EliasTembo (Suing in his capacity as Attorney for Adamson Mbewe) v John Kunda Lengwe (2009/HP/0862) [2022] ZMHC 51 (11 April 2022)

/ IN THE HIGH COURT OF ZAMBIA 2009/HP/0862 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ELIAS TEMBO (Suing in his capacity as Attorney for Adamson Mbewe) AND JOHN' KUNDA LENGWE LUSAKA CITY COUNCIL ATTORNEY GENERAL SARA MULWANDA PLAINTIFF~ 1 ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4TH DEFENDANT BEFO. RE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN CHA1V1BERS, ON THE 11TH DAY OF APRIL, 2022, -4T 10:00 HOURS. For the 1 st Plaintiff Mr. Elias Tembo - In Person. For the 1s t Defendant: Mr. K. Phiri - Messrs. Malarnbo & - For the 2 nd Defendant: For the 3 rd Defendant: For the 4 th Defendant: RULING CASES REFERRED TO: Rlj Page 1. Fox Motor Spares Limited v Khalid Gulan Mohammed Saleh Company Limited (201 7) ZMCA 47; 2. Zambia Seed Company Limited v West Co-op H aulage Limited-Appeal No.112 o/2013; 3. Copper v Smith (1884) 26QBD; 4. Ladd v Marshal (1954) 3 All E. R.; 5. Cavm.ont Capital holding Plc v Lewis Nathan Advocate (Suing a s a firm) - SCZ Judgment No.6 o/2016; and 6. Hitech 1)·ading Company Limited v Zambia Revenue Authority (2000) Z. R. 40. LEGISLATION REFERRED TO: C 1. The Rules of the Supreme Court of E ngland, 1999 Edition, London Sweet & Maxwell; and 2 . The High Court Act, Chapter 27, Volume 3 of the Laws of Zambia. OTHER WORKS REFERRED: 1. Halsbury's Laws of England, 4th Edition (London: Butterworths & Company, 1976). INTRODUCTION 1 . 1 This Ruling is in respect of an application on the part of the Plaintiff, for Leave to Adduce Fresh Evidence, made pursuant to Order 38, Rulel 3 of The Rules of the Supreme Court1 and Order 111, Rule 2 of The High Court Rules2 . C BACKGROUND 2. 1 This record has passed through various Courts and was re-allocated to this Court in July, 2016. Trial commenced on 21 st March, 201 7 , with the Plaintiff and his witness giving testimony. Thereafter, the Plaintiff closed his case. The matter was then adjourned for continued trial. What followed is that there were numerous applications made by the parties, which were determined by the Court. R2I P,,ge c_- C Eventually, on 31 st August, 2021, the Plaintiff applied for leave to adduce fresh evidence. PLAINTIFF'S AFFIDAVIT EVIDENCE 3. 1 The application to adduce fresh evidence is supported by an Affidavit, wherein the Plaintiff deposed inter alia that in the year, 2006, he lost several documents in unclear circumstances, which included the application letter that he had submitted to Lusaka City Council and to the Commissioner of Lands. The Plaintiff tried to search for the said documents at his residence, Lusaka City Council and the Ministry of Lands but to no avail. He reported the loss to the Police and has exhibited a copy of the Police r eport marked "ETl". 3.2 The Plaintiff further deposed that during the material times, he became acquainted to a Mr. Keith Mwewa, a Clerk of Court, at the Magistrate's Court Complex, where he usually had his documents commissioned. The Plaintiff stated that he searched for the said documents in Room 121 of the Magistrate's Complex, where Mr. Keith Mwewa worked from, but was unsuccessful. 3.3 The Plaintiff deposed that around 1st March, 2021 , Mr. Keith Mwewa came across a file consisting of several of the Plaintiff's documents, which documents included the application letter that the Plaintiff had submitted to the Commissioner of Lands. The Plaintiff stated that the said R31 Page document is relevant and material to the proceedings and that he was informed by his Advocate and verily believed to be true that documents that could not be found during the course of trial, notwithstanding diligent search, could still be allowed to form part of the record despite the trial having been closed. 3.4 The Plaintiff sought the Court's indulgence to allow this application and include the said document to the proceedings as it was in the interest of justice and in his view, none of the parties to the proceedings would be prejudiced. 1 5 T DEFENDANT'S AFFIDAVIT EVIDENCE 4. 1 By the 1 st Defendant's Affidavit in Opposition to .the Affidavit in Support of Summons for Leave to Adduce Further Documents, filed on 14th December, 2021, it was deposed inter alia by the 1 st Defendant that the Plaintiff herein had closed his case and that the 1 st Defendant was yet to open his Defence. 