Mutembo Nchito v Attorney General (29 of 2016) [2018] ZMCC 252 (7 September 2018)

' l. ' \ • • s FOR YOUR SIGNATURE PLEAS~ MULENGA, JC ...... / . . .... P. Y: 1. Q.1 ) ... l ! ....................................... . . MULEMBE, JC ............................................. .................................... . 3 OCf 18 . v MULONDA, JC ..................... · ................................................. . . ~ MUN AL ULA, JC. :/ ... [;;. . . ~ ... ,I,~-.............................................. .. MUSALUKE, JC ........................................................................ . ' v o<t 01 ~ t9 • .. IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL REGISTRY HOLDEN AT LUSAKA (Constitutional Jurisdiction) 2016/CC/0029 IN THE MATTER OF: AND IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC (AS AMENDED BY ACT OF ZAMBIA NUMBER 2 OF 2016) CHAPTER 1 OF THE LAWS OF ZAMBIA AN APPLICATION UNDER (3), 143 AND 144 CONSTITUTION OF ZAMBIA, 1 OF THE LAWS OF ZAMBIA ARTICLES OF THE CHAPTER BETWEEN: I CON~T MUTEMBO NCHITO AND V t F.· ATTORNEY GENERAC O Bf_ 3 A LAMBIA ,h \ u -! - I PETITIONER - ~TP'i' 5 :. 1 1 7 LUS1\KA RESPONDENT Coram: Mulenga, Mulembe, Mulonda, Munalula and Musaluke, JJC on 9th August, 2018 and 7th September, 2018 For the Petitioner: For the Respondent: Mr. M. Nchito (SC) in person, assisted by Mr. C. Hamwela of Messrs Nchito & Nchito Mr. A. Mwansa (SC), Solicitor General Mrs. K. Mundia and Mr. F. Mwale of Attorney General's Chambers RULING Mulonda, JC, delivered the Ruling of the Court Rl ~ ... .• I , . ,. f' AUTHORITIES REFERRED TO: 1. Chikuta v Chi·pata Rural Council (1974) Z. R. 241 2. New Plast Industries v Commissioner of I:,ands and Attorney General [2001] Z. R. 51 3. Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) SCZ/8/52/2014 4. Raymond v Tapson [1882] 22 Ch. D 430 CA 5. Harmony Shipping v Saudi Europe Line [1979] 1 W. L. R. 6. Boeing Co. v PPG Industries Inc. (1988] 3 ALL E. R. 839 7. London & Leeds Estates v Paribas (No. 2) [1995] 1 E. G. L. R 8. Secretary of State v Mask and Company A. I. R 1940 P. C. 9. Panayiotou v Sony Music Limited [1994] CH. 142 10. Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and Attorney General Selected Ruling No. 29 of 2018 LEGISLATION REFERRED TO: 1. The Constitutional Court Act No. 8 of 2016 2. The Constitutional Court Rules Act, S. I. No. 37 of 2016 3. The High Court Act, Chapter 27 of the Laws of Zambia 4. The Rules of the Supreme Court of England 1999 Edition OTHER MATERIALS REFERRED TO: 1. Halsbury's Laws of England, 4th Edition, Volume 37 2. Bryan A. Garner, 'Garner's Dictionary of Legal Usage', 3rd Edition 3. Christopher Style and Charles Hollander, 'Documentary Evidence', 6th Edition 4. Phipson on Evidence, Sweet & Maxwell, 18th Edition 5. Phipson on Evidence, Sweet & Maxwell, 14th Edition R2 • .- • • 1 ' I 1' This is the respondent's application to set aside the subpoenas issued in this matter for irregularity. The application was made pursuant to sections 9 and 13 (1) and (2) of the Constitutional Court Act, Order 1 Rule 1 ( 1) and (2} of the Constitutional Court Rules as read together with the provisions of Order 38 Rule 19 (3) and (25) of the Rules of the Supreme Court Practice of England, 1999 Edition (RSC). The applicant's affidavit in support states that the said subpoe1-ias were irregular as they were issued without leave of this Court as required under Order 38 Rule 19 {3) of the RSC. In support of the application, the respondent relied on written submissions filed into Court dated 7 th December, 2017. It was submitted that the petitioner caused to be issued out of the Constitutional Court registry subpoenas directed at the former Chief Justice of Zambia, Mr Justice Annel Silungwe (retired) in his capacity as former Chairperson of the now defunct Mutembo Nchito Tribunal; Mr Justice Mathew Zulu and Mr Justice Charles Zulu, Judges of the High Court in their capacities as former Secretary and Deputy Secretary respectively of the said Tribunal. R3 . -· . ' • l - • '1 The provisions of sections 9 and 13( 1) and (2) of the