l

IN THE HIGH COURT FOR ZAMBIA 2019/HP/0431

AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA ....
' ,-
(CIVIL JURISDICTION)

BETWEEN:
JOS HANSEN AND SOEHNE (ZAMBIA) LIMITED PLAINTIFF

AND
THE ATTORNEY GENERAL 1 ST DEFENDANT
SELEZA VENTURES LIMITED 2ND DEFENDANT

BEFORE THE HONOURABLE MRS JUSTICE RUTH CHIBBABBUKA ON

THE 24TH MAY, 2021.

For the Plaintiff: Mr S Bwalya Jnr, Messrs Christopher,

Russell Cook and Company

For the 1st defendant N/A

For the 2 nd defendant: Mr S. Nyirongo, Messrs Mulenga & Wallance
Advocates

RULING

Cases referred to:

1. Polythene Products Zambia Limited vs Cyclone Hardware and Another Appeal No. 42
o/2008
2. Kalvic Bakery Limited vs The Attorney General and Dar Farms and Transport Limited
Appeal No. 78 o/2917
3. Zambia National Holdings Limited and UNIP vs The Attorney General SCZ Judgment No.
1994
4. Alick Sakala vs Morgan Phiri (Suing as Administrator of Garden North Baptist Church)
Selected Judgment No. 36 of 2018
5. African Banking Corporation Zambia vs Mubende Country Lodge Limited Appeal No.
116 o/2016
6. Hakainde Hichilema and Others vs The Government of the Republic of Zambia Appeal
No. 28 o/2017

Rl
 7. Fi.rst Merchant Bank Zambia Limited (In Liquidation) and The Attorney General vs Al
Shams Building Materials Limited and Jayesh Shah SCZ/ 8/ 258/ 2009
8. EcoBank Zambia Limited vs Ultima Engineering Limited, Derrick Mpundu, National
Housing Authority and Stalwart Investments Limited 2012/ HPC/ 0516
9. Attorney General and 3 Others vs Ambex Clothing Manufactures Limited Appeal No.
134of2013
10. Union Gold {Zambia) Limited vs The Attorney General Selected Judgment No. 14 of2016
11. Moonga and Essiah Kalonga Moonga vs Peter Chisi and Winstone Chisi 2014/ HP/ 1977

Legislation referred to:

The Rules ofthe Supreme Court (1999) Edition, The White Book
The High Court Act, Chapter 27 of the Laws ofZambia
The Lands Act, Chapter 184 of the Laws ofZambia
Practice Direction No.1 of 2002

1.0 INTRODUCTION
This is a ruling in the 2nd defendant's applications. The 2 nd defendant
filed two applications, the first being an application for leave to file a
Supplementary Bundle of Documents filed on 20th January, 2020, and
the second being a Notice of Motion to Raise Preliminary Issues filed on
20th August, 2020. While the Notice of Motion to Raise Preliminary
Issues was filed later, it shall be given priority consideration as the
issues raised border on whether this court is clothed with the requisite
jurisdiction to try this action.

2.0 THE 2ND DEFENDANT'S NOTICE OF MOTION TO RAISE

PRELIMINARY ISSUES
The 2nd defendant's Notice of Motion to Raise Preliminary Issues was
made pursuant to Orders 14A and 33 of the Rules of the Supreme Court,
as read together with Order 3 Rule 2 of the High Court Rules, and
Practice Direction No.1 of 2002. The issues raised by the 2 nd defendant's
notice are couched as follows:

i. Whether or not the High Court has jurisdiction to hear a

challenge or re-entry process by the Commissioner in view of the
provisions under Section 13 (1) and 13 (3) of the Lands Act.

R2
 ii. Whether or not this cause of action is competent and properly
before the High Court on account of lack of jurisdiction.
iii. Whether or not in view of (i) and (ii) above this cause of action is
liable to be dismissed on grounds of being irregular, a nullity and
for want of jurisdiction;
iv. Whether upon such determination as in (i) (ii) and (iii) above, the
court should not make an order that the interim injunction
granted in favour of the plaintiff in respect of Stand No. 3816,
Lusaka, the subject property herein should be lifted;
v. Whether upon such determination of questions as in (i) (ii) (iii)
and (iv) above, court should not make an order that the caveat
filed at the Lands and Deeds Registry in respect of Stand No.
3816, Lusaka, the subject property herein should be vacated.