4.2 The 1 st Defendant further stated that as the Plaintiff had already closed his case, there were no other witnesses to be called by the Plaintiff and that therefore, the documents being sought to be introduced would have no witness to testify to them. The 1 st Defendant deposed that the documents alleged to have been issued by the Police are unsupported by a receipt from the Council so as to R4 I P age • • C document is relevant and material to the proceedings and· that he was informed by his Advocate and verily believed to be true that documents that could not be found during the course of trial, notwithstanding diligent search, could still be allowed to form part of the record despite the trial having been closed. 3.4 The Plaintiff sought the Court's indulgence to allow this application and include the said document to the proceedings as it was in the interest of justice and in his view, none of the parties to the proceedings would be prejudiced. 1 5 T DEFENDANT'S AFFIDAVIT EVIDENCE 4. 1 By the 1 st Defendant's Affidavit in Opposition to the Affidavit in Support of Summons for Leave to Adduce Further Documents, filed on 14th December, 2021, it was deposed inter alia by the 1 st Defendant that the Plaintiff herein had closed his case and that the 1 st Defendant was yet to open his Defence. 4.2 The 1 st Defendant further stated that as the Plaintiff had already closed his case, there were no other witnesses to be called by the Plaintiff and that therefore, the documents being sought to be introduced would have no witness to testify to them. The 1 st Defendant deposed that the documents alleged to have been issued by the Police are unsupported by a receipt from the Council so as to R4 I P 2 g e • 6.1 By the Plaintiff's Skeleton Arguments in augmentation of his application for Leave to Adduce Further Documentary Evidence, filed on 31 st August, 2021, the Plaintiff cited Order 111, Rule 2 of The High Court Rules2 and Order 38, Rule 13 (1) of The Rules of the Supreme Court1 and submitted that this Court has the discretion to admit fresh evidence and make attendant orders even after trial has closed. 6.2 The Plaintiff submitted that there was an emerging legal concept that allows the Court to admit evidence at any stage, even after trial, known as the fresh evidence concept. Counsel went on to provide the definition of "fresh evidence" which was stated in the case of Fox Motor Spares Limited v Khalid Gulan Mohammed Saleh Company Limited1 as follows: - "Fresh evidence is evidence that existed at the time of the trial but for other reasons could not be put before the (_' court or was previously undiscovered." 6.3 Based on the foregoing, the Plaintiff submitted that the concept of fresh evidence allows the Court to admit evidence that was available but could not have been put forward at the first instance. He further submitted that the rationale for this rule is to help the Court arrive at a fair and just conclusion when determining the rights of the parties. RGI Page • 6.4 The Plaintiff cited the case of Zambia Seed Company Limited v West Co-op Haulage LimitecP wherein the Court cited the case of Copper v Smith3 as follows: - "Now, I think it is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them... I know of no kind error or mistake ... the court ought not to correct... Court do not exist for the sake of discipline but for the sake of deciding matters in controversy." 6.5 Based on the foregoing authority, the Plaintiff submitted that the principle set out in the said authority ties well with the exercise of the Court's discretion to admit fresh evidence. He submitted further, that the considerations to be made when admitting fresh evidence after trial are the same as those set out by the Courts for admitting fresh evidence on appeal. He cited the case of Ladd v Marshal'l where the Court opined that in order to justify the reception of fresh evidence after trial, three conditions must be fulfilled as follows: - "Firstly, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible." R71 P a g e • 6 .6 The Plaintiff submitted that clearly, the Court ought to grant an order to admit fresh evidence, if any of the above conditions are present or have been met by the Applicant. It was submitted that the evidence that the Applicant is seeking to be admitted is the application letter to the Commissioner of Lands. 6. 7 The Plaintiff went on to state that the three requirements set out in the case above have been met by the Plaintiff as the application letter to be adduced could not be found but was available during the trial; the said letter is material to the case as it is evident that the Plaintiff submitted his letter to the Commissioner of Lands; and that the said letter is credible as it has a stamp from the Ministry of Lands . He further submitted that the letter speaks for itself and therefore, can form part of the Court's record without a hearing. 6.8 Finally, it was submitted by the Plaintiff that this was a proper case for the Court to admit the 'Fresh Evidence' herein as it would not prejudice any party herein as it is intended to demonstrate how the 1 st Defendant acquired the property herein. 