Lukasu Properties Limited v African Banking Corporation Zambia Limited (SCZ/08/10/2023) [2024] ZMSC 28 (15 August 2024)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiclfon) SCZ/08/ 10/2023 APPEAL No.5/2023 BET\VEEN suco,;:,i (OUltu,. JIJUtC'&ivty LUKASU PROPERTIES LIMITE APPELLANT AND AFRICAN BANKING CORPORATION ZAMBIA LIMITED RESPONDENT Coram: Wood, Mutuna and Chisanga, JJS On 6•h February, 2024 and J Slh August, 2024 For the Appel/a,u: Mr. M . Mando of Messrs. Mando & Pasi Advoca<es For the Respondent: Mr. E. K. Mwitwa, Mr. E. B. Kalul)a, Mr. 0 . Sambo of Messrs. Mwenye & Mwitwa Advocates JUDGMENT CHISANGA, JS delivered the Judgment of the Court. Cases referred to: 1. Barclays Bank (Zambia} limi,cd vs Walisko and C-Ompany a,1d Anoche-r (1980) ZR 7 2. Chik«1a vs Chipau., Rural 0,«ncil / 1974) ZR 241 3 , Supa Banking Company us Philimon J Pcndwe Judgment No. 31/ 2004 4. D,erri.ck Chitala (as secretary of the Zclmbia Dernouatic Co,~gress) vs The Atwmey General (1995/ 1997) ZR 91 5. Mulyata and another vs Chipwigu SCZ Judgment No. 13/ 2014 6. ChUombo vs Hameleke Appeal No. 2/2016 7. Auomey General us Juma ( 1984) ZR 1 8. Atlomcy General vs Chipango ( 1971) ZR 1 9. Zambia National Holdings and United Nmional Independence Party vs The Attorney General / 1993/ 1994) ZR 115 10. Shamwana and 7 Others vs The People (1985) ZR 41, 11. Gene~ Nursi~g Co LUtdf of Zambia us Mbangu.,>ela (2008) 2 ZR 105 12. The RP.pvl,Uc of Botsioa11a Mini.c;try of Works Tran.sport a-,id Communications a1td Rincean Design. Co,isuftam.s (s. W?d os a frrm TI A KZ Art:hitects) vs Mitre Limited (1995/ J 997) ZR 113 13. Leopold Walford (Z} Limited r,s Unifrc{qht (1985) ZR 203 14. Sta:P1®rd Cltarwred .&mk Zambia Plc us John MC Banda (SCZ} Appeal No. 94/2015 15. Agro Fuel Investment Limited us ZambiQ. Revenue Authorily 12012) 2 ZR l l 0 16. A tlOmey General & Movement for Mullipwty Democracy us lewanika. and 4 Others (1~93· 1994) ZR 164 Other Works ref erred to: 1. Ha'lsbwy 's Laws of :E,iglarid 4"' Ed.iimn Va~ume J (Q paragraph 105 a,1d 107 INTRODUCTION' l. The High Court is a creature of The Constitution of Zambia. The processes and p rocedures of the Court aire prescribed by the High Court Act, Cap 27 of the Laws of Zambia. Order Vl of the High Court Act prescribes how actions may be commen ced. This Order has u ndergone a1nendment several times. The la.test mnendm@.nt was passed in 20201 by Statutory Jnstnlment No. 58 of 2020. Currentl,y, Order VI reads as follows: 1. (i.) Except as o,therwise provjded by a.n.y written law oil' th.ese Rules,. an action iln the High Co,urt slu\ll be· commenced :la writing o:r electronically b:, writ ,of summons. endloned and accompanied by - a statement of ,t:laim: list and description of doeum,ents to be 11elied o:o at at bJ trial; •cl list ,or witne15e:s to be ,called ·by the plaintiff at trial; J2 and 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. 2 . A writ of summon, which is not accompanied by the documents under sub•rule 1 shall not be accepted. 3. 4. The proper officer shall - a} Seal, with the official seal, the writ of summons and the statement of claim where that statement of claim is on a separate sheet; b) Stamp the accompanying documents with the official stamp; and c) Return the copies of the writ of summons, statement of claim and accompanying documents to the person 2. Previously, Order VI read as follows: commencing the action. 1) Except as otherwise provided by any written law or these Rules every action in the High Court shall be commenced by writ of summons endorsed and accompanied by a full statement of claim. 3. It will be noticed that at present, an action may be commenced electronically. The writ of summons is to be accompanied by the list and description of documents, a lis t of witnesses, and a letter of demand acknowledged by a defendant, or an affidavit of service, J3 in addition to the staten1ent of claim. The letter of demand must set out the claim and the circumstances in which it arises in detail. 4. In this appeal, the issue that arises interrogates the import of the requirement to serve a letter of demand on a defendant before an action is commenced in court. African Banking Corporation Zambia Limited (African Banking) comn1enced an action against Lukasu Properties Limited (Lukasu Properties), among other defendants. The issue arose before Musona J . His view was that African Banking's failure to serve a letter of demand on Lukasu Properties before the action was commenced was fatal. African Banking appealed against Musona J's decision to the Court of Appeal. That court differed with Musona J. Its view was that Lukasu Properties did not suffer prejudice because of African Banking's failure to serve the letter of demand. Musona J 's decision was reversed, and the action reinstated . 