monex bureau de change ltd vs stanbic bank t ltd another 2010 tzhccomd 19 6 september 2010

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO.87 OF 2007 MONEX BUREAU DE CHANGE LIMITED........................... PLAINTIFF

VERSUS 1. STANBIC BANK (T) LIMITED.............................. 1st DEFENDANT 2. ABDALLAH KALAGHE.......................................... 2nd DEFENDANT Date of last order: 06/07/2010 Date of oral submissions: 06/07/2010 Date of ruling: 06/09/2010

RULING MAKARAMBA, J.: This is a ruling on a preliminary objection, M/s Hamida Sheikh, learned Counsel for the Plaintiff raised orally in Court on the 05/06/2010 under Order XLIII Rule 2 of the Civil Procedure Code, against what she claims to be the defective affidavit containing the answers of the Defendant in reply to the Plaintiff's interrogatories. M/s Hamida Sheikh, learned Counsel for the Plaintiff prayed that the affidavit be struck out and to the extent that Rule 18 of Order XI of the Civil Procedure Code [Cap.33 R.E. 2002] applies to interrogatories, the Plaintiff's suit be allowed to i proceed exparte against the Defendant. M/s Fatuma Karume learned Counsel for the Defendant prayed for leave to enable her prepare reply to the preliminary objection as she had no prior notice of it, which leave this Court granted and set the 06/07/2010 for the oral disposition of the preliminary objection raised by the Plaintiff's Counsel. M/s Hamida Sheikh, learned Counsel for the Plaintiff argued that the affidavit of the Defendant in reply to the Plaintiff's interrogatories filed by the Respondent/Defendant in this Court on the 05th day of December 2008 lacks a date not only on its verification clause but also on the jurat of attestation, contrary to the obtaining law and practice on affidavits, thus rendering it incurably defective and thereby visited by the legal consequences in

that it should be struck out, and the suit to proceed ex parte against the Defendant. The requirement that answers to interrogatories must be by way of affidavit find express provision in Rule 7 of Order XI Rule 7 thus: "Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the court may allow, "(the emphasis is of this Court). M/s Fatma Karume, learned Counsel for the Defendant in reply and armed with the commentaries in Mulla on the Code of Civil Procedure, and other authorities which she later on supplied to this Court, submitted that in the first place, the Plaintiff's Counsel has flouted the procedure for bringing the interrogatories as per Order XI Rule 1 of the Civil Procedure Code [Cap.33 R.E. 2002], which essentially requires leave of the court to be sought first and granted to administer interrogatories. M/s Fatuma 2 Karume submitted further that under Rule 4 of Order XI of the Indian Civil Procedure Code, which is pari materia with Rule 5 of our Civil Procedure Code, interrogatories are directed at a particular person and not generally as is the case presently. Order XI Rule 4 of the Civil Procedure Code [Cap.33 R.E. 2002] which concerns interrogatories relating to corporations stipulates as follows: "Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue

or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly, "(the emphasis is of this Court.) M/s Fatuma Karume further pointed out in her submissions that it is a condition precedent for the requirement under Rule 9 of Order XI of the Civil Procedure Code to be fulfilled first before Rule 18 of Order XI of the Civil Procedure Code comes into play, resulting to the dismissal of a suit/defence. M/s Fatuma Karume submitted further that in any case dismissal of a suit is a thing of last resort by the Court given that there is an opportunity under the law for the rectification of the error by way of amendment. M/s Fatuma Karume submitted further that this Court cannot exercise its jurisdiction to dismiss the suit under Rule 18 of Order XI of the Civil Procedure Code as prayed by the Plaintiff's Counsel as the said provision of the law cannot be invoked until the condition precedent set out under Rule 9 of Order XI has been fulfilled. M/s Fatuma Karume then proceeded in her submissions to give three reasons for her averment on 3 the condition precedent before invocation of Rule 18 of Order XI of the Civil Procedure Code. Firstly, that there is no application ever made by the Plaintiff

