Centelon Pty Limited and Ors v Higher Education Loans and Scholarship Board (2025/HPC/0014) (22 July 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HPC/0014 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) }': ,. . ,. '! BETWEEN: ·, ~~ :;.. ~:!~::''\r·:,.-.f :=· · . . J CENTELON PTY LIMITED · .. :::1 2 2 JI ll ,:~~·· 1 sT PLAINTIFF •>,.> ... lv_J J~ CRYPTIVE INVESTMENTS LIMI'..rED .. , __ _ 2ND PLAINTIFF CENTELON PTE LIMITED ~' -.:,. .·.• .•.•· ··' · •.•. i''f•:·: •• l .• ,J 3RD PLAINTIFF ' .tf,·::•.·:~'.:.~--.•,J AND : . P.O.~ HIGHER EDUCATION LOANS AND SCHOLARSHIP BOARD DEFENDANT Before: The Honourable Mr. Justice L. Mwanabo on 22nd July, 2025 For the Plaintiffs: Mr. F. Lungu of Messrs. Frank Natasha Legal Practitioners For the Defendant: Mr. M. Desai & Ms. K. Bwalya both of Messrs. Mwamba & Milan Advocates RULING Cases referred to: 1. Bascom Enterprises and Others v Bharti Airtel Zambia Holdings & Others, Appeal No. 219/2021 (2025) 2. Lumus Agricultural Services Company Ltd and Anor v Gwembe Valley Development Company Ltd (SCZ 29 of 1997) 3. Intelligent Mobility Limited v LAMISE Trading Appeal No. 214 of 2012 4. Steak Ranches International BV v. Steak Ranches Limited Appeal No. 219of2012 Legislation referred to: 1. The Evidence Act, Chapter 43 of the Laws of Zambia 2. Authentication of Documents Act, Chapter, 75 of the Laws of Zambia 2.0 OBJECTION 1.1. The Defendant herein raised an objection to production of the Plaintiff's witness statement. 1.2. The basis for the objection is that firstly, the witness statement appears to have an electronic signature because it does not have wet ink on it. Counsel concluded that the document appears to have been executed outside the country especially given the address for the witness but it has not been authenticated. The case of Bascom Enterprises and Others v Bharti Airtel Zambia Holdings & Others1 was cited to the effect that any document executed outside Zambia if not authenticated cannot be used as evidence in Zambia and cannot be used in this country for any purpose at all. Others cases on the subject matter such as Lumus Agricultural Services Company Ltd2 were also called to aid. 1.3. The 2nd limb of the objection is that the document in issue is not original as the signature is not a wet ink and that it is caught up in the Court of appeal decision of Intelligent Mobility Limited v LAMISE Trading3. It was further contended that any evidence led at the hearing to stipulate how the document was executed would be contrary to the rules as it will be giving evidence after the fact. 3.0 RESPONSE TO THE OBJECTION Mr. Lungu on behalf of the Plaintiffs contended that the case cited by the Defendant's Counsel does not apply to witness statements as it applies to other documents. He relied on Section 74 of the Evidence Act1. 4.0 REPLY 3 .1. Mr. Desai in reply stated that the sections in the evidence Act do not reach 74. He further argued that the authentication of documents in the Act only excludes an affidavit sworn before the Commissioner of the High Court and that there is no exception of witness statements. The definition of document m the Authentication of Documents Act2 was said to be wide enough to cover deeds, other writing etc. 3.2 It was further contended that there was no contest to the document not being original. R2 5.0 ANALYSIS AND DECISION 4.1 I have heard and considered the arguments by the parties as regards the Defendant's objection to production of the witness statement by PWl on the basis that it is not authenticated and is a copy. The issue of the witness statement being executed outside jurisdiction was not contested save for the argument that authentication does not apply to such documents. I have looked at the evidence Act and do confirm that it only goes up to Section 9. Further, the argument raised by Counsel for the Plain tiff is not supported by the said Act1• 4.2 As regards the meaning of authentication and documents, Section 2 of the Authentication of Documents Act2 provides as follows: "authentication", when applied to a document, means the verification of any signature thereon; "document" means any deed, contract, power of attorney, affidavit, or other writing, but does not include an affidavit sworn before a Commissioner of the High Court." 4.3 It is clear from the above definitions that a witness statement is a document covered by the Authentication Act2• The authentication required is simply the verification of the signature. The manner of authentication of a document executed outside Zambia is outlined by Section 3 of the Authentication of Documents Act2• The outlined modes of authentication in the said Act2 do not include authentication by the author of the document personally. 6.6 The position of the law according to decided cases that include: Lumus Agricultural Services Company Ltd and Anor v Gwembe Valley Development Company Ltd2, Steak Ranches International BV v. Steak Ranches Limited Appeal No. 219 of 2012 and Bascom Enterprises and Others v Bharti Airtel Zambia Holdings & Others1 on the status of unauthenticated documents for use in Zambia has remained consistent to the effect that such a document cannot be used as evidence in Zambia. An unauthenticated document is deemed to be invalid R3 for purposes of use in Zambia. Therefore, as long as it remains unauthenticated it cannot be used for any purposes to stand as evidence. It means that even the author of the document cannot rely on it for his evidence. That is the law at the moment. My hands are accordingly tied: I have to swim to in the direction of flow of the subsisting legal current. I have to stick to what the law currently says despite the injustice caused to a party by the rigidity of the law on authentication of foreign documents. The objection on this score alone is sustained. 6.7 The issue of the witness statement in issue being a copy is not that straightforward because the document also bears an original stamp of the Court although the signatures on it are not original. I will therefore, not delve into that issue having sustained the objection already. The Application to produce the witness statement by PWl is denied. This ruling shall equally apply to similarly circumstanced witness statement. Costs to the . . . V: Defendant relating to · ct101:-"19 ·, ' HIGH COURT JU R4