5. Lukasu Propert ies was taken aback by the decision of the Court of Appeal, and applied for leave to appeal to this court. The Court of Appeal readily granted leave on the ground that the requirement that a letter of demand must be served on a J4 defendant before an action is commenced requir s interrogation by the Supreme Court. BACKGROUND 6. African Banking merged with Leasing Finance Company Limit,ed (Leasing Finanoel on 27th February 20191 by operation of Section 29 ,of the Banking and Fma1:1c:ial Services Act No. 7 of 2017. The assets and aU rights and obliga.tions that had accrued to Leasing Fina.nee as at 27th F,ebruary 2019, were by operation of the said section, tran sferf\ d to African Banking. 7, Before this merger, Copper Harvest Foods Limited (Copper HarvestL Sabrina's Farmers Harvest Limited (Sabrina's Farmers), Lukasu Properties, and Leasing Finance w r,e, and are related companies. Aru lanandam Ramesh was at the material time the Managing Director of Leasing Finance. 8 . Copper Harvest applied to L~asing Finance for a working capital facility ,of K3 600 000 000 .00 old currency j , on 1 s.t Septem b r 2009, Leasing Finance offered the said amount on oertain conditions, among which was the requirement of s curityin the form of a first Mortgag Debenture over Copp!!r H,trveses fl. Xied assets and floating assets on stands numbers 5,274 and S/D A of S/D 6 of JS S/D X of farm o. 748 Ndola. The fa ility was to be ,extended to Copper Harvest once all the conditio,ns precedent were fulfilled and seeuriey documents perfected. ]n addition to this, Copper Harvest was not to mortgage, charge pl,edge or ,encumber these properties. 9. nespite these requirements not being met, Antlanandam Rru--nesh avaUed Copper Hruvest tbe facility1 in alleged breach of the fiduciary duty he owed to Leasing Fioanoe. He also, by two addendums, xtended the loan exphy dates and reduced the interest rate. Copper Harvest's indebtedness stood at ZM\¥ 15,t829,867.70 as at 3}$t December 2019. 10. In breach of the Joan agreement, Copper Harvest transferred S/D A ofS/D6 of S/D Xoffarm No 748 to Lukasu Properties. This was one of the properties that had been pledged as security under the Copper Harvest Joan agreem,ent. l]. Similarly! Sabrina's Farmers applied for a short-tenn loan facility of ZMW 4,900 000.00 on 14111 February 2014 . . Leasing Fina.nee offered it the facility on certain. condi tions. Among them wa.s th requirement of a debenture over Sabrina's Farmer-s fixed and floating assets. The facility would be availed upon perfection of J6 the security documents. Sabrina's . Farmers was a lso .not to mortgage , charge, pledge or othenvise encumber its p:roperty. 12. Despite not meeting th se requir ments,, Sabrina's Farmers was allowed to access the facility by Arulananda__m Ramesh 1 in alleg d breach of his .fiduciary duty. Sim.ilar]y in this instanc€ j the said individual extended the loan expiry date, and autho•rised a top up of the facility . Sabrina 1s Farme:rs default,ed, and as at 31 s1 Decemb r 2019, its indebtt!dness stood at ZMW19 1312J156.00. 13. Af1ican Ban king claimed the following, a.s against Copp r Harvest and Lu kasu Properties: i . An Order directing Copper Harves.t to pay African Banking the claim of ZMWlS1829!'867 .. 70 and 11.nterest at the: contractual rate till the same is paid in full. iiw A deelara.tion that the Co,pper Harve-st .foan agncmeat e.reated an equitable :mortgage in fav our of !Leasing, Finance andi suhse quently Afric·an Banking in relation to, stand No.52"14, and S/. D A of S/D 6 ,of S/. D X of farm No~ 748, Ndola; iii. A declaration that 1Copper Harvest F,ood.'.s transfel' of.stand. No, S/ D o.fS/D r6 ofS/ D X of farm No. 748, Ndola to Luka.au Properties, was done in badl faith with the objec tive or .and sukequently African depd vi.ng :Leasing Filnan•~ Banking. J7 14. We need not reproduce the r Hef claimed against Sabrina's Farmers and Arulanandam Ramesh, as the app al relates to the action against Lukasu Properti,es. Suffice to state that African Banking claimed its dues from Sabrina's Farmers and that it be ordered to ,ex cute deeds of assignment to convey title for its fixed assets to African Banking. Foreclosure and sale ,of its fixed assets was a lso claimed. \Vith respect to An.ilana.ndam Ramesh. African Banking sought a declaration that he breach~d his fiduciary duty to Leasing Finance, and was liable to indemnify African Banking for the losses it had s uffered as a r-esuH. IS. African Banking issued the writ of summons against four defendants, that is. Copper Harvest1 Sabrina's FanneTS, Lukasu Properties and Arulanandam Ramesh. However, letters of demand were only served on thr,ee of the defendants. Lukasu Properties was not served. All lour defendants raised preliminary issues. On behalf of Copper Harvest, Sabrina's Farrners and Arulanandam Ramesh, the issue raised by learned. couns,~l was whether the daim by African Banking ought not to have been commenced by originating summons 1 and was incompetent, liable to be struck out 1 for having been comm,en, d by writ of summons. Lukasu J8 Properties also filed a notice of motion to raise preliminary issues. The first issue was the same as the one raised by the other three defendants, with respect to the mode of commencement. 