BAKWATA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO.18 OF 2017 (Arising from Decree in Civil Case No. 6 of 2001 dated 30/10/2009) THE REGISTERED TRUSTEES OF BAKWATA....................................... .APPLICANT VERSUS THE REGISTERED TRUSTEES OF DODOMA GENERAL MUSLIM ASSOCIATION......................................... RESPONDENT RULING Last Order: 11th October 2024 Date of Ruling: 30lh October 2024 MASABO, J.:- Before me is an application for adjustment of a decree of this court dated 30th October 2009 in respect of Civil Case No. 6 of 2001. The application is braced by two affidavits. The first affidavit was affirmed by Suleiman Saidi Lolila and the second one by Issa H. Rwechungura. With the leave of this court, the respondent contested the application by filing two counter­ affidavits affirmed by Alhaj Jamal Sharif Hussein who is identified as one of the trustees of the respondent. The affidavits, counter-affidavits and their numerous attachments show that the parties had a dispute over a landed property and management of a school named Jamhuri Secondary School. In 2001, the respondent knocked on the doors of this court seeking remedies through Civil Case No. 6 of 2001. On 30th October 2009, the court decreed in her favour that: i. The disputed piece of land is the sole property of the plaintiff together with the buildings attached. Page 1 of 19 ii. The school business known as Jamhuri Secondary School operated by the defendant belongs to the defendant. iii. The claims that the defendant has failed to operate the school and the prayer for an order that the school business income of the years from 2004 to 2007 be divided among the parties has no leg to stand. iv. The claims of the payment of Tshs 200,000/= as general damages for the inconvenience caused to the plaintiff is refused. v. The plaintiff is not entitled to any rent for the past period of occupation by the defendant. vi. The defendant's counterclaims have no merit and all reliefs sought thereof are rejected. vii.If the defendant is interested to continue with his school business operation on the plaintiff's premises and buildings, he should abide by the tenancy conditions which may be imposed by the plaintiff otherwise the defendant is required to vacate the premises. viii. The defendant is condemned to pay the costs of this suit. It is deponed in the two affidavits bracing the chamber summons that after it was so decreed, the execution processes started. Later on, the parties retreated in pursuit of an out-of-court amicable settlement whereby they agreed to adjust the decree to TZS 330,000,000/= payable to the respondent in two instalments. The first sum of TZS 200,000,000 was paid on 28/4/2015 and the remaining sum of TZS 130,000,000/was paid on 30/4/2015 and, on that date, a settlement deed was executed in anticipation that it would be brought to court for certification but this did not happen. By 14/4/2016, the respondent had not presented it in court for certification. Hence, this application in which the applicant who is the decree debtor is beseeching the court, under Order XXI rule 2(2) of the Civil Procedure Code, Cap 33 R.E. 2029, to require the respondent to show cause why the payment Page 2 of 19 made to her in adjustment of and settlement of the decree in Civil Case No. 6 of 2001 should not be recorded and certified as full settlement and satisfaction of the said decree a prayer that has been sternly contested by the respondent on the following grounds. First, there has never been a settlement between the parties, two, if it exists, it is unenforceable as it was executed by people with no authority and lastly, there is no bank slip in substantiation that the above sum was paid to the respondent. In reply, the applicant maintained that the settlement agreement was duly executed. For the respondent, it was executed by Mr. Rwechungura, who was at that time, the office bearer of the respondent. He was, in his capacity as Secretary, also representing the respondent in the original suit and in the execution proceedings. The hearing of the application proceeded in writing. Both parties were represented. Submissions for the applicant were drawn and filed by Ms. Catherine A. Wambura learned advocate from Machibya Professional Attorneys and those of the respondents were drawn and filed by Mr. Ally Mussa Nkangaa, a learned counsel from Lawpath Attorneys. I thank them for abiding by the schedule. For the applicant, it was argued that the pursuit of an amicable settlement was initiated by the respondents and after several correspondences, they reached an agreement. The applicant paid the settlement sum in two instalments above making a total sum of TZS 330,000,000/=. Thereafter, the settlement agreement was executed showing that the respondent compromised the decree and received the above sum in its full and ifinal settlement. The receipt of the settlement sum was formally acknowledged Page 3 of 19 through a letter dated 2nd May 2015. In the foregoing, it was argued that having acknowledged the receipt of the above sum, the respondent is estopped from disputing the agreement and the terms thereon. With respect to the status of the signatories