TOPIC 5. EXECUTION OF DECREES/DRAWN ORDERS AND SETTLEMENT
ORDERS
ORDERS
N, B) at the end of the course students are expected to be able to;
e) Draft and file pleadings for execution of decrees;
a) Meaning, manner of applying for them, Taking action
a. Meaning of Execution
b. Meaning of Decree
c. Meaning of Drawn Order
d. Meaning of settlement order
e.
b) What is drawn from the following
a. From a judgement a decree is drawn
b. From a ruling is a drawn order
c. From mediation is a settlement order
c) Modalities of execution
a. Attachment and sale of property
i. procedure and effect of breach
b. Committing a person to civil prison-conditions and limitations
i. Procedure and condition to commit a person to a civil prison
d) Objections to execution
a. What to object
b. Where (the proper court to file objection)
c. Whether objection to execution is appealable
d.
MILIMO MASILIKALE VS. LEMENGA MASSA CIVIL APPEAL NO. 38 OF 1989 – DODOMA HC RUHUMBIKA, J.
In this case the appellant married the objector/respondent daughter and paid bride price. The marriage proved futile and the divorce was granted up by the Court. The Appellant claimed the return of the bride price which was granted by the primary Court. In the execution of the Primary Court order the appellant/decree holder attached the cattle of the objector/the respondent who was also the further of the former wife
The objector/the respondent objected the attachment on the ground that he was not the judgment debtor rather her daughter
The Learned Judge in the HC held that
i. The attachment of the respondent cattle to execute his decree was improper as he was not the judgment debtor
ii. The appellant has the right to execute his decree against the property of the judgment-debtor, who has to bear his own cross.
e) Execution brief summary
INTRODUCTION
• C.K. Takwani, Civil Procedure, (2007)5th Ed pp. 415-497
• Solil Paul et al, Mulla The Code of Civil Procedure (16th Ed) Vol. III PP2457-3000
• CPC Ss. 31-55 and Order XXI and O. XXXIX R. 1-8
• Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 Reg. 23-32
Reference
• S. 194A and 109Bof Act No. 13/2006 (Written Laws Miscellaneous Amendment Act)
• S. 16(3) and 33(3), The Courts (Land Disputes Settlements) Act, (Act No. 2 of 2002)
• S. 89(1) of the Employment and Labour Relations Act (No. 6 of 2004)
• Section 16 and 17 of the Government Proceedings Act (Cap 5 R.E. 2002)
CASES FOR REFERENCE
• DOWANS HOLDING SA COSTARICA and DOWANS TANZANIA LIMITED vs. TANZANIA ELECTICITY COMPANY LTD TANZANIA
• IMKE HELLA CAMPBELL-SMITH V. DOUGLAS WILLIAM CAMPBEL-SMITH (2000) TLR 355- HCZ
• Thomas Joseph Kimaro vrs. Apaisaria Martin Carl Mkumbo and Oscar Carl Mushi (2002) TLR 369
• KWIGA MASA v SAMWELI MTUBATWA 1989 TLR 103 (HC):
• Trans Africa Assurance Co v National Social Security Fund [1999] 1 EA 352 (SCU)
• Mrs. Nuru Mbaraka v. Awadhi Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
• OMOKE OLOO v WEREMA MAGIRA 1983 TLR 144 (HC):
• Nyanza Distributors Co. v. Geita General Stores (1977) LRT No. 2
• Objection to the Court which passed the decree: KANGAULU MUSSA v MPUNGHATI MCHODO 1984 TLR 348 (HC)
• Said Mnimbo and others versus. State Travel Services Ltd, Tourism Services Tanzania and Parastatal ector Reform Commission as Objectors (1999) TLR 233
• Mrs. Nuru Mbaraka vrs. Awadh Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
• Read: Diversey Lever East Africa Ltd v Mohanson Food Distributors Ltd and another
• [2004] 1 EA 43
• Loswaki Village Council and another v. Shibesh Abebe (2000) TLR 204
• Blue Star Service Station v. Jackson Musseti Enterprises (1999) TLR 80
• Laemthong Rice Company Limited vrs. Principle Secretary, Ministry of Finance (2002) TLR 389
• El- Nasr Export and import Company v. Nahdi Trading Company (2001) TLR 75
• Wankira Bethuel Maise and National Housing Corporation versus Kaiku Foya (1999) TLR 348
• Cf: East African Development Bank vrs. Blue Line Enterprises Ltd and ATH Mwakyusa (2005) TLR 203
• WILLOW INVESTMENT v MBOMBO NTUMBA AND TWO OTHERS 1997 TLR 93 (CA)
