Lamise Trading Limited (Suing in its capacity as Shareholder of Intelligent Mobility Solutions Limited ) v Kapsch Trafficom AG and Anor (2024/HPC/0339) (31 March 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2024/HPC/0339 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) HIGH ()!JRTOf ZANHIA .HJD-;( fAtW COMMERCIAL Ul\'!SlOl'·J BETWEEN: J . .. '- i. i{ - • Y · , -• ';~ •o ' · t , : ') ., 1 ~1J n., f) \ _2 ~ ,j: . "I . r r J ' •'> I I" : " ;_ I - " • (SHih~\lf· LAMISE TRADING LIMITED s capacity as Shareholder of Intellige11-~~~9;bj'lit: ~1.6'9l1Jt.i'9.•P~ L, mited) PLAINTIFF AND KAPSCH TRAFFICCOM AG 1 ST DEFENDANT INTELLIGENT MOBILITY SOLUTIONS LIMITED 2ND DEFENDANT Before: The Honourable Mr. Justice L. Mwanabo on 31st March, 2025 For the Plaintiff: Mr. J. Chileshe of Messrs Eric Silwamba Jalasi & Linyama Legal Practitioners For the 1st Defendant: Mrs. M. S. Namwila-Mwala and Mr. K. Kawana both of Messrs Corpus Legal Practitioners For the 2nd Defendant: Mr. C. Salati and Mr. P. Chisunka of Messrs. Mulenga M undashi Legal Practitioners RULING Cases referred to: 1. Charles Mambwe and Others v Mulungushi Investments Limited (In Liquidation) and Mpelembe Properties Limited Selected Judgment No. 36 of2016 2. Bent ry Siamalambwa v Magna Mining Limited 2022/HPC/0624 3. DPP v Kilburne (1973) AC 729 4. Twam.pane Mining Co-operative Society Limited v E and M Storti Mining Limited Selected Judgment No. 20 of 2011 5. Kalusha Bwalya v Charore Properties Limited, Ian Chamunora Nyalugwe Haru.peri 2009/HPC/0294 6. African Banking Corporation Zambia Limited (T/A Atlas Mara) v Mattaniah Investments Limited (In Receivership) & Others CAZ Application No. 73/2019 7. Pankaj Parmer (T/A Mugodi Drillers and Building) v Albion Zambia Limited 2011/HP/0257 8. Shuko Willie Chunga v Nukwase Hilda Mwanza Chunga & Others 2022/HPF/D053 9. Ronald Chishala v The People Appeal No. 67/2020 10. Dolomite Aggregates Limited v Paul Marais Appeal No. 245/2021 Legislation referred to: l. The Electronic Communications and Transactions Act No. 4 of 2021 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. Article 118(2) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by Act No.2 of 2016 4. The Electronic Communications and Transactions Act No. 21 of 2009 5. Criminal procedure Code, Chapter 88 of the Laws of Zambia Other Materials referred to: l. Stephen's Digest of the Law of Evidence 12th Edition 1.0 APPLICATION 1.1 This is an application by the 2nd Defendant for an order to expunge documents from the Plaintiff's bundle of documents dated 13th January, 2025. 1.2 The application was made pursuant to Section 9(4) and 12(3) of the Electronic Communications and Transactions Act, 20211 (ECT) as read together with Order 3 Rule 2 of the High Court Rules2• It is supported by an affidavit, skeleton arguments and list of authorities. R2 2.0 BACKGROUND 2. 1 Following the issuance of the first Order for Directions as well as subsequent variations thereof, the parties filed their respective bundles of documents on various dates in compliance with the said directions. 2.2 On 19th February, 2025 the 2nd Defendant filed the application herein and another application for leave to amend its defence and for an order to file supplementary bundle of documents. The later application was settled by a consent order executed by the parties 21st March, 2025 leaving the application herein to the Court for determination. 3.0 EVIDENCE AND ARGUMENTS IN SUPPORT 3.1 The gist of the 2nd Defendant's application is to have the following documents expunged from the Plaintiff's bundle of documents (the bundle of documents) filed without inspection by the parties: Recording of conversation among Walid El Nehas and Mike 1. Morrow on page 226 of the bundle of documents. The reason advanced is that the recording has not been certified and is not present in the served bundle of documents; 11. Recording of conversation among Walid El Nehas, Jennifer Putter and Mike Morrow on page 226 of the bundle of documents. The reason advanced is same as in (i) above; 111. Messages on page 222 of the bundle of documents and the reason advanced is that the document has markings; and 1v. Joint venture agreement between Kapsch TrafficCom SA Holding (Pty) Ltd and Lamise Trading Limited appearing on page 32 of the bundle of documents, bank statement on page 218 of the bundle of documents and letter from Douglas Davey to Progress Sawaina which is on page 219 of the bundle of R3 documents. The reason advanced for the application is that the mentioned documents are not relevant to the proceedings. 3.2 The 2nd Defendant stated that it only discovered the above information after the inspection conducted following a consent order of the parties post the filing of the bundle of documents. 3.3 In support of the application the 2nd Defendant relied on 3 Rule 2 of the High Court Rules2 which is to the effect that a Judge may in all causes or matters make any interlocutory order deemed necessary for doing justice even where there is no express request from a party or any person entitled to. My attention was drawn to the case of Charles Mambwe and Others v Mulungushi Investments Limited (In Liquidation) and Mpelembe Properties Limited1 where it was stated that the High Court has wide discretionary powers under Order 3 Rule 2 of the High Court Rules2 to grant any interlocutory order that the justice of the case deserves. 