Dolomite Aggregates Limited v Paul Marais (APPEAL NO. 254/2021) [2024] ZMCA 260 (19 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL NO. 254/2021 DOLOMITE AGGREGATES LIMITED APPELLANT Coram: Mchenga DJP, Banda-Bobo and Muzenga, JJA On 10 th October 2023 and 19 th March 2024 For the Appellant: D. Nalishuwa, Musa Dudhia and Company For the Respondent: M. Musukwa, Andrew Musukwa and Company JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Shamwana v. The People [1985] Z. R. 41 2. Liswaniso Sitali v. Mopani Copper Mines [ 2004 ] Z. R. 176 3. GE Capital Corporate Finance Group Ltd v. Bankers Trust Co· [1995] 2 All ER 993 4. Ryan Zaloumis v. Ruks Haulage Limited 2015/HPC/0026 5. Charles Kajimanga v. Marmetus Chilemya, SCZ Appeal No. 50 of 2014 6. Dipak Patel v. Minister of Finance and The Attorney General 2020 /CC/005 7. Karuma, Son of Kaniu v. The Queen [1955] 2 WLR 233 J2 Legislation referred to: 1. The Rules of the Supreme Court of England, 1999 Edition 2. The Electronic Communications and Transactions Act No. 4 of 2021 3. The Evidence Act, Chapter 43 of the Laws of Zambia. Works referred to: 1. Black's Law Dictionary, Ninth Edition,2009, Thompson Reuters INTRODUCTION c11 This appeal originates from the ruling of the High Court (Bowa, J.), delivered on 26 th February 2021. c21 By that ruling, the appellant's objection to the production of certain documents by the respondent was dismissed. C3J Through this appeal, the appellant seeks to reverse that decision. BACKGROUND C4J On 28 th March 2018, the respondent, a former employee of the appellant, by writ of summons, commenced an action against the appellant. J3 cs1 His claims against the appellant included claims for a declaration that the Deed of Settlement and Release executed by him and the appellant, is voidable and unenforceable, for having been executed under duress; and a declaration that the Deed of Settlement and Release was improperly executed and is therefore null and void; and damages for the appellant negligently causing distress, mental stress, emotional turmoil and anguish on him. E6J On 1 st October 2019, pursuant to Orders 9, 10 (1), 13 (1) and 24 (11) (c) of the Rules of the Supreme Court 1999 Edition, the appellant filed a notice of objection to the production of certain documents on the respondent's list of documents. E7J The documents whose production was objected to, were: 1. WhatsApp messenger messages (Messages) between Datlton Ross and Paul Marais dated 19.05.18; 2. PACRA Computer Printout- Dolomite Aggregates Ltd dated 14.03.18; 3. PACRA Computer Printout- Dolomite Roads and Construction Ltd. dated 14.03.18; J4 4. Messages between Diego Cas.illi and Paul Marais dated 08.04.16 to 26.04.16; 5. Paul Marais'Passport-03.09.13; and 6. Paul Marais' Workpermit-03.09.13. [BJ The Messages between Dalton Ross and the respondent, PACRA Computer Printout on Dolomite Aggregates Ltd, PACRA Computer Printout on Dolomite Roads and Construction Ltd, Paul Marais' passport and Paul Marais' work permit, were objected to on the grounds that they were not relevant to the issues in controversy. [9J As for the Messages between the respondent and Diego Casilli, they were objected to on the ground that they were either redacted or were incomplete. They only showed a portion of the conversations and were misleading as they did not depict the full nature of their conversations. [101 The appellant argued that it was in the interest of justice that the respondent be ordered to produce all the conversations between himself and Diego Casilli. [111 In response to the abjections, the respondent averred that all the documents produced were important and JS relevant, as they relate to the claims in his statement of claim. [121 The Messages were essential to prove his allegations of harassment, threats and intimidation. [13J As for the Messages between Diego Casilli and the respondent, it was argued that the appellant had the opportunity to address their concerns regarding the "completeness" of messages during cross-examination at trial. DECISION OF THE TRIAL JUDGE [14J As regards the Messages between the respondent and Diego Casilli, the trial Judge took the view that the issues raised were matters that could be raised at trial. [1s1 The court would then consider whether the requirements for establishing the integrity and authenticity of the documents as prescribed in the Electronic Communications and Transactions Act had been met. (161 Thereafter, the court can decide on the weight to be attached to the documents as provided for by Section J6 8 of the Electronic Communications and Transactions Act. c1?J As for the other documents, that is, the Messages between Dalton Ross and the respondent, the PACRA Computer printouts and the respondent's passport and work permit, the trial Judge opined that it was premature to determine theix relevance before hearing the respondent's evidence on the duress. GROUNDS OF APPEAL c1ai Two grounds have been advanced in support of the appeal. They are couched as follows: {a) the Court below erred in law and fact when it found that the WhatsApp messages, passport and PACRA print out are documents relevant to the respondent's pleadings when the contents of the documents clearly show that they are not 1.n any way related to the issues pleaded by the Respondent; and {b) the Court below erred in law and in fact when it found that the objection raised against the J7 WhatsApp messages and PACRA