mohammed enterprises tanzania ltd vs stewart manor investment ltd 2022 tzhclandd 12692 23 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.204 OF 2022 MOHAMMED ENTERPRISES (TANZANIA) LIMITED..................... PLAINTIFF VERSUS STEWART MANOR INVESTMENT LIMITED...................................DEFENDANT CONSENT JUDGMENT 23d November2022 L. HEMED, J, The Plaintiff in this suit, MOHAMMED ENTERPRISES (TANZANIA) LIMITED, a company incorporated under the laws of Tanzania, instituted the suit at hand against the defendant STEWART MANOR INVESTMENT LIMITED, (which is also a company) for breach of the fundamental terms of Sale agreement entered into by the parties on the 11th day of October, 2021. It was alleged by the plaintiff that it owns all that land located in Plot No. 10 Nyerere Road Area comprised in Certificate of Right of Occupancy (CT) No.9593. It was alleged further that on 11th October, 2022 the Plaintiff and the Defendant executed a deed of sale of the suit property for a consideration of Tshs. 5,475,000,000/= (say Tanzania Shillings Five Billion Four Hundred Seventy-Five Million Only). According to the Plaint, the terms and conditions of the deed of sale (the Sale Agreement) were as follows; "i. The purchase price to be paid by the Defendant to the Plaintiff in 60 equal monthly instalments commencing from the date of execution of the sale agreement. ii. Consent fee, valuation charges and capital gain tax to be paid by the Plaintiff. Hi. The Defendant acknowledged that the suit property was already handed over to her". On 15 January 2022, the Plaintiff transferred ownership rights to the Defendant who are alleged to have refused to honour payment terms constituted in the sale agreement. The Plaintiff is thus praying for the following reliefs: - "i. The Court to issue declaration orders that the Defendant is in breach of the fundamental terms of the sale agreement entered into by and between the plaintiff and said Defendant dated 11th October, 2021 for failure to pay 2 the purchase price as agreed. No single instalment has been paid to date or at all as agreed. ii. Sequel to granting prayer (1) above, the Court issue orders to rescind the sale agreement dated 11th October, 2021 in respect of the suit property to wit: - Plot No. 10, Nyerere Road Area, I/a/a Municipality and comprised in a certificate of Right of Occupancy (CT) No. 9593 and for an order that the plaintiff be registered as the owner of the suit property. Hi. For payment of Tshs. 288,239,166,40 being Capital Gain Tax (CGT) paid in transferring the suit property from the plaintiff to Defendant. The defendant has refused to honor terms and conditions of the sale agreement rendering the same invalid in law. iv. The defendant to pay interests at the Court's rate of 7% from the date pronouncement of judgment and decree until date ofpayment in full. v. For payment of the costs of the case. 3 vi. Any other relief the Honourable Court shall deem just and fit to grant". The Defendant disputed all the claims through the Written Statement of Defence, which was presented for filing in this Court on 19th day of September 2022. Fortuitously, before the matter got to the first pretrial conference, parties decided to settle their matter amicably and filed their Deed of Settlement on 21st day of November 2022. On 23rd day of November, 2022 when the matter came for mention with the view of fixing the date for 1st Pretrial Conference, Ms. Irene Mchau, learned advocate who stood for the Plaintiff and Mr. Gulam Hussein learned counsel who was acting for the defendant, prayed this Court to enter consent judgment based on the Deed of Settlement. I have gone through the said Deed of Settlement which was executed by the parties on the 15th day of September, 2022 and lodged in the Court on the 21st November, 2022 and found that the parties have AGREED as follows: 1. The Defendant shall pay to the plaintiff the amount of TZS 5,475,000,000 (Tanzania Shillings Five Billion Four Hundred Seventy -Five Million only), (the Total Settlement Amount). 4 2. The Total Settlement Amount shall be paid in equal monthly installments for a period of sixty months (60) months (payment period) from the date of execution of this Deed of Settlement, and without fail. 3. The Defendant shall give the plaintiff total of sixty post­ dated cheques for the Total Settlement Amount at the time of execution of this Deed of Settlement. 4. That on the request of the Defendant the plaintiff has given an undertaking to Azania Bank Limited to surrender the Title Deed for Plot No. 10, Nyerere Road Area, Ilala Municipality under Certificate of Right of Occupancy No. 9593, now the parties agree that the said Title shall remain in custody of Advocate Fayaz Bhojani of FB Attorneys until the time (payment period) when the defendant pays the plaintiff in full and final satisfaction in compliance of clause 1 of this Deed. Hence, the Defendant shall immediately take initiatives to inform Azan Bank Limited and Discharged the plaintiff undertaking to deposit the said Title with Azan Bank Limited. 5 5. That the Title Deed of the suit property shall be released to the Defendant by Advocate Fayaz Bhojani of FB Attorneys upon proof of full payment of the Settlement Amount by the plaintiff. 6. That Advocate Fayaz Bhojani shall release the said Title to the Plaintiff upon proof of filling application for execution in Land Case No. 204 of2022. As regards to CONVENANTS, REPRESENTATIONS AND UNDERTAKINGS, it was agreed by the parties that: 7.1 Upon the Plaintiff receiving TZS 5,475,000,000 from Defendant as per clause 1 and 2 of this Deed of Settlement parties will have no further claims against each other in relation to any transaction related to Plot No. 10, Pugu road the subject matter of Land Case No. 204 of2022. 7.2 Each party acknowledges that this Deed of Settlement constitutes the entire agreement between the parties with regard to the subject matter, it supersedes and extinguishes all previous agreements, promise, 6 assurances, warranties, representations and understanding between them whether written and or/orai. 7.3 Parties acknowledge that before signing ... Deed of Settlement they received independent legal advice from their respective Advocates and that they have understood the contents of this Deed of Settlement. From the foregoing terms of the Deed of Settlement, this Court records them as orders of this Court. Each party to bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 23rd November,2022 HEMED JUDGE Delivered in the presence of Ms. Irene Mchau advocate of the Plaintiff and Mr. Gulam Hussein counsel for the Defendants. JUDGE 23/11/2022 7