Paramount Chief Mpenzeni and Ors v Aaron Jere (APPEAL NO. 138/2024) [2025] ZMCA 8 (31 January 2025)

* IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 138/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) (cid:9) BETWEEN (cid:9) 31 JAN 2025 PARAMOUNT CHIEF MPENZENI (cid:9) APPELLANT CHIEF MADZIMAWE (cid:9) CHIEF MUNUKWA (cid:9) 2ND APPELLANT 3' APPELLANT LEVY JERE (CHIEF KAPATAMOYO) (cid:9) 4TH APPELLANT AND AARON JERE (cid:9) RESPONDENT CORAM: Chashi, Chishimba and Muzenga, JJA ON: 16th and 31st January 2025 For the Appellants: D. Jere, Messrs Dickson Jere and Associates For the Respondent: I. Mwale (Ms), Messrs Kang'ombe and Associates JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. People v Shamwana and Others (1982) ZR, 122 2. Kabwe Transport Company Limited v Press Transport Limited (1984) ZR, 43 3. Wallace Smith Trust Co. Ltd (In Liquidation) v Deloitte Haskin & Sells (A Firm) (1996) 4 All ER, 403 Ca -i2- 4. Prosper Investments Ltd and Another v Stanbic Bank Zambia Ltd 2017/HPC/0141 5. Soltec v Swakopmund Superspar (I 160/2015) NAHCMD 159 6. Fossheim Industries Ltd v Remai Construction Group Inc [2008] AJNo. 1421 7. Hussan v Chief Constable of West Mercia Police (2008) EWCA Civ 1205 8. Mitchell v News Group Newspapers Ltd (2013) EWCA Civ 1537 9. Savenda Management Services v Stanbic Bank Zambia Limited -SCZ Judgment No. 10 of 2018 10. Guardall Security Group v Reinford Kabwe - CAZ Appeal No. 96 of 2018 11. The People v O'Rourke (1932) 124 Cal. App. 752 12. Gift Luyako Chi lombo v Biton Manje Hamleke - CCZ Appeal No. 2 of 2016 13. Nickson Chilangwa (Suing as Secretary General of the Patriotic Front Party) v The Attorney General - CAZ Appeal No. 216 of 2022 14. Chaile Kapambwe v Clement Jonazi - CAZ Appeal No. 212 of 15. Standard Chartered Bank Zambia PLC v Kasote Singogo - SCZ Appeal No. 212 of 2016 16. Duet Communications Limited v Zambia Telecommunications Company- CAZ Appeal No. 179 of 2020 17. Witheim Roman Buchman v The Attorney General - SCZ Judgment No. 14 of 1994 18. Mususu Kalenga Building Limited and Winnie Kalenga v Richmans Money Lenders Enterprises - SCZ Judgment No. 4 of 19. Herman Josef Kibler v Appollo Agricultural Holdings Limited - SCZ Selected Judgment No. 26 of 2018 -J3- 20. Peony Zambia Limited v Shalom Bus Services Limited and Attorney General - SCZ Appeal No. 103 of 2015 21. K. B Davis (Zambia) Limited vAndrew Masunu - SCZ Appeal No. 181 of 2006 Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The English Law (Extent of Application) Act, Chapter 2 of the Laws of Zambia 3. The Evidence Act 1851 4. The Evidence Act, Chapter 43 of the Laws of Zambia 5. The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of Honourable Madam Justice S. Kaunda Newa, delivered on 7th September 2023. 1.2 In the Judgment, the learned Judge held that a party to a civil matter is both competent and compellable to give evidence on behalf of either party and thus can be -J4- subpoenaed to testify. As a result, she granted the Respondent leave to subpoena witnesses. 2.0 BACKGROUND 2.1 The brief background to this appeal is that the Respondent commenced an action against the Appellants on 6th October 2017, seeking to assert his claim as the rightful heir to the throne under Chief Kapatamoyo's Kingdom. The Appellants filed their defence on 20th December 2018, following which the court issued orders for directions on 31st January 2019. The trial subsequently commenced, during which both parties presented their testimonies and closed their cases, along with two Ngoni customary Assessors. 2.2 The Respondent objected to the testimony of the 1st Assessor, alleging bias due to his involvement with the Nc'wala Committee. The Appellants, however, contended that this objection should have been raised earlier in the proceedings. In response, the court directed the Respondent to either file a formal application or proceed with cross-examination. Instead, the Respondent applied to call expert witnesses but later withdrew the -J5- application. Consequently, the court proceeded to hear the testimony of the Assessors. 2.3 The Respondent's subsequent application to call expert witnesses was denied by the trial court in her ruling of 281h September 2022, on grounds that the proposed expert witnesses did not qualify to testify as such. Following this, on 30th March 2023, the Respondent applied for leave to subpoena witnesses pursuant to section 27 (1) of The High Court Act'. 