Sonali Weerackody and Anor v Scaw Limited and Ors (2025/HPC/0086) (30 September 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HPC/0086 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SONALIWEERACKODY 1 ST PLAINTIFF f·W, . (CU~1 or ZAMBIA -J~ CO JUDICIARY JANA THAVARAJAH PLAINTIFF 2ND ,, ~ R<;J_AL DIVISION -- :J AND ~ W-1 - 3 0 · , - , · , r . . , ,- t.l Lt, ~ ._) .." -'··· SCAW LIMITED RfGISTR\' 1 ST DEFENDANT .O. BOX 50067. LUSAKA PETER CHISANGA 2ND DEFENDANT MURAGANANTHAN SIVAKUMAR 3RD DEFENDANT GIBSON BWALYA 4TH DEFENDANT PATENTS AND COMPANIES REGISTRATION 5TH DEFENDANT AGENCY Before the Honourable Lady Justice Chilombo Bridget Maka. For the Plaintiffs: Mr. J. Chileshe - Messrs Eric Silwamba, Jalasi & Linyama Legal Practitioners. For the 1st to 4th Defendant: Mr. K. Kaunda - Messrs Central Chambers. For the 5th Defendant: No appearance. RULING Legislation Referred to: 1. The High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020. 2. The High Court Rules, Chapter 27 of the Laws of Zambia. Cases Referred to: 1. Thompson Phiri v. Toyota Zambia-Appeal No. 31/2022. 2. Charles Mambwe and Others v. Mulungushi Investments Limited (In Liquidation and Mpelembe Properties Limited-Selected Judgment No. 36 of 2016. 3. Lamise Trading Limited (Suing in its capacity as Shareholder of Intelligent Mobility Solutions Limited) v. Kapsch Trafficom AG and Intelligent Mobility Solutions Limited (2024/HPC/0339). 4. Rachel Lungu Saka v. Hilda Bwalya Chomba & Attorney General Appeal No. 08-059-2017. 5. Rose Gabekile Fakudze v. Bhekinkhosi Tsabedze and Lindiwe Tsabezi (Civil Appeal No. 73/2023. 6. African Banking Corporation Zambia Limited v. Copper Harvest Foods Limited & Others-Appeal No. 18 of 2021. 7. Brian Mundubile & 8 Others v. Miles Sampa (2024/HP/0993). 8. Zambia National Commercial Bank Plc v. Rachel Mudiyo Banda (sued as a customer and mortgagor) (2015/HPC/0423). 9. Lukasu Properties Limited v. African Banking Corporation Zambia Limited, SCZ Appeal No. 5/2023. 1. Introduction 1.1. This Ruling addresses the 2nd Defendant's application seeking an Order to set aside the writ of summons, statement of claim, and service thereof. The application was filed on 24th April, 2025, by way of summons supported by affidavit and skeleton arguments, pursuant to Order VI Rule 1 (d) of the High Court (Amendment) Rules, 2020. R2 1.2. On 12th May, 2025, the Plaintiffs filed an affidavit in opposition together with skeleton arguments. The 2nd Defendant subsequently filed an affidavit in reply on 30th May, 2025. 1.3. The 5th Defendant did not take part in these proceedings. 2. Background 2.1. The Plaintiffs commenced this action on 4th March, 2025, by writ of summons accompanied by a statement of claim, seeking the following reliefs: 1. Damages for negligent misstatement being losses nd incurred by the 1st and 2 Plaintiffs as a result of the 4th Defendant's actions; 11. Damages for breach of statutory duty being losses nd incurred by the 1st and 2 Plaintiffs as a result of the rd 2nd 3 4th and 5th Defendants' actions· ' ' 111. A declaration that the purported removal of the 1st nd and 2 Plaintiffs as Directors of the 1st Defendant was unlawful, null and void ab initio; 1v. An Order directing the 5th Defendant to reverse all unlawful changes made to the Register of the 1st Defendant and restore the status quo ante; v. An injunction restraining the Defendants, whether acting by themselves or through their agents, from interfering in any manner with the status quo of the R3 1st Defendant's Board of Directors as it existed on 25th November 2024, pending the determination of this matter and the appeal commenced in the matter of Sonali W eerackody and Jana Thavaraj ah v. the Patents and Companies Registration Agency under cause number 2025/HP/ A0002; v1. An injunction restraining the Defendants whether by themselves or their agents from passing resolutions affecting the shareholding structure, declaring dividends, or altering the composition of the Board of the 1st Defendant pending the determination of this matter and the appeal commenced by Sonali Weerackody and Jana Thavarajah v. the Patents and Companies Registration Agency under cause number 2025/HP/ A0002; v11. Such further or other relief as the Court may deem just and equitable in the circumstances; v111. Costs of and incidental to this action. 