bank of baroda t ltd vs triangle t ltd hawa hamis ngumbi adminitrix of estate of the late ramadhani hamis 3 others 2023 tzhccomd 189 10 march 2023

IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL CASE NO. 13 OF 2021 BANK OF BARODA (TANZANIA) LIMEITD.................................. PLAINTIFF VERSUS TRIANGLE TANZANIA LIMITED................................. >....... 1ST DEFENDANT HAWA HAMIS NG'UMBI (adminitrix of estate of the late 2nd DEFENDANT Ramadhan Hamis).................................................... ........ AGREY FREDERICK MBUYTA............................................ 3rd DEFENDANT ZAKARIA KITULE.................................................................. 4™DEFENDANT CONSENT JUDGMENT Date of Last Order: 06/3/2023 Date ofJudgment: 10/3/2023 AGATHO, J.: This consent judgement emanates from a deed of settlement dully signed by the 1st, 2nd, 3rd, and 4th defendant and the plaintiff in this court on, 10th March, 2023. Plaintiff is a registered company under the Companies Act No. 12 of 2002 R.E. 2002 and licensed under the Banking and.financial institution Act.2006 to carry'' out banking business and 2nd, 3rd and 4thDefendants are guarantors of the 1st defendants' loan advanced by the plaintiff. By way of plaint the plaintiff, Bank of Baroda (Tanzania) Limited instituted this suit against the above-named i Defendants praying for judgment and decree jointly and severally for following reliefs; - A declaration that: - (a) The 1st Defendant breach the facility Agreement by is failure to discharge its duties and obligations in accordance with that agreement. (b) The 4th Defendants breached the mortgage deed by his failure to fulfill the covenants and commitment to repay the. loan following the 1st Defendant's default in repaying the loan. (c) The 2nd, 3rd and 4th Defendants breached personal guarantee by failure to fulfill what they guaranteed. ii. The Defendants to be ordered to immediately pay to the plaintiff the entire outstanding amount of the overdraft which is TZS 1,721,006,122.05 (Say Tanzania Shillings One Billion Seven Hundred Twenty-One Million Six Thousand One Hundred Twenty- Two and five Cents) being the principal amount plus accrued interest and fees from 1st October, 2017. iii. The Defendants to be ordered to pay interest compounded monthly on the unpaid sum from the due date of actual payment. jv. That the Plaintiff should be allowed to sell the mortgaged property with Certificate Tittle No. 29203, PLOT No. 66 at MIKOCHENI LIGHT INDUSTRIAL AREA, DAR ES SALAAM. v. That the plaintiff should be allowed to sell the assets in accordance with the debenture and mortgage. vi. The Defendants to be ordered, to pay the Plaintiff general damages to cover the loss the Plaintiff suffered for the Defendants' failure to discharge their duties and obligation under the Agreements; the amount to be assessed by the court. vii. The Defendants to be-ordered to pay the. Plaintiff interest on the decretal amount from the date due to the date of full payment thereof at the prevailing commercial rate.. viii. The Defendants to be condemned to pay the Plaintiff costs of this suit and any incidental detriments to the suit. ix. Any other reliefs) that the Honorable court may deem fit. On 6thMarch, 2023 when the matter came for Final pretrial conference parties Advocates informed the court that, parties by consent had signed Deed of settlement out of the court and the same prayed that, this court be pleased to mark the matter settled and proceed to issue consent judgment under Order XXI11 Rule 3 of the Civil Procedure Code. I have 3 dispassionately gone through the deed of settlement dated 16 February,2022, and in terms of Order XXI11 Rule 3 of the Civil Procedure Code and Rule 2(2) of the High Court (Commercial Division) Procedure Rules, 2012.1 am satisfied that, the same was mutually consented. In the view of above, the deed of settlement is hereby recorded and adopted to form part of consent judgment as prayed by parties on the following order; i. The parties agreed that, the amount due to the 1st Defendant is the sum, of Tanzania Shillings One Billion Seven Hundred Twenty-Two and Five Cents (TZS 1,721,006,122.05/= ) ii. That the Defendants are allowed to sell the mortgaged property with Certificate of Title No. 29203, Plot No 66 at Mikocheni Light Industrial Area.Dar es Salaam .through the. registered property owner (guarantor) herein the 4th Defendant and all conveyancing transactions till finalizing this claim shall be made through the Plaintiff Bank. iii. . The Plaintiff concedes.to confine and freeze the claims in the case at Tanzania Shillings One Billion Seven Hundred Twenty-Two. and Five Cents (TZS 1,721,006,122.05/-) to allow effective compliance by the 1st Defendant. 4 iv. The Plaintiff shall be entitled to pay herself from the Sales Proceeds an amount not exceeding Tanzania Shillings One Billion Seven Hundred Twenty-Two and Five Cents (TZS 1,721,006,122.05/= ) v. The disposal of the Security shall be effected in a period not exceeding 6 months of the date, of registering this Deed of Settlement in Court. vi. The Plaintiff shall release the original mortgaged property with Certificate of Title . No. 29203, Plot No 66 at Mikocheni Light Industrial Area Dar es Salaam upon deposit of Tanzania Shillings One Billion Seven Hundred Twenty-Two and Five Cents (TZS 1,721,006,122.05/=) vii. Plaintiff should be allowed to dispose assets subject to .debenture and mortgage upon failure of payment of Tanzania Shillings One Billion Seven Hundred Twenty-Two and Five Cents (TZS 1,721,006,122.05/=) within six (6) months. viii. Parties, shall, withdraw the .Court case as well as any subsisting Counterclaims. ix. That the parties in this■•Deed of Settlement^have, voluntarily and willingly negotiated this, settlement and are.;in agreement to the settlement reached herein and that by i.this Deed the Claims between the Plaintiff and the 1st Defendant as;contained in the suit 5 are marked settled in accordance with the terms of this Deed of Settlement and that no further claim of whatsoever nature pertaining to these settled matters emanating from credit facilities advanced to the 1st Defendant by the Plaintiff, may be revived or reinstituted by any party in this settlement. x. That immediately after filing of this Deed of Settlement, the Plaintiff's claims against the 1st Defendant and vice versa shall be deemed to have been marked settled. xi. That this Deed of Settlement shall constitute a consent Order and. Decree of the Court as between the Plaintiff and the 1st Defendant in respect of the disputes between them and the. parties hereto agree the Court to record; as such should either of the parties hereto default in the performance of the terms herein, it shall be enforced in the same manner and to the full extent as a decree of the Court. xii. Parties herein agreed that the Defendants shall pay Tanzania Shillings Fifty Million (TZS 50,000,000) as cost for this suit to the Plaintiff and 2nd Defendant to the counterclaim. xiii. That this Deed of Settlement will be recorded by the Court and passed as a Decree of the Court 6 By this consent decision, therefore, this Court hereby declares that the parties herein have resolved their dispute and, this suit is marked "settled on the compromise of the parties" as evidenced by the terms agreed under the said "Deed of Settlement". For the reasons aforesaid, the "Deed of Settlement" signed by the parties and filed in this Court constitutes.the Judgment and Decree of this Court. It is so ordered. DATED at PAR ES SALAAM this 10th day of March, 2023. U. J. AGATHO JUDGE 10/03/2023 7