2.1 THE 2ND DEFENDANT'S AFFIDAVIT IN SUPPORT OF THE NOTICE

OF MOTION TO RAISE PRELIMINARY ISSUES.
The application to raise preliminary issues is supported by an affidavit
of the same date, deposed to by one Selemani Mhone, a Co- Director in
the 2nd defendant company. He deposes as follows; on 5 th September,
2019, the plaintiff herein commenced this action against the defendants
by way of a writ of summons and statement of claim filed at the
principal registry of the High Court at Lusaka for determination of a
dispute relating to the mode of re-entry process by the Commissioner
of Lands in respect of Stand No. 3816, Lusaka.

Paragraph 22 of the plaintifrs statement of claim alleges that the re-

entry process was illegal, irregular and contrary to the provisions of the
law and acceptable practice. The plaintiff alleges further, under
paragraph 34 of its statement of claim, that the 2 nd defendant did not
receive good title to the property as the procedure for re-entry was
carried out irregularly and in breach of prevailing legislation and
procedures, and that the property remained in the ownership of the
plaintiff.

R3
 The plaintiff seeks an order cancelling the offer and state lease, as well
as all certificates of title issued in favour of the 2 nd defendant. That the
plaintiff is seeking to challenge the re-entry process and not the
authenticity of the certificate of title issued in the 2 nd defendant's
names, and as such ought to have lodged an appeal to the Lands
Tribunal and not commenced an action in the High Court. The issues
raised by the 2nd defendant go to the root of this action and have the
potential of disposing of the action preliminarily without need for
continued trial of the action. The action herein is irregular and defective
in respect of place and mode of commencement adopted by the plaintiff
and is liable to be dismissed.
That upon the determination of the questions raised, this court may
proceed to order that the interim injunction granted in respect of Stand
No. 3816 be lifted, and that the caveat filed in respect of the same
property be vacated.

2.2 THE 2ND DEFENDANT'S SUPPORTING EVIDENCE

The 2nd defendant filed a list of authorities and skeleton arguments in
support of the application wherein counsel argued that the plaintiff
adopted a wrong mode of commencement and thus this action should
be dismissed for want of jurisdiction. Counsel argued that Order 14A
Rules 1 and 2, and Order 33 of the Rules of the Supreme Court, as read
together with Order 3 Rules 2 of the High Court Rules support the 2 nd
defendant's application. He argued further that in terms of Sections 13
sub-sections 1 and 3 of the Lands Act, Chapter 184 of the Laws of
Zambia, the plaintiff ought to have commenced its action challenging
the certificate of re-entry by way of an appeal to the Lands Tribunal
within 30 days from the date the certificate of re-entry was entered,
seeking an order that the register be rectified.

Counsel argued that the combined effect of the aforementioned

provisions of the law is that the plaintiff adopted a wrong mode of
R4
 commencement and filed its originating process at the wrong forum.
That this court lacks the necessary jurisdiction to hear and determine
this action. Counsel referred this court to the case of Polythene
Products Zambia Limited vs Cyclone Hardware and Another 1 to
support his argument. He argued further that the holding in the
Polythene Products Zambia Limited case was reaffirmed in a more
recent case of Kalvic Bakery Limited vs The Attorney General and
Dar Farms and Transport Limited2 wherein the Court of Appeal held
that the High Court had no jurisdiction to hear the challenge of the re-
entry by the Commissioner of Lands.

Counsel submitted that the Kalvic Bakery case is similar to this action
in the sense that trial of the action had already commenced at the time
the notice of motion was raised. Counsel further cited the case of
Zambia National Holdings Limited and UNIP vs The Attorney
General3 to argue that the High Court's unlimited jurisdiction must be
exercised in compliance with the prescribed procedure. Counsel
beseeched this court to dismiss the action herein with costs on the
strength of the case law and submissions made herein. He further
prayed that the interim injunction granted herein against the
defendants be lifted, and the caveat lodged with the Ministry of Lands
be vacated.

