shirika la usafiri dar es salaam ltd vs africarriers ltd another 2023 tzhccomd 333 19 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM COMMERCIAL CASE NO. 133 OF 2016 SHIRIKA LA USAFIRI DAR ES SALAAM LIMITED.......... PLAINTIFF

VERSUS AFRICARRIERS LIMITED..................................... ..1st DEFENDANT BAY VIEW COMPLEX LIMITED............................... 2nd DEFENDANT

CONSENT JUDGMENT A.A MBAGWA J. This judgment stems from a deed of settlement duly signed and filed by the parties in this Court on 12th day of September 2023. The plaintiff herein Shirika La Usafiri Dar Es Salaam Limited instituted the present suit against the 1st and 2nd defendants namely, Africarriers Limited and Bay View Complex Limited praying for judgment and decree as follows; (a) That, the judgment and decree of this Honourable Court dated 19th September ,2013 be set aside. (b) That, the defendants jointly and severally be condemned to pay the costs of this suit. i 9 (c) Any other order and relief as the Honourable Court may deem just and fit to grant. Briefly, the material facts of the case are that the 1st and 2nd defendants instituted a suit in this Court via Commercial Case No. 125 of 2013 against the plaintiff alleging that the plaintiff had breached the joint venture agreement entered into between the parties on 13th October 2019 for joint ownership of the property to be constructed on Plot No.437/129, Certificate of Title No. 186021/41, Sokoine Drive, within Ilala Municipality, Dar es salaam, the property of the plaintiff. On admission by the plaintiff, the defendants procured judgment and decree against the plaintiff dated 19th September, 2013. However, the plaintiff contends that the said judgment was procured by fraud. As such, the plaintiff has filed the

present suit in order to set aside the judgment and decree which she alleges that it was procured by fraud. When the matter was scheduled for hearing, Mr. Mathew Fuko, learned State Attorney for the plaintiff informed the Court that parties had amicably settled the dispute and the deed of settlement had been duly signed and filed in Court. He thus prayed for the court to record the deed of settlement in order to form the part and parcel of the consent judgment and decree of the Court. 2 Mr. Ngasa Ganja, the learned Counsel for the defendants joined hand with the plaintiff's counsel. He similarly prayed the Court to adopt and record the settlement deed to form part of consent judgement and decree in terms of Order XXIII rule 3 of the Civil Procedure Code read together with rule 2(2) of the court rules. The law is very clear on disposal of cases by settlement where parties mutually agree to settle their dispute through amicable means. Order XXIII rule 3 of the Civil Procedure Code under which this settlement deed was filed 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 plaintiffin 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

shall pass a decree in accordance therewith so far as it relates to the suit". I have keenly gone through the said deed of settlement filed in this court on 12th day of September 2023 in terms of Order XXIII rule 3 of the Civil Procedure Code read together with rule 2(2) of the High Court (Commercial Division) Procedure Rules. I am satisfied that the same was 3 7 on 11th September, 2023 duly signed by both parties namely, Mr. John Xavery Nguya, the Director General of the plaintiff and Mrs. Sechelela Charles Chitinka, Acting Company Secretary on behalf of the plaintiff whereas Mr. Mustafa Rashidi, Director for the defendants and Mr. Mohamed Raza Pirbhai, the Chief Executive Officer (C.E.O) signed on behalf of the defendants. Additionally, I have scanned the terms and conditions of the settlement deed and found that they are compatible with the legal requirements. Disposing cases through amicable settlement is highly recommended by the court as exhibited in the case of Motor Vessel Sepideh and Another vs. Yusuph Mohamed Yusuph and two Others Civil Application No.237 of 2013, CAT at Dar es Salaam. Besides, in the case of Jaffrey Indi. Sian Ltd vs M/s Beijing Construction Engineering Group Limited, Commercial Case No. 38 of 2021, the court remarked that parties' mutual settlement of cases is a route encouraged all over the world. In the premises, the deed of settlement is hereby

recorded and adopted to form part and parcel of the consent judgment. The matter is therefore marked settled with the following orders; 4 1. That the settlement is intended to be in full and final consent settlement of the dispute and or any claim arising from breach of the terms of the joint venture agreement executed by the plaintiff and the 1st defendant on 13th day of October 2009 and its resultant Commercial Case No. 125 of 2013.

2. That the parties to this deed of settlement have agreed to settle the dispute by confirming that the consent judgment for Commercial Case No. 125 of 2013 is valid and thus the plaintiff agreed to pay the defendants compensation of a total sum of Tanzanian shillings one billion five hundred million (TZS 1,500,000,000/=) only being the money payable by the plaintiff for breach of joint venture agreement herein after to be referred as the settlement sum.

3. That the compensation of the total sum of TZS 1,500,000,000/ = paid by the plaintiff on the basis of settlement shall be treated as a net amount payable /paid to the defendants and the same shall be exempted from any income tax.

4. That the settlement sum shall be paid by the plaintiff to the defendants in the following manner: - i. That the plaintiff shall pay the defendants a sum of TZS 500,000,00/= immediately upon signing of this deed and not later than seven days after signing of the deed. 5 ii. That the plaintiff shall pay the defendants the remaining balance sum of TZS 1,000,000,000/= within 12 months of this deed and thus such balance shall be payable in the interval of every three months at sum of TZS 250,000,000/ = .

5. That all payment agreed by the parties under this deed shall be made to the account of 1st defendant as detailed below; Name of Account : AFRICARRRIES LIMITED Banker : NBC BANK, Corporate Branch Account No. : 011103039697 SWIFT CODE : NLCBTZTZ 6. That if any part of this deed shall be held unenforceable for any reason, the reminder of this deed shall continue in full force and effect. If any provision of this agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

7. Save as provided under this deed, the parties to this deed unanimously agree that once the payment of the outstanding sum is completed as per the terms of this deed, the plaintiff shall have no claim against the defendants with regards to the joint venture 6 agreement executed by the plaintiff and the 1st defendant on 13th day of October 2009 and its resultant Commercial Case No. 125 of 2013.

8. That this deed shall serve as and be deemed to be the full satisfaction and compromise of the suit in respect of the above actions between the parties and no any further claim of similar nature shall be commenced and or restored by either party or their agents, associates or beneficiaries in these presents in respect thereof upon the signing of this deed save for such actions in the nature of execution and for the realisation of the true intention of this settlement.

9. This deed of settlement shall be construed and interpreted in accordance with the laws of Tanzania for the time being in force. It is so ordered. Dated at Dar es Salaam this 19th day of September 2023. 7