print out is one that can only be properly determined at trial. ARGUMENTS IN SUPPORT OF THE 1 st GROUND OF APPEAL [191 In support of the 1 st ground of appeal, cases including the cases of Shamwana v. The People 1 and Liswaniso Sitali v. Mopani Copper Mines 2 , were referred to and it was submitted that only relevant evidence can be presented to the court for consideration. [201 In this case, it was argued, the Messages between Dal ton Ross and the respondent, the PACRA Computer Printout on Dolomite Aggregates Ltd., the PACRA Computer Printout on Dolomite Roads and Construction Ltd., Paul Marais' passport and Paul Marais' work permit, were not relevant to the issues in controversy. [211 This is because they do not in any way substantiate the respondent's allegation that . he executed the Deed under duress. [221 Further, as for the Messages between the respondent and Diego Casilli, it was also submitted the redacted portions, render the portions produced misleading and do not give an honest picture. JS c231 The case of GE Capital Corporate Finance Group Ltd v. Bankers Trust Co. 3 , was referred to and it was submitted that because parts had been redacted, the whole document should be excluded on the ground that allowing the document would enable the respondent produce misleading evidence to the detriment of the appellant. c241 On the same point, Section 8 (2) of the Electronic Communications and Transactions Act, was referred to and it was submitted that one of the conditions for the admission of a data message had not been met since the integrity of the information c o ntained in the Messages had been compromised by the redaction. c2s1 Further, it was submitted that the Messages breach the best evidence rule which requires the production of original documents. Section 3(1) of the Evidence Act was referred to and it was submitted that since only excerpts of the Messages were availed, the conversation was incomplete. c261 Finally, Counsel referred to Section 2 of the Electronic Communications and Transactions Act, and submitted that since the Messages are data messages, J9 they ought to be authenticated before they can be admitted into evidence. ARGUMENTS IN SUPPORT OF THE 2~ GROUND OF APPEAL c2?1 Corning to the 2 nd ground of appeal, it was subrni tted that the trial Judge ought to have considered the relevance of the Messages out rightly, before trial. c201 The cases of Ryan Zaloumis v. Ruks Haulage Limi ted4 , Charles Kajimanga v. Marmetus Chilemya 5 and Dipak Patel v Minister of Finance and The Attorney General 6 , were referred to and it was submitted that where there is an objection to the production of a document, it must be early in the proceedings and the court should resolve the issue. c291 We were urged to find rneri t in this appeal and allow it. RESPONDENT'S ARGUMENTS IN RESPONSE TO BOTH GROUNDS OF APPEAL c3O1 The respondent's response to the two grounds of appeal was simultaneous. [311 It was argued that the documents objected to on grounds of irrelevance, are in fact relevant. JlO [321 Reference was made to the definition of the term 'relevant' in Black's Law Dictionary and it was submitted that the documents are relevant to the issues in dispute as they will substantiate the respondent's claims against the appellant. [33J Reference was also made to the cases Edward Jack Shamwana & Others v. The People 1 and Karuma, Son of Kaniu v. The Queen 7 and it was pointed out that the Messages between the respondent and Dalton Ross substantiate the respondent's claims of signing the Deed after being threatened with fraud charges and deportation. E34J As regards the Messages between the respondent and Diego Casilli, they are also relevant as they support his claims of harassment and duress. c3s1 Further, it was submitted that the Messages were not compromised and meet the requirements of Sections 3 and 8 of the Electronic Commuri.ica tions and Transactions Act. It was also submitted that the appellant was at liberty to produce the entire Messages to rebut the respondent's evidence during cross-examination. Jll [36J With regard to the PACRA print outs, work permit and passport, it was contended that these documents are of probative value as they prove the respondent's claims of coercion. [37J In concluding, the respondent implored this court not to find merit in this appeal and dismiss it. COURT'S CONSIDERATION AND DECISION ON THE APPEAL [3BJ We will first deal with the relevance of the Messages between Dalton Ross and the respondent; the PACRA Computer Printout on Dolomite Aggregates Ltd.; the PACRA Computer Printout on Dolomite Roads and Construction Ltd., Paul Marais' passport and Paul Marais' work permit. [39J These documents were objected to on the grounds that they were not relevant to the issues in controversy. [40J 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. J12 C41J We are mindful that we should not, in our consideration of the relevance of these documents, appear to conclusively determine the very issue that they are intended to prove, that is, that the respondent was coerced into signing the disputed Deed. c421 All we can pronounce on, is whether they are relevant to establishing the respondent's claim of coercion . Whether they actually prove the coercion, is a matter for the trial Judge to resolve after the trial. C43J In Black' s Law Dictionary, the term 'relevant evidence' is defined as: 'evidence tending to prove or disprove a matter