2.2. On 26th March, 2025, the 5th Defendant entered appearance and filed its defence. The 1st to 4th Defendants jointly entered appearance and filed their joint defence on 4th April, 2025. Thereafter, the 2nd Defendant brought the present application. R4 3. The 2nd Defendant's Affidavit and Skeleton Arguments 1n Support 3.1. In his affidavit in support, the 2nd Defendant deposed that he was electronically served with the originating process together with a letter of demand dated 5th December, 2024, by one Jonathan Chileshe. Copies of the email and letter of demand were exhibited as "PMSC l" and "PMSC 2." He averred that prior to this email, he had never received or seen the said letter of demand. 3.2. He further deposed that he believed, on the advice of his Advocates, that pursuant to Order VI Rule 1 (d) of the High Court (Amendment) Rules, 2020, the letter of demand ought to have been served upon him before the commencement of the action, so as to afford him the opportunity either to settle the claim or to state his position thereon. 3.3. He contended that the Plaintiffs' failure to serve him with the demand letter was prejudicial, as he had no prior knowledge of the claim, and that such failure offended the High Court Rules. He argued that this was therefore, an appropriate case for the writ of summons, statement of claim, and service thereof to be set aside. 3.4. In skeleton arguments, Counsel for the 2nd Defendant relied on Order VI Rule 1 (d) of the High Court (Amendment) Rules, 2020, upon which the application RS was anchored, and submitted that the Court was empowered to grant the relief sought. 3.5. Counsel submitted that the affidavit 1n support established that the 2nd Defendant was only served with the Court process and the letter of demand on 6th March, 2025. It was argued that this was the first occasion on which the 2nd Defendant became aware of the demand letter. Service of the demand letter simultaneously with the Court process, rather than prior to the issuance of process, was said to contravene the Rules of Court, as a demand letter is intended to forewarn a prospective Defendant of impending litigation. 3.6. Counsel further submitted that non-compliance with this mandatory requirement rendered the entire action incompetent. The case of Thompson Phiri v. Toyota Zambia!1l was cited to underscore the purpose of a letter of demand, namely, to assist the Court in ascertaining the scope of the action and to notify the Defendant of the case he would be required to meet. 3. 7. It was emphasised that the letter of demand was not served on the 2nd Defendant prior to commencement of the action, and that he only became aware of it upon being served with the writ and statement of claim. This, it was argued, rendered the action incompetent, and the Court was urged to set aside the writ of summons, statement of claim, and service effected upon the 2nd Defendant. R6 4. The Plaintiffs' affidavit and Skeleton Arguments in Opposition 4.1. The affidavit in opposition was deposed by Jonathan Chile she, Counsel on record for the Plaint iffs. 4.2. He averred that the 2nd Defendant's depositions were misleading, misconceived, and without factual basis. He deposed that on 5th December, 2024, he authored an email to the 2nd Defendant enclosing a letter of demand, exhibited as "JC l ." He further explained that he enabled a Microsoft Outlook feature that generates a read receipt once the email is opened, and that he duly received such a receipt on the same date confirming that the 2nd Defendant had read the email at 16:30 hours, as shown in exhibit "JC 2". 4.3. Mr. Chileshe further deposed that on 6th March, 2025, he emailed the 2nd Defendant the originating process and again received a read receipt confirming that the email was read at 13:04 hours. He later received instructions by email, marked "JC 3," from the 4th Defendant to effect physical service of process on Messrs Central Chambers. He thus contended that, contrary to the 2nd Defendant's assertions, the letter of demand was duly served electronically. 4. 4. In skeleton arguments, Counsel for the Plaint iffs submitted that the 2nd Defendant had improperly moved the Court, as Order VI Rule 1 (d) of the High Court (Amendment) Rules, 2020, does not empower the Court to R7 set aside a writ of summons or statement of claim. Rather, it prescribes preliminary steps to be taken before commencing an action. Counsel argued that the 2nd Defendant ought instead to have proceeded under Order III Rule 2 of the High Court Rules, which vests the Court with broad discretionary powers. Reliance was placed on Charles Mambwe and Others v. Mulungushi Investments Limited (In Liquidation and Mpelembe Properties Limited(2l which explains the wide discretionary powers of the Court. 