• E R Mutaganywa v. Ahmed J. Aladin and others 1996 TLR 285 (HC)
• Tanzania Electric Supply Company (TANESCO) vrs. Independent Power Tanzania Limited (IPTL) and others (2000) TLR 324
• Mathias Bucyana vrs. Registrar of Buildings (1998) TLR 117
• Tanzania Cotton Marketing Board v. Cogecot Cotton Co SA 1997 TLR 63 (CA)
• Nicholas Nere Lekule v. Independent Power (T) Ltd and another 1997 TLR 58 (CA)
• AERO HELICOPTER (T) LTD v F.N. JANSEN 1990 TLR 142 (CA)
• Dar es Salaam City Council vrs. The Registered Trustees of Catholic Church- Ukonga, HCT at Dsm, Misc. Civil Case No. 288 of 2003
• Also: Muniu v Giovanni [1995–1998] 1 EA 218
• Athanas Albert and 4 others vrs. Tumaini University College, Iringa (2001) TLR 63
• Utegi Technical Enterprises (T) Ltd and another v NBC Ltd [2004] 2 EA 344 (HCT)
• Jandu v Kirpal and another [1975] 1 EA 225 (HCK)
• Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and another [2005] 1 EA 53 (CAK)
• East Africa Development Bank vrs. Blue Line Enterprises (Civil Application No. 57 of 2004)
EXECUTION-
INTRODUCTION
• Meaning
• CPC has not defined
• Re Overseas Aviation Engineering (G.B) Ltd (1962) 3 ALL ER 12
“The process of enforcing or giving effect to the judgment of the Court”
Presupposes the existence of a “judgment”
S. 3 (CPC) –the statement given by the judge or a magistrate of the grounds for a decree or order
S. 28-Pronouncement of judgment to be followed by the decree
WHAT’S CAPABLE OF BEING EXECUTED?
• S. 31 CPC- Decree or Order
• Decree (S. 3)- Formal expression of an adjudication which conclusively determines rights of the parties with regard to the controversy between the parties (e.g. rejection of a plaint(Read O. VII Rule 11, 12 and 13), issues relating to discharge or satisfaction of a decree)
• Does not include any order for dismissal for default
• Order: (s. 3 of the CPC)- Formal expression of any decision of a civil Court which is not a decree
• East Africa Development Bank vrs. Blue Line Enterprises (Civil Application No. 57 of 2004)
•
• CAT: A decision capable of being executed should be one that has given rights to the party seeking to execute
• Read also: Shyam and others v New Palace Hotel Ltd (No 2)[1972] 1 EA 199
• Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and another [2005] 1 EA 53 (CAK)
• The order which dismissed the suit was a negative order which is not capable of execution.
COMPETENT COURTS
• S. 33- (a)Court which passed the decree
(b) Court to which decree sent for execution
• “Court which passed the Decree” includes:
– S. 34(a) The Court which actually passed the decree
– S. 32- Decree passed in exercise of Appellate jurisdiction- Court of first instance
– Where Court of first instance cease to exist or to have jurisdiction- the Court that would have jurisdiction at the time of making the Application
• Courts to which a decree is sent for execution
– A court which passed the decree is primarily the Court to execute it
– S. 34 CPC-Decree may be transferred to other courts for execution
• 34(1)Should there be an application by the decree holder. Form of Application- O. XLII R. (2)
• S. 34(2)-Court may transfer of its own motion- to a “subordinate court” of competent jurisdiction
• Read with O.XXI R. 4 READ WITH O. XXI Rule 7: RMS send to “any other court” other than the High Court. May execute or transfer for execution to other subordinate Court
• In any other Case to the RMs Court with jurisdiction
• Order XXI Rule 8 decree sent to High Court for execution, High Court to execute
TRANSFER PROCEDURE
• O. XXI R. 5: Transferring Court to send a copy of the decree, a certificate stating the extent of the execution to be carried out and a copy of an order for the execution of the decree, or if no such order, then a certificate to that effect
• O. XXI R. 6: To be filed by the executing the decree
• S. 36 CPC-Powers of executing Court similar to those of Court passing the decree
• S. 34 – Results of execution to be certified to the Court which passed the decree
TO WHICH COURT?
