Shukri Esidieg Ahmed Eljaiedi v Khaled A M Melabbar and Ors (2025/HP/0685) (11 December 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HP/0685 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ICilli/Jurisdiction) KHALED AM MELABBAR ~ DEFENDANT T LA O I N C Y O N Z K A H M O B M IA A LIMITED : \ : ~ ~ / I ~ IL - ' ~~ , · , : - · - _ - · - ; 2~ ~ • PEf F F E E N N D D A A N N T T ORACLEMEDIAPRODUCTIO EFENDANT (T/A MAST NEWSPAPER) ~, ,....,, Forlhel'lainliff: Mr. W. Pluri and Mr. E Saka/a - :.s:ti~~n~,;°nda Williams Legal For the I• and 2"" Defendants Mr. E.B. Kaluba and Mr. 0 Sambo Messrs. Emmanuel and OnesimusLega/Prae1i1ioners For !he 3"' and 4"' Defendants; RULING Ca.Ntnferredtp, 1. Leopold Walford (ZI Limited v. Unlfn:1,;ht jSCZ Juda;ment No. 223ofl985). 2. Lllka.•u Propertiu Limited V. African Bank.inc Cnrpnratlnn Limited (SCZ Appul No. 5 of 2023). 3. Thom.son Phlrl v. Tnyota Zambia. Limited (Appeal No. 31/2022). Leqislationrefe,nrdto: 1. Hi&h Court Rulea, Chapter 27 nf the Lawa of Zambia. 2. The Rulu of the Supn:me Court 1999 Editinn. 3. StatutorylnatnomentNo.27of2012. 4. StatutorylnatnomentNo. 58of2020. I. INTRODUCTION This is a ruling on an application for an order to set aside the writ of summons and dismiss the action for irregularity. The applicationiamadepursuantto0rder7rule I (l)(a)oftheHigh Court Rules as amended by Statutory Instrument No. 27 of 2012,0rder6 rulel(ll (d)oftheHighCourtRulesasamended by Statutory Instrument No 58of2020,0rdcr82rule2and Order 2 rule 2 of the Rules of the Supreme Court 1999 edition 2. lH AND 2~D DEFENDANT'S AFFIDAVIT JN SUPPORT The affidavit in support was deposed by EMMANUEL BWALYA 2.2 'rhcdcponentdcposedthatthePlaintifJinstitutedproceedings on 16"' May, 2025, by way of writ of summons whcr-e he observed the following irregularities: physical,postalandelectronicaddress; summons has no endorsement of the particulars of the allegeddefamationpublication;and c. Aspartoftheoriginatingproccss,thePlaintilJdidnotfileany letter of demand which was duly acknowledged by thc 1~ Defendant nor did he file an affidavit attesting service of the The deponent believed that the Plaintifrs entire action was iTTegularandimproperlybeforetheCourt 3. PLAINTIFF'S AFFIDAVIT IN OPPOSITION The affidavit in opposition was deposed by WILLIAM PHIRI 3.2 The deponent affinncd to not endorsing the addres~ on the on the writ of summons but added that the omissions "'"re 3.3 The deponent denied that he did not endorse the particulars of the defamatio,1 as the same was produced in paragraph 5 of the statement of claim and the implication of the article had been explainedinparagraph7 In relation to the letter of demand, the deponent explained that the I" Defendant was an employee of the 2nd Defendant and waa sued in that capacity with the letter of demand to him duly served and acknowledged by his employers as required. He produced a copy of a PACRA print out that was marked as 3.5 That there was no need for the l" Defendant to personally acknowlcdgereceiptoftheletterofdcmand 4. lOT AND 2~P DEFENDANT'S AFFIDAVIT IN REPLY The I" and 2"" Defendant's Reply was dcpo~cd by EMMANUEL The deponent alleged that the omission on the writ of summons was prejudicial to the Defendants and that the Plaintiff had not taken out any application to amend the court process Additionally, the Defendants had already taken steps to set aside the writ for irregularity and had incurred costs to that 4.3 The deponent clarified that it was the writ of summons and not particu]ar,cofthcallcgcddefamatoryartideasrequiredbylaw The deponent further deposed that it was mandatory for the Defendant personally which was required to be duly acknowledged by the\"' Defendant. ln the absence of such acknowledgement, the Plaintiff was required to file writ of summons together ,,,ith an affidavit explaining the The deponent believed that the Pluintilfs entire action was irregular and improperly before Court and that this Court had beenrobbedofthejurisdictiontocntcrtainthesame The application was heard on 14" August, 2025, where learned counsel Mr. W. Phiri and Mr. E. Sakala from Messrs. Miyanda Williams Legal Practitioners and Mr. B. Hantumbu from Messrs Mul"7~> Mwiimbu & Company were present on behalf of the Plaintiff. Learned counsel Mr. E.B. Kaluba mid Mr. 0. Samba from Messrs. Emmanuel and Oncsimus Legal Practitioners were pttsent on behalf of the l• and 