4.5. Additional reliance was placed on Lamise Trading Limited (Suing in its capacity as Shareholder of Intelligent Mobility Solutions Limited) v. Kapsch Trafficom AG and Intelligent Mobility Solutions Limited(3l and Rachel Lungu Saka v. Hilda Bwalya Chomba & Attorney General(4l to underscore the importance of correctly invoking the legal provision that confers jurisdiction, noting that Order III Rule 2 operates subject to other provisions. 4.6. It was therefore submitted that the present application was procedurally incompetent as it was anchored on a Rule that does not confer jurisdiction to set aside originating process. The Court was urged to dismiss the application for want of jurisdiction. 4.7. In the alternative, Counsel submitted that the affidavit in opposition established that the 2nd Defendant had concealed material facts, as it clearly demonstrated that there had been compliance with Order VI Rule l(d). R8 The Court's attention was drawn to paragraphs 6 to 13 of the affidavit in opposition, which outlined the sequence of events, showing that the 2nd Defendant had read and acknowledged the demand letter. 4.8. It was argued that the 2nd Defendant deliberately ignored the demand letter and now sought to rely on his silence as proof of non-service. This was characterised as approbation and reprobation. To illustrate the principle, Counsel referred to the Eswatini case of Rose Gabekile Fakudze v. Bhekinkhosi Tsabedze and Lindiwe Tsabezi(5l which explained approbation and reprobation as simultaneously approving and rejecting the same instrument. 4.9. Citing the case of African Banking Corporation Zambia Limited v. Copper Harvest Foods Limited & Others(6l, Counsel submitted that the Plaintiffs had satisfied the requirement of issuing a letter of demand, which was duly acknowledged through electronic read receipts exhibited in the affidavit. The importance of a demand letter was also reinforced by reference to Brian Mundubile & 8 Others v. Miles Sampa(7l. 4. 10. Counsel emphasised that service of the letter of demand was effected and that the Plaintiffs demonstrated that the 2nd Defendant read it. However, that the 2nd Defendant is attempting to obscure facts and mislead the Court with the present application. Counsel further urged the Court R9 not to reward the suppression of truth by the 2nd Defendant. Further, that the 2nd Defendant is seeking refuge in technicalities of his own making, as he did not come to Court with clean hands and equity does not aid those who act deceptively. 4.11.Finally, Counsel submitted that the 2nd Defendant had perjured himself in his supporting affidavit, as his averments were contradicted by the time-stamped read receipts annexed to the affidavit in opposition. Denying service in the face of clear documentary evidence was described as wilful misrepresentation, contrary to section 38(1) of the High Court Act. Counsel relied onby a reference to the case of Zambia National Commercial Bank Plc v. Rachel Mudiyo Banda (sued as a customer and mortgagor)!8l to support this position. 5. The 2nd Defendant's Affidavit in Reply 5.1. The 2nd Defendant reiterated that he only became aware of the action on 6th March, 2025, upon receipt of Mr. Chileshe's subsequent email. He contended that exhibit "JC 1" did not establish that the letter of demand was attached to the email. He further stated that the read receipt relied upon by'the Plaintiffs did not confirm him as the sole recipient, nor did it prove that he personally opened the email. He therefore maintained that he had RlO never seen the demand letter, suggesting that the read receipt could have been triggered by another recipient. 5.2. The 2nd Defendant further averred that the affidavit 1n opposition merely demonstrated that Mr. Chileshe authored the emails but did not prove that the letter of demand was attached. He denied ever acknowledging receipt of any documents and rejected the allegation of misleading the Court, asserting that his position was factual and reinforced by the Plaintiffs' own affidavit in opposition, which, he argued, showed no attachment of the demand letter. 6. Hearing 6.1. At the hearing of this application, Counsel for the Plaintiffs and the 1st to 4th Defendants appeared, while there was no appearance from the 5th Defendant. 6.2. On behalf of the 2nd Defendant, Mr. Kaunda relied on the summons, affidavit, and skeleton arguments in support filed on 24th April, 2025. 