Angel Cosmetics DRC v Andrew Milau Trading Limited (2023/HP/1512) (20 November 2023) – ZambiaLII

Rl f J IN THE HIGH COURT OF ZAMBIA 2023/HP/1512 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANGEL COSMETICS DRC PLAINTIFF AND ANDREW MILAU TRADING LIMITED DEFENDANT BEFORE HON MRS JUSTICES. KAUNDA NEWA IN CHAMBERS THIS 2QTH DAY OF NOVEMBER, 2023 For the Plaintiff Mr. W. Muhanga, Messrs Willis and Partners Legal Practitioners For the Defenda nt Mr. S. Bwalya Jr, Messrs Christopher Russell Cook & Co RULING CASES REFERRED TO: 1. Lumus Agricultural Services Company Limited & others v Gwembe Valley Development Limited (In receivership) 1999 ZR 1 2. Steak Ranches Limited v Steak Ranches International BV 2012 Val 2 ZR 562 3. Standard Chartered Bank v Wisdom Chanda and Christopher Chanda SCZ No 18 of 2014 4. Kajimanga v Chilemya Appeal No 50 2014 5. Finance Bank Plc v Arma Investments Limited and Two others 2014/HPC/0307 6. Paul Nyambe v Golden Bridge Hotel 2015/HP/329 7. Charles Mambwe and others and Mulungushi Investments Limited (in liquidation), Mpelembe Properties Limited SCZ No 36 of 2016 8. Finsbury Investment Limited and Antonio Ventriglia and others SCZ No 42 of2016 9. CMA CGM Zambia Limited v Interfood Zambia Limited 2016/HPC/0272 10. Rainbow Tourism Group (Zambia) v Savoy Hotel Limited and Christy Chitalu Lumpa SCJ No 13 of 2017 11. Sun Country Limited v Kearney and another 2017 ZMSC 230 R2 12. Zam.beef Products Plc v Arcades Development Plc 2017/HPC/0094 13. Oscar Chinyanta and 31 others v Alasia Building Construction Limited and another Appeal No 158 of 2018 14. Kenneth Mandungwe and another v Albatross Mining Limited 2019/HP/0763 15. Charmaine Bousfield v Peter Adam Bousfield CAZ/08/259/2020 16. Nico Coultlis Transport Limited v Buks Haulage Limited Appeal No 65 of2020 17. Sylvester Katontoka and Wamundila Fred Waliuya v Attorney General Appeal No 1 of 2023 LEGISLATION REFERRED TO: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England, 1999 Edition 3. The Authentication of Documents Act, Chapter 75 of the Laws of Zambia OTHER WORKS REFERRED TO: 1. Black's Law Dictionary, by Bryan A. Garner, Thomas Reuters, 2009 1. INTRODUCTION 1.1 By this application, the Defendant, Andrew Milau Trading Limited, seeks an Order of this Court to expunge the affidavit that was filed by the Plaintiff, Angel Cosmetics DRC in support of an application for an Order of injunction. The application is made pursuant to Order 2 Rule 1 of the Rules of the Supreme Court of England, as read with Order 3 Rule 2 of the High Court Rules and Section 13 of the High Court Act, Chapter 27 of the Laws of Zambia. 1.2 In support of the application, is an affidavit and Skeleton Arguments that were filed on 26th September, 2023, and in opposing the application, Angel Cosmetics DRC filed an R3 affidavit in opposition and Skeleton Arguments in opposition on 30th October, 2023. 1.3 The grounds upon which the application is made are as follows: That the affidavit in support of the application for the 1. Order of injunction was sworn on behalf of Angel Cosmetics DRC by Rabih Ghaddar by virtue of a Power of Attorney that was executed in the Democratic Republic of Congo (a foreign place) which is not duly authenticated in accordance with Section 3 (d) of the Authentication of Documents, Chapter 75 of the Laws of Zambia. The affidavit in support of the application for an Order 11. of injunction was sworn on behalf of a wrong and/ or non-existent party. iii. The affidavit filed in support of the application for an Order of injunction contains grounds as indicated in the Summons relating to the said injunction. 2. AFFIDAVIT IN SUPPORT 2.1 Andrew Milau, as affiant of the affidavit, avers that Angel Cosmetics DRC at the time of commencing these proceedings, also took out an ex-parte application for an Order of interim injunction. He deposes that the affidavit filed in support of that application, which is exhibited as 'RGl', is sworn by Rabih Ghaddar, by virtue of a Power of Attorney. R4 2.2 Andrew Milau states that the Power of Attorney was executed in Kinshasa in the Democratic Republic of Congo on 8th August, 2023, before a Notary Public. Also, in averment, Andrew Milau deposes that the Plaintiff is incorporated in the Democratic Republic of Congo, as Angel Cosmetics, and not Angel Cosmetics DRC, as evidenced by the certificate of incorporation, which is exhibited as 'RG2'. 