3.0 THE PLAINTIFF'S AFFIDAVIT IN OPPOSITION TO THE NOTICE OF

MOTION TO RAISE PRELIMINARY ISSUES
The plaintiff filed an affidavit in opposition to the 2 nd defendant's
application wherein Leslie Musonda Mwenya, the Sales Manager in the
plaintiff company, deposed as follows: the plaintiff herein commenced
the subject action against the 1st and 2 nd defendants on 20th March,
2019 and not 5th September, 2019 as averred in the 2 nd defendant's
affidavit in support. The plaintiff is challenging the 1st defendant's re-
entry on Stand No. 3816. The reliefs particularly endorsed in the
plaintifrs writ of summons and expressly claimed in the statement of
claim do not include a declaration that the said re-entry was irregular,
RS
 wrongful or illegal. The plaintiff was at liberty to commence the action
herein before the High Court for Zambia. The 2 nd defendant' application
has been made after commencement of trial and as such is improperly
before this court.

3.1 THE PLAINTIFF'S SUPPORTING EVIDENCE

The plaintiff filed a list of authorities and skeleton arguments wherein
counsel argued that the plaintiff opposes the 2nd defendant's
application on both the procedure employed in making the application
as well as the merits of the application. He argued that this court can
only entertain an application raised under Order 14A of the Rules of the
Supreme Court before commencement of trial. He referred this court to
the Supreme Court case of Alick Sakala vs Morgan Phiri (Suing as
Administrator of Garden North Baptist Church)4 in support of his
argument. Counsel submitted that it is undisputed that the application
herein was taken out after the trial of the subject matter had already
begun as can be seen from the court record, and to that extent the
application is incompetently before this court.

Counsel argued further that the provisions of Order 33 of the Rules of

the Supreme Court operate together with the provisions and
requirements of Order 14A, and thus Order 33, just like Order14A, can
only be invoked before the commencement of trial. Counsel relied on
the case of African Banking Corporation Zambia vs Mubende
Country Lodge Limited5 to fortify his argument.
As regards the 2nd defendant's reliance on Order 3 Rule 2 of the High
Court Rules in bringing this application, counsel argued that this court
does not have the discretion to grant an order under Order 3 Rule 2
which has the effect of finally determining the entire action. He
submitted that in the case of Bakainde Hichilema and others vs The
Government of the Republic of Zambia6 wherein the Supreme Court
held that;

R6
 "Looking at the provisions of Order 3 Rule 2 of the HCR, it is
clear that the Order only applies ta interlocutory orders and not
final orders. According to Order 59/ lA of the RSC, a Judgment
or order of a Court 'Shall be treated as final' if the entire cause
or matter would have been finally determined."

In relation to the 2°d defendant's reliance on Practice Direction No.1 of

2002, counsel argued that the Supreme Court in the case of First
Merchant Bank Zambia Limited (In Liquidation) and The Attorney
General vs Al Shams Building Materials Limited and Jayesh Shah7
had occasion to interpret Practice Direction No. 1 of 2002. He argued
that the practice direction merely emphasizes the importance of
indicating provisions of the law pursuant to which applications brought
before the court are made. That the rationale for the requirement
provided in Practice Direction No. 1 of2002 was pronounced in the case
of EcoBank Zambia Limited vs Ultima Engineering Limited, Derrick
Mpundu, National Housing Authority and Stalwart Investments
Limited8 • That it was established in that case that the obligation to
indicate the provisions of the law pursuant to which an application is
made extends to including the correct provisions. Counsel argued that
to the extent that the 2 nd defendant has relied on the wrong provisions
of the law in making the application herein, the court ought to
pronounce that the reliance on Practice Direction No. 1 of 2002 is self-
defeating. That the application is incompetent and as such should be
dismissed.