2"" Defendant. Learned counsel Mr. G.C. Ma!ipilo from Messrs. Nchito and Nchito was pttaent Mr. Kaluba ttlied on the affidavit in suppon, affidavit in uply andakeletonargurnentafiledintoCoun. endorsedwiththePlaintifrsphysica!,postalandelectronic address as required by Order 7 Rule 1(1) la) of the High Coun Rules as amended by Statutory Instrument No. 27 of 2012, counselcitedthesaidprovisionwhichreadsasfollows ~ 111) The advocate of• plalntlfTsulna:hy sn advocate sball endorse upon the writ or summons. (a)Phyaicsl, postal and electronic address or the plaintiff. (b) His own name or firm and his own place of business and the postal, physical and electronic 5.4 Mr. Kaluba argued that from the foregoing, where a Plaintiff suedthroughanadvocate,thewritofsummonamustbearthe addreuforthePlaintiffhimselfaswe\laathatofthePlaintifrs Advocates. This position was settled by the Supreme Court in the case of Leopold Walford (ZI Limited y Unlfreight 111 where requhea,notonlythattheaddressofthe plalntlfl"a advocate• •hall be endorMd on the writ, but also that the address or the plaintiff •hall •;milarly be 5.5 The relevant part of the Order reads as folluw$ "l(llThe•ollcltor of the plalntlff•ulnr;by■ollcitor •hall endoac upon the writ of aummon•- (alTheaddressofthePlalntlfJ; (b)Hia own name or firm and hia o"'n place of bUA!neHandthepo•taladdru•thereof; He submitted that as could be seen from what had been set out abovc,itwasnccessaryforthePlaintill"ssddressaswellasthat mandatory requirement In the present case it was indisputable that the writ of indisputably irregular 5.10 On the second ground of objection which was that the writ of summonswasnotendorsedwiththe particulars of the alleged defamatory publication as r,:quired by Order 82 Rule 2 of the Rules of the Supreme Coun 1999 Edition, coune,cl also repro<lucedthesaidOrderwhichreadsfollows: Before a writ In an action for libel is iuued lt must be indorsed with a •tatement giving aufficlent particulars of the publication• in reapect ofwhlcb the action la brought to enable them to be MOrder 82/2/2- Sufficient particulars or the publication: ThewordMpubllcatlon"la uaedhere In the aenae or the Mpubllahed document." complained or. The former o.3 r.9 (from which the rule ia takenl amended and then preacrlbed form or lndorsment on the writ ~the plaintiff'• claim is £or damages for libel" by requiring it to Identify the document complained of." 5.11 Mr. Kalubasubmittcdthatitwasclearfromtheforegoingthat it was not sufficient to just indicate on the writ of $Ummons that itwa$anactionforlibel,thewritmustalsoidentifythealleged defamatory publication by giving sufficient particulars of the same. lnthepresentmatter,thewritwasonlyendorsedwith theP!aintiffsclaimsandnottheallegeddefamatorypublication 5.12 On the last point of objection, Mr. Ka.Juba argued that there was no letter of demand duly acknowledged by the l" Defendant or an affidavit of service attesting to the scrv:itt of the letter of 5.13 He supported his argument "~th reference to Order 6 rule 1{1) of the High Court Rules as amended by Statutory Instrument No.58of2020whichprovidesthat "1(11 Except aa otherwise provided by any written law• or these Rule•, an action In the High Court shall be commenced, In writing or electronically by writ of aummon■ endorsed and accompanied by- (a)A,tatementofclalm; (bJLl■tandde•crlptlonofdocumentatobereliedon attrlal; (c)Lllt or wltneuu to be ealled by the plaintiff at trial;and (d)Letter of demand who.e receipt shall be acknowledged by the Ddendant or an affidavit of aervlce atteatlng to the service of the letter of demand, which shall ■et out the claim and circumstance •urrounding the claim In detail. (2) A writ of summons which i• not accompanied by the document■ under lllb-rule Ill ,hall 11ot be accepted". 5.14 Counsel submitted that the law required that at the lime of commencing an action the Plaintiff must file among other things.acopyoftheletterofdemandwhichwasserverlon the Dcfondant prior to commencement of the matter and that the letterofdemandhadtobeacknowlcdgedbytheDefendant.That inaneventthatitwasnotacknowledgedbytheDefendant,the Plaintiffhadtofileanaffidavitattestingtotheservice 5.15 Reliance was placed on the case of Lub■u Propertie• LJ,nlted v. African B•nld11J Co..-po.-.t1011 Lhrdtedta1where the Supreme Courtpronounceditselfbystatingthat "The pro■erlptlo11•pln■taeeepta11eeofthe proceH that 011>lts 1ome or the documents that ■ho1,1ld aeeomp■ny the writ of ■1,1mmon• Implicate■ the Court'• j1,1rl.