3. LIST OF AUTHORITIES AND SKELETON ARGUMENTS IN SUPPORT 3.1 The law relied on in making the application is cited, and in respect of Order 2 Rules 1 and 2 of the Rules of the Supreme Court of England, the case of Oscar Chinyanta and 31 others v Alasia Building Construction Limited and another f13J, is relied on, as having held that: '~nd under Order 2 rule 2 the court may, on the ground that there has been such failure, and on such terms as to costs, or as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order. However, the application must be made within reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity." 3.2 Further reliance is placed on this Court's decision in the case of Kenneth Mandungwe and another v Albatross Mining Limited in that regard. (14J RS 3.3 Then with regard to Order 3 Rule 2 of the High Court Rules, the cases of Charles Mambwe and others and Mulungushi Investments Limited (in liquidation), Mpelembe Properties Limited f7J and Paul Nyambe v Golden Bridge Hotel t6J, are relied on. 3.4 As for reliance on Section 13 of the High Court Act in making the application, the decision by the Supreme Court in the case of Finsbury Investment Limited and Antonio Ventriglia and others <8Jis cited. Therefore, the contention is that the application is properly before Court. GROUNDS FOR SETTING ASIDE THE AFFIDAVIT 3.5 As regards the grounds for setting aside the affidavit, this is argued, as being on the basis, that it was sworn on behalf of Angel Cosmetics DRC, by virtue of a Power of Attorney that was executed in the Democratic Republic of Congo, which was not authenticated in accordance with Section 3 of tlte Authentication of Documents Act, Chapter 75 of the Laws of Zambia. 3.6 Reliance is placed on the case of Lumus Agricultural Services Company Limited & others v Gwembe Valley Development Limited (In receivership) <1Jwhere it was held that an affidavit that it is executed outside the country has to be authenticated, before it can be used in this country. 3. 7 Further reliance is placed on the case of Rainbow Tourism Group (Zambia} v Savoy Hotel Limited and Christy Chita.lu Lumpa t10Jwhich reiterated the decision in the case of Lumus Agricultural Services Company Limited & R6 others v Gwembe Valley Development Limited (In receivership) t1J. It is contended that the Court in that matter, further stated that the object of the Act is to protect the inhabitants of this country by deterring spurious businessmen or international crooks from obtaining unauthenticated documents, and use them in the country, and in so doing, ruin the country. 3.8 The argument is further that Section 3 (d) of the Authentication of Documents Act provides for the modes of authentication of documents from countries that are referred to as foreign places. Therefore, a document that is executed in a foreign place, that is not authenticated, cannot be used as evidence in a Court. It is also argued that this position was reiterated in the case of Charmaine Baus.field v Peter Adam Baus.field f1SJ. 4. AFFIDAVIT IN OPPOSITION 4.1 Rabih Ghaddar, in opposing the application, deposes that he has been advised by his advocates, that the objection to the document that has not been authenticated, only relates to the use of the document. Therefore, the contention alleging omission to authenticate the document is not fatal, but is curable, and does not affect the use of the entire document by the Court. 4.2 Heavers, referring to exhibits 'RGl' and 'RG2' being copies of the letter forwarding the document to the Embassy for stamping, and the now stamped Power of Attorney, that the Power of Attorney has since been stamped, and is valid for R7 use in Zambia, after it was received back in Zambia on 27th October, 2023. Rahib Ghaddar also avers that he has been advised by his advocates, that the Court is empowered to grant leave to amend a defective or erroneous affidavit in Order to meet the ends of justice. 4.3 It is also stated that the addition of the acronym DRC after the words Angel Cosmetics, was to indicate that it is a company that was incorporated in the Democratic Republic of Congo, and does not change the company name, and neither does it prejudice Andrew Milau Trading Limited. The averment is also that an application to re-swear the affidavit shall be made to amend the documents. 5. SKELETON ARGUMENTS IN OPPOSITION 5.1 It is argued that objection has been raised to the Power of Attorney being used in the application for an Order of interim injunction, on the basis that it was executed in a foreign place, and it was not authenticated for use within this jurisdiction. However, the contention is that a document that is executed in a foreign place, that is not authenticated, is synonymous with a Will that is left by a deceased person, as it cannot be used until it is proved. 