Kitwe Development Limited (In Liquidation) and Ors v Zambia State Insurance Pension Trust Fund Registered Trustees (Appeal No. 231 of 2022) [2024] ZMCA 104 (23 April 2024)

.: KITWE DEVELOPMENT LIMITED (IN LIQUIDATION) PLATINUM GOLD EQUITY LIMITED {IN LIQUIDATION) OPTIMA BUSINESS SOLUTIONS LIMITED {IN LIQUIDATION) st APPELLANT nd APPELLANT rd APPELLANT AND ZAMBIA STATE INSURANCE PENSION TRUST FUND REGISTERED TRUSTEES RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 26th March & 23rd April 2024 For the Appellants: Rtd. Captain M . Chooka & Mr. P. Chola Messrs Milimo Chooka & Associates & Messrs Lewis Nathan Advocates For the Respondent : Mr. S. M. Lungu SC, Mr. Nchimuniya & Ms. S. Chisunka Messrs. Shamwana & Company JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases Referred to: 1. Northampton Coal, Iron and Waggon Co vs Midland Waggon Co (1878) 7 Ch . D 500. 2. Isaac Lungu v Mbewe Kalikeka -SCZ Appeal No. 144/2013 (unreported) at pageJ18 3. Sir Lindsay Parkinson and Company Limited v Triplan Limited (1973) QB 609 4. Borniface K. Mwale v Zambia Airways Corporation Ltd (In Liquidation) -SCZ Appeal No. 230/2016 5. Keary Development v Tarmac Construction Limited and Another (1995) 3 ALLER 534 6. Glocom Marketing Limited v Contract Haulage Limited (2011) Vol. 1 ZR 482, 7. Haroon Muhomed Hussein v Ebenzer Prem Chellepa T/A Knight High School) ZMSC 153 (2020) 8. Access Bank (Zambia) Limited v Group Five/ZCon Business Park Joint Venture (suing as a Firm) SCZ/08/52/2014 Legislation & Rules referred to: 1. The High Court Rules and Act, Volume 3, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England 1965, (White Book) (1999) Edition. (RSC} 3. The Corporate Insolvency Act No. 9 of 2017 J2 ;; Other Texts and Materials referred to: 1. Patrick Matibini, Zambian Civil Procedure: Commentary and Cases: Volume 1, Lexis Nexis (2017). 2. S. Sime, A Practical Approach to Civi l Procedure, (Oxford University Press, 2005). 3. O'Hare and Browne, on Civil Litigation 13th Edition, Sweet & Maxwell 4. Halsbury's Laws of England, 4th Edition, Volume 37 at paragraph 304 5. Phipson on Evidence, 14th Edition (1990 London, Sweet & Maxwell) at page 6. Christopher Style & Charles Hollander, Documentary Evidence, 6th Edition 1.0 INTRODUCTION 1.1 This is an appeal by the Appellants, (the Plaintiffs in the court below) against the composite Ruling of K. Limbani J, delivered on l ih July 2022, relating to two applications made by the Respondent (the Defendant in the court below). 1.2 A scrutiny of the Record, including the t yped record of proceedings, revea ls that the matter in the lower court commenced in 2016 and has been handled through different stages by different Judges and on several interlocutory applications. 1.3 Needless to say, we will restrict ourselves to the two applications the subject of the Ruling. J3 2.0 BACKGROUND 2.1 For the purposes of this section, and the next, we will address the Parties as they were in the Court below. 2.2 On 2 nd June 2016, the three Plaintiff Companies, all in liquidation, commenced an action by Writ of Summons, seeking the following reliefs against the Defendant: i. A declaration that the Defendant as a shareholder in the 1st Plaintiff is not entitled to the United States Dollars Four Million (USD4,000,000.00) which the Defendant paid the 1st Plaintiff as consideration for the purchase of 1,250,000 non-redeemable convertible preference shares still held by the Defendant in the 1st Plaintiff. ii. Refund by the Defendant to the 1st Plaintiff of the said United States Dollars Four million (USO 4,000,000.00) wrongly received by the Defendant plus interest. iii. An Order of Injunction to restrain the Defendant whether by itself, Employees, Servants, Trustees or howsoever and whatsoever described restraining it and them from dissipating or otherwise dealing in any form or manner with the United States Dollars Four Million (US$4,000,000.00) erroneously paid to the Defendant by the National Pension Scheme Authority for the discharge of Mortgage Deed dated 28th December 2010 placed on Stand No. 7732 Kitwe J4 belonging to the First Plaintiff until the determination of this matter or a subsequent Order of this Court. iv. Any relief the Court may deem fit v. Costs. 2.3 The Defendant settled its defence on 2ih June 2016 and amid several interlocutory applications, the matter proceeded to trial and some witnesses were heard by the lower court. The Plaintiff thereafter applied for leave to issue witness summons for its last two witnesses, and upon leave being granted, the Plaintiff issued witness summons to Mr. Peter Lukwesa and Mr. Volland Kachinda. 2.4 Of relevance in this appeal, as noted above, is the fact that the Defendant made two applications against the Plaintiff on 26 th February 2019 and 30 th May 2019 respectively, as follows: 1. An order for security for costs pursuant to Order XL rule 7 and 8 of the High Court Rules 1 . 