Omary FUKU Scanned

IN THE HIGH COURT OF TANZANIA (MEDIATION CENTRE) AT DAR ES SALAAM LAND CASE NO. 226 OF 2015 OMARY ALLY FUKU (As Administrator of the estate of the late Ally Rajabu)................................................... PLAINTIFF VERSUS NATIONAL MICROFINANCE BANK.................... 1st DEFENDANT THE COMMISSIONER FOR LAND............................................ 2ndDEFENDANT THE REGISTRAR OF TITLE...................................................... 3rdDEFENDANT THE TREASURY REGISTRAR.................................................... 4thDEFENDANT THE ATTORNEY GENERAL........................................................ 5thDEFENDANT MOROGORO MUNICIPAL COUNCIL................... 6™ DEFENDANT CONSENT JUDGMENT 31st January, 2025 L. HEMED, J, This is one of the protracted litigations instituted in the year 2015. It concerns with ownership of Plot No.41 Block 'C' Uhuru Street, Morogoro Township, registered under certificate of Title No.18221. Previously, Omary Ally Fuku, in the capacity of the Administrator of the estate of the late Ally Rajabu, instituted the suit against National Microfinance Bank demanding vacant possession of the said suit landed property. The National Microfinance Bank, having been served with the Plaint, filed written statement of defence disputing all the claims and averred to be the lawful owner of the disputed piece of land. On 26th June 2017, the Defendant moved this court for the 3rd party notice against Morogoro Municipal Council and the Attorney General who were eventually joined as third parties. At the end of the trial, this Court, Hon.Mohamed,J decided in favour of the Plaintiff herein. Both, the herein Plaintiff and the Defendant got aggrieved by the decision of this court, they thus appealed to the Court of Appeal of Tanzania, vide Civil Appeals No. 135 and 427 of 2020. In its judgment dated 13th October, 2023, the Court of Appeal found irregularities in complying with the 3rd party procedure as provided under Order I Rule 18 of the Civil Procedure Code, Cap.33. The Court proceeded to make the following order: - "...we invoke our revisionai powers under section 4(2) of the Appellate Jurisdiction Act, Cap. 141, quash and set aside the judgment, consequent orders, and the proceedings from 2(Jh June, 2017 immediately after the NMB sought directions from the learned trial judge to join the third parties to the suit. I/Ve remit the record to the High Court 2 (Land Division) to determine the case according to the law before another presiding judge." On 28th February, 2024 the learned counsel for the Defendant was granted the prayer to withdraw the 3rd party notice and for amendment of the Plaint to join the necessary parties. The Plaintiff amended the Plaint joining the Commissioner for Lands, the Registrar of Titles, the Treasury Registrar, the Attorney General, and Morogoro Municipal Council, as necessary parties. In the amended Plaint which was filed on 7th March, 2024, the Plaintiff sought for the following orders:- "a) Vacant possession of plot No. 41. Block "C" Uhuru Street Morogoro. b) Tshs. 400,000,000/= as general damages. c) Cost of this suit. d) Mesne profit at the rate of Tshs. 35,000,000/= per month from July 2015 to the date of vacant possession. e) Any other relief (s) this Honourable court may deem fit andjust to grant." The Defendant and the necessary parties responded to the amended Plaint by filing the written statement of defence disputing all the claims. However, while the matter was still pending, the parties, 3 pursuant to Order XXIII Rule 3 of the Civil Procedure Code [Cap.33 R.E 2019], mutually agreed to settle their dispute amicably. They executed and filed the Deed of Settlement on 31st January 2025. On the same day, that is on 31st January,2025, parties appeared before the trial judge, adopted their deed of settlement and recorded as follows: - 1. That, Pursuant to negotiation held between the parties and pursuant to subsequent correspondences between the parties and their advocates, the parties to the suit, mutually agreed to settle the dispute. 2. That the Settlement to have legal effect to all the registered and unregistered documents related to the disputed land thus, inclusively the Plot No. 41, located at Block 'C', Morogoro Township as identity by Certificate of Tittle No. 18221, with Land Office No. 25632. 3. That, the plaintiff, who is the Administrator and beneficiary to the suit land together with other beneficiaries to the estate of the deceased Ally Rajab, agree to surrender their rights on the disputed land through transfer to the Defendant. Implying Defendant to have the right of applying to 1st, 2nd and 5th Necessary parties and take necessary steps of transferring the Tittle Deed and securing the better Tittle in accordance with the law. 4 4. That, the plaintiff and other beneficiaries to the estate of late Ally Rajab agree to abandon and relinquished all claims against Defendant, 1st, 2nd, 3rd, 4th and 5th Necessary Parties as in Land Case No. 226 of 2015. The Plaintiff commits to assist and cooperate with the Defendant and its directors on acquisition of the proper Tittle from the respectively official Authorities who are the 1st, 2nd, and 5th Necessary Parties. 