5.2 Thus, the irregularity in not authenticating a document that was executed in a foreign place, can be cured by subsequent authentication. The other limb of argument, is that the said Power of Attorney is contained in an affidavit that has been filed in support of the application, thereby making the said affidavit partially defective. RB 5.3 Order 5 Rule 14 of the High Court Rules is cited as authority that is given to the Court to Order amendment and swearing of defective affidavits. It is stated that the Power of Attorney has since been authenticated, and can be used in this jurisdiction, with Angel Cosmetics DRC appreciating the timely objection to the affidavit. The case of Kajimanga v Chilemya 141i s stated as being instructive in that regard, as it held that: '~n objection to a document must be made timely to allow the opposing party to respond, and if possible make any relevant application. The objection cannot validly be made after the trial of the matter has been closed." 5.4 Citing Article 118 (2) (e) of the Constitution as amended by Act No 2 of 2016, Angel Cosmetics DRC argues that the irregularities that have cited are curable. It contends that it is trite law, that matters must be heard on their merits. Reliance is also placed on Order 3/5/12 of the Rules of the Supreme Court of England, which states that: "Two principles are to be considered. The first is that the rules of court and the associated rules of practice devised in the public interest to promote the expeditious dispatch of litigation must be observed. The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default unless the default causes R9 prejudice to his opponent for which an award of costs cannot compensate. Neither principle is absolute, but the court's practice has been to treat the existence of such prejudice as a crucial and often decisive factor." 6. AFFIDAVIT IN REPLY 6.1 The affidavit in reply states that the affidavit in opposition confirms that the Power of Attorney was executed in Kinshasa, in the Democratic Republic of Congo, and that it has not been authenticated. It is also stated that it has been conceded that the Plaintiff, has been stated as being Angel Cosmetics DRC, and that the acronym DRC can be dropped. It is also deposed that Angel Cosmetics DRC has not responded to the grounds indicated in the affidavit. 7. SKELETON ARGUMENTS IN REPLY 7 .1 The skeleton Arguments in reply, repeat the averments in the affidavit in support of the application, and the case of Steak Ranches Limited v Steak Ranches International BV (2J is relied on as having defined authentication as: "The confirmation of the genuineness of a document and or signature thereon for purposes of admitting it into evidence." 7.2 It is also stated that the said case reiterated that a document that is executed outside Zambia needs to be authenticated in line with the Authentication of Documents Act, if it will be valid for use in Zambia. The other authorities also relied on, are reiterated. RlO 7.3 As regards the irregularity of the Power of Attorney not being authenticated in line with the Authentication of Documents Act, Chapter 75 of the Laws ofZ ambia, being curable, Andrew Milau Trading Limited contends that this is not the position. In support of this contention, reliance is placed on the cases of Sun Country Limited v Kearney and another <11J and Sylvester Katontoka and Wamundila Fred Waliuya v Attorney General fl7J. 7 .4 It is argued that Angel Cosmetics DRC cannot seek solace in Article 118 (2) (e) of the Constitution, as enforcement of compliance with the Authentication of Documents Act does not fall within the ambit of that provision. The argument is further that as conceded by Angel Cosmetics DRC, the said Article does not operate as a licence to breach procedural and other Rules. 7.5 The argument is that this position was confirmed by Hon Lady Justice I.Z Mbewe in the case of CMA CGM Zambia Limited v Interfood Zambia Limited f9J. AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR AN ORDER OF INJUNCTION WAS SWORN ON BEHALF OF A WRONG AND/OR NON-EXISTENT PARTY 7 .6 The argument is that an attempt has been made to justify the inclusion of DRC at the end of Angel Cosmetic's name, as an acronym that was added to indicate the place of incorporation. However, no legal basis for this has been provided. Therefore, Angel Cosmetics DRC is a wrong party. Rll 7. 