Sonali Weerackody and Anor v Sreetharan Vallipuram and Anor (APPEAL No.218/2022) (9 September 2024) – ZambiaLII

/ IN THE COURT OF APPEAL OF ZAMBIA APPEAL No.218/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) SONALI WEERACKODY / 1 ST APPELLANT .. SCAW HOLDINGS LIMITED 2:rm\APPELLANT .I I / ,-·--- -· -- ----·- · · )_ ( , Lo s ~ ~ i' 2c2~ \ ) AND , .. ·-.. SREETHARAN VALLIPURAM 1 ST RESPONDENT SCAW LIMITED 2ND RESPONDENT PATENTS AND COMPANIES REGRISTRY AGENCY 3RD RESPONDENT CORAM: Kondolo S.C., Majula and Banda-Bobo, JJA On: 7th May, 2024 and on 9th September, 2024. For the Appellant: Mr. L. Linyama with Mr. N. Chilwana both of Messrs Eric Silwamba, Jalasi & Linyama Legal Practitioners . For the 1st Respondent: Mr. S. Mambwe of Messrs Mambwe, Siwila & Lisimba Legal Practitioners For the 2nd Respondent: Mr. Khanda of Messrs Central Chambers For the 3rd Respondent: N / A JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. Cases referred to: 1. Leopold Walford (Z) Limited v Unifreight (S.C.Z. Judgment 23 of 1985) 2. Faustine Mwenya Kabwe and Aaron Chungu v Justice Ernest Sakala, Justice Peter Chitengi and The Attorney General (SCZ Judgment No. 25 of 2012) 3. Mutale v Attorney General (1976) ZR (H.C.) 4. Cavmont Bank Limited v Hildah Petrina Shikongo (1985) ZR 203 5. J & M Advocates (Suing as a firm) v Glencore International AG (unreported 2019/HP/17850 6. Span Africa Steel Structure (PTY) Limited v Kay-Two Zambia Limited (Appeal No. 143 /2021) 7. Spillada Maritime Copr v Cansulex Limited ( 1986 3 ALL ER 843) 8. Joseph Gerta Chikuta v Chipata Rural Council (1974) ZR 241 9. John Sangwa v The Legal Practitioners Committee of the Law Association of Zambia (Appeal No.121 of 2013) 10. Barclays Bank (Zambia) Limited v Walisko and Company and Mohamed Ashrof Mansoor ( 1980) ZR 9 11. Aaron Chungu v Peter Chanda & 9 others (SCZ/8/02/2023) 12. Collet v Van Zyl Brothers Limited (1966) ZR 65 (CA) 13. Isaac Lungu v Mbewe Kalikeka (Appeal No.114/2013) 14. New plast Industries v The Commissioner of Lands and The Attorney General (2001) ZR, 51 15. Leopold Walford (Z) Limited Unifreight (1985) Z.R. 203 (S.C.) 16. Peony Zambia Limited v Shalom Bus Service Limited and Attorney General Appe~No. 103/2015 Legislation and Other Works referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia; and 2. The Supreme Court Rules (White Book), 1999 Edition 3. The Companies Act, No.17 of 2017 1.0. INTRODUCTION 1. 1. This is an appeal against the Ruling of the Honourable Justice I. Kamwendo delivered in the High Court of Zambia on 13th June, of 2023. 2.0. BRIEF BACKGROUND 2.1. The genesis of this matter is that on the 5th of August 2022, the 1st Respondent caused to be filed an Ex parte application for leave to issue process for service, outside of jurisdiction. On the same date, the learned Judge in the court below executed an Ex parte J2 Order granting leave to issue Writ of Summons and Statement of Claim for Service out of Jurisdiction. Coincidently, the 1st Respondent caused to be filed a Writ of Summons and Statement of Claim on the same day. 2.2. Following a review of the above-mentioned documents, the Appellants caused to be filed a Notice of Intention to Raise Preliminary Issues on the 12th August, 2022, where the following issues in Limine were raised,: That the Plaintiff did not meet the threshold provided for in 1. Order X Rule 16 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia which provide as follows: "An application for leave to issue for service out of the jurisdiction a writ of summons, originating summons, or originating notice of motion or a concurrent writ of summons, originating summons or originating notice of motion, may be made ex parte to the Court or a Judge, on deposit of the writ, summons or notice, with the Registrar together with an affidavit in support of such application. The affidavit shall state- (a) the grounds upon which the application is made and the facts which bring the plaintiffs case within the class in J3 respect of which service out of the jurisdiction may be allowed; (b) that the deponent is advised and believes that the plaintiff has a good cause of action or right to relief; (c) in what place or country, the defendant resides or probably may be found; (d) whether the defendant is a citizen of Zambia or not." That the Plaintiff's purported Writ of Summons is defective 11. for the following reasons: a) The period upon which appearance must be entered is endorsed as 21 days when the rules of procedure prescribe that where a Writ is issued for service outside of jurisdiction, the period for which appearance must be entered is within a period of 42 days of service; and b) The Plaintiff's Writ of Summons also reveals that the endorsement containing the Plaintiffs physical address is defective as it does not contain the Plaintiffs postal address." 