MEDICAL CREDIT FUND II COORPERATIEF VS HAKIKA PHARMACEUTICAL LTD COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISON) AT PAR ES SALAAM COMMERCIAL CASE NO. 4035 OF 2024 BETWEEN MEDICAL CREDIT FUND IICOOPERATIEF U.A LIMITED...PLAINTIFF VERSUS HAKIKA PHARMACEUTICAL LIMITED.............................................. 1stDEFENDA AHADI YASSIN KATERA............... ............................. 2nd DEFENDANT NOAH ANTHONY BENDERA............................................................... 3rdDEFENDA AZALIA WILLIAM KYANDO............................................................... 4thDEFENDA LATIFA RASHID MAFUMBI................................................................ 5thDEFENDA CONSENT JUDGMENT Date of Last Order: 13/06/2024 Date of Judgment: 28/06/2024 AGATHO, J.: This judgement emanates from a deed of settlement dully signed by the parties and filed in this court on 25th June, 2024. The Plaintiff, by way of i plaint instituted this suit against the Defendants, praying for judgment and decree. It is on the record of the Court that, on the 29th February, 2024 the Plaintiff herein above filed a suit (Commercial Case No.4035 of 2024) in this court against the Defendants mentioned above for amongst ofte'things the following: i. The DEFENDANTS Jointly and severely be ordered to pay the PLAINTIFF in the main suit the payment of outstanding Business Loan Facility amounting TZS 72,514,198.20 (being the Outstanding Principal Balance) and TZS 7,447,647.11 (being due interest) and TZS 834,705.25 (being penalties). The Debt is making a total sum of TZS 80,796,550.60 as of 22.01.2024 and which continue and keep increasing on monthly basis for both penal and interest until full settlement. II. An order to enforce the execution of the Deed of Debenture and Directors Guarantee for recovery of the outstanding amount mentioned in paragraph (i) above if the defendants jointly and severely fail to settle the full outstanding sum stated in paragraph (i) above within 21 days from the date of the decree. iii. Defendants jointly and severely to pay the Plaintiff a general 2 damages to the tune of TZS 50,000,000.00. iv. The Defendant to pay costs of suit and. v. This honourable court be pleased to give the Plaintiff any other order(s) and reliefs) which may deem it and just to grant. On the 8th April, 2024, all the defendants filed a Written Statement of Defense in which they party admitting the claim and partly refuting it. And on 13th June 2024, when the matter came for necessary orders, the parties informed the court that they were conducting negotiations. Eventually, on 20th June 2024 the plaintiff and the defendants signed Deed of Settlement out of court and they filed it in this court on 25th June 2024. They prayed that the court be pleased to mark the matter settled and proceed to issue consent judgment under Order XXIII Rule 3 of the Civil Procedure Code [Capp 33 R.E. 2019]. I have gone through the Deed of Settlement dated 20th June 2024, and in terms of Order XXIII Rule 3 of the Civil Procedure Code [Capp 33 R.E. 2019] and Rule 2(2) of the High Court (Commercial Division) Procedure Rules, 2012 as amended in 2019,1 am satisfied that, the same was mutually consented. In the view of above, the Deed of Settlement is hereby recorded and adopted to form part of consent judgement as prayed by the parties on the following terms: - 3 ARTICLE 1 1.0. AGREEMENT 1.1. That on the signing this Deed of Settlement, the oustanding Loan Facility against all the DEFENDANTS Jointly and severely shall be a total sum of TZS 80,796,550.56 comprising of the Principal sum, interest and penalties accrued as of end of January, 2024. 1.2. That the DEFENDANTS by virtue of the Members' Written Resolution of HAKIKA PHARMACEUTICAL LIMITED (first Defendant in the suit) have agreed that, the outstanding sum TZS 80,796,550.56 [hereinafter mentioned] shall be divided to all five (5) defendants to the suit. Say, equals to TZS. 16,159,310 for each defendant in the suit. l.i. It is further agreed as follows: - i.i.i. That, the 1st Defendant (HAKIKA PHARMACEUTICAL LIMITED) shall be liable to pay the Debt of TZS. 16,159,310 together with Legal fee of TZS. 2,000,000 on equal monthly instalments basis within 12 calendar 4 months from 15th August, 2024 and the debt of the first Defendant shall be specifically settled by (third) 3rd defendant (NOAH ANTHONY BENDERA) as a guarantor to the loan facility; 1.1.2. That, it is agreed that, the 2nd Defendant (AHADI YASSIN KATERA) shall be liable to pay the Debt of TZS. 16,159,310 together with Legal fee of TZS. 2,000,000 on equal monthly