In addition to the above arguments, counsel alternatively submitted

arguments on merit. He submitted that the questions raised suffered
from repetition and that the resolution of question (i) will ultimately
resolve questions {ii), (iii), (iv) and {v).
Counsel's argument in opposition to whether this court has the
jurisdiction to hear a challenge of the re-entry process by the
Commissioner of Lands in view of the provisions under Section 13 sub-

R7
 section 1 and 3 of the Lands Act is that a party is at liberty to commence
an action in the High Court even if the said action principally relates to
a dispute arising from the Commissioner's exercise of the power of re-
entry under Section 13 of the Lands Act. That the High Court enjoys
both appellate and original jurisdiction in land matters. Counsel argued
that the Supreme Court, in the case of Attorney General and 3 Others
vs Ambex Clothing Manufactures Limited9 , pronounced itself on the
propriety of commencing an action before the High Court relating to a
dispute on the re-entry of a property. The court in that case upheld its
decision in the earlier case of Union Gold (Zambia) Limited vs The
Attorney General 10 wherein the Supreme Court held that the High
Court's jurisdiction is not ousted by the Lands Tribunal in land matters.

Counsel argued further that admittedly, there is an apparent conflict

between the Supreme Court's pronouncements in the Polythene
Products case and the Ambex Clothing case vis-'a-vis the propriety of
commencing an action in the High Court for Zambia challenging the
Commissioner of Land's exercise of power of re-entry. That where there
is a conflict between two decisions of the Supreme Court, it is an
elementary rule of judicial process that the latest decision takes
precedent over the earlier one. Counsel relied on the case of Harrison
Moonga and Essiah Kalonga Moonga vs Peter Chisi and Winstone
Chisi 11 to strengthen his argument. He argued that on the strength of
that case, the position in the Polythene Products Case has been
modified by the Ambex Clothing Case and Union Gold Case. Counsel
submitted that the plaintiff was justified in having commenced the
action in the High Court and the court has the jurisdiction to entertain
the action. He prayed that the 2 nd defendant's application be dismissed
with costs.

4.0 THE HEARING

At the hearing, counsel for the plaintiff and 2nd defendant applied that
the applications before the court be decided on the filed documents.

RB
5.0 DECISION OF THE COURT ON THE NOTICE OF MOTION TO RAISE
PRELIMINARY ISSUES
I am indebted to counsel for the arguments and submissions. I have
carefully considered the same.
The application before me questions the jurisdiction of this court to try
the action herein for having being commenced before the wrong forum,
that is the High Court.

In opposing this application, the plaintiff primarily attacked the

procedure employed by the 2 nd defendant in making this application
after commencement of trial of the action. The plaintiffs counsel argued
that this court can only entertain an application raised under Order
14A of the Rules of the Supreme Court before commencement of trial.
The said Order 14A Rule 1 provides that;
"The Court may upon the application of a party or of its own
motion determine any question of law or construction of any
document arising in any cause or matter at any stage of the
proceedings where it appears to the Court that-

(a) such question is suitable for detennination without a full trial

of the action, and
(b) such determination will finally determine (subject only to any
possible appeal) the entire cause or matter or any claim or issue
therein."

While Order 14A Rule 1 above provides that the court has the power to
resolve any questions raised at any stage of the proceedings, the
editorial notes under paragraph l 4A/ 1-2/ 7 of the same Order provide
that;
"The application may be made at any time after the defendant
has given notice of intention to defend and before the full trial of
the action has begun." (Underling mine for emphasis)

The above clearly shows that there is a prescribed time limit within
which an application may be made under Order 14A of the Rules of the
R9
Supreme Court. The issue was further categorically scrutinised by the
Supreme Court in the Alick Sakala case, cited by counsel for the
plaintiff. The Court held that;
"From this passage, it is clear that the court below ought not to
have entertained the preliminary issue after trial of the action had
begun and in the course of cross examination of PWl. We wish to
take this opportunity to draw the attention of trial Judges and all
legal practitioners to this very important factor."