16. The second issue was couched as follows: Whether this action is a nullity ab lnltlo and or incompetent for having been filed without se rvice of and accompanied by a letter of demand contrary to the mandatory requirement of Orde r V1 Rule 1 Id) of the High Court jAmendment) Rules 2020 CAP 27 of the Laws of Zambia. 17. Having considered the issue before him, Musona J, concluded that the issues raised by Copper Harvest, Sabrina's Farmers and Arulanandam Ramesh were improperly before him, for failure to file a notice of intention to defend. With respect to Order VI Rule I (d) of the High Court Act, the leamed judge considered the word 'shall' as used in the Order. He concluded that the word was mandatory, and had to be complied with. African Banking was at fault in failing to comply with the law. The learned judge went on to state that African Banking ought to have commenced the action by way of originating summons. He relied on Barclays Bank (Zambia) Limited vs Wallsko & Company and Mohamed Ashrof Mansoor, 1 Chikuta vs Chipata Rural Council2 and Supa J9 Banking Company vs Philimon J Pendwe.3 He dismissed the entire action for being wrongly brought before the court. 18. African Banking was aggrieved with this decision. It lodged an appeal in the Cou rt of Appeal on two grounds. The rust ground questioned the dis missal of African Banking's action on the basis of the is.sue raised by Lukasu Properties wi thout affording African Ban.king an opportun_ity to be heard. The second ground impugned the award of costs to parties who were found to have wrongly rai sed the preliminary issues in the application that was heard by the court. ARGUMENTS IN THE COURT OF APPEAL 19. The arguments in support of the appeal were that in passing judgment against African Banking, t he court did not afford it an opportunity to be heard, contrary to the rules of natural justice. This argument was anchored on Halsbury's Laws of England 4•• Edition Volume 1 (i) paragraph 105 and 107, where the learned authors state the following: "The Rule that no man is to be condemned unless he bas been given prior notice of the allegations against h.im and a fair opportunity to be beard is a fundamental principle of justice .. . the rule generally applies at least with full force only to conduct leading to a rmal act or decision" JiO u. A per&on o:r a body determirung a ,diipate between parties must give eac'b party a fair opportunity to put hiis o,wn case and to co,rTect ,or contradict any irrelevant statement to the contrary."' 20. Order 14 A/2/6 was also referr,ed to in support of the argument that African Banking should have been afforded an opportunity to be heard. The failure to hear African Banking it rendered U1e decision with respect to Lukasu Properties 1 p reliminary issu e null and void. The effect. was that the appJicatioo had to be heard by the cou rt b low. 21. Th e argum,ent with respect to the second g.rou nd was th.a.t as Copper Harves , Sabrina's FarmersJ. and Arulanandam Ramesh had their preliminary issues thn:i,wn out in the application that was heard by the court, African Banking ,ought to have been a.warded costs. 22. In opposing the arguments on the first ground of appeal it was submitted that African Banking was afforded an opportunity to be heard. That the High Court acted within the law in making an adverse decision a,gainst it. Jll 23. With respect to the second ground, it was argued that the High Court exercised its discretion judiciously in condemning African Banking in costs, having dismissed its action in its entirety. 24. l.,ukasu Properties, on its part, focused on the merits of the matter, and not on the question of the failure to hear African Banking. It urged the court to determine the merits and demerits of the issue it had raised. Derrick Chitala (as secretary of the Zambia Democratic Congress) vs The Attorney General• was one of the cases cited, where this cou rt said : "We have no reason to disagree with the foregoing. The judge below cannot validly be criticised for forming an opinion on the papers before him. Whether be was correct or not in his conclusion is a different question which we are capable of addressing since an appeal operates as a re bearing on record." 