under Rule 9 of Order XI of the Civil Procedure Code. Secondly, that this is not a case of willful default by the Defendant but an error curable by simple amendment. Thirdly, that the present circumstances do not show any intransigent on the part of the Defendant, given that the Defendant acted impeccably, and that the error in the affidavit is far beyond the control of the Defendant since it was committed by the Commissioner for Oaths before whom the affidavit was deponed. M/s Fatuma Karume prayed for costs for this application since in her view it was unnecessary. M/s Hamida Sheikh in rejoinder submitted that much as the cited authority in Mulla on the Code of Civil Procedure has a lot of persuasive authority in courts in this country, there are however, essential differences between the Indian Civil Procedure Code and our Civil Procedure Code in so far as the provisions on interrogatories are concerned. M/s Hamida Sheikh submitted further that whereas in India such application is made exparte in this country it is done interpartes unless the Plaintiff applied for leave and the Defendant knew exactly what was required of it and delivered its interrogatories before the hearing of the suit. On the argument by M/s Fatuma Karume on the issue of the requirement in Rule 1 of Order XI of the Civil Procedure Code that there has to be a note at the foot thereof stating which of such

interrogatories each of such persons is required to answer, M/S Hamida Sheikh submitted 4 that this is a matter of discretion but it is not mandatory. As regards Rule 4 of Order XI, M/s Hamida Sheikh pointed out that the said Rule makes reference to "any member of or officer of corporation^', which would have required a special application. M/s Hamida Sheikh submitted further that Rule 1 of Order XI of the Civil Procedure Code talk of only one defendant and the Plaintiff need not apply for leave to name anyone in particular neither is it a requirement of the law. M/s Hamida Sheikh reasoned that if they had required any particular person to answer the interrogatories, it would have been necessary to seek the leave of the Court to lift the veil of the corporation. M/S Hamida Sheikh submitted further they did not specify the person who should answer the interrogatories as they left the choice upon the Defendant, and in any case confidentiality and privilege of information would not have allowed the naming of any specific officer by the Plaintiff. M/s Hamida Sheikh faulted the argument by M/s Fatuma Karume on the precedence of Rule Order XI to Rule 18 by Rule 9 of Order XI, submitting that if the affidavit is defective then Rule 18 of Order XI has to come into play. M/s Hamida Sheikh surmised that it is not a condition precedent that the party delivering interrogatories has to

comply first with Rule 9 of Order XI of the Civil Procedure Code. Amplifying further on this point, M/s Hamida Sheikh reiterated that in this country different from India or UK where the procedure is exparte, there is no avenue for leave since the application is interpartes. M/s Hamida Sheikh elaborated further that the Chamber Application the Plaintiff filed in Court had a list of interrogatories which the Defendant knew when it appeared in Court, and 5 the fact that the Defendant has filed an affidavit albeit a defective one is sufficient proof that it had received the interrogatories. M/s Hamida Sheikh insisted that interrogatories are served on the other party after leave is given only in circumstances where hearing of the leave was exparte and the recipient party has not yet received them as it happens in Britain and India, but not where the procedure is interpartes and interrogatories have already been served on the other party and given chance to determine which questions to answer and which ones to be excluded. M/s Hamida Sheikh responding to a question put to her by this Court on the reach and import of Rule 2 of Order XI of the Civil Procedure Code to the effect that "such interrogatories as the court shall consider necessary either for disposing fairly of the suit or for serving costs," submitted that the order of this Court was for the Defendant to answer all the

interrogatories. As to the submission of M/s Fatuma Karume blaming the omission of date in the affidavit on the Commissioner for Oaths and not the defendant, M/s Sheikh responded that it was the Defendant and not the Commissioner for Oaths who had the responsibility for checking whether the document filed in this Court was properly signed and dated. In my view, the parties in this matter do not disagree at all that the affidavit of the Defendant in reply to the interrogatories by the Plaintiff lacks date not only on its verification clause but also on its jurat of attestation and thus incurably defective. The legal consequence in this country of an incurably defective affidavit is to be struck out. In her reply submissions M/s Fatma Karume, and quite understandably in my view, being oblivious of the legal consequences of an 6 incurably defective affidavit, did not wish to waste her precious time and of this Court by delving on the defectiveness of the affidavit itself. The defect on the affidavit on record in my view is too glaring to call for any meaningful contest of a minded Counsel of the caliber of M/s Fatuma Karume. As correctly submitted by M/s Hamida Sheikh, and with due respect to M/s Fatuma Karume it is unfair to blame the error of omission which lead to the defective affidavit entirely on the Commissioner for Oaths since the Defendant being represented by a firm of