2.3. The Appellants also caused to be filed an application to set aside the Ex parte Order granting leave to issue Writ of Summons and J4 Statement of Claim out of jurisdiction wherein the following grounds were raised: a. The Plaintiff did not satisfy or meet the threshold for leave as required by Order x Rule 16(a) of the High Court Rules, Chapter 27 of the Laws of Zambia; b. That the Plaintiff used the wrong mode of commencement as the relief being sought herein, as can be seen from the endorsement in the Writ of Summons, is against the Registrar of the Patents and Companies Registration Agency, (PACRA) and as such the Plaintiff should have lodged an appeal in the High Court pursuant to the provisions of Section 341 of the Companies Act, N o.1 7 of 2017. 3.0. DECISION OF THE LOWER COURT 3.1. In his Ruling of June 13 2023, the learned Judge, by way of introduction, stated that the Defendant did not need to refer to the Supreme Court Rules for the summons to set aside ex parte order, leave to issue writ of summons, and statement of claim out of jurisdiction, as there was no gap in our laws regarding this. The learned Judge believed that in our jurisdiction, the law on leave to issue and serve Writs of Summons in other jurisdictions was well JS established and sufficient. He agreed with the Plaintiffs claim that reference to foreign law was unnecessary in this case. 3.2. In addressing the issue of whether the application to Raise Preliminary Issues was competently before him, the learned Judge observed that our Courts have ruled that Order 33 must be read together with Order 14A. Further that, the implication of this is that appearance and defence must be entered before a challenge is mounted. 3.3. Additionally, he noted that Order 11 Rule 21 of the High Court Rules refers to an application to set aside service of the Writ, and not that it meant setting aside the originating process, whose procedure is set out in Order 11 Rule (4) of the High Court Rules. He was thus, of the view that, the 1st and 3rd Defendants never entered appearance nor filed a defence. Further, that the application before him was incompetent and ought to be dismissed for lack of merit. 3.4. Be that as it may, he considered the application to set aside the ex parte order granting leave to issue writ of summons and statement of claim out of jurisdiction. He observed that the Plaintiffs affidavit satisfied the requirements set out in Order 16 (a) and (b) of the High Court Rules because it gave the grounds J6 upon which the deponent believed that the Plaintiff had a good cause of action. 3.5. He further observed that there was no requirement for the statement of claim to be attached to the application for leave to serve out of jurisdiction. He accordingly found that the procedure to issue writ out of jurisdiction was duly followed. 3.6. As regards the third issue, alleging wrong commencement of the relief sought on the basis that in terms of the Companies Act, the right party to sue was the Registrar of Companies, he found that - the procedure in the Companies Act did not apply to the present case. 3. 7. With respect to the issue on irregularity in the Writ of Summons, for the days within which to enter appearance as 2 ldays, instead of 42 days as provided by Practice Direction No.4 of 1977, he opined that this was a defect that could be cured. He granted leave to the Plaintiffs to attend to the said defects within 14 days. 4. 0. THE APPEAL 4.1. The Appellant, dissatisfied with the Ruling has now appealed to this Court on the following grounds: (1). That the learned puisne Judge erred in law and fact when he held at page R42 that the Respondent had met J7 the threshold to issue and serve Originating Process out of jurisdiction provided for under Order x Rules 16 (a) and (b) of the High Court Rules, Chapter 27 of the Laws of Zambia; (2). That the learned puisne Judged erred in law and fact at pages R37 and R38 when he disregarded the test for leave to serve and issue Originating process out of jurisdiction set out in Order 11 Rule 4 of the Rules of the Supreme Court, 1965 (white book), 1999 Edition, Volume 1,· (3). The Learned Puisne Judge erred in law and fact at page R43 when he held that the Respondent had invoked the correct mode of commencement and ignored the provisions of Section 341 of the Companies Act No. 10 of 2017; and (4). The Learned Puisne Judge erred in law and in fact when he wrongfully exercised his discretion to award costs in favour of the 1st Respondent despite agreeing with the Appellants at page R42 and R43 that the Plaintiffs Writ of Summons was marred with numerous irregularities. JS 5.0. ARGUMENTS IN SUPPORT 5.1. Counsel for the Appellants filed heads of arguments on 11th September 2023, and submitted that he would argue grounds one and two together as they complement each other. 5.2. Counsel submitted that the provisions of Order X Rules 15 and 16 of the High Court Rules should be read hand in hand with Order 11 Rule 4 of the Rules of the Supreme Court Rules because these two provisions complement each other. 