Jos Hansen and Soehne (Zambia) Limited v The Attorney General and Seleza Ventures Limited (2019/HP/0431) [2021] ZMHC 113 (24 May 2021)

l IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) .... ' ,- 2019/HP/0431 BETWEEN: JOS HANSEN AND SOEHNE (ZAMBIA) LIMITED PLAINTIFF AND THE ATTORNEY GENERAL SELEZA VENTURES LIMITED 1 ST DEFENDANT 2ND DEFENDANT BEFORE THE HONOURABLE MRS JUSTICE RUTH CHIBBABBUKA ON THE 24TH MAY, 2021. For the Plaintiff: Mr S Bwalya Jnr, Messrs Christopher, Russell Cook and Company For the 1 st defendant N/A For the 2 nd defendant: Mr S. Nyirongo, Messrs Mulenga & Wallance Advocates RULING Cases referred to: 1. Polythene Products Zambia Limited vs Cyclone Hardware and Another Appeal No. 42 o/2008 2. Kalvic Bakery Limited vs The Attorney General and Dar Farms and Transport Limited Appeal No. 78 o/2917 3. Zambia National Holdings Limited and UNIP vs The Attorney General SCZ Judgment No. 4. Alick Sakala vs Morgan Phiri (Suing as Administrator of Garden North Baptist Church) Selected Judgment No. 36 of 2018 5. African Banking Corporation Zambia vs Mubende Country Lodge Limited Appeal No. 116 o/2016 6. Hakainde Hichilema and Others vs The Government of the Republic of Zambia Appeal No. 28 o/2017 Rl 7. Fi.rst Merchant Bank Zambia Limited (In Liquidation) and The Attorney General vs Al Shams Building Materials Limited and Jayesh Shah SCZ/ 8/ 258/ 2009 8. EcoBank Zambia Limited vs Ultima Engineering Limited, Derrick Mpundu, National Housing Authority and Stalwart Investments Limited 2012/ HPC/ 0516 9. Attorney General and 3 Others vs Ambex Clothing Manufactures Limited Appeal No. 134of2013 10. Union Gold {Zambia) Limited vs The Attorney General Selected Judgment No. 14 of 2016 11. Moonga and Essiah Kalonga Moonga vs Peter Chisi and Winstone Chisi 2014/ HP/ 1977 Legislation referred to: The Rules ofthe Supreme Court (1999) Edition, The White Book The High Court Act, Chapter 27 of the Laws of Zambia The Lands Act, Chapter 184 of the Laws of Zambia Practice Direction No.1 of 2002 1.0 INTRODUCTION This is a ruling in the 2nd defendant's applications. The 2 nd defendant filed two applications, the first being an application for leave to file a Supplementary Bundle of Documents filed on 20th January, 2020, and the second being a Notice of Motion to Raise Preliminary Issues filed on 20th August, 2020. While the Notice of Motion to Raise Preliminary Issues was filed later, it shall be given priority consideration as the issues raised border on whether this court is clothed with the requisite jurisdiction to try this action. 2.0 THE 2ND DEFENDANT'S NOTICE OF MOTION TO RAISE PRELIMINARY ISSUES The 2nd defendant's Notice of Motion to Raise Preliminary Issues was made pursuant to Orders 14A and 33 of the Rules of the Supreme Court, as read together with Order 3 Rule 2 of the High Court Rules, and Practice Direction No.1 of 2002. The issues raised by the 2nd defendant's notice are couched as follows: i. Whether or not the High Court has jurisdiction to hear a challenge or re-entry process by the Commissioner in view of the provisions under Section 13 (1) and 13 (3) of the Lands Act. R2 ii. Whether or not this cause of action is competent and properly before the High Court on account of lack of jurisdiction. iii. Whether or not in view of (i) and (ii) above this cause of action is liable to be dismissed on grounds of being irregular, a nullity and for want of jurisdiction; iv. Whether upon such determination as in (i) (ii) and (iii) above, the court should not make an order that the interim injunction granted in favour of the plaintiff in respect of Stand No. 3816, Lusaka, the subject property herein should be lifted; v. Whether upon such determination of questions as in (i) (ii) (iii) and (iv) above, court should not make an order that the caveat filed at the Lands and Deeds Registry in respect of Stand No. 3816, Lusaka, the subject property herein should be vacated. 2.1 THE 2ND DEFENDANT'S AFFIDAVIT IN SUPPORT OF THE NOTICE OF MOTION TO RAISE PRELIMINARY ISSUES. The application to raise preliminary issues is supported by an affidavit of the same date, deposed to by one Selemani Mhone, a Co- Director in the 2nd defendant company. He deposes as follows; on 5th September, 2019, the plaintiff herein commenced this action against the defendants by way of a writ of summons and statement of claim filed at the principal registry of the High Court at Lusaka for determination of a dispute relating to the mode of re-entry process by the Commissioner of Lands in respect of Stand No. 3816, Lusaka. Paragraph 22 of the plaintifrs statement of claim alleges that the re entry process was illegal, irregular and contrary to the provisions of the law and acceptable practice. The plaintiff alleges further, under paragraph 34 of its statement of claim, that the 2nd defendant did not receive good title to the property as the procedure for re-entry was carried out irregularly and in breach of prevailing legislation and procedures, and that the property remained