al kafil co ltd vs tanzania co ltd 2022 tzhccomd 321 21 september 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO.61 OF 2019 AL KAFIL COMPANY LIMITED.................................... PLAINTIFF VERSUS TANZANIA MEAT COMPANY LIMITED....................... DEFENDANT Date of Last order: 21/09/2022 Date of Judgment: 21/09/2022 CONSENT JUDGMENT MAGOIGA, J. The plaintiff, AL KAFIL COMPANY LIMITED by a plaint filed under certificate of urgency instituted the instant suit against the above-named defendant praying for judgment and decree in the following orders, namely:- a. A declaration that the defendant is in breach of the agreement; b. An order for payment of TZS 38,350,798,919/= being specific damages; c. An order compelling the defendant to permit the plaintiff to access the plant and proceed with the production; । 1 d. An order for payment of general damages to be assessed at the discretion of the court; e. An order for payment of interests on prayer (b) above at the commercial rate of 7% from the date of filing this suit to the date of judgment; f. An order for payment of interests on prayer (b) above at the court rate of 12% from the date of judgment to the date of full settlement of the decretal sum; g. Costsofthissuit; h. Any other order or relief that this honorable court may deem fit to grant. When this suit was called on for orders on 21st September, 2022, Ms. Hawa Turusia, learned advocate for the plaintiff informed the court that, parties have managed to settle the matter out of court and deed of settlement has already been filed in this court for its recording, consent judgment and decree be issued. I have gone through the deed of settlement filed in this court by the parties, and indeed, filed under Order XXIII Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019]. The said Rule 3 provides that: "Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be 2 recorded and shall pass decree in accordance therewith so far it relates to the suit." As the above provision provides, once a deed of settlement is executed by parties and filed in court, the court must be satisfied that it is a lawful deed and it does, indeed, adjust the suit either wholly or partially and, thereafter, the court shall record it, thereby passing a decree in accordance therewith, and in so far it relates to the suit. The scope of Rule 3 of Order XXIII of the Civil Procedure Code, [Cap. 33 R.E. 2019] was succinctly defined by Mulla, Code of Civil Procedure Act of 1908 (14th edition) on page 1828, who stated as here below:- "The rule gives a mandate to the court to record a lawful adjustment or compromise and pass a decree in terms of such compromise or adjustment. Such a consent decree is not appealable ... when the agreement relates to whole suit, the court on being invited by the parties, record the agreement and pass a decree in accordance with the agreement and the suits ends there." This position was acknowledged by the Court of Appeal in the case of Motor Vessel Sepdeh and Another v. Yusuph Mohamed Yusuph and two others Civil application No.237 of 2013 CAT DSM (Unreported) where the court citing Mulla on Code of Civil Procedure Act of 1908 observed that:- 3 "Where there is lawful agreement or compromise the court is bound to record a settlement once it is arrived at by the parties" I have examined the deed settlement which seeks to settle the whole suit once and for all. I am satisfied as to its lawfulness and effect of settling the whole suit once and for all. In view of the above, the same is hereby registered and it shall form part and parcel of this consent decision of the court as well as its decree. The present suit, therefore, by deed of settlement dully executed by the parties in this case and filed in this court, is hereby recorded that this suit is marked settled out of court in the terms and conditions as agreed in the deed of settlement under Order XXIII Rule 3 of the Civil Procedure Code filed in this court on 2151 September, 2022. It is so ordered. Dated at Dar es Salaam on this 21stSeptember, 2022. 4