first national bank tanzania ltd vs ossam general traders company ltd and others 2021 tzhccomd 2065 6 may 2021

IN THE HIGH COURT OF THE UNITED

REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.136 of 2019

FIRST NATIONAL BANK TANZANIA LTD.................................. PLAINTIFF

VERSUS

OSSAM GENERAL TRADERS COMPANY LT D .......................... 1s t DEFENDANT OMARY MGUMBA TEMBETA aka OMARY TEBWETA MGUMBA................... 2n d DEFENDANT ADAM OMARY MGUMBA.............3rd DEFENDANT Last order: 5th MAY, 2021 Final Order: 6th MAY 2021.

CONSENT JUDGEMENT NANGELA, J:. The Plaintiff herein instituted a claim against the Defendants jointly and severally praying for judgement and decree of this Court as follows: 1. A declaration that the 1st Defendant has breached the fundamental terms and conditions of the Overdraft Agreement dated the 2nd of September 2016 with reference Page 1 of 5 number FNB/HC/625/12/16 entered into between the Plaintiff and the 1st Defendant.

2. A declaration that the 2nd Defendant breached the term and conditions of the Mortgage Deed he executed in favour of the Plaintiff and caused to be registered by the Registrar of Titles .

3. A declaration that the 2nd and 3rd Defendants have breached the term and conditions of the Personal guarantee they entered into and signed in favour of the Plaintiff.

4. An Order directing the Defendants to jointly and severally pay the Plaintiff the sum of TZS 318,925,174.49, being the principal sum plus interest as of the 31st October 2019 arising from the default on Credit Facilities extended to the Plaintiff under the Loan/Credit Agreement.

5. An order directing the Defendants to pay the Plaintiff interest at a rate of 28% of the amount stated in item No.4 above per annum and to be calculated on a daily outstanding balance and capitalized monthly in arrears from 31st day of October 2018 to the date of payment in full.

6. An order directing the Defendants to pay the Plaintiff interest at 7% rate on the decretal sum calculated on calculated on a daily outstanding balance and capitalized monthly in Page 2 of 5 arrears from the date of judgement to the date of payment in full.

7. The Defendants be ordered to pay General Damages to the Plaintiff the same to be assessed by this Court for the loss of income in the banking business, hardship and disturbances which were caused by the Defendants' act of refusal and or neglect to pay the outstanding balance/debt on time.

8. An order granting the Plaintiff permission to sell the land/premises in dispute say land registered with Certificate of title No.91619, Plot Nos.2074, 2075, 2076, 2077, 2078 and 2079 , Block B, located in Goba Kunguru Area in Kinondoni Municipality, DSM and use the proceed thereof to discharge part of the Defendants liability against it as shall be collectively awarded by the Court 9. The Defendants be ordered to pay costs f this suit; and 10. Any other relief as this honourable Court may deem fit and just to grant. When this case was called on for its hearing on 8th April 2021, Mr Augustine Ndomba learned Advocate appeared for the Plaintiff while the Defendants enjoyed the services of Mr Ahmed Mwita, learned Advocate. Page 3 of 5 On the material date, Mr Ndomba informed this Court that the parties were in a settlement course and that they have initiated such negotiations to have this matter settled amicably as between themselves. Mr Mwita supported the submission and both learned counsels requested for an adjournment of the hearing session to pave way for the conclusion of the settlement negotiations. This Court granted the prayer and the case was set for mention on 13th May 2021. On the material date, the parties appeared before me. They also filed a Settlement Deed indicating that they have consented to the settlement if the dispute amicably as per the terms of the

Deed of Settlement filed in this Court under Order XXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019. In view of the Deed of Settlement filed in this Court on the 5th of May 2021, Mr Ndomba prayed, therefore, that, this Court be pleased to register the Deed of Settlement and adopt it as forming the judgment and decree of the Court. Page 4 of 5 Order XXIII Rule 3 of the CPC 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." I have examined the Deed of settlement. I am satisfied that this suit has been adjusted wholly by the Deed of Settlement which constitutes a lawful compromise, of the parties. In view of that, this Court proceeds to record it and, does hereby; adopt the same as forming the judgment and decree of this Court. The suit is thus marked settled by compromise of the parties. It is so ordered. at DAR-ES-SALAAM, this 06th May 2021 HON. DEO JOHN NANGELA Page 5 of 5