in the ownership of the plaintiff. R3 The plaintiff seeks an order cancelling the offer and state lease, as well as all certificates of title issued in favour of the 2nd defendant. That the plaintiff is seeking to challenge the re-entry process and not the authenticity of the certificate of title issued in the 2nd defendant's names, and as such ought to have lodged an appeal to the Lands Tribunal and not commenced an action in the High Court. The issues raised by the 2nd defendant go to the root of this action and have the potential of disposing of the action preliminarily without need for continued trial of the action. The action herein is irregular and defective in respect of place and mode of commencement adopted by the plaintiff and is liable to be dismissed. That upon the determination of the questions raised, this court may proceed to order that the interim injunction granted in respect of Stand No. 3816 be lifted, and that the caveat filed in respect of the same property be vacated. 2.2 THE 2ND DEFENDANT'S SUPPORTING EVIDENCE The 2nd defendant filed a list of authorities and skeleton arguments in support of the application wherein counsel argued that the plaintiff adopted a wrong mode of commencement and thus this action should be dismissed for want of jurisdiction. Counsel argued that Order 14A Rules 1 and 2, and Order 33 of the Rules of the Supreme Court, as read together with Order 3 Rules 2 of the High Court Rules support the 2nd defendant's application. He argued further that in terms of Sections 13 sub-sections 1 and 3 of the Lands Act, Chapter 184 of the Laws of Zambia, the plaintiff ought to have commenced its action challenging the certificate of re-entry by way of an appeal to the Lands Tribunal within 30 days from the date the certificate of re-entry was entered, seeking an order that the register be rectified. Counsel argued that the combined effect of the aforementioned provisions of the law is that the plaintiff adopted a wrong mode of R4 commencement and filed its originating process at the wrong forum. That this court lacks the necessary jurisdiction to hear and determine this action. Counsel referred this court to the case of Polythene Products Zambia Limited vs Cyclone Hardware and Another1 to support his argument. He argued further that the holding in the Polythene Products Zambia Limited case was reaffirmed in a more recent case of Kalvic Bakery Limited vs The Attorney General and Dar Farms and Transport Limited2 wherein the Court of Appeal held that the High Court had no jurisdiction to hear the challenge of the re entry by the Commissioner of Lands. Counsel submitted that the Kalvic Bakery case is similar to this action in the sense that trial of the action had already commenced at the time the notice of motion was raised. Counsel further cited the case of Zambia National Holdings Limited and UNIP vs The Attorney General3 to argue that the High Court's unlimited jurisdiction must be exercised in compliance with the prescribed procedure. Counsel beseeched this court to dismiss the action herein with costs on the strength of the case law and submissions made herein. He further prayed that the interim injunction granted herein against the defendants be lifted, and the caveat lodged with the Ministry of Lands be vacated. 3.0 THE PLAINTIFF'S AFFIDAVIT IN OPPOSITION TO THE NOTICE OF MOTION TO RAISE PRELIMINARY ISSUES The plaintiff filed an affidavit in opposition to the 2nd defendant's application wherein Leslie Musonda Mwenya, the Sales Manager in the plaintiff company, deposed as follows: the plaintiff herein commenced the subject action against the 1st and 2nd defendants on 20th March, 2019 and not 5th September, 2019 as averred in the 2nd defendant's affidavit in support. The plaintiff is challenging the 1st defendant's re entry on Stand No. 3816. The reliefs particularly endorsed in the plaintifrs writ of summons and expressly claimed in the statement of claim do not include a declaration that the said re-entry was irregular, RS wrongful or illegal. The plaintiff was at liberty to commence the action herein before the High Court for Zambia. The 2nd defendant' application has been made after commencement of trial and as such is improperly before this court. 3.1 THE PLAINTIFF'S SUPPORTING EVIDENCE The plaintiff filed a list of authorities and skeleton arguments wherein counsel argued that the plaintiff opposes the 2nd defendant's application on both the procedure employed in making the application as well as the merits of the application. He argued that this court can only entertain an application raised under Order 14A of the Rules of the Supreme Court before commencement of trial. He referred this court to the Supreme Court case of Alick Sakala vs Morgan Phiri (Suing as Administrator of Garden North Baptist Church)4 in support of his argument. Counsel submitted that it is undisputed that the application herein was taken out after the trial of the subject matter had already begun as can be seen from the court