Constitutional Cou rt Act were cited which provide for the summon ing and attendance of witnesses at the Court's own instance or by an application of a litigant before th is Cou rt. It was submitted however, that neither t h e Act nor the Rules of this Court gave guidance on the procedure to s1-1bpoena a witness and th at under th e circumstances Order 1 Rule 1(1) and (2) of the Constitutional Court Rules provides that in the ab sence of any particular point of p r actice or procedure, the practice and p rocedure of the Court s h a ll be, amon g oth er sources, th at of the Court of Ap peal in England as provided for in the Supreme Court Practice , 1999 edition (White Book) of England (RSC). In particular, Order 38 Rule 19 (3) of t h e RSC provid es th at: issued, a praeoipe duly ''Before a subpoena may be completed must first be filed in the office from which it is issue. Any party may issue a subpoena for the to the production of examination of witnesses or documents by him, at any stage, without the leave of the Court ... On the other hand, subpoenas may not issue to compel the attendance of a witness for the purpose of proceedings in chambers, except with leave ... Similarly, before a subpoena can issue for attendance in the Court of Appeal, leave must first be obtained from that Court by motion or notice, after which the subpoena will issue out of the central office.'' (Emphasis theirs) for R4 I \ • • • I I ~ Order 38 Rt.1le 19 (3) of the RSC requires that leave of court be obtained before the issuance of a subpoena i11. matters before chambers or in the Court of Appeal. It was argued that the petitioner therefore ought to 11.ave sought leave of this Court before causing the subpoenas to be issued out of the Constitutional Court registry. Counsel proceeded to submit that where a statute provided for the procedure of issuing a subpoena, litigants had no choice but to follow that procedure . For this submission, counsel refe,rred to the cases of Chikuta v Chipata Rural Council1 and New Plast Industries v Commissioner of Lands and Attorney Genera12 where the Supreme Court gave similar guidance on the need for litigants to follow the prescribed modes of commencement in statutes. Emphasis \Vas placed on the reasoning of the Supreme Court in the New Plast case2 where it was held that: ''Where any matter is brought to the High Court by means of an originating summons when it should have been commenced by a writ, the court has no jurisdiction to make any declarations.'' RS , l .• • i The le,arned Solicitor General ,contended that a part. Y was restricted t,o the provisions of a statute and had no choice on the procedure to .follow when iss.uing a subpoena other than to do so with leave of ·th:e Court either b·y w ,ay of motion or n ,otice. It was further submitted that ,despite the Constitutional pr,ovision relating t,o the administrati,on .of justi,ce with,out undue regard to p,rocedural technicalities, procedure ought to, be followed as expounded by th,e Supreme Court in the case of Ac,cess Bank (Z)1 Limi,ted v Grou.p Fi,v,e/Zc:on Business Park Joint Venture (sued as a firD1) 3 wher·e it was stat,ed that: '',All w,e can say is that th·e Co,n .s ·titution never 1t1eans to, oust the ob,ligat·i,ons ,o,f litigants to c 101nply with proce 1dur·al intperatives ,as. they see:k just.ice fr,om the c ,0 1urts. :'' It was submitted that the Supreme Court in addressing the issue of br 1each. in procedure in the A.cces,.s Bank3 cas,,e, went on to state that: ''We have in niany ca,ses c,onsistently held the view th.at 'it is desir,abl,e for ,m ,atters to be deterntine,d ,on th,eir 1nerits an,d in finality rather than on tech.ni.calities and, pie,ce 111eal. The c,ase:s, of S,tanle,y 'Mwam.bazi v Mor,ester ,Farnis Lim,ited and W,ater Wells, Lim.ited v Jackson are ,auth,o,r .ity R.6 . ..... J • I h ld- ffi- ·t· M t-t W' ·'t· th '. t-h '. , ' a , , ers s -, ,ou ' -_, ,1.or , -, · 1s, pos1 ion., - e a , 1rm - · 1s pos1 ,ion. 1 Ir.' ,as inuch, as pos,sible, be determined on 'their inerits rather than be di,s,pos,ed of on techni,c ,al or pro,cedural p,oints. T:his, ,in ,our opinion, i,s what the e,:n,ds of j'ustice demand. 