murzah wilmar east africa ltd vs marenga investment co ltd 2022 tzhccomd 270 5 september 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 41 OF 2022 BETWEEN MURZAH WILMAR EAST AFRICA LIMITED ........................... PLAINTIFF VERSUS MARENGA INVESTMENT COMPANY LIMITED.................. DEFENDANT Date ofLast order: 05/09/2022 Date ofJudgement: 05/09/2022. CONSENTJUDGEMENT MAGOIGA, J. The plaintiff, MURZAH WILMAR EAST AFRICA LIMITED by way of plaint, instituted the instant suit against the above-named defendant praying for judgement and decree in the following orders, namely:- i) . For an order for immediate payment of Tanzania Shilling Two Billon (TZS.2,000,000,000/=) being the total amount outstanding on unsettled invoices issued by the plaintiff to the defendant in respect of goods supplied to the defendant by the plaintiff on credits including, cooking oil, detergents powder and soap payable on credit; i ii) . An order for payment of interest on the decretal amount mentioned in paragraph (i) above at the court's rate of 12% per annum, computed from the date of the judgement to the date of payment in full; iii) . For an order for payment of general damages in respect of unbearable stress and disturbances to the plaintiff, costs and loss productive time and resources in following up and engaging in exchange of tedious correspondences in attempt to ensure the defendant's performance of their contractual obligations; iv) . Costs of this suit be borne entirely by the defendant herein; and v) . any other orders or reliefs as the Honourable court may deem fit and just to grant. When this suit was called on for orders on 05th September, 2022, Mr. Claudio Msando, learned advocate for the plaintiff and holding brief of Mr. Charles Mwangangi, learned advocate for the defendant informed the court that, parties have managed to settle the matter out of court and deed of settlement has already been filed in this court for its recording, consent judgement and decree be issued. 2 I have gone through the Deed of Settlement filed in this court by the parties, and indeed, filed under Order XXIII Rule 3 of the Civil Procedure Code [Cap 33 R. E. 2019]. The said Rule 3 provides that: "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 shali pass decree in accordance therewith so far it relates to the suit." As the above provision provides, once a Deed of Settlement is executed by parties and filed in court, the court must be satisfied that it is a lawful Deed and it does, indeed, adjust the suit either wholly or partially and, thereafter the court shall record it, thereby passing a decree in accordance therewith, and in so far it relates to the suit. The scope of Rule 3 of Order XXIII of the Civil Procedure Code, [Cap 33 R.E. 2019] was succinctly defined by Mulla, the Code of Civil 3 Procedure Act of 1908 (14th edition) on page 1828, who stated as here below:- "The rule gives a mandate to the court to record a lawful adjustment or compromise and pass a decree in terms of such compromise or adjustment. Such a consent decree is not appealable ... when the agreement relates to whole suit, the court on being invited by the parties, record the agreement and pass a decree in accordance with the agreement and the suits ends there." This position was acknowledged 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 CAT DSM (unreported) where the Court citing Mulla on Code of Civil Procedure Act of 1908 observed that: "Where there is lawful agreement or compromise the court is bound to record a settlement once it is arrived at by the parties" 4 I have examined the Deed of Settlement which seeks to settle the whole suit once and for all. I am satisfied as to its lawfulness and effect of settling the whole suit once and for all. In view of the above, the same is hereby registered and it shall form part and parcel of this consent decision of the court as well as its decree. The present suit, therefore, by a deed of settlement dully executed by the parties in this case and filed in this court, is hereby recorded that this suit is marked settled out of court in the terms and conditions as agreed in the Deed of Settlement under Order XXIII Rule 3 of the Civil Procedure Code filed in this court on 30th day of August, 2022. It is so ordered. 5-