Libian African Investment Company Zambia and Others v Khalil and Another (HP 304 of 2016) [2016] ZMHC 77 (3 March 2016)

2016/HP/304 Rl IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT LUSAKA (CIVIL JURISDICTION) BETWEEN: LIBIAN AFRICAN INVESTMENT COMP. LIMITED SHUKRI ESIDIEG AHMED ELJAIDI AHLAM HAMOUD AND TAHER AMMAR MOHAMED KHALIL CLEMENT WONANI I ST DEFENDANT 2ND DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE P. C. M. NGULUBE IN CHAMBERS FOR THE PLAINTIFFS : MR M. MWANSA- MESSRS MAMBWE, SIWILA AND LISIMBA FOR THE DEFENDANT: MR D. BWALYA- MESSRS LLOYD JONES AND COLLINS RULING Cases referred to: 1. 2. Lumus Agricultural [1999] ZR 9, Service Co Ltd v Gwembe Valley Development Ltd National and Gridlays Bank Limited v Vallabhji and Others ER 626 [1966] 2 ALL Legislation referred to: 1. 2. Authentication of Documents Act, Chapter 75 of the Laws of Zambia Rules of the Supreme Court of England (1999) Edition R2 This is a Ruling in respect of a Preliminary issue raised by Learned Counsel the Plaintiffs pertaining to the Affidavit in Opposition to Summons of Interlocutory Learned Counsel in Malta and Authentication expunged from the record due to the unauthenticated for for an Order filed by the Defendants 2016. that exhibits "TAMK3" to "TAMKll" were executed in accordance with the the Affidavit be are of Documents Act. He thus Injunction submitted to be authenticated that exhibits. on 24th February, supposed applied for the Defendants Learned Counsel that a Notice to raise a Preliminary issue was supposed to be served on the Defendants before the Plaintiffs were thus estopped from the preliminary issue was raised. That to raising the Preliminary issue as it deprived the Defendants make a meaningful response to the issue raised. the opportunity in response submitted In reply, Learned Counsel be raised at any stage and that procedural argument the eyes of the Law. for the Plaintiff stated that a Preliminary issue can to use a to challenge a matter which was fundamentally wrong in it was wrong for the Defendant I have carefully considered hasten to state England allows motion. In particular, Order 14A (2) of the Rules provides that- I that Order 14A of the Rules of the Supreme Court of filing a a party to raise a preliminary the submissions made on behalf of the parties. issue orally without under "An application motion or(notwithstanding orally in the course of any interlocutory Court. " Order 32, or rule 1) may be made to the application rule 1 may be made by summons It is thus procedurally issue Preliminary issue. orally despite proper not having for the Plaintiffs to have raised the Preliminary a filed the Notice of Intention to raise The Authentication stipulates In the Development Ltd (1999) ZR 9, the Supreme Court of Zambia held as follows; of Documents Act, Chapter 75 of the Laws of Zambia executed outside Zambia. case of Lumus Agricultural Service Co Ltd v Gwembe Valley the manner of authenticating documents as "if a document provided by the Authentication then it shall be deemed or presumed to be valid for use in this in Zambia is authenticated of Documents Act, executed R3 Country and if it is not authenticated the converse is true that it is deemed not valid and cannot be used in this country." The Supreme Court in the above cited case agreed with the English decided case of National and Gridlays Bank Limited v Vallabhji and Others [1966J 2 of ALL ER 626 and went on to hold that despite a Notice of Appointment Receivers being executed outside Zambia and not having been authenticated in of Documents Act, it was valid between the parties line with the Authentication but ineffective against the third parties. The Supreme Court stated thus- or registered "we agree with the decision that an instrument which is not is valid between the parties but attested ineffective against other persons and that it is precisely the position with the case presently before us. The notice of can be said to be valid between DEG and the appointment appointees, the joint Receivers and Managers but ineffective for purposes of receivership and management of the affairs of the Respondent, being the other person." that is noteworthy in the Affidavit of 24th I have thoroughly perused through the subject exhibits February, 2016 and it by the Plaintiff Company appointing the 1st Defendant as its General Manager. This document in it is valid as between that, while "TAMK3"is not valid as regards as its the parties, appointed agent. Therefore, can rely on "TAMK3" and can accordingly so exhibit in my view falls within the exception set by the Supreme Court is the 1st Plaintiff Company and the 1st Defendant it in his Affidavit of 24th February, 2016. "TAMK 3" is a resolution the 1st Defendant third parties, that and parties to third they comprise of correspondence exception from the Plaintiff As to the other exhibits, Company Lumus set therefore Agricultural Service Co Ltd v Gwembe Valley Development Ltd does not as prescribed by the extend to them. Failure to have the exhibits authenticated them invalid for purposes of use in Authentication of Documents Act, renders in the Affidavit Zambia and therefore cannot be exhibited by the 1st Defendant the Affidavit of 19th of 24th February, February, 2016 as well. 2016. This position holds true the for in • R4 In the premises, I uphold the preliminary issue in part and expunge these exhibits from the said Affidavits with an exception of "TAMK3"in the Affidavit filed on 24th February, 2016 and "TAMK2"in the Affidavit filed on 19th February, 2016. Costs to be in the Cause. Dated this 3rd March,2016 Qv. ........................... P. C. M. NGULUBE HIGH COURT JUDGE