Judgment No. SC 47/18
Civil Appeal No. SC 695/15
appellants contend that this is clearly untenable in light of the voluminous nature of the documents
which would place an overbearing burden on the first appellant.
The court a quo made the following observation:
“The scope and reach of the documents is unavoidable given the nature of a base station. It
appears that the nature of the base stations require the importation in the form of unassembled
complete knocked down CKD components. The components are numerous and result in the
production of as many documents in the form of packing lists and bills of entry. Collating
these documents is an arduous but not impossible task. It is hard work and to that extent
burdensome but not in the futile pejorative sense. ”
The above dictum shows that the learned judge a quo appreciated the burdensome
nature of the subpoena issued against the second appellant. In my view, once the court a quo found
that the extent of the subpoena was burdensome, it ought to have related to the period over which
documents were being sought to be produced. It was necessary, in view of the inclusion of a period
in the subpoena predating the source of the dispute, for the court to have decided on the issue of
the relevance for the inclusion of that period in the exercise. After all discovery in litigation is a
process meant for securing evidence in the pursuit of truth in the particular dispute. The relevance
of documents predating the issues before the court a guo should have exercised its mind in deciding
whether to set aside the subpoena or to uphold it.
The learned Judge however failed to consider that not all required documents were
necessary to advance the first respondent’s case. The fact that the documents were named does not
clothe them with the particularity required for the issue of a subpoena duces tecum when one
considers that they span over fifteen years. What emerges is that the first respondent is not sure
which documents will specifically show that it is being discriminated against and hopes to find its
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