6. 9 The Plaintiff also filed herein further Skeleton Arguments on 20t h December, 2021, to augment his Affidavit in Reply to the Affidavit in Opposition filed by the 1 st Defendant on 10th December, 2021. In response to the 1 s t Defendant's R8j Page • ( contention that there would be no witnesses to attest to the document intended to be adduced as evidence, the Plaintiff submitted that the document speaks for itself and that the duty of the Court is to interpret the document within its four corners. He further submitted that the said document intended to be part of the Court record did not need a witness to testify to it. He cited the case of Cavmont Capital holding Plc v Lewis Nathan Advocate (Suing as a firm)5 in support of the foregoing submissions. 6.10 The Plaintiff submitted that the objection by the 1st Defendant to allow the document sought to be adduced in to evidence is misconceived and the case of Hitech Trading Company Limited v Zambia Revenue Authority5 was cited in support of the foregoing submission. 6.11 The 1 s t Defendant did not file herein any written submissions and the application is not opposed by the 2nd, 3rd and 4th Defendants. CONSIDERATION AND DECISION OF THE COURT 7. 1 I have considered the application for Leave to Adduce Fresh Evidence made by the Plaintiff. I have further considered the Affidavit evidence of the Plaintiff and 1 st Defendant. I have also considered the written submissions of the Plaintiff and the authorities cited R91 Page ('I • therein, for which I am indebted to the Plaintiff, as these have been of great assistance to this Court. 7.2 The issue that arises is whether the Plaintiff, who has closed his case, can re-open his case and adduce fresh documentary evidence 1n this matter. The fresh documentary evidence in this regard is an application letter addressed to the Commissioner of Lands. The Plaintiff's application was made pursuant to Or der III, Rule 2 of The High Court Rules2 and Order 38, Rule 13 (1) of The Rules of the Supreme Court1 . The said provisions are couched as follows: - ''Order III, Rule 2 of The High Court Rules Subject to any particular rules, the Court or ajudge may in all causes and matters make an interlocutory order which it considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit or not." "Order 38 Rule 13(1) of the Rules of the Supreme Court At any stage in a cause or matter the court may order any person to attend any proceedings in the cause or matter and produce any document to be specified or described in the order, the production of which appears to the court to be necessary for the purpose of that proceeding." 7. 3 I am guided by the holding of the Court in the case of Ladd v Mars hall4 , where three considerations were highlighted RlOI Pd g e as requirements for a grant of an order to admit fresh evidence as fallows: - 1. Where the evidence existed at the time of the trial but by reasonable diligence such evidence could not have been discovered in time to be used at trial; 2. Where it is reasonably clear that if the evidence had been avaiiable at trial, it would probably have an important influence on the result of the case, although it need not be decisive; and 3 . The evidence proposed is reasonably credible. c· 7 . 4 It is apparent from the above cited authorities that once the considerations for the admission of fresh evidence h a ve been met by a party, this Court has the jurisdiction ,. I • t o a dmit fresh documents into evidence at any stage of the proceedings. The question I have to consider now is whether the intended documentary evidence, being the letter of application addressed to the Commissioner of Lands, satisfies the aforestated requirements . 7. 5 The first requirement to be considered is whether the said application letter existed at the time of the trial but by reasonable diligence such evidence could not have been discovered in time to be used at trial. By the Plaintiff's Affidavit in Support of the Application to Adduce Fresh Evidence, the Plaintiff deposed _ that the application letter Rll I P age addressed to the Commissioner of Lands, that he intends to adduce into evidence, was sent in the year 2006 and therefore, it existed at the time of trial, but it was misplaced at the time of trial and could not be found despite diligent search. The Plaintiff also exhibited a Police Report that indicated that he had reported the loss of the said application letter to the Police on 13th August, 2006. 