new safari hotel 1967 ltd vs newton air limited another 2023 tzhccomd 284 29 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC

OF TANZANIA (COMMERCIAL DIVISION)

AT ARUSHA COMMERCIAL CASE NO. 06 OF 2022 NEW SAFARI HOTEL (1967) LTD ………..................PLAINTIFF

VERSUS NEWTON AIR LIMITED.................................1ST DEFENDANT ISAAC L. MOWO ……....................................2ND DEFENDANT

CONSENT JUDGEMENT Last Order: 28/08/2023 Date of Judgment 29/08/23 NANGELA, J.: This is a consent judgement. It arises from a deed of settlement filed by the parties herein. Initially, and through an amended Plaint, the Plaintiff has filed this suit praying for Judgement and Decree against the Defendants. In particular, the Plaintiff sought for the following orders: (i) That, the Defendants be ordered to immediately reimburse/pay the Plaintiff the sum of US$ 74,351.35, 1|Page being outstanding amount of rent the Defendants owes the Plaintiff. (ii) Payment of Interest of 24% on the amount stated in paragraph (i) above, from the date of the institution of this suit to the date of judgement. (iii) Payment of Interest at court’s rate of 12% on the decretal sum from the date of Judgment and Decree to the date of full satisfaction of the Decree. (iv)Payment of general damages as may be assessed by this Honourable Court. (v) Costs of this suit be paid by the Defendant. (vi)Any other relief(s) as the Honourable Court may deem just and fit to grant. The parties went through the preliminaries up to the stage of final pre-trial proceedings which were to be convened on the 28th of August 2023. On the material date, 2|Page Mr. Sabato Ngogo, learned advocate appeared for the Plaintiff while Mr. Franco Mahene represented the Defendant. When Mr. Sabato rose to address this court, he

informed the court that the parties are interested to settle this matter amicable. He asked for time for them to prepare and file a Deed of Settlement. Mr. Mahene agreed with the submission made by Mr. Sabato. Noting such developments, this court granted the prayer to adjourn the matter and allowed the parties to execute their desire to have this matter settled amicably. On the same day (the 28 th day of 2023), the parties managed to execute and file a Deed of Settlement under Order XXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019. Rule 3 of Order XXIII of the Civil Procedure Code, Cap. 33 R.E 19 provides as follows: “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 3|Page 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 scope of the above Rule 3 of Order XXIII of the Civil Procedure Code, Cap.33 R.E.2019, was succinctly defined by Mulla, the Code of Civil Procedure Act of 1908 (14th Edition) on page 1828, 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 the whole suit, the Court on being invited by the parties, record the agreement, and pass a decree in accordance 4|Page with the agreement and the suit stops there." It follows, therefore, that, once a deed of settlement is entered and filed in court, the court must be satisfied that it is a lawful deed and if it does, it must be able to adjust the suit either wholly or partially. Once it is established that it does, thereafter, the court will only have one duty to discharge, i.e., it shall record it, thereby passing a decree in accordance therewith, and so far, as it relates to the suit. I have taken time to look at the Deed of Settlement filed by the parties herein. In my opinion it does meet the lawful requirements of an enforceable Deed of Settlement and does adjust the suit in whole. In view of all that, this court proceeds to record the Deed of Settlement as forming part of this Consent Judgement and, hence, it’s Decree. Having so done, this suit is hereby marked settled at the instance of the parties and on the terms as set out in their duly executed Deed of Settlement. It is so ordered. 5|Page DATED AT ARUSHA ON THIS 29TH DAY OF AUGUST 2023 .........................................

DEO JOHN NANGELA

JUDGE 6|Page