seasoned lawyers with a good practice track record behind them, bore the sole responsibility of ensuring that the affidavit filed in court was free of such glaring errors. The fact of the affidavit being defective uncontested by the Defendant's Counsel as it were would have rendered the incurably defective affidavit amenable to an order of this Court striking it out, such that there would not have been any reason for this Court to delve into the lengthy submissions by Counsel on the law and practice with regard to presentation of interrogatories in India, Britain and in this country. I must however commend the parties' Counsel for their research and industry in making submissions in response to the call by this Court to be assisted on case law on interrogatories. It is for this reason and for purposes of developing further this area of the law that this Court finds it apposite to devote its time and comment on the position of the law and practice obtaining in this country with respect to presentation of interrogatories. In this country, the procedure for presenting interrogatories is a matter of law, which finds expression in Order XI of the Civil Procedure Code [Cap.33 R.E. 2002]. It is all too common a knowledge that the civil 7 practice law obtaining in this country was received by way of India, which makes Indian case law authorities and commentaries highly persuasive

in our courts, contrary to M/s Hamida Sheikh strong believe to the contrary. M/s Fatuma Karume, quite tactically in my view, in her submissions she elected to take issue with the faulty procedure she claims the Plaintiff's Counsel has assumed in bringing the interrogatories in the first place, which has given rise to the answers of the Defendants contained in the affidavit, which now the Plaintiff's Counsel has attacked for being defective. The kick off point for M/s Fatuma Karume argument is that Rule 9 of Order XI has to be complied with first before Rule 18 of Order XI comes into play. Rule 9 of Order XI of the Civil Procedure Code upon which M/s Fatuma Karume has premised arguments her that it has to be complied with first is couched in the following terms: "Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the court for an order requiring him to answer, or to answer further, as the case may be and an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the court may direct: Provided that no order shall be made requiring a person to answer or answer further where any enactment or rule of law authorises or requires the refusal to answer any question on the ground that the answering of the question would be injurious to the public interest, "(the emphasis

is of this Court). On the other hand Rule 18 of Order XI on which M/s Hamida Sheikh has premised her argument to pray that the defective affidavit be struck out and the Plaintiff be allowed to proceed exparte against the Defendant 8 is concerned with non-compliance with order for discovery and is couched as follows: "Where any party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and if a defendant, to haye his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect and an order may be made accordingly, "(the emphasis is of this Court). In my view, the two provisions of the law cited above deal with two different scenarios and the consequences which flow from not abiding with the said provisions differ quite markedly. Whereas Rule 9 of Order XI deals with a situation where any person interrogated omits to answer or answers insufficiently, Rule 18 of Order XI concerns a situation where any party fails to comply with any order to answer interrogatories. Rule 9 of Order XI in my view presupposes that there is a person interrogated who has omitted to answer or the answers have been found

wanting, the consequence of which is for the interrogating party to apply to the court for an order requiring the person to answer or to answer further. Rule 18 of Order XI on the other hand in my view envisages a situation where there is total failure by a party to comply with an order to answer interrogatories, the consequences of which is if a plaintiff, be liable to have his suit dismissed for want of prosecution and if a defendant to have his defence, if any, struck out, and to be placed in the same position as if he had not defended. The question this Court has to 9 struggle with in respect of Rule 9 of Order XI of the Civil Procedure Code is whether the Defendant has ''omitted' to answer or has answered the interrogatories presented by the Plaintiff insufficiently. If the answer to this question is in the affirmative, then the Plaintiff may apply to the court for an order requiring the Defendant to answer, or to answer further, and this can be done either by affidavit or viva voce, as the court may direct. Under Rule 9 Order XI, the court has to determine the matter in terms of the party interrogated "omitting' to answer or answering the interrogatories insufficiently. In my view, given the consequences of "omitting' to answer or insufficiency in the answers to the interrogatories, which is for the interrogating party to apply to the court for an order requiring