3.4 I was further referred to Sections 9(4) and 12(3) of the ECT Act1 which were reproduced by the 2nd Defendant. The case of Bentry Siamalambwa v Magna Mining Limited2 rendered by a Court of even jurisdiction was cited. In that case, it was ruled that the provisions of the ECT Act1 requiring certification of data messages is mandatory. I was urged to expunge the uncertified documents as pointed out by the 2nd Defendant. 3.5 On the question of relevance of documents to a case, my attention was drawn to the Article 1 of Stephen's Digest of the Law of Evidence1 on the meaning of relevance, being any two facts by which one either by itself or in connection with another proves the existence or non-existence of the other. The case of DPP v Kilburne3 was cited, particularly at 756, where it was stated, inter alia, that relevant evidence is evidence which makes the matter which requires proof more or less probable. The 2nd Defendant contended R4 that relevant evidence in this matter is that which helps the Plaintiff prove his case against the Defendants but is of the view that the documents indicated by the 2nd Defendant are not relevant in proving the Plaintiff's case herein as they are either connected to a none party to the action or have no relation to the matter. I was urged to expunge the identified documents for lack of relevance to the case. 3.6 As regards the document on page 22 of the bundle of documents, I was urged to expunge it due to the markings on it. It was finally contended that despite the Constitutional provision under Article 118(2) of the Constitution of Zambia3 that justice shall be administered without undue regard to procedural technicalities, the Plaintiff was still required to adhere to rules of Court. Reference was made to the case of Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited4 in order to embellish the argument. 4.0 EVIDENCE AND ARGUMENTS IN OPPOSITION 4.1 The Plaintiff in opposition to the 2nd Defendant's application to expunge documents raised the following issues: 4.1.1 That the Defendants neglected to find time to attend to inspection despite efforts by the Plaintiff to schedule inspection meeting hence the decision by the Plaintiff to file the bundle of documents within the direction period; 4.1.2 That the deponent of the 2nd Defendant's affidavit did not take part in the inspection as such he cannot speak to what transpired at inspection and that paragraph 9 of the 2nd Defendant's affidavit is irregular for lack of evidentiary foundation; 4.1.3 That although it is true that the USB initially served did not contain the intended evidence, action was taken by RS subsequently servmg one that contained the intended evidence. 4.1.4 That paragraphs 9 (c), (d), (e) and (f) consists of mere assertions with no reason as to why the mentioned documents are deemed irrelevant and that the Court retains the jurisdiction to determine relevance of documents; 4. 1.5 That the application is premature because the Plaintiff's witness statement is not yet in place to explain the documents; 4.1.6 That the markings on the documents are of no relevance as the Court is only invited to look at the nature and content of the document; and 4.1.7 That the issue of certification of data messages is also premature as the Plaintiff has not yet been accorded chance to lay the foundation for their admissibility. 4.2 In its arguments the Plaintiff started by asking me to expunge paragraph 9 of the 2nd Defendant's bundle of documents for irregularity for offending Order 5 Rules 16, 17 and 18 of the Rules of the High Court2. The cases of Kalusha Bwalya v Charore Properties Limited, Ian Chamunora Nyalugwe Haruperi5 and African Banking Corporation Zambia Limited (T / A Atlas Mara) v Mattaniah Investments Limited (In Receivership) & Others6, among other references, were cited in order to adorn the contention. The main contention by the Plaintiff is that the deponent of the 2nd Defendant's affidavit did not disclose and name the source of his information or lay proper foundation for the evidence advanced by him in the said paragraph. 4.3 The 2nd argument was that the 2nd Defendant elected to ignore the initial order for directions on discovery and inspection. The case of Pankaj Parmer (T / A Mugodi Drillers and Building) v Albion Zambia Limited7 was cited where a Court of even jurisdiction R6 addressed the import of adhering to an order for direction on discovery and inspection and that the consequence of that neglect renders the defaulting party to being deemed to have waived the liberty to object. 