rhoda nsekela vicar nsekela as joint administrators of the estate of the late brighton r nsekela vs linda thobias ntangabanyikwa 3 others 2023 tzhc 22333 31 october 20

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO LAND CASE NO. 05 OF 2022 BETWEEN ! " ■ " " " . RHODA NSEKELA & VICAR NSEKELA (As joint Administrators of the Estate of the Late BRIGHTON R. NSEKELA) PLAINTIFFS VERSUS 1. LINDA THOBIAS NTANGABANYIKWA l^tDEFENDANT 2. TANZANIA RAILWAY CORPORATION 2^° DEFENDANT 3. MOROGORO MUNICIPAL COUNCIL DEFENDANT 4. THE ATTORNEY GENERAL 4^" DEFENDANT CONSENT JUDGEMENT (DEED OF SETTLEMENT) (Made under Section 95read together with Order XXIII, Rule 3ofthe Civil Procedure Code[CAP. 33R. E, 2019]). 7"^ Sept, & Oct, 2023 M J. CHABA, J. This Consent Judgment ascended from the Settlement Agreement entered and agreed upon by the parties to this case who finally agreed to file the same before this Court as binding agreement on the 7^^ day of September, 2023. Essentially, this Settlement Agreement is the outcome of a Land Case No. 5 of 2022 filed by the Plaintiffs herein against the Defendants claiming for the following orders: Page 1 of 10 A declaration that the plaintiffs in their capacity as joint administrators of the estate of Brighton R. Nsekela are the lawful owners of Plot No. 766 (870) Block "A" Kilimanjaro, Morogom Municipality. An order that the 2"^ defendant pay to the plaintiffs, in their capacity as joint administrators of the estate of the late Brighton R. Nsekela, compensation as per the value revealed after valuation of the suit property by the 2"^ defendant. Interest on the above sum of the prevailing commercial rate from 10'^ February, 2021 to the date of judgment. IV. Interest in the decretal s3um at the court rate i.e., 12% per annum from the date of judgment till pay ment in full. V. Cost of the suit. vi. Interest on the costs at courts rate i.e., 12% per annum from the date of judgment to the date of payment in full. Vll. General damages to be assessed by the Court. viii. Any other reliefs as the Honourable Court may deem fit and just to grant. When the matter was placed before me to proceed with Mediation on 26^^ day of October, 2022, Ms. Esther Shoo, the Learned Advocate representing the Plaintiffs, informed this Court that parties have agreed to settle their disputes out of Court. So, she prayed to file their Settlement Agreement once the same have been signed by the parties. She however, prayed the Court to mark the case as settled by the parties' cordial consent. Page 2 of 10 On the other hand, Mr. Hemed Mkomwa, Learned State Attorney who entered appearance for the 2"^, 3''^ and 4'^'^ Defendants joined hands with the submission advanced by the Counsel for the Plaintiff and averred that, both parties were in agreement that the Settlement Agreement shall be recorded and form part of the decree of this Court. On my part, I had no reason whatsoever to refuse the parties' consented agreement. Consequently, I granted the prayers made by the parties through their learned trained minds persons and marked the matter settled at the mediation stage on the 26^'' day of October, 2022. Besides, having in mind that, both parties have agreed to settle this matter amicably out of Court, in the event therefore, I am guided by the law under Order XXIII, Rule 3 of the Civil Procedure Code [CAP. 33 R. E, 2019] which 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, onwhere 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 an agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." As hinted above, parties have cordially, arrived amicably into a lawful agreement which disposes of the entire civil case. As the spirit of this Court is .■ ' , Page 3 of 10 ■ to encourage parties to settle their disputes in amicable way and through costs effective manner, I am .satisfied that parties have agreed to settle this matter amicably out of Court. On scrutiny of the Settlement Agreement which was made, signed and dated 6*^*^ day of September, 2023 and accordingly presented and filed before this Court on 7^'^ day of September, 2023, divulges that both parties have signified their consent by appending their signatures against their names. This Court therefore, proceed to adopt the Terms and Conditions of the registered Deed of Settlement to form part and parcel of this Consent Judgement. The Terms and Conditions of the