2. An order to set aside the witness summons (subpoena ad testificandum) pursuant to section 27 of the High Court Act 1 as read with Order 382 of the Rules of the Supreme Court of England; and 2.5 The Affidavit in support of summons for an order for security of costs filed th on 26 February 2019 and the supporting skeleton arguments are seen from pages 44 to 52 of the Record of Appeal. The Summons under which the application was made is not part of the Record of Appeal. However, we JS glean from the skeleton arguments, that the application was made pursuant to Order XL rules 7 & 8 of the High Court Rules1. 2.6 It was the defendant's contention that the Plaintiffs' being in liqu idation, are nominal Plaintiffs and have commenced this action for the benefit of the creditors and that in the event that they are unsuccessful in their claims, it may be difficult and probably highly unlikely to enforce any order of costs against them. 2. 7 With respect to its second application, the Defendant by Summons filed on 30th May 2019, applied to set aside the Witness Summons issued for Mr. Peter Lukwesa and Mr. Kachinda pursuant to section 27 of the High Court Act as read with Order 38 of the Rules of the Supreme Court of England. 2.8 The Plaintiff opposed both applications and from pages 53 to 64 of the Record of Appeal, we have noted the affidavit and the skeleton arguments in opposition to an order for security of costs. The essence of their opposition is that an order of costs would stifle the proper prosecution of the Plaintiffs case and further that the application was made very late in the proceedings. 2.9 In opposing the application to set aside the Witness Summons, the Pla intiff submitted that the proposed witnesses had not discharged the onus placed upon them and the witness summons against them were not oppressive in nature. J6 3.0 DECISION OF THE COURT BELOW 3.1 The learned trial Judge considered the applications and heard the arguments for and against the Respondent's applications. The learned judge considered the Parties' affidavits, oral and written arguments and the authorities cited as noted above . 3.2 In relation to the first application, the Plaintiffs filed subpoenas on 18th January 2019 for Mr. Peter Lukwesa and Mr. Yollard Kachinda to testify in the matter. The learned judge carefully considered the affidavit in opposition sworn by one Mr. Peter Lukwesa, filed into court on 30th May 2019. The court noted that the case record showed the fact that another witness, Mr. E. Banda, SC, had already been summoned to testify on issues that the Plaintiffs sought him to address. The learned judge further noted that Mr. Yollard Kachinda averred, in his affidavit in opposition to the subpoena, that Mr. E. Banda, SC, was in a better position to be called as a witness and thus well versed to address all the issues. 3.3 The Learned Judge held the view that the mere fact that Mr. E. Banda, SC, as per Mr. Kachinda's position, had been engaged in the transactions between the Plaintiffs and the Defendant entails that he is in a better position to assist the court in the matter. He kept all the documents and communicated with the liquidator. The learned judge was of the view that the summoning of Mr. Kachinda is therefore not relevant, fishing, speculative and thus oppressive. J7 3.4 The Learned Judge took the view that the subpoena of Mr. Kachinda would not result in different evidence being adduced from that of Mr. E. Banda, SC and held that the subpoena if allowed would result in the two witnesses establishing the same facts thus an abuse of the privilege to summon witnesses. The learned judge concluded that the defendants' application to set aside the subpoena was successful. 3.5 In relation to the second application, namely, for security of costs, the learned judge referred to Order 40 Rule 7 of the High Court Rules provides that: "The Court or a Judge may, on the application of any defendant, if it or he sees fit, require any Plaintiff in any suit, either at the commencement or at any time during the progress thereof, to give security for costs to the satisfaction of the Court or a Judge, by deposit or otherwise, or to give further or better security, and may require any defendant to give security, or further or better security, for the costs or any particular proceeding undertaken in his interest." 3.6 The learned judge noted that it was clear from the above position of the law that an application for security for costs may be made any time during the progression of a matter. 