ASIF ALI RIASAT TA AHMED BUSINESSCENTER VS CRDB BANK PLC MISC

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DARES SALAAM MISC. COMMERCIAL APPLICATION NO. 6209 OF 2024 (Originating from Commercial Case No. 134 of 2023) ASIF ALI RIASAT t/a AHMED BUSINESS CENTER.......APPLICANT VERSUS CRDB BANK PLC................................................................ RESPONDENT RULING Date of last order; 02/05/2024 Date of ruling: 10/05/2024 AGATHO, J.; This ruling is in respect of the Applicant's application seeking leave of the court to issue interrogatories to the Respondent. The application was made under Section 25, Order XI Rule 2, 4 and 19, Order XLIII Rule 2 of the CPC [Cap 33 R.E. 2019]; and Rule 1(2) of the High Court (Commercial Division Procedure) Rules of 2012 as amended in 2019. And it was by way of chamber summons supported by an affidavit deponed by Asif Ali Riasat, the Applicant operating as sole proprietor. The application met with resistance from the Respondent through the i counter affidavit deponed by its Principal Officer, Francis Ndowo. The application being for issuance of interrogatories, and before delving into its depth, it suffices to state the principles underlying interrogatories as extracted from Mulla on Civil Procedure 17th Edition, pp. 632-635. 1. Interrogatories are administered to maintain a party's case or to destroy the adversary's case. 2. That a party is entitled to know the case he is facing. Interrogatories are thus issued to support that. It also saves the expense of summoning witnesses parallel with shortening litigation. 3. However, such power should be exercised cautiously to avoid being abused by a party. 4. The interrogatories should be confined to the facts in issue. 5. The party issuing interrogatories is not entitled to know facts that constitute exclusive evidence of the adversary's case because if that is allowed, she may tamper with opponent's witness, and to manufacture evidence in contradiction and shape his case to defeat justice. 6. Interrogatories is a means to get admission from the recipient/respondent. 7. Interrogatories cannot be refused simply because a party has other means of proving the fact in issue. 8. When the Court is of the view that the interrogatories are relevant it should ask the defendant to answer them on affidavit and consider which of the interrogatories the defendant should 2 answer. If objection is raised about irrelevancy or other issue of the interrogatories the same may also be decided by the court at that stage. 9. Every case: (1) facts which constitute a party's case, that is the facts that discloses the nature of a party's case; (2) facts by which a party's case is to be proved, i.e. the evidence of the case. Both sets may be amenable to interrogatories. However, a party is not allowed to administer interrogatories to ascertain the evidence by which a party will prove the two sets of facts. Despite the above, interrogatories may not be allowed in the following: a) If the interrogatories are used to obtaining discovery of facts which constitute exclusively evidence of the adversary's case. See Benbow v Low (1880) 16 CD 93. See Moto Matiko Mabanga v Ophir Energy PLC and Two Others [2016[T.L.R. 532 b) If interrogatories are in respect of any confidential communications between opponent and his or her legal advisors. c) If interrogatories involve disclosure injurious to public interest. The parties to the application were under legal representation. Whereas Mr Tumaini Shija represented the applicant, Mkama M. Kalebu appeared for the Respondent. The application was heard by way of written submissions. 3 The Applicant counsel began his submission by abandoning interrogatories number 1,2,3,6 and interrogatory number 13 for being a repetition of interrogatory number 12. Having abandoned the said interrogatories, Mr. Shija submitted that the remaining interrogatories i.e. 4,5,7,8,9,10,11,12,14,15 and 16 are related to the transaction giving rise to Commercial Case No. 134 of 2023 and do not cause nor create offence against morality or law. In considering whether the interrogatories are related to the transaction giving rise to Commercial Case No. 134 of 2023, he invited the honourable Court to examine the contents of paragraphs 8, 10, 11,12, 15,16, 17,18 and 21 of the Applicant's Plaint and paragraphs 10, 12, 13, 14, 15, 17, 18, 19, 20 and 22 of the Respondent's Written Statement of Defence. He supported his submission by referring to Order XI Rule 1 of the Civil Procedure Code [Cap 33 R.E. 2019] giving the Court discretion to grant leave to deliver interrogatories where it considers necessary "...either for disposing fairly of the suit or for saving costs" [emphasis added]. It was the Applicant's counsel submission that the granting of leave in this application will save the purposes of disposing Commercial Case No. 134 of 2023 fairly. The learned counsel for the Applicant then turned to the Respondent's counter affidavit against the present Application. He submitted that the only reasons against the Application can be found in paragraph 14 of that counter affidavit where the Respondent claims: i. That the information sought are irrelevant to any matters in Question in the suit against the respondent ii. The intended interrogatories by the applicant are scandalous. 