7 Reliance is placed on the case of Finance Bank Plc v Arma Investments Limited and Two others f5J stating that Hon Mr Justice Sunday B. Nkonde in that matter, stated that the naming of the Applicant in the summons as Finance Bank Plc instead of Finance Bank Zambia Plc was a misnomer of a party to the action, as per the definition of misnomer, according to Black's Law Dictionary, 8th Edition, at page 1021. 7.8 Thus, misnomer renders an application incompetent. Further reliance 1s placed on the case of Standard Chartered Bank v Wisdom Chanda and Christopher Chanda f3J, arguing that the Court in that matter, held that reasons, no matter how well articulated, cannot of their own cure a defect, and that a party concerned must take out an application seeking to cure the defect. 7. 9 It is further argued, that the Court in that matter, held that it has no mandate to choose to ignore the defect, and proceed as if it never existed. 8. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR ANDREW MILAU TRADING LIMITED 8.1 It was submitted that in applying to expunge the affidavit that was filed in support of the application for an Order of interim injunction, reliance was placed on the affidavit that was filed in support of the application, as well as the List of Authorities and Skeleton Arguments in support. Further R12 reliance was placed on the affidavit in reply and the List of Authorities and Skeleton Arguments in reply. 8.2 In augmenting, Counsel stated that the facts forming the basis of the application, were substantially similar to those in the case of Charmaine Bousfield v Peter Bousfield l15J that had been cited in the Skeleton Arguments. Counsel stated that in that matter, an application was made to set aside an affidavit that was filed in support of an application for Order of injunction, as the Power of Attorney pursuant to which the deponent had sworn the affidavit, was not authenticated 1n line with the Authentication of Documents Act. 8.3 Counsel urged this Court to follow the decision in that matter, adding that Angel Cosmetics DRC had not disputed the irregularity, save to argue that it was curable, by an application to cure the irregularity. Counsel's contention however, was that such an application was not tenable, as Angel Cosmetics DRC should have taken out a formal application for amendment. 8.4 The prayer was that the application be granted. RESPONSE BY COUNSEL FOR ANGEL COSMETICS DRC 8.5 In response, Counsel's submission was that they relied on the affidavit in opposition and List of Authorities and Skeleton Arguments that had been filed in opposition to the application. It was stated that the Court would note that Angel Cosmetics DRC had acknowledged the defect in relation to the exhibit in contention. R13 8.6 Counsel reiterated the arguments in the List of Authorities and Skeleton Arguments, that the defect was curable, and he stated that steps had been taken to cure the defect, which the Court has power to grant. The authorities cited were referred to, with Counsel adding that the power to cure the defect ensures that matters are heard on their merits. It was also his submission, that no prejudice would be occasioned to Andrew Milau Trading Limited who is yet to file a defence in this matter. 8.7 With regard to the additional acronyms after the name Angel Cosmetics, Counsel submitted that this was an issue relating to a party to the proceedings .. His argument was that the description did not go to the identity of the Plaintiff. In that regard, reliance was placed on the persuasive case of Zam.beef Products Plc v Arcades Development Plc r12J, stating that a similar issue was raised in that matter. 8.8 However, the Court found that it was a misnomer that did not change the identity of the Plaintiff, and stated that the correct party was before the Court. 8.9 Counsel, citing Order 14 Rule 5(2) of the High Court Rules, submitted that this Court, has power, at any stage of the proceedings, to Order that a proper party is joined, as no suit shall be defeated by any reason of joinder or misjoinder. He went on to state that in the case relied on by Counsel for Andrew Milau Trading Limited, an Order for amendment was made. It was further submitted that Counsel for Andrew R14 Milau Trading Limited had argued that the misnomer was fatal. 