3.7 The learned judge placed reliance on Order 23 Rule 1 of RSC and noted that when granting an order for security for costs the court is guided by the need to do justice after considering all the circumstances of the case. J8 3.8 The learned judge noted that in the case in casu both the Defendant and the Plaintiffs have acknowledged the possibility of the Pla intiffs not being able to meet the cost of litigation should the matter succeed in favour of the Defendant and an order for costs made. The lower court observed the fact that the Plaintiff Companies are all in liquidation and that they may, as such, have challenges or be unable to pay the defendants costs if it is successful in its defence. 3.9 The learned judge referred to the old English case of Northampton Coal, Iron and Waggon Co vs Midland Waggon Co1 which considered the issue of security for costs in relation to a company in liquidation. It was stated in that case that it is prima facie evidence that such company is unable to pay the costs unless evidence to the contrary is given. Thus, as long as it is shown by an application that the Plaintiffs would not, (as opposed to may not), be able to meet its debts when the order for costs is made against it then the order for the security for costs would be granted. The above position should be determined at the time of the application although the Court should take into account evidence of what is to be expected in the future before any order is made. 3.10 The learned judge noted that the Defendant had raised fear that should they succeed in the matter they would not be paid their costs and th is would make the proceedings an academic exercise. The learned judge equally noted that the Plaintiffs are alive to their challenges to meet the costs. J9 3.11 The learned judge having considered the circumstances in the matter, held the view that it is a fit and proper case to order the payment of security for costs. This would ensure that the proceedings are not a mere academic exercise should the court find in the Defendant's favour. The learned judge also noted that no party would be prejudiced with the order for security for costs as should the court find in the Plaintiffs favour they would have access to the deposited security for costs. 3.12 In arriving at its conclusion, the learned judge considered the proposed security for costs by Mr. S. Lungu, SC and ordered that US$500,000.00 be paid into court by the Plaintiffs and by virtue of Order 40 Rule 8 of the High Court Rules, ordered that the hearing of the matter would be subject to the payment of the above security for costs. 4.0 THE APPEAL 4.1 Aggrieved with the Ruling of the lower Court, the Appellants filed a Notice of Appeal and Memorandum of Appeal on 11th August 2022, advancing six (6) grounds of appeal: i) The court erred in law and fact when it held that the matter is a fit and proper case to order the payment of security for costs. ii) That the court below erred in law and fact when it held that no party will be prejudiced with the order for security for costs. iii. The Court below erred in law and fact when it held that the summoning of Mr. Kachinda is not relevant, fishing, speculative and thus Oppressive. JlO iv. The Court below erred in law and fact when it held that Mr. Lukwesa , was not personally served with the subpoena thereby making subpoena invalid. v. The Court below erred in law and fact when it proceeded to set aside the witness summons issued in respect of Mr. Lukwesa and Mr. Kachinda. vi. The Court erred in law and fact when it proceeded to order the Plaintiffs to pay Security for cost. 5.0 APPELLANTS' ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 We have duly considered and appreciated the Appellants' Heads of Argument filed on i h October 2022. 5.2 The Appellants' relied on a decision of the Supreme Court in the case of Issac Lungu v Mbewe Kalikeka 2 to the effect that discretion was vested in the lower court, which had a duty to take into account al l the circumsta nces of the case before it. 5.3 The Appellant also relied on the factors to be considered as stipulated by Lord Denning, in the case of Sir Lindsay Parkinson and Company Limited v Triplan Limited 3 , a case cited w ith approval by the Supreme Court in the Issac Lungu 2 decision. Jl l 5.4 The Appellants' considered several cardinal factors that a court ought to consider in the exercise of its discretion, when faced with an application for security for costs. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6.1 We have equally considered and appreciated the Respondent' s Heads of Argument filed on 25 th November, 2022. 