5.3. The Appellants contend that despite the detailed questions given in the lower Court (o n page 140 of the record of appeal) to determine whether the 1st Respondent had met the mandatory threshold provided in Order X Rule 16 (a-d) of the High Court Rules, the learned Judge did not thoroughly scrutinize the same and therefore erred when he disregarded certain arguments advanced. 5.4. In particular, Counsel argued that the learned Judge's reference to the principle in the case of Leopold Walford (Z) Limited v Unifreight1, that there was no requirement for the statement of claim to be attached to the application was wrong. Counsel argued that the distinguishing factor in the Leopold Walford1 case and . the one in casu was that the latter holding by the Supreme Court J9 did not call for detailed interrogation of Order 10 Rules 15 and 16 of the High Court Rules. Thus, the same was merely procedural. 5.5. It was Counsel's contention that, the law has developed since the case of Leopold Walford1. He submitted that the position of the law at the time only required a party who was desirous of commencing an action to file a writ of summons. However, that Order 6 Rule 1 of the HCR has since been repealed, and that the position of the current law by virtue of Statutory Instrument No. 58 of 2020, is that it has since birthed Order 6 Rule 1 of the HCR which now makes it mandatory for a party commencing proceedings to file a Writ of Summons together with a Statement of Claim and other attendant documents. 5. 6. Counsel questioned how a Court can determine certain elements on Order 10 Rule 16 of the HCR in the absence of a party attaching the attendant Statement of Claim with all attendant documents to their respective affidavits in support of an application for leave to issue and service originating process out of jurisdiction. Counsel submitted that this issue was thus ripe for determination, and that this Court is presented with an JlO opportunity to bring clarity to litigants who seek to issue and serve originating process on a party out of jurisdiction. 5.7. In this regard, Counsel submitted that it was trite law that in construing the meaning of a provision of a statute, reference ought to be made to the literal meaning of the words used. In support of this principle, Counsel referred to the case of Faustine Mwenya Kabwe and Aaron Chungu v Justice Ernest Sakala, Justice Peter Chitengi and The Attorney General2 and Mutale v Attorney General3 on the interpretation of the literal meaning, vis:- «Whenever there is no ambiguity in the meaning of a statute or indeed the Constitution itself, the primary principle of interpretation is that the meaning of the text should be derived from the plain meaning of the language used. In other words, the natural and ordinary meaning of the words used should convey the true intent of the originators of the text. Other principles of interpretation should only be called in aid where there is ambiguity or where such literal interpretation will lead to absurdity." 5.8. Counsel's submission was that it would be absurd for a Court to apply the provisions of Order 10 Rules 15 and 16 of the High Court Rules in the absence of an Intended Plaintiff submitting Jll both a Writ of Summons and a Statement of Claim, together with all attendant documents as prescribed by Order 6 Rule 1 of the HCR in its present form. 5.9. Further, Counsel submitted, that in our jurisdiction, there is a dearth of case law on Order 6 Rule 1 of the HCR. He cited the cases of Cavmont Bank Limited v Hildah Petrina Shikongo4, J & M Advocates (Suing as a firm) v Glencore International AG5 noting that although these cases highlighted or acknowledged the procedure provided for under Order X Rule 16 of the HCR, they did not fully interrogate the application of the said provision. Rather that the issue of concern in the former case was the need to have obtained leave of the Court before service could be effected. In addition, Counsel cited the case of Span Africa Steel Structure (PTY) Limited v Kay-Two Zambia Limited6 where the Court had opportunity to consider certain elements of Order 10 of the HCR and that there is a requirement that leave of court to issue service out of jurisdiction, a writ of summons and statement of claim, be obtained before the same can be served out of jurisdiction. That the case was concerned with the issue of service and not so much the procedure to issue and serve originating process out of jurisdiction. J12 5.10. Counsel cited the case of Spillada Maritime Copr v Cansulex Limited7, where the Supreme Court gave guidance regarding Order 11 Rule 1 ( 1) the equivalent of the Supreme Court Rules and Order 10 Rule 15 of the High Court Rules. The Court guided as follows: "The intention must be to impose on the plaintiff the burden of showing good reasons why service of a writ calling for appearance before an English court, should, in the circumstances, be permitted on a foreign defendant. In considering this question the Court must take into account the nature of the dispute, the legal practical issues involved such as questions of local knowledge availability of witnesses and their evidence and expense," 5.11. Counsel submitted that the provisions of the High Court Rules have since developed especially with the introduction of Order VI Rule 1 of Statutory Instrument No.58 of 2020 of the High Court (Amendment) Rules, which requires that a Writ of Summons must now be accompanied by a Statement of Claim, list of documents, list of witnesses to be called by the Plaintiff and a letter of demand. 