Brian Mundubile and Ors v Miles Sampa (2024/HP/0993) (25 July 2024) – ZambiaLII

INITHE HIGH COURT FOR ZAMBIA 2024/HP/0993 AT THE PRINCIPAL REGISTRY ~ - H~LDEN AT LUSAKA (Civil Jurisdiction) ~ B iTWEEN: l :J BRkN MUNDUBILE & 8 OTHERS PLAINTIFFS,.... I AND I MILES SAMPA DEFENDANT I Before: Hon Nlrs Justice C. Chinyanwa Zulu in Chambers For ~he Plaintiffs: Lungu Simwanza & Company & Makebi Zulu Advocates For the Defendant: NI A RULING CATES AND OTHER MATERIALS REFERRED TO: I. The High Court Rules, Chapter 27 of the Laws of Zambia; 9· Thomas Phiri V Toyota Zambia Limited Appeal No. 31/2022; ~- Philip Mutantika & Mulyata Sheal S. V Kenneth Chipu.ngu SCZ Judgment No. 13 of 2014; 4~ Gift Luyako Chilombo V Biton Manje Hameleke Appeal No. sl 2 of 2016; Leopold Walford (Z) Limited v Unifrieght 1985 ZR 203; 6 Access Bank Zambia Limited v Attorney Genel'al, CCZ 1J udgment No.21 of 2019 l.0 I This matter was commenced by way ofvVrit of Summons on 15th JJ uiy, 2024. Order VI Rule 1. (1) of the High Court Rules, I Chapter 27 of the Laws of Zambia, as amended by Statutory -Rl- I I Instrument No.58, of 2020, provides for the commencement of matters in the High Court as folbws:- I I "Except as otherwise provided by any written law or these Rules, an action in the High Court shall be commenced, in I writing or electronically by writ of summons endorsed and accompanied by- (a) a statement of claim; I (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 (di 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." It is clear from the foregoing provision that a Plaintiff who commences an action by way of ,ivrit of summons must file a letter of demand together with the originating process. This position is confirmed by the holding of the Court of Appeal, in the case of Thomson Phiri· V Toyota Zambia Limited Appeal No. 31/2022 wherein it stated as follows: It is patent that in Order 6 Rule I (l}{d) of the HCRs, a letter of demarid must be one of the documents to be attached to the Writ of Summons. This is in order to help the Court ascertain what the action instituted encompasses as well as alert the Defendant what action he would face if the matter ends up in court. I 1.2 Sub rule (2) of the aforen1entioned order goes on to state that, (2) A writ of summons which is not accompanied by the documents under sub-r ..t le (1) shall not be accepted. I Sub rule (2) of Order VI, therefore, imposes a penalty for breach 1.3 of Order \t1 Rule 1(1) namely, that a ,vrit of summons not I accompanied by the documents u nder sub rule (1) shall not be I -R2I I accepted. I take note that the above prov1s1on 1s couched in mandatory terms as it uses the word "shalr'. That means it is not in the discretion of this court to either accept or not accept a writ of surr1mons not accompanied by the documents mentioned in the said order, but it is rather, mandatory. This position is fortified by the following cases: Philip Mutantika & Mulyata Sheal S v Kenneth Chipungu SCZ Judgment No. 13 of 2014 \,,herein the Supreme Court stated: Both provisions are couched in a mandatory manner as each uses the u.tord "shall". The two Rules are therefore not regulatory as they do not at all give the Court discretionary power." 1.4 Gift Luyako Chilombo v Biton Manje Hameleke Appeal No. 2 of 2016 wherein the Constitutional Court held: In its ordinary usage "shall" is a word of command and is normally given a compulsory meaning because it is intended to show obligation and generally mandatory. 1.5 This Court is alive to the general position that High Court Rules are regulatory in nature and the Supreme Court has guided in a number of cases that a breach of a regulatory rule is curable. One such example is the holding of the Supreme Court in the case of Leopold Walford (Z) Limited v Unifreight wherein the court stated that: "There has been an alternative argument put forward by Mr. Kawanambulu, namely, that non-compliance with 0. VII, r. (l)Rl4 (a) is not fatal because the rule is merely regulatory or directory. In accepting this argument, we wish to add that, where there has been a breach of a regulatory rule, such breach will not always be fatal as much will depend upon the nature of the breach and the stage of the proceedings reached. -R3- This, therefore, means that, as a general rule, breach of a regulatory rule is curable." 1.6 What can be denoted from the above holding is that the position that a breach of a rule is curable, is not absolute. The guidance given by the court is that the fatality or curability of a breach of a rule of procedure largely depends on the nature of the breach and the stage of the proceedings. 