6.2 The Respondent has argued the principle that a successful party in litigation is usually entitled to have a substantial part of his costs paid by the losing party. It also acknowledges that costs are generally awarded in t he discretion of the court, acting in light of the relevant circumstances of each case. The Respondent placed great premium on the case of Borniface K. Mwale v Zambia Airways Corporation Ltd (In Liquidation)4 rega rding the issue of security fo r costs where the Apex Court held as follows: "According to Rule 1 of Order 40 of the High Court Rules, costs are monies incurred in defending oneself or in proving one's case. Therefore, costs do not include the actual amount claimed. Security for costs is generally provided by the plaintiff. However, the proceedings in which the defendant can be ordered to provide security for costs are only those proceedings taken in his own interest. To hold otherwise would be a paradox since the defendant is forced to appear before court to defend his own rights." 6.3 The Respondent also called in aid the provisions of Order 23 rule 1 of the RSC and placed reliance on the case of Sir Lindsay Parkinson & Co Ltd v J12 Triplan which decision highlights factors to be taken into consideration on an application for security of costs. 6.4 Some of the factors to be considered by a court faced with such an application, include prospects of success, delay in making the application and the stifling of genuine claims. We note that both parties placed premium on the same authorities, each attempting to persuade us of their respective positions. 6.5 With respect to its second application in the lower court, the Respondent has submitted that the lower court was correct in its finding and rightly set aside the witness summons in respect of the two witnesses. 7.0 THE HEARING 7.1 At the hearing, Counsel relied on the Record of Appeal and their respective Heads of Argument. They proceeded to make oral submissions to augment their grounds of appeal. Although they offered lengthy viva voce submissions, we remain for the submissions of Counsel. 7.2 It was the Appellant's point of emphasis that the lower court failed to evaluate the reasonableness of the quantum of the security for costs that it had ordered along with the argument that by making the said order, it had allowed the Respondent to rank in priority of what he referred to as the 'pecking order' in the line of creditors. Counsel Chooka further attempted to submit on matters that are still pending determination. Suffice it to state, as argued by State Counsel Lungu, that those issues and claims before the lower court have not been determined and although State J13 Counsel equally led us to the evidence before the lower court on the issue of likelihood of success, we will not offer any comments on that line of submission . 7.3 With respect to the issue of the witness summons, Counsel Chola augmented the submissions already on record and which we have duly considered . 8.0 OUR DECISION 8.1 We have carefully considered the grounds of appeal reproduced in paragraph 4 above, the impugned Rul ing, and the arguments and submissions of the Parties . Although we have noted that this is a matter that was commenced in 2016 and which has been the subject of several interlocutory applications handled by several adjudicators, we wil l, in our analysis, deal with the two issues that are the subject of the appeal. 8.2 We note the Appellant has floated six grounds of appeal, while there are principally t w o issues that need to be resolved by this appeal. The first relates to the Ruling on the issue of security for costs and the second relates to the decision of the lower Court with respect to the Witness Summons issued against Mr. Lukwesa and Mr. Kachinda . 8.3 It is for this reason that we will consider grounds 1, 2 and 6 together as these relate to the ruling on security for costs and we will the reafter consider grounds 3, 4 & 5 as these relate to the issue of the witness summons. We have noted that Counsel in their respective heads of argument have adopted the same approach. J14 8.4 As a starting point, the application for security for costs was made pursuant to Order XL rule 71 which rule states as follows: " The court or a judge may, on the application of any defendant, if it or he sees fit, require any Plaintiff, in any suit either at the commencement or at any time during the progress thereof, to give security for costs to the satisfaction of the Court or a judge, by deposit or otherwise, or to give further or better security and may require any defendant to give security, or further or better security, for the costs of any particular proceedings undertaken in his interest." 