stanbic bank tanzania limited v prosper joseph mbena 2022 tzhccomd 50 24 march 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. Ill OF 2021 STANBIC BANK TANZANIA LIMITED........................................PLAINTIFF VERSUS PROSPER JOSEPH MBENA.................................................... DEFENDANT Date of Last order and Judgement: 24/03/2022 CONSENT JUDGEMENT MAGOIGA, J. The plaintiff, STANBIC BANK TANZANIA LIMITED by way of plaint instituted the instant suit against the above-named defendant praying for judgement and decree in the following orders, namely:- i) Judgement in favour of the plaintiff against the defendant for USD.173,697.29; ii) Interest and default interest at the aggregate rate of 24% per annum on the said sum of USD. 173,697.29 from the date of filing the suit until judgement or sooner payment; iii) Interest at the Court rate post judgement; ju i iv) Order that in the event the outstanding loan is not paid the mortgaged property under landed property under plot No. 1135, under C.T. No.23398, Land Office No. 49544, Msasani Peninsula area, Dar es Salaam be auctioned to realize the loan amount due; v) The defendant be ordered to pay the costs of this suit; and vi)Such further orders and reliefs this Hon. Court deems just, equitable and convenient When this case was called on for orders on 24th March, 2024, Mr. Zacharia Daudi, learned advocate for the plaintiff and Mr. Prosper Joseph Mbena, the defendant informed the court that they managed to settle the matter and Deed of Settlement has already been filed in this court. I have gone through the Deed of Settlement filed in this court by the parties and indeed filed under order XXIII Rule 3 of the Civil Procedure Code [Cap 33 R. E. 2019]. The said Rule 3 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 2 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 decree in accordance therewith so far it relates to the suit." As the above provision provides, once a Deed of Settlement is entered and filed in court, the court must be satisfied that it is a lawful Deed and it does, indeed, adjust the suit either wholly or in partially and, thereafter, the court shall record it, thereby passing 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 CPC was succinctly defined by Mulla, the Code of Civil Procedure Act of 1908 (14th edition) on page 1828, who stated 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 consent decree is not appealable ... when the agreement relates to whole suit, the court on being invited by the parties, record the agreement and pass a decree in accordance with the agreement and the suits ends there." This position was acknowledged by the Court of Appeal in the case of Motor Vessel Sepideh and Another v. Yusuph Mohamed Yusuph and two others Civil application No 237 of 2013, CAT (DSM)(unreported) in which the court of observed that:- "Where there is lawful agreement or compromise the court is bound to record a settlement once it is arrived at by the parties." I have examined the Deed of Settlement which seeks to settle the whole suit. I am satisfied as to its lawfulness and effect of settling the whole suit once and for all. In view of the above, the Deed is hereby registered and it shall form part and parcel of this consent decision of the court as well as it decree. The present suit, therefore, is marked settled at the instance of the parties' in terms and conditions set out in their Deed of Settlement dully executed by the parties in this case and filed in this court on 24th day of March 2024. It's so ordered. c 4 Dated at Dar es salaam on this 24th day of March, 2022 5