habib african ltd vs marco textiles ltd and others 2021 tzhccomd 3468 31 may 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM COMMERCIAL CASE NO. 122 OF 2018

BETWEEN HABIB AFRICAN BANK LIMITED........................................... PLAINTIFF

VERSUS MORCO TEXTILES LIMITED.................................................................1stDEFENDAN AHMED JAFFER ALADIN..................................................................... 2ndDEFENDAN ERFAN AHMED ALADIN....................................................................... 3rdDEFENDA GULZAR AHMED ALADIN.................................................................... 4thDEFENDAN Date ofLast order: 24/5/2021 Date ofJudgement: 31/5/2021

CONSENT JUDGEMENT MAGOIGA, J, The plaintiff, HABIB AFRICAN BANK LIMITED by way of plaint, instituted the instant suit against the above-named defendants, praying for judgement and decree jointly and severally in the following orders, a) Payment of Tshs. 652,504,126.91 as pleaded in paragraphs 6 and 13 of the plaint. i b) Payment of commercial interest at the rate of 23% per annum for the sum in paragraph (a) hereinabove from the date was due to the date of judgment. c) Interest at the court's rate of 12% of the decretal sum from the date of judgment until payment of the outstanding loan amount in full. d) Declaration that the 1st, 2nd, 3rd and 4th Defendants are in breach of credit facility agreements as constituted under the Overdraft Facility Letters pleaded therein and thus the Plaintiff is entitled to realize the securities thereof, to wit i. Mortgage registered under Certificate of Title No. 84720, Land Office No. 394834, Plot No. 934, Mbezi Beach Area, Dar es Salaam. ii. Contracts of Guarantee dated 3rd December, 2012 executed by the 2nd, 3rd and 4th Defendants. iii. Debenture Instrument dated 8th December, 2012 executed by the 1st Defendant. e) Appointment of a Receiver and Manager of all the assets (fixed and floating) of the 1st Defendant charged under the said Debenture Instrument dated 8th December, 2012. f) Costs of this suit. g) Any other order(s) and relief(s) may

this Honorable court deem fit and just to grant. 2 When this suit was called on for hearing on 24th May, 2021 Mr. Zuriel Kazungu, learned advocate for plaintiff and Mr. Martin Frank, learned advocate for the defendant, informed the court that, they managed to settle the matter and deed of settlement has already been filed in this court for recording. I have 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]. Rule 3 provides that: "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 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 of rule 3 of Order XXIII of the CPC was defined by Mulla, the Code of Civil Procedure Act of 1908 (14th edition) on page 1828, who stated as herein below: 3 "The rule give a mandate to, the court to record a lawful adjustment or compromise and pass a decree on 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 stops there." This position was acknowledged by the Court of Appeal of Tanzania in the case of Motor Vessel Sepideh and Another v. Yusuph Mohamed Yusuph and two others, Civil application No 237 of 2013 (unreported) the court of 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" I have examined the deed of settlement which seeks to settle the whole suit once and for all and I am satisfied as to its lawfulness and effect. In view of the above, therefore, by a deed of settlement dully executed by the 4 parties in this case and filed in this court, this court hereby record the deed of settlement and it shall form part and parcel of the of the consent decision of the court as well as decree. Therefore, the present suit is hereby marked settled out of court at the instance of the parties in the terms and conditions as agreed in the deed of settlement under Order XXIII Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019]. It's so ordered. 5