Bentry Siamalambwa v Magna Mining Limited (2022/HPC/0624) (1 February 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HPC/0624 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BENTRY SIAMALAMBWA PLAINTIFF AND MAGNA MINING LIMITED DEFENDANT Before Hon. Lady Justice Irene Zeko Mbewe For the Plaintiff: Mr. F. Gwaba, Messrs Keith Mweemba Advocates For the Defendant: Mr. S. Bwalya Jnr, Messrs Solly Patel, Hamir & Lawrence RULING Legislation referred to: 1. The Electronic Communications and Transactions Act No. 4 of2 021 During examination-in-chief of PW1, Counsel for the Defendant, Mr. Bwalya, opposed the production of documents appearing at pages 13 and 29 to 34 of the Plaintiff's bundle of documents. In respect to the document at page 13 of the Plaintiff's bundle of documents it was argued the same fall within the realm of data message and have not been certified as per section 9 (4) of the Electronic Communications and Transactions Act No.4 of 2021 (herein referred to as the ECT Act). Rl I Page In terms of documents appearing at pages 29 to 34 of the Plaintiff's bundle of documents, Counsel argued there has not been any foundation laid by PW1 in the witness statement as per the ECT Act to ensure the integrity of the message which constitutes a data message has not been tampered with. In the like manner, Counsel for the Defendant opposed the production of the Compact Disk (CD) attached at the end of the Plaintiff's bundle of documents for failure to adhere to the condition precedent relating to its production. It was prayed that the opposed documents be discarded. In response, Mr. Gwaba Counsel for the Plaitniff admitted there was an oversight on their part as the document appearing at page 13 was not certified. He however prayed for the Court to consider the document as it is not prejudicial to the Defendant's case as their witness statement indicate they communicated with the Plaintiff and the witnesses. Regarding the remaining documents appearing at pages 29 to 34 of the Plaintiff's bundle of documents including the CD, it was submitted that although PW1 may not speak to them, PW2 has laid the foundation of pictorial evidence as a way of proving damage to the motor vehicle. Counsel pointed out that the CD comprises the same evidence In reply, Mr. Bwalya Counsel for the Defendant reiterated the document appearing at page 13 does not comply with the provision of law hence it must not be produced. Further, that indication of communication does not constitute a foundation envisaged in the law. He maintained that PW1 has not laid a proper foundation for the pictorial evidence and CD, thus they should be discarded. R2 I Page Analysis I have taken note of the arguments advanced by both Counsel. The Defendant's bone of contention is that the document on page 13 of the Plaintiff's bundle of documents fall short of the requirement of certification as set out in section 9 (4) of the ECT Act. The Plaintiff admits that the document appearing on the said page is not certified as per requirement of the provision of law but contends the lack of certification does not prejudice the Defendant. For avoidance of doubt section 9 (4) of the ECT Act provides that: "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.,, (underlined for this court's emphasis) Further, section 12 (3) of the ECT Act, provides that: "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." IP R3 age The provision of law clearly demands data message to be certified in order for it to be admissible in evidence. As 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. Therefore, the objection is sustained and the document on page 13 is discarded from the Plaintiff's evidence. Moving on to documents appearing at pages 29 to 34 of the Plaintiff's bundle of documents, the Defendant contends that no foundation has been laid by the PW1 in her witness statement. It is argued PW1 in her witness statement ought to have laid the foundation concerning the integrity of the document. Section 8 of the ECT Act, states as follows: "Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if.- (a) the integrity of the information from the time when it was first generated in its final form as a data message, or otherwise, has passed the assessment specified under subsection (2); and (b) that information is capable of being displayed or produced to the person to whom it is to be presented. (2) For the purposes of subsection (1)(a), the integrity of any information is assessedIP R4 age (a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display; (b) in the light of the purpose for which the information was generated; and (c) by having regard to other relevant circumstances." Further section 9 (3) of the ECT Act, provides that: "(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." From the cited provisions of the law, it is apparent the integrity of data message needs to be established and this is done by laying a proper foundation of the document sought to be produced in legal proceedings. Counsel for the Plaintiff contends that even though PW1 's witness statement does not lay the necessary foundation, there is evidence of communication between the parties. Further, that PW2 has spoken of the documents appearing at pages 29 to 34 of the Plaintiff's bundle of documents. RSI Page Iii I I • Premised on the foregoing, I am of the firm view PW1 cannot produce the objected to pictorial evidence and CD as she has not laid the foundation in her witness statement. However, at this stage of the proceedings, I decline to discard the same from the Plaintiff's bundle of documents as Counsel for the Plaintiff intimated that PW2 laid the foundation of the said documents in the witness statement. Thus, the objection is overruled to the extent the pictorial evidence appearing at pages 29 to 34 and the CD attached at the end of the Plaintiff's bundle of documents are not discarded from record. Costs remain in the cause. Leave to appeal is denied. Delivered this 1s t day of February, 2024. BEW~E~~~~~WBiAI IRENE ZEKO HIGH COURT JUD ·· JUDICIARY OF ZAMBIA ,~ \, HIGH COURT jh[~:-~e;_;'-~;~:'JAP JUDGE P.O. BOX 50067, lUSAAA -- ·· R6 I Page