, the principal sum plus interest stood at Tanzanian Shillings 7 167,103,030/=. Since only Tanzanian Shillings 114,303.030/= was paid, the Appellant is entitled to Tanzanian Shillings 52,800,000/=. The learned counsel faulted the trial Court's ruling that the Appellant had no more claims of interest against the Respondent because, upon filing Execution No. 42 of 2021, the calculations of interests stopped. He called upon this Court to rectify the anomaly. Having carefully considered the parties' arguments, the question would be whether the appeal is meritorious. In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of

2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision and that it may coincide with the trial Court or may be different altogether. While guided by the above principle, it is also a trite law that whoever alleges the existence of any fact bears the duty to prove the same. This principle is gathered from sections 110, 112, and 115 of the Evidence Act, Cap 6 RE 2022 and judicial precedents, including Manager NBC Tarime vs. Enock M. Chacha (1993) TLR 228. 8 To begin with, the execution of the Decrees is an inherent component of the administration of civil justice. It is a process for enforcing or giving effect to the Court's judgment, 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 (GB)Limited (1962) 3 All E. R 12). Therefore, the process must be carried out judiciously to avoid public outcries and/or judicial interventions where necessary. In view of Order XX1 Rule 9 of the Civil Procedure Code (supra), whoever wishes to execute a decree shall apply to the Court that passed the decree or an officer (if any) appointed on his behalf, or if the decree has been sent to another Court, then to such Court or to the proper officer thereof. If the Decree holder is of the opinion that a decree may

be executed peacefully, he does not need to involve the Court’s assistance (see Shell and B.P Tanzania Limited vs. University of Dar es Salaam (2002) TLR 225). When the aid of the Court is so required, the law should be followed strictly. The execution process begins with a formal or written application under the provisions of Order XX1 Rule 10 (2) of the CPC. Once admitted under rule 15 (4), the Court should order the 9 execution of the Decree according to the nature of the application. In Ms. Sykes Insurance Consultants Co. Limited vs. MS SAM Construction Co, Limited, Civil Revision No. 8 of 2010 (unreported), the Court noted; Sub-rule (4) cats a mandatory duty on the Court to make a specific order for the execution of the decree in the mode applied for. In our considered view, it is this formal order which forms the legal basis for the insurance of, say, garnishee order, warrant of attachment of movable property, prohibitory orders, etc, under rule 22. In this Appeal, parties are not at issue regarding the Judgment of the trial Court in Civil Case No. 124 of 2016, which ended in the Appellant’s favor. Equally, it is not in dispute that having failed to enjoy the fruits of the decreed sum on time, the Appellant filed Execution No. 42 of 2021, seeking to enforce the Judgement of the trial Court where a total sum of Tanzanian Shillings 114,3030,030/= was claimed comprising of

the principal sum and interest, which sum was fully paid on 15th March 2023. The bone of contention between the parties is on the subsequent Execution No. 30 of 2023 filed on 10th May 2023 by the Appellant seeking recovery of Tanzanian Shillings 52,800,000/=, being 10 twenty months unpaid interest accrued from 30th June 2021, when Execution No. 42 of 2021 was filed, to 15th March 2023, when the sum of Tanzanian Shillings 114,303,030/= was fully paid. There are many questions a prudent person may ask, including whether execution orders are amenable to appeal or appealable. In such a bellow of confusion, I called the parties to address me on the issue. Addressing the issue, Mr. Mutakyamirwa maintained that the execution orders of the District Courts or the Courts of Residents Magistrates are appealable to this Court, citing section 74 (1) and Order 40 rule 1(f) and (j) of CPC. He also observed that, under section 72 (2) thereof, the law allows an appeal from an execution order if it determines the matter to its finality. This is because revision is limited to irregularity, illegality, or when there is an error on the face of the records or when the trial Magistrate exceeds his or her powers. He was fortified by the decision of Francisca Kokuganywa Alfred vs. Mussa Sareh and Another, Civil Appeal No. 270/17 of 2022, where it was observed that the decision of taxing officer

is appealable. On his part, Mr. Shekhe was not amused by the citation of Order 40 rule 1 (f) and (j) of the CPC because they have nothing 11 to do with execution orders emanating from the District Courts or the Courts of Residents Magistrates. In view of section 74 (1) and order 40(1) of the CPC, a person aggrieved by an order of the executing court cannot appeal to this Court. He cited the case of Rajabu Iddi Kikoti vs. Access Bank Tanzania Limited, Land Case No. 2782 of 2024. He also distinguished the cited case of Francisca Kokuganywa Alfred (supra). In rejoinder, Mr. Mutakyamirwa insisted that execution orders are appealable, pegging his argument on page 8 of the cited case of Francisca Kokuganywa Alfred (supra). He, however, conceded to the very fact that the CPC is not exhaustive in matters relating to execution orders emanating from the District Courts or the Courts of Residents Magistrates. Indeed, the orders appealable under the CPC are listed under section 74 (1) of the CPC. Lucidly, it provides as follows; An appeal shall lie to the High Court from the following orders of the District Courts, Resident Magistrate’s Courts and any other tribunal, the decisions of which are appealable to the High Court, and save as otherwise expressly provided in this code or by any law for the time being in force from no other order: 12 (a) an order superseding an arbitration where

