Mount vs NCBA Scnd 16

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT PAR ES SALAAM LAND CASE NO. 18803 OF 2024 MOUNT UKOMBOZI HOSPITAL LTD........................................PLAINTIFF

VERSUS NCBA BANK TANZANIA LTD............................................... 1st DEFENDANT MASETO AUCTIONEER & DEBT COLLECTOR................ 2ndDEFENDANT

CONSENT JUDGMENT (Deed of Settlement) Date of last Order: Date ofJudgment: 10/12/2024 LA LTAIKA, J The Plaintiff herein MOUNT UKOMBOZI HOSPITAL LTD instituted this suit against the Defendants for judgment and decree as follows: (a) An Order or Declaration that the intention to attach and safe the Plaintiffs properties is illegal and unlawful. Page 1 of 6 (b) An Order restraining the defendants, agents and workers from selling and or threatening, harassing the Plaintiff in respect of the mentioned properties pending final determination of this case. (:) Costs of the suit be paid by the defendants. (d) Any other relief as the court may deem fit to grant When the suit was called for mention on 06/12/2024, the Plaintiff appeared through Ms. Safia Mbunda, learned Advocate accompanied with Principal of the Plaintiff (Director Mwamkoa, L.H.). The Defendants enjoyed the legal services of Mr. Kaizer Msosa, learned Advocate (also accompanied with Mr. Francis Mangula, Recovery Manager of the 1st Defendant) Ms. Mbunda joyfully informed the Court that parties had reached an amicable solution before a Mediator Judge. The position was confirmed by her learned brother in the bar Mr. Msosa. The parties prayed that their settlement terms be incorporated and form a part and parcel of this Consent Judgment. Having obtained the duly signed Deed of Settlement, I proceed as hereunder. In the event of

the status given, this Court is guided by Order XXIII rule 3 of the Civil Procedure Code, Cap.33 of R.E of 2019 that: Page 2 of 6 "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 plaintiffin respect of the whole or any part of the subject matter of the suit, the court shall order such an agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there with so far as it relates to the suit." Consequently, I proceed to adopt the terms and conditions of the Deed of Settlement dated the 3rd day of December 2024, to form part and parcel of this consent judgment as appearing herein below: - IN WITNESS WHEREOF, the parties hereto acting through their authorized officers or representatives or directly themselves have executed this deed of settlement on the day and year as above written in the following manner appearing NOW THEREFORE, both parties hereto agree as follows: - a) That the Plaintiff and the 1st Defendant has agreed to restructure the outstanding loan amount of Tsh 308,000,000 (the settlement sum) to be repayable within thirty-six (36) months for payment of Tsh 11,134,837. 83 at the end of each calendar month from the date of signing this deed. b) That the said monthly payment of Tsh 11, 134,837.83 is inclusive

of all accrued interest and penalties. Page 3 of 6 c) That the Plaintiff shall pay a total sum of50,000,000/= (Fifty Million) on or before 3Cfh December 2024 for the purpose of decreasing the outstanding loan balance. This amount shall not be treated as monthly payment rather it is part of settlement to reduce the outstanding loan and failure to settle this will amount to default and the 1st Defendant shall proceed with recovery actions. d) In the relevant that the Plaintiff fails to make full payment of any single instalment on the due date, such failure shall constitute a default under this deed. In such a case, the 1st Defendant shall have the right to recover the full loan amount and is authorized to sell any of the mortgaged properties to satisfy the entire outstanding balance. The plaintiff also commits not to initiate any legal proceedings before a court or tribunal challenging such a sale. If the proceeds from the sale are insufficient to cover the outstanding amount, the 1st Defendant shall have the liberty to file an execution application and attach the personal properties of the Directors of the Plaintiff to satisfy the outstanding loan. e) That further to clause (d) above, the 1st Defendant, when disposing of the Plaintiff's securities to recover the loan, shall not be obligated to re-issue a 60-day notice or obtain a court order. f) This Deed of Settlement does not

affect or alter in whatsoever nature the good order of the terms and conditions of the securities held by the Defendant to secure repayment of the loan amount extended by the 1st Defendant to the Plaintiff (Borrower). Page 4 of 6 g) That the securities so held shall continue to be held by the 1st Defendant until the entire settlement of the sum is fully paid and duly receipted by the 1st Defendant. h) That if the Plaintiff fails to fulfil any of its respective obligations under this Deed of Settlement, then the entire sum outstanding shall become immediately due and payable. i) That the Plaintiff agrees to relinquish all claims, applications if any and other incidental proceedings related to this case pending before this Honorable Court against the Defendants. j) This Deed of Settlement shall inure to the benefit of and be binding upon the parties and their successors in title and assigns, and the parties in this Deed shall be interpreted as including all such persons. k) Parties agree that, immediately upon signing this deed of settlement, shall be filled and recorderd in this Honorable Court to mark this matter settled and the Deed shall have effect as decree (the consent decree) of the court Therefore, I hereby declare the executed Deed of Settlement effective from the date when it was lodged in this court, that is, on 3rd day of December 2024, binds all parties herein and

to the subsequent applications or suits arising from the same cause of action. Page 5 of 6 Henceforth the deed of settlement entered is accordingly recorded and form part of this Consent Judgment as held by the Court of Appeal in the case of Motor Vessel Sepideh and Another v. Yusuph Mohamed Yusuph and two Others, Civil Application No. 237 of 2013, (Unreported) thus: "Where there is a lawful agreement or compromise, the Court is bound to record settlement once it arrived by the parties." In lieu of the foregoing, the present matter is marked amicably settled to the extent of the deed of settlement reached by the parties as per terms and conditions therein, hence withdrawn from the court records. It is so ordered. E. I. LALTAIKA

JUDGE 10/12/2024 Court Consent Judgment delivered in Court Chambers this 10th day of December 2024 in the absence of Ms. Safia Mbunda, learned Advocate for the Plaintiff (accompanied with Principal of the Plaintiff/Director Mr. Mwamkoa, L.H.) and Mr. Kaizer Msosa, learned Advocate, Counsel for the 1st and 2nd Defendants. Page 6 of 6