8.5 The Appellant has argued that the decision whether or not to order security of costs vests in the discretion of the court faced with such an application. They have placed reliance on an unreported decision of the Apex Court in the cited case of Isaac Lungu v Mbewe Kalikeka in which case, the Supreme Court in relation to Order XL rule 71 stated as follows: ... it is clear that the Court has complete or real discretion whether to order security, and it will act in light of all the relevant circumstances of the case. In other words, the court must carefully consider the effect of making such order, and in the light thereof to determine to what extent or for what amount a plaintiff (or defendant as the case may be} may be ordered to provide security for costs ... " 8.6 The Respondent has canvassed the position that it is trite law that a successful party in litigation is usually entitled to have a fair portion of its costs paid by the losing party and also places reliance on the discretion of the court which must act in light of all the relevant circumstances of a JlS particula r case. They have relied on a decision of the Supreme Court whe n it pronounced itself on the provisions of Order XL of the High Court Rules in the case of Borniface K. Mwale v Zambia Airways Corporation (In Liquidation). 8.7 To support this line of argument, the Respondent has also called in aid the provisions of Order 23 rule 1 RSC which lists factors for consideration, and which have been used in this jurisdiction to apply for security for costs under XL rule 7 1 . Both Parties have placed reliance on the English case of Sir Lindsay Parkinson and Company Limited v Triplan Limited, in which decision, Lord Dening MR, highlighted salient factors that are releva nt in the exercise of a court's discretion when faced with an application to order security for costs. 8.8 Of the factors highlighted in the decision above, prospects of success, the time of applying, and the stifling of genuine claims are some of the major factors that a court must take into consideration. The Parties have led opposing arguments, understandably so, in their heads of argument. The Appellant has placed reliance on the case of Keary Development v Tarmac Construction Limited and Another5 which case was cited with approval by the Supreme Court in the cited case of Issac Lungu. The Apex Court held as follows: " .. the possibility or probability that the appellant will be deterred from pursuing his appeal by the order for security for costs is a sufficient reason for not ordering security. We are aware that the burden to show that a security for costs order would probably have J16 the effect of stifling litigation is on the claimant and that the court ought to weigh the injustice to a claimant if prevented from pursuing a proper claim by an order for security with the possible injustice to the defendant if they could not recover their costs. 11 8.9 In the Keary Development case, Peter Gibson L J stated as follows: " The Court will properly be concerned not to allow the power to order security to be sued as an instrument of oppression, such as stifling a genuine claim. 11 8.10 To oppose the consideration based on general factors alone, the Respondent has relied on the provisions of section 127 of the Corporate Insolvency Act3 to refer to other factors, which the court must consider in the exercise of judicial discretion, and to advance the argument that the Appellants are companies in liquidation, and that in the event of a Judgment entered in favour of the Respondent, the Appellants will not be able to pay costs ahead of the claims of the preferential creditors. 8.11 Both Parties have referred this Court to a persuasive decision rendered by Dr. Patrick Matibini SC, J, as he then was, in the case of Glocom Marketing Limited v Contract Haulage Limited 6 canvassing prospects of success and stifling of claims. What we can discern from this, and other authorities cited, and from the general principles applicable, is that in any application for security for costs, there is the need to protect the defendant from unwarranted costs which has to yield to the claimants right of access to the courts. J17 8.12 We are also alive to the principle that in exercising such discretion, the court ought to consider the full circumstances of the case. According to the learned authors of Halsbury's Laws of England Volume 37 Fourth Edition paragraph 3044, they state as follows : " The Court may order security for costs, in the cases in which power to do so exists, only if having regard to all circumstances of the case, it thinks it just to do so. The Court thus has a discretion whether or not to order the security for costs to be given, both under the Rules of the Supreme Court and under its statutory power ... " 8.13 It is trite that on the application for security for costs, often, three matters arise, namely: (a) whether there are grounds for ordering security for costs; (b) if so, whether the court's discretion should be exercised in favour of making the orders; and (c) if so, how much security should be provided. 