Agrovet Market Limited and Ors v Sikko Industries Limited (2024/HPC/0279) [2025] ZMHC 2 (29 January 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) I co BETWEEN: 2024/HPC/0279 AND SIKKO INDUSTRIES LIMITED DEFENDANT Before the Honourable Mr Justice K. Chenda on 29th January 2025 For the Plaintiffs For the Defendant Mr C. K. Simukonda of Kang'ombe and Associates Ms. C. D. Mwenya of Malambo & Company RULING On Application for Leave to Issue Subpoenas ad Testificundum and Duces Tecum t ,. Ji' Jr' • . , . ., • 1. INTRODUCTION AND BACKGROUND 1.1. This action was commenced by writ of summons and statement of claim filed 7th May 2024. 1.2. The Plaintiffs applied for leave to subpoena ,officials from five government institutions. The application was however withdrawn on 21 st January 2025 and the matter proceeded with commencement of trial on the same day. 1.3. After the Plaintiffs' witnesses testified, their Counsel applied viva voce for an adjournment for purposes of re-filing the application for subpoena. 1.4. The adjournment was declined and the Defendant eventually opened its case, albeit on 22 nd January 2025 owing to the failure of its witness to attend in person. 1.5. The matter was adjourned to 6 th February 2025 for continued trial and the Plaintiffs re-filed their application for subpoena on 22nd January 2025, this time directed only at the Zambia Agriculture Research Institute (ZARI). 1.6. The Plaintiffs' application was supported by an affidavit and arguments of 22nd January 2025. It was met with an opposing affidavit and arguments filed by the Defendant on 28th January 2025. 1. 7. This is my decision delivered ex-tempore after hearing the application today and carefully considering . allri the documents filed and submissions usefully advanced from the Bar. 2. THE LAW ON LEAVE TO ISSUE SUBPOENAS 2 . 1. Section 27 of the High Court Act, Chapter 27 of the Laws of Zambia confers discretionary power on this Court (on its own volition or on application by a party) to issue sufi'poehas. 2.2. However,. neither the High Court Act nor its subsidiary legislation (the High Court Rules ["HCR"]) elaborate on the considerations for grant of leave to issue subpoena. R2 2 .3 . From a legal reasoning point of view, I would opine that an applicant must, at the bare minimum, demonstrate the following (non-exhaustive) - (i) that the evidence sought to be brought by subpoena is relevant to the facts in issue or to a collat~;al issue in the case; (ii) that the application is a necessity as the evidence cannot be obtained through means other than by way of subpoena; (iii) that in terms of proportionality the scope of the subpoena is not too broad and that it does not impose an unreasonable burden on the intended recipient; (iv) that the subpoena is sought for a legitimate purpose other than to achieve some collateral objective or improper purpose; (v) that the timing of the application is appropriate; and (vi) that the application does not otherwise infringe on any procedural rules or mandatory principles to be adhered to by the Court. 2.4. These cor:isiderations are also important because there can be no trial by ambush in civil proceedings before the High Court, such that the other litigants need notice and an opportunity of the case to be met. See ZCCM Ltd. v Goodward Enterprises Ltd. (2000) ZR48 at p.52, lines 15-18. R3 2.5. Even the Court needs to be aware of what to possibly expect in , .. order to adequately prepare for trial given the paradigm shift from the past where Judges were passive arbiters to present day litigation which requires them to be in the driver's seat through case flow management. 3. ANALYSIS 3.1. According to para. 5 of their supporting affidavit, the Plaintiffs have indicated that it is intended to subpoena officials from ZARI and the kind sought is subpoena duces tecum and ad testificandum. 3.2. However, the Plaintiffs have not substantiated their application with details of: (i) how many and which officials of ZARI is it intended to subpoena; (ii) what exactly are they supposed to testify about; (iii) what documents in particular are they supposed to produce. 3.3. Instead the Plaintiffs have opted to make the following bold and bare statement in para.3.3 of their arguments: R4 " ... leave to subpoena witnesses from the Zambia Agriculture Research Institute (ZARI) will help the Plaintiffs bring out relevant evidence I testimony which will help this Court arrive at a just decision." 3.4. Given the absence of particulars of what evidence is required and from which official, and also given the lack of an illustration as how it is relevant to the facts in issue (or a collateral issue thereto), it would be speculative to conclude that the intended evidence is indeed relevant. 3.5. It is not the province of this Court to speculate and fill in the blanks through assumptions where the evidence is deficient. I am fortified in that regard by the decision of the Constitutional Court in Richwell Siamunene v Sialubalo Gift - Vol. 3 (201 7) ZR 335 at 354. 3.6. For the same deficiencies and vagueness, the application also fails the proportionality test for being too broad in scope. An application for subpoena is not and should not be seen as an opportunity to cast the net very wide to fish all manner of evidence in the hope of finding some that is relevant. 3.7. Additionally, the Plaintiffs have not shown what efforts (if any) have been made to obtain the information and documentation, and that the efforts proved futile in terms of the same being voluntarily provided. RS 3.8. Consequently, the application fails the necessity test which is that absent a subpoena, there is no other way in which the evidence could have been brought to Court. 3.9. As for purpose, I find that the Plaintiffs have brought it for a legitimate purpose as there is nothing on record to suggest some abuse or collateral purpose. 3.10. In terms. of compliance, the application documents are not irregular and even if they had been, the Defendant has opposed them on the merits which would have been a waiver (see Order 2 Rule 2 and explanatory note 2 / 2 / 4 of the Rules of the Supreme Court of England, 1965 in the White Book 1999 Edition). 3.11. As for timing, s.27 of the High Court Act has already been said to allow for Court subpoenas either at its own instance or upon application by a litigant. 3. 12. On a proper construction of the section and also Order 19 Rule 3(3) of the HCR, I opine that it is only the subpoena on the Court's own volition which can be issued at any stage. Further that by contrast, a subpoena on application by a party can only be issued if the application is made not less than 14 days before trial. R6 3.13. The reasons for the latter scenario (and indeed a cut-off period for making interlocutory applications) would in my mind include to safeguard against: (i) disrupting the trial timetable; (ii) wasting the limited resource of judicial time; (iii) inconveniencing the party that is ready for trial; (iv) delaying conclusion of the case; and (v) ultimately undermining the High Court's relevance (and public confidence in it) as a dispute resolution forum. 3.14. It follows that the Plaintiffs' application is borderline permissible in terms of timing as it was lodged on 22 nd January 2025 which is just over 14 days before the next trial date of 6 th February 2025. 4. CONCLUSION AND ORDERS 4.1. An application for leave to issue a subpoena is serious in nature and will not be granted as of right. The applicant ought to demonstrate convincing reasons for it, which include satisfying the Court that - (i) (ii) the evidence sought is relevant to the fact§> -in issue; the application is necessary as the evidence cannot otherwise be brought to Court; R7 (iii) the application is proportionate in terms of reasonable scope for the subpoena and no undue burden on the intended recipient; (iv) the application is legitimate and not 1n furtherance of a collateral purpose; (v) the timing of the application is appropriate in terms of stage of the proceedings; and (vi) the application is procedurally sound. 4.2. In the case before Court the Plaintiffs have failed to meet the thresholds of relevance, necessity and proportionality. 4.3. Consequently, I find no merit in the application and dismiss it with costs to be in the cause. Dated this------------~~'!__ ___ day of ______ j ________ :: _____________ 2025 ------ ~ K. CHENDA Judge of the High Court ------- i .,, , RS