Dolomite Aggregates Limited v Paul Marais (APPEAL NO. 254/2021) [2024] ZMCA 73 (19 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL NO. 254/2021 DOLOMITE AGGREGATES APPELLANT AND PAUL MARAIS RESPONDENT Coram: Mchenga DJP, JJA On 10 t h October 2023 and 19 t h March 2024 For the Appellant: D . Nalishuwa, Musa Dudhia and Company For the Respondent: M. Musukwa, Andrew Musukwa and Company JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1 . Shamwana v . The People [ 1985] Z . R . 41 2 . Liswaniso Sitali v . Mopani Copper Mines [2004] Z . R . 176 3 . GE Capital Co rporat e Finance Group Ltd v . Bankers Trust Co · [1995 ] 2 All ER 993 4 . Ryan Zaloumis v . Ruks Haulage Limited 2015/HPC/0026 5 . Charles Kajiman ga v . Marmetus · Chilemya , SCZ Appeal No . 50 of 2014 6 . Di pak Patel v . Minister of Finance and The Attorney Gene ral 2020/CC/005 7 . Karuma , Son of Kaniu v . The Queen [1955] 2 WLR 233 J2 Legislation referred to: 1 . The Rules of the Supreme Court of England , 1999 Edition 2 . The Electronic Communications and Transactions Act No . 4 of 2021 3 . The Evidence Act , Chapter 43 of the Laws of Zambia . Works referred to: 1 . Black ' s Law Dictionary , Ninth Edition , 2009 , Thompson Reuters INTRODUCTION [11 This appeal originates from the ruling of the High Court (Bowa , J.) , delivered on 26 t h February 2021 . c21 By that ruling , the appellant ' s objection to the production of certain documents by the respondent was dismissed . (31 Through this appeal , the appellant seeks to reverse that decision . BACKGROUND [ 4 J On 28 th March 2018 , the respondent , a former employee of the appellant , by writ of summons , commenced an action against the appellant . J3 cs1 His claims against the appellant included claims for a declaration that the Deed of Settlement and Release executed by him and the appellant , is voidable and unenforceable , for having been executed under duress ; and a declaration that the Deed of Settlement and Release was improperly executed and is therefore null and void; and damages for the appellant negligent l y causing distress , mental stress , emot i onal turmo i l and anguish on him . C6J On 1 st October 2019 , pursuant to Orders 9, 10 (1), 13 (1) and 24 (11) (c) of the Rules of the Supreme Court 1999 Edition, the appellant filed a notice of objec t ion to the production of certain documents on the respondent ' s list of documents. [7J The documents whose production was object ed to , were : 1 . WhatsApp messenger messages (Messages) between Datlton Ross and Paul Marais dated 1 9 . 05.18 ; 2 . PACRA Computer Printout - Dolomite Aggregates Ltd dated 14.03 . 18 ; 3 . PACRA Computer Printout- Dolomite Roads and Construction Ltd . dated 14 . 03 . 18 ; J4 4. Messages betwe·en Diego Casilli and Paul Marais dated 08 . 04 . 16 to 26.04.16 ; 5 . Paul Marais ' Passport- 03 . 09 . 13 ; and 6 . Paul Marais ' Workpermit-03.09 . 13 . cs1 The Messages between Dalton Ross and the respondent , PACRA Computer Printout on Dolomite Aggregates Ltd , PACRA Computer Printout on Dolomite Roads and Construction Ltd , Paul Marais ' passport and Paul Marais' work permit , were objected to on the grounds that they were not relevant to the issues in controversy. C9J As for the Messages between the respondent and Diego Casilli , they were objected to on the ground that they were either redacted or were incomplete . They on l y showed a portion of the conversations and were misleading as they did not depict the full nature of their conversations . c101 The appellant argued that it was in the interest of justice that the respondent be ordered to produce all the conversations between himself and Diego Casilli . c111 In response to the abjections , the respondent averred that all the documents produced were important and JS relevant , as they relate to the claims in his statement of claim . (121 The Messages were essential to prove his allegations of harassment , threats and intimidation . [13J As for the Messages between Diego Casilli and the respondent , it was argued that the appellant had the opportunity to address their concerns regarding the "completeness u of messages during cross-examination at trial . DECISION OF THE TRIAL JUDGE r141 As regards t he Messages between the respondent and Diego Casilli , the trial Judge took the view that the issues raised were matters that could be raised at trial . r1s1 The court would then consider whether the requirements for establishing the integrity and authenticity of the documents as prescribed in the Electronic Communications and