record, and to that extent the application is incompetently before this court. Counsel argued further that the provisions of Order 33 of the Rules of the Supreme Court operate together with the provisions and requirements of Order 14A, and thus Order 33, just like Order14A, can only be invoked before the commencement of trial. Counsel relied on the case of African Banking Corporation Zambia vs Mubende Country Lodge Limited5 to fortify his argument. As regards the 2nd defendant's reliance on Order 3 Rule 2 of the High Court Rules in bringing this application, counsel argued that this court does not have the discretion to grant an order under Order 3 Rule 2 which has the effect of finally determining the entire action. He submitted that in the case of Bakainde Hichilema and others vs The Government of the Republic of Zambia6 wherein the Supreme Court held that; R6 "Looking at the provisions of Order 3 Rule 2 of the HCR, it is clear that the Order only applies ta interlocutory orders and not final orders. According to Order 59/ lA of the RSC, a Judgment or order of a Court 'Shall be treated as final' if the entire cause or matter would have been finally determined." In relation to the 2°d defendant's reliance on Practice Direction No.1 of 2002, counsel argued that the Supreme Court in the case of First Merchant Bank Zambia Limited (In Liquidation) and The Attorney General vs Al Shams Building Materials Limited and Jayesh Shah7 had occasion to interpret Practice Direction No. 1 of 2002. He argued that the practice direction merely emphasizes the importance of indicating provisions of the law pursuant to which applications brought before the court are made. That the rationale for the requirement provided in Practice Direction No. 1 of2002 was pronounced in the case of EcoBank Zambia Limited vs Ultima Engineering Limited, Derrick Mpundu, National Housing Authority and Stalwart Investments Limited8 • That it was established in that case that the obligation to indicate the provisions of the law pursuant to which an application is made extends to including the correct provisions. Counsel argued that to the extent that the 2nd defendant has relied on the wrong provisions of the law in making the application herein, the court ought to pronounce that the reliance on Practice Direction No. 1 of 2002 is self defeating. That the application is incompetent and as such should be dismissed. In addition to the above arguments, counsel alternatively submitted arguments on merit. He submitted that the questions raised suffered from repetition and that the resolution of question (i) will ultimately resolve questions {ii), (iii), (iv) and {v). Counsel's argument in opposition to whether this court has the jurisdiction to hear a challenge of the re-entry process by the Commissioner of Lands in view of the provisions under Section 13 sub- R7 section 1 and 3 of the Lands Act is that a party is at liberty to commence an action in the High Court even if the said action principally relates to a dispute arising from the Commissioner's exercise of the power of re entry under Section 13 of the Lands Act. That the High Court enjoys both appellate and original jurisdiction in land matters. Counsel argued that the Supreme Court, in the case of Attorney General and 3 Others vs Ambex Clothing Manufactures Limited9 , pronounced itself on the propriety of commencing an action before the High Court relating to a dispute on the re-entry of a property. The court in that case upheld its decision in the earlier case of Union Gold (Zambia) Limited vs The Attorney General10 wherein the Supreme Court held that the High Court's jurisdiction is not ousted by the Lands Tribunal in land matters. Counsel argued further that admittedly, there is an apparent conflict between the Supreme Court's pronouncements in the Polythene Products case and the Ambex Clothing case vis-'a-vis the propriety of commencing an action in the High Court for Zambia challenging the Commissioner of Land's exercise of power of re-entry. That where there is a conflict between two decisions of the Supreme Court, it is an elementary rule of judicial process that the latest decision takes precedent over the earlier one. Counsel relied on the case of Harrison Moonga and Essiah Kalonga Moonga vs Peter Chisi and Winstone Chisi11 to strengthen his argument. He argued that on the strength of that case, the position in the Polythene Products Case has been modified by the Ambex Clothing Case and Union Gold Case. Counsel submitted that the plaintiff was justified in having commenced the action in the High Court and the court has the jurisdiction to entertain the action. He prayed that the 2nd defendant's application be dismissed with costs. 