8.10 Counsel however took the view that the acronym DRC which showed that Angel Cosmetics was incorporated in the Democratic Republic of Congo could be dropped, as it did not go to the root of the identity of the Plaintiff. Counsel stressed that the defect was curable by way of amendment and re-swearing of the affidavit, without the entire process falling. REPLY BY COUNSEL FOR ANDREW MILAU LIMITED 8.11 Counsel in reply, maintained that Counsel for Angel Cosmetics Limited had conceded the irregularity. Therefore, the entire injunction application was incompetent. He added that as there was admission that the affidavit was irregular, and in light of the fact that the Power of Attorney was irregular, the affidavit in opposition was irregular. Therefore, the application to amend was incompetent, as a formal application to rectify the irregularities had to be made. 8.12 The decision by the Court of Appeal in the case of Nico Coultlis Transport Limited v Buks Haulage Limited f16J was relied on as authority. It was his submission, that it was stated in that case, that heads of argument or skeleton arguments, cannot be a substitute for a formal application. 8.13 The reply with regard to the submission that the acronym DRC was a misnomer, and that leave be granted to amend the Plaintiff's name, was that such plea was incompetent, in the absence of a formal application, as was held in the RlS Finance Bank case. The prayer was that the application be granted. 9. DECISION OF THIS COURT 9.1 I have considered the application. It is made pursuant to Order 2 Rule 1 of the Rules of the Supreme Court of England, 1999 Edition, Order 3 Rule 2 oft he High Court Rules and Section 13 of the High Court Act, Chapter 27 of the Laws of Zambia. 9.2 Order 2 Rules 1 and 2 of the Rules of the Supreme Court of England provide that: (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, Jann or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. (2)Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those R16 proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit." 9.3 The provisions of Order 3 Rule 2 of the High Court Rules are: "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 ~ked by the person entitled to the benefit of the order or not." 9.4 Section 13 of the High Court Act on the other hand states that: "13. In every civil cause or matter which shall come in dependence in the Court, law and equity shall be administered concurrently, and the Court, in the exercise of the jurisdiction vested in it, shall have the power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seemjust, all such remedies or reliefs whatsoever, interlocutory or final, to which any of the parties thereto may appear to be entitled in respect of any and every legal or equitable claim or defence properly brought forward by them respectively or which shall R17 appear in such cause or matter, so that, as far as possible, all matters in controversy between the said parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided; and in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." 9.5 The issues for determination in the application are: That the affidavit in support of the application for the 1. Order of injunction was sworn on behalf of Angel Cosmetics DRC by Rabih Ghaddar by virtue of a Power of Attorney that was executed in the Democratic Republic of Congo (a foreign place) which is not duly authenticated in accordance with Section 3 (d) of the Authentication of Documents, Chapter 75 of the Laws of Zambia. The affidavit in support of the application for an Order 11. of injunction was sworn on behalf of a wrong and/ or non-existent party. iii. The affidavit filed in support of the application for an Order of injunction contains grounds as indicated in the Summons relating to the said injunction. 9.6 From the affidavit in opposition, and the List of Authorities and Skeleton Arguments in opposition, it is clear that Angel Cosmetics DRC concedes that the Power of Attorney that is R18 exhibited as 'RG 1' to the affidavit filed in support of the application for an Order of injunction is irregular, as the said Power of Attorney was executed outside Zambia, and was not authenticated in line with Section 3 of the Authentication of Documents Act, Chapter 75 of the Laws of Zambia. 9.7 It has further been conceded that the names of the Plaintiff as they appear on the certificate of incorporation which is exhibited as 'RG2' to the affidavit filed in support of the application for an Order of interim injunction, shows that it is incorporated as Angel Cosmetics, and not Angel Cosmetics DRC. 9.8 The argument by Angel Cosmetics DRC is that the irregularity in the failure to authenticate the Power of Attorney has since been regularized, by having the same authenticated, as shown by the authenticated Power of Attorney, which is exhibited as 'RG2' to the affidavit 1n opposition. 