SIMBA PIPE INDUSTRIES LTD VS JUIN CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM CONSOLIDATED COMMERCIAL CASES NO. 2927 & 2928 OF 2023 BETWEEN SIMBA PIPE INDUSTRIES LTD…………..………..……………….PLAINTIFF VERSUS JUIN COMPANY LIMITED………………………….………………DEFENDANT JUSTICE EPHRAIM KATO…………………………..…………….THIRD PARTY CONSENT JUDGMENT Date of Last Order: 12th June, 2024 Date of Judgment: 02th July, 2024 GONZI, J. This judgment stems from the Deed of Settlement duly signed and filed in court by the parties on 2nd July, 2024. The plaintiff instituted the present suit against the defendant praying for Judgement and Decree for the following orders: - i. A Declaration that the Defendant has breached the terms and conditions of the Sale Agreement dated 29th August, 2017; ii. Payment of TZS. 89,467,901.66 being an outstanding balance for various pipes and fittings supplied by the Plaintiff to the Defendant; 1 iii. Payment of the sum of TZS 130,151,504.16 being accrued interest for the delayed payment from the date of default to the date of filing this suit; iv. Payment of the agreed 2% interest of the outstanding balance each month from the date of filing this suit to the date of payment in full; v. Payment of General damages as shall be assessed by the Court for breach of the Agreement; vi. Interest on (ii) and (iii) above at the commercial rate of 15% per annum from the date of filing this suit to the date of payment in full; vii. General damages as assessed by court; viii. Interest on (v) above at the court’s rate from the date of judgment to the date of payment in full. viii. ix. Costs of this suit; and x. Any other relief as this Honourable Court may deem fit to grant. On the other hand, the Plaintiff also instituted Commercial Case No.2928 of 2024 against the Defendant and prayed for the following orders: 2 i. A Declaration that the Defendant has breached the terms and conditions of the Sale Agreement dated 1st August, 2017; ii. Payment of TZS. 99,233,041.44/= being an outstanding balance for various pipes and fittings supplied by the Plaintiff to the Defendant; iii. Payment of the sum of TZS. 160,057,203/= being accrued interests for the delayed payment from the date of default to the date of filing this suit; iv. Payment of the agreed 2% interest as per Annexure 1 of the outstanding balance each month from the date of filing this suit to the date of payment in full; v. Payment of General damages as shall be assessed by the Court for breach of the agreement; vi. Interest on (ii) and (iii) above at the commercial rate of 18% per annum from the date of filing this suit to the date of payment in full; vii. General damages as assessed by the Court; viii. Interest on (v) above at the court’s rate from the date of judgment to the date of payment in full. ix. Costs of this suit; and x. Any other relief as this Honorable Court may deem fit to grant. 3 The parties agreed to settle the suits through the deed of settlement filed in court on 2nd July 2024 wherein the two cases were consolidated and settled simultaneously. On 2nd July 2024, the Plaintiff appeared through Mr. Victor Kikwasi, Learned Advocate, while the Defendant appeared through Ms. Victoria Paulo, Learned Advocate. Mr. Daniel Nsulwa, Learned Advocate, appeared for the Third Party. Mr. Victor Kikwasi, Learned Advocate, informed the court that the parties had amicably settled the dispute in both cases i.e. Commercial Case No.2927 of 2024 and Commercial Case No.2928 of 2024 and that a composite deed of settlement had been duly signed and filed in court earlier on 2nd day of July 2024. He thus prayed for the court to record the deed of settlement and pass a consent judgement and decree on the basis thereof. Ms. Victoria Paulo, Learned Counsel for the Defendant, assured the court that what was submitted by the Plaintiff’s Counsel was the correct position. She prayed for the court to adopt and record the settlement deed so as to constitute the consent judgement and decree accordingly in terms of Order XXIII Rule 3 of the Civil Procedure Code read together with Rule 2(2) of the Commercial Court Rules. Mr. Daniel Nsulwa, Learned Advocate, joined hands with his colleagues. 