instalments basis within 12 calendar months from 15th August, 2024 at own capacity and as a guarantor to the loan facility and; 1.1.3. That the 3rd Defendant (NOAH ANTHONY BENDERA) shall be liable to pay the Debt of TZS. 16,159,310 together with Legal fee of TZS. 2,000,000 on equal monthly instalments basis within 12 calendar months from 15th August, 2024 at own capacity and as a guarantor to the loan facility and; 1.1.4. That the 4th Defendant (AZALIA WILLIAM KYANDO) shall be liable to pay the Debt of TZS. 16,159,310 together with Legal fee of TZS. 2,000,000 on equal monthly instalments 5 basis within 12 calendar months from 15lh August, 2024 at own capacity and as a guarantor to the loan facility and; 1.1.5. That the 5th Defendant (LATIFA RASHID MAFUMBI) shall be liable to pay the Debt of TZS. 16,159,310 together with Legal fee of TZS. 2,000,000 on equal monthly instalments basis within 12 calendar months from 15th August, 2024 at own capacity and as a guarantor to the loan facility and; 1.1.6. It is agreed by parties that; all instalments shall be paid into the NMB bank account number 22310002185 in names of Stitching Medical Credit Fund as the registered security agent of the Plaintiff and/or, the Defendants shall have the alternative of paying in Euro or USD equivalent to the plaintiff account in the Netherlands upon request by either defendant. i.4. That it is agreed that, apart from the outstanding sum TZS 80,796,550.56 and Costs of the suit mentioned herein above, the Plaintiff shall waive all other generated interest and penalties commencing on 1st February, 2024 to the date of signing of this Deed of Settlement the debt shall stand as of 31st January, 2024. 6 i.5. By this settlement and in line of execution of the Members' Written Resolution of HAKIKA PHARMACEUTICAL LIMITED it is agreed by all defendants they have got a mutual understanding and whoever party that will not pay the loan in accordance to this DEED OF SETTLEMENT he/she will be liable to pay the calculated debt mentioned herein above at his/her own capacity as a guarantor in inclusion of the first Defendant. 1.6. That, by signing this DEED OF SETTLEMENT the Plaintiff and Defendants (the parties) hereby agree to settle the case amicably in terms and conditions enshrined herein above. 1.7. By signing this Deed of settlement parties herein wishes to file this DEED for record and the same be a consent Judgment against all the signatory hereunder. ARTICLE 2 2.0 CONSENT JUDGEMENT AND DECREE 2.1 This Agreement shall, upon been filed in the Court, shall have the same effect as a Consent Judgment and a Decree duly made by the Court capable of being executed in the same manner as any other decree of tire Court. ARTICLE 3 3.0 DEFAULTS 3.1 Without prejudice to the generality in Article 2.1, if the Defandants defaults any of the terms herein, the Plaintiff shall be entitled to commence recovery measures without further 7 proceedings and/or notice to the Defendant. 3.2 Without prejudice to clause 3.1 above, the Plaintiff may opt to seek Court's assistances by way of execution proceedings as the case may be. ARTICLE 4 4.0 REPRESENTATIONS AND WARRANTIES OF THE DEFENDANTS 4.1 That the Parties herein have the authority and capacity to enter into this Agreement; ARTICLE 5 5.0 LANGUAGE 5.1 This Agreement shall be in English Language. All notices; Communication under or in connection with this Agreement shall be in the English Language. 8 ARTICLE 6 6.0 ORIGINALS AND AUTHENTICITY 6.1 This Agreement shall be executed in Four (4) originals all of them being equally authentic and all constituting one instrument. ARTICLE 7 7.0 MISCELLANEOUS PROVISIONS 7.i This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors in title and representatives and shall not be enforceable by or inure to the benefit of any third party. 7.2 No waiver of the breach of the terms of or any default under this Agreement shall be deemed a waiver of any subsequent breach or default or in any way affect the other terms of this Agreement. That the parties having agreed as aforesaid, they herein submitted Deed of Settlement for registration and upon registration and the terms herein contained shall constitute consent judgment and decree of the Court. In lieu of the above, and as per Order XXIII Rule 3 of the Civil Procedure Code [Capp 33 R.E. 2019], the present suit 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 25th June, 2024. Therefore, the said terms of the deed of settlement are now recorded as judgment and decree of the 9 court. It is so ordered. DATED at Dar es salaam this 28th Day of June 2024. 10