commercial bank of africa tanzania ltd vs ms shekha nassor 2022 tzhccomd 352 15 november 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC COMMERCIAL APPLICATION NO. 129 OF 2022 (Originated Misc. Commercial Cause No. 368 of 2017) COMMERCIAL BANK OF AFRICA TANZANIA LTD....... APPLICANT VERSUS MS. SHEKHA NASSOR..................................... RESPONDENT Date of last Order: 21*' September 2022 Date of Ruling: 15>h November 2022 RULING MKEHA, J: In the present application the applicant is moving the court for an order extending time to allow the applicant to file a Deed of Adjustment of Decree so that satisfaction of decree can be recorded. The applicant is also moving the court for issuance of notice to the Respondent (Decree Holder) to appear and show cause why deed of adjustment of decree dated 21st August, 2018 should not be filed and certified by the court as adjustment of decree and for further orders that the decree is discharged fully. The application is made under section 14 (1) of the Law of Limitation Act as well as Order XXI Rule 2 (1) of the Civil Procedure Code. Whereas Mr. Elisa Abel Msuya learned advocate represented the applicant, Mr. Emmanuel Msengezi learned advocate represented the respondent. The application is supported by an affidavit sworn by Ms. Lilian Mndeme, Principal Officer of the Applicant/Judgment Debtor. On the other hand, the application is contested through a counter affidavit affirmed by Ms. Shekha Nassor, the respondent. In terms of the affidavit supporting the application and submissions by Mr. Msuya learned advocate, after the respondent had procured an award against the applicant, the parties sat and decided to adjust the award. The parties agreed that, payment of TZS 350,000,000/= would suffice to extinguish the whole liability of the applicant. A deed of settlement was executed by the parties. In terms of the deed, it was upon the Judgment Debtor /applicant to file and certify satisfaction of the decree in court. That was not timely done by the applicant. , llpon failure of the applicant to certify satisfaction of decree, the respondent opted to enforce the original award for payment of TZS. 666,578,051/= According to the applicant's advocate, the Judgment Debtor had on 06/06/2018 paid TZS 350,000,000/= as full satisfaction of the adjusted award as per the parties' agreement in the Deed of Settlement. Mr. Msengezi learned advocate condemned the applicant for fundamental breach of the conditions of the Deed of Settlement. He disputed the fact that TZS 350,000,000/= had been paid to his client. This is according to paragraph 4 of the counter affidavit According to Mr. Msengezi learned advocate, whether the Decree Holder received TZS 350,000,000/= from the Judgment Debtor or not, for failure of the Judgment Debtor to certify the payments as agreed in the deed of settlement, the Decree Holder is entitled to execute the original award. Mr. Msuya learned advocate submitted that, the delay in certifying payments was because of a honest belief that the Decree Holder should have approached the court to acknowledge the payments made to her which was not the case. An important question that arises is whether the parties to a case have powers to make an agreement contravening express provisions of a statute. Under Order XXI Rule 2 (1) of the Civil Procedure Code, the first obligation to report payments under a decree made out of court lies upon the Decree Holder. In this case, under the law, it was the Decree Holder's obligation to certify whatever payments made to her by the Judgment Debtor out of court, if at all there were such payments. The Decree Holder insists on breach of a term in the Deed of Settlement that, it was for the Judgment Debtor to certify payments and adjustments of decree. Obligation of the Judgment Debtor to prove payments made out of court arises only when the Decree Holder fails or refuses to do so as it has happened in this case. In such circumstances, it is in the interests of justice that, the decree holder be called to appear and show cause why the alleged payments should not be recorded as satisfaction of the decree between the parties. Where there is an allegation of payments made in view of satisfying the decree, which is not admitted by the Decree Holder, it is I think in the interests of justice that, time be extended for filing of the purported Deed of Settlement in court so that, when the Decree Holder appears to show cause, the said document is found on record to make the task of resolving the controversy an easy one. It is for the foregoing reasons I grant both prayers of the Applicant. Time is extended for the Applicant to file before the executing court the Deed of Adjustment of Decree out of time. Sixty (60) days' time is given for the Applicant to achieve the said purpose. Let summons to show cause be issued to the Respondent (Decree Holder) for her to appear in court in view of showing cause why payments alleged to have been made by the Applicant (Judgment Debtor) should not be recorded to mark full satisfaction of the decree between the parties. The application is allowed. I make no order as to costs. Dated at DAR ES SALAAM this 15th day of November, 2022. JUDGE 15/11/2022 Delivered this 15th day of November, 2022 in the presence of Advocate Irene Mchau for the Applicant and Advocate Emanuel Msengezi forthe Respondent. J. M. MINDE DEPUTY REGISTRAR 15/11/2022