4.4 On the issue of lack of certification of the data messages, it was argued that the application is premature. The case of Shuko Willie Chunga v Nukwase Hilda Mwanza Chunga & Others8 was referred to, where the issue of certification and production of data messages was dealt with in detail with the conclusion that a witness who made the recording can personally lay the foundation for production of data message and that there is no need to call for expert witness or evidence from a service provider to speak to certification of data message. Counsel for the Plaintiff contended further that the application is premature because it only makes sense for the Plaintiff's witness to lay the foundation in the witness statement. It was furthermore argued that there is no requirement for upfront proof of data messages as long as the necessary foundation for production is laid down. The cases of Ronald Chishala v The People9, Bent ry Siamalambwa v Magna Mining Limited2 and Dolomite Aggregates Limited v Paul Marais10 were resorted to in buttressing the submission. 4.5 As regards the issue of relevance of documents, the Plaintiff contended that the determination of relevance of documents is the preserve of the Court and not for a litigant. The case of Pankaj Parmer (T / A Mugodi Drillers and Building)7 (supra) was adverted to for the that position. 5.0 REPLY 5.1 The 2nd Defendant in reply contended that paragraphs 5 and 6 of the affidavit in opposition amount to perjury as none of the parties were averse to setting inspection date and that the Plaintiff simply R7 proceeded to file the bundle of documents without informing the parties of the decision to do so. 5.2 Paragraphs 8, 9, 11-12, 14 and 16-17 were branded as containing arguments and that paragraph 10 amounted to perjury because the email in issue was only sent on the same day of the Plaintiff filing affidavit in opposition. According to the 2nd Defendant, the requirement for certification and laying a foundation for admissibility of documents are different. 5.3 The reply to Plaintiff's contention that paragraph 9 of the 2nd Defendant's affidavit in support amounts to hearsay whose source was not disclosed is that the deponent relied on the information availed to him through the Advocates for the 2nd Defendant. According to the 2nd Defendant, the case of Katusha Bwalya5 (supra) is not applicable to the issues at hand because James Kakondo was testifying based on information passed to him by the 2nd Defendant's advocates by virtue of his office. It was further argued that the case of African Banking Corporation Limited6 (supra) was not helpful as no extraneous matter was pointed at. On the case of Pankaj Parmer7 (supra), the 2nd Defendant argued that the case was misapplied because, unlike what transpired in that case, in this case the parties were still discussing the setting of inspection dates when the Plaintiff proceeded to file the bundle of documents. 5.4 On the issue of certification of document, the 2nd Defendant reproduced Sections 9(4) and 12(3) of the ECT Act1 and insisted that the said sections require certification of data messages in order to be produced in Court and that the Court of appeal in the case of Ronald Chisala9 (supra) was interpreting Section 8 of the repealed ECT, Act of 20094 and not Section 9 of the current Act and that the provisions are not exactly the same. As regards the case of Bentry Siamalambwa2 (supra), the 2nd Defendant contended that the Plaintiff did not show the relevance of the case to the case at hand. RS The 2nd Defendant's position on the Dolomite Aggregates case10 (supra) is that the Court did not interpret Section 9(4) or 12 of the ECT Act, 202!1. On the case of Shuko Willie Chunga8 (supra), the 2nd Defendant contended that the case is of no relevance together with the case of OTK limited referred to in that case as they were decided under the repealed ECT Act of 20094. It was further contended that the Bentry2 case (supra) would still prevail in the event of a conflict with the Shuko Willie Chungu case8 (supra) because the Bentry Siamalambwa case2 (supra) is a later case. 5.5 As regards the issue of expunging documents on account of not being relevant to the case, the 2nd Defendant found solace in the case of Dolomite Aggregates10 (supra) which is to the effect that the Court is supposed to deal with the issue of relevance decisively when raised and that the Court's duty is to determine whether the document can assist a party to prove the claim or allegation and not to prove the claim or allegation at that stage. 6.0 ANALYSIS AND DECISION 6.1 I have considered the affidavit evidence and skeleton arguments by both parties relating to the 2nd Defendant's application to expunge documents from the Plaintiffs' bundle of documents. But before I proceed to deal with the substantive issues, I wish to address the issue of expunging paragraphs as raised by the parties from the affidavits filed by the Plaintiff and the 2nd Defendant. Some of the issues relating to the affidavits were resolved by the Consent Order filed by the parties. The resolved issues relate to cross examination of Counsel for the Plaintiff on his affidavit in opposition and withdrawal by the 2nd Defendant of paragraph 17, on the contents of paragraphs 5, 6 and 10 to the effect that they amount to perjury. 6. 2 The 2nd Defendant asked me to expunge paragraphs 8, 9, 11, 16 and 17 from the Plaintiff's affidavit in opposition. The Plaintiff did not R9 respond to the issue. I have looked at the paragraphs in the affidavit in issue and have no hesitation to agree with the 2nd Defendant that the said paragraphs contain extraneous matters and legal arguments there by offe nding Order 5 Rule 15 of the High Court Rules2 providing that an affidavit shall not contain extraneous matter by way of objection or prayer or legal arguments or conclusion. The concerned paragraphs are accordingly expunged from the Plaintiff's affidavit in opposition. 6.3 The Plaintiff raised issue with paragraph 9 of the 2nd Defendant's affidavit in support of the application herein on the basis that no foundation was laid by its deponent over issues of which he had no 1st hand information. The 2nd Defendant contended that the information was received by the deponent from the advocates for the 2nd Defe nd ant there by qualifying him to refe r to the same in his affidavit. In the paragraph in issue, the deponent of the affidavit, James Kankondo, went straight to speak to the issues relating to inspection. It is not in dispute that he did not disclose the source of his information. Order 5 Rules 16, 17 and 18 of the High Court Rules2 loudly stipulates that an affidavit shall contain only statements of facts and circumstances to which the witness deposes either of his own personal knowledge or from facts he believes to be true which should be set forth explicitly and the source of such belief must be disclosed together with the time, place and circumstances of the information. Contrary to the 2nd Defendant's assertion, the cases cited by the Plaintiff on the issue are on point. Paragraph 9 of the 2nd Defendant's affidavit is equally expunged from the said affidavit for offending the said Order 5 as demonstrated above. However, I have taken note of the fact that the contents of paragraph 9 of the 2nd Defendant's affidavit are also contained and outlined in the summons in support of the application, therefore, the RlO application is not defeated by removal of paragraph 9 from the affidavit in support of the application. 6.4 The application herein, as earlier stated, is based on Order 3 Rule 2 of the High Court Rules2 and Sections 9(4) and 12(3) of the ECT Act1• The said Order 3 Rule 2 provides as follows: "2. 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." 6.5 Sections 9(4) and 12(3) of the ECT1 read thus: "9(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 person and rebuttable proof of the facts contained in a record, copy, printout or extract. "12(3) Where a law requires or permits a person to provide a certified copy of a document and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true copy thereof and the certification is confirmed by the use of an advanced electronic signature." 6.6 The above provisions are not bereft of some level of interpretation by the superior Courts. The extent to which the Court can invoke its discretion under Order 3 Rule 2 of the High Court Rules2 was ably explained in the case of Charles Mambwe1 (supra) in this manner: "The effect of this order is that it gives a Judge of the High Court and a court, such as the Deputy Registrar, wide Rll discretionary powers to grant any interlocutory order that the justice of the case deserves. Such an interlocutory order may be given whether or not the beneficiary party has requested for it. This demonstrates how wide the powers of the Judge and court are in this regard." 6. 7 However, my view is that the use of this order should be applied more readily or appropriately where the Court is taking a positive step in the matter so that the matter is determined on its merits as opposed to a negative step of depriving a party from having recourse to present or avail some material before Court which that party deems relevant or necessary to support his or her case. I say so because the main purpose of the provision is to ensure that justice prevails in the determination of matters. Furthermore, before resorting to citing this provision, the movant must check for the appropriate citation of the law that gives the Court jurisdiction to grant the order sought because Order 3 Rule 22 is to be considered subject to other provisions. There is a growing tendency by many advocates to simply rely on the said provision without making any effort to cite relevant provisions for the interlocutory remedy sought. Order 3 Rule 22 should not be used as a panacea or magic wand where there is lack of appetite by Counsel to diligently find the correct provision of the law to cite in the interlocutory applications. The provision has sometimes been abused to the extent that it has been used even for applications which are not interlocutory in nature. 6.8 Sections 9(4) and 12(3) of the ECT Act1 were considered in the cases already cited by the parties though mostly from Courts of even jurisdiction. In the case of Bentry Siamalambwa2 (supra) the Court's interpretation of the provisions was that: "The provision of law clearly demands data message to be certified in order for it to be admissible in evidence. As R12 highlighted above, the Plaintiff admits the call record appearing at page 13 is not certified. Therefore, the document cannot be produced as it falls short of the legal requirement of certification envisaged in section 9 (4) of the ECT Act. This is regardless of whether or not any prejudice will be occasioned to the Defendant as the law is clear on the requirement of the data message to be certified." 