HIA INSURANCE AGENCY LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 16435 OF 2024 (Arising from Civil Case Number 27825 of 2023 before Hon. Oyansobera, J) HIA INSURANCE AGENCY LTD APPLICANT VERSUS ASSEMBLE INSURANCE TANZANIA LTD RESPONDENT RULING 4th Sept. & 16th October 2024 DYANSOBERA, l:. The applicant has preferred the instant application under Order XI Rule 10 of Civil Procedure Code Act, [Cap 33 R.E 2019], (hereinafter referred to as the CPC) seeking the following relief, namely: 1. This court be pleased to issue an order against the respondent to make a discovery of the following documents/ a. Bank statement in the name of assemble insurance Tanzania limited formally known as MR Insurance (T) Ltd with account Number 400703019 maintained by City Bank (T) Ltd for period from 1st October 2022 to July 2024 or until date this court deliveres. 1 b. Contract with reference number SGE50017D0043 and its delivery order number (Award ID) 19GE5021F0497 for the period between 27/9/2021 to 26/9/2022 and award ID No. 19GE5022F0683 for the period between 27/9/2022 to 25/3/2023 (extension). c. Interim contract award no. 19GE5023D0010 and its award ID 19GE5023F0233 for the period between 26/3/2023 to 17/12/2023. d. Interim contract award No. 19GE5024D005 with award ID 19GE5024F0091 for the period between 18/12/2023 to 17/12/2024. This application is supported by an affidavit of Emmanuel Mbuga learned advocate. On the other hand, the respondent filed counter affidavit sworn by Mr. Arthur Mndolwa, Principal Officer of the respondent to contest the application. This application was disposed of by way of written submissions. The applicant was represented by Mr. Mbuga Emmanuel learned advocate while the respondent was represented by Ms. Blandina Harrieth Kihampa learned advocate. I commend learned trained minds for the parties for industrious submissions and the authorities referred. In this ruling I will not reproduce everything as argued by the parties not out of disrespect or discourtesy but in order to capture only substantive arguments. In his submission in support of the application, the learned advocate for the applicant urged the court to grant the relief sought in order to ensure in arriving at a justice decision, then each party will be availed with fair and right of hearing, after being supplied with all necessary documents which 2 are relevant to the issue under consideration, which this trial court is called to determined. He submitted that, agreement with references number SGES0017D0043 entered between US Embassy and the Respondent for the purposes of provision of health insurance cover for local staffs was secured by the Applicant herein. It was agreement between the parties herein that, consideration for services offered, the Applicant was to be paid commissions on monthly bases out of the premium remitted by US Embassy in the Respondent's account described in the chamber summons. He argued that, among other terms and conditions provided in the above agreement secured by Applicant, provided avenue for extension of provision of health services by the Respondent after completion of contractual period without subjecting to tendering process. (See page 19 item 12 of the annexure HIA -2 in the Plaint). It is the Applicant's case that, further extension was provided by Embassy for provision of services without being subjected to new tendering process and now Respondent refuses to pay the Applicant's agreeable commission based on the reason that, no agreeable payment on the new contract as the Applicant did not participate to secure the same. He argued that, these contracts which is the subject of this discovery application are the documents which need to be presented in this court for the purpose of being examined by this court to see whether the same are new contract as the Respondent alleged or not. All the said agreements are in custodian of the Respondent or having means to secure the same. The 3 requested documents are cornerstone of the case presented in this court and therefore are most relevant for inspection, not only by the Applicant also by this court so that the truth can be seen. To buttress his argument, the learned advocate referred the decision of this curt in the case of Mek One General Tanzania Limited vs Vivo Energy Tanzania Limited (Mise. Commercial Application No. 121 of 2023) [2023] TZHCComD 382 (28 November 2023) and Gold Coin Finance Co. Ltd & Another vs Lyander Sam Macha (Civil Appeal No. 233 of 2016) [2018] TZHC 2310 (13 February 2018), the court said very clear that, basis of discoveries of documents application should be based on the principle of "Relevance." He argued that, there is no hard and fast rule to determined relevance of the documents sought by the applicant for discovery, rather court should look into nature of the Applicant's claim in the Plaint/claim. He referred the case of Alpha Risk Management System vs National Microfinance Bank PLC (Mise. Civil Application No. 27179 of 2023) [2024] TZHC 1808 (29 April 2024), the court held as follows, ''after the court make reference with the claim pleaded