Transactions Act had been met. r16J Thereafter , the court can decide on the weight to be attached to the documents as provided for by Section J6 8 of the Electronic Communications and Transactions Act. [111 As for the other documents , that is , the Messages between Dalton Ross and the respondent , the PACRA Computer printouts and the respondent ' s passport and work permit , the trial Judge opined that it was premature to determine their relevance before hearing the respondent ' s evidence on the duress . GROUNDS OF APPEAL [101 Two grounds have been advanced in support of the appeal . They are couched as fo ll ows : (a) the Court below erred in law and fact when it found that the WhatsApp messages, passport and PACRA print out are documents relevant to the respondent' s pleadings when the contents of the documents clearly show that they are not in any way related to the issues pleaded by the Respondent; and (b) the Court below erred in law and in fact when it found that the objection raised against the J7 WhatsApp messages and PACRA print out is one that can only be properly determined at trial. ARGUMENTS IN SUPPORT OF THE 1 s t GROUND OF APPEAL c191 In support of the 1 s t ground of appeal , cases including the cases of Shamwana v. The People1 and Liswaniso Sitali v. Mopani Copper Mines 2 , were referred to and it was submitted that only relevant evidence can be presented to the court for consideration . c201 In this case , it was argued , the Messages between Dalton Ross and the respondent , the PACRA Computer Printout on Dolomite Aggregates Ltd . , the PACRA Computer Printout on Dolomi t e Roads and Construc t ion Ltd. , Paul Marais ' passport and Paul Marais ' work permit , were not relevant to the issues in controversy . c211 This is because they do not in any way substant i ate the respondent ' s allegation that he executed the Deed under duress . c221 Further , as for the Messages between the respondent and Diego Casilli , it was also submitted the redacted portions , render the portions produced misleading and do not give an honest picture . JS c231 The case of GE Capital Corporate Finance Group Ltd v. Bankers Trust Co. 3 , was referred to and it was submitted that because parts had been redacted , the whole document should be excluded on the ground t hat allowing the document would enable the respondent produce misleading evidence to the detriment of the appellant . c241 On the same point , Section 8 (2) of the Electronic Communications and Transactions Act, was referred to and it was submitted that one of the conditions for the admission of a data message had not been met since the integrity of the information contained in the Messages had been compromised by the redaction . c2s1 Further , it was submitted that the Messages breach the best evidence rule which requires the product ion of original documents . Section 3(1) of the Evidence Act was referred to and it was submitted that since on l y excerpts of the Messages were availed , the conversation was incomplete . c261 Finally , Counsel referred to Section 2 of the Electronic Communications and Transactions Act, and submitted that since the Messages are data messages , J9 they ought to be authenticated before they can be admitted into evidence . ARGUMENTS IN SUPPORT OF THE 2 ND GROUND OF APPEAL c211 Coming to the 2 nd ground of appeal , it was submitted that the trial Judge ought to . have considered the relevance of the Messages out rightly , before trial. c2s1 The cases of Ryan Zaloumis v . Ruks Haulage Limi ted4 , Charles Kajimanga v . Marmetus Chilemya5 and Dipak Patel v Minister of Finance and The Attorney General 6 , were referred to and it was submitted that where there is an objection to the production of a document , it must be early in the proceedings ~nd the court should resolve the issue . c291 We were urged to find merit in this appeal and allow it . RESPONDENT ' S ARGUMENTS IN RESPONSE TO BOTH GROUNDS OF APPEAL c3oJ The respondent ' s response to · the two grounds of appeal was simultaneous. c311 It was argued that the documents objected to on grounds of irrelevance , are in fact relevant . JlO c321 Reference was made to the definition of the term ' relevant ' in Black's Law Dictionary and it was submitted t h at the documen t s are relevant to thP. issues in dispute as they wil l substantiate the respondent ' s claims against the appellant . C33J Reference was also made to the cases Edward Jack Shamwana & Others v . The People1 and Karuma, Son of Kaniu v. The Queen7 and it was pointed out that the Messages