MEK ONE GENERAL TRADERS CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 55 OF 2023 BETWEEN MEK ONE GENERAL TRADERS COMPANY LIMITED.................. PLAINTIFF VERSUS VIVO ENERGY TANZANIA LIMITED..........................................DEFENDANT CONSENT JUDGMENT Date of Last Order: 05/06/2024 Date of Judgment: 26/06/2024 GONZI, J. The plaintiff instituted the present suit against the praying for Judgement and Decree against the defendant claiming for the following reliefs: a. A declaration that the defendant breached the distributor agreement between it and the plaintiff when it entered into negotiations with TANESCO (the plaintiff's exclusive primary area ofresponsibility) for the supply ofshell Mysella s3 n40 and Shell Telus s2 Ml OO products. 1 b. A declaration that the defendant violated the distributorship agreement when it unilaterally issued a 60 days' notice to the plaintiff purporting to terminate the distributor's agreement between it and the plaintiff under clause 36.1 while the plaintiff had not violated or failed to implement its obligations in the said agreement. c. A permanent injunction against the defendant from entering into any negotiations and agreements with TANESCO for the supply or distribution directly ofShell Myseiia s3 N40 and Shell Telus s2 m100 products which are to be solely supplied by the plaintiff. d. A permanent injunction against the defendant from violating the distributorship agreement between it and the and the plaintiff till the said agreement is fully implemented to its maturity date of three years (May 1, 2025); e. An order for specific damage to the tune of TZS.7,947,404,164 .50 (seven billion, nine hundred and forty-seven million, four hundred and four thousand and one hundred and sixty four shillings and fifty cents only) that the plaintiff would have received during the entire duration of the agreement; 2 f. Commercial interest on (e) above the date of filing this date to the Judgement date. g. Interest at the Courts rate from the date of judgment to the payment. h. Punitive damages be paid because of the defendants flagrant violations ofthe agreement and for its abhorrent practices; i. Genera! damages at the discretion of the Court; j. Costs be provided for and any other order or relief this may deem Honourable Court just and fair to grant. k. Any other order or relief this Court may deem just and fair to grant. When this matter was pending awaiting determination of Misc. Commercial Application No. 4216 of 2024 which arose from this case, the parties through their respective learned counsel filed in Court a deed of settlement on 25th June 2024 thereby conclusively reaching an amicable settlement of their dispute constituting the present case. The Court recorded the settlement agreement on 26th day of June 2024. This Consent Judgment therefore stems from the deed of settlement duly signed and filed by the parties in Court. Order XXIII rule 3 of the Civil Procedure Code under which this settlement deed was filed provides that: 3 "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". The Court recorded the deed of settlement and issued the consent settlement order after ascertaining its authenticity after hearing from the learned counsel for the Plaintiff through Mr. Josia Samweli, learned advocate, and from the defendant through Mr. Deogratius Ringia, learned Advocate. The Deed of Settlement shows that on 24th June, 2024 it was duly executed by the Plaintiff through Mr. Mohamed Edha Awadh who is the Managing Director of the the plaintiff company and Mr. OMARI ALI MUSSA whois the Company Secretary of the plaintiff company. The two signed the deed of settlement for and on behalf of the Plaintiff Company in the presence of Mr. Josia N Samweli, learned advocate for the plaintiff. For the Defendant, the Deed of Settlement was signed by Mr. Mohamed 4 Bougriba, the Defendant's Managing Director and Miss. Flora Obeto, the Defendant's Legal Manager. They signed it in the presence of Mr. Deogratius Willium Ringia, learned counsel for the defendant. I have keenly gone through the said deed of settlement filed in this Court on 25th June 2024 in terms of Order XXIII rule 3 of the Civil Procedure Code read together with rule 2(2) of the High Court (Commercial Division) Procedure Rules. I am satisfied that the parties who executed it had full mandate and authority to do so, the executed it voluntarily conscious of its terms. The deed of settlement in compromise of the suit was therefore duly executed by the two legal entities (the Plaintiff and the Defendant). When the learned counsel for both sides appeared in Court on 26th June 2024 to record the Deed of Settlement, I verified with them the authenticity of the terms of the deed of settlement filed in Court and they both vouched their accuracy. In the premises, the deed of settlement file in Court on 25th June 2024 together with the New Distributor Agreement attached to the Deed of Settlement as part and parcel thereof, between Vivo Energy Tanzania Limited and MEK One General Traders Company Limited is hereby adopted to constitute consent judgment of the Court from which a decree shall issue accordingly in the terms agreed upon by the parties in their Deed of 5 Settlement. The suit is therefore marked compromised and finally settled with the following orders as derived from the parties' Deed of Settlement filed in Court, to wit: - 1. That the defendant does hereby, with immediate effect, withdraw and vacate the notice of termination of the DistributorAgreement dated 31st March 2023, issued by the Defendant to the Plaintiff (herein the notice of termination) and in return for the withdrawal of the said notice of termination, the plaintiff does hereby forthwith abandon all the claims made in this suit. 2. That Subsequent to the withdrawal all of the notice of termination by the defendant and the abandonment of the suit by the plaintiff, the parties do hereby, with immediate effect, substitute and replace the old Distributor Agreement in its entirety with a new Distributor Agreement which was filed as part and parcel of the Deed ofSettlement filed in Court on 25fh June 2024, with a tenure of ten (10) years from the 6 effective date, pursuant to the terms and conditions mutually agreed therein between the plaintiff and the defendant. 3. The new Distributor Agreement Shall commence to operate retrospectively as of the 23rd day of May 2024, which for the purposes of the new DistributorAgreement shall be deemed to be the effective date. 4. That as from the effective date, the former Distributor Agreement that gave rise to the present suit shall terminate automatically and all its pro visions shall be superseded and replaced by the provisions of the new Distributor Agreement which was filed as part and parcel of the Deed of Settlement filed in Court on 2&h June 2024 and to that effect, all the provisions of the old Distributor Agreement shall have no further force or effect. 5. That the deed of settlement filed in Court contains the entire agreement between the parties and no party shall be bound by any 7 undertaking, representation, warranties, promise or the like not recorded therein. 6. Upon filing in Court the Deed ofSettlement, the parties to the suit shall immediately relinquish all claims, applications if any, and other incidental proceedings related to the suit and the old distributorship agreement. 7. The provisions of the Deed of Settlement together with those of the new Distributor Agreement which was filed as part and parcel of the Deed ofSettlement filed in Court on 2&h June 2024 shall endure to the benefit of, and be binding upon, the parties and their successors in title and assigns; and the parties to the deed of settlement shall be interpreted as including all such persons. 8. That upon filing of the deed of settlement, it shall have the effect ofbeing a decree ofthe Court as if made after full hearing and delivery of judgment upon its terms, and should either party 8 default in the performance of any of its terms, it shall be enforced in the same manner and to the full extent as a decree of this Court. 9. That each party shall bear its own costs including the costs, fees, professional/legal and or advocates' fees related generally to the present suit. It is so ordered. 26/06/2024 Judgment by Consent is delivered in Court this 26th day of June, 2024 in the presence of Mr. Josia Samweli, learned advocate for the Plaintiff and Mr. Deogratius Ringia, learned Advocate, for the defendant. JUDGE 26/06/2024 9