4 iii. The matters inquired into are not sufficiently material at this stage of the suit. To determine the relevancy of the information sought by the interrogatories, Mr. Shija invited the Court to examine the Plaint and the Written Statement of Defence. He added to this point that they have shown in the submissions above that the interrogatories for which leave is sought are relevant to the matters in question against the Respondent in Commercial Case No. 134 of 2023. He clarified that if by "matters in question in the suit", the Respondent meant the issues framed in Commercial Case No. 134 of 2023, Order XIV Rule 5 of the Civil Procedure Code Cap 33, as amended, gives discretion to the Court at any time before the passing a decree to amend the issues or frame additional issues necessary to determine the matters in controversy between the parties. It was Mr. Shija's view that the Court is therefore not bound by the framed issues to the extent of denying the application to deliver interrogatories as long as the same are relevant to the matters in controversy between the Applicant and the Respondent. He further wondered as to the Respondent protest against as she does not provide facts as to how the interrogatories are scandalous or the stage of the suit at which the interrogatories shall become sufficiently material. He referred to paragraph 14 of the counter affidavit of Francis Ndowo, in setting out three (3) reasons: i. Irrelevance of the information sought to any matter in question in the suit against the respondent. ii. Scandalous of the intended interrogatory and 5 iii. The matter inquired into is not sufficiently material at this suit stage. Regarding points (i) and (ii) above, the Court is of the view that relevancy or irrelevancy of interrogatories depend on the facts in issue. Since not all interrogatories in this case constitute the Respondent's exclusive evidence nor are they scandalous and they are not confidential communication between the Respondent and her legal advisors, they should be allowed and be answered as discussed below. In respect of point (iii) that the matter inquired into is not sufficiently material at this stage of the suit. It is my view that the Respondent seeks to convince the court that the interrogatories sought to be delivered are unnecessary. If they are, then by virtue of Aggarawal v Official Receiver (1967) EA 585; and Bin Fijaa Industries Limited v Tanzania Electric Supply Company Limited, Commercial Case No. 8 of 2007 HCCD at DSM, the court may refuse leave for their delivery. The Respondent's counsel submitted that the essence of discovery by interrogatories is to save time and costs of the parties by shortening the procedure in leading their respective evidence. However, in spirit of Order XI Rule 1 of the CPC, interrogatories must confine to matters in question in the suit and that interrogatories which are in the nature of cross examination such as questions put only to test credibility of the party interrogated will not be allowed. I have looked at the provision cited and found that is not what the law says. The purpose of interrogatories is to build a party's case or destroy the opponent's case with limited exceptions stated herein above. Mr. Kalebu submitted that the applicant while filing the application 6 has attached interrogatories proposed to be delivered to the Respondent with a list of 16 interrogatories. Out of 16 interrogatories, the counsel for the Applicant in the submission has prayed to abandon interrogatories number 1, 2, 3, 6 and 13 thus leaving 11 interrogations. It is my prayer to this Honorable court to examine those interrogatories to find out if they really meet the rule of fair trial. But I have observed that the learned counsel for Respondent does not explain what he meant by rule of fair trial in as far as interrogatories sought to be delivered are concerned. The learned counsel for the Respondent went on submitting that in the main suit between the parties i.e. Commercial case no. 134 of 2023, this court on 12/03/2024 in consultation with parties framed two issues which is drawn based on the pleadings and the evidence. The issues are: 1. Whether there was a breach of the terms of the Letter of Credit and UPC 600? 2. If the above issue is answered in affirmative, what reliefs are the parties entitled to? It was his view, which I subscribe to, that the court is required to deliver its judgment out of the framed issues. In that regard, any facts and information should be only that are relevant to the framed issues. In Benjamin Mungo v Sisi Auction Mart & General Brokers, Land Appeal No. 01 OF 2022, HC at Mwanza (TanzLII) it was held that, "It is the issue which gives the court mandate to direct the parties to confine their evidence on the issues framed and to focus on the relevant matters which may determine the rights and liabilities of the parties. Thus, 7 the issues are very important as it is the backbone of the suit." In emphasizing the vitality of issues in civil suit, the Court of Appeal in Barclays Bank Tanzania Limited v Sharaf Shipping Agency (T) Limited and Habib African Bank Limited and Habib African bank limited v Sharaf Shipping Agency (T) Limited and Barclays Bank Tanzania Limited, Consolidated Civil Appeals No 117/16 of2018 and 