2.4 In the application, the Respondent sought leave to subpoena the 1st Appellant, Mr. Zenius Dube, Mr. Mwanza, Ms. Daka, and Senior Chief Mukuni. With respect to the 1st Appellant, it was argued that his failure to testify during the trial had deprived the Respondent of the opportunity to cross-examine him directly. 2.5 Conversely, the Appellants opposed the application, arguing that the Respondent should not be permitted to reopen his case, as both parties had already closed theirs. They further contended that the court's prior permission was limited to the calling of expert witnesses and none of the individuals listed by the Respondent qualified as such. 2.6 The Appellants further argued that allowing the -J6- Respondent to call additional ordinary witnesses would unnecessarily prolong the proceedings and result in undue prejudice to them. They also contended that, in civil matters, it is both unprecedented and improper for a plaintiff to subpoena a defendant to testify, particularly when the defendant has elected not to present evidence. 3.0 RULING OF THE COURT BELOW 3.1 Upon considering the application and the arguments presented both in support of and in opposition to it, the learned Judge examined Section 27 of The High Court Act'. This provision states that the court may, at any stage of the proceedings, issue a subpoena for witnesses, either on its own motion or upon application by a party. Based on this, the Judge concluded that a subpoena for a witness to testify may be issued at any point during the proceedings. 3.2 The learned Judge further had recourse to Odgers' Principles of Pleadings and Practice which clarifies that: "It is sometimes erroneously assumed that a witness who has given a statement to or has been subpoenaed -J7- by one party may not be approached by the solicitor for the other side with a view to giving a statement. There is no property in a witness and so long as there is no question of tampering with him or seeking to persuade him to change his story, it is permissible to interview him and to take a statement from him. Great discretion should be exercised in order to avoid even the suspicion of irregularity in the approach. Any attempt to intimidate or influence a witness would amount to contempt of court." 3.3 The Judge observed that, under The English Law (Extent of Application) Act', all English Acts in force prior to 1911 are applicable in Zambia. As a result, The Evidence Act3 of England is recognized as applicable law in Zambia. Section 2 of this Act provides that: "Parties to be admissible witnesses. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court ofjustice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, -J8- or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action, or other proceeding." 3.4 (cid:9) Based on this provision, the Judge concluded that a party to a civil matter is both competent and compellable to give evidence on behalf of either party and thus can be subpoenaed to testify. Consequently, she found that the argument that the 1st Appellant, cannot be subpoenaed in this matter does not hold. 3.5 The Judge then considered whether the Respondent's application to subpoena witnesses was an attempt to tamper with the 1st Appellant, who had already filed a defence or whether it constituted an abuse of the court process by seeking to call additional witnesses despite having had a prior opportunity to do so. 3.6 The Judge expressed the view that the 1st Appellant, as a defendant, was unlikely to testify for the Respondent. Moreover, no valid reasons were provided for the failure to call the other witnesses, except for Senior Chief -J9- Mukuni. She pointed out that witnesses such as Mr. Zenius Dube, Mr. Mwanza, and Ms. Daka were initially intended to testify as experts but had been disqualified from doing so in her prior ruling. The Judge further observed that the existence of filed witness statements by these witnesses indicated that these individuals had been available to testify on the Respondent's behalf throughout the proceedings. 3.7 Notwithstanding these findings, the learned Judge acknowledged the right of a party to present all relevant evidence and to ensure a fair trial for all parties involved. Accordingly, she granted leave for subpoenas to be issued to the identified witnesses. The Judge further held that any potential prejudice caused by delays could be atoned for in costs, should the Appellants succeed in the case. 4.0 THE APPEAL 4. 1 Dissatisfied with the Ruling of the court below, the Appellants have appealed to this Court advancing six (6) grounds of appeal couched as follows: 4.1.1 That the learned Judge erred in law and fact when she held that the Evidence Act 1851 of England is applicable to Zambia by virtue of _J10- Section 2 of the English Law (Extent of Application) Act Chapter 11 of the Laws of Zambia when in fact Zambia has its own standalone Evidence Act, Chapter 43 of the Laws of Zambia. 