Going by the provisions of paragraph 14A/ 1-2/7 of the Rules of the

Supreme Court and the holding of the Supreme Court in the Alick
Sakala case, this application ought to have been brought before the
commencement of the trial. The record however shows that the trial of
this action commenced on the 11 th September, 2019, and that the
plaintiff has in fact closed its case following the testimonies of two of its
witnesses, PWl and PW2. It is further not in dispute that the 2nd
defendant only made the application herein on 20th August, 2020,
which was approximately 11 months following the commencement of
the trial. This court is precluded from entertaining applications made
after commencement of trial when such an application is made
pursuant to Order 14 of the Rules of the Supreme Court.

The foregoing notwithstanding, I note that the 2 nd defendant did not

exclusively rely on Order 14A of the Rules of the Supreme Court in
making its application. The 2nd defendant additionally placed reliance
on Order 33 of Rules of the Supreme Court, which as correctly argued
by counsel for the plaintiff, cannot be invoked to the exclusion of the
mandatory requirements of Order 14A of the Rules of the Supreme
Court. The Supreme Court holding in the African Banking Corporation
case is instructive on this.

The 2nd defendant also place reliance on Order 3 Rule 2 of the High Court
Rules, which provides that;

RlO
 "Subject to any particular rules, the Court or a Judge may, in all
causes and matters, make any interlocutory order which it or he
considers necessary for doing justice, whether such order has
been expressly asked by the person entitled to the benefit of the
order or not" (Underling mine for emphasis)

The above provision clearly specifies that the orders that the court may
make under the said Order 3 Rule 2 of the High Court Rules are
interlocutory orders, and not orders that may determine the entire
action as sought by the 2nd defendant herein. The Bakainde Bichilema
case, cited by counsel for the plaintiff, is authoritative on this. Reliance
on Order 3 Rule 2 of the High Court Rules in making an application such
as the one herein is therefore erroneous.

In relation to reliance on Practice Direction No. 1 of 2002, the same

provides as follows;
"All applications brought to court should indicate the Act and
Section or Order and Rule under which the application is
brought, failure which the application shall not be accepted for
filing or entertained.»

The provisions of the Practice Direction No.1 of 2002 are self-

explanatory. The provision does not give this court the power to hear
and make determinations on preliminary issues.
Premised on the above analysis of the 2 nd defendant's application and
the law pursuant to which this application was filed, I find that the
application herein was improperly brought before this court, and must
therefore fail.

On the basis that this court is disallowed from entertaining applications

that are brought under Order 14A of the Rules of the Supreme Court
after commencement of trial, there is no need for this court to go into
consideration of the merits of this application.

R11
 I will now proceed to consider the application for leave to file a
Supplementary Bundle of Documents.

6.0 THE 21m DEFENDANT'S APPLICATION FOR LEAVE TO FILE

SUPPLEMENTARY BUNDLE OF DOCUMENTS
On 20th January, 2020, the 2nd defendant filed summons for leave to
file a Supplementary Bundle of Documents, pursuant to Order 3 Rule 2
of the High Court Rules, Chapter 27 of the Laws of Zambia.

6.1 THE 21m DEFENDANT'S AFFIDAVIT IN SUPPORT

The application is supported by an affidavit deposed to by one Zaniwe
Gumbo, a Director in the 2nd defendant company. The deponent
deposed that during PW 1 's cross examination, the witness testified
inter alia that apart from the plaintiff company, Jos Hansen Soehne (Z)
Limited, there is also another company registered with the Patents and
Company Registration Agency (PACRA) under the names of Jos Achelies
and Soehne (Z) Limited, or of a similar name to that of the plaintiff
company with regards to the words "JOS" and "SOEHNE". That the
impression arising from this was that both the plaintiff company and
Jos Achelies and Soehne (Z) Limited have, as part of their company
names, the use of the word "JOS" and "SOEHNE". That this would imply
that the service of the notice of re-entry by the Ministry of Lands
intended to be served on the plaintiff company may well have instead
been served on Jos Achelies and Soehne (Z) Limited, the other company.