the interrogated party to answer or to answer further, this cannot bring into play the fatal consequences envisaged under Rule 18 of Order XI, which is dismissal of the Plaintiff's case or striking out the Defendant defence as the case may be. In my view, the provisions of Rule 9 of Order XI are called to question only where the party interrogated has complied with an order to answer the interrogatories but the answers are found wanting. The provisions of Rule 18 of Order XI and its attendant harsh consequences are in my view brought to bear only where a party has failed to comply with any order to answer interrogatories, suggesting that there are no interrogatories whatsoever filed in court as ordered, different from Rule 9 Order XI where interrogatories filed are found wanting. In such situation the court is therefore called to invoke the harsh consequences envisaged under the Rule which is dismissal of the suit if the defaulting party is the io Plaintiff, or striking out the defence if the defaulter is Defendant. In my view, and with due respect to the Defendant's Counsel, there is nothing in the aforementioned provisions of the law suggesting even remotely, that before Rule 18 of Order XI of the Civil Procedure Code comes into play, Rule 9 of Order XI of the Civil Procedure Code has to take precedence. Given that Rule 9 of Order XI of the Civil Procedure Code deals with

a situation quite different from that which is covered under Rule 18 of Order XI of the Civil Procedure Code, and further that the legal consequences flowing from the two provisions are markedly different, Rule 9 of Order XI of the Civil Procedure Code cannot to be said to be a condition precedent for the application of Rule 18 of Order XI of the Civil Procedure Code. In terms of Rule 18 of Order XI of the Civil Procedure Code, it has to be established that the party answering the interrogatories has failed to comply with an order of the court to answer the interrogatories. In the present case, such situation does not present itself since the Defendant has filed its answers to the interrogatories albeit vide a defective affidavit, which the Plaintiff has successfully shot down without any protest from the Defendant's Counsel for being incurably defective due to lack of a date not only on its verification clause but also on the jurat of attestation. The Plaintiff's Counsel has prayed to this Court to strike out the defective affidavit with the attendant consequences under Rule 18 of Order XI of the Civil Procedure Code which is to strike out the defence and the Defendants to be placed in the same position as if they had not defended the suit. The logical reasoning of the Plaintiff's Counsel seems to me to be that in the event that this Court eventually determines that indeed the

affidavit is n incurably defective for want of date on the verification clause and the jurat of attestation and thus strikes it out, this will be tantamount to having no answers by the Defendant to the interrogatories presented by the Plaintiff, and therefore the Defendant will be taken as if it has failed to comply with the order of this Court to answer the interrogatories, which will attract the harsh legal consequences under Rule 18 of Order XI, with the result that the Defendant's defence is to be struck out and the Plaintiff to proceed exparte. Logically, M/s Hamida Sheikh's reasoning which stems from Rule 18 of Order XI of the Civil Procedure Code, is that a Defendant's defence based on a defective affidavit struck out amounts to failure by the Defendant to comply with an order to answer interrogatories and thus the Defendant is to be placed in the same position as if it has not defended the suit, which would entitle the Plaintiff to an application to the court for an order to be allowed to proceed exparte, and this Court accordingly to make such order as required under the law. Let me address the other attack fronted by M/s Fatuma Karume on the preliminary objection raised by the Plaintiff's Counsel that the affidavit by the Defendant bearing the answers to the interrogatories by the Plaintiff is incurably defective. In the course of her reply submissions, M/s

Fatuma Karume advanced arguments essentially faulting the procedure adopted by the Plaintiff's Counsel in presenting the interrogatories. The reasoning of M/s Fatuma Karume on this front seems to me to be that since the Plaintiff's Counsel faulted on the procedure for presenting the interrogatories as stipulated under Rule 1 and 2 of Order XI of the Civil Procedure Code in the first place, then it should then be taken as if there 12 are no interrogatories as such presented to this Court or at all by the Plaintiff for which the Defendant would be entitled to provide any answers since the Defendant was under no obligation to answer to interrogatories presented through a faulty mandatory procedure. M/s Fatuma Karume submitted further that the Defendant by answering the interrogatories albeit presented through a faulty procedure were only complying with the order of this Court failure of which could have resulted into the undesired consequences of the case against the Defendant being proceeded with ex parte. M/s Fatuma Karume amplifying further on the aspect of the faulty procedure adopted by the Plaintiff's Counsel in presenting the interrogatories, sought refuge under Rule 1 and Rule 2 of Order XI of the Civil Procedure Code respectively, as well as in a number of case law and the commentaries by Mulla on the Indian Code of Civil Procedure; some excerpts from Halsbury's Laws of