6.3. In opposition, Mr. Chileshe, for the Plaintiffs, relied on the affidavit and skeleton arguments filed on 12th May, 2025. He submitted that this Court lacked jurisdiction to entertain the application, as the legal provisions cited by the 2nd Defendant did not empower the Court to grant the relief sought. R11 6.4. Alternatively, Counsel drew the Court's attention to exhibit "JC l ," particularly the heading marked "Attachments," which included a demand letter sent by email on 5th December, 2024. He further noted that exhibit "JC 2" demonstrated that the 2nd Defendant had read the email. That no evidence was adduced by the 2nd Defendant to show that he had not received the email. 6.5. Mr. Chileshe submitted that the 2nd Defendant's application was improperly before the Court and lacked merit, as the Plaintiffs had demonstrated compliance with Order VI Rule l(d) of the High Court (Amendment) Rules, 2020. That the application, therefore, ought to be dismissed with costs. 6.6. In reply, Mr. Kaunda relied on the affidavit in reply dated 30th May, 2025. He emphasised the requirement that a prospective Defendant be served with a letter of demand and that acknowledgment of receipt be shown. He contended that, notwithstanding the emails sent to the 2nd Defendant, there was no indication of any attached document described as a demand letter. 6. 7. With regard to the submission that the Court had not been properly moved, Mr. Kaunda argued that by citing Order VI, the 2nd Defendant had brought to the Court's attention the alleged inadequacies in the originating process. He prayed that the Court grants the Order setting aside the originating process. R12 7. Consideration and Determination 7. 1. I have considered the 2nd Defendant's application, together with the evidence and submissions in support and in opposition. 7.2. The 2nd Defendant's application is founded on Order VI Rule l(l)(d) of the High Court (Amendment) Rules, 2020, which provides as follows: "( 1) 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- (d) letter of demand whose receipt shall be acknowledged by the defendant or an affidavit of service attesting to the service of the letter of demand, which shall set out the claim and circumstances surrounding the claim in detail." 7. 3. The applicability and mandatory nature of this provision is not disputed. A Plaintiff commencing an action by writ of summons must submit the writ together with a letter of demand whose receipt has been acknowledged, or an affidavit of service attesting to such service, among other documents. 7.4. The 2nd Defendant's application sought to set aside the originating process, contending that the Plaintiffs had not R13 complied with this procedural requirement, specifically that the letter of demand had not been served on him. 7.5. The Plaintiffs opposed the application, arguing that the Court lacked jurisdiction under Order VI Rule l(l)(d) to set aside a writ of summons and statement of claim. Counsel contended that the correct provision was Order III Rule 2 of the High Court Rules, which confers broad discretionary powers. Alternatively, the Plaintiffs sought to demonstrate that proper service of the letter of demand had been effected electronically. 7.6. It is evident that Order VI Rule l(l)(d), upon which the present application is based, does not expressly provide for setting aside a writ of summons or statement of claim. However, the Court has been made aware of a potential defect in the originating process arising from the cited prov1s1on. In my considered view, the application can therefore, be entertained. This position 1s further supported by Order III Rule 2 of the High Court Rules, as cited by the Plaintiffs, which provides as follows: "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." R14 7. 7. The above provision confers broad discretion on this Court to make any interlocutory orders necessary to do justice, even where such an order has not been expressly sought by a party entitled to it. In the present case, the application raises a fundamental issue affecting the competence and propriety of the main action, which in turn impacts the Court's jurisdiction to hear and determine the matter. 7.8. Substantively, the 2nd Defendant alleged that he only became aware of the letter of demand on 6th March, 2025, when he received the originating process together with the letter of demand. He contended that it was therefore, proper to set aside the writ of summons and statement of claim. 