4.1.2 That the learned Judge erred in law and fact when she held that the Vt Appellant (Corporation Sole) can be subpoenaed to give evidence for the Respondent in the matter herein when he has settled his defence and his witnesses have already testified on his behalf. And that only in rare and unique circumstances can a defendant be subpoenaed to testify for the plaintiff in civil matters. 4.1.3 That the learned Judge erred in law and fact when she allowed the Respondent to re-open his case and subpoena five more witnesses without inquiring as to what documents the said witnesses are supposed to produce in court in aide of the dispute herein which could not have been done before he closed the case. -111- 4.1.4 That the learned Judge erred in law and fact when she held that the Respondent can call additional witnesses without making a formal application to re-open his case after he and the Appellants closed their case and the matter is ripe for submissions and judgment. 4.1.5 The learned Judge erred in law and fact when she allowed leave for the Respondent to subpoena witnesses to give evidence for the Respondent after the Respondent closed his case when the said witnesses have been available since the matter was commenced and were not called by the Respondent when he opened and closed his case. 4.1.6 The learned Judge erred in law and fact when she did not award costs to the Appellants after she granted leave to the Respondent to bring an additional five witnesses when both the Respondent and the Appellants closed their cases and the same will greatly increase costs for the Appellants in defending the matter herein. -J12- 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 Mr. Jere, Counsel for the Appellant, relied on the filed heads of argument dated 30th May 2024, which he augmented with brief oral submissions. 5.2 In support of ground one, Counsel contended that the applicable law in Zambia is The Evidence Act', Chapter 43 of the Laws of Zambia, rather than The Evidence Act' of England, which the lower court had relied upon. Counsel argued that Zambia possesses its own stand- alone legislation governing matters of evidence, making the application of The Evidence Act' of England in Zambia improper. To reinforce this position, the Appellant cited the decisions in The People v Shamwana and Others' and Kabwe Transport Company Limited v Press Transport Limited.' 5.3 In support of ground two, Counsel argued that calling a defendant as a witness for the plaintiff may create a conflict of interest, as the defendants primary allegiance is to their own defence. This could lead to reluctance to support the plaintiffs case and undermine confidence in a fair trial. 5.4 (cid:9) It was argued that in this case, the Pt Appellant was sued -J13- in his official capacity as Paramount Chief Mpezeni, which is why he is not named personally. By virtue of his designation and office, his role was represented through the 2nd Appellant, who testified and was cross-examined by the Respondent. It was contended that calling the 1st Appellant as a witness would therefore not benefit the Respondent's case. It was argued that if the Respondent sought to call the 1st Appellant as a witness, this should have been done before the closure of the Respondent's case. 5.5 Additionally, it was argued that allowing the Respondent to call the 1st Appellant as witness would place counsel for the defendant in a challenging position, as it would compel them to cross-examine their own client, thereby complicating the trial dynamics. 5.6 In support of ground three, Counsel contended that permitting the Respondent to summon five witnesses without fulfilling the necessary legal requirements would be unjust. It was contended that the lower court failed to adequately scrutinize the documents to be produced by the witnesses under the Subpoena ciuces tecuin to -J14- determine their relevance and necessity to the Respondent's case. 5.7 It was further argued that the basis for obtaining leave to reopen a case is to require the plaintiff to justify the necessity of calling additional witnesses and explain why these witnesses were not presented earlier. To support this contention, the Appellants referred to Orders 38/19/2 and 24/13/2 RSC and relied on the cases of Wallace Smith Trust Co. Ltd (In Liquidation) v Deloitte Haskin & Sells (A Firm)' and Prosper Investments Ltd and Another v Stanbic Bank Zambia Ltd4, asserting that the applicant must demonstrate that producing these documents is essential for the fair disposal of the action. 