in issue. Relevant evidence is both probative and material and is admissible unless excluded by a specific statute or rule'. C44J Looked at individually, the approach the appellant appears to take, the disputed documents do not appear to prove the respondent's coercion into signing the disputed Deed. C45J However, when looked at together, and having regard to the pleadings, the fact that the respondent is a foreigner, whose stay in the country was on the basis of a permit and there being adverse comments in the J13 Messages, from persons with links to his former employers, does point at the fact that they are relevant. [46J This being the case, we cannot fault the trial Judge for not finding that Messages between Dalton Ross and the respondent; the PACRA Computer Printout on Dolomite Aggregates Ltd.; the PACRA Computer Printout on Dolomite Roads and Construction Ltd., Paul Marais' passport and Paul Marais' work permit, were not relevant, and excluding them. [47J The 1 st ground of appeal lacks merit. [4BJ Coming to the 2 nd ground of appeal, it is our view that the provision relevant for the right consideration of the effect of the Diego Casilli Messages being redacted, is not Section 8 but Section 9 of the Electronic Communications and Transactions Act. [491 Section 8 of the Electronic Communications and Transactions Act, substantially deals with situations where the law requires information to be presented in its original form and it provides that a data message can be considered as being an original document if certain conditions are met. Jl4 rsoi As for Section 9 of the Electronic Communications and Transactions Act, it reads as follows: (1) In any legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of a data message in evidence (a) on the mere grounds that it is constituted by a data message; or (b) if i t is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that i t is not in its original format provided the substance is the same. (2) Information in the form of a data message shall be given due evidentiai weight. (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. (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. Jl5 [511 Our understanding of this provision, is that the 'introduction' of a data message into evidence, is two staged. [521 The first stage, is the admission of the message into evidence, while the .. second stage is the weight to be attached to the admitted evidence. [53J It is therefore possible that even after admitting it into evidence, the trial Judge can decide to attach little or no probative value, to a data message. [54J Section 9 ( 1) (b) of the Electronic Communications and Transactions Act, provides that a document which is a data message will nbt be rejected on the gro~nd that it is not in its original format. [55] Further, Section 9(3) of the Electronic Communications and Transactions Act, sets out the factors to be taken into account when determining the weight to be given to a data message. [56J The factors include the reliability of the manner in which the integrity of the data message was maintained. [57J In this case, the Diego Casilli Messages have been objected to on the ground that they were redacted. J16 [5BJ In our view, that goes to integrity of the Messages and going by Section 9(3) of the Electronic Communications and Transactions Act, that is an issue that goes to the weight to be attached to that evidence and not to its admissibility. [59J The appellant also referred to Section 3 of the Evidence Act. This provision deals with the admissibility of evidence which is documentary and tends to establish a fact in issue. It provides that such evidence is admissible on the production of the original document. [601 However, Section 9 (1) (b) of the Electronic Communications and Transactions Act, provides that a document which is a data message will not be rejected on the ground that it is not the "original" document. [611 It follows therefore, that evidence which would have been admissible under Section 3 of the Evidence Act, if the original document was produced, can still be admitted in the absence of the original document, where it is a data message and the requirements under Section 9(1) of the Electronic Communications and Transactions Act, have been met. J17 [621 Coming to the argument that data messages ought to 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. [63J 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". [64J Our understanding of the provision is that for a data message to be relied on, at some point during the trial, there must be led evidence proving that the data message is authentic. [65J The provision does not state that authenticity of a data message must be proved upfront. [66J 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 J18 by an officer in the service of that person, is admissible in evidence. C67J On the evidence on record, this provision does not appear to us to be applicable to the Diego Casilli Messages. C6BJ The 2 nd ground of appeal lacks merit and it is dismissed. VERDICT C69J Having dismissed all the arguments in support of both grounds of appeal, we find that this appeal lacks merit. We order that this long standing matter immediately proceeds to trial. c1oi Costs to the respondent, to be taxed in default of agreement. ._· / ·······~ · ····················· / r A. M. Banda-Bobo COURT OF APPEAL JUDGE '1··;~ 202 ·····~ ~;········ COURT OF APPEAL JUDGE