Settlement Agreement are quoted verbatim hereunder: "SETTLEMENT AGREEMENT This Agreement is made this 6^ day of September, 2023. BETWEEN RHODA NSEKELA 85 VICAR NSEKELA of P.O. Box 705 Morogoro, Tanzania (PHONE 0754483769, 0655324810), Morogoro Tanzania (hereinafter called "the Plaintiffs" as joint administrators of the Estate of the late BRIGHTON R. NSEKELA), of one part, AND LINDA THOBIAS NTANGABANYIKWA whose address is under care of Azizi Mahenge (Advocate), Jubilee Attorneys, Jumbe Mtoto Street, O.P. Magereza Rest House, P.O. BOX 210, Morogoro (hereinafter is called the l^t Defendant.) TANZANIA RAILWAY CORPORATION herein called the 2^^ Defendant. MOROGORO MUNICIPAL COUNCIL of P.O. Box 166, Morogoro (hereinafter called the Defendant") of the other part. Page 4 of 10 THE ATTORNEY GENERAL and her address shall be under C/O The Attorney General's Chambers, Morogoro Zone. A. WHEREAS, the Plaintiffs herein as joint administrators of the estate of the late BRIGHTON R. NSEKELA has instituted Land Case No. 05 of 2022 against the respondents in the High Court of Tanzania (Morogoro Sub - Registiy) at Morogoro for reliefs: - i. A declaration that the plaintiffs in their capacity as joint administrators of the estate of Brighton R. Nsekela are the lawful owners of Plot No. 766(870) Block "A" Kilimanjaro, Morogoro . . Municipality. . ii. . An order that the 2^^^^ defendant pay to the plaintiffs, in their capacity as joint administrators of the estate oi the late Brighton R. Nsekela, compensation as per the value revealed after valuation of the suit property by the 2^^ Defendant. iii. Interest on the above sum of the prevailing commercial rate from 10th February 2021 to the date ofjudgment. iv. Interest in the decretal sum at the court rate i.e 12% per annum from the date,ofjudgment till payment in full. V. Cost of the suit. vi. Interest on the costs at courts rate i.e., 12% per annum from the date ofjudgment to the date of payment in full.' vii. General damages to be assessed by the Court:' viii. Any other reliefs as the Honourable Court may deem fit and just to grant. ; ' ' B. AND WHEREAS; the parties herein have mutually agreed to settle their dispute on terms and conditions,set out herein below and wish the.said terms and conditions to be recorded and be deemed a decree of the court. . , . . . Page 5 of 10 NOW THEREFORE; in consideration of the promises and the mutual covenants of the parties hereto as set forth hereinafter, it is hereby AGREED and DECLARED as follows: - ARTICLE 1 1.0: AGREEMENT 1.1 That, the dispute is over Plots No. 760 (870) Block "A Kilimanjaro, Morogoro Municipality. 1.2 That, it has been mutually agreed that the Plaintiffs in their capacity as joint administrators of estate of Brighton R. Nsekela shall agree to be re-allocated another Plot by the 3^^^ Defendant, a Plot of the same value as per the valuation done by the 2^^^! Defendant during compensation. 1.3 That,. the 3^<^, Defendant shall demarcate . and allocate , to the Plaintiffs herein,in their capacity as joint administrators of the estates of Brighton R. Nsekela a Plot for residential purposes at Kiegeya, Morogoro Municipality. The Plot to be allocated to the Plaintiffs herein it shall be of the same size i.e., 820 square meters with that being owned by the Plaintiffs in their capacity as joint adrninistrators of estates of Brighton R. Nsekela herein at Block "A" Kilimanjaro and which was the subject of this case. 1.4 That, the whole process of allocating the Plot to the Plaintiffs herein in their capacity as joint administrators of Brighton R. Nsekela at Kiegeya is expected to be completed before February, 2023 ends. 1.5 That, the certificate of title for the respective Plot shall be processed and issued in. the names of the Plaintiffs herein in their capacity as joint Administrators of estate of Brighton R. Nsekela and Plaintiffs agrees to hear the costs of preparation of the respective certificate of tittle. , 1.6,That, the Respondents does not dispute the Applicant's Ownership of the suit property and does not claim any interest thereon and therefore the Applicant is the lawful owner of the suit property. Page 6 of 10 namely; Plot No. 766 (870) Block "A" Kilimanjaro, Morogoro Municipality. 1.7 The Respondents shall not interfere in anyway with the Applicant's interest and ownership of the property the subject of this agreement. 