4.0 THE HEARING At the hearing, counsel for the plaintiff and 2nd defendant applied that the applications before the court be decided on the filed documents. RB 5.0 DECISION OF THE COURT ON THE NOTICE OF MOTION TO RAISE PRELIMINARY ISSUES I am indebted to counsel for the arguments and submissions. I have carefully considered the same. The application before me questions the jurisdiction of this court to try the action herein for having being commenced before the wrong forum, that is the High Court. In opposing this application, the plaintiff primarily attacked the procedure employed by the 2nd defendant in making this application after commencement of trial of the action. The plaintiffs counsel argued that this court can only entertain an application raised under Order 14A of the Rules of the Supreme Court before commencement of trial. The said Order 14A Rule 1 provides that; "The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that- (a) such question is suitable for detennination without a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein." While Order 14A Rule 1 above provides that the court has the power to resolve any questions raised at any stage of the proceedings, the editorial notes under paragraph l 4A/ 1-2/ 7 of the same Order provide that; "The application may be made at any time after the defendant has given notice of intention to defend and before the full trial of the action has begun." (Underling mine for emphasis) The above clearly shows that there is a prescribed time limit within which an application may be made under Order 14A of the Rules of the R9 Supreme Court. The issue was further categorically scrutinised by the Supreme Court in the Alick Sakala case, cited by counsel for the plaintiff. The Court held that; "From this passage, it is clear that the court below ought not to have entertained the preliminary issue after trial of the action had begun and in the course of cross examination of PWl. We wish to take this opportunity to draw the attention of trial Judges and all legal practitioners to this very important factor." Going by the provisions of paragraph 14A/ 1-2/7 of the Rules of the Supreme Court and the holding of the Supreme Court in the Alick Sakala case, this application ought to have been brought before the commencement of the trial. The record however shows that the trial of this action commenced on the 11 th September, 2019, and that the plaintiff has in fact closed its case following the testimonies of two of its witnesses, PWl and PW2. It is further not in dispute that the 2nd defendant only made the application herein on 20th August, 2020, which was approximately 11 months following the commencement of the trial. This court is precluded from entertaining applications made after commencement of trial when such an application is made pursuant to Order 14 of the Rules of the Supreme Court. The foregoing notwithstanding, I note that the 2nd defendant did not exclusively rely on Order 14A of the Rules of the Supreme Court in making its application. The 2nd defendant additionally placed reliance on Order 33 of Rules of the Supreme Court, which as correctly argued by counsel for the plaintiff, cannot be invoked to the exclusion of the mandatory requirements of Order 14A of the Rules of the Supreme Court. The Supreme Court holding in the African Banking Corporation case is instructive on this. The 2nd defendant also place reliance on Order 3 Rule 2 of the High Court Rules, which provides that; RlO "Subject to any particular rules, the Court or a Judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not" (Underling mine for emphasis) The above provision clearly specifies that the orders that the court may make under the said Order 3 Rule 2 of the High Court Rules are interlocutory orders, and not orders that may determine the entire action as sought by the 2nd defendant herein. The Bakainde Bichilema case, cited by counsel for the plaintiff, is authoritative on this. Reliance on Order 3 Rule 2 of the High Court Rules in making an application such as the one herein is therefore erroneous. In relation to reliance on Practice Direction No. 1 of 2002, the same provides as follows; "All applications brought to court should indicate the Act and Section or Order and Rule under which the application is brought, failure which the application shall not be accepted for filing or entertained.» The provisions of the Practice Direction No.1 of 2002 are self explanatory. The provision does not give this court the power to hear and make determinations on preliminary issues. Premised on the above analysis of the 2nd defendant's application and the law pursuant to which this application was filed, I find that the application herein was improperly brought before this court, and must therefore fail. On the basis that this court is disallowed from entertaining applications that are brought under Order 14A of the Rules of the Supreme Court after commencement of trial, there is no need for this court to go into consideration of the merits of this application. R11 I will now proceed to consider the application for leave to file a Supplementary Bundle of Documents. 