5.12. Counsel argued that there is a great level of detail that is required by a judge when ascertaining whether the high threshold provided J13 in Order 10 Rule 15 and 16 of the High Court Rules have been met. Therefore, all the applications made under Order 10 Rule 15 and between Order 10 rule 5 and Order 10 Rule 16 of the High Court Rules must demonstrate a link, otherwise both provisions become meaningless and ineffectual. 5.13. Under ground two, it was Counsel's submission that an affidavit in support of an application for leave to serve and issue Originating process out of jurisdiction is for the benefit of the Court because it is made ex parte, and the lower Court would not, at that time, have the benefit of hearing from the intended defendant. That there must be proper detail set out. 5.14. It was Counsel's argument that Zambian Courts have not comprehensively interrogated the practice and procedure with regards to the application of Order 10 Rule 15 and 16 of the High Court Rules. He contended that, there was a striking similarity between Order 10 Rule 15 and 16 of the High Court Rules and Order 11 Rule 1 and 4 of the Rules of the Supreme Court and thus, the need for the Court to turn to these provisions and their attendant Practice Notes for guidance on how to comprehensively interrogate and apply the provisions of Order 10 Rule 15 and 16 of the High Court Rules. J14 5.15. Counsel contended that the learned puisne Judge erred in law and fact at page 37 and 38 of his Ruling when he disregarded the test set out in Order 11 Rule 4 of the Rules of the Supreme Court. 5.16. In ground three, Counsel submitted that a perusal of the Respondent's initial Writ of Summons reveals that the relief sought was against the Registrar of the Patents and Companies Registration Agency and not the Appellants. 5.17. Counsel argued that going by the Ruling at page R43, the learned Puisne Judge completely failed to take into account the argument advanced at paragraph 5.2 and 5.12 of their skeleton arguments in support of summons to set aside ex-parte order granting leave to issue out of jurisdiction. In particular, that the learned Judge disregarded the submission that the 1st Respondent should have lodged an appeal in the High Court pursuant to Section 341 of the Companies Act, No.10 of 2017. 5.18. Counsel submitted that there is a plethora of cases on the mode of commencement, and reliance was placed on the cases of Joseph Gerta Chikuta v Chipata Rural Counci18 John Sangwa , v The Legal Practitioners Committee of the Law Association of Zambia9, and Barclays Bank (Zambia) Limited v Walisko and Company and Mohamed Ashrof Mansoor10 He argued that the . J15 foregoing cases re-affirm the principle in the seminal case of Gerta Chikuta with regard to mode of commencement. That, these cases are to the effect that where an Act of Parliament has specifically laid down the method by which proceedings must be begun, whether by writ, an originating summons or an originating notice of motion, there is no choice on which procedure to adopt. 5.19. Counsel submitted that in the present case the 1st Respondent did not have a choice between commencing his action by way of Writ of Summons and Statement of claim, or appealing the decision of the Registrar of PACRA to the High Court, because Section 341 of the Companies Act No. 10 of 2017, makes it expressly clear as to which mode of commencement to adopt when a party is aggrieved. 5. 20. Counsel argued that the issue before this Court was novel and that there is an opportunity to determine, on the application of Section 341 of the Companies Act No.10 of 2017 which makes it clear as to which mode of commencement to pursue when a party is aggrieved. Reference was made to the case of Aaron Chungu v Peter Chanda & 9 others11 which concerned the mode of commencement, more particularly in relation to Section 13(3) J16 of the Lands Act, Cap 184, and whether to invoke proceedings in the High Court or to appeal to the Lands Tribunal. 5.21. It was Counsels considered view that, the 1st Respondent did not commence his action correctly, and that the net effect of wrong mode of commencement was that it left the learned judge without jurisdiction to determine the particular cause of action. 