everwell cable and engineering co ltd v pomy engineering co ltd 2 others 2022 tzhccomd 201 27 july 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 57 OF 2022 EVERWELL CABLE AND ENGINEERING COMPANY LIMITED........................................................ PLAINTIFF VERSUS POMY ENGINEERING COMPANY LIMITED......... 1ST DEFENDANT OCTOPUS ENGINEERING LIMITED........................ 2ND DEFENDANT INTERCITY BUILDERS LIMITED........................... 3RD DEFENDANT Date ofLast order: 2?h July, 2022 Date ofJudgment: 2?h Ju/y, 2022 CONSENTJUDGEMENT MAGOIGA, J The Plaintiff, EVERWELL ENGINEERING COMPANY LIMITED by way or plaint instituted the instant suit against the above-named defendants jointly and severally praying for judgment and decree in the following orders, namely:- i. Payment of Tshs.3,582,193,168.23 being the specific damages; i ii. Payment of TZS 1,000,000,000/ = being the estimated general damages and or as shall be assessed by the court due to delayed payment, interests, business frustrations in the nonpayment of the car rental charges and other ancillary business inconveniences caused by the Defendants; iii. Commercial banks interest of 25% per annum from the date of filling this suit until Judgment; iv. Court's interest of 12% per annum from the date of Judgment until full payment; v. Costs of this suit be provided in favor of the Plaintiff in any event; vi. Any other relief(s) this Court deems fit and just. When this case was called on for orders on 27th July, 2022 Messrs. Ngassa Ganja and Japhet Tenga, learned advocates for the Plaintiff and Mr. Ngolo Balele, learned advocate for the Defendants informed the Court that, they have managed to settle the suit out of court and deed of settlement has already been filed in court on 27th July, 2022 and invited this court to record the agreement and pass the decree. Having 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] and the said Rule 3 provides that:- 2 "Where it is proved to the satisfaction of the court that the 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 decree in accordance therewith so far it relates to the suit." This provision was amplified by Mulla, the Code of Civil Procedure Act of 1908 (14thedition) on page 1828, who stated that:- "The rule gives a mandate to the court to record a lawful or compromise and pass a decree in terms of such compromise or adjacent. Such 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 Sepideh and Another v. Yusuph Mohamed Yusuph and two others, Civil Application No. 237 of 2013 (unreported) in which the court observed that:- "Where there is lawful agreement or compromise the court is bound to record a settlement once it is arrived at by the parties." 3 I have examined the deed of settlement, it seeks to settle the whole suit once and for all and 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, is 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 27th July, 2022. It is so ordered. Dated at Dar es Salaam this 27th day of J.uly 2022. S.M.MAGOIGA * □ JUDGE 27/07/2022 4