1.8 That, upon the signing and endorsement of this agreement the Plaintiffs herein shall waive all other claims against the Defendants herein named in the Land Case No. 5 of 2022 filed in the High Court of Tanzania (Morogoro District Registry at Morogoro). 1.9 That,- after this deed.is registered.it will form a Deereeuf the Court. 1.10 That, thereafter all claims between all parties herein shall be considered a-settled. ARTICLE 2 2.0 COSTS ■ '■ ^ 2.1 All costs and expenses incurred in connection with the suit and/or , this Agreernent .including,, but without , limitation . to i attorneys, , accountants, financial advisors and Court fees shall be paid by the party incurring such expenses. 2.2 That should any other or further eosts and or expenses be incurred '" ■ ^ because of any breach of whatsoever nature of this agreement by . .. ■ , either party hereto, then those costs shall be recoverable from the party guilty of such ,a.breach. ., , , .. , , ARTICLES ;,- , .;. 3. DECREE- ■ ■ • ' ■ Sil. This;Agreement shall,,upon being filed in High Court of Tanzania ..(Morogoro Sub - Registry at Morogoro), have the same effect as a ,. decree' duly made by the Honourable Court, capable of' being : ■ executed in the same manner as any other decree of the Court. Page 7 of 10 3.2. That, purstiant to and in accordance with the' terms and conditions herfein contained the parties herein mutually agree and endorse the Order of the Honourable Chaba, J., High Court of . Tanzania (Morogoro Sub - Registry at Morogoro) directing that the matter has been amicably settled between the Plaintiffs and Defendants in Land Case No. 05 of 2022 on terms and conditions herein contained. ARTICLE 4 4.0 DEFAULTS 4.1 In the event of default and failure to comply with mutual covenants (termiS of this settlement) Plaintiffs herein in their capacity as joint administrators of the estate of Brighton R. Nsekela will proceed with the execution,process available to recover their Plot. ARTICLE 5 5.0 MISCELLANEOUS PROVISIONS 5.1 This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors in title and representatives. 5.2 This Agreemerit shall be effective on the date it shall be signed by both Parties. 5.3 , No waiver of the breach of the terms of or any default under this Agreement shall be deemed a waiver of any subsequent breach or default or in any way affect the other terms of this Agreement. ARTICLE 6 6.0 ORIGINALS AND AUTHENTICITY 6.1 This agreement shall be executed in four originals all of them being equally authentic-and all constituting one instrument. IN WITNESS WHEREOF; The Parties hereto acting through their authorized Page 8 of 10 officers or representatives or directly themselves respectively have executed this Deed of Settlement on manner, day and year herein after written End of quoting. From the foregoing, it is crystal clear that parties have mutually agreed that, this Settlement Agreement shall have the same effect as a decree duly made by this Court capable of being executed in the same manner as any other decree of the Court on the strength of mutual agreement by the parties themselves as indicated at Article 3.1 and 3.2 respectively. Now, it is hereby'declared that the executed Settlement Agreement with effect from the-date of filing in-this Court/that is on day of September, 2023 binds all parties herein and subsequent application(s) or suits arising from the same cause of action. Consequently/ this Court do hereby invoke its powers bestowed under the provision of Section 95 and Order XXIII, Rule 3 of the Civil Procedute.Code;[CAP..33-R:., E, 2019] to mark,this Land Case Npa 05 of 2022 amicably settled.-Further, the terms and conditioris comprised in the Executed Settlement.Agreement as quo.ted verbatims herein above holistiGaljy adopted hereto, forming part apd parcel of this Court Judgment, and. Decree. Order accordingly. , ■ -DATED at MOROGGRO this 3 day of October, 2023. - fs M. J. JUDGE 31/10/2023 - Page 9 of 10 Court; Consent Judgment delivered under my hand and the Seal of the Court in Chamber's this 31^*^ day of October; 2023 in the presence of the Ms. Esther Shoo, Learned Advocate for the Plaintiffs and Mr. Nzunde Eliakim Machunda, Learned State Attorney for the 2"^, 3'''^ and 4*^'^ Defendants and in the absence of the Defendant > M. J. haoa uu JUDGE 31/10/2023 ^ourt: Right of the parties fully explained. M. J. Chaba JUDGE 31/10/2023 Page 10 of 10