5.22. Further, that the correct manner in which to commence the action would have been to appeal the decision of the Registrar 1n accordance with the provisions of the Companies Act. 5.23. Under ground four, Counsel submitted that the learned Judge in the Court below should not have awarded costs to the 1st defendant. It was Counsel's contention that the learned Judge should have exercised his jurisdiction by ordering costs to be in the cause, having sustained the Appellants contention that the 1st Respondent's Writ of Summons was marred with numerous irregularities. To buttress the foregoing, Counsel referred to Order 40 Rule 6 of the High Court Rules and the case of Collet v Van Zyl Brothers Limited12 Counsel contended that a Court is . entitled to exercise discretion judiciously but that a Court is also entitled to look at the circumstances of the case. J17 5.24. Counsel was of the view that the Ruling dated 13th June, 2023 reveals that the learned Judge in the lower Court did not exercise its discretion judiciously, and erred when he did not place any reliance on the Appellant's success, albeit partial. 6.0. ARGUMENTS IN OPPOSITION 6.1. Counsel for the 1st Respondent filed heads of arguments on 20th October 2023, and submitted in ground one that the learnedjudge was on firm ground when he held that he was satisfied that the Respondents had met the threshold as required by Order x Rules 16(a) and (b) of the High Court Rules. Counsel submitted that the way the law is drafted, and in line with the case of Leopold Walford (z) Limited v Unifreight1, there was no requirement for attaching the statement of claim at the time of making the application to issue and serve Court process out of jurisdiction. Counsel contended that in the aforementioned case it was held that: "the steps to be taken before a writ can be issued out ofj urisdiction are; first the writ be prepared, second an application to issue the writ out of jurisdiction must be made to the Court, with the writ attached to the application. Only after the Court's leave has been obtained shall the writ be issued." Jl8 6. 2. Counsel submitted that Order VI Rule 1 may have been amended but that the amendment has not affected Order X Rules 16 (a) and (b) as there has been no amendment to order X Rule 16 (a) and (b) to indicate that when exhibiting a copy of the Writ, the Applicant must also attach the Statement of Claim. Counsel submitted that ground one lacked merit and must be dismissed with costs. 6.3. Under ground 2, Counsel argued that the lower court was justified in disregarding Order 11 Rule 4 of the Rules of the Supreme Court because the domestic laws have provided for what Order 11 of the Supreme Court sought to provide for. 6.4. He referred to the case of Isaac Lungu v Mbewe Kalikeka13 where the Supreme Court stated that: "However, English practice and procedure rules only apply in so far as there is a lacuna in our rules or practice and procedure. We do not resort to English practice and procedure when our own rules and procedures are clear and comprehensive." 6. 5. Counsel argued that there was no reason to rely on the English Rules given that there was no lacuna in our laws, and the same were comprehensive and properly provided for the remedy sought. J19 Thus the appeal must fail because it lacked merit and must be dismissed with costs. 6.6. In ground three, Counsel argued that the Puisne Judge's decision was sound. He contended that the case was not filed against the Registrar of the Patent and Company Registration Agency (PACRA), but against numerous other persons. As a result, the proper mode of commencement of proceedings was the manner in which this action was initiated. 6. 7. He argued that the originating process was not directed at the Registrar of PACRA solely, but against several other individuals also and therefore the correct mode of commencement of proceedings in the matter is the one 1n which the matter was commenced. He argued that this ground of appeal lacked merit and ought to be dismissed with costs. 6.8. Under ground four, Counsel submitted that since the appellant's applications were without merit, they were dismissed with costs. He contended that a litigant who is not successful in his claim, ought to pay costs. He submitted that this is a trite principle of law the ground lacked merit and must be dismissed with costs. J20 7.0. HEARING 7 .1 The matter was heard on 7th May, 2024. Both Mr. Linyama, counsel for the appellant and Mr. Mambwe, counsel for the respondent, relied on their Heads of Argument, filed for and against the appeal. Mr. Khanda, counsel for the 2nd respondent did not file anything as they were not defending the appeal. 8.0. DECISION OF THIS COURT 8.1. We have considered the appeal, together with the arguments in the Appellants and the Respondents Heads of Argument and the authorities cited. We have also considered the Ruling appealed against. 8. 2. In our considered view, the main issue for determination is whether the Judge in the Court below was on firm ground when he found that the procedure for issuance of a Writ of Summons out of jurisdiction was followed and whether there was a requirement for the Statement of Claim to be attached to the application. 