8.14 We are minded that this exercise rests in the discretion of the court and as an appellate court, we are limited to the extent of interference in the exercise of judicial discretion, unless we are of the considered opinion that the exercise of discretion was not judicious or used wrong principles of law. On this settled principle of law, we place reliance on the case of Haroon Mu homed Hussein v Ebenzer Prem Chellepa T / A Knight High Schoolf where the Supreme Court stated as follows: J18 "The exercise of discretionary power by a court is indeed appealable. The onus lies on the appellant to show that the exercise of discretion by the lower court was injudicious or otherwise improper. 11 8.15 Remarks of Malila JS (as he then was), in the case of Access Bank (Zambia) Limited v Group Five/Zcon Business Park Joint Venture (suing as a Firm) 8 are instructive on the issue of judicial discretion. "Since facts of two cases are never always the same, a court cannot be bound by a previous decision in a regimented way because that would be, as it were, putting an end to discretion. 11 8.16 We have interrogated the Ruling and the judicial reasoning exercised by the lower court and we note that the lower court properly interrogated the provisions of Order XL rule 7 1 and Order 23 rule 1 RSC along with authorities submitted by Counsel respectively, in arriving at the conclusion that an application for security for costs may be made at any time during the progression of a matter. The lower Court also recognized the need to do justice after considering all the circumstances of the case. The learned Judge placed reliance on the case of Northampton Coal, Iron and Waggon Co v Midland Waggon Co. which decision considered the issue of security for costs in relation to a company in liquidation in arriving at his decision, and based on the submission before him, that the Appellants will not be able to meet its debts when the order for costs is made against them, as a factor in granting the application for security for costs. J19 8.17 The Appellants in their heads of argument at page 8 have submitted as follows: " ..... as the order for security for costs against the Appellant herein has an effect of stifling their genuine claims, such order will cause injustice not only to the Appellants herein but also to other third parties such as the Appellants creditors, employees, the government through the tax collector, other shareholders etc. that are waiting in line to be paid their monies owed to them by the Appellants from the money withheld by the Respondent herein." 8.18 In our considered opinion, as noble as may appear the intention of the Appellants, it is surely not a cost it can place on the (unwilling) shoulders of the Respondent, who has opted to make the appropriate application for security for costs, recognizing that the Appellants are not, and will not, be in any position to pay costs. It must be pointed out, and as was noted by the decision in the case of Northampton Coal, Iron and Waggon Co, that the fact that a company is in liquidation, (and in casu, all three Appellants are in liquidation), is prima facie evidence that it is unable to pay the costs, unless evidence to the contrary is adduced. 8.19 We have no hesitation in holding that the learned Judge in the lower court, exercised his discretion on sound legal principles and properly investigated the rationale behind ordering security against companies in liqu idation, as a way to safeguard the Respondent against the prospect of encou ntering real difficulties in recovering costs of the claim. J20 8.20 We note further, and perhaps as an argument in the alternative, we have also been invited by the Appellants to exercise our discretion and consider reducing the amount ordered by the lower court as securit y. We have noted among the evidence to be placed before a court, called upon to exercise its discretion when faced with such an application, the applicant should also exhibit its draft bill of costs . The draft bill of costs should reflect an estimate of the applicant's likely costs of defending the claim and is meant to assist the Court in assessing the estimated costs. Literature on this subject confirms the principle, that even where the court accepts that security should be ordered, it will not merely rubber-stamp the applicant's figures. 8.21 We are we ll guided by O'Hare and Browne on Civil Litigation 3 on this aspect . We have noted that the lower court approached the application and considered all relevant factors when determining this application. However, we have combed the record of appeal and have not seen any draft bill of costs to support the quantum of costs arrived at. In this regard, we are of the considered view that the lower court appears to have rubber stamped the figure of costs canvassed by the Respondent. We also fail to comprehend the reasoning for arriving at that figure and pegged in United States Dollars. 