• S. 34: In whose local limits of the jurisdiction the judgment debtor actually resides or carries on business
• In whose local limits the property situate
• Courts passing the decree may decide to transfer
– Note: Territorial jurisdiction of the executing court is a condition precedent
– Executing Court must take the decree as it stands and execute according to its terms
Effects of transfer
• Take away the jurisdiction of Courts of first instance?
– CPC silent
– C.K. Takwani, Civil Procedure, pg. 420 “Once a Court which has passed the decree transfers it to another Competent Court, it would cease to have jurisdiction and can not execute the decree”
– This is in respect of only the extent of transfer and not other matters
APPLICATION FOR EXECUTION
• Order XXI Rule 9, 10(1), & 10(2)
• Application in Writing (O.XXI R. 10(2) except for decree for payment of money which may be made orally under O. XXI R. 10(1) provided that the judgment debtor is within the Courts precincts (Read also O. XXI R. 10(1A) regarding payments ordered under the LMA
• Application be made by: decree holder, transferee of a decree (S.40) and Order XXI R. 14, joint decree holders (O. XXI R. 13)
• Application by transferee be made by the Court which passed the decree (O. XXI R. 14) also applications against legal personal representative of the judgment debtor (S. 41 CPC)
• The decree may have been transferred by an assignment in writing or by operation of law
• No where stated that the legal personal representative of the decree holder may execute the decree
Where decree Assigned/transferred
• If it is by assignment:
– Notice of Application be given to the transferor and judgment debtor (Purpose: to determine once and for all and in the presence of parties concerned the validity or otherwise of the assignment/transfer
– Decree not to be executed until objections have been heard and determined
AGAINST WHOM CAN AN APPLICATION BE MADE?
• O. XXI R. 10- judgment debtor
• S. 41 legal personal representative of the judgment debtor.
• S. 38(2) whether or not one is a representative of the party is question to be determined by the court executing the decree
• Test for determining whether one is a representative of a party:
• Jandu v Kirpal and another [1975] 1 EA 225 (HCK)
• First whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has, by act of parties or by operation of law, vested in the person who is sought to be treated as representative, and,
• secondly, if there has been any devolution of interest, whether, so far as such interest is concerned, that person is bound by the decree.”
• Under Section 38 the question must be determined must be related to “the execution, discharge or satisfaction of the decree”
• Jandu v Kirpal and another (supra): The defendants’ interest arose after the decree and out of the execution of it, but the plaintiff challenges the decree itself saying that he had become the owner by adverse possession before the decree was passed. His claim has, therefore, nothing to do with “the execution, discharge or satisfaction of the decree”.
• Read also: Shyam and others v New Palace Hotel Ltd (No 2)[1972] 1 EA 199
FORM APPLICATION FOR EXECUTION
• Be signed and verified at the foot by the applicant or a person acquainted with the facts of the case
• Contents: as outlined under O. XXI R. 10(2)(a) through to 10(2)(j)
– Be accompanied by the copy of the decree (not mandatory)
– Different forms in land matters - DHLT
PROCEDURE AFTER APPLICATION
• O. XXI R. 15
• Court need to ascertain whether the Application complies with the provisions of O. XXI R. 10 to O. XXI R. 12
• Where complied admit and register
• If any defect is noted the same be amended.
• Court to reject application if not amended as directed
• Amendment be signed or initialed by the judge or magistrate
HEARING OF THE APPLICATION
• O. . XXI R. 15(4) upon being admitted thereto enter on the register the date when the same was made and order execution except
• O. XXI R. 20 If application made after one year after the date of the decree or made against legal representative of the deceased- notice is to be given to show cause
• No provision for hearing but in practice- notice to show cause has been issued in respect of all applications
• Limitation period for execution is 12 (twelve month) except for decree granting an injunction
NOTICE REQUIREMENT UNDER O. XXI R. 20
• Utegi Technical Enterprises (T) Ltd and another v NBC Ltd [2004] 2 EA 344 (HCT)
– The Court can dispense with the notice.