8.3. The Appellants argued grounds one and two together and we agree that these two grounds are interlinked and should thus be argued together. J21 8.4. The argument by the Appellants in the two grounds, is that the learned Judge failed to appreciate that the 1st Respondent failed to meet the threshold to issue and serve originating process out of jurisdiction under Order X Rules 16 (A) and (B) of the High · Court Rules. Further that the learned Judge disregarded the test for leave to serve and issue originating process out of jurisdiction as set out in Order 11 Rule 4 of the Rules of the Supreme Court which they argued is similar to Order 15 and 16 of the High Court Rules. 8.5. We note that the provision of the said Order X, Rule 16 (a) and (b) of the High Court Rules, provides that: ''An application for leave to issue for service out of jurisdiction, a writ of summons, originating summon, or originating notice of motion or a concurrent writ of summons, originating notice of motion may be made ex parte to the Court or a Judge on deposit of the writ, summons or notice with the Registrar together with an affidavit in support of such application". The affidavit shall state: a) The grounds upon which the application is made and the facts which bring the Plaintiff's case within the class in J22 respect of which service out of the jurisdiction may be allowed; b) That the deponent is advised and believes that the Plaintiff has a good cause of action or right to relief 8.6. The learned Judge was of the view that the affidavit by the Respondents had satisfied the requirements set out in the above Order and that there was thus no requirement for the statement of claim to have been attached to the application. 8.7. We will reproduce the paragraph in the affidavit sworn by the Respondent's advocate in which he averred the following that informed the learned Judge's decision: 4. I have been instructed to issue this process against individuals and entities some of whom are outside jurisdiction; 5. The matter involves the Directorship of a company which is incorporated in this jurisdiction; 6. That I verily believe that the Plaintiff had a good cause of action or right to relief in this matter; 7. That as far as I am able to ascertain and have been advised by the Plaintiff, the 1st Defendant is domiciled in the United States of J23 America while the 3rd Defendant is based in Mauritius. They are both not Zambian citizens''. 8.8. The only attachment to the affidavit was the proposed writ of summons marked "SM9". In reading the above excerpt we agree with the Appellants that the law has developed significantly since the case of Leopold Walford 1 in which it was held that at , the time a party is desirous of commencing an action, they only had to file a writ of summons. 8.9. This is evident in Order 6 Rule 1 of the High Court Rules of Statutory Instrument No 58 of 2020 which provides as follows: "(l) Except as otherwise provided by any written law or these Rules, an action in the High Court shall be commenced, in writing or electronically by writ of summons endorsed and accompanied by: (a) a statement of claim; (b) list and description of documents to be relied on at trial (c) list of witnesses to be called by the plaintiff at trial, and (d) letter of demand whose receipt shall be acknowledged by the defendant or an affidavit of service attesting to the service of J24 the letter of demand, which shall set out the claim and circumstances surrounding the claim in detail. (2) A writ of summons which is not accompanied by the documents under sub-rule (I) shall not be accepted. (underline ours for emphasis only) 8.10. What can be gleaned from the above cited authority is that, it is now mandatory for a party commencing proceedings to file a Writ of summons together with a Statement of Claim. It therefore follows that even when applying to serve a writ out of jurisdiction, the provisions of Order 6 rule 1 have to be followed. 8.11. In our view, it was an error to only consider the elements found in Order 10 Rule 16 of the High Court Rules as the learned Judge did. We agree that the learned Judge, without looking at the attendant documents prescribed in Order 6 rule (1) of the High Court Rules, could not have ascertained whether indeed there was a worthy cause of action, or whether the facts at hand brought the 1st Respondent's case within the requirement in which service out of jurisdiction may be allowed, other than the bare details set out in the affidavit. J25 8.12. It is our further view that, only a further interrogation of the application and attendant documents, would have satisfied the learned Judge in the Court below. We are further of the view that the Appellant's reliance on English case law was indeed only to show the nexus between Order 10 Rule 15 and 16 of the High Court Rules and Order 11 Rule 4 of the Rules of the Supreme Court, and not to say that there was a lacuna in our laws. As has been shown, our domestic laws are sufficient on this issue. 