4 Order XXIII rule 3 of the Civil Procedure Code 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 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 court pursuant to 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 duly executed on 28th June, 2024 by all the parties herein.it was executed by Mr. Sanjay Agarwal who is the Director General of the plaintiff Company and Mr. Deusdedit Luranga who is the Human Resources Officer thereof. They signed in the presence of Mr. Victor John Kikwasi, Notary Public and Commissioner for Oaths. For the Defendant the Deed of Settlement was executed by Mr. Innocent Bernard who is the Managing Director thereof in the presence of Miss. Anna Pius, the Company Secretary. Their signatures were attested by Mr. 5 Daniel Nsulwa, as the Notary Public and Commissioner for Oaths. The Third Party also signed the Deed of Settlement in the presence of Mr. Daniel Nsulwa, as the Notary Public and Commissioner for Oaths. Upon being satisfied with the validity of the settlement process and its terms being duly vouched by all the parties to the suit, the deed of settlement is hereby recorded and adopted to constitute the Consent Judgment of the Court and a decree shall issue therefrom. The matter is therefore marked amicably settled pursuant to the terms contained in the Deed of Settlement executed by parties on 28th June 2024 and filed in Court on 2nd July 2024. The Court does hereby enter Judgment by Consent and Decree and proceeds to make the following orders: 1. That the Commercial Cases No. 2927/2024 and 2928/2024 and the claims therein are consolidated. 2. That the sum of TZS. 65, 000,000/= that was not included in the Account Statement of the Third Party is deducted from the total amount claimed by the Plaintiff. 3. That the Third Party shall pay the Plaintiff the sum of Tanzania Shillings One Hundred and Ninety Million (TZS.190,000,000/=) only in the following instalments; 6 i. The sum of TZS.5,000,000/= shall be paid on or before 30/06/2024, ii. The sum of TZS.20,000,000/= shall be paid on or before 30/07/2024, iii. The sum of TZS.20,000,000/= shall be paid on or before 30/08/2024, iv. The sum of TZS.20,000,000/= shall be paid on or before 30/09/2024, v. The sum of TZS.30,000,000/= shall be paid on or before 30/10/2024, vi. The sum of TZS.12,000,000/= shall be paid on or before 30/11/2024, vii. The sum of TZS.12,000,000/= shall be paid on or before 30/12/2024, viii. The sum of TZS.12,000,000/= shall be paid on or before 30/01/2025, ix. The sum of TZS.12,000,000/= shall be paid on or before 30/02/2025, x. The sum of TZS.12,000,000/= shall be paid on or before 30/03/2025, 7 xi. The sum of TZS.12,000,000/= shall be paid on or before 30/04/2025, xii. The sum of TZS.12,000,000/= shall be paid on or before 30/05/2025, xiii. The sum of TZS.11,000,000/= shall be paid on or before 30/06/2025. 4. That all payments shall be made into the following account: Simba Pipe Industries Limited Standard Chartered Bank Limited Account No. 0102022341401 SCBLTZTXXXX 5. That if the Third Party fails to pay any instalment as agreed herein, the Third Party shall be charged 15% interest per annum on the outstanding balance. 6. That at any time should the Third-Party default to pay any instalment, the Plaintiff will immediately be at liberty to execute the Decree against Third Party personally. 7. That upon recording the Deed of Settlement the suit is deemed settled in the manner and to the extent agreed therein. 8. Each party shall bear its own costs. 8 It is so ordered. A.H. GONZI JUDGE 02/07/2024 Judgment by Consent is delivered in Court this 2nd day of July, 2024 in the presence of Mr. Victor Kikwasi, Advocate for the Plaintiff, Ms. Victoria Paulo, Advocate for the Defendant and Mr. Daniel Nsulwa, Advocate for the Third Party. A.H. GONZI JUDGE 02/07/2024 9