5. That, the Plaintiff and the beneficiaries of the said disputed land agree with Defendant, 1st, 2nd and 5th Necessary Parties, on modality of payments as follows a) That, Defendant shall pay the sum of TZS 200,000,000/= (Two Hundred Million Only) as consideration of Plot No. 41, located at Block 'C', Morogoro Township as identified by Certificate of Title No. 18221, Land Office No. 25632. The sum TZS 20,000,000/= (Twenty Million Only) shall be payable to the Plaintiff being all Costs of the suit, Mesne Profit and any other reliefs. b) Following the above payments, the Plaintiff and the beneficiaries of the said disputed land, acknowledge and accept payable amount above as full and final indemnity, costs, benefits or compensation under the claim and therefore, forever release and discharge all claims and damages, actions or suits and say any incidental proceedings thereof, that effect the suit land at law of whatsoever kind of nature against Defendant 5 and 1st, 2nd, 3rd, 4th and 5th Necessary Parties. Hence matter shall be marked and reached into its finality. c) That, sequel to paragraph 5(a) and (b) above, the 1st and 5th Necessary Parties shall provide in support of the amount payable, 5 Plots in Table "A" and 10 Plots in table "B" with below conditions; i .That, the 1st, 2nd, and 5th Necessary Party shall provide 5 plots to the Plaintiff and the beneficiaries of the disputed land without payment of acquisition fees. ii .That, remaining 10 Plots shall be provided to the Plaintiff and the beneficiaries of the said disputed land with payment of acquisition fees at a discounted rate of Tanzania Shillings One Thousands Only (TZS 1,000/=) per square meter being consideration of the relinquishment Plot No. 41 located at Block "C" Morogoro Township as identified by Certificate No. 18221. We hereby attach 5 Plots in Table "A" and 10 Plots in Table "B" for easy reference herein below; Table "A" Na NAM BA YA KI WAN J A KITALU UKUBWA MAHALI MATUMIZI (SQM) 1 2461 P 1087 KIEGEYA MAKAZI BIASHARA 2 2462 P 1175 KIEGEYA MAKAZI BIASHARA 3 2463 P 1050 KIEGEYA MAKAZI BIASHARA 4 554 P 1188 SULUHU NEW MAKAZI 6 CITY BIASHARA 5 555 P 1188 SULUHU NEW MAKAZI CITY BIASHARA Table "B" Na NAMBA YA KIWANJA KITALU UKUBWA MAHALI MATUMIZI (SQM) 1 61 B 1089 SULUHU NEW CITY MAKAZI 2 63 B 1032 SULUHU NEW CITY MAKAZI 3 556 P 1200 SULUHU NEW CITY MAKAZI 4 557 P 1200 SULUHU NEW CITY MAKAZI 5 558 P 1200 SULUHU NEW CITY MAKAZI 6 559 P 1200 SULUHU NEW CITY MAKAZI 7 560 P 1200 SULUHU NEW CITY MAKAZI 8 561 P 1200 SULUHU NEW CITY MAKAZI 9 562 P 1200 SULUHU NEW CITY MAKAZI 10 563 P 1200 SULUHU NEW CITY MAKAZI d) That, both Plaintiff and the beneficiaries of the said disputed land agreed themselves that the amount shall be channelled and paid to the Plaintiff/beneficiary, OMARY ALLY FUKU through Bank and amount shall be deposited in the CRDB BANK; ACCOUNT NAME: OMARY ALLY FUKU; ACCOUNT NUMBER: 0152414052600, BANK NAME AZIKIWE, Hence the proof of payment shall be producing the Bank Payment Slip. e) The Payments shall be payable into one Instalment bases as clarified herein below. 7 f) That, the Defendant shall deposit TZS 220,000,000/ = (Two Hundred Twenty Million Only) to the Plaintiff Bank Account after signing and recording of this Settlement. g) That, the paragraph 5(a) and 5(f) above shall be read and mean the same by Defendant discharging its liability of paying the said amount to the Plaintiff in consideration of all costs of the suit, Mesne Profit, Other reliefs and Compensation in relinquishment of the said Plot No. 41, located at Block "C" Morogoro Township as identified by Certificate of Title No. 18221. The payment shall be accompanied with conditions that; i. Plaintiff and beneficiaries clearing any encumbrances on the suit land, completion of and delivery of vacant and peaceful possession of the suit land to the Defendant. ii. Plaintiff to assist into completion of the transferring Certificate of Title No. 18221, with Land Office No. 25632 to the Defendant for necessary steps of transferring Ownership. 6. That upon payment of the agreed sum in paragraph 5 above, the Plaintiff and beneficiaries of the suit land, shall surrender the Title Deed/ Certificate of Title No. 18221, with Land Office No.25632 to the Defendant for necessary steps of transferring ownership. 8 7. That upon signing and recording of this Deed of Settlement and further consent settlement Agreement in court, the same shall have the effect as a Decree duly made by the Court capable of being executed in same manner as any other Decree of the Court, that in the event of default of any terms of this Deed of Settlement and Consent Judgment shall become enforceable as a Decree of the Court and this default clause shall apply. 