'Ye,t jiustice al,so requires that thi,s c,o,u.rt, indeed all courts,, must ne:ve·r, provide succour t,o _ litigants and their co,unsel who ~xhibit scant respect for rul,es ,of p_rocedure. Rules of pro,cedur,e _ and tim.eli,µe~ serve t:o ma,ke the pr,oces,s _ of adjudi.,ca,tion fair, just,, certain ,and even-h.an,ded .. Under, the g:uise of' justi.ce through hear.ing niatters ,on their merit, ·Courts, cannot aid in the bending or circumven,ting of these rules an,d _ s .hifting goal po,sts, for wh,ile laxity ,in ,aHpli,cati 1on or· the rules ,may see111 to aid one sid,e, it unfai:rly, harrn.s the inn 1ocent pa,rty who strives t,o ab,id,e by the ru:les. ,A fairly well es,tablished and consi.s,t ,ent corpus, juris on the effects, of failu.re to c ,omply with rules o·f court, . t ,,, (E -1SJ:ur1s _,,1,c 1 _1on ... ,-- _ ,_'_ mp . as1,s ,,,,, e1rs ex1s sin ,. d ,. t ., t· h- .. h t' .h- ,. ,., . • ) It was sub,mitted that the petitioner had wrongly caused to be iss,ue,d the subpo,enas ,as leave of· this Court was not sought. W,e wer 1e therefore urg 1ed t,o set a,.side th,e sub:p,oen,as for irregularity. Augmenting the submissions, the learned Solicitor· General stated that the subp,oen ,as were improperly befo,re this Court and that a perusal of the record would show that the p,etitio,ner di 1d not mention the d,ocuments which the witnesses were r,equir·ed to produce as part of thei1- evidence. Counsel argu·ed that ,a subpoena 1ought to b ,e set aside if it was considered to be oppressive, that is wher 1e the court in the matter denied its d iscov,ery. Tha in the cas,e R7 • • l • I • at hand) this Co"L1rt de11ied the discovery of the Report of the Tribunal in its Ruling dated 19th October, 2016. It was therefore prayed that the subpoenas b e set aside for irregularity. In opposing the application~ the petitioner relied on submissions filed into Court· dated 24Lh July, 2018. The gist of the response being that the petitioner was at liberty to call any witnesses that were 11.ecessary to prosecute his claim in light of the fact that he was denied access to the Report of the Tribunal that recommended h is removal from office of Director of Public Prosecutions . The p etitioner posed what he ter1ned as a rhetorical que stion which read as follows : ''If the petitioner does not have access to the Report of the Investigative Tribunal that recommended his removal and if he is not allowed to call the investigators, then what is the purpose of these proceedings? How is the petitioner going to challenge the tribunal whose report he does not have and whose membe.rs he cannot call to testify?'' In responding to the submission on the provisions of Order 38 Rule 19(3) of the RSC regarding leave of court to issue subpoenas for attendance of witnesses in chambers or in the Court of Appeal, it R8 I t o I I I was argt1ed that the Co1-1rt of Appeal did not hear witnesses as a matter of course and that it was unusual to hear witnesses in chambers, therefore in those instances, it was necessary to seek leave of court as tl-ie same were a departure from established practice . The petitioner emphasised that this Court was exercising its original jurisdiction as a trial court whose procedure to subpoena a witness was provided for by the same Order 38 Rule 19 (3) of th e RSC as follows: issued, a praecipe duly ''Before a subpoena may be completed must first be filled in the office from which it is issue a subpoena for the issue. Any party may to for the production of examination of a witness or documents by h i m , at any stage, without leave of the Court ... '' It was argued that the subpoenas in question were issued after a duly filed praecipe was dealt with by this Court. It' was also submitted that the respondent would not suffer any prejudice regardi1-ig the subpoe1-ias that were issued to aid the petitioner's case. It was prayed that this Court dismiss the application by the respondent and allow the matter to proceed . R9 ' ' In augmenting h.is