of the settlement agreement, it was submitted that the record available shows that at the execution of the settlement agreement, its signatories, Issa Rwechungura and Bakari Kigoda were still office bearers of the respondent. The assertion that they were no longer office bearers is without merit as it is not backed by credible proof. The letter of their purported cessation from office is seriously wanting for being marred by multiple irregularities. It was argued further, in the alternative, that the changes of the trustees of the respondent, if any, is inconsequential to the settlement agreement which was executed by the previous trustees considering also that, the respondent does not dispute the fact that it was Issa Rwechungura who instituted and prosecuted both, the civil case and the application for execution. Citing the decision of this court in JUNACO (T) Limited and 4 others vs Equity Bank (T) Limited, Misc Land Case Application No. 64 of 2023 [2023] TZHC Land D16497 (TanzLII), HC Land Division, Fredrick Boniphas Kyando vs Equity Bank Tanzania Limited, Civil Application No 31 of 2022 [2024] TZHC 1489 (TanzLII), STC Limited v Water Aid Tanzania, Misc. Commercial Cause No. 8 of 2022 and Insight Security Services Limited vs Tanzania Zambia Railway, Execution No. 7 of 2020 [2022] TZHC 11023 TanzUI, Ms. Wambura beseeched this court to certify the payments already made as it did in these cases. Page 4 of 19 In reply, Mr. Nkagaa started with a preliminary point of law. He submitted that the application is misconceived and untenable because the decree is of a nature that does not support the mode of execution sought. He argued that rule 2(1) Order XXI of the Civil Procedure Code can only be invoked where there is an order for payment of money under the decree and not in cases where, such as the one at hand, no money is payable under the decree. He added that the application offends the provision of section 31 of the Civil Procedure Code which provides that the execution of a decree should strictly be deemed as the execution of court orders and not of out- of-court settlements. Therefore, the execution sought is untenable as it is not of court orders but of an out-of-court settlement between the parties. On the merit of the application, it was submitted that the application has no merit and should not be granted because, in the period between 2010 and 2nd June 2015, the respondent had no trustees. The new trustees were elected on 23rd June 2015. Issa Rwechungura and Bakari Kigoda, who purported to be trustees were not and could not execute the settlement agreement on behalf of the respondent. It was argued, in alternative, that, the fact that Issa Rwechungura instituted the application for execution and was appearing in court for the respondent up to 6th March 2015 does not suffice as proof that he was a trustee of the respondent. With respect to the payment, it was submitted that from the applicant's affidavit, it is doubtful if the sum allegedly was indeed paid as there is no evidence to the effect that it was paid in two instalments as alleged. The purported letter of acknowledgement just shows that the sum received was TZS 330,000,000/= with no indication whatsoever of the bank number through which it was paid and the number of instalments, if any. As for the cited cases, it was argued Page 5 of 19 that they are distinguishable because, unlike in such cases, the alleged settlement agreement was executed by incompetent persons and the decree it purports to satisfy was not monetary. Rejoining, Ms. Wambura submitted that the argument that this application is incompetent and untenable is misconceived as it is based on a narrow interpretation of the law. Order XXX rule 2(1) is not confined to monetary decree. It gives the parties room to adjust their decree in part or in whole. In the present case, the parties exercised such right and had their decree adjusted through the settlement agreement. As regards the provision of section 31, it was submitted that the same was determined by this court in its ruling dated 6th September. Hence it cannot be brought back as this court is functus officio in as far as that point is concerned. On the merit of the application and the argument that the respondent had no trustees from 2010 to 22nd June 2015, it was rejoined that such an argument should be rejected because it conflicts with the disposition in the counter affidavit which contains a letter written in 2014 by the Chairman of the Board of Trustees notifying the Administrator General that he has resigned from his position and dismissed all the trustees with effect from that date. It is also inconsistent with the return filed by the respondent in 2015 whose list of trustees Is similar to the list contained in the chairman's purported resignation letter above stated. It was further reiterated that, undisputably, Mr. Rwechungura who signed the settlement agreement played a significant role in all the proceedings leading to the present application. He instituted the main suit and, in its trial, he testified iri the capacity of the trustee of the respondent and in February 2015 he instituted Page 6 of 19 the execution application. As for the proof of the paid sum, it was rejoined that the acknowledgement letter and the affidavit of Issa Rwechungura who was then the secretary general and trustee of the respondent suffice as good proof of the payments made to the respondents. I have carefully considered the submissions by the parties alongside the chamber summons, the two affidavits bracing it, the counter affidavit, the affidavit in reply and all their attachments which I have thoroughly read and scrutinized. As stated above, this application has been made under Order XI rule 2(2) of the Civil Procedure Code. I will reproduce it below alongside rule 2(1) for ease of reference. They state: 2.