Dolomite Aggregates Limited v Paul Marais (APPEAL NO. 254/2021) (19 March 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 254/2021 HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) BETWEEN: DOLOMITE AGGREGATES APPELLANT AND PAUL MARAIS RESPONDENT Coram: Mchenga DJP, JJA On 10th October 2023 and 19th 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 Corporate Finance Group Ltd v . Bankers Trust Co· [1995] 2 All ER 993 4 . Ryan Zaloumis v . Ruks Haulage Limited 2015/HPC/0026 5 . Charles Kajimanga v . Marmetus· Chilemya, SCZ Appeal No . 50 of 2014 6. Di pak Patel v . Minister of Finance and The Attorney General 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 This appeal originates from the ruling of the High [11 Court (Bowa, J.) , delivered on 26th February 2021 . By that ruling, the appellant' s objection to the c21 production of certain documents by the respondent was dismissed. Through this appeal, the appellant seeks to reverse (31 that decision . BACKGROUND On 28th March 2018 , the respondent, a former employee [4J of the appellant, by writ of summons , commenced an action against the appellant . J3 His claims against the appellant included claims for cs1 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 negligentl y causing distress, mental stress, emoti onal turmoi l and anguish on him. On 1st October 2019, pursuant to Orders 9, 10 (1), 13 C6J (1) and 24 (11) (c) of the Rules of the Supreme Court 1999 Edition, the appellant filed a notice of object ion to the production of certain documents on the respondent' s list of documents. The documents whose production was object ed to, were : [7J 1 . WhatsApp messenger messages (Messages) between Datlton Ross and Paul Marais dated 19. 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 . The Messages between Dalton Ross and the respondent, cs1 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. As for the Messages between the respondent and Diego C9J Casilli, they were objected to on the ground that they were either redacted or were incomplete . They onl y showed a portion of the conversations and were misleading as they did not depict the full nature of their conversations . The appellant argued that it was in the interest of c101 justice that the respondent be ordered to produce all the conversations between himself and Diego Casilli . In response to the abjections, the respondent averred c111 that all the documents produced were important and JS relevant, as they relate to the claims in his statement of claim. The Messages were essential to prove his allegations (121 of harassment, threats and intimidation . As for the Messages between Diego Casilli and the [13J respondent , it was argued that the appellant had the opportunity to address their concerns regarding the "completenessu of messages during cross-examination at trial . DECISION OF THE TRIAL JUDGE As regards t he Messages between the respondent and r141 Diego Casilli, the trial Judge took the view that the issues raised were matters that could be raised at trial . The court would then consider whether the r1s1 requirements for establishing the integrity and authenticity of the documents as prescribed in the Electronic Communications and Transactions Act had been met. Thereafter, the court can decide on the weight to r16J be attached to the documents as provided for by Section J6 8 of the Electronic Communications and Transactions Act. As for the other documents, that is , the Messages [111 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 Two grounds have been advanced in support of the [101 appeal . They are couched as follows : (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 st GROUND OF APPEAL In support of the 1 st ground of appeal, cases c191 including the cases of Shamwana v. The People1 and Liswaniso Sitali v. Mopani Copper Mines2 were referred , to and it was submitted that only relevant evidence can be presented to the court for consideration . In this case, it was argued, the Messages between c201 Dalton Ross and the respondent, the PACRA Computer Printout on Dolomite Aggregates Ltd. , the PACRA Computer Printout on Dolomit e Roads and Construct ion Ltd. , Paul Marais' passport and Paul Marais' work permit, were not relevant to the issues in controversy . This is because they do not in any way substanti ate c211 the respondent' s allegation that he executed the Deed under duress . Further, as for the Messages between the respondent c221 and Diego Casilli, it was also submitted the redacted portions, render the portions produced misleading and do not give an honest picture . JS The case of GE Capital Corporate Finance Group Ltd c231 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 . On the same point, Section 8 (2) of the Electronic c241 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 . Further, it was submitted that the Messages breach c2s1 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 onl y excerpts of the Messages were availed, the conversation was incomplete . Finally, Counsel referred to Section 2 of the c261 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 2ND GROUND OF APPEAL Coming to the 2nd ground of appeal, it was submitted c211 that the trial Judge ought to . have considered the relevance of the Messages out rightly, before trial. The cases of Ryan Zaloumis v . Ruks Haulage Limi ted4 c2s1 , Charles Kajimanga v . Marmetus Chilemya5 and Dipak Patel v Minister of Finance and The Attorney General6 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 . We were urged to find merit in this appeal and allow c291 it . RESPONDENT' S ARGUMENTS IN RESPONSE TO BOTH GROUNDS OF APPEAL The respondent ' s response to · the two grounds of c3oJ appeal was simultaneous. It was argued that the documents objected to on c311 grounds of irrelevance, are in fact relevant . JlO Reference was made to the definition of the term