submission.s, th 1e petitioner stated that the argument b 1y the respondent that the subpoenas were a m ,eans of requesting for the Rep,ort of· the Tribunal was mi.sconceived. He argued that the said subp,oenas, were not. meant to obtain the Report as the same was. denied b,y the single Judge o,f this, Court as being an issue for the Courts'· determin,ation or interpr,etation in ex,ercising its jurisdi,ction. In r,e·s.ponding to, the requirements und 1e·r Order 38 o,f the RSC to strictly tollow the rules of Court, Mr Nchito, SC argued that the affidavit in sup,port of the application before Court was err 1one,ously sworn ·by the respondent c 1ontrary to Order 38 Rule 19 (2:5) of the Rs.,c as the respond,ent had no· right to swear an affidavit on behalf ,of a witness. In respo,nding to the issue of a formal applicati 1on for l 1e·ave to issue sub,poenas, Mr Nchito, SC argu 1ed that this r,equirement raised a 1challenge of determ·ning who would resp11ond to, th,e ap·plication between th,e witness and the litigant. That to allow such a situation wo,ul,d lead to an absurdity as a party would be obje·cting to ,a witness being ,called in aid o,f the other p ,arty's cas.e, thus creating an injustice. RIO .. ... • I • I I Mr Nchito, SC cited the provis.ions of section 27 of the High Co.urt Act for illustrative purposes and stated that the provision was similar to section 13 of the Constitutional Cou1-t Act and it referred to the practice of a court sitting in its original jurisdiction. He reite·rated that under such circumstances where the court was constituted as a trial court, there was no need for leave to issue subpoenas. He further contended that the question of calling witnesses was at the Court's discretion for purposes of justice. In concluding, Mr Nchito, SC in the a lternative made an oral application for leave to issue the subpoenas before Court. In his brief reply, Mr Mwansa, SC argued that he swore :his affidavit in his capacity as counsel for the respondent where he merely stated that the petitioner ought to have sought leave to issue the subpoenas. With regard to the provisions of section 27 of the High Court Act and section 13 of the Constitutional Court Act, it was submitted that the procedure obtaining before this Court was the same as the procedure in the Court of Appeal in England which required a party to seek leave to issue a subpoena. Rll # • I • t • :I - ~ ,counsel ,em·phasised ·that the provisions of Q,rd,er 38 Rule 19 (3) of the RSC were ,c,ouched in mandatory terms requiring: a ~arty to seek I !,eave by w~y o,f m ,otion or notice and n ,ot in the ,oral mann,er that the petitioner had done. It was submitted that the petitioner's applic,ation was. late and irregular and ought n ,ot to b,e ,entert.ained by this Court. It was lastly pr·ayed that the sub,poenas be s,et aside f o,r irr,egulari ty~ Having considered b,oth written and oral arguments from b,oth parti,es in this application, we intend t,o b ,egin b,y examining the subpoenas before us to establish whether they are irregular. We I to,ok time to consider the law, practice and proce,dure pertaining to th,e iss,uance of subpo,enas. Section 9 of the Co,nstitutional Court A.ct provides that: '''The jur.isdic,t :ion vest·ed in t .h.e Court shall, as. regar,ds in the m .anner :p,racti,ce and procedure,, be ex,er,cise,d ,p,rovided by this Act and the Rul.es. '' Further, s ,ection 13 ( 1) and (2) of the sam,e A.ct provides that: ''(1) The Co,urt, may, i:n any suit ,or ma.tter in whi,ch the Court • • 10n -- 1s exercising o,r1g1n,a : Juris - 1 1c 1 , . . , 1 . . d'' ' t ·· • . · R12 Ii I l I (a)Suninion. a person to gi.ve evidence or prod.uce a do,cum,e .nt in that pe.rson.'s p,ossession or p·ower; an·d (b)E:xamine a person as a witness .and require th,e perso1n to pr·oduce any do,cume·:nt in that perso1n's possession or power. (·2) The ,court .m.ay, at an·y st,age o .f a. suit or n1atter, exercis,e the p,o,we.r in s.ubse,ction {1) on its own motio,n or on. the .applica·tion of a p .arty to the suit or· n1atter. '' (EID.p·hasis ours) A rea,ding 1of