-(l) Where any money payable under a decree of any kind is paid out of court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the court whose duty is to execute the decree and the court shall record the same accordingly. (2) The judgment debtor also may inform the court of such ' payment or adjustment and apply to the court to issue a notice to the decree-holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly. The disposition and the submission by the applicant are that, after the settlement agreement was executed, the respondent being the decree holder had to move the court under rule 2(1) for adjustment of the decree in line with the settlement agreement and for certification that the decree Page 7 of 19 has been satisfied but she did not. Due to that failure, the applicant has invoked the provision of sub-rule 2 to move this court to require the respondent to show cause why the sum already paid to her in adjustment of and settlement of the decree in Civil Case No. 6 of 2001 should not be recorded and certified as full settlement and satisfaction of the said decree. Accordingly, the main issue for determination is whether the respondent has shown a cause to prevent the recording and certification of the settlement and the payment thereto. Since the respondent has disputed both the agreement and the alleged payment, the following sub-questions need to be answered before determining the ultimate issue above. First, whether the parties executed an agreement for settlement of the decree. Second, whether the agreed amount was paid to the respondent and if so, why it should not be recorded and certified as foil settlement and satisfaction of the said decree. The respondent has raised two preliminary points. Although they have been irregularly raised, it is apposite in the interest of justice and finality, to determine them at this outset before embarking on the questions for determination. It has been argued, in support of the preliminary points, that the decree being a non-monetary decree does not follow under the purview of Order XXI rule 2 (1) and (2) and second, this is not a court order under the meaning of section 31 of the Civil Procedure Code. Hence, it cannot be executed by this court sitting as an execution court. I I will start with the first point. While contemplating the thoughtful arguments by the learned counsels, I found the following decisions of Supreme Court of India quite enlightening and highly persuasive. In both cases the Court Page 8 of 19 was invited to interpret the provisions of Order XII rule 2 (1) and (2) of the Civil Procedure Code which are parimateria with Order XXI rule 2(1) and (2) of our Civil Procedure Code. In the first case, Sultana Begum vs Pram Chand Jain, AIR (1997) SC 1006, the Court, in paragraphs 16 and 17, held as follows: "16. Order XXI Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of court, the decree-holder has to certify such payment to the court whose duty it is to execute the decree and that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the . right to inform the court of such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree-holder......... 17. The words "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regarding their rights and obligations under the decree. If such contract or compromise . amounts to an adjustment of the decree, it has to be recorded by the court under Rule 2 of Order XXI. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to I an adjustment of the decree within the meaning of this Rule and the Court, if approached, will issue the certificate of . adjustment............. In a situation like this, the only enquiry that the executing court can do is to find out whether the plea taken on its face value, amounts to adjustment or satisfaction Page 9 of 19 of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent." Further the Court reaffirmed its previous decision in Moti Lal Bankers vs. Mohd. Hassan Khan AIR 1968 SC 1087 where it held that: "It is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. There is nothing in the Code of Civil Procedure which prevents the parties from entering into such a compromise. If the compromise amounts to an adjustment of the decree, it must be recorded under 0.21, R.2 and if not so recorded, it cannot be recognised by any Court executing the decree." In the second case, Padma Ben Banushali & Anr vs Yogendra Rathore & Ors AIR 2006 SC 2167, the Supreme Court reiterated its position above and added that: "The expression "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the court under Rule 2 of Order XXI. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of the Rule and the Court, if approached, will issue the certificate of I adjustment. Persuaded by these authorities, I am fortified that, the phrase "under a decree of any kind" appearing in sub-rule 1 is not a cosmetic. It is imbued Page 10 of 19 with a meaning which, as held in the authorities above, is broad and upholds the rights of the parties to enter into an agreement compromising their rights under the decree. The narrow interpretation advanced by Mr. Nkangaa would arbitrarily rob the parties of this right contrary to the spirit of rule 2(1). In the foregoing, I fully subscribe to Ms. Wambura's submission that rules 2(1) and (2) do not exclusively, deal with monetary decrees. The first preliminary point raised by the learned counsel is, therefore, devoid of merit. The second point will not detain me. It concerns section 31 of the Civil Procedure Code. As correctly submitted by Ms. Wambura this point was raised, considered and determined as a preliminary point of law in my ruling dated 6/9/2024. Therefore, I can no longer entertain it as I am functus officio. Having resolved these two points, I will now go to the merit of the application and I will start with the first sub-issue as to the existence of an out-of-court settlement. It was argued for the respondent that the agreement was never executed and if it was executed, it is unenforceable against her as the persons who executed it on her behalf were not mandated to represent her or transact on her behalf. The contested agreement is part of the dossier of documents accompanying the applicant's application. It is marked Annexture MPA-2. Its attestation part shows that for the respondent, it was executed by Issa Rwechungura and Bakari M. Kigoda who are identified as secretary i and trustee, respectively. Of these two, Issa Rwechungura affirmed an affidavit in support of the present application in which he has loudly acknowledged the existence of the settlement deed. Thus, there is no doubt that the agreement existed. Page 11 of 19 What should exercise my mind is its validity. The critical question that this court should determine is whether, when executing the agreement, Issa Rwechungura and Bakari M. Kigoda were officers of the respondent and legally mandated to execute the agreement for or on behalf of the respondent. The first three paragraphs of Issa Rwechungura's affidavit shed light on the relationship between him and the respondent. I will reproduce them for ease of reference: " 1. That, I am the former General Secretary of the Respondents herein and a trustee thereof.... 2. That, in 2001 being the leader of the respondent I instituted the case at this Honorable Court under the caption of Civil Case number 6 of 2001. After my personal follow up and pursuit of the case on 30th October 2009 the respondent got the decree in the said case at this Honorable Court......... 3. That, after getting the decree I lodged executions on behalf of the Respondent. However, the Applicants attempted to appeal to the Court of Appeal of Tanzania. Meanwhile, the said Applicants lodged an application for stay of execution in Misc. Civil Application No. 34 of 2010. For this reason the Respondent's application was halted until the ruling denying the stay was delivered on 15th January 2015 where we resumed our application for execution." The respondent's counter affidavit as affirmed by Alhaj Jamal Sharif Hussein did not dispute these averments. He took note of them under paragraph 3 of his counter affidavit implicitly suggesting that he admitted them as being true. In this regard, I find it undisputed that Issa Rwechungura was once the general secretary of the respondents and in that capacity, he was very I instrumental to the proceedings from which the present application1 has emanated. He instituted them and prosecuted them fbr and on behalf of the Page 12 of 19 respondent. When then did he cease from being the respondent's secretary general and her representative in the proceedings subsequent to Civil: Case No. 6 of 2001? Whereas both parties agree that Issa Rwechungura is no longer a trustee and general secretary of the respondent, there is no consensus as to whether at the execution of the settlement agreement, he was still the office bearer. For the respondent, it has been averred and passionately submitted that Issa Rwechungura and Bakari Kigoda were no longer office bearers. Impliedly, therefore, they fraudulently executed the agreement while fully aware that they had no capacity to transact on the respondent's behalf. Section 19 of the Law of Contract Act, Cap 345 R.E 2019, deals with misrepresentation. It is explicitly stated under this provision that fraudulent misrepresentation renders the agreement voidable at the option of the party who is misled, in this case, the applicant and entitles such party to damages for any loss incurred. Interestingly, however, the party alleging fraudulent misrepresentation and seeking vitiation of the agreement is not the party that was drawn into the agreement by the fraudulent misrepresentation but the party