c321 ' relevant' in Black's Law Dictionary and it was submitted t hat the document s are relevant to thP. issues in dispute as they will substantiate the respondent' s claims against the appellant . Reference was also made to the cases Edward Jack C33J 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 . As regards the Mes sages between the respondent and C34J Diego Casilli, they are also relevant as they support his claims of harassment and duress . Further, it was submitted that the Messages were not c3sJ 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 liberty to produce the entire Messages to rebut the respondent' s evidence during cross- examination . Jll With regard to the PACRA print outs, work permit and [36J passport, it was contended that these documents are of probative value as they prove the respondent' s claims of coercion . In concluding, the respondent impl ored this court [37J not to find merit in this appeal and dismiss it. COURT'S CONSIDERATION AND DECISION ON THE APPEAL We will first deal with the relevance of the Messages [3BJ 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 . These documents were objected to on the grounds t hat [39J they were not relevant to the issues in controversy . We agree with the appellant' s submission that once [40J the issue was raised, the trial Judge should have deal 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 We are mindful that we should not, in our c411 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. All we can pronounce on, is whether they are relevant [421 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. In Black' s Law Dictionary, the term ' relevant [43J 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'. Looked at individually, the approach the appellant [44J appears to take, the disputed documents do not appear to prove the respondent' s coercion into signing the disputed Deed. However, when looked at together, and having regard [4SJ 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 persons with links to his former employers, does point at the fact that they are relevant . This being the case, we cannot fault the trial Judge [46J 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 not relevant, and excluding t hem. The 1 st ground of appeal lacks merit . C47J C4SJ Coming to the 2nd ground of appeal, it is our view that the provision relevant for the right considerat 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. Section 8 of the Electronic Communications and (491 Transactions Act, substantiall y deals with situations where the law requires information to be pr esented in its original form and it provides that a data message can be consi 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 it is constituted by a data message; or (b) if it s the best evidence that the pers on 1. adducing it could reasonably be expected to ob·c.ain, on the grounds that it 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 Our understanding of this provision, is that the [511 'introduction' of a data message into evidence, is two staged. The first stage, is the admission of the message into [521 evidence, while the second stage is the weight to be attached to the admitted evidence . It is therefore possible that even after admitting [531 it into evidence, t he trial Judge can decide to attach little or no probative value, to a data message . Section 9 (1) (b) of the Electronic Communications and [54J 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 . Further, Section 9(3) of the Electronic [55J Communications and Transactions Act, sets out the factors to be taken . into account when determining the weight to be given to a data message. The factors include the reliability of the manner in [56J which the integrity of the data message was maintained. In this case, the Diego Casilli Messages have been [57J objected to on the ground that they were redacted. J16 In our view, that goes to integrity of the Messages c5aJ 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. The appellant also referred to Section 3 of the [59J Evidence Act. This provision 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 . However, Section 9(1) (b) of the Electronic (601 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 . It follows therefore, that evidence which would have [611 been admissible under Section 3 of the Evidence Act, if the original 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 Coming to the argument that data messages ought to c621 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 . There is however provision in that section, that in C63J 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". Our understanding of the provision is that for a data [64J message to be relied on, at some point during the trial, there must be led evidence proving that the data message is authentic . The provision does not state that authenticity of a c6s1 data message must be proved upfront . There is however, provi sion under Section 9(4) of C66J 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 . On the evidence on record, this provision does not [611 appear to us to be applicable to the Diego Casilli Messages . The 2nd ground of appeal lacks merit and it is c6s1 dismissed. VERDICT Having dismissed all the arguments in support of both C69J grounds of appeal, we find that this appeal lacks merit . We order that this long standing matter immediately proceeds to trial . Costs to the respondent, to be taxed in default of c101 agreement . C.F. R. Mche DEPUTY JUDGE PRESIDENT _?·' . ~V\J~l IC H~. . 0 " " 1,- --~-., ---• ,,. ...., , ,.·.• ... :la , , , - .. ·," '\ ~ ···········~ ·················· .........L ~/·~~~) I ............................................. . MA~ 2024 ·--....J A.M. Banda-Bobo CIVIL :wi5TRY2 -/ / I K. uzenga COURT OF APPEAL JUDG ~Q Box ~ 50067. LUs.c..·.:-.~ -AC/ OURT OF APPEAL JUDGE