the· ,above provisions shows that the summoning ,of witness.,es. wh,en the court is exercis.ing its orig:inal jurisdiction is ,either on the ,court's o·wn motion O·r on the application o.f a p .arty to the suit. Ho,wev,er, the s.pecific p·ro,cedure t o· b,e employed at the inst,ance of .a party's applicati·on is not p·ro,vided for in our Act. Therefor,e gu.idance must be sought from the p :ovisions of Q,rder 1 Rule 1 (1) and (2) of the Cons·titutional ,court Rules wnich provides that: '',( 1 )1 The jurisdictio,n vested in the Court. s.hall., as regar,d.s. .an,d p:ro·cedure, be exe:rcis,ed in th,e manner practice ·the C.rim·in,al prov.ide,d by the A·ct and these: Rules, Pro.cedu -1e Code or .any 0th.er written law, or by su.ch rules, . ,orders or directi.on.s ,o,f th·e Court as may be 1n.ad,e under th.e A,ct, the Cri~in.al P.roce:,d·ur·e ,code or s.uc:h wr·itt,en la.w, .and in d:efaul·t thereof i.n su.bstantial c:o,n.for.m :ity wi.th the ,Suprenie Court Prac·tice, 1.999 (Whit.e Book) 1of En.glan.d ,a:nd the law ,and pra.ctice ap,plicable: in Engl.and in the Court of Appeal up t·o 31st De,cemb,er·, 1999. :R13 ' } ) ('2) Wh,ere the Act an.d these Rules do not ma -.e provision io.r a.ny p.articular p·O·int of practice or pro1cedur,e ., the p,ractic:e and p·ro,ced·ure ,of the ·Cou:rt shall be a.s nearly as m .ay be in accordan,ce ·wit.h the law and. practic.e for the time being observ,ed ·in the Court of A.ppeal in ~ngl.and .. '' Fr·om th,e abo,ve Order, making us.e of th,e default po,sition, the Sup,reme Court Practice 1999 Edition of England beco·mes the so,ur,ce of practice and procedure for the issuan·ce of subpoenas .and particularly Order 38 Rule 19 (3) and (25,) of the RSC \vhich provide that: issue a s.ub,poena '',(3)1 Befor,e a sub,p,o·ena may be issued, a praeci.pe duly c ,ompleted must first be filed in the office fro.nt wh·ch it is .for the issu.e. Any p,arty m.ay to exaniinat.ion of witness.es or the pr,oduction of d,ocutnen·ts by him, .at any stag,e, without the le.ave of the ,Court, i.e .. subp,oen,as issu.e as of c:ourse wit:hout ord.er,. for attendance fo,r tr·ial before a Ju,dge ... Si. Illil.arly, befor·e a sub -. oen.a can. issue for atten,dance .. in the Court ,of A · -eal . leav~~ rnq,~t. ~fi:fs.t _be· Q]lt.ained_!ro:m thl\t Cour~t · y m.·ot~i·9~n or notic·e,, aft.e ·r _ which the sub,po,ena will _issue _ out o:f the Central Offi.ce. 1(Em.p:h ,asis ours) for - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (25) ... The C,ourt will also set aside a subpoena in a case wh:ere a statute ex,cludes the power to is.su,e it and it will set asi·de a subp,oen.a ,duces. tecunt w.hich is oppress,i.ve, ,e.g. w:hi·ch relates to docu:ments discovery of wh.i,ch has been refu.s ,ed by the Court.'' Rl 4 f ' ~. ' • ) .. As we stated in our ruling in the cas,e 10,f H,akain,de Hichilem.a an 1d. G 1eoffr,ey Bwalya. Mwarnba v E·d,g,ar Chagwa Lungu and Attorney G1eneral10 , notes acc 1ompanying rules such as those in sub-rule 25 above, ar 1e no,t in themselves rules but give m ,eaning and import of the rule in question. In this regard, notes accompanying Or,der 38 Rule 19· (25) o,f the RSC are in our view help,ful in as far as un,d.erstanding the circumst,ances when subpoen,as may be set asid,e. In the circumstances of this case where the rules a:re that the p,ractice an 1d pr 1oce,dure should be that obtaining in the Court o,f· Appeal in England, the rule as stated ,above requires ·that leave mus,t b ,e ,obtai.n ,ed fro 1m the court by motion or notice after which the s.ubp1oenas will issue out of the C 1ourt registry. We are therefore of the fir1n view that the applicati·on by a party to issue subpo,enas referr 1ed to in S,ection 13 (2) of the Constitutional Court Act is an application for leave to issue the same ,. We n ,ote that the petitioner did, in the alternative, make an oral ,ap,plicati,on for leave to issue the subpoenas. We r,efus 1e to grant the same as the application is irregula.r in that it ought to have been by R15 • 1. • • • - way of motion or notice as provided for under Order 9 Rule 20 ( 1) of the