– Reasons for departing from rule should be recorded.
– O. XXI R.20(2)
STAY OF EXECUTION
• Relevant provisions: O. XXI R. 24-27 and O. XXXIX R. 5,6,7, and 8
• Stay be made only when there is a court order granting a right or commanding or directing the respondent to do something:
• Athanas Albert and 4 others vrs. Tumaini University College, Iringa (2001) TLR 63
• Application for stay be made:
– To the Court which passed the decree
– The Court to which decree is sent for execution
– The Court having Appellate jurisdiction over the decree
Order XXI R. 24: The Court to which a decree is sent for execution can stay execution for a “reasonable time” to allow the applicant to apply to the Court which passed the decree or the Appellate Court for stay of execution
-Does not Apply where execution is sought pending Appeal
• Dar es Salaam City Council vrs. The Registered Trustees of Catholic Church- Ukonga, HCT at Dsm, Misc. Civil Case No. 288 of 2003
• Also: Muniu v Giovanni [1995–1998] 1 EA 218
• Once appeal proceedings have been commenced by filing notice of appeal to the Court of Appeal of Tanzania, only the CAT can stay execution
• AERO HELICOPTER (T) LTD v F.N. JANSEN 1990 TLR 142 (CA)
• Section 95 of the Civil Procedure Code can not confer jurisdiction on the High Court to order a stay of execution pending appeal to this court
• Stay pending appeal - irreparable loss would result which could not be adequately compensated by damages.
• Nicholas Nere Lekule v. Independent Power (T) Ltd and another 1997 TLR 58 (CA)
• Applicant required to give details and particulars of loss it would suffer:
• Tanzania Cotton Marketing Board v. Cogecot Cotton Co SA 1997 TLR 63 (CA)
• Prospects of the Appeal taking off
• Mathias Bucyana vrs. Registrar of Buildings (1998) TLR 117
• Principles to take into acount:
• Arusha International Conference Center vrs. Edwin William Shetto (2002) TLR 265
• If the applicant will suffer irreparable loss
• Prima facie likelihood of success
• Balance of Convenience
• Tanzania Electric Supply Company (TANESCO) vrs. Independent Power Tanzania Limited (IPTL) and others (2000) TLR 324
STAY PENDING APPEAL
• The Appeal must have been filed and the same must be properly before the Court
• WILLOW INVESTMENT v MBOMBO NTUMBA AND TWO OTHERS 1997 TLR 93 (CA)
• E R Mutaganywa v. Ahmed J. Aladin and others 1996 TLR 285 (HC)
• Where leave is a pre requisite, if not obtained stay can not be granted???????
• Wankira Bethuel Maise and National Housing Corporation versus Kaiku Foya (1999) TLR 348
• Cf: East African Development Bank vrs. Blue Line Enterprises Ltd and ATH Mwakyusa (2005) TLR 203
• Where notice is not lodged in the CAT
• El- Nasr Export and import Company v. Nahdi Trading Company (2001) TLR 75
•
• O. XXI R. 27:When suit is pending in any Court
• Object:
• To enable the judgment debtor and decree holder to adjust their claims against each other
• To prevent multiplicity of execution Applications
• There must be:
• Execution proceedings pending
• A pending suit by the judgment debtor
• Pending suit must be against the decree holder
• The provisions are not mandatory- uses the word “may”
• Parties liberty to adjust claims does not mean to renegotiate the decree
• Parties not allowed to renegotiate the decree
• Laemthong Rice Company Limited vrs. Principle Secretary, Ministry of Finance (2002) TLR 389
• Consider whether the judgment debtor has a substantial claim against the decree holder
• Note be taken of the underlying principle that a successful party is entitled to enjoy the entitlements under the judgment unless there are good and cogent reasons
• Where granted, be granted subject to security or other terms
• The discretion under this Rule must be exercised with great care and only in special cases
• A suit must be pending before the same court
• Time within which such Application may be brought: 60 days from the date of the judgment
• Blue Star Service Station v. Jackson Musseti Enterprises (1999) TLR 80
