Dave Impex Limited vs Lano Company Limited Civil Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM. CIVIL CASE NO. 6985 OF 2024 DAVE IMPEX LIMITED…………………………………………………..… PLAINTIFF

VERSUS LANO COMPANY LIMITED………………………………………………… DEFENDANT

CONSENT JUDGMENT Date of last order: 12/11/2024 Date of judgment: 12/11/2024 A.A MBAGWA, J. This judgment stems from a deed of settlement duly signed and filed by the parties before the Mediator Judge at the Mediation Centre on the 08th day of October 2024. The plaintiff herein, Dave Impex Limited instituted the present suit against the defendant praying for judgment and decree as follows; i. An order compelling the defendant to pay USD 165,000 (Equivalent to Tanzanian Shillings Four Hundred Fourteen Million Eight Hundred Ten 1 Thousand Only (TZS 414,810,000/=) at today's currency exchange rate of TZS 2514 per 1 USD, being specific outstanding amount. ii. The plaintiff further claims compensation for malicious breach of agreement to the tune of at least TZS 200,000,000/=. iii. The plaintiff also claims Loss of Business by way of mesne profit to the tune of TZS 21,000,000 per every month with effect from 15th March 2022 till finalization of the suit. iv. Interests of the decretal amount at the rate of 15% per annum. v. Interests at the court’s rate of 7% per annum. vi. Payment of punitive damages to the tune of a minimum amount of TZS 100,000,000/= to prevent the occurrence of similar acts in the future. vii. General damages to be assessed by this Honourable Court. viii. Costs of the suit be provided for. ix. Together with any other relief, this Court may deem just and

equitable to grant. In brief, the factual background of the matter is as follows; On 15th December 2021, at Dar es Salaam, the parties herein entered into a 2 contractual relationship/Freight Asset Sale Agreement. It was further alleged that the plaintiff offered to sell 7 Trucks and 7 Trailers for a total consideration of USD 195,000 whereby the defendant was supposed to furnish a total of four installments with effect from the execution date (1st installment USD 30,000 on 17/12/2021, 2nd installment USD 45,000 on 10th January 2022, 3rd installment USD 60,000 on 15th February 2022, and 4th installment USD 60,000 on 15th March 2022). It was averred that the defendant managed to pay only one installment i.e. USD 30,000 paid on 17/02/2022. Nevertheless, the defendant defaulted to heed the plaintiff’s rightful demands despite being politely and vigorously requested to honor the agreement. Moreover, apart from a fundamental breach of the agreement for non-payment of the agreed amounts, the plaintiff alleged that the defendant illegally changed the ownership of the seven motor vehicles without the consent of the plaintiff something that clearly portrays her intention to defraud. Thus, the plaintiff approached the defendant in a bid to settle the outstanding debt but the endevours did not yield results. Consequently, the plaintiff resolved to institute the present suit

claiming 3 reliefs from the defendant as indicated hereinabove. After the first pre-trial conference, this matter was referred to the Mediation Centre. Luckily, on 08th October 2024 before Hon. Maruma J, the parties successfully mediated the matter. The parties signed a deed of settlement which was filed in Court to form part and parcel of the consent judgment and decree of the Court. As the High Court Mediation Centre is not enjoined with powers to execute decrees, the parties were referred back to this Court for the recording of the deed of settlement and issuance of consent judgment and decree of the Court. The law is very clear on the disposal of cases by settlement where parties mutually agree to settle their dispute through amicable means. Order XXIII rule 3 of the Civil Procedure Code under which this settlement deed was filed provides as follows; "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 whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit". 4 Further, in the case of Motor Vessel Sepideh and Another vs. Yusuph Mohamed Yusuph and two Others, Civil

Application No.237 of 2013, CAT at Dar es Salaam, the Court clearly underscored the need for the courts to encourage and record a deed of settlement once it is arrived at by the parties. Besides, in the case of Jaffrey Indi. Sian Ltd vs M/s Beijing Construction Engineering Group Limited, Commercial Case No. 38 of 2021, the court remarked that the parties' mutual settlement of cases is a route encouraged all over the world. In the premises and without further ado, the deed of settlement reached by parties through mediation is hereby recorded and adopted to form part and parcel of the consent judgment. The matter is therefore marked settled with the following terms; 1. The trucks and trailers in dispute are T 379 DFD, T 389 DFD, t 304 DCX, T 317 DCX, and T476 DDA.

2. And trucks with registration numbers T 449 DNF, T 450 DNF, T453 DNF, T 455 DNF, and T 536 DCY were never delivered to the respondent hence not in dispute. 5 3. The Truck and its trailer with registration numbers T 841 DDA and T 762 DDD were paid in full a total sum of USD 20,000.

4. The amount of USD 30,000/- paid in the first installment has been deducted from USD 20,000 to cover the item in paragraph (c) above and the remaining balance of USD 10,000 is computed to settle the balance on the items mentioned in paragraph (a) above.

5. The remaining amount for the items mentioned in (a) above is USD 34,000 with its interest therein.

6. That the defendant hereby accepts to be liable to pay a total sum of USD 34,000 (Net of Tax) to satisfy the entire plaintiff's claims set forth in the suit.

7. The defendant hereby agrees to settle the stipulated compromised amount of USD 34,000 in six (6) installments as follows. i. USD 4,000 to be payable by or before 30th October 2024. ii. USD 4,000 to be payable by or before 30th November 2024. iii. USD 4,000 to be payable by or before 30th December 2024. iv. USD 8,000 to be payable by or before 30th January 2025. 6 v. USD 8,000 to be payable by or before 30th February 2025. vi. USD 6,000 to be payable by or before 30th March 2025.

8. All Payments shall be made through the plaintiff’s Managing Directors USD Bank Account bearing the following particulars: - USSD ACCOUNT NO. 033149000707 ACCOUNT NAME: MALHAR DAVE. BRANCH CODE: 033 SWIFT CODE: NLCBTZTX BRANCH: INDUSTRIAL BRANCH 9. As further consideration for receipt of the settlement payment as covenanted herein; the plaintiff covenants to release and forever discharge and never institute nor pursue any legal action(s) or other claims against the defendant resulting from, or in any way related to the same claims as stipulated in this suit.

10. Notwithstanding the provisions of paragraph 4(a) above; it is mutual understanding by both parties that the whereabouts of the truck (Make DAF) bearing Registration Number T775 CXD with its trailer bearing 7 Registration Number T 466 DDA are unknown. The parties have agreed to cooperate with one another in tracing the whereabouts of the aforementioned truck and trailer. This shall be in pursuant to criminal measures that shall be instituted by the plaintiff as the complainant.

11. Furthermore, this deed of settlement shall be final and shall be regarded as final in the determination of the suit between the parties herein.

12. Without prejudice to the above, the default clause shall apply to the effect that in case of default by the defendant to pay on due dates as agreed, the plaintiff shall be at liberty to proceed with the execution of the decree. It is so ordered. Dated at Dar es Salaam on this 12th day of November 2024. A.A. Mbagwa

JUDGE 12/11/2024 8