5.8 Counsel also highlighted that the five witnesses were available throughout the trial. He argued that if the Respondent intended to rely on their testimony, these witnesses should have been called at the outset of the trial rather than alter its closure. 5.9 Regarding ground four, Counsel submitted that no witness may be called alter a party has closed its case without the leave of court, as mandated by Section 27(1) -J15- of The High Court Act'. The Respondent was required to make a formal application to reopen the case, clearly identifying the documents sought from these witnesses in support of the pleadings. 5.10 It was further argued that when a party seeks to subpoena witnesses after closing their case, they must first obtain leave of the court through a formal application, rather than merely issuing subpoenas. Counsel emphasized the distinction between obtaining leave to issue subpoenas and leave to reopen a case. 5.11 Counsel contended that although a trial Judge has the discretion to allow a party to reopen its case, this discretion must be exercised judiciously. The established criteria for granting such leave include: (a) whether the new evidence, if presented earlier, would likely have influenced the outcome of the judgment, and (b) whether the evidence could have been obtained earlier through reasonable diligence. In support of this, the Appellants relied on the cases of Soltec v Swakopmund Superspar5 and A. Fossheim Industries Ltd v Remai Construction Group Inc' 5.12 In the present case, the witnesses, the Respondent -J16- sought to call were available throughout the trial, and there was no indication that their existence was previously unknown. Counsel argued that this appeared to be an afterthought, aimed at salvaging the Respondent's case alter it had been weakened by the testimonies of the Appellants and court witnesses. It was contended that permitting the Respondent to subpoena witnesses at this late stage, would undermine procedural rules designed to ensure fairness and the proper administration of justice. 5.13 In support of ground five, it was argued that when opening his case, the Respondent expressly indicated that he would call only three expert witnesses. Consequently, he should be confined to the witnesses identified before the closure of his case. 5.14 Counsel acknowledged the general principle that witnesses may be called after a party has closed its case. However, he emphasized that this is typically limited to exceptional circumstances, such as responding to new evidence introduced by the opposing party. It is not an automatic entitlement and the court's discretion to -J17- permit additional witnesses must be exercised with due regard to procedural fairness and justice. To support this argument, the Appellants cited the case of Hussan v Chief Constable of West Mercia Police'. 5.15 Counsel contended that the Respondent had ample opportunity to call these witnesses during the trial but chose not to, despite their availability. It was argued that for the court to allow the introduction of new witnesses at this late stage, the Respondent must demonstrate compelling reasons or exceptional circumstances, which he has failed to do. 5.16 Counsel further submitted that permitting the introduction of additional witnesses at this stage would disrupt the orderly progression of the trial, unnecessarily prolong the proceedings and cause undue prejudice to the Appellants. 5.17 Regarding ground six, Counsel argued that the case was nearly concluded, with only the assessors' evidence and closing arguments remaining. It was pointed out that the Appellants, being based in the Eastern Province, incurred significantly higher costs due to the need to travel and stay in Lusaka for additional hearings. 5.18 It was further contended that reopening the case to call -J18- additional witnesses after its closure was unjustified and burdensome, especially as the Appellants were not at fault. Relying on Order 62 Rule 3/3 RSC and Mitchell v News Group Newspapers Ltd', it was submitted that the lower court should have condemned the Respondent in costs for causing undue financial strain. 