between the respondent and Dalton Ross substantiate the respondent ' s claims of signing the Deed after being threatened with fraud charges and deportation . C3 4 J As regards the Mes sages between the respondent and Diego Casilli , they are also relevant as they support his claims of harassment and duress . c3sJ Further , it was submitted that the Messages were not compromised and meet the requirements of Sections 3 and 8 of the Electronic Communications and Transactions Act . It was also submitted that the appellant was at libe rty to produce the entire Messages to rebut the respondent ' s evidence during cross - examination . Jll [36J With regard to the PACRA print outs , work permit and passport , it was contended that these documents are of probative value as they prove the respondent ' s claims of coercion . [37J In concluding , the respondent imp l ored this court not to find merit in this appeal and dismiss it. COURT'S CONSIDERATION AND DECISION ON THE APPEAL [3BJ We will first deal with the relevance of the Messages between Dalton Ross and the respondent ; the PACRA Computer Printout on Dolomite Aggregates Ltd .; the PACRA Computer Printout on Dolomite Roads and Construction Ltd ., Paul Marais ' passport and Pau l Marais ' work permit . [39J These documents were objected to on the grounds t hat they were not relevant to the issues in controversy . [40J We agree with the appellant ' s submission that once the issue was raised , the trial Judge should have dea l t with the issue decisively . He was not being called upon to determine whether the documents did in fact prove coercion but whether they could assist the respondent prove coercion . J12 c411 We are mindful that we should not , in our consideration of the relevance of these documents , appear to conclusively determine the very issue that they are intended to prove , that is, that the respondent was coerced into signing the disputed Deed . [421 All we can pronounce on , is whether they are relevant to establishing the respondent ' s claim of coercion . Whether they actually prove the coercion, is a matter for the trial Judge to resolve after the trial. [43J In Black' s Law Dictionary, the term ' relevant evidence ' is defined as : 'evidence tending to prove or disprove a matter in issue . Relevant evidence is both probative and material and is admissible unless excluded by a specific statute or rule'. [44J Looked at individually , the approach the appellant appears to take , the disputed documents do not appear to prove the respondent ' s coercion into signing the disputed Deed. [4SJ However , when looked at together , and having regard to the pleadings , the fact that the respondent is a foreigner , whose stay in the country was on the basis of a permit and there being adverse comments in the J13 Messages , from p ersons with links to his former employers , does point at the fact that they are relevant . [ 46 J This being the c a se , we c a nnot fault the trial Judge for not finding that Messages between Dalton Ross and the respondent ; the PACRA Computer Printout on Dolomite Aggregates Ltd .; the PACRA Computer Printout on Dolomite Roads and Construction Ltd ., Paul Marais ' passport and Paul Marais ' work permit , were no t relevant , and e x cluding t hem . C47J The 1 st grou nd of appeal lacks merit . C4S J Coming to the 2 nd ground of appeal , it is our view that the provision relevant for the right considera t ion of the effect of the Di ego Casilli Messages being redacted , is not Section 8 but Section 9 of the Electronic Communications and Transactions Act. ( 49 1 Section 8 of the Electronic Communications and Transactions Act, substantial l y deals with situations where the law requires information to be p r esented in its original form and it provides that a data message can be cons i dered as being an original document if certain conditions are met . J14 cso1 As for Section 9 of the Electronic Communications and Transactions Act, it reads as follows : (1) In any legal proceedings , the rules of evidence shall not be applied so as to deny the admissibility of a data message in evidence (a) on the mere grounds that i t is constituted by a data message ; or (b) if i t 1. s the best evidence that the per son adducing i t could reasonably be expected to ob·c.ain , on the grounds that i t is not in its original format provided the substance is the same. (2) Information in the form of a data message shall be given due evidential weight. (3) In any legal proceedings , when assessing the evidential weight of a data