25. It was submitted, based on the approach taken in the cited cases, that it behoved the Court of Appeal to determine whether, had African Banking been heard, the High Court would have come to the same decision it came to. According to learned counsel, the High Court wou ld have come to the same decision because African Banking had commenced the action JJ 2 by \vrit of summons in.stead of originating summons1 and had done so without a demand letter as required by Order VI Rule 1 (d) High Court (Amendment) Rulres 2020. 26. Learned counse] also submitted that Afrkan Banking should hav,e app li d to set aside the ruling of the learned Judge pursuant to Order 35 rule 3, of the High Court Rules~ and Order 32 rules 5 and 6 of RCS 1999 edition. With respect to the Order of costs against African Banking, it '1 as argued that the action having be n wholly dismissedJ the cost order was properly made. 27. Upon considering the appeal and the arguments, the Court of Appeal held that the conditions in which the provisions of Order XXX rule 14 a f the High Court Rules applied were not m t. Thus:t the achon commenced by African Banking was not a mongage action. Secondly, the Court held that African Banking was not heard on th preliminary issue raised by Lukasu Properties Limited 1 contrary to the clear provisions of Order 14 A RSC 1999. 28. With respect to the failure to file a Letter of demand with the writ of summons, the court observed that Order VI Rule 1 (2) JJ3 of the High Court Rules does not provide a penalty once the docu n1ents have passed through the Registry. The court opined that the failur to file a I tter of demand was not fatal to the case. The word 'shall' in the said rule was construed as re]ating to th@ mode of commencement. Mor over, the Court reasonedJ a default in procedural requ rren1ents that had no prejudicial effect on the other party is an irregularity that can be cured. 29. Th Court also held that Order 35 of the High Court rules was inapplicable, the case being concerned \Vith the failure to afford African Banking an opportunity to be heard on the p reliminary issue raised by Lukasu Prop ·rties. In the result, the appeaJ succ cded. The matter '\vas remitt d to the High Court for the bearing of the ma.iu caus before a different judge. 30. Lukasu Properti s has appealed, with leave of the Court of Appeal, against a portion of the judgm~nt on one ground, which reads as follows: The Court ,of Appeal\ ened in both law and fact when it beld that a wlit 1or summom filed without a letter of' Deman,d i:s an irregularity that ls not fatal and amenable to cure and did not ,consider that a letter o,f demand is requir,e d to be issued berore the commencement of procee ding:s. J14 ARGUMENTS IN SUPPORT OF THE APPEAL 31. Learned counsel for the appellant has endeavored to persuade this court to allow the appeal in written heads of argument filed in Court on 29•• September 2023. He advances four points, the first being that Order VI Rule 1 employs the word 'shall' in requiring that an action be commenced in writing or electronically and that the letter of demand be acknowledged by the defendant. He argues tha.t it is mandatory that the stipulations in the Order are met by a plaintiff. Learned counsel maintains that according to judicial precedent, the word 'shall', in its ordinary and natural meaning, connotes an obligatory or mandatory requirement. He enlists Mulyata & Another vs Chipungu, 5 and Chilombo vs Hameleke6 for this argument. He also reUes on Attorney General vs Juma7 and Attorney Ge neral vs Chipango. 8 32. The second argument 1s that Order VI Rule 2 states the con$equence of the failure to attach the documents listed in the Order, to the writ of summons. The Court of Appeal ought to have considered the mandatory nature of rule 2. The rule JIS prohibits the court from accepting a writ of summons that is not accompanied by the listed documents. The writ of summons having been accepted in breach of the rule, the Court did not have jurisdiction to adjudicate upon the matter, as it was commenced outside the rules of the court. In addition to this, whatever was done in breach of the rule was unlawful, and null and void ab initio. Counsel argues that the documents listed in rule 1 rank pari passu at law. The consequence of the failure to accompany a writ of s ummons with a statement of claim should similarly apply to a failure to file any of the documents listed in rule I. This argument is partly grounded on Zambia National Holdings and United National Independence Party vs The Attorney General. 