6.0 ARGUMENTS OPPOSING THE APPEAL 6.1 (cid:9) Counsel for the Respondent, Ms Mwale, relied on the filed heads of argument dated 13th June 2024. Counsel began by contending that grounds one, four, five and six were argumentative and contained narratives, thus contravening the provisions of Order X Rule 9(2) of The Court of Appeal Rules' (CAR), which mandate that grounds of appeal shall be set forth concisely and under distinct heads, devoid of argument and narratives. It was emphasized that this requirement is mandatory, as indicated by the use of the word "shall" in the rule. 6.2 In support of this position, Counsel cited the cases of Savenda Management Services v Stanbic Bank Zambia Limited', Guardall Security Group Limited v Reinford Kabwe'°, The People v O'Rourke" and Gift (cid:9) -J19- Luyako Chilombo v Biton Manje Hamleke'2, which underscore the mandatory nature of the term "shall." Counsel therefore urged us to expunge the offending ground, consistent with our decision in the case of Nickson Chilangwa (Suing as Secretary General of the Patriotic Front Party) v The Attorney General. 13 6.3 Notwithstanding these objections, Counsel proceeded to respond to the grounds of appeal in the alternative as follows; In addressing ground one, it was argued that the trial court could not be faulted for holding that The Evidence Act 185 13 is applicable in Zambia. This position is supported by The English Law (Extent of Application) Act2, which permits its application within the jurisdiction. Moreover, Counsel contended that the application of the Act is inconsequential in this matter, as the impugned ruling of the lower court was not solely based on The Evidence Act 1851. The trial court also relied on Section 27(1) of The High Court Act'. 6.4 Addressing ground two, Counsel relied on Section 27 of The High Court Act' and argued that, pursuant to this provision, the Respondent is entitled to move the trial court at any stage of the proceedings to summon any -J20- person to provide evidence. Accordingly, Counsel submitted that the 1st Appellant could be summoned at any point during the proceedings to testify. 6.5 Counsel further relied on various authorities including the cases of Chaile Kapambwe v Clement Standard Chartered Bank Zambia PLC v Kasote Singogo'5 and Duet Communications Limited v Zambia Telecommunications Company. 16 It was submitted that the Respondent was within his right to apply for a subpoena, as doing so would ensure that the court had all the facts crucial in the dispensation of justice. 6.6 (cid:9) In response to ground three, it was argued that the issues raised were not raised in the lower court and the Appellants are improperly attempting to raise new issues on appeal. Citing cases such as Wilheim Roman Buchman v The Attorney General", Mususu Kalenga Building Limited and Winnie Kalenga v Richmans Money Lenders Enterprises18, it was submitted that an appellate court cannot overturn a lower court's decision based on matters not raised before it. -J21- 6.7 That in any event, Section 27 of The High Court Act' does not mandate the trial court to inquire into the specific documents that subpoenaed witnesses are required to produce. In casu, the documents intended to be relied upon when the subpoenaed witnesses testify were already filed with the court after leave was granted. It was submitted that the Appellants appear to challenge the subpoena duces tecum on the grounds that it allegedly fails to comply with Order 38/19/2 of The Rules of the Supreme Court' (RSC). 6.8 It was argued, based on Section 47 of The Interpretation and General Provisions Act', that the omission to explicitly specify the documents the subpoenaed witnesses were to produce at trial does not render the grant of leave to issue the subpoena irregular. Furthermore, it was submitted that the Appellants suffered no prejudice as a result of the grant of leave, as they were duly served with the supplementary bundle of documents. 6.9 Regarding the reopening of the case, it was submitted that a subpoena may be issued at any stage of the proceedings and the Appellants will have the opportunity (cid:9) (cid:9) -J22- to cross-examine the subpoenaed witnesses. Therefore, the court did not err in allowing the Respondent to subpoena an additional five witnesses. 6.10 In response to ground four, Counsel contended that the manner in which the ground was framed was misleading. Specifically, it was argued that the learned Judge did not rule that the Respondent could call additional witnesses without formally applying to re-open their case after both parties had closed their cases and the matter was ready for submissions and judgment. 6.11 Alternatively, addressing the allegation that the Judge reopened the case by allowing the Respondent to subpoena five witnesses, Counsel argued that Section 27(1) of The High Court Act' empowers the Judge to grant leave for the issuance of subpoenas at any stage of the proceedings. The provision does not impose any restrictions on when a subpoena may be issued. Therefore, the Judge acted within the confines of the law in granting leave to subpoena the additional witnesses. 