LUFEYO MATATIYO KALALA v THE ATTORNEY-GENERAL (1977) Z.R. 310 (S.C.)
SUPREME COURT
CHOMBA, GARDNER, AND BRUCE-LYLE, JJ.S.
26TH OCTOBER, 1977
(S.C.Z. JUDGMENT NO. 45 OF 1977)
Flynote
Civil procedure - Evidence - Admission of statement in document without maker thereof being called
as witness - Discretion of court - Conditions necessary to be satisfied.
Headnote
The appellant (the plaintiff) sued the Attorney-General (the defendant) for damages for assault,
torture and false imprisonment. During the course of the plaintiff's evidence he sought to produce
two medical report forms which he received when he was medically examined on the day of his
release from police custody. There was no objection to the production of these forms and the
documents were admitted in evidence without comment.
Held:
(i)
The only way a document may be received in evidence other than by production by its
maker is under the Evidence Act, Cap. 170.
(ii)
Before the court can exercise its discretion to admit a statement 40 without the maker
being called as a witness, it must be satisfied that undue delay or expense would otherwise be
caused.
Legislation referred to:
Evidence Act, Cap.170, s. 3.
For the appellant:
A.J. Nyangulu, Chuula & Co.
For the respondent:
A.M. Kasonde, Senior State Advocate.
Judgment
GARDNER, JS.:delivered the judgment of the court
The appellant (to whom I will refer hereafter as the plaintiff) sued the Attorney-General of Zambia
(to whom I will refer hereafter as the defendant) for damages for assault, torture and false
imprisonment, and, his claim having been dismissed by the High Court, he now appeals to this court
against that decision.
The facts as alleged by the plaintiff were, briefly, that between the 10th January, 1976, and the 20th
January, 1976, he was falsely imprisoned by the police at Chipata and during that time he was
subjected to beatings, electric shock and other forms of maltreatment. The plaintiff was the only
witness in support of the claim and the defendant called five police officers, all of whom denied that
the plaintiff had been wrongfully imprisoned or assaulted.
In his judgment the learned trial judge found that the police were, by law, permitted to diligently
investigate a case where they reasonably thought the suspects could be found by interrogating
certain individuals, and found also that in the present case the police acted properly, reasonably and
with all the good common sense that goes with the administration of justice.
The plaintiff appeals against the judgment on the grounds that although the learned trial judge said
he evaluated the evidence he did not set out in his judgment such evaluation or his reasons for
preferring the evidence of one side to the other. We agree that the judgment does not indicate the
reasons for rejecting the plaintiff's claim, nor does it, in the only two findings made by the learned
trial judge, indicate whether he found that a certain amount of force had been used by the police
which did not amount to acting beyond their powers, or whether he found that no force whatsoever
had been used against the plaintiff. The learned trial judge made no specific finding as to the
allegation of false imprisonment. There is, moreover, another matter which this court has raised and
that is that during the course of the plaintiff's evidence he said that be wished to produce two
medical report forms which he received when he was medically examined on the day of his release
from police custody. There was no objection to the production of these forms and the documents
were admitted in evidence with no comment on the record other than, in the first instance "Medical
report received as an exhibit M1" and in the second "Document admitted and it is marked exhibit
M2".
The only way a document may be received in evidence, other than by production by its maker, is
under the Evidence Act, Cap.170. Section 3 of that Act provides as follows:
"3 (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any
statement made by a person in a document and tending to establish that fact shall, on production of
the original document, be admissible as evidence of that fact - if the following conditions are
satisfied, that is to say:
(a)
If the maker of the statement either:
(i) had personal knowledge of the matters dealt with by the statement; or . . .and
(b)
if the maker of the statement is called as a witness in the proceedings.
Provided that the condition that the maker of the statement shall be called as a witness need not be
satisfied if he is dead or unfit by reason of his bodily or mental condition to attend as a witness, or if
he is outside Zambia and it is not reasonably practicable to secure his attendance, or if all reasonable
efforts to find him have been made without success."
Subsection (2) reads as follows:
"(2) In any civil proceedings, the court may, at any stage of the proceedings, if having regard to all
the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused,
order that such a statement as is mentioned in subsection
(1) shall be admissible as evidence or may, without any such order having been made, admit
such a statement in evidence -
(a)
witness;"...
notwithstanding that the maker of the statement is available but is not called as a
There is therefore provision for a court to exercise its discretion to admit a statement, even where
the proviso to subsection (1) is not satisfied by reason of the maker of the document being dead,
unfit, outside Zambia or not reasonably available. However, from the wording of subsection (2) it is
necessary in all cases that the court, before exercising its discretion must be satisfied that undue
delay or expense would otherwise be caused and this is so whether or not a formal order is made for
the admission of the document. It may be that in this case it was obvious that, Chipata being so
distant from Lusaka where the trial was held, expense would be involved in calling the proper
witness, but whether such expense would be "undue" was not considered. In this case no objection
was made by counsel for the defendant and it was within the province of the learned trial judge to
exercise his discretion to admit the document without formal order. However, that is not the whole
of the matter, the plaintiff had no other supporting evidence except the medical reports which
referred to injuries suffered by the plaintiff allegedly during the time that he was in police custody.
In view of the course which I would take in dealing with this appeal I do not think it would be proper
for me to go into any more detail about the nature of this evidence and its value. Suffice it to say,
however, that evidence was admitted in documentary form which related to injuries seen at a
material time and such evidence could have been of vital assistance in deciding which of the two
opposing, versions of the treatment received by the plaintiff at the hands of the police was true. The
learned trial judge, having admitted the documents did not refer to them at all in his judgment and
in my view to omit all reference to this evidence and to fail to make a positive finding about it was
such a misdirection as to result in a mix-trial. Apart from this omission the medical evidence could
have been of such importance - as I have said I do not wish to pre-judge the issue, by assessing the
effect of such evidence - that this was a proper case where a specific order as to the admission of
the documents should have been made after due consideration of the undue delay and expense
which might be involved in calling the witness, as opposed to the advantage of hearing the witness
himself, and the matter was inadequately dealt with by the simple admission of the documents
without investigation or discussion of the need to exercise the discretion.
I would allow this appeal and, as this is a case in which it is impossible for this court to evaluate the
medical evidence which might be called I would order a new trial before another judge of the High
Court.
Judgment
Chomba JS: I agree.
Judgment
Bruce-Lyle JS: I also agree.
Judgment
Chomba JS: The order of the court is that the costs both here and in the court below will be costs in
the cause.
Appeal allowed