Raubex Construction Zambia Limited v M & N Industrial Merchants Limited (2023/HPC/0898) (29 December 2023) – ZambiaLII

IN THE HIGH COURT OF ZAMBIA 2023/HPC/0898 HOLDEN AT LUSAKA AT THE COMMERCIAL REGISTRY (Civil Jurisdiction) BETWEEN: .. RAUBEX CONSTRUCTION ZAMBIA LIMITiD INTENDED PLAINTIFF vs M & N INDUSTRIAL MERCHANTS LIMITED INTENDED DEFENDANT Before the Honourable Mr. Justice L. Mwanabo on 29th December, 2023 in Chambers ( RULING 1. This is an application by the Applicant by Summons seeking leave to file originating process during the Christmas Vac:ation. The application is made pursuant to Order 2 Rule 4 and Order 49 Rule 3( 1) of the High Court Rules CAP 27 of the Laws of Zambia. 2. I have considered the affidavit and arguments filed by the Plaintiff and I have also analyzed Order 2 Rule 4 of the High Court Rules which provides as follows: "4. Summonses may be issued and pleadings may be amended, delivered or filed during the last eleven days of the Michaelmas and Christmas vacations respectively, but pleadings shall not be amended, delivered or filed during any other part of such vacations unless by the direction of the Court or a Judge." 3. The Order in issue docs not appear to give liberty to a party to move the Court to grant leave to commence an action during the said vacations. Furthermore, the summons filed by the Applicant herein was not by the direction or leave of any court. Therefore, even the summons before me was improperly filed. I do not think that Order 2 Rule 4 gives an avenue by which a party or a litigant can seek to undo what is in fact against the spirit of the sai~d order. Since the Order says summons may only be issued during the last eleven days of the said vacations, it means that a party or litigant cannot issue summons outside the said period. The application herein is by summons which summons are not allowed to be issued during the vacations. until the last eleven days. The summons in issue was not issued in the last eleven days thereof I cannot entertain the application. 4. The order in issue does not even give any conditions under which a party can seek the indulgence of a Judge or the court to make a direction to file summons or pleadings or an action during the vacation period which means that there is no room for such an application. In any case the only direction the court can give is limited to pleadings and not summons. It is also worth noting that the word used is direction of the court and not leave of the court. 5. Order 49 Rule 3(1) cited in the summons only refers to the vacations to be l observed. It says nothing about seeking leave of Court to commence an action during the vacations. 6. I accordingly decline to grant the application f ve to file writ of summons during vacation enl.erlliiu ::.uch an application.