England, Third Edition, Vol. 12, pp.62-82. M/s Fatuma Karume cited the cases of SEBASTIAN R. D'SOUZA AND OTHERS V. CHARLES CLEMENTE FRRAO AND OTHERS [1959] E.A 1000; AGGARAWAL V. OFFICIAL RECEIVER [1967] E.A 585 and OMAR V. GORDHANBHIA AND ANOTHER [1974] E.A 518, copies of which she has availed to this Court for which I am very grateful as it they have greatly assisted me in the course of deliberating on and preparing this ruling. Let me first lay out the relevant provisions of the Rule 1 and 2 of Order XI of the Civil Procedure Code in so far as they concern the procedure for presentation of interrogatories, which stipulate as follows: 13 "Rule 1. In any suit the plaintiff or defendant, bv leave of the court, may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose: Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross- examination of a witness." "Rule 2. On an application for leave to deliver

interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court and in deciding upon such application, the court shall take into account any offer which may be made by the party sought to be interrogated to deliver particulars, or to make admission, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the court shall consider necessary either for disposing fairly of the suit or for saving costs. "(The emphasis is of this Court). Emanating from the above quoted provisions, much as the application for leave to present interrogatories is discretionary, in my view, the procedure for presenting them is mandatory. As per Rule 1 of Order XI of the Civil Procedure Code, and with due respect to M/s Hamida Sheikh, it is mandatory that the interrogatories when delivered have to bear "a note at the foot stating which of such interrogatories each of such persons is required to answef, unless they concern the two situations expressly stipulated in the proviso to Rule 1 of Order XI of the Civil Procedure Code. Furthermore, as per Rule 2 of Order XI of the Civil 14 Procedure Code, on an application for leave to deliver interrogatories, which is made under Rule 1 of Order XI, the particular interrogatories proposed to be delivered have to be submitted to

the court. The law provides very clearly that leave is to be given as "to such only of the interrogatories submitted as the court considers necessary either for disposing fairly of the suit or for saving costs." As correctly submitted by M/s Fatuma Karume according to Rule 2 of Order XI of the Civil Procedure Code, it is the court which has to determine which of the interrogatories it considers necessary either for disposing fairly of the suit, among others, and not the party presenting the interrogatories who is to make such determination. In the present case, the Plaintiff's Counsel applied for leave to present the interrogatories together with the interrogatories attached. In my view, and with due respect to M/s Fatuma Karume, there is nothing however, under Rule 1 or 2 of Order XI of the Civil Procedure Code suggesting that leave must first be sought before presenting the interrogatories. In my considered view, Rule 1 and 2 of Order XI of the Civil Procedure Code when read together are to the effect that the interrogatories have to accompany the application for leave, more so since the idea is to save time and costs by shortening the procedure for presenting the interrogatories. As I intimated earlier, the law is insistent that leave is to be given as "to such only of the interrogatories submitted as the court consider necessary either for disposing fairly of the suit or

for saving costs." The purpose is to avoid irrelevant matters from being dragged into the suit which may end up delaying further the matter contrary to the idea inherent in interrogatories which is 15 saving of time and costs. It is imperative therefore as required by law that the interrogatories when delivered to have a note at the foot stating which of such interrogatories each of such persons is required to answer. M/s Hamida Sheikh has defended her action of not providing the names of the persons and the interrogatories each of such persons would be required to answer by resorting to Rule 4 of Order XI that the said Rule which makes reference to "any member of or officer of corporation!', would have required of the Plaintiff making a special application to this Court for lifting the corporate veil to have the names of such persons revealed. M/s Hamida Sheikh insisted that the practice in this country is that the application for presenting interrogatories is made interpartes different from that obtaining in India or Britain, where the order for presenting interrogatories is made ex parte by the court, thus entitling the Court to determine whether or not the interogatories as presented are appropriate, and thus the need for the note on the foot of the interrogatories stating which of such interrogatories each of such persons is required to answer. In any event, and with due