The 2nd defendant's legal representatives conducted a search at PACRA

to ascertain whether or not there is in existence another company
bearing the word "JOS" and "SOEHNE" as part of its company name.
That the search revealed that save from the plaintiff company, there is
no other company registered at PACRA with the words "JOS" and
"SOEHNE" as part of its company name. That the 2 nd defendant's
advocates further formally requested the PACRA Registrar's assistance
in conducting a forensic search in its database, and to advise in writing
whether or not there is another company bearing the words "JOS" and
R12
 "SOEHNE" in its company name, or whether there is a registered
company by the names of Jos Achelies and Soehne (Z) Limited. In a
letter dated 31 st October, 2019, PACRA advised that Jos Achelies and
Soehne (Z) Limited is not registered with the agency unless proof to the
contrary could be provided. That the plaintiff and the 1st defendant have
not provided any such proof.

Further, that the notice of re-entry in relation to property LUS / 3816

was addressed and directed at the plaintiff and not any other person.
The plaintiff and 1st defendant did not plead the issue of the existence
of Jos Achelies and Soehne (Z) Limited, or existence of another company
that has the words "JOS" and "SOEHNE" as part of its name. That the
2nd defendant seeks leave to file a supplementary bundle of documents
to exhibit documents containing the revelations at PACRA. That the
supplementary bundle of documents has already been prepared in
readiness for filing upon the grant of the leave by this court.

7.0 THE PLAINTIFF'S AFFIDAVIT IN OPPOSITION TO THE

APPLICATION FOR LEAVE TO FILE A SUPPLEMENTARY BUNDLE
The plaintiff filed an affidavit in opposition to the 2 nd defendant's
application for leave to file a supplementary of documents deposed to
by one Steven Bwalya. He deposes that PW 1, Lesile Mwenya, testified
in cross examination that he was aware of the existence of a company
with a name similar to that of plaintiff referred to as "Joh Achelis &
Sohne' and not "Jos Achelies and Soehne (Z) Limited". That contrary to
the 2 nd defendant's averments, PWl never indicted in his testimony that
the said company was registered with PACRA. The impression indicated
by the 2nd defendant is within its peculiar knowledge as the same was
never raised by the parties at any point during the examination of the
plaintifrs witnesses, and that the said impression could not have arisen
as the name of the company that PWl referred to contains the
expressions "Joh" and "Sohne" and not "Jos" and "Soehne".

R13
 Further, that the applicant has not exhibited the electronically
generated PACRA printout form for company searches, serving as proof
of the said search. That if the 2 nd defendant had conducted a diligent
search for "Joh Achelis & Sohne", which was the company referred to
by PWl in cross examination, it would have discovered that the
company exists. That the letter from the 2 nd defendant's advocates to
PACRA exhibited as "ZG 1" does not reveal a request for a forensic
search as averred in the affidavit in support of the application. That it
was the 2 nd defendant's advocates who asked PWl in cross examination
if he was aware of the existence of a company with a name similar to
that of the plaintiff and that he was never challenged to provide proof
of the existence or corporate status of "Joh Achelis & Sohne" when he
mentioned the same.

The deponent conducted a search on 24th January, 2020 which

revealed that "Joh Achelis & Sohne" is registered at PACRA, and that
the said company is incorporated as a foreign company. A further
cursory search on google confirmed the existence of the company "Joh
Achelis & Sohne". The documents subject of the 2nd defendant's
intended supplementary bundle of documents will not go a long way in
assisting this court in resolving the real dispute subject of this action.
The documents exhibited as "ZGl" and "ZG2" in the affidavit in support
of this application were in the 2 nd defendant's possession for almost
four months before this application was made.