whose former trustees fraudulently misrepresented themselves as office bearers authorized to execute the agreement on her behalf. Be it as it may, it is a cardinal law in our jurisdiction that, the burden of proof lies on the person who alleges the existence of a certain fact and it never । shifts until it has been discharged (see Jason Samson Rweikizai vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 TanzLII). It is also trite that the standard of proof of fraud in civil cases I is higher than a mere balance of probabilities. As stated in Bilali Ally Page 13 of 19 Kinguti vs Ahadi Lulela Said & Others (Civil Appeal No.500 of 2021) [2023] TZCA 17337 TanzLII.:- There is a plethora of authorities to the effect that allegation of fraud in civil proceedings must be specifically pleaded and proved on a higher degree of probability than that which is required in ordinary civil cases. For instance, in the case of Omari Yusufu v. Rahma Ahmed Abdulkadr [1987] T.L.R. 169 the Court said: "...it is now established that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases..." Again, in the case of City Coffee Ltd vs. The Registered Trustee of Holo Coffee Group [2019] 1 T.L.R. 182, the Court stated thus: "....it is dear that regarding allegations of fraud in civil cases, the particulars of fraud, being serious allegation; must be specifically pleaded and the burden of proof thereof, although not that which is required in criminal cases; of proving a case beyond a reasonable doubt, it is heavier than a balance of ■ probabilities generally applied in civil cases." Did the respondent discharge this duty? In answering this question, I will 1 once again start with the counter affidavit of Alhaj Jamal Sharif Hussein. As already demonstrated, the averments by Issa Rwechungura that he was the Secretary General of the respondent and that, he instituted Civil Suit No. 6 । of 2006 and its subsequent application for execution and was j still *I prosecuting it on 15/1/2015, were noted in paragraph 3 of the counter affidavit hence admitted by Alhaj Jamal Sharif Hussein as being true. The Page 14 of 19 proceedings of Misc. Civil Application No. 34 of 2010 corroborate this fact as it shows that, Issa Rwechungura's last appearance in court for the respondent was 6/3/2015. Moreover, the averments that the respondent had no trustees from 2010 to 22nd June 2015 as they had been ousted contrasts with the substance of the attachment to the counter affidavit. I have discerned while reading such attachments that although there were attempts to change the trustees of the respondent in 2010, such change was not endorsed by the Administrator General hence, inoperative. Besides, the names of the trustees who were earmarked to be ousted in 2010 are undisclosed. Thus, even if I were to believe that such changes were operatives, in the absence of the names of the ousted trustees it cannot be taken to have been proved that Issa H. Rwechungura and Bakari Kigoda were ousted in 2010. I further observed while perusing the record that another crucial piece of evidence presented by the respondent in proof of the purported fraudulent misrepresentation is a letter sent to the Administrator General's office by Al-Hajj Juma Ally Ngairi on 10“’ August 2014. In this letter, Al-Hajj Juma Ally Ngairi was notifying the Administrator General's office of his resignation from the post of the chairman of the respondent's board of trustees with effect from 10th August 2014. He was also notifying him .that he had with effect from that day, subsequently dismissed the respondent's 6 trustees, Issa H. Rwechungura and Bakari Kigoda inclusive. The resignation and dismissal do not reconcile with the averment in the counter affidavitiand Mr. Nkangaa's passionate submission that from 2010 to 22nd June 2015 the respondent had no trustees because if the respondent had no trustees as Page 15 of 19 alleged, there would have been no resignation by Al-Hajj Juma Ally Ngairi or the dismissal of the 6 trustees in 2014. Another important document in the respondent's dossier is a letter from the Administrator's General office to Ibrahim Shineni dated 27th June 2016. It is stated in this letter that as of 23rd June 2015, the respondent had new trustees whose names are listed. Issa Rwechungura and Bakari Kigoda had ceased from being trustees. The substance of this letter aligns well with another letter from the same office dated 15th April 2016 which I found in the applicant's dossier. In paragraph 3 of this letter which was addressed to the Secretary General of the respondent, it is shown that the change of the respondent's trustees was made on 12th June 2015 and approved by the Administrator General's Office on 23rd June 2015. As this court was not told that there was a new set of trustees between 10th August 2014 and 12th June 2015, it is presumed that the purported dismissal of Issah H. Rwechungura and the other trustees was until 12th June 2015, inoperative. I am fortified in my considered view that this could be the reason why Issa H. Rwechungura continued to appear in court in prosecution of Misc Civil Application No. 34 of 2010 even after the 2014 purported dismissal. As per the undisputed