8.13. It is clear that Statutory Instrument No. 58 of 2020 made changes to the rules governing the conduct of civil matters in the High Court with a view to disposing cases efficiently, by requesting for certain documents to be attached. In this regard, we are of the view that there is merit in grounds one and two. 8.14.In ground three, the contention by the Appellants is that, the Respondent ought to have lodged an appeal in the High Court for Zambia, pursuant to the provision as set out in Section 341 of the Companies Act No. 10 of 2017 as the relief sought is against the Registrar of PACRA. 8.15. The said section reads as follows: J26 "Subject to this Act, a person aggrieved by a decision of the Registrar may within thirty days, after the date on which the person is notified of the decision, appeal to the Court against the decision, and the Court may con.firm, reverse or vary the decision or make such order or give such directions in the matter as it considers just and equitable." 8.16. The issue that arises is whether the mode of commencement was correct. It is trite law that the mode of commencement of any action is generally provided by the relevant statute as per the case of New Plast Industries v The Commissioner of Lands and The Attorney General 14 • The above is settled law. 8.17. We have combed the record of appeal, and we found, at page 111, paragraph 40, line 36, the following:- "The foregoing irregularities and illegalities have been brought to the attention of the 4th Defendant (PACRA), who has completely ignored the request to reverse the offending entries on the Register ... " 8.18. This is the decision that the respondent is unhappy with. That being the case, it is our view that the 1st respondent had no J27 choice but to appeal the decision of the Registrar in accordance with Section 341 of the Companies Act No. 10 of 2017. Had PACRA agreed to revert to the original position, it would have resolved the issue. However, and due to their adamancy, even after the irregularities were brought to their attention, a decision which aggrieved the 1st respondent herein, the only route to take was to proceed under the above Section. In these circumstances, the argument that they commenced this matter using this route instead of appealing because there were other parties sued, does not help the respondents as the law is clear that where one is aggrieved with the decision of the Registrar, recourse lies in appealing. 8.19.We therefore agree that the 1st Respondent did not commence the action correctly. We are of the view that the use of the word "may" in Section 341 of the Companies' Act did not refer to the choice of forum, but rather, the decision to be taken by the aggrieved party, to either accept the decision of the Registrar or not. 8.20. In this case, the correct approach by the 1st Respondent was to commence an action to appeal against the decision of the J28 ' '( Registrar pursuant to the above mentioned authority. In our view, this ground has merit. 8.21. Under ground four, the Appellant argues that the learned judge in the Court below, having agreed that the 1st Respondent's writ of summons was blemished with numerous irregularities; he should have exercised his discretion sparingly by ordering that costs be in the cause. 9.0. In Order 40 Rule (6) of the High Court Rules, it is clearly stated that the award of costs is in the discretion of the court. This principle has been restated in various cases including the case of Peony Zambia Limited v Shalom Bus Services Limited and Attorney General 15 where the Supreme Court , discussed the meaning of the phrase 'costs in the cause' and stated that: " ... in terms of Order 40 Rule 6 of the High Court Rules, the costs of every suit or matter and of each particular proceeding therein are in the discretion of the Court. Further, it is trite that an award of costs will generally flow with the result of litigation; the successful party being entitled to an order for costs against the unsuccessful party. This is the meaning of the phrase "costs J29 follow the event" ... The phrase "costs in the cause" means an award of costs of an interlocutory proceeding to a named party in the cause; e.g., "costs to the plaintiff in the cause" means that only if the party in whose favour the order is made is later awarded the costs of the action will that party be entitled to the costs of the interlocutory proceedings in issue." 9. 1. We hold the view that the learned Judge having found in favour of the 1st Respondent, was on firm footing when he awarded costs to them. This ground in our view lacks merit. 10.0. CONCLUSION 10.1. For the reasons we have stated above, the appeal succeeds, save for ground four. Costs of this appeal are for the appellant, to be taxed in default. C M.M.KONDOLO,SC COURT OF APPEAL JUDGE ~ ....... ..•............. ········~fi!r.:;.········· A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J30