8.22 In the exercise of our appellate discretion, whi le agreeing with the reasoning of the lower court on the security for costs, we are not satisfied that sufficient evidence was placed before the lower court to justify the sum ordered as security for costs. We substitute the figure, and order in its J21 place, that the Appellant does place the sum of Kwacha One Million (Kl,000,000.00} as security for costs. The net result of our determination is that we dismiss grounds 1, 2 and 6 of the appeal, save as varied above. 8.23 We now move to consider grounds 3, 4 & 5 of the appeal on the issue of the Witness Summons. These grounds are related and all deal with the setting aside of the witness summons issued against Mr. Volland Kachinda and Mr. Peter Lukwesa on grounds of being oppressive. 8.24 It is noted for context that Mr. Volland Kachinda was subpoenaed in his capacity as Director General of the Pension Scheme Authority. It is noted from the Respondent's process filed in the lower court, at pages 76 to 86 of the Record of Appeal, that Mr. Kachinda had retained the services of State Counsel Elijah C. Banda, of ECB Legal Practitioners, as Counsel who had conduct of the matter in the conveyance between the Appellant and NAPSA, over the sale of the property, now in contention. 8.25 Mr. Peter Lukwesa was the Managing Director of the Respondent Company from 2009 to December 2017. It is noted that when proceedings were commenced against the Respondent, in February 2016, he gave appropriate instructions to Counsel retained in the matter. He was apparently served via a text message received on his mobile phone. 8.26 The Appellants have challenged the finding of the lower court when it set aside the subpoena against Mr Kachinda and have submitted that there is no rule of law which provides that only one witness in a tran saction J22 • • witnessed by many, may testify before Court. It is their argument that both Mr Kachinda and Mr. E. Banda SC played different roles in the conveyance, the subject of the action, and that it is not likely that their evidence will be the same. 8.27 With respect to the setting aside of the witness summons against Mr. Lukwesa, it is the Appellant's argument that the reasonin g of the lower court was flawed when it found that "if the witness was summoned his evidence would have the potential to be conflicted". 8.28 It is noted that Order 38 RSC is instructive and must be read together with section 27 of the High Court Act for a proper determination of these grounds of appeal. Section 27 of the High Court Act provides as follows: " In any suit or matter, and at any stage thereof, the Court, either of its own motion or on application of any party, may summon any person within the jurisdiction to give evidence, or to produce any document in his possession or power, and may examine such person as a witness and require him to produce an document in his possession or power, subject to just exceptions. " (emphasis is by the Court). 8.29 Order 38/19/25 RSC is instructive under the sub-heading "setting aside subpoenas". Of interest to our consideration is the following extract: J23 • "On all applications to set aside subpoenas, the Court is concerned to see that the parties do not abuse their privilege of summoning witnesses. A witness served with a subpoena cannot have it set aside merely by swearing that he can give no material evidence; but if the Court is satisfied that the writ of subpoena ad testificandum has not been issued bona fide for the purpose of obtaining relevant evidence and that the witness named is in fact unable to give relevant evidence, it will set it aside. Such an order will not prejudice the power of the judge at the trial to order the witness to attend if he thinks his presence is necessary. n (emphasis added by the Court). 8.30 The Respondent has countered the submissions of the Appellant and has referred to the learned authors of Phipson on Evidence, 14th Edition at page 1385 who stated as follows: "Litigation does not always produce perfect justice, but it is in our view unjust and unnecessary to restrict a party to putting for ward only half his case, when the rules of evidence do not compel any such restriction. There may be a residual discretion in the Court to disallow subpoenas on discretionary grounds, but it is respectfully submitted that such a power is vestigial only, and should be exercised only very rarely, if at all ... To say th is is not to deny that the Courts have an inherent jurisdiction to prevent their machinery being used as an instrument of oppression. Indeed, a litigant may be prevented from calling an undue multiplicity of witnesses. " J24 • • 8.31 The Respondent has argued that a common ground for setting aside a witness summons by the other party, and has relied on the learned authors of Documentary Evidence 6th Edition6 who state as follows : "lack of specificity in the subpoena duces tecum; oppression, that is requesting for a document whose discovery was denied by the court, confidentiality, that is, a third party should not be required to divulge confidential documents in a litigation that he is not a party to; if the request is irrelevant, fishing or speculative and if the documents are privileged." 