Dusec Company Limited vs Camel Concretes (T) Limited (Civil Case No. 32487 of 2025) [2026] TZHC 3041 (10 June 2026)

. IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL CASE NO . 32487 OF 2025 DUSEC COMPANY LIMITED………………………………PLAINTIFF VERSUS CAMEL CONCRETES (T) LIMITED…………………. DEFENDANT RULING MKWIZU, J The matter came before the Court for the First Pre - Trial Conference on 4th June 2026. During the proceedings, learned counsel for the plaintiff, Mr. Themistocles Rwegasira, orally applied for leave to administer interrogatories pursuant to Order XI of the Civil Procedure Code, Cap. 33 R.E. 2019. Counsel submitted that certain matters in dispute required clarification through discovery by way of interrogatories and urged the Court to grant leave accordingly. The application was not opposed in substance. However, learned counsel for the defendant, Mr. Erick Akaro, challenged the procedure adopted by the plaintiff. According to him, although the law permits discovery by interrogatories, leave to do so must first be sought by way of a formal Chamber Summons supported by an affidavit setting out the proposed interrogatories. Counsel referred the Court to the Approved Forms under Government Notice No. 388 of 2017 and the commentary in Mulla on the Civil Procedure Code, arguing that only after considering such an application can the Court properly grant leave. In reply, Mr. Rwegasira submitted that Order XI Rule 1 merely requires leave of the Court and does not prescribe any particular mode by which such leave should be sought. He argued that where the legislature intended a formal application to be made, it exp ressly said so. Since no such requirement appears in Order XI, counsel contended that an oral application is sufficient. I have carefully considered the rival submissions. The issue for determination is whether leave to deliver interrogatories under Order XI of the Civil Procedure Code may be sought orally before the trial court or whether such leave must be sought through a formal Chamber Summons supported by an affidavit. The starting point is Order XI Rule 1 of the Civil Procedure Code which provides: "In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties..." It is true, as correctly argued by Mr. Rwegasira, that the provision does not expressly prescribe the manner in which leave is to be sought. However, the absence of an express procedural prescription does not necessarily imply that leave may be sought in a ny manner whatsoever. Procedural requirements are not always found in the specific provision conferring a right. Often, they are derived from the nature of the relief sought, the structure of the Rules, established practice, and the need to enable the cour t to exercise its discretion judicially. In this matter, t he requirement for leave under Order XI is not a mere procedural formality. It is a substantive safeguard intended to protect litigants from abuse of the discovery process , constitut ing a special discovery mechanism by which one party may compel the adverse party to answer questions on oath before trial. In many instances, interrogatories may intrude into matters that a party would otherwise not be obliged to disclose except during the evidentiary stage of the proceedings. Because of their intrusive nature, courts have historically exercised strict control over their use. The requirement of leave exists precisely to ensure that interrogatories are employed only where necessary to fairly dispose of the suit or to save costs, and not as instruments of oppression, harassment, delay, or fishing expeditions. The question then becomes how the court can effectively discharge this supervisory role. In my considered view, judicial control over interrogatories can only be meaningfully exercised when the court is furnished with sufficient material upon which to base its discretion. A mere oral request by counsel that interrogatories are necessary provid es little, if any, factual foundation upon which the court can properly evaluate the necessity, relevance, scope, and propriety of the proposed questions. A supporting affidavit serves an indispensable purpose in this regard. It places before the court, under oath, the factual basis for seeking interrogatories. It explains the issues requiring clarification, demonstrates the relevance of the proposed interro gatories to matters in controversy, and enables the court to assess whether the information sought is genuinely necessary for resolving the dispute. Without such evidential material, the court would be required to exercise discretion largely on the basis of submissions from the Bar. It is a well - established principle that judicial discretion must be exercised upon facts and evidence rather than mere assertions of counsel. Statements made by advocates during submissions, however persuasive, do not constitute evidence. An affidavit supp lies the evidential foundation necessary for the court to make an informed judicial determination. Equally important, the affidavit enables the court to distinguish between legitimate discovery and impermissible fishing expeditions. A party seeking leave must demonstrate that the interrogatories are directed towards specific matters arising from the ple adings and are not intended merely to discover the opponent's evidence, harass the opposing party, delay proceedings, or search for a cause of action or defence. These are matters which can only be adequately demonstrated through sworn facts placed before the court. I also find persuasive the defendant's argument regarding the Approved Forms under Government Notice No. 388 of 2017. While forms cannot override substantive legislation, they remain part of the procedural framework established under the Civil Procedure Code and often provide valuable guidance on how procedural steps are intended to be undertaken. T he prescribed form relating to interrogatories contemplates the making of an application supported by an affidavit and the subsequent consideration thereof by the court before leave is granted. Such procedural design is not accidental. It reflects the reco gnition that before compelling a party to answer questions on oath, the court must first examine the factual basis and necessity of the proposed interrogatories. Furthermore, practical considerations favour the requirement of a formal application. By annexing the proposed interrogatories to the supporting affidavit, the applicant enables both the court and the opposing party to evaluate the exact questions proposed . This promotes transparency, procedural fairness, and efficient adjudication of any objections concerning relevance, privilege, prolixity, oppression, or admissibility. The argument that requiring a c hamber s ummons may occasion delay is not without force. C onsiderations of expedition cannot override the need for procedural fairness and proper judicial scrutiny where coercive discovery mechanisms are involved. The modest procedural burden of filing a c hamber s ummons supported by an affidavit is justified by the importance of ensuring that interrogatories are not abused. I am also unable to agree that , because Order XI Rule 1 is silent on the mode of application, an oral application necessarily suffices. Silence in a procedural provision should not automatically be interpreted as dispensing with the ordinary requirements governing applications for discr etionary relief. Where a party seeks an order that invokes the court's discretion and affects the rights and obligations of another party, the general practice of moving the court by way of a formal application supported by evidence remains the safer and m ore principled approach unless the Rules expressly provide otherwise. For instance, in the present matter, no c hamber s ummons has been filed. No supporting affidavit has been presented. No proposed interrogatories have been exhibited. The court is therefore deprived of the very material necessary to determine whether the interrogatories sought are relevant, necessary, prop ortionate, and legally permissible. Accordingly, I find that leave to administer interrogatories under Order XI ought properly to be sought through a Chamber Summons supported by an affidavit exhibiting or setting out the proposed interrogatories and the grounds necessitating their delivery. The plaintiff is thus directed to move the court by way of a formal Chamber Summons, supported by an affidavit . The intended application should be filed within 14 days from the date of this order. It is so ordered. DATED at DAR ES SALAAM , this 10th day of June, 2026. E . Y. MKWIZU JUDGE