swalehe shabani shaluwa vs makombe swalehe shaluwa 2022 tzhccomd 289 16 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC.COMMERCIAL CAUSE. NO.68 OF 2021 IN THE MATTER OF SECTION 233(1) OF THE COMPANIES ACT CAP.212 AND IN THE MATTER OF MTENDENI MACHINERY (T) LIMITED

AND

IN THE MATTER OF APPLICATION BY SWALEHE SHABANI SHALUWA............................PETITIONER

VERSUS MAKOMBE SWALEHE SHALUWA .........................RESPONDENT Date of the Last order: 15/09/2022 Delivery of the Ruling: 16/09/2022

CONSENT DECISION NANGELA, J., On the 8th day of December 2021, the Petitioner herein approached the corridors of this Court in quest for justice and seeking for the following orders of the Court: Page 1 of 7 1. That, this Honourable Court be pleased to declare that the fraudulent conduct of the Respondent in respect of the affairs of MTENDENI MACHINERY (T) LIMITED are unfairly prejudicial to the interest of the estate of the late SHABANI SWALEHE SHALUWA.

2. That, this Honourable Court be pleased to order the Respondent to transmit shares of the late Shabani Swalehe Shaluwa to the Petitioner.

3. Costs be borne of the Respondent.

4. Any other relief(s) that this Honourable Court shall deem fit to grant. As it may be gathered from the facts, the Petitioner and the Respondent are members of the related family and MTENDENI MACHINERY (T) LIMITED is a Company which was Page 2 of 7 formed and jointly managed by the Petitioner’s father, the late Shabani Swalehe Shaluwa and the Respondent and, they owned, as shareholders too, 600 and 400 shares respectively. Unfortunately, on the 6th day of March 2021 Mr. Shaaban Swalehe Shaluwa passed away and his son, the Petitioner was appointed administrator of the deceased’s estates. With such events unfolding, the management of the Company was left with only one director, the Respondent. Subsequently, but in an unfortunate ending, matters regarding the management and ownership of the Company could not align themselves properly with the rest of the members of the Shaluwa family, hence, this Petition. The Petitioner has been enjoying the legal services of Mr Rodney Muganyizi, learned advocate, while Ms Mariam Pengo, also a learned advocate, appeared for the Respondent, holding the brief of Mr Ally Jamal, learned advocate. As the matter progressed towards its resolution, wisdom visited the parties’ mental faculties and sought to have an amicable resolution of their dispute. Page 3 of 7 This Court was mindful of what it once stated, in the case of Jaffrey Indi. Sian Ltd vs.

M/s Beijing Construction Engineering Group Ltd, Commercial Case No.38 of 2021, (unreported), that, whenever parties to a suit considers a mutual settlement of their dispute, that route should be encouraged by Courts. Time, therefore was, afforded to them by this Court owing to the fact that, it is always the interest of the Court to allow the parties’ wished to reign. On the 15th day of September 2022, the parties filed in this Court a Deed of Settlement. On the 16th September 2022, they entered appearance through their learned counsels and requested this Court to adopt and record the Deed of Settlement filed in Court as forming the judgment and decree/order of the Court, and thereby mark this Petition as having been settled by the parties. The issue for consideration, however, is whether the Deed of Settlement filed in this Court meets the legal requirements of an enforceable Deed of Settlement. Being an agreement, it must conform to the dictates of the law. See the case of Medardus Page 4 of 7 Lucas Geho vs. Property Matrix Company Limited & 3 Others, Commercial Case No. 49 of 2021 (unreported). See also the Case of Jaffrey Indi. Sian Ltd (supra). In the Jaffrey’s case (supra), this Court, citing the case of Farisai Nando vs. Godwills Masimirembwa, High Court of Zimbabwe Harare, 10 November, 2016, 23 February 2017, held that, when considering the lawfulness of a

Settlement Agreement (Deed) the Court has to be satisfied: “Firstly... that both parties to the agreement have freely and voluntarily concluded the agreement. Secondly, that, there is meeting of minds of the contracting parties; in other words, that, the parties are ad idem with regards the terms of the Deed of Settlement. [Thirdly, that … the terms of the Deed of Settlement are capable of enforcement without recourse to further litigation…. These factors Page 5 of 7 in my view fall for consideration cumulatively.” I have therefore taken the liberty of examining the contents of Deed of Settlement and the Deed itself and, I note that, the consent of the all-respective parties to the present Petition was obtained and manifested by their signatures which appear on page 2 of the Deed filed in this Court. In view of that fact, among others, it is my findings that, this Deed of Settlement meets the requirement of the law and since they have expressed their consent, they are to be bound by its contents. It follows, therefore, that, this Petition No. 68 of 2021 is hereby wholly settled by the Deed of Settlement filed in this Court on 15th day of September, 2022. With that in mind, this Court hereby records the Deed of Settlement and proceed to declare, as I hereby do, that, the present Petition is marked “settled at the consent of the Parties and on the basis of the terms contained in Paragraphs 1 to 5 of their duly signed Deed of Settlement. Page 6 of 7 Further that, the parties’ duly signed Deed of Settlement shall and does hereby constitute part and parcel of this judgment/Decree of this Court. It is so ordered. DATED AT DAR-ES-SALAAM, THIS 16th DAY OF SEPTEMBER 2022 ......................................... HON. DEO JOHN NANGELA

JUDGE Page 7 of 7