8.32 We are further of the considered view that for us to examine the sufficiency or relevance of calling a prospective witness, the subpoena ad testificandum itself ought to be self-explanatory. From the Record of Appeal before us, the only Witness Summons we have had sight of is the one on page 68 for Mr. Peter Lukwesa. However, and for the reasons advanced in paragraph 8.31, and 8.32 we do not believe it necessary to consider it any further. 8.33 With respect to the witness summons for Mr. Volland Kachinda, the only document we have seen is the letter of service on page 74. There being no Witness Summons, we cannot comment on the sufficiency, relevance or otherwise of the evidence proposed to be elicited from him. 8.34 In the absence of clear-cut provisions of the law, we are called upon once again to interrogate the discretion exercised by the lower court. We have J25 • looked at the Ruling and at page 28 of the Record of Appeal (R12) where the learned judge directing his mind stated as follows: 11 In relation to the subpoena of Mr. Kachinda, a careful consideration of the affidavit in opposition and the case record shows the fact that another witness, Mr. E. Banda, SC, has already been summoned to testify on issues that the Plaintiffs seek him to address. Mr. Kachinda averred, in his affidavit in opposition to the subpoena, that Mr. E. Banda, SC, was in a better position to be called as a witness and thus well vested to address all the issues. The mere fact that Mr. E. Banda, SC, as per Mr. Kachinda 's position, had been engaged in the transactions between the Plaintiff and the Defendants entails that he is in a better position to assist the court in the matter. He kept all the documents and communicated with the liquidator. The summoning of Mr. Kachinda is therefore not relevant, fishing, speculative and thus oppressive. The subpoena of Mr. Kachinda would in my view not result in different evidence being adduced from that of Mr. E. Banda, SC. The subpoena if allowed would result in the two witnesses establishing the same facts thus an abuse of the privilege to summon witnesses. The application by the Defendants to set aside the subpoena accordingly succeeds." 8.35 From the facts before him, and from the history of the matter, the learned Judge was of the considered opinion that the summoning of Mr. Kachinda, was not r elevant, was speculative, oppressive and a fishing ex pedition . We J26 • form the considered view that the learned judge in the exercise of his discretion, which discretion rests on judicious grounds cannot be faulted for his Ruling. As we have noted above, the power to call the witness if desirable, still rests with the Court. 8.36 With reference to the witness summons issued against Mr. Peter Lukwesa, we have noted the mandatory provisions of Order 38 rule 17 of the RSC which state that a writ of subpoena must be served personally. It has not been disputed that Mr. Lukwesa was not served but that he received a text message through his phone. Order X rule 6 of the High Court Rules is instructive on the requirement of personal service of a document which shall be delivered to the person to be served himself. This has not been challenged by the Appellant. 8.37 Although we have noted the spirited argument mounted by the Appellants challenging the findings of the lower court when it stated: " .. if the witness was summoned his evidence would have had the potential to be conflicted." We have heard the argument that a witness offering conflicting evidence alone, is not ground for the setting aside of a witness summons. However, in our considered opinion, this ground is moot. The fact is that the subpoena was not served on Mr. Lukwesa as required. To that extent, the witness summons is incompetent, and we uphold the decision of the lower court to set it aside. J27 8.38 We dismiss grounds 3, 4 & 5 of the appeal. 9.0 CONCLUSION 9.1 The appeal being bereft of merit, it is dismissed, save for the variation in the figure of security for costs. 9.2 In as much as we are alive to the settled principles on the award of costs, we are of the considered opinion, that the justice of this case will be best served by an order that costs in this court, be in the cause. M. J. SIAVWAPA JUDGE PRESIDENT F. M. CHISHIMBA A. N. PATEL S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J28