8.0 DECISION OF THE COURT ON THE APPLICATION FOR LEAVE TO

FILE A SUPPLEMENTARY BUNDLE OF DOCUMENTS
I have carefully considered the application for leave to file a
supplementary bundle of documents.
The 2nd defendant seeks leave to produce documents that seek to
contradict the testimony of PWl given in cross examination that there
is in existence a company with similar names to that of the plaintiff.
The documents are correspondences between the 2nd defendant's
advocates and PACRA regarding a search conducted to establish
R14
"

whether a company with the names "Jos Achelies And Soehne (Z)
Limited" is registered with PACRA. The 2nd defendant contends that
PW I's testimony creates an inference that service of the notice of re-
entry could have been served on the company with similar names to the
plaintiff, and not the plaintiff company.

The plaintiff however disputes the 2 nd defendant's argument by

submitting that there is indeed a company with similar names to that
of the plaintiff and that the company is registered with PACRA as a
foreign company under the names "Joh Achelis & Sohne" and not "Jos
Achelies and Soehne (Z) Limited".

I have carefully perused the record, and I have hereunder reproduced

part of PW I's cross examination, which is relevant to this application.
The cross examination was as follows'
"Counsel: Read the line which says Postal Address
PWI: Post net Box 302, P/Bag ElO, Lusaka.
Counsel: Refers to the I st defendant's Bundle of Documents at
page 2. Confirm that the Post Box is EIO, Lusaka.
PWl: I can see P/Net Box/ Bag EIO, Lusaka. The other digits
or letters are not clear.
Counsel: You can confirm that the name of the company is Soehne
Zambia Ltd?
PWl: Yes I can confirm.
Counsel: To the best of your knowledge, do you know of any other
company that has Soehne Zambia Ltd separate from
the plaintiff?
PWl: Yes, the company is Joe Achelies and Soehne Zambia
Ltd located in Rhodes park.
Counsel: To the best of your knowledge, does this company have a
Private Bag EIO?
PWI: Not to the best of my knowledge. I can't confirm."

RlS
I must first address the 2 nd defendant's averment that the plaintiff and
1st defendant did not plead the issue of the existence of "Jos Achelies
and Soehne (Z) Limited", or existence of another company that has the
words "JOS" and "Soehne" as part of its name. This court is having
difficulty in appreciating the 2nd defendant's averments when the
question on the issue was raised by counsel for the 2 nd defendant
during the cross examination of PW 1, and not by the plaintiff or 1st
defendant. It is therefore odd that the 2 nd defendant wants the plaintiff
and 1st defendant to have pleaded an issue that they did not intend on
raising, and one that in fact did not arise in the examination in chief of
the plaintifrs witnesses.

Having stated the foregoing, I note and must highlight that the extract
of the cross examination above reveals that counsel for the 2nd
defendant only asked the witness to confirm whether there is any
company in Zambia, other than the plaintiff, with the word "Soehne" as
part of its name. Counsel did not ask the witness whether there is any
other company, save from the plaintiff, with the words "Jos" as part of
its name, as averred in the 2nd defendant's affidavit in support of the
application.

Another important point to note is that counsel for the 2 nd defendant

neglected to interrogate the witness further to obtain more details of
this other company that has a similar name to the plaintiff. Counsel did
not, for instance, request the witness to spell out the name of the other
company so as to give this court and the parties to this action a clear
position as to the actual extent of the similarities between the names of
the two companies. As a result of counsel's failure to obtain more
detailed evidence as regards the name of the other company, there is
an inconsistency in the spelling of the company the witness alluded to
in cross examination. While this court recorded the name "Joe Achelies
and Soehne Zambia Ltd" as the name of the other company, the 2 nd
defendant recorded and conducted a search for "Jos Achelies And

R16
Soehne (Z) Limited". The plaintiff on the other claims that the company
the witness was referring to is "Joh Achelis & Sohne Limited".

Premised on the inconsistencies in the spelling, it is difficult for this

court to determine the spelling of the company the witness was referring
to. It follows therefore that the documents the 2 nd defendant wishes to
produce cannot aid the court in any way in resolving the main action.
The application is therefore accordingly dismissed.

The net result is that both applications by the 2 nd defendant are

dismissed with costs to the plaintiff, to be taxed in default of agreement.

Ruth Chibbabbuka
HIGH COURT JUDGE

R17
 ... '