in the plaint and seen the important of the Bank statement, then the court order the same should be produced evidence as the said documents are necessary for proper determination of issue in dispute between the parties. /I' He also referred the case of ABN Amro Bank vrs Kenya Pipeline Company Ltd, (2019) eKLR, the court held as follows, 4 lithe court may order discovery on application being made where the documents are related to the suit before it and the purpose of discovery is to ensure that all documents or information necessary for just determination of the suit are made available to all parties as to the court" He argued that, no dispute that the basis of the applicant's claim which the respondent is disputing is the commissions emanating from extension agreements entered between October 2022 and December 2024. He pointed out that, the said contracts are what the applicant moved this court for issuances of order of discovery, as stated in the chambers summons i.e. item (i) b, c and d are documents in the respondent's custody and are most relevant for determination of the pending suit. He submitted that, there is no dispute the above agreements sought were entered between the respondent and the US Embassy in Tanzania, with exclusion of the applicant as the part to it. He argued that, commissions were paid to the applicant for obvious reason that, the same was secured through applicant's effort. He argued that, the issue of applicant being part to it, has no relevance at this juncture rather only agreements were supposed to be inspected and see who is correct between Respondent or Applicant. In reply, the learned advocate for the respondent argued that in terms of Order XI Rule 10 of the (PC, an application such as the present one may be rejected if the court finds that it is not necessary or not necessary at the time or where the court is of the opinion that it is not relevant in the fair 5 disposal of the suit saving costs. She argued that, the application may be refused if discovery of documents or certain class of documents may be injurious to the public interest. She argued that, this application has been filed pre-maturely before the court drawing up issues for determination that is final pre-trial conference. She argued that, at this stage it is impossible to decide whether the documents in respect of which an order for discovery is sought will be relevant in solving issue in controversy. She took an example with the bank statement running from 1/10/2022 to July 2024 in which the applicant alleged that such statement will enable the applicant to compute its monthly commission from premium paid to the respondent through the said account. She argued that, at this stage there is no any issue drawn by the court regarding the computation of the commissions hence discovery of the bank statement at this stage is premature. She submitted that the applicant has not shown the relevancy of the documents listed in the application in the disposition of the suit. She submitted that demonstration of the documents is a prerequisite to obtaining an order for discovery of documents. She maintained that, if relevancy cannot be established at this stage this court should not grant the order. She submitted further that, the documents sought have been pleaded by the applicant in the plaint as seen on paragraph 15 and 20. She argued that this signifies that the applicant is already aware of the contents of the documents and as such there is nothing further to discover. To buttress her 6 argument, she referred Mulla the Code of Civil Procedure 18th Edition at page 2054. She submitted that, the purpose of discovery of evidence is to provide adverse part with the relevant document before the trial commences so that they are not taken by surprise. She argued that since the applicant has pleaded the documents in its plaint, then it has all relevant documents and will not be taken by surprise. To buttress her argument, she referred the case of ABN Amro Bank N. V vs Kenya Pipeline Company Limited (supra). She argued that the bank statements are confidential and they contained confidential information on its business and the information of other parties not parties to the proceedings. She argued that since third party information can be found in the statement, the disclosure would be in breach of confidence. She however argued that in the case of ABN Amro Bank (supra) confidential alone is not a reason for denial of discovery but since she has pointed out that the application is premature and the bank statements are not relevant coupled with the issue of confidentiality this court should refuse to issue an order for discovery. She therefore urged the court to dismiss the application with costs. Having gone through the parties' rival submissions and the application before me, the sole issue for my determination is whether the application has merits. I will start my deliberation with the argument by the learned advocate for the respondent, in which she pointed out that, this application has been 7 filed pre-maturely in this court since final pre-trial