1. A perusal of the record at hand reveals that the Writ of Summons was filed without an accon1panying letter of demand as required by Order VI 1. (1) (d). ':'he question that begs to be answered then is, is the omission by the Plaintiffs to file a letter of demand, something fatal to the herein proceedings, taking into consideration the stage of the proceedings? In other words, this Court has to determine whetr_er a letter of demand is so vital in proceedings such that its absence would be fatal to the proceedings? A letter of demand has been defined and described as follows, by the learned authors of Black's Law Dictionary: "A letter by which one party explains its legal position in a dispu:te and requests that the recipient take some action (such as paying money owed), or else risk being sued. Under some statutes, a demand letter is a prerequisite for filing a lp,wsuit." 1.8 \1/hat I get fro1n Black's Law Dictionary's definition of a letter of demand is that a letter of demand is intended to bring to the Defendant's attention before a matter is commenced the substance of the Plaintiffs claims against the Defendant and let the Defendant know that if he does not meet the Plaintiffs demands, the Plaintiff would com1nence court proceedings against the Defendant based on the said claims. It therefore -R4- !gives the Defendant a brief summary of the claims against him land forms the basis for the Plaintiff's pleadings in court. In the r ase of Access Bank Zambia Limited v Attorney General, CCZ Judgment No. 21 of 2019 the court stated that a Plaintiff I ought to file a letter of demand together ·with the originating I process in order to help the Court ascertain what the action instituted encompasses as well as alert the Defendant what I action he would face if the matter ends up in court. I In the case of Gabriel Muyinda v Menox Property Merchants 1.9 I Limited 2020/HPC/0551, Honourable Lady Justice Dr. W.S. I Mwenda had this to say concerning the need for a Plain tiff to comply with Order- Vl Rule 1 ( 1) (d) of the High Court Rules I and whether the same was fatal: "It seems to me, that the new law as amended is meant to enhance the need for a plaintiff to define the parameters of their case and what the defendant should meet, at the earliest possible time, so as to allow the defendant prepare for his case as well. In my view, therefore, a breach that would warrant a cure to be ordered would be one that touches, for instance, on the substance and form of the documents filed before a court, such as was the case in Leopold Walford (Z) Limited v. Unifreight where the plaintiff did not endorse the plaintiffs address on the writ a. s required by Order 7, Rule (1) (a) of the High Court Rules. The same would not be the case as regards the breach in casu." 1.10 Similarly, I am of the considered view that failure to file a letter I of demand together with the originating process is more than a I breach that would simply warrant a cure of the defect. I find I that the defect goes to the root of the entire proceedings. I -RS- 1.111I consequently, in line with Order VI Rule 1 (2) dismiss the herein matter for non-compliance with Order Vl Rule 1 (1) (d) I of the High Court Rules, Chapter 27 of the Laws of Zambia. It is my considered view that since these proceedings have just J been commenced, no great injustice or prejudice will be suffered I by the Plaintiff as a result of this Court's decision to dismiss the matter as the Plaintiff has the option to re-commence their J proceedings, in compliance with the law. The importance of !adhering to court rules cannot be overemphasized as they are an integral part of the administration of justice. This position was made very clear by the Supreme Court in the case of Access IBank Zambia Limited v Attorney General, CCZ Judgment j o.21 of 2019 when the court stated that: "Court rules are an integral part of the administration of justice in this jurisdiction. The importance of court rules was pre-eminently pronounced in the case of NFC Mining PLC. v Techro Zambia Limited where the Supreme Court stated that rules of court are intended to assist in the proper and orderly administration ofj ustice." 1.12 Matter is dismissed. I . 1.13 Leave to appeal is granted. Delivered at Lusaka this 25th day of July, 2024 C. Chinyanwa Zulu HIGH COURT JUDGE -R6-