6.12 In response to ground five, Counsel argued that the Appellants failed to present any evidence before the lower court demonstrating that the subpoenaed witnesses had -J23- been available since the commencement of the matter. Moreover, it was emphasised that the Respondent did not apply to call additional witnesses but rather sought leave to subpoena witnesses. Counsel contended that these two actions are distinct, and the court cannot be faulted for permitting the Respondent to subpoena witnesses, as expressly allowed under Section 27(1) of The High Court Act'. 6.13 In response to ground six, it was argued that costs are in the discretion of the court and that the lower court cannot be faulted for exercising her discretion when she ordered that costs be in the cause. For this position, Counsel relied on the cases of Herman Josef Kibler v Appollo Agricultural Holdings Limited" and Peony Zambia Limited v Shalom Bus Services Limited and Attorney General.2° 7.0 ANALYSIS AND DECISION OF THE COURT 7.1 We have considered the evidence on record, the submissions by Counsel and the Judgement appealed against. 7.2 (cid:9) Ground one of the appeal raises the issue of whether The Evidence Act 1851 of England is applicable in Zambia, (cid:9) -J24- particularly given that Zambia has its own standalone Evidence Act. 7.3 While it is acknowledged that Zambia has established its own legal framework on matters of evidence, the key question, in our view, is whether this framework sufficiently addresses the specific issues arising in the present case. Upon a thorough examination, it is evident that the Zambian Evidence Act contains a significant gap, as it lacks detailed provisions regarding compellable and competent witnesses in civil actions. This omission necessitates recourse to Section 2 of The English Law (Extent of Application) Act2, which permits the application of English statutes enacted before 17 August 1911. 7.4 (cid:9) This interpretation is further reinforced in the case of The People v Shamwana and Others', where the court held that: "The English Law (Extent of Application) Act, Cap. 4 is an enabling Act in that in the absence of any legislature in Zambia on any subject, the English statutes before 1711, August, 1911, apply in Zambia. Where specific Acts exist in Zambia on a given subject (cid:9) -325- the English Acts do not apply because Zambia is a Sovereign State and legislates on its own. Equally where Zambia enacts an Act with similar provisions to the English statute the Zambia Act is used and not the English statute." 7.5 Despite the fact that the authority cited above originates from a High Court decision, we can fully endorse the court's interpretation, as the legal position remains unchanged. The learned Judge was therefore justified in relying on The Evidence Act 1851, recognising the need to address the gap in the local legislation. We find no merit in ground one. 7.6 Ground two pertains to whether the 1st Appellant can be subpoenaed to testify on behalf of the Respondent. Under the Evidence Act of 1851, a plaintiff is permitted to subpoena a defendant as a witness. However, it is incumbent upon the party seeking to issue the subpoena to establish the relevance and necessity of the testimony to the case. 7.7 In this matter, the Respondent merely indicated an intention to ask the 1st Appellant certain questions. Such a vague assertion does not meet the threshold required -J26- to justify the issuance of a subpoena. For a subpoena to be warranted, the Respondent must clearly demonstrate the specific relevance and necessity of the 1st Appellant's testimony to the proceedings. This requirement was not satisfied in the present case. For these reasons, we find merit in ground two. 7.8 Grounds three, four and five are interconnected and will be addressed collectively as they pertain to the issue of whether the Respondent can subpoena witnesses after the close of their case. Section 27 of The High Court Act' provides for the summoning of witnesses and states: "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 orpower, and may examine such person as a witness and require him to produce any document in his possession or power, subject to just exceptions" 7.9 Additionally Order 38 Rule 13(1) RSC states: "At any stage in a cause or matter the Court may order any person to attend any proceeding in the -J27- cause or matter and produce any document, to be specfled or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding" 7.10 The legal provisions cited above establish that the Court has the discretion to summon witnesses or compel the production of documents at any stage of a case. This authority may be exercised either on the Court's own motion or upon the application of a party. However, this discretion is not absolute and must be exercised judiciously. The Court must be satisfied that the evidence sought to be provided by the witness or the documents to be produced are necessary for the resolution of the matter. 