■dietlon to entertain an action commenced without eonfonnity with the fonn now prescribed by Order VI. Subsection 2 or the Order leave no doubt that such action will be di■counten■need by the Court■. It matters not th■t the rea;l.■try ■taff have aeeepted the proeeu. Sulneetion 4 or Order VI reveal• that all the 11.■ted document■, lncludlna; the letten or demand are to be■tamped. On th!.■ view, the •r&ument that ia■ulna; a letter or demand to some or the defendant• i• ■ufflclent compliance with the rule collap■e■• Thi■ I• on account of the requirement to inform e•ch and every defendant of the claim •plnst them, thereby dfordinJ them an opport1,1nlty to decide to ■etUe thematter,ortolltlptetheclalm, In the aum, the rnpondent waa required to aerve a letter of demand on each and eV<:ry defendant befon, commencing the action. The falltue to aerve a letter od demand on the appellant waa fundamental and fatal omission. It undermined the Intention behind order VI Ruic• 1, 2 and 4 •• amended. The action waa lmpropedybetorc the court, andwaa bound to 5.16 Mr. Kaluba emphasized that it was clear that every writ of summons must be accompanied with all documents pre""ribed under0rder6 rule 111) and an omission of any single document went to the jurisdiction of the Court and it WB.!I fatal. individually served with the letter of demand. In the present casc,theP!aintiffdidnotservethe l"'Defendantwiththelctter through an employee of the 2"'1 Defendant 5. 18 It was further submitted that although the l" Defendant was an employee of the 200 Defendant, the J>< Defendant was supposedtobeindividuallyservedwithalctterofdcmandas guided by the Supreme Court. That the service on the 2'"' 5.19 That given the foregoing, the proceeding" were therefore irregularly and improperly before Court and that this Court had nojurisdictiontoentertainthesame 5.20 Mr. Malipilo adopted the I"' and 2"" Defendant's submissions regarding the application made. S.21 In opposition and in response to the first ground. Mr. Phiri submitled that while there may have been a technical non compliance with rule l(ll(a) of Order 7 of the High Court Rules asamendedhyS.l.27of2012,suchomiuionwasnotfatalto theproceedingstojustifysettingasidethewritofsummonsin 5.22 Reference was made to the case of Leopold Walford Zambia Limited wher<, the Supreme Court had this to say "It I• neceaHry ror the Plah•Uff'a •ddresa, u well thattheorhlaadvoeate,toheendoraedonthewrlt. Therehaabeen•nll.lternatlvear(Umentputfonrrard hy Mr. Kawanambuh•, n•mely, that non-compliance with O.VII r (1) !•) la not fatal beeau« the rule ia merely reJulatory or directory. In accepting thla arcument, we wlah to add that, when, then, ha• been a breach or rerulatory rule, ■uch breach will not always be rat.al u much will depend upon the nature or the bruch and the at.ace or the proceeding■ reached. Thia therefore mean• that, a• a cene..al nde, breach ofa reculatory rule la curable." 5.23 Mr. Phiri submitted that the omission to endorse the Plaintiffs address was an irregularity that was curable at the discretion 5.24 fn relation to the second ground of objection of not endorsing the particulars of the defamation on the writ of summons, Mr Phirireferrcdtotheexplanatorynotesof0rder82 Rule2(21 of the Rules to the Supreme Court 1999 Edition that explains the meaningofsufficientparticulars.ltprovidesthal: "The word "puhllcatlona" la uaed here In the aenae of the "publlahed document■" complained of. The tormer 0.3, r9(trom which thi• rule la taken) amended the then prucrlhed form otindorament on writ. "The Plaintiff'• claim la for damage• for llbel" by requiring it to Identify the document complained defamatory words was for the purposes of identification of the defamatoryassertions. !ntheproceedingsbeforetheCourt,the Plaintiffhadclear!yindicatcdinparagraphSofthestatement of claim that the entire article published by the Defendants was defamatory and the endorsement on the writ was to that effect 5.26 On the aspe,:,t or the letter demand to the I" Defendant not being acknowledged, Mr. Phiri submitted that there was no need for the 1• Defendant to personally acknowledge the letter of demand as the same was acknowledged by his employer i.e. the 6. DECISION or JUE COURT 6.1 l have carefully considered the parties' affidavit evidence and submissions herein and I am indebted to them for being 6.2 This is a n.iling on an application for an order to set aside the writ of summons and dismiss the action for irregularity. The application is made pursuant to Order VII Rule I 11) {•J of the Hl&h Court Rulea •• amended by Statutory Instrument No. 27 of 2012, Order VI Rulel(l) (di ofthe Hla;h Court Rules u amended by Statutory Instrument No. 58 of 2020, Order 8:2 rule :2 and Order 2 rule :2 of the Rule■ of the Supreme Court 6.3 The I" and 2"" Defendants have raised three grounds of objectionregardingtheoriginatingprocessllledbythePlaintiff. These are that: (ii The writ of summons has no endorsement of the P1aintifrs p0stalandelectronicaddr<,u (iiJThePlainlifrs action was an action for libel and the writ of summons has no endorsement of the particulars or the alleg,:,ddefamatorypubHcation (iii)Aspart of the originating process, the Plaintiff did not file any letter of demand which was duly acknowledged by the i"'Oefendantnordid he file an affidavit of attesting to the 6.4 l shall first consider the last ground whether the letter of demand was served on the 1"' Defendant and acknowledged as requiredin0rder6rule !(l)(d)ofStatutorylnstrumentNo.58 servetheletterofdemandonthe!a<Defendantisfatalasitgoes lothejurisdictionofthisCourt ltisclearuponafairreadingof0rder6rulel(l)(d)thattheone ofthedocumentsthatshouldacx:ompanytheendon<edwritof should be acknowledged by the Defendant or an affidavit of serviceattestingtotheserviceoftheletterofdemand 6.6 As rightly pointed out by counsel for the !a<and 2"" Defendants, the Supreme Court in the case of Luka.n; Propitrtfe.1 Limlt<td which is a precedent setting decision clearly explicated the import of the said Order and the effect of non-compliance 6.7 The Supreme Court stated that the proscription or prohibition against acceptance of the process that omits some of the documents that should accompany the writ of summons implicates the Court's jurisdiction to entertain an action commenced without conformity with the form now prescribed by 6.8 The Supreme Court further stated that each and every Defendant must be served with the letter of demand disclosing theclaimsagainstthembeforecommencingtheaction. Failure behind0rder6rules l,2,and4. 6 9 The Court of Appeal in the case of Thomson Phlri v, Toyota Zambia Limited !,i also stated that it was patent that a letter of demandwasoneofthedocumentstobeattachedtothewritof summons. This was in order to help the Court ascertain what the action instituted encompassed as well as alerted the Defendant what action he would face if the matter ended up in 6.JO!n the present case, what I havediscemcd from\" and2"" Defendant's affidavit in support as well as the Plaintiff's affidavit in opposition i~ that the I" Ddendant wru, not served with the 6.11 The position taken by the Defendants is that the omission to serve the letter of demand is fatal to the Plaintiff's case. The Defendant on the other hand contends that it was not necessary employer, the 2"" Defendant had been served through the 6.12 On the authority of the Lukasu Properties Umludcase, the Plaintiffwassupposedtopersonallyservethe l"Defendantwith the letter of demand and the same was supposed to be duly acknowledged. In the event that it was not acknowledged, the Plaintiffwa:,supposedtofileanaffidavitattestingtotheservice 6.13 Therefore, given the fact that the I" Defendant was not served with the letter of demand, I find that the failure or omiasion to do so by the Plaintiff was fundamental and fatal as it undermined the intention behind0rder6rule l, 2,and4. 7. CONCLUSION 7.1 Theupshotofthisfindingisthalthereismeritintheapplication by the l"' and 2"" [k,fondants that the writ of summons filed by the Plainti1Ti9 incompetently before thi9 Court as no letter of demand was personally served on I.he ]" Defendant and duly acknowledged and there was no affidavit of service attesting to the service of the letter of demand on the 1"' Defendant in 7.2 Oiventheforegoing,lae<:ordinglysetasidethewritofsummons for incompetence and the Plaintiff's entire action is hereby dismisscdforirreb•ttlarityandwantofjurisdiction Jn view of what I have stated above, it is pointless to consider the other two grounds as I do not have the jurisdiction to adjudicate upon this matter which was commenced outside the agreement. DELIVERED AT LUSAKA THIS 11™ DAY OF DECEMBER, 2025