the award has not been completed within the period allowed by the court; (b) an order on an award stated in the form of a special case; (c) an order modifying or correcting an award; (d) an order filing or refusing to file an agreement to refer to arbitration; (e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration; (f) an order filing or refusing to file an award in an arbitration without the intervention of the court; (g) an order under section 69; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or (i) any order made under rules from which an appeal is expressly allowed by rules. Expounding further on the orders appealable under the cited order, Order XL Rule 1 of the CPC provides as follows; An appeal shall lie from the following orders under the provisions of section 74, namely; (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court; (b) an order under rule 14 of Order VIII pronouncing judgment against a party; 13 (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejection an application (in a case open to

appeal) for an order to set aside a decree or judgment passed ex parte; (e) an order under rule 4 or Order X pronouncing judgment against a party; (f) order under rule 18 of Order XI; (g) an order under rule 10 of Order XVI for the attachment of property; (h) an order under rule 20 of Order XVI pronouncing judgment against a party; (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; (k) an order under rule 9 of Order XXII refusing to set aside the abatement of dismissal of a suit; (l) an order under rule 10 of Order XXII giving or refusing to give leave; (m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or (n) satisfaction; (o) an order under rule 2 of Order XXV rejecting an application for an order to set aside the dismissal of (p) a suit; (q) an order under rule 3 or rule 8 of Order XXXII refusing to extend the time for the payment of mortgage-money; 14 (r) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXIII; (s) an order under rule 3, rule 4 or rule 7 of Order XXXVI; (t) an order under rule 1, rule 2, rule 4 or rule 9 of Order XXXVII; (u) an order under rule 1 or rule 4 of Order XXXVIII; (v) an order of refusal under rule 19 of Order XXXIX to re- admit, or

under rule 21 of Order XXXIX to re-hear, an appeal; (w) an order under rule 23 of Order XXXIX remanding a case, where an appeal would lie from the decree of the High Court; (x) an order under rule 4 of Order XLII granting an application for review. The procedure or modes of preferring an appeal from orders are provided under Order XL rule 2 of the CPC if read together with Order XXXIX rule 1 of the CPC. It follows, therefore, that a person who desires to prefer an appeal from orders in which the District Court or a Court of Resident Magistrate is in the exercise of its original jurisdiction must file a memorandum of appeal accompanied by a decree if an order appealed from is contained in the original decree or file a memorandum of appeal accompanied by a drawn order if the order appealed from is included in the Ruling. 15 Looking at section 74 (1) and Order XL (1) of the CPC, execution orders, apart from orders under Order XXI rule 34 relating to an objection to the draft of a document or of an endorsement or order XX1 rule 72 or rule 92 relating to setting aside or refusing to set aside a sale, are not appealable. They are blocked from being appealed from to the High Court. If the parliament meant that the execution orders would be amenable to appeal, it could have said so expressly and in lucid terms under the cited provisions of the law. Since such a right is barred by law,

the proper remedy is to file a revision. Such position also was underscored in the case of Rajabu Iddi Kikoti vs. Access Bank Tanzania Limited & 4 Others (Land Appeal No. 2782 of 2024) [2024] TZHCLandD 534 (31 July 2024), where it was stated that; The above provision requires the DLHT to apply the Civil Procedure Code where there is inadequacy in the Regulations. Since the Regulations are silent or inadequate on how to challenge the execution order, then the provisions of the Civil Procedure Code [Cap.33 R.E 2019] becomes applicable, specifically under section 74 and Order XL. According the cited provisions of the CPC, orders arising from execution proceedings are not appealable. The proper remedy to the aggrieved party is to file an application for revision of the execution proceedings. 16 While I subscribe to the above position, I am also persuaded by the cleverest observation of my senior brother at the bench, Hon. Siyani, J in Ignasio Ignas vs. Rose Hanselem Mpangala, Civil Appeal No. 65 of 2017, who observed as follows; In the final analysis, I agree with counsel Roman that issues of jurisdiction of the court in orders which are not appealable under either section 74 or Order XXI (sic) Rule 1 of the CPC can be challenged by way of revision under section 78 (supra). Allowing appeals against any order relating to execution, which were not intended by the drafters of our laws

to be appealable, and where the law provides other mechanisms for challenging them, will open a floodgate of endless litigations. In another occasion, this Court faced the akin situation in Lucia Milanzi vs. Agnes Komba (Administrator of deceased Estate of ULEDI SADIKI CHENGA) (Land Appeal No. 7 of 2022) [2023] TZHC 18776 (27 June 2023), where my senior brother at the bench Hon. Laltaika, J had this to say; Mr. Mkali had defended his choice to appeal against the order of execution or proceedings, relying on section 74(l)(c) of the Civil Procedure Code, which pertains to an order modifying or correcting an award. However, neither section 74 nor Order XLl Rule 1 of the Civil Procedure Code list an execution order or proceedings as appealable to this court. Therefore, I agree 17 with Mr. Songea that the appellant may litigate the questions relating to execution under section 38 of the Civil Procedure Code or file a reference to this court under Order XLI, Rule 1 of the Civil Procedure Code. Nevertheless, the appellant chose to appeal against the execution order to this court. This is legally and procedurally erroneous. In the upshot therefore, I am confident to hold that, on account of the reasons aforesaid, execution orders are not appealable. The appeal before this court is thus incompetent and I proceed to strike it out with no order as costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 14th February 2025. H.S. MTEMBWA

JUDGE 18