court proceedings appended to the applicant's affidavit in reply to the respondent's counter affidavit, Issa Rwechungura appeared in court on 30/9/2014, 4/12/2024, 15/12/2014, 22/12/2014, 29/12/2014, I 15/1/2015, 23/2/2015, and 6/3/2015. In all these appearances, he; is identified as Secretary of the respondent. Going by the respondent's averment that he lost his post in 2010 or 2014, it would mean that there was a fraudulent misrepresentation in court proceedings. Page 16 of 19 Surprisingly, the proceedings are silent on the action taken by the respondent to stop the misrepresentation. The inaction is alarming and questionable. In my view, there can only be two explanations to wit, that, the respondent was inexplicably negligent or deliberately condoned the fraudulent misrepresentation, hence complicity to it. Whichever is true, the respondent cannot be excused for misleading the applicant who continued to entertain and transact with Issa H. Rwechungura believing that he was the respondent's secretary. Also, admittedly, two years lapsed from 30th April 2015 when the settlement agreement was concluded to 10th April 2017 when the applicant filed the instant application. It is inexplicable why the respondent's new board of trustees which became operative on 23rd June 2015, made no efforts to rescind the agreement fraudulently concluded on the respondent's behalf. The inaction could fairly be considered as a further demonstration of the respondent's tolerance or complicity. I have observed from the applicant's dossier that the existence of the settlement agreement was not a secret such that, even the Administrator General's office was aware of it. The first paragraph of page two of a letter sent to the respondent's secretary by the I office of the Administrator General on 15th April 2016 alludes to the settlement agreement herein contested. Based on what I have demonstrated, I am satisfied that the respondent has miserably failed to discharge her duty of proving the allegation of fraudulent misrepresentation to the required standard. Page 17 of 19 I may also add that, the change of trustees of any organization is intrinsically an internal matter and unless it is publicly announced, it can go unnoticed. It is, therefore, exceedingly important to have such changes brought to the attention of third parties who would directly or indirectly be affected by such changes more so in this case where from the commencement of Civil Case No. 6 of 2001, it was Issa H. Rwechungura who was prosecuting it and through that, corresponding with the applicants. Unless it was proved that the applicant was aware of the change but ignored and recklessly continued to transact with him, it would be quite unfair to condemn her for transacting and executing the settlement agreement with Issa H. Rwechungura innocently believing that he was an office bearer of the respondent. Thus, even if I was to hold that fraudulent misrepresentation had been proved I would not have condemned the applicant as there was no proof of negligence on her part. The next question for determination is whether the agreed amount was paid to the respondent. This issue is simple and straight forward. The payment of TZS 330,000,000/- is well acknowledged in clause 3 of the settlement agreement. Further acknowledged is found in a letter dated 2nd May 2015 appended to the applicant's affidavit. Mr. Nkangaa has beseeched this court to disregard these two acknowledgements and hold in the respondent's favour that above sum was not paid as there is no bank slip. I respectfully disagree and decline the invitation because the settlement agreement did I not have such a condition. By requiring a bank slip, this court would be stepping out of its mandate by rewriting the settlement agreement in total disregard of the principle of sanctity of contract by which the courts ai;e barred from rewriting the contracts for the parties. Page 18 of 19 The last issue is whether, on its face value, the terms of the settlement and sum paid amounts to adjustment or satisfaction of the decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent. This question will not detain me as the intention of the parties is explicitly stated in the settlement agreement such that, it is crystal as to what they intended. The respondent readily agreed to relinquish his right in compromise after receiving the sum of TZS 330,000,000/= and in paragraphs 4 and 5, she explicitly covenanted to relinquish all her rights under the decree and undertook to move the court for recording and certification of the payment as satisfaction of the decree. In the totality of what I have demonstrated above, I am fortified that the respondent has miserably failed to show cause why the payment should not be recorded and certified by this court as full settlement and satisfaction of the decree. Accordingly, the settlement agreement is recorded as an adjustment of the decree in Civil Case No. 6 of 2001 and the sum of TZS 330,000,000/= paid to the respondent is certified to have satisfied the whole decree and extinguished it. Costs on the respondents. DATED and DELIVE D at Dodoma this 30th day of October 2024. J. L. MASABO JUDGE Page 19 of 19