7.11 It is therefore incumbent upon the party seeking to issue the subpoena to demonstrate that the witness' testimony or the documents sought directly pertain to the issues at hand in the proceedings and are essential to assist the Court in arriving at a fair and just determination of the matter. 7.12 In the case of K. B Davis (Zambia) Limited v Andrew -J28- Masunu21, the Supreme Court addressed a similar issue, where the court, on its own motion, issued a Subpoena duces tecum to a witness long after the close of both parties' cases. The Court held: "We, however, do not agree that it was a misdirection for the learned trial Judge to issue a Subpoena to a witness, even long after the close of the Case of both parties and after the tendering of submissions by the two parties. The judgment had not been delivered. The Respondent have argued that there was a lacuna in the evidence because DW1 referred to the employees' handbook which contained a clause, which barred an employee, who had resigned on his own free will, to get terminal benefits, but did not produce the handbook. We note that at page 54 of the record, DWI did refer to the handbook which was not produced before the court. In our view, since the evidence about the handbook was already before court. We therefore cannot fault the learned trial judge in resorting to seek assistance from that band book, to enable her to reach -J29- a fair conclusion by directing that, that handbook be brought to court." 7.13 This case underscores that the Court is empowered to summon witnesses or documents, even after the close of the parties' cases, if it is convinced that such evidence is necessary for reaching a fair conclusion. In this case, the matter hinged on the unavailability of a handbook, which had already been referenced in the proceedings. The Court found the production of the handbook crucial to resolving the matter. However, the present case is distinguishable. Here, the learned Judge in granting leave to issue subpoenas, held as follows: "Be that as it may, and taking cognizance of the right of a party to avail all evidence, that they deem relevant to the effectual disposal of a matter, and in the interest of having the case adjudicated in a manner that all the parties have their full day in court, which is at the core of the justice system, I grant leave to issue subpoenas to the said witnesses to testify. " 7.14 The Respondent did not provide specific and compelling reasons why the witnesses or documents were critical to the resolution of the issues. Moreover, the learned Judge -J30- did not adequately interrogate whether these witnesses were indeed necessary to reach a fair and just conclusion. Without such justification, the issuance of subpoenas was unwarranted and procedurally flawed. Accordingly, the lower Court's ruling granting the Respondent leave to issue subpoenas is hereby set aside, based on our consideration. Grounds three, four and five are devoid of merit. 7.15 Turning to ground six, in light of the numerous applications made by the Respondent concerning the same witnesses, it is evident that the Respondent should have borne the costs of these applications, particularly as they were made after both parties had closed their cases. The repetition of such applications unnecessarily prolonged the proceedings and caused undue delay, thereby increasing the overall costs. Given the circumstances, we find it appropriate that the Respondent be condemned in costs, as their actions not only created procedural inefficiencies but also imposed an unnecessary financial burden on the Appellants. For these reasons we find merit in ground six of the appeal. -J31- 8.0 CONCLUSION 8.1 The appeal having substantially succeeded, it is accordingly allowed with costs to the Appellants both in this Court and the court b- o Same to be taxed in default of agreement. J. CHASHI COURT OF APPEAL JUDGE F. M. CHISHIMBA K. (cid:9) ENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE