Febby Ngoma v Adam Chikwanda and Anor (2021/HP/152) (26 March 2025) – ZambiaLII

- - IN THE HIGH COURT FOR ZAMBIA 2021/HP/ 152 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CML JURISDICTION) BETWEEN: FEBBYNGOMA PLAINTIFF AND ADAM CHIKWANDA 18 T DEFENDANT BERNADETTE CHILUFYA CHIKWANDA 2ND DEFENDANT Before: The Hon. Mr. Justice C. Zulu For the Plaintiff Mr. H. M. Munsanje, of Messrs H.M. Munsanje & Co. For the Defendants: Mr. Bwalya, Legal Aid Counsel, Legal Aid Board. RULING Delivered ex tempore Legislation referred to: 1. The Rules of the Supreme Court of England and Wales 1965, (White Book 1999 Edition). 2. The High Court Act Chapter 27 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 This ruling concerns an application raised by the Defendants via an oral motion, challenging the production of the intended witness statement settled by the Plaintiff, Febby Ngoma. .... 'l Scanned with ~ CamScanner· 2.0 ARGUMENTS 2.1 The objection is to the effect that, the witness statement should not grace the record, because it was settled in violation of Order 38 rule 2A (4) of the Rules of the Supreme Court (RSC} of Eng land and Wales 1965, (White Book 1999 Edition). It was argued that, the witness statement did not contain a statement to the effect that: "the contents are true to the best of the witness's knowledge and belief'. Order 38 rule 2 A (4) of the RSC provides: 2.1.1 (4)Statements served under this rule shall: (a)be dated. .. signed by the intended witness and shall include a statement by him that the contents are true to the best of his knowledge and belief (b) ... (c) .. . 2.2 In opposition, Mr. Musanje's opposition was threefold: (i) that the application should have been raised before trial, and not at trial; (ii) that Order 38 rule 2A (4) RSC was inapplicable because, the filing of the witness statement was made pursuant to Statutory Instrument Number 58 of 2020; and (iii) that the omission as to the statement of truth was not fatal. 2.3 In reply, Mr. Bwalya reiterated that the witness statement given its shortcomings should not grace the record. 3.0 DETERMINATION 3.1 There is nothing irregular with the timing of the objection. The ripe time to raise the objection is at the time when a witness -R2Scanned with ~ CamScanner- seeks to introduce the witness statement to formally grace the record, to represent the witness' examination in-chief. While our High Court Rules are silent as regards the formalities alluded to by Mr. Bwalya, stipulated under Order 38 rule 2A (4) RSC, recourse to the said Order 38 r. 2A (4) RSC is in order under section 10 of the High Court Act. 3.3 Finally, a determination has to be made whether the omission is fatal or not. Order 38 r. 2A RSC is couched in mandatory terms. The omission in relation to the absence of the statement of truth that: the contents of the statement are true to the best of the witness's knowledge and belief, is material and fundamental. The statement goes to demonstrate the veracity and substance of the facts deposed to. Therefore, the omission renders the statement inadmissible, and the same is expunged. 4.0 CONCLUSION 4.1 Accordingly, the application/ objection is allowed. But I grant leave to the Plaintiff, to file a fresh witness statement which should be the same in terms of content as the one rendered inadmissible, save for the corrective statement of truth. 4.2 Costs in the cause for the Defendants. DATED THE 26TH DAY OF MARCH, 2025 THE HON. MR. JUSTICE CHARLES ZULU -R3Scanned with Ci CamScanner-