6.9 In the case of Shuko Chungu8 (supra) which heavily borrowed its reasoning from the case of OTK Limited (s upra) the Court held the view that the certification required under Section 9(4) of the ECT Act1 can be done by a person involved in the production of the data message as long as the foundation is laid and not necessarily by an expert or someone from the service provider. The Plain tiff refe rred me to the case of Ronald Chishala9 (supra) where data message was held to have been properly admitted by laying the necessary foundation. The 2nd Defendant dismissed the cases of OTK Limited (supra) and Ronald Chishala9 (supra) on the basis that they were decided under the repealed ECT Act4 whose provisions were not exactly the same. This argument is quite startling because Section 8 of the repealed ECT Act4 reads exactly the same as Section 9 of the current ECT Act1 and I must add also that Section 11 of the repealed ECT Act4 reads exactly same as Section 12 of the current ECT1 as regards the provisions in contention. Therefore, the interpretation given in those cases is very relevant. I must further point out that the assertion by Counsel for the 2nd Defendant that in the event of conflict between the two High Court cases referred by the parties, the latter case prevails is misconceived because I am not bound by those decision as they are from Courts of even jurisdiction. The last case for my consideration is that of Dolomite Aggregates Limited10 (supra). In that case, the Court of R13 Appeal after considering and reproducing the whole of Section 9 of the ECT Act1 made the following overarching statement: "Coming to the argument that data messages aught ta be authenticated before they can be admitted into 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 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 far a data message to be relied on, at some paint during the trial, there must be led evidence proving that the data message is authentic. The provision does not state that authenticity of a data message must be proved upfront. There is however, provision under Section 9 (4) of the Electronic Communications and Transactions Act, that a data 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 by an officer in the service of that person, is admissible in evidence." 6.10 It is clear from the above excerpt that the Court of Appeal was alive to the presence of Section 9(4) of the ECT Act1 when it made the pronouncement we have not seen the provision to that effect that data messages ought to be authenticated before they can be admitted into evidence in Section 2 of the ECT Act and that Section 9 does not state that authenticity of a data message must be proved upfront. The main bone of contention by the 2nd Defendant on the documents indicated to be on page 226 of the bundle of documents is that they were not availed and authenticated. The issue of documents not being availed is curable and as admitted by Counsel for the Plaintiff the omission happened inadvertently and the R14 omission was later regularized. Moreover, since the parties agreed to refile the bundles of documents the omission can be cured: therefore, I need not dwell much on that issue. 6.11 As regards the issue of authentication, after my thorough review of the legal literature on the issue and analysis of Sections 9(4) and 12(3) of the ECT Act1 as demonstrated above, I am persuaded by the school of thought that authentication, where required, can be made by the witness who intends to produce the data message as long as such witness is competent to do so. I further find proper guidance from the case of Dolomite Aggregates Limited10 (supra) that Section 9 does not make it mandatory for all data messages to be authenticated and I must add that unless the data message is not in original form of evidence. My considered view is that Section 9(4)1 refers to the kind of data evidence that on mere production is admissible against a person though rebuttable where: a. a data message is made by a person in the ordinary course of business, a copy or printout of, or an extract from b. the data message is 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 person and rebuttable proof of the facts contained in a record, copy, printout or extract. 6.12 Section 12(3) of the ECT Act1 refers to certification of a copy of a document. Therefore, Section 12(3) does not apply where an original document exists. It has been not shown to me that the documents on page 226 of the Plaintiff's bundle of documents are copies and there no originals were availed at inspection. 