7. 9. The Plaintiffs, on the other hand, submitted that the letter of demand had been served electronically, and that the 2nd Defendant had read it, as evidenced by exhibit "JC l ," a time-stamped read receipt. They further argued that any contrary assertion by the 2nd Defendant amounted to misrepresentation or perjury. 7. 10. The issue for determination by this Court is whether the Plaintiffs complied with Order VI Rule l(l)(d) of the High Court (Amendment) Rules, 2020. The significance of this provision was elucidated by the Supreme Court in Lukasu Properties Limited v. African Banking Corporation Zambia Limited!9l in the following terms: RlS "Rule 1 (i) (d) of Order VI in paragraph 1 above leaves no doubt that the plaintiff is required to serve a letter of demand on the defendant. This letter must set out the claim and the circumstances that surround it in detail. When commencing the action, the plaintiff is required to include the letter of demand, with an acknowledgement of its receipt by the defendant, or an affidavit attesting to the service of the letter of demand. Thus, the writ of summons will be accompanied by a statement of claim, a List and description of documents to be relied on at trial, a list of witnesses to be called by the plaintiff at trial and the said letter of demand. "(underlined for emphasis) 7. 11. Upon review of the record, particularly the originating process, I note that the Plaintiffs filed the writ of summons accompanied by a statement of claim. Also submitted alongside these documents were the Plaintiffs' letters of demand, list of documents, list of witnesses and an affidavit of service. 7.12.Although the letter of demand on record, addressed to the 2nd Defendant, does not bear an acknowledgment of receipt, the affidavit of service filed together with the writ of summons attests to its service. In paragraph 4 of that affidavit, the deponent, Mr. Jonathan Chileshe, stated that the letter of demand was emailed to the 2nd Defendant, and the delivery note under exhibit "JC l" confirms effective service. R16 7.13. Upon examining the exhibits annexed to the affidavit of service, I noted under the bundle marked "JC l" that the 2nd Defendant was indeed among the recipients of the letters of demand by email. While the 2nd Defendant denies seeing the letter of demand, he admits receiving the email, thereby undermining his claim of non-receipt. I am further persuaded by the fact that the same email address was used to serve the originating process, which he acknowledges having received, thereby confirming his access to the communications sent to that address. Accordingly, I find his denial of receipt of the letter of demand to be devoid of any merit. 7.14.On this basis, I am satisfied that the Plaintiffs complied with the requirements of Order VI Rule 1 of the Amended Rules. What is unusual is that both the letters of demand and the affidavit of service were filed, when Order VI Rule l(l)(d) requires the filing of either one. Nevertheless, the filing of both does not in any way prejudice or invalidate the process. 7.15.In view of the foregoing analysis, I find that the Plaintiffs' action is properly before this Court. The Plaintiffs duly complied with the mandatory provisions of Order VI Rule l(l)(d) of the High Court (Amendment) Rules, 2020, by filing the affidavit of service attesting to service of the letters of demand together with the writ of summons. R17 8. Conclusion 8.1. Although the Plaintiffs filed the writ of summons together with the letters of demand, the letter of demand addressed to the 2nd Defendant was not duly acknowledged as received. However, the Plaintiffs filed an affidavit of service attesting to service of the letters of demand, as required under Order VI Rule 1 ( 1 )(d) of the High Court (Amendment) Rules, together with the writ of summons. 8.2. I therefore, find no procedural irregularity in the issuance or service of the originating process. Accordingly, the 2nd Defendant's application for an Order setting aside the writ of summons and statement of claim and service thereof is devoid of merit and is here by dismissed. 8.3. Costs of and incidental to this application are awarded to the · Plaintiffs against the 2nd Defendant, to be taxed in default of agreement. 8.4. Leave to appeal is hereby granted. Delivered at Lusaka this 30th day of September, 2025 . ~. .... . ............ Chilombo Bridget Maka HIGH COURT JUDGE R18