conference has not been conducted therefore issues have not been framed. She took an example of the bank statement in which the applicant alleged that such statement will enable the computation of the premium payable to the applicant, but there is no issue framed regarding the premium payable to the applicant. With respect, I am of the settled view that, like interrogatory an application for discovery is among the preliminary issues which must be dealt with before the matter goes to 1st pre-trial conference. That is why at 1st pre-trial conference parties bound themselves that pleadings are complete and there is no pending application. My position if further fortified by the consequences for noncompliance with discovery as stipulated under Order XI Rule 18 of the CPC, that if the defaulting party is the plaintiff the court has to dismiss the suit and if the defaulting party is the defendant, then the defence has to be struck out. Therefore, I find the application is properly before the court. As I have pointed before this application has been preferred under Order XI Rule 10 of the CPC.The said provision reads; 10. Any party mey; without filing anyaffidaviC apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in his possession or power, relating to any matter in question therein and on the hearing of such application the court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at 8 the stage of the suit, or make such order, either generally or limited to certain classes of documents, as mey; in its discretion, be thought fit: Provided that, discovery shall not be ordered when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs: Provided also that, discovery shall not be ordered where there is produced to the court a certificate under the hand of a Minister that, in his opinion, discovery, either generally or in relation to a certain document or a certain class of documents, would be injurious to the public interest The above provision gives two exceptions in which the court may refuse to grant the order for discovery. That is, where the court is of the opinion that, it is not necessary either for disposing fairly of the suit or for saving costs. And where the there is a certificate under the hand of the Minister that in his opinion discovery in relation to certain document or certain class of documents would be injurious to the public interest. In his submission, the applicant alleged that, the referred documents are necessary for fair determination of the matter since the court will be at better position to know the real issues of the dispute between the parties. The applicant maintained that the said documents are in the possessionof the respondent and that they will enable the applicant to compute the commission due to it. The respondent forcefully argued that the documents sought are not relevant and the applicant is not a privy to the said 9 agreement. I have weighed the competing arguments, I am of the settled view that the documents are relevant to the dispute at hand, since the applicant alleged that there are transactions which are being carried out by the respondent in collaboration by the US embassy in total isolation of the applicant. Equally, the amount due to the applicant will be made certain even if there is no issue to the effect. As to the issue of confidentiality as alleged by the learned advocate for the respondent, first there is no certificate under the minister that public interest may be prejudiced upon issuance of order of discovery. With regard to the argument that the bank statement contains information from the third parties that may lead to breach of confidentiality, I find it to lack basis and reject it. In the circumstance, I find the application meritorious and I grant the same. The respondent is ordered to supply the applicant the following documents; a. Bank statement in the name of Assemble Insurance Tanzania Limited formally known as AAR Insurance (T) Ltd with account Number 400703019 maintained by City Bank (T) Ltd for period from 1st October 2022 to July 2024. Where it is practicable the statement be restricted to the transactions between the applicant, respondent and their client (US embassy). b. Contract with reference number SGES0017D0043 and its delivery order number (Award ID) 19GES021F0497 for the period between 10 27/9/2021 to 26/9/2022 and award 10 No. 19GE5022F0683 for the period between 27/9/2022 to 25/3/2023 (extension). c. Interim contract award No. 19GE502300010 and its award 10 19GE5023F0233 for the period between 26/3/2023 to 17/12/2023. d. Interim contract award No. 19GE50240005 with award 10 19GE5024F0091 for the period between 18/12/2023 to 17/12/2024. Such order must be complied with 21 days from the date of this ruling. In the circumstance I will not make an order as to costs. It is so ordered. .P. Dyansobera JUDGE 16.10.2024 This ruling is delivered under my hand and the seal of this Court on this 16th day of October, 2024 in the presence of Ms. Blandina Kihampa, learned counsel for the respondent and holding brief for Mr. Hance Mrindoko, learned advocate for applicant. 11