8. That in consideration of an amicable settlement of matters in the said suit, the parties herein settle all their claims lodged in the High Court of Tanzania (Land Division) at Dar es salaam in the above captioned matter and the parties mutually and unconditionally undertakes as follows:- a) The Plaintiff to relinquish all claims of whatever description against the Defendant and 1st, 2nd, 3rd, 4th and 5th Necessary Parties, arising out of or as a result of the said Land Case No. 226 of 2015 or any other legal and non-legal proceedings before any court/Tribunals. b) To relinquish all Applications, complains if any and other incidental proceedings related to the said case and any other cases sustained or ended in relation to landed property/disputed land. 9 9. That, this Settlement Agreement shall be binding on the Parties" executors, administrators, assigns, or successors in title or any document related to the suit land. 10. That, it has been agreed by parties through this Deed of Settlement and further Consent Judgment to estopped/bar and limit Plaintiff and all other beneficiaries whatsoever to re-open or institute any proceedings that in whichever way effect the suit landed property. 11. The costs for legal fees and any other incidental costs incurred in and arising incidental to Land Case No. 226 of 2015 have been accommodated in the amount payable as in the paragraph 5 above. 12. This Deed of Settlement shall be effective on the date it shall be signed by both parties and recorded by the court. 13. This Deed of Settlement has been executed by the parties duly authorized to negotiate and execute the same. 14. This deed of settlement shall be governed by, and construed in accordance with, the laws of Tanzania. Any dispute arising out of or in connection with, or concerning the carrying into effect of, this Deed of Settlement shall be subjected to the exclusive jurisdiction of the Courts of the United Republic of Tanzania, and io the Parties hereby submit to the exclusive jurisdiction of those Courts for these purposes. Having recorded the above terms of settlement the court do hereby enters the consent judgment and make the following orders: - 1. The Defendant to pay the plaintiff and the beneficiaries of the said disputed land the sum of TZS 200,000,000/ = (Two Hundred Million Only) as consideration of Plot No. 41, located at Block 'C', Morogoro Township as identified by Certificate of Title No. 18221, Land Office No. 25632. The sum of TZS 20,000,000/= (Twenty Million Only) to be payable to the Plaintiff being all Costs of the suit, Mesne Profit and any other reliefs. 2. The amount payable to the Plaintiff and the beneficiaries to be channelled to the Plaintiff/beneficiary, OMARY ALLY FUKU through Bank in the CRDB BANK; ACCOUNT NAME: OMARY ALLY FUKU; ACCOUNT NUMBER: 0152414052600, BANK NAME AZIKIWE. 3. The Payments to be effected in one instalment of TZS 220,000,000/= (Two Hundred Twenty Million Only). li 4. Upon payment of the agreed sum, the Plaintiff and beneficiaries of the suit land, to surrender the Title Deed/ Certificate of Title No. 18221, with Land Office No.25632 to the Defendant for necessary steps of transferring ownership. 5. Plaintiff to assist into completion of the transferring Certificate of Title No. 18221, with Land Office No. 25632 to the Defendant for necessary steps of transferring Ownership. 6. The 1st, 2nd, and 5th Necessary Party to provide 5 plots to the Plaintiff and the beneficiaries of the disputed land without payment of acquisition fees. 7. The ten (10) Plots to be provided to the Plaintiff and the beneficiaries of the said disputed land with payment of acquisition fees at a discounted rate of Tanzania Shillings One Thousands Only (TZS 1,000/=) per square meter being consideration of the relinquishment Plot No. 41 located at Block "C", Morogoro Township as identified by Certificate No. 18221. 12 The plots referred in order No. 6 and 7 are as provided in Table "A" and "B" herein below; Table "A Na NAM BA YA KI WAN J A KITALU UKUBWA MAHALI MATUMIZI (SQM) 1 2461 P 1087 KIEGEYA MAKAZI BIASHARA 2 2462 P 1175 KIEGEYA MAKAZI BIASHARA 3 2463 P 1050 KIEGEYA MAKAZI BIASHARA 4 554 P 1188 SULUHU NEW MAKAZI CITY BIASHARA 5 555 P 1188 SULUHU NEW MAKAZI CITY BIASHARA Table "B" Na NAMBA YA KIWANJA KITALU UKUBWA MAHALI MATUMIZI (SQM) 1 61 B 1089 SULUHU NEW CITY MAKAZI 2 63 B 1032 SULUHU NEW CITY MAKAZI 3 556 P 1200 SULUHU NEW CITY MAKAZI 4 557 P 1200 SULUHU NEW CITY MAKAZI 5 558 P 1200 SULUHU NEW CITY MAKAZI 6 559 P 1200 SULUHU NEW CITY MAKAZI 7 560 P 1200 SULUHU NEW CITY MAKAZI 8 561 P 1200 SULUHU NEW CITY MAKAZI 9 562 P 1200 SULUHU NEW CITY MAKAZI 10 563 P 1200 SULUHU NEW CITY MAKAZI It is so ordered. 13 DATED at DAR ES SALAAM this 31st January 2025 17HEMED JUDGE 14