Brian Mundubile and Ors v Miles Sampa (2024/HP/0993) [2024] ZMHC 134 (25 July 2024)

INITHE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY H~LDEN AT LUSAKA (Civil J urisdiction) 2024/HP/0993 ~- B iTWEEN: ~ l :J BRkN MUNDUBILE & 8 OTHERS PLAINTIFFS,.... I AND I I MILES SAMPA DEFENDANT Before: Hon Nlrs Jus tice 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 Manj e Hameleke Appeal No. 2 of 2016; sl Leopold Walford (Z) Limited v Unifrieght 1985 ZR 203; Access Bank Zamb ia Limited v Attorney Genel'al, CCZ Judgment No.21 of 2019 l.0 I This matter was commen ced by way ofvVrit of Summons on 15th JJ u iy, 2024. Order VI Rule 1. (1) of the High Court Rules, I Chapter 27 of the Laws of Zambia, a s amended by Statutory -Rl- I I I I I I Instrument No.58, of 2020, provides for the commencement of matters in the High Court as folbws:- "Except as othe r wise provided by any w ritten law or these Rules, an action in the High Court shall b e commenced, in writing or elec tronically by writ of summons endorsed and accompanied by- (a) a statement of claim; (b) lis t and description of docume nts to be relied on at t rial; (c) list of witnesses to be called by the plaintiff at trial; and (di letter of demand whose receip t shall be acknowledged by the defend ant or an affidavit of service a ttesting to the service of the letter of demand, which shall s et out the c laim 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 p osition is confirmed by the holdin g 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 t h e HCRs, a letter of d e marid must be one of the documents to be attach ed to the Writ of Summons. This is in order to help th e Court asce rtain what t he action institu ted en compasses as well as ale rt the Defendant w hat actio n he would f a ce if the matter ends up in court. 1.2 I Sub rule (2) of the aforen1en tioned order goes on to state that, (2) A writ of su mmons which is not acc ompanied by the documen ts u nder sub-r .. tle (1) shall not be accepted. 1.3 I Sub rule (2) of Order VI, therefore, imposes a penalty for breach of Order \t1 Rule 1( 1) n amely, that a ,vrit of summons not I accompanied by the documents u nder sub rule (1) shall not be I -R2- I I accepted. I take note that the above prov1s1on 1s couched in mandatory terms as it u ses the word "shalr'. That means it is not in the discretion of this court to either accept or not accept a writ of surr1mon s 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 \,,h erein the Su preme Court stated: Both provisions are couched in a mandatory manner as each uses the u.tord "shall". The two Rules are t herefore not regu latory as t hey do not at a ll 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 i ts ordinary usage "sha ll" is a word of command and is normally g iven a compulsory m ea ning beca use it is intended t o s how obligation and generally mandatory. 1.5 This Court is alive to the gen eral 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 su ch example is the h olding of the Supreme Court in the case of Leopo ld Walford (Z) Limited v Unifreight wherein the court stated that: "There has been an alt ernative argument put f orward by Mr. Kaw anambulu, namely, t hat non-compliance with 0 . VII, r. (l)Rl 4 (a) is not fatal because the rule is mere ly regulat ory or direc tory. In accepting this argument, we wish t o add tha t, where there has been a breach of a regu latory rule, suc h breac h w ill not always be fatal as m uch w ill depend upon the na ture of the breach a nd the s t age of t he p roceedings 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 dep ends on the n ature 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 omis sion by the Plaintiffs to file a letter of demand, something fatal to the h erein proceedings, taking into consideration the stage of th e proceedin gs? In other words, this Court has to determine whetr_er a letter of demand is so vital in proceedings such th at its absence would be fatal to the proceedings? A letter of demand h as been defined and described as follows, by the learned authors of Black's Law Dictionary: "A letter by w hich one party exp lains 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 dem and is intended to bring to the Defendant's atten tion before a matter is commenced the substance of the Plaintiffs claims against t he Defendant and let the Defendant know that if he does not meet the Plaintiffs demands, th e Plaintiff would com1nence court proceedings against the Defendant b ased 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 cou rt. In the r a se of Access Bank Zambia Limited v Attorney General, CCZ Judgment No. 21 of 2019 the court stated th at a Plaintiff I ought to file a letter of demand together ·with th e originating I process in order to h elp the Court ascertain what the action instituted en compasses as well as alert the Defendant what I action he would face if the matter ends u p in court. 1.9 I In the case of Gabriel Muy inda v Menox Property Merchants I Limited 2020/HPC/0551 , Honou rable Lady Justice Dr. W. S. I Mwenda had this to say con cerning 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 t he parameters of their case and what the defendant should meet, at the earliest possib le time, so as to allow the defendant prepare f or his case as well. In my view, therefore, a breach that would warrant a c ure 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 .as required by Order 7, Rule (1) (a) of the High Court Rules . The s ame would not be the case as regards the b reach in casu." 1.10 Similarly, I am of the considered view that failure to file a letter I of demand together wi th the originating process is more than a I breach that would simply warrant a cure of th e defect. I find I that the defect goes to th e root of the entire proceedings . I -RS- 1.111 I 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. J It is my considered view that since these proceedings have just 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 J matter as the Plaintiff has the option to re-commence their proceedings, in compliance with the law. The importance of !adhering to cou rt rules cann ot be overem phasized as they are an integral part of th e administration of justice. This position was made very clear by th e 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 t h e administrat ion of justice in this jurisdiction. The importance of court ru les was pre-eminently pronounced in the c as e of NFC Mining PLC. v Techro Zambia Li mited where the Supreme Court sta ted that rules of court are intended to assist in the proper and ord erly administration of justice." 1.12 Matter is dismissed. I . 1. 13 Leave to appeal is granted. Delivered at Lusaka this 25t h day of July, 2024 C. Chinyanwa Zulu HIGH COURT JUDGE -R6-