6.0 THE 21m DEFENDANT'S APPLICATION FOR LEAVE TO FILE SUPPLEMENTARY BUNDLE OF DOCUMENTS On 20th January, 2020, the 2nd defendant filed summons for leave to file a Supplementary Bundle of Documents, pursuant to Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia. 6.1 THE 21m DEFENDANT'S AFFIDAVIT IN SUPPORT The application is supported by an affidavit deposed to by one Zaniwe Gumbo, a Director in the 2nd defendant company. The deponent deposed that during PW 1 's cross examination, the witness testified inter alia that apart from the plaintiff company, Jos Hansen Soehne (Z) Limited, there is also another company registered with the Patents and Company Registration Agency (PACRA) under the names of Jos Achelies and Soehne (Z) Limited, or of a similar name to that of the plaintiff company with regards to the words "JOS" and "SOEHNE". That the impression arising from this was that both the plaintiff company and Jos Achelies and Soehne (Z) Limited have, as part of their company names, the use of the word "JOS" and "SOEHNE". That this would imply that the service of the notice of re-entry by the Ministry of Lands intended to be served on the plaintiff company may well have instead been served on Jos Achelies and Soehne (Z) Limited, the other company. The 2nd defendant's legal representatives conducted a search at PACRA to ascertain whether or not there is in existence another company bearing the word "JOS" and "SOEHNE" as part of its company name. That the search revealed that save from the plaintiff company, there is no other company registered at PACRA with the words "JOS" and "SOEHNE" as part of its company name. That the 2nd defendant's advocates further formally requested the PACRA Registrar's assistance in conducting a forensic search in its database, and to advise in writing whether or not there is another company bearing the words "JOS" and R12 "SOEHNE" in its company name, or whether there is a registered company by the names of Jos Achelies and Soehne (Z) Limited. In a letter dated 31 st October, 2019, PACRA advised that Jos Achelies and Soehne (Z) Limited is not registered with the agency unless proof to the contrary could be provided. That the plaintiff and the 1 st defendant have not provided any such proof. Further, that the notice of re-entry in relation to property LUS / 3816 was addressed and directed at the plaintiff and not any other person. The plaintiff and 1 st defendant did not plead the issue of the existence of Jos Achelies and Soehne (Z) Limited, or existence of another company that has the words "JOS" and "SOEHNE" as part of its name. That the 2nd defendant seeks leave to file a supplementary bundle of documents to exhibit documents containing the revelations at PACRA. That the supplementary bundle of documents has already been prepared in readiness for filing upon the grant of the leave by this court. 7.0 THE PLAINTIFF'S AFFIDAVIT IN OPPOSITION TO THE APPLICATION FOR LEAVE TO FILE A SUPPLEMENTARY BUNDLE The plaintiff filed an affidavit in opposition to the 2nd defendant's application for leave to file a supplementary of documents deposed to by one Steven Bwalya. He deposes that PW 1, Lesile Mwenya, testified in cross examination that he was aware of the existence of a company with a name similar to that of plaintiff referred to as "Joh Achelis & Sohne' and not "Jos Achelies and Soehne (Z) Limited". That contrary to the 2nd defendant's averments, PWl never indicted in his testimony that the said company was registered with PACRA. The impression indicated by the 2nd defendant is within its peculiar knowledge as the same was never raised by the parties at any point during the examination of the plaintifrs witnesses, and that the said impression could not have arisen as the name of the company that PWl referred to contains the expressions "Joh" and "Sohne" and not "Jos" and "Soehne". R13 Further, that the applicant has not exhibited the electronically generated PACRA printout form for company searches, serving as proof of the said search. That if the 2nd defendant had conducted a diligent search for "Joh Achelis & Sohne", which was the company referred to by PWl in cross examination, it would have discovered that the company exists. That the letter from the 2nd defendant's advocates to PACRA exhibited as "ZG 1" does not reveal a request for a forensic search as averred in the affidavit in support of the application. That it was the 2nd defendant's advocates who asked PWl in cross examination if he was aware of the existence of a company with a name similar to that of the plaintiff and that he was never challenged to provide proof of the existence or corporate status of "Joh Achelis & Sohne" when he mentioned the same. The deponent conducted a search on 24th January, 2020 which revealed that "Joh Achelis & Sohne" is registered at PACRA, and that the said company is incorporated as a foreign company. A further cursory search on google confirmed the existence of the company "Joh Achelis & Sohne". The documents subject of the 2nd defendant's intended supplementary bundle of documents will not go a long way in assisting this court in resolving the real dispute