9.9 As regards the acronym DRC, after the name Angel Cosmetics, it has been argued that this can be dropped as it was added merely to show in which country the company was incorporated. The contention is that the defects are curable by way of amendment. 9.10 In opposing the amendment, Andrew Milau Trading Limited argues that such is incompetent, without a formal application being made. The decision by the Court of Appeal in the case of Nico Coultlfs Transport Limited v Buks Haulage Limited t16J, is cited, stating that the Court of R19 Appeal in that matter, held that heads of argument or Skeleton Arguments are not a substitute for a formal application. 9.11 Section 3 of the Authentication of Documents Act provides that: "3. Any document executed outside Zambia shall be deemed to be sufficiently authenticated for the purpose of use in Zambia if- (a) in the case of a document executed in Great Britain or Ireland it be duly authenticated by a notary public under his signature and seal of office; (b) in the case of a document executed in any part of Her Britannic Majesty's dominions outside the United Kingdom it be duly authenticated by the signature and seal of office of the mayor of any town or of a notary public or of the permanent head of any Government Department in any such part of Her Britannic Majesty's dominions; (c) in the case of document executed in any of Her Britannic Majesty's territories or protectorates in Africa it be duly authenticated by the signature and seal of office of any notary, magistrate, permanent head of a Government Department, Resident R20 Commissioner or Assistant Commissioner in or of any such territory or protectorate; (d) in the case of a document executed in any place outside Her Britannic Majesty's dominions (hereinafter referred to as a ''foreign place'1 it be duly authenticated by the signature and seal of officei. of a British Consul-General, Consul or Vice-Consul in such foreign place; or ii. of any Secretary of State, Under Secretary of State, Governor, Colonial Secretary, or of any other person in such foreign place who shall be shown by the certificate of a Consul or Vice-Consul of such foreign place in Zambia to be duly authorised under the law of such foreign place to authenticate such document." 9.12 Section 2 of that Act defines a document as; "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. 9.13 That Section further defines authentication as: "authentication", when applied to a document, means the verification of any signature thereon; 9 .14 Therefore, a Power of Attorney that is executed outside Zambia, is a document that requires to be authenticated R21 before it can be used in this jurisdiction. I have already stated that the affidavit that was filed in support of the application for an Order of injunction, exhibits a Power of Attorney that was executed in the Democratic Republic of Congo, and which was not authenticated in line with Section 3 of the Authentication of Documents Act. 9.15 The said Power of Attorney has since been authenticated, and Counsel in submitting, stated that the irregularity can be cured by this Court Ordering amendment and re swearing of the affidavit filed in support of the application for the Order of injunction. 9.16 In the case of Nico Coultlis Transport Limited v Buks Haulage Limited t16J, the Court of Appeal noted that the respondent had raised the issue of the appeal being incompetent after responding to the substantive appeal, as an alternative argument in its' heads of argument, as a basis to dismiss the appeal. They stated that it is desirable to raise such issues as a preliminary issue by way of motion prior to the hearing of the main appeal, and not raising it as an alternative argument in the heads of argument in opposition to the appeal. 9.17 The Court of Appeal stated that heads of arguments cannot be a substitute for a formal application, and it expressed the view that is desirable to make a formal application raising issues of incompetence of an appeal, before an appeal is heard, rather than responding to an appeal and raising therein, questions of incompetency of an appeal. The case R22 did not deal with the need to file a formal application to cure defects in an affidavit. 