message , regard shall be had to- (a) the reliability of the manner in which the data message was generated , stored or communicated ; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified ; and (d) any other relevant factor . (4) A data message made by a person in the ordinary course of business, or a copy or printout of , or an extract from, the data message certified to be correct by an officer in the service of that person, shall on its mere production in any civil, criminal, administrative or disciplinary proceedings under a written law, be admissible in evidence against a p~rson and rebuttable proof of the facts contained in a record , copy , printout or extract. JlS [511 Our understanding of this provision , is that the ' introduction ' of a data message into evidence , is two staged . [521 The first stage , is the admission of the message into evidence , while the second stage is the weight to be attached to the admitted evidence . [531 It is therefore possible that even after admitting it into evidence , t he trial Judge can decide to attach little or no probative value , to a data message . [54J Section 9 (1) (b) of the Electronic Communications and Transactions Act, provides that a document which is a data message will not be rejected on the ground t hat it is not in its original format . [55J Further , Section 9(3) of the Electronic Communications and Transactions Act, sets out the factors to be taken . into account when determining the weight to be given to a data message. [56J The factors include the reliability of the manner in which the integrity of the data message was maintained . [57J In this case , the Diego Casilli Messages have been objected to on the ground that they were redacted. J16 c5aJ In our view , that goes to integrity of the Messages and going by Section 9(3) of the Electronic Communications and Transactions Act, that is an issue that goes to the weight to be attached to that evidence and not to its admissibility . [59J The appellant also referred to Section 3 of the Evidence Act. This provisi on deals with the admissibility of evidence which is documentary and tends to establish a fact in issue . It provides that such evidence is admissible on the production of the original document . (601 However , Section 9(1) (b) of the Electronic Communications and Transactions Act, provides that a document which is a data message will not be rejected on the ground that it is not the " original" document . [611 It follows therefore , that evidence which would have been admissible under Section 3 of the Evidence Act, if the origina l document was produced , can still be admitted in the absence of the original document , where it is a data message and the requirements under Section 9(1) of the Electronic Communications and Transactions Act, have been met. Jl7 c621 Coming to the argument that data messages ought to be authenticated before they can be admitted i nto evidence , we have not seen the provision to that effect in Section 2 of the Electronic Communications and Transactions Act . C63J There is however provision in that section , that in the Act , the term ' authenticity' "means the assurance that a message, transaction or other exchange of information is from · the author or service it purports to be from". [64 J Our understanding of the provision is that for a data message to be relied on , at some point during the trial , there must be led evidence proving that the data message is authentic . c6s1 The provision does not state that authenticity of a data message must be proved upfront . C66J There is however , provi sion under Section 9(4) of the Electronic Communications and Transactions Act, that a dat a message , a copy of it , a printout or extract of a data massage , made by a person in the ordinary course of business , which is certified to be correct J18 by an officer in the service of that person , is admissible in evidence . [611 On the evidence on record , this provision does not appear to us to be applicable to the Diego Cas il li Mes sages . c6s1 The 2 nd ground of appeal lacks merit and it is dismissed . VERDICT C69J Having dismissed all the arguments in support of both grounds of appeal , we find that this appeal lacks merit . We order that this long standing matter immediately proceeds to trial . c101 Costs to the respondent , to be taxed in default of agreement . C. F . R. Mche DEPUTY JUDGE PRESIDENT ~V\J ~l IC H ~ .. _?·' . ···········~ ·················· ......... L MA~ 2024 A. M. 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