199 of2019, CAT at Dares Salaam, a decision which is also cited in Benjamin Mungo' case (supra) the Court held that: "Framing of issues is a necessary step in resolution of civil disputes because it defines and narrows down the scope of the contention and thereby making the trial more focused and short-lived." Mr. Kalebu correctly submitted that the above framed issues will lead us to the end of this trial. He raised questions whether the proposed interrogatories confirm to the framed issues, whether it is the right time to answer them, and whether they cannot be answered during cross examination. In my view these questions cannot be used to deny the Applicant an opportunity to deliver the interrogatories. In fact, if they answered, they would not be raised during cross examination and, hence shortening the trial. The Respondent's counsel submitted that he has gone through all the contents of the Plaint and the Written Statement of Defense including the paragraphs that the learned counsel for Applicant has mentioned in Commercial Case No. 134 of 2023. In his view, some of the interrogatories have nothing to do with the facts, meaning that they do not go to answer our issues. Mr. Kalebu suggests that the rest that 8 are related to the defence case, the answers may be extracted during cross examination. Indeed, those are the suggestions by the Respondent. I do not find the objection raised against the interrogatories to have merit. Nevertheless, it is my finding that interrogatory 4 is about evidence hence cannot be delivered to the Respondent. It constitutes exclusive evidence of the Respondent/Defendant. Besides that, interrogatories 5 and 7 should be delivered and answered. They will shorten the trial. As for interrogatory No. 8, posing a question, what is the role of the operator KKATTO identified on the document CRDB-1, in the court's view it is unclear whether the answer sought is confidential communication between the Respondent and her legal advisors. The Respondent has not answered this question. Moreover, I do not think the said operator's role is exclusive evidence of the Respondent. I would add here that even if the Applicant can cross examine the witness and get answers the law does not bar him from delivering the interrogatories. The purpose of interrogatories as held in Bin Fijaa's case (supra) is to dispose the case fairly or more expediently. Therefore, interrogatory 8 should be answered. Respectfully, Mulla on the Code of Civil Procedure emphasized that interrogatories may be perfectly relevant to a suit but if it is premature, it will not be allowed. That is also the position in Fennessy v. Clark (1888) 37 C.D. 184. But that case is irrelevant as it involved the plaintiff who delivered interrogatories on the number of damages. These were held to be premature as it was not yet decided whether the plaintiff was entitled to any damages at all. In the case at hand there is no interrogatory on damages issued. 9 As for interrogatory 9, I find it to be relevant despite the Respondent's complaint that it is vague, ambiguous, or unintelligible because it does not specify the details of the swift advice and the time period during which the swift advice was sent. Furthermore, the Respondent submitted that this interrogatory is not specific about which transaction the bank received swift advice of complying presentation. The Court is of the view that the interrogatory relates to the case at hand. Hence, it is not ambiguous or vague. Further observation and according to the Respondent the interrogatories 10 and 11 have been directed to Diana Mhenga who is a witness and has already filed her witness statement in court. But it is my view that there is no law prohibiting issuing of interrogatories to the Respondent that related to a witness. Therefore, Mr. Kalebu might have misread Mulla on Civil Procedure. He has not even cited the actual page number or case law to that effect. In my considered view, if the interrogatories are answered, then the questions cannot be repeated during cross examination. In so doing time for litigation is shortened. Regarding interrogatories 12, unless the Respondent could have stated that the answer to that interrogatory constitutes her exclusive evidence there is nothing irrelevant or scandalous. It should therefore be delivered and be answered. Interrogatory 14 on features of trade financing found on the Respondent web page is rejected for being vague and overbroad. It is unclear how that is directly linked to the facts in issue. io Lastly, interrogatories 15 and 16, these are relevant and should be answered. They will shorten the time for the trial. The Respondent has not told the court if at all the answer will constitute her exclusive evidence. She has failed to explain whether the said interrogatories are unrelated to the facts in issue. Save for the interrogatories rejected, the rest shall be delivered to the Respondent and shall be answered within 14 days from the date of this ruling. Order accordingly. DATED-^tDAR ES SALAAM this 10th Day of May 2024. U. J >A GATHO JUDGE 10/05/2024 Court: Ruling delivered today, this 10th May 2024 in the presence of Tumaini Shija, Advocate for the Applicant also holding brief of Mkama Magoti Kalebu, Advocate for the Respondent. GATHO JUDGE 10/05/2024 ii