exim bank tanzania ltd vs shimba investment limited 2 others 2022 tzhccomd 125 19 may 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 26 OF 2021 EXIM BANK (TANZANIA) LTD............... PLAINTIFF

VERSUS SHIMBA INVESTMENT LIMITED...... 1st DEFENDANT HOWARD ABEL SHIMBA................ 2nd DEFENDANT ELIWAZA KYESE............................. 3rd DEFENDANT Last order: 18th MAY, 2022 Judgment: 19th MAY, 2022 wk wlK Ilk Wlw

CONSENTJUDGEMENT NANGELA, J. This consent judgment arises from<a Plaint filed by the Plaintiff on 26th9^ebruary 2021? seeking for judgment and Decree of thekCourt, jointly and severally against the ) I Defendants as here below: '\\lk\For payment of an outstanding arnount of TZS 723,786,297.12, being repayment of outstanding Credit Facility as at 31st January2021 extended to the 1st Defendant by the Plaintiff and guaranteed by the 2nd and 3rd Defendants vide the Plaintiff's duly accepted Facility Offer Letter and Credit Facility Agreement dated 03rd December 2012 and 10th December 2012 respectively. Page 1 of 5 r 2. For payment of interest on the total outstanding amount as stipulated in item No.l above, at the Facility's rate of 20%per annum, on the facility computed and accruing from the 31st January 2021 to the date of Judgment.

3. An Order for payment of interest on the decretal amount mentioned in paragraph 1 and 2 above zat the vy Court rate of 12% per annum, fX \\ computed from the da^eyof they Judgment to th'atx date\ dfyfull^y/' payment. '\y’ 4. In the alternative; upooyfailurd to pay .the ^ amount as-, prayed for in paragraphs 1, ^'and'SJ above, an ' z A K\ order for the 'realization of assets of A V theDefendants-7 / 5./Cost of theAult be borne by the A2A,. V//-Defendants herein, and, ' x\6XAny other relief as this Honourable Codrt may deem fit and just to grant. On the 16th of August 2021, the Defendants filed a joint written statement of defence (WSD).They admitted to have borrowed TZS 100,000,000/-and that, the borrowed amount was repaid to the extent that, the remaining outstanding balance was only TZS 31,700,000/=. Unfortunately, the parties' dispute could not be resolved at the mediation stage and, hence, the Page 2 of 5 parties had to convene for a final pre-trial conference, on 9th of February 2022. When the parties appeared for orders of this Court on 9th of February 2022, the Plaintiff enjoyed the services of Mr Claudio Msando, learned counsel, while Mr Gabriel Maros, learned advocate, represented the Defendants. Mr Maros told this Court that, the parties wish to engage further and have this matter settled amiqably. In view of the above, Mr Msando asked the Court to Zx grant them time

to engage for an amicable settlement. Bearing in mind that it is in .the spirit of this Court that \\ \\ parties end their disputes amicably;where possible and at the earliest possible time, I (granted them an opportunity to engage. </x\ On the .l9th\ of .May 2022, the parties appeared before m'e.XThe) Plaintiff enjoyed the services of Ms Doreen Chiwanga, learned advocate, while the Defendants were represented by Mr Maros Gabriel, learnedadvocaJtL Ms Chiwanga informed this Court that the parties were able to execute a Deed of Settlement which they filed in Court, under Order XXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019. The same details how the parties have agreed to settle their differences amicably. Page 3 of 5 Decree of this Court. Mr Maros supported her prayer. I have also gone through the said "Deed of Settlement". In law, a consent agreement is an agreement of the parties which is subject to the same principles of the law of contract. In fact, according to Order XXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019, the Court will have to be satisfied whether the agreement is lawful and compromises the suit. Order XXIIkRule x3\provides as fol lows: ’ . •. % \\ yx?7 "Where it is proved to the<z <; w satisfactionz-of the court that axsuit \\ Xx'^XX V has been adjusted wjiolly'or- in part f s'"* ' “\ \\ by (any lawfuK agreement or compromise/ or ' -where

the XX^XefendahtXatisfies the plaintiff in <z / \\ X' "■— \,\ respect of.the whole or any part of /^^X?^^x\theXu&ject>matter of the suit, the \\ \\cotirtx shall order such agreement, xx X \X } Compromise or satisfaction to be -"recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." I have taken time to examine the Deed of Settlement which seeks to settle the whole suit. 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 Page 4 of 5 and parcel of this Consent Judgment and Decree of this Court. In view of the above, the present suit is hereby 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 this 19th May 2022, and which forms part and parcel of the Decree of this Court. Page 5 of 5