9.18 Order 5 Rule 14 of the High Court Rules provides as follows: "14. A defective or erroneous affidavit may be amended and re-sworn, by leave of the Court or a Judge, on such terms as to time, costs or otherwise as seem reasonable.,, 9 .19 As for the addition of the acronym DRC after the name Angel Cosmetics, it has been argued that this is a misnomer that does not change the identity of the Plaintiff. Further, that the said acronym can be dropped, as it was added just to show in which country the company was incorporated. 9.20 Misnomer is defined in Black's Law Dictionary by Bryan A. Garner, 9th Edition, Thomas Reuters, 2009 at page 1090 as: "A mistake in naming a person, place or thing, esp in a legal instrument. Misnomer of a party can be corrected by amendment, which will date back to the date of the original pleading.,, 9.21 Order 15/6/6 of the Rules of the Supreme Court of England states that: "An amendment of the writ after service which consists of the addition, omission or substitution of a party cannot be made without leave. Where a bona Ji.de mistake is made as to the name of a party or an action is brought by or against a party R23 in the wrong name, leave to amend will readily be granted to correct the wrong name of the party or to substitute the name of the right party, where this can be done without causing the other party any prejudice or injury for which he cannot be compensated for by the payment of costs. An amendment to correct the name of a party may be allowed, even if the application for leave to amend is ma.de after the expiry of any relevant period of limitation and even if the effect of the amendment will be to substitute a new party, either as plaintiff or as defendant, provided (i) the mistake sought to be corrected was a genuine mistake and (ii) the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the correct person. Evans L.J., in International Bulk Shipping and Services Ltd v. Minerals and Metals Trading Corporation of India [1996] 1 All E.R. 1017 stated at p. 1026 "... authorities have established that a distinction must be made, in accordance with the wording of the rule, between 'the identity of the person intending to sue' and the name of that party. A mistake as to the latter can be corrected, but as to the former not". An amendment to correct the name of a party or to substitute his correct name in place of the name in R24 which he sues or was sued may be allowed even after a .final default judgment has been entered, since in principle this wi.ll not preclude the Court in appropriate cases from exercising its power of amendment under 0.2, r.1. The questi.on is no longer whet1ier the amendment sought is the correction of a mere misnomer or the substituti.on of a new party, but whether in all the circumstances of the case the mistake was genuine and was not misleading or raised any reasonable doubt as to the identity of the proposed plainti.ff or defendant. Each case must depend upon its ownfacts. The principles apply equally to a plaintiff and a defendant." 9.22 Based on the above, an amendment to correct the name of a party should be readily made, where the mistake in naming a party was not intended to mislead or raise any reasonable doubt as to the identity of the proposed plaintiff or defendant. In this matter, the explanation for the addition of the acronym DRC after the name Angel Cosmetics, has been stated as having been done to show in which country the company was incorporated. 9.23 That in itself is not evidence of intention to mislead or raise reasonable doubt as to the identity of the entity that has been sued in this matter. R25 10. CONCLUSION 10.1 I note that no formal applications to amend the affidavit and to re-swear it have been made, and neither has any application been made to amend the originating process to state the correct names of the Plaintiff. In view of that, I direct that the Writ of Summons and statement of claim shall be amended to correct the names of the Plaintiff. Further, the affidavit filed in support of the application for an Order of injunction is expunged. 10.2 However, leave is granted to file a fresh affidavit that has been re-sworn to cure the defect. This shall be done by 5th December, 2023, failure to which the leave will be deemed not to have been granted. 10.3 Costs of and incidental to the application go to Andrew Milau Trading Limited which shall be taxed in default of agreement. Leave to appeal is granted. DATED AT LUSAKA THE 2QTH DAY OF NOVEMBER, 2023 S. KAUNDA NEWA HIGH COURT JUDG