subject of this action. The documents exhibited as "ZGl" and "ZG2" in the affidavit in support of this application were in the 2nd defendant's possession for almost four months before this application was made. 8.0 DECISION OF THE COURT ON THE APPLICATION FOR LEAVE TO FILE A SUPPLEMENTARY BUNDLE OF DOCUMENTS I have carefully considered the application for leave to file a supplementary bundle of documents. The 2nd defendant seeks leave to produce documents that seek to contradict the testimony of PWl given in cross examination that there is in existence a company with similar names to that of the plaintiff. The documents are correspondences between the 2nd defendant's advocates and PACRA regarding a search conducted to establish R14 " whether a company with the names "Jos Achelies And Soehne (Z) Limited" is registered with PACRA. The 2nd defendant contends that PW I's testimony creates an inference that service of the notice of re entry could have been served on the company with similar names to the plaintiff, and not the plaintiff company. The plaintiff however disputes the 2nd defendant's argument by submitting that there is indeed a company with similar names to that of the plaintiff and that the company is registered with PACRA as a foreign company under the names "Joh Achelis & Sohne" and not "Jos Achelies and Soehne (Z) Limited". I have carefully perused the record, and I have hereunder reproduced part of PW I's cross examination, which is relevant to this application. The cross examination was as follows' "Counsel: Read the line which says Postal Address PWI: Post net Box 302, P/Bag ElO, Lusaka. Counsel: Refers to the I st defendant's Bundle of Documents at page 2. Confirm that the Post Box is EIO, Lusaka. PWl: I can see P/Net Box/ Bag EIO, Lusaka. The other digits or letters are not clear. Counsel: You can confirm that the name of the company is Soehne Zambia Ltd? PWl: Yes I can confirm. Counsel: To the best of your knowledge, do you know of any other company that has Soehne Zambia Ltd separate from the plain tiff? PWl: Yes, the company is Joe Achelies and Soehne Zambia Ltd located in Rhodes park. Counsel: To the best of your knowledge, does this company have a Private Bag EIO? PWI: Not to the best of my knowledge. I can't confirm." RlS I must first address the 2nd defendant's averment that the plaintiff and 1st defendant did not plead the issue of the existence of "Jos Achelies and Soehne (Z) Limited", or existence of another company that has the words "JOS" and "Soehne" as part of its name. This court is having difficulty in appreciating the 2nd defendant's averments when the question on the issue was raised by counsel for the 2nd defendant during the cross examination of PW 1, and not by the plaintiff or 1 st defendant. It is therefore odd that the 2nd defendant wants the plaintiff and 1 st defendant to have pleaded an issue that they did not intend on raising, and one that in fact did not arise in the examination in chief of the plaintifrs witnesses. Having stated the foregoing, I note and must highlight that the extract of the cross examination above reveals that counsel for the 2nd defendant only asked the witness to confirm whether there is any company in Zambia, other than the plaintiff, with the word "Soehne" as part of its name. Counsel did not ask the witness whether there is any other company, save from the plaintiff, with the words "Jos" as part of its name, as averred in the 2nd defendant's affidavit in support of the application. Another important point to note is that counsel for the 2nd defendant neglected to interrogate the witness further to obtain more details of this other company that has a similar name to the plaintiff. Counsel did not, for instance, request the witness to spell out the name of the other company so as to give this court and the parties to this action a clear position as to the actual extent of the similarities between the names of the two companies. As a result of counsel's failure to obtain more detailed evidence as regards the name of the other company, there is an inconsistency in the spelling of the company the witness alluded to in cross examination. While this court recorded the name "Joe Achelies and Soehne Zambia Ltd" as the name of the other company, the 2nd defendant recorded and conducted a search for "Jos Achelies And R16 Soehne (Z) Limited". The plaintiff on the other claims that the company the witness was referring to is "Joh Achelis & Sohne Limited". Premised on the inconsistencies in the spelling, it is difficult for this court to determine the spelling of the company the witness was referring to. It follows therefore that the documents the 2 nd defendant wishes to produce cannot aid the court in any way in resolving the main action. The application is therefore accordingly dismissed. The net result is that both applications by the 2nd defendant are dismissed with costs to the plaintiff, to be taxed in default of agreement. Ruth Chibbabbuka HIGH COURT JUDGE R17 ... ' I J