equity bank t ltd vs ukod international co ltd 2021 tzhccomd 3464 28 april 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL CAUSE NO. 05 OF 2019 IN THE MATTER OF COMPANIES ACT, 2002 AND IN THE MATTER OF PETITION FOR WINDING UP OF UKOD INTERNATIONAL COMPANY LIMITED BETWEEN EQUITY BANK (TANZANIA LIMITED............................... PETITIONER AND UKOD INTERNATIONAL COMPANY LIMITED..................................................... RESPONDENT Date of Last order: 25/03/2021 Date ofJudgement: 28/04/2021 CONSENT JUDGEMENT MAGOIGA, J. The petitioner, EQUITY BANK (TANZANIA) LIMITED by way of petition, instituted winding proceedings against the above named respondent praying for the following orders, namely:- i a. That UKOD International Company Limited (Registration No.58938) may be wound up by the court under the provisions of section 279 (1) (d) of the Companies Act, 2002; b. A liquidator be appointed under section 294 of the Companies Act, 2002; c. Such further orders or reliefs this Honourable court deem just, equitable and convenient; and d. Costs of this petition be provided for. When this suit was called on for hearing on 28th April, 2021 Mr. Seni Malimi, learned advocate for the petitioner and Mr. Jama Ibrahim Mualin, Director General and Chief Executive Officer of the respondent informed the court that, they managed to settle the matter and deed of settlement has already been filed in this court for recording on 27th day of April, 2021. 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]. 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 defendant satisfies the plaintiff in respect of the whole or any 2 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". This provision of rule 3 of Order XXIII of the CPC was defined by Nulla, the Code of Civil Procedure Act of 1908 (14th edition) on page 1828, who stated as herein below: "The rule give a mandate to, the court to record a lawful adjustment or compromise and pass a decree on in terms of such compromise or adjacent. 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 stops there." This position was acknowledged by the Court of Appeal of Tanzania in the case of Motor Vessel Sepideh and Another v. Yusuph Mohamed Yusuph and two others, Civil application No 237 of 2013 (unreported) the court of observed that 3 " 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 petition once and for all and I am satisfied as to its lawfulness and effect. In view of the above, therefore, by a deed of settlement dully executed by the parties in this case and filed in this court on 27th April 2021, this court hereby record the deed of settlement and it shall form part and parcel of the of the consent decision of the court as well as decree. Therefore, the present petition is hereby marked settled out of court at the instance of the parties in the terms and conditions as agreed in the deed of settlement under Order XXIII Rule 3 of the Civil Procedure Code [Cap 33 R.E. 2019]. The notice of objection filed is overtaken by event in the circumstances. It's so ordered. 4