6.13 I do not understand both Section 9(4) and Section 12(3) of the ECT1 to be limiting the production of data messages to the R15 procedures mentioned in those sections to the exclusion of all other methods of production of documents according to other applicable rules of evidence. My understanding of those sections is that when the procedure provided therein, where applicable, is adhered to acceptance of the data message into evidence becomes a given without requiring the person producing the same to lay the foundation for production thereof. Consequently, the duty to rebut the admissibility or integrity of the data message will be on the opponent. However, if a different method is used according to other rules of evidence, the person producing that evidence will be required to lay proper and necessary foundation. The duty to show prove the integrity of the data will, therefore, be on the person producing it. 6.14 Furthermore, the procedure relating to evidence as provided by Sections 9(4) and 12(3) is not uncommon as similar provisions are found in Sections 19 lA to 1934 of the Criminal procedure Code5. But the procedure are not cast in stone as being the only way of adducing such evidence. 6.15 Ir:i light of the foregoing, I am not persuaded by the 2nd Defendant's request to expunge the documents on page 226 of the plaintiff's bundle of documents for lack of certification. The application was mistimed and is based on the misconceived understanding of the applicability of Sections 9(4) and 12(3) of the ECT Act1 . 6.16 The 2nd issue raised by the 2nd Defendant relates to messages on page 222 of the Plaintiff's bundle of documents in that there are markings on the document. The markings referred to appear on top of the documents explaining what the document is all about. My directive by virtue of the discretion reposed in me by Order 3 Rule 2 of the High Court Rules2 is that the documents be replaced with unmarked ones. I am of the view this is one of the positive ways to invoke the said provision. R16 6.17 The third issue raised by the 2nd Defendant in seeking to have the documents on pages 32, 218 and 219 of the Plaintiff's bundle of documents expunged is that the documents are of no relevance to the case. The documents in issue are the joint venture agreement between Lamise Trading Limited and Kapsch TrafficCom SA Holdings (Pty) Ltd, a bank statement and letter from Douglas Davey to Progress Sawaina. The guidance from the Court of Appeal in the Dolomite aggregates case10 (supra) on how to deal with the issue of relevance when raised before trial was as follows: "We agree with the appellant's submission that once the issue was raised, the trial Judge should have dealt 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." 6.18 As regards the joint venture agreement, I note that paragraph 5 of the statement of claim refers to a joint venture agreement, though dated 20th May, 201 7 while the one on page 32 was signed on 30th May, 201 7. Despite the fact that the name of the parties especially the one relating to the 1st Defendant is different, I find it premature for me to concluded that the said document has no relevance to the matter or whether it is just the issue of the weight to be attached to the document. The situation is compounded by the fact that the Plaintiff has not yet filed its witness statement. What is clear to me is that the document in issue contains details connected to the action herein and the roadmap leading to the birth of the 2nd Defendant. Moreover, both Defendants in their defences admitted paragraph 5 of the statement of claim particularly as it relates to the joint venture agreement. In the circumstances, I do not agree with the 2nd Defendant's contention that the said document has no relevance to the action herein. I further noted from the affidavit in support of summons to refer matter to arbitration filed on 27th R17 February, 2025 by the 1st Defendant that in paragraph 13 there is reference to the same document and that it was entered into between the 1st Defendant and the Plaintiff. Therefore, the relevance of the document cannot be discarded completely. 6.19 On the documents on pages 218 and 219 of the bundle of documents, the documents relate to reason for not issuing an invoice on the basis of none payment by the government while the failure to avail invoices is canvassed in paragraphs 18 to 21 of the statement of claim. Therefore, a decision to expunge the documents in issue would prejudice the Plaintiff's case should it turn at trial that questions relating to these documents are raised. In the circumstances, it cannot be said with certainty at this juncture that the documents in issue have no relevance to the action. I would just direct that clean documents should replace the marked one. 6.20 In conclusion, all the issues raised by the 2nd Defendant to expunge the documents in issue are without merit and the application is dismissed with costs to the Plaintiff in any event against the 2nd Defendant. 6.21 I now proceed to make directions as follows: a. The parties to file consolidated bundle of documents on or before 14th April, 2025 b. Parties shall file and exchange witness statement, list of authorities and skeleton arguments on or before 29th April, 2025 c. The matter will come up for trial on 9th May, 2025 at 09:00 hours. astone Mwanabo HIGH COURT JUDGE R18