Constitutional Court Rules or Order 38 Rule 19 (3) of the RSC. It is important to note that the purpose of seeking leave to issue a subpoena under such circumstances is to ensure that the summoning party has not abused their privilege of summoning witnesses. This was laid down in the ca.se of Raymond v Tapson4 at page 435. Also, for orderliness, an application for leave to issue subpoenas is important as it accords the court with an opportunity to investigate whether the subpoenas have met all the requirements relating to form as laid down by law. It therefore becomes obvious that in this particular case as in the Court of Appeal in England, leave ought to be obtained before subpoenas can issue. This we note vvas not done by the petitioner. Another issue that we feel is important in the issuance of subpoenas in this matter is a consideration of the correct form that a subpoena ought to take. By way of definition, Garner's Dictionary of Legal Usage, 3rd edition, defines a subpoena as follows: R16 • • ' . } ·- . . ''A subpoena ad testificandum is a subpoena to testify; usually, when subpoena is used alone, the word refers to this type. A subpoena duces tecum commands the witness not only to appear but also to bring specified books, papers, or records.'' From the above authority, it is clear that a subpoena duces tecum ought to specify the documents that one is required to produce at trial. The documents sought must be identified with specificity by means of a particular des criptio11 and not a general description. The documents must either be individually identified by reference to a class of documents or things by which criterion the recipient can know what obligation the court places on them. The learned authors of Documentary Evidence, 6th Edition at page 352 in addressing how specific a subpoena must be, state that if the documents are not specified with the necessary particularity the subpoena will be s et aside . Tl1ey go on to cite the case of Panayiotou v Sony Music Ltd9 where it was held that there must be specific documents identified in a subpoena which are known or believed to exist. This requirement is important as the recipient should be able to determine from t h e description of the documents required precisely what documents are covered . It is on this basis R17 • ' I l ' ~ ' • • . th at eith er the witness or the oth er litigant to an action is able to raise an objection as we guided earlier. We note that two out of the three s u bpoenas before this Cour t require the witnesses to p roduce d ocumen ts ; these are directed to Justice Mathew Zulu and Justice Charles Zulu , in th eir capacities as former Secretary and Depu ty Secretary of th e now defunct Mutembo Nchito Tribunal. The two subpoenas alluded to do not specify the documents tl1.at the petitioner desires th e witnesses to produce at trial. In that respect, th ey are irregular. The lea rned authors of Phipson on Evidence, 14th Edition at page 138 note as follows: ''Litigation does not always produce perfect justice, but it is in our view unjust and unnecessary to restrict a party to putting forward only half his case, when the rules of evidence do not compel any such restriction. There may be a residual discretion in the court to disallow subpoenas on discretionary grounds, but it is respectfully submitted that such a power is vestigial only, and should be exercised only very rarely, if at all ... To say this is not to deny that the courts have an inherent jurisdiction to prevent their machinery being used as an instrument of oppression. Indeed, a litigant may be prevented from calling an undue multiplicity of witnesses.'' R18 ,( • \ I • ~ t... ( ~ • In this particular case, it is our considered view that. the procedure of· seeking le,ave to issue subp,o,en,a by way ,of notice ,or motio,n was not followed b,y the petitioner thereby r,en,dering them irr,egular. We are also, of the view that the two sub,poenas duc,es tecum issue,d by the petitioner are equ,ally irregul.ar in form as they do not specify the d.ocuments r,equired to be· produced at