petrofuel t ltd vs lukolo co ltd 2022 tzhccomd 261 8 april 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISC COMMERCIAL CAUSE NO. 5 OF 2022 IN THE MATTER OF COMPANIES ACT, 2002

AND

IN THE MATTER OF PETITION FOR WINDING UP OF LUKOLO COMPANY

LIMITED

BETWEEN PETROFUEL (T) LIMITED........................................................ PETITIONER AND LUKOLO COMPANY LIMITED.............................................. RESPONDENT Date ofLast order & Judgement 08/04/2022.

CONSENTJUDGEMENT MAGOIGA, J, The petitioner, PETROFUEL TANZANIA LIMITED by way of petition instituted against the above-named respondent, praying for orders namely:- (a) That the LUKOLO COMPANY LIMITED (hereinafter "the Company") with Registration No. 33760 incorporated on April, 1998 may be i wound up by the order of the court under the provisions of section 279(1) (d) of the Companies Act, 2002; (b) The appointment of an interim liquidator pursuant to section 295 of the companies Act 2002; (c) Such further orders or reliefs this honourable Court deems just, equitable and convenient; and (d) Costs of this petition be provided for. When this petition was called on for orders on 08th day of April, 2022, Mr. Godfrey Mapunda, learned advocate holding brief for Mr. Stanslaus Ishengoma for the petitioner and of the respondent informed the court that, parties managed to settle the matter and Deed of Settlement has already filed in this court. 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]. The said rule 3 provides that:- "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 defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of

the suit, the court shall order such 2 agreement, compromise or satisfaction to be recorded and shall pass decree in accordance therewith so far it relates to the suit". As to the provision provides that, once a Deed of Settlement is entered and filed in court, the court must be satisfied that it is lawful Deed and it does, indeed, adjust the suit either wholly or partially and, thereafter, the court shall record it, thereby passing the decree in accordance therewith, and so far as it relates to the suit. The scope of the above rule 3 of Order XXIII of the Civil Procedure Code, [Cap 33 R.E.2019] was succinctly defined by Mulla, the Code of Civil Procedure Act of 1908 (14th edition) on page 1828, who stated as herein below: "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 3 decree in accordance with the agreement and the suits ends 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) in which 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 petition. I am satisfied as to its lawfulness and effect of settling the whole petition 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 petition, 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 05th April 2022, out of which a decree is to be issued. 4 It's so ordered. 5