African Alliance African Pioneer Master Fund v Vehicle Finance Ltd (HP/ARB 7 of 2017) [2017] ZMHC 504 (22 August 2017)

IN THE HIGH COURT FOR ZAMBIA 201 7/HP/ARB/007 AT THE PRINCIPAL REGISTRY - COUi; HOLDEN AT LUSAKA (Arbitration Jurisdiction) IN THE MATTER OF THE ARB AND IN THE MATTER OF AN ARBITRATION BETWEEN: AFRICAN ALLIANCE AFRICAN PIONEER (cid:9) MASTER FUND PLAINTIFF AND VEHICLE FINANCE LIMITED (cid:9) DEFENDANT BEFORE THE HON. MADAM JUSTICE P. K. YANGAILO ON 22ND AUGUST, 2017. For the Plaintiff. (cid:9) Mr. M. Sakala - Corpus Legal Practitioners For the Defendant: Mr. M. Mwenye SC & Ms. P. Tembo - Mwenye & Mwitwa Advocates RULING LEGISLATION REFERRED TO: Ri ( P a g e (cid:9) 1. The Arbitration Court Proceedings Rules 2001 SI No. 75 of 2001; and 2. The High Court Act, Chapter 27 of the Laws of Zambia; This matter was scheduled for hearing of the application by the Defendant for stay or to suspend Court proceedings pending the conclusion of the Arbitral proceedings on 17th August 2017, but on the scheduled date of hearing, it was brought to my attention that Counsel for the Defendant had on 15th August 2017, filed an application to expunge the Affidavit in Opposition to the Affidavit in Support of Summons for an Order to stay or suspend Court proceedings pending the conclusion of the Arbitral Proceedings. I thus gave priority to hearing the application to expunge the Affidavit in Opposition. The application was supported by an Affidavit in Support deposed by one PRECIOUS TEMBO, in which she avers, inter alia, as follows: - 1. That the Affidavit in Opposition offends the rules on Affidavit evidence, which proscribe the inclusion of objections, legal arguments and conclusions in Affidavits; and 2. That in paragraph 5 of the Affidavit in Opposition, Mr. Sakala clearly states that the Affidavit in Opposition is partially based on points of law. That further, paragraphs 7 to 13 of the Affidavit in Opposition advances legal arguments. The Defendants learned Counsel Mr. Musa Mwenye SC., made the application and relied on the Affidavit in Support filed herein on 15th August, 2017. The application was made pursuant to Order 38 of The Arbitration Court Proceedings Rules', as read together R2 I P with Order V Rules 15 and 16 of The High Court Rules2. Order 38 of The Arbitration Court Proceedings Rules', provides that: - "General application of High court or Subordinate Court rules (1) Where these Rules do not provide for ay particular matter or do not make sufficient provision enabling a court to dispose of a matter before it or to enable a party to prosecute its case, the Rules of the High Court or of the subordinate court, as the case may be, relating to civil proceedings with these Rules. (2) Parties to legal proceedings shall also be entitled to make ancillary and incidental applications and to invoke other necessary court processes, available under the High court Rules, in dealing with applications under these Rules." Order V Rules 15 and 16 of The High Court Rules2, provides that:- "No extraneous matter 15. An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. Contents of affidavits 16. Every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true." (Court's emphasis) Mr. Mwenye SC., also made oral submissions that the use of an Affidavit is clearly to place facts before the courts and that the rules R31 proscribe deponents from advancing legal arguments in Affidavits. It is the Defendant's contention that a perusal of the Plaintiffs Affidavit in Opposition leads to the inescapable conclusion that the deponent Mr. Sakala, Counsel for the Plaintiff, is advancing extraneous matters by way of legal arguments. He therefore prayed that the said Affidavit be expunged off the record in order to fulfil the procedural righteousness. In response, Learned Counsel for the Plaintiff, Mr. Sakala, made oral submissions that the facts to which the Affidavit relates are legal in nature and can competently be deposed to by a lawyer as has been done in casu. He admitted that in paragraphs 7 to 13, the deponent was stating the facts of law as verily believed by the deponent. He contends that Order V Rule 16 and 17 of The High Court Rules2, allows a deponent of an Affidavit to swear to facts which are within his or her personal knowledge, as well as, to depose to a belief provided the basis of a belief is set out in the Affidavit. He further contends that the Plaintiffs Affidavit in Opposition, which he swore on behalf of the Plaintiff, complies with the above cited rules because Counsel in this matter was deposing to facts of law as well as other evidence within his personal knowledge. He also contends that a perusal of paragraphs 10 to 11 of the Affidavit in Opposition will show that the deponent was deposing to facts relating to the arbitral hearing in which he personally participated and that those paragraphs cannot be said to dealing with the law. He referred this Court to Order V Rule 13 of The High Court Rules2, which he contends allows the Court to R41 admit Affidavit evidence if it has been properly sworn irrespective of other defects in it in order to ensure that justice is done. The said order provides that: - "Defective inform The Court or a Judge may permit an affidavit to be used notwithstanding it is defective in form according to these Rules, if the Court or a Judge is satisfied that it has been sworn before a person duly authorised." Counsel argued that the statements and facts that are set out in the Affidavit in Opposition would not cause prejudice to the Defendant as these facts can safely be repeated in the viva voce submissions of Counsel. He prayed that the Plaintiffs Affidavit in Opposition or parts of it be retained on record. In reply, Mr. Mwenye submitted that only two paragraphs of the Plaintiffs Affidavit in Opposition deal with facts. He argued that contrary to what Mr. Sakala submitted in reference to Order V Rule 13 of The High Court Rules2 , the said order permits this Court to admit into evidence an Affidavit that is defective in form and not substance, if it is properly sworn. Mr. Mwenye contends that the Affidavit in Opposition is defective in substance because it substantially canvases the law and it must therefore be expunged, as the provisions of Order V Rule 15 of The High Court Rules2 , are mandatory in nature as can be seen by the use of the mandatory word "shall". (cid:9) He reiterated his prayer that the R5 I P a ge application to expunge the Affidavit be granted with costs to the Defendant. In determining the application to expunge the Affidavit in Opposition, I have taken into consideration the Affidavit in Opposition which is in issue, the Affidavit in support of the Application to expunge, the authorities referred to and submissions by both Counsel, for which I am grateful. Order V Rules 15 and 16 of The High Court Rules2, state as follows: - "No extraneous matter 15. An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. Contents of affidavits 16. Every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true." (Courts emphasis) A careful perusal of paragraphs 7 to 13 of the Plaintiffs Affidavit in Opposition reveals that indeed the contents amount to legal arguments as they cite and refer to the Rules of Court. This offends Order V Rule 15 of The High Court Rules2. For that reason, the application by the Defendant is valid and accordingly, the Affidavit in Opposition is in its entirety expunged from the record, with costs to the Defendant to be borne by the Plaintiff and to be taxed in R6 I P a g e default of agreement. The Court will proceed to hear and determine the application for an order to stay or suspend Court proceedings pending the conclusion of the Arbitral proceedings on Monday 11th September, 2017 at 10:30 hours. Leave to appeal is granted. Delivered at Lusaka this 22nd day of August, 2017. P. K. YANGAILO HIGH COURT JUDGE R7 I