• Where application for stay s dismissed filing of a similar application an abuse of the process
• Where dismissed not on the merits, a fresh application may be brought
• Time within which Application may be made
• CAT: Reasonable time being one to two months:
• Loswaki Village Council and another v. Shibesh Abebe (2000) TLR 204
MODES OF EXECUTION
• O. 21 R. 28-34
• Several depending on the type or nature of the particular decree
• Applicant chooses the mode but the Court’s must satisfy itself that the mode chosen and the Application are in accordance with the law
• O. 21 R. 28: Decree for the payment of money
• by attachment and sale of the judgment debtor’s property,
• detention of the judgment debtor s a civil prisoner
• or by both
• Arrest and detention regulated by O. 21 r. 35-39
PROCEDURE FOR ARREST AND DETENTION
• An application to the Court
• Courts issue a notice to the JD to appear before the Court and shoe cause why he should not be committed to prison
• If the JD fails to appear arrest warrant may be issued (Form)
• The responsibility of the DH pay subsistence allowance before arrest and imprisonment of the JD
MODES OF EXECUTION
• O. 21 r. 29:Decree for a specific movable property
• by seizure, if practicable, of such movable property and delivering it to the decree holder, or a person appointed by the DH
• detention of the judgment debtor as a civil prisoner,
• attachment of the judgment debtor’s property,
• or by all such above means
ATTACHMENT OF PROPERTIES
• Properties
– O. 21 r. 42: General: Seizure and keep in custody by the officer seizing except for properties
– O. 21 r. 43: Agricultural produce
– O. 45:Debt share and other property not in possession of JD- By a prohibitory order
– O. 21 R. 46: Share in Movables-By prohibition order prohibiting transfer
– O. 21 r. 47 Salary-(Notice of the order on the amount to be withheld to be served on the employer or paying authority to with hold and remit to Court) Rf S. 48(h)
– O. 21 r. 48 and 49: Attachment of partnership property
– O.21 r. 50:Negotiable instruments
– R. 51:Property in custody of Court
– R. 52:Decrees
• S. 48: Properties not capable of being attached (proviso)
• “Who has priority over the goods of a judgment debtor? The debenture holder, or the execution creditor (the decree holder?)”
• Read: Diversey Lever East Africa Ltd v Mohanson Food Distributors Ltd and another
[2004] 1 EA 43
• Law may exclude certain properties
• Attached properties must belong to the judgment debtor
– Said Mnimbo and others versus. State Travel Services Ltd, Tourism Services Tanzania and Parastatal ector Reform Commission as Objectors (1999) TLR 233
– Mrs. Nuru Mbaraka vrs. Awadh Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
• O. 21 R. 30: Decree for specific performance of a contract or for an injunction
• Judgment debtor has had time to comply but failed then may be executed:
– by detention as civil prisoner,
– attachment of the judgment debtors property, o
– by detention and attachment of properties
– By directing that which ought to be done to be done at the expenses of the JD
• O. 21 r. 33: Decree for delivery of immovable property e.g. a house may be executed:
– by delivery of such property to the decree holder,
– where need be by evicting any person bound by the decree who is in occupation of the property)
OBJECTION TO ATTACHMENT
• Order 21 r. 57-62
• Third party objects to attachment on ground that such property is not liable to attachment on account that on the date of attachment he had some interest on the property
• If such happen the Court is to investigate the claim by hearing both parties
• Nyanza Distributors Co. v. Geita General Stores (1977) LRT No. 2
• Objection to the Court which passed the decree: KANGAULU MUSSA v MPUNGHATI MCHODO 1984 TLR 348 (HC)
• OMOKE OLOO v WEREMA MAGIRA 1983 TLR 144 (HC):
• a party can decide to bypass objection proceedings and resort to a suit to recover his wrongly seized property.