respect to M/s Hamida Sheikh, the law in this country is as stipulated in black and white under Rule 1 and 2 of Order XI of the Civil Procedure Code, and as such there is no need in my view to resort to practice obtaining elsewhere in order to show the contrast. I am at one with the Plaintiff's Counsel that given that the 1st Defendant is an incorporated body, and considering that its veil has not been lifted, which would have required an application to that effect, it was extremely difficult for the Plaintiff to be able to determine the particular persons in the Defendant's bank who would have the task of answering the 16 interrogatories. The Plaintiff left it upon the Defendant to determine such person(s) with the obligation to provide the answers to the interrogatories, as indeed eventually was the case presently. In my view given the circumstances of this case it cannot be said that the Plaintiff has failed to comply with the mandatory procedural requirements for presenting interrogatories as stipulated under Rule 1 and 2 of Order XI of the Civil Procedure Code. In the opinion of M/s Fatuma Karume if the Plaintiff has faulted on the mandatory procedure for presenting the interrogatories, then the answers by the Defendant to the interrogatories cannot be faulted since they will be deemed to have been based on a matter which was faulty ab initio. In other words the Plaintiff

having faulted on the procedure for presenting the interrogatories cannot now be heard to complain against the Defendant for preferring their answers on a defective affidavit, since the defective affidavit could not have existed if the Plaintiff had not presented interrogatories albeit by faulting on the mandatory procedure for their presentation. This argument, with due respect to the Defendant's Counsel is a chicken and egg one which does not advance her case any far. The bottom line is, and as correctly submitted by M/s Hamida Sheikh, the Defendant while aware of the faulty procedure adopted by the Plaintiff in presenting the interrogatories, if there is any fault, did not raise any objection to it but elected to file their answers albeit in a defective affidavit, and as such the Defendant cannot now be heard to fault the procedure for presenting the interrogatories, now that their affidavit has been found to be defective. In any event, M/s Hamida Sheikh further 17 submitted, and correctly so in my view, the mode of presenting the interrogatories being only a matter of procedure, which is considered handmaiden of justice, should not be used by the Defendant as a sword to defeat the justices in this case. The reasoning of M/s Hamida Sheikh in my view, logically would lead to the conclusion that since in the eyes of the law on affidavits the affidavit in answer to the

interrogatories has been found to be incurably defective, the legal consequences will follow that it should be struck out since the error goes to the root of the matter, and should therefore be taken to be as if no answers have been given by the Defendants to the interrogatories, and thus placing the defendant in the same position as if it had not defended the suitwfth the result that the suit is to proceed exparte against the Defendant. As I have determined earlier in this ruling and for the reasons outlined above, the affidavit in answer to the interrogatories is incurably defective and the legal consequences which flows therefrom is for this Court to order that it be struck out. The affidavit of the Defendant containing the answers to the interrogatories having been found to be incurably defective and thereby struck out, then the Defendant is to be visited with the legal consequences flowing from Order XI Rule 18, in that the defendant is placed in the same position as if it had not defended the suit with the result that the suit is to proceed exparte against the defendant. Much as correctly argued by M/s Fatuma Karume that the main object of Rule 18 of Order XI is not to punish the defaulting party particularly where such fault is not willful, I am constrained in this regard 18 having found the affidavit incurably defective. The object of that Rule is to prevent the undue

protraction of proceedings and to assist the other party to the proceedings in getting them concluded expeditiously thus saving time and costs. The issue of willful disregard to comply with any order to answer interrogatories under Rule 18 of Order XI does not therefore arise in the present case where the order of this Court to answer the interrogatories has been complied save that the affidavit containing the answers to the interrogatories has been found to be incurably defective. The case of EASTERN RADIO SERVICE V. TINY TOTS [1967] EA 392 is therefore of little relevance since no willful disregard is present in the case before this Court. In the event this Court is not in a position to resort to section 95 of the Civil Procedure Code to exercise its inherent powers. In that regard the case of SEBASTIAN R, D'SOUZA AND OTHERS V. CHARLES CLEMENTE FRRAO AND OTHERS [1959] E.A 1000 is inapplicable as this is not a case where this Court can order the issuing of a fresh set of interrogatories by the Plaintiff to the Defendant. In the event and for the foregoing reasons, the affidavit is hereby struck out with costs and the defendant is placed in the same position as if it had not defended the suit with the result that the suit is to proceed exparte against the defendant. Order accordingly ordered. R.V. MAKARAMBA

JUDGE 06/09/2010 19 Ruling delivered in Chambers this 23rd day of August 2010 in the presence of M/s Fatuma Karume, learned Counsel for the Defendant and in the absence of the Plaintiff.

JUDGE 06/09/2010 Words count:5,591 20