trial. Befo.re w,e conclude, the p,etitio,ner in his arguments questioned the capacity under which the respondent swo,re the affidavit o,n beh,alf o,f the witnesses as he did not hav,e a power of at·torney to, do so .. He argued that such c,o,nduct flew in the te,eth of ,order 38 Rule 19 (25) of the RSC which the respondent. s,ought to rely on. The petition,er further submitted that the r,,espond,ent's application was an attempt at undermining the petition,er's right to b,e heard which included calling witnesses that one deeme,d fit. In his response, the Solicito,r General s,tated that his affidavit was cle,arly sworn in his capacity as counsel app,earing for the respondent and that he was mer,ely stating at paragraph 4 that the p,etition,er ought t,o have so,u ,ght leave of court before issuing th,e subp,oenas. IR19 • I .i. .. • • t "" t_ V • In addressing the question of who can apply to set aside a subpoena i11 this instance, reference is made to the learned authors of Documentary Evidence, 6th Edition , at page 354 who state that the correct person to challenge a subpoena is obviously the party to whom the subpoena is directed. The learned authors go on to cite the case of Harmony Shipping v Saudi Europe Line 5 where it was suggested that the other party to litigation would not normally be entitled to set aside the subpoena as it would not seem attractive for one party to the litigation to be seen to be trying to object to the admission of relevant evidence. Further, the learned authors cite the case of Boeing Co. v PPG Industries Inc. 6 at page 842, a case on whether there was a right to object to the production of documents , O'Connor W suggested that the appropriate course would have been for the other party to object not to the subpoena but to the production and admissibility of the documents when the subpoena is complied with in court. In considering this issue i11 detail, Mance J in the case of London & Leeds Estates v Paribas7 , also cited by the learned authors, recognised that in the u sual case, the other party would have no R20 locus to object. It was noted however, that there were cases in which another person or the other party to litigation would be able to object. In support of th e above position, the learned authors of Phipson on Evidence, 18th Edition, note at p age 240 that not only may the person to whom the witness summons is directed apply to set asid e the witness summons ) but the owner of the documents requested in the subpoena 1nay object and where the confidential or private documents are required, a person who is owed a duty of confidentia lity by the holder of the documents may also object. It is not necessarily the case that the other party to the litigation has a right to set aside a witness summons, although in s pecific instances, the litigant may object a s highlighted above. The learned authors go on to state that if a general right were recognised in an opposite party to raise objections to the witness summons , this may encourage ancillary litigation. Having established t he above position, we feel it is critical at this point to highlight th e grounds for setting aside a witness summons at the instance of a litigant being the other party. According to the R21 learned authors of Documentary Evidence, 6th Edition, the most common grounds for setting aside a witness summons by the other party are as follows; lack of specificity in the subpoena duces tecum; oppression, that is, requesting for a document whose discovery was de11.ied by the court; confidentiality, that is, a third party should not be required to divulge confidential documents in a litigation that he is not a party to; if the request is irrelevant, fishing or speculative and if the documents are privileged. In concluding, under the circumstances of this case, we find all three subpoenas irregular and therefore set them aside for irregularity. M. S. Mulenga Judge Constitutional Court E . Mulembe Judge Constitutional Court • I M. M. Munalula Judge Constitutional Court ~ Court M. s luke Judg Constitution 1 Court R22