• Desirable that the same Magistrate who heard the case be assigned to determined objection proceedings:
• Mrs. Nuru Mbaraka v. Awadhi Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
STANDARD OF PROOF
• Trans Africa Assurance Co v National Social Security Fund [1999] 1 EA 352 (SCU)
• An objection application is an interlocutory application and that the standard of proof was on a “balance of probabilities”
KWIGA MASA v SAMWELI MTUBATWA 1989 TLR 103 (HC):
the duty of objector to adduce evidence to show that at the date of attachment he had some interest in the property attached
OBJECTION PROCEEDINGS
• O. 21 R. 62, and O. XXI R. 101: Orders in objection proceedings not appealable
– Thomas Joseph Kimaro vrs. Apaisaria Martin Carl Mkumbo and Oscar Carl Mushi (2002) TLR 369
– Objection proceedings are instituted by way of an application (Chamber summons and affidavit)
• A final order
• where application is successful is to release the property y or part thereof as the case may be from attachment
• Where unsuccessful the Court will disallow the claim
• A party aggrieved by the final order may institute a suit
• Upon being determined the decision final and conclusive
DISSPOSESSION OF IMMOVABLE PROPERTY
• O. XXI R. 98-101
• A third party complaining of dispossession of his immovable property by the DH or complains that the property has been sold in execution of a decree
• Complains to Court which passed the decree against such dispossession by filing an ordinary application
• The procedure after a complaint is instituted is the same as it is for objection proceedings
• The final order may be
• An order directing the applicant be put into possession
• The rules do not apply where the applicant gained possession after the suit is instituted
• A party aggrieved by the final order to institute a suit- decision final and conclussive
RESISTANCE TO DELIVERY OF POSSESSION
• S. 55, O. 21 rr. 95,96, 97: A third party has made no objection as per 0.21 R. 57, O.21 R. 98 hut resist possession or delivery to the decree holder, purchaser or obstruct him
• Procedure:
• An application by an aggrieved party (JD/purchaser)
• Summoning of the said third party
• Court make orders after hearing both parties
• Orders may be:
• Directing the applicant to be put in possession of the property
• If there is still resistance or obstruction the Court may make orders directing that the person resisting or obstructing be detained as a civil prisoner
EXCEUTION OF FOREIGN JUDGMENT
• S. 3 CPC -foreign judgment" - the judgment of a foreign court
• S. 3-"foreign court“- a court situated beyond the limits of Tanzania which has no authority in Tanzania;
• S. 12- Presumption of foreign judgments
• IMKE HELLA CAMPBELL-SMITH V. DOUGLAS WILLIAM CAMPBEL-SMITH (2000) TLR 355- HCZ
• The Reciprocal enforcement of foreign Judgments Act (Cap 8 RE. 2002)
• The Reciprocal enforcement of foreign Judgments Act (Extension of Part II) Order: itemise countries and Courts
• The Reciprocal Enforcement of Foreign Judgments Rules- registration procedures
• Framework designed to facilitate the direct enforcement of certain foreign judgments in Tanzania
• Preamble: An Act to make provision for the reciprocal enforcement of judgments as between Mainland Tanzania and foreign countries and for other related matters
• In its original terms s 3(1) provided that if the President is satisfied that substantial reciprocity of treatment would be accorded by a foreign country in respect of recognition and enforcement of judgments given in the superior courts of Tanzania, he may by order direct that the said part be extended to that country.
• DH has to make an application to the HCT for registration of the judgment
• Once a foreign judgment is registered it will have it will have same force and effect as if it had been given by the HCT: DOWANS HOLDING SA COSTARICA and DOWANS TANZANIA LIMITED vs. TANZANIA ELECTICITY COMPANY LTD TANZANIA
• Judgment will be registered if it is final
• IMKE HELLA CAMPBELL-SMITH V. DOUGLAS WILLIAM CAMPBEL-SMITH (2000) TLR 355- HCZ
• Although a decision of HCZ on S. 9 of the CPC Decree is relevant as similar to S. 12 of the CPC
Upon production of any document purporting to be a certified copy of a foreign judgment the Court is to presume that such judgment was pronounced by a court of competent jurisdiction unless the contrary appears on the records
• WILLOW INVESTMENT v MBOMBA NTUMBA AND ANOTHER 1996 TLR 377 (HC): A judgment creditor who sought to enforce a foreign judgment at common law could not do so by direct execution of the judgment: enforcement had to be sought by bringing an action on the debt. The proceedings instituted in the present matter were bad as they did not comply with this requirement.
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