7.6 It has been contended by the 1st Defendant that the date stamp from the Ministry of Lands acknowledging receipt on the said application letter is not clear and that the Plaintiff did not exhibit the receipt issued with respect to the Police report to authenticate the Police Report exhibited. On my analysis of the said letter of application exhibited in the said Affidavit in Support of the application and the Police Report dated 13th August, 2006, I find that the date stamp from the Ministry of Lands acknowledging receipt of the said letter is indeed not clear. However, on my analysis of the Police Report exhibited, I am satisfied that the Plaintiff reported the said application letter as missing on the 13th of August, 2006, which date 1s indicated by the date stamp from Ridgeway Police Post indicated on the Police Report exhibited. It is clear that the said date is much earlier than the date of the Plaintiff's trial which commenced on 21 st March, 201 7. I am therefore satisfied that the Plaintiff has proved on a balance of probability that the said application letter R12 I r a g e ·• I - ( , ( existed at the time of the trial but was misplaced and could not be found despite diligent search. 7.7 I now turn to consider the second requirement that the said application letter must be such that if produced, it would probably have an important influence on the result of the case, although it need not be decisive. 7.8 By the Plaintiffs Skeleton Arguments filed in support of the application to adduce fresh evidence, the Plaintiff contends that the letter of application intended to be produced into evidence is relevant to the case in that the main action c entres around the ownership of stand 24459, Libala South, which is subject of this dispute. The Plaintiff's claim is that he had duly acquired the property in question by submitting applications to the relevant .,. 11 ·- ■ authorities and that therefore, the application letter he intends to adduce is clear evidence that the Plaintiff s ubmitted his letter to the Commissioner of Lands. 6.6 The learn ed authors of Halsbury Laws of England, paragraph 5 on 'Evidence'1 state as follows: - "The prime requirement of anything sought to be admitted in evidence is that it is of sufficient relevance. What is relevant (namely what goes to the proof or disproof of a matter in issue) will be decided by logic and human experience and facts may be proved directly or circumstantially." R13 I r a g e t ( (_ ,. II . 7 . 10 Based on the foregoing authority and on my examination of the said application letter and the Plaintiffs claims, I am satisfied that the said letter is likely to have an influence on the outcome of the case. 7 .11 Finally, on the issue of whether the application letter is credible, it has been submitted by the Plaintiff that as the application letter intended to be produced into evidence was stamped by the Ministry of Lands, it is credible. The 1 st Defendant on the other hand contends that as the letter will require the Plaintiff to call witnesses to attest to it and as the Plaintiff has closed its case, the said application letter cannot be produced into evidence. 7.12 On my examination of the said application letter and its contents, I note that the said letter contains a date stamp from the Lands Department, which stamp in my view is an indication of its credibility. Further, I am satisfied that the said letter is self-explanatory and does not need a witness to attest to the import of its contents or its credibility. Even in the event that this Court required a witness to attest to the said application letter, Order 38, Rule 13 (1) of The Rules of the Supreme Court1 , cited above, gives the Court discretion to call a witness to attend the proceedings and produce such a document. 7.13 In light of the above findings , it is m y considered view that the fresh evidence which the Plaintiff is seeking to adduce R14 I P a r; e < ( ought to be considered in determining the Plaintiff's case. In my opinion, it would not be in the interest of justice to prevent the Plaintiff from bringing the said evidence before this Court. 7.14 Consequently, the Plaintiffs application to adduce fresh evidence is granted and he is allowed to re-open his case for purposes of attesting the said document. The said application letter to the Commissioner of Lands shall be filed into Court as a Supplementary Bundle of Document on or before 14th April, 2022. In order to be fair to the Defendants, they too shall be at liberty within seven (7) days of the Plaintiff filling into Court the said application letter to the Commissioner of Lands, to file into Court relevant documents, if any, in direct rebuttal of the Plaintiff's allowed letter. As such, the Defendants will not suffer any prejudice in process . 7. 15 Costs shall be in the cause. 7 .16 Leave to Appeal is granted. SIGNED, SEALED AND DELIVERED AT LUSAKA, ON THE 11 TH DAY OF APRIL, 2022 P. K. NGAILo HIGH COURT JUDGE R15 l Pa g ~~