cotex industries ltd vs tanzania breweries ltd and another 2022 tzhccomd 19 25 february 2022

IN THE HIGH COURT OF THE UNITED REUBLIC OF

TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 36 OF 2021 COTEX INDUSTRIES LTD........................ PLAINTIFF

VERSUS TANZANIA BREWERIES LTD..... ..... l^DEFENDANT DARBREW LIMITED............. \^2^DEFEJ1DANT Last order: 23rd February, 2022 Judgment: 25th February, 2022 CONSENT'JUDGEMENT NANGEL^J,^^^ This consentjudgment arises from a suit filed by the |P^aintiff^\W^ich'-a Deed of Settlement successfully negotiated and\ agreed upon by the Parties was filed in Court.^\^z To give it context, the Plaintiff sued the Defendants claiming or seeking for the Judgment and Decree as follows: 1. A Declaration that the Defendants are in breach of terms of engagement of supply of Page 1 of 5 bottle caps between the Plaintiff and the Defendants.

2. A declaration that, that Defendant should pay the amount of TZS 79,307,499.77, being the outstanding amount for the supplied bottle caps.

3. Interest at commercial rate per annum on the claimed amount from the date it became due?\\ 4. Interest on the decret^sum anX/v> this Court's rate,%o^ti^atezof^ judgment tiikpaV,ment\is made in 5. General damages. 6r\Costs of/and\incidental to the zXXX' 'Any^'Otter relief that the Court XZi^X\^ee(nSjfit, just and equitable to U X\\jrant. \\ \\ Tn^yg^roceeded to the stage of mediation which was unsuccessful and it was set for a final pre-trial conference which took place on the 27th October 2021. Its hearing was to commence on the 13th December 2021. On the material date, however, when the parties appeared before me, Ms Maria Patrick, learned advocate for the Plaintiff informed this Court that, the parties were Page 2 of 5 engaged in a possible out of court settlement negotiations. The submissions of Ms Patrick were supported by Mr Issa Mrindoko, learned advocate for the Defendants. In view of that, I granted an adjournment to afford the parties herein an ample time to discuss and reach amicable solution to their dispute. I set the 23rd day of February 2022 as a date when the parties are to appear before me for necessary orders. On the 23rd of February 2022, Ms Patriclcappeared for the Plaintiff while Mr'-Augustine/Rutakolezibwa, <x V> learned advocate appearedsfpr the Defendants. Ms Patrick informed this Couri/trat, thesparti’es\have had successful settlement discussions

and?tha^hey were able to file a Deed of SettlemenfNn 'this-'Court. She prayed that the filed deedxof\/Settlement be recorded as forming the Judgment and Decree of this Court, a prayer which Mr. Rutakotezibw^supported. I have-^also gone through the said "Deed of Settlement". In law, a consent agreement which is frequently made under Order XXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019 is an agreement of the parties which is subject to the same principles of the law of contract. Page 3 of 5 According to Order XXIII rule 3 of the Civil Procedure Code, Cap.33 R.E 2019, the law requires that, the Court will have to be satisfied whether the agreement is lawful and compromises the suit Order XXIII Rule 3 provides as follows: "Where it is proved to the satisfaction of the court that a suit has been adjusted wildly or in part by any lawful agreenieqt or compromise, or "S^fere^the* defendant satisfie^the plaintiftin _ W VZ " respect of thejwholesbr anyxpart C- \\ of the subject matter oPthe suit, the'/^urt^hah^brder such compromise or Satisfaction to)be recorded, and \\ 'Shalkpass a-decree in accordance tferewitfbso far as it relates to the suit." in^the \case of Motor Vessel Sepideh and Another^vsZ^Yusuf Mohamed Yussuf and two Others (Civil Application No.237 of 2013) (Unreported) it was the emphasis of the Court of Appeal of Tanzania that: "where there is a lawful agreement

or compromise the court is bound to record a Page 4 of 5 settlement once it is arrived at by the parties." Looking at the Deed of Settlement filed in this Court on the 20th January 2022, and taking into account what the law requires me to do, 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 recorded and declared to be forming part and parcel of this Consent Judgment of the Court, as well as its decree. The present suit is, therefore, marked settled at the instance of the parties' terms and conditions set out in their Deed of Settlement executed and filed in this Court on the 20th January 2022, and which forms part and parcel of this Consent Judgment. It is so ordered DATED AT DAR-ES-SALAAM ON THIS 25™ DAY OF FEBRUARY 2022 Page 5 of 5