9 33. The third point is that the intention behind Statutory Instrument No. 58 of 2020, as can be gathered from the sensitization workshop for legal practitioners, is to ensure speedy conclusion of cases. That is why the wording is mandatory. Counsel argues that a letter of demand offers the prospective defendant an opportunity to admit, negotiate or state his or her defence to the claims s uch that by the time a Jl6 matter is commenced 1 issues in dispute are clear. The requirement that a letter of demand be se:rved befor the writ of summons is issued was mo ivated by a growmg tend ncy of plaintiffs to sue without first making a demand . Learned counsel submits that the Court of Appeal failed to look at the· intention of the High Court (Amendm nt)1 Rules 2020. 34. The last point is that failure to serve· a letter of demand which would accompany the writ of summons is not a curable irr gularity. Even with leave of court, it cannot be served and filed in court r trospectiv ly. On the foregoing arguments, learn d counsel urges us to reverse the decision of the Cour of AppeaJ. 35. The respondent opposes the appeaJ 1 through written arguments filed into court on its b half. Learned counsel agrees that wh n the words of an enactm nt are clear and unambiguous, th words must be tak n in their ordinary and natural meaning per Atto.rney 1Genera1 vs Juma 7 and other cases .. He argues, ho,vever, that in the instant case, the respondent c-omplied with the provisions of Ord r VI rule 1 in accordance ,,tith the principle of interpr tation espoused in the J17 cited cases_ All the documents enumerated in the said Order \l.' re filed 1 as confirm d by the record. Lett rs of demand were .issued to the l ~\ 2ncl and 4 th defendants. Thus, all the documents listed in Ord r VI were filed. Although a letter of demand was not served on the appellant, this did not render th actio11 irregular, as all the requ ired documents, including letters of demand , were filed together with the writ of summon.s. Counsel argues that a literaJ reading of Order VJ .rule 1 (i) shows that it does not r,equire that a separate copy of the letter of demand should b specifically served on ach and every defendant in actions where there are several d fendants. To hold otherwise would be to read words into the rule. 36- In furthering the argument in the preceding paragraph, counsel submits that wher here are several intended defi ndants to an action, and the sam are related in some way; service of a letter of demand on one or more of thos related :intended defi ndants would be sufficient to bring the claims to the a tention of all of them. Ther,efor, 1 the service of the letter of d mand and on the 1 al and 2°d defendants was sufficient notice to the appellant which was 3 rd defendant in the High J18 Court proceedings. These entities are related, and they all fall under the same Group of Companies, as pleaded in the statement of claim. 37. Moreover, although the appellant is represented by a different law firm from those representing the I•• and 2nd defendants, the two law firms are instructed by one person, a Mr. Peter Sokwani Chilembo, who is in house counsel for the Mahtani Group of Companies. Specifically, the said individual swore an affidavit on behalf of the l " and 2nd defendants. He later swore an affidavit in opposition to the application for leave to appeal, on the 3rd defendant's (appellant's) behalf, although this affidavit is not in the record. Learned counsel invites us to take judicial notice of the contents, per Shamwana and 7 Others vs The People. 10 38. Learned counsel argues, premised on t he foregoing, that because Mr. Sokwani Peter Chilembo is group legal counsel, service of a letter of demand on any of t he three entities is sufficient notice to the others because all the letters of demand were going to la nd in the hands of one person, Mr. Chilembo. Jl9 39. The rationale for the requirement of the letter of demand, it is submitted, is as stated by counsel for the appellant. This objective was met. Even a single letter to any of the three defendants would have sufficed. Learned counsel refers to a High Court ruling in which the High Court imputed notice to some defendants on account of a common shareholder. 40. In learned counsel's view, to insist that a letter of demand be served on every defendant would lead to absurdity. In addition to this, the court would be assuming that the rule intended to penalize in the absence of express provision to that effect. Counsel relies on General Nursing Council of Zambia vs Mbangweta, 11 and Halsbu,ry's Laws of England 4 •• Edition Volume 44 paragraph 1456 and 1467 for t his argwnent. He further contends that even were it to be assu.med, without ad1nitting, that it was irregular to issue a writ against the appellant, the irregularity would only affect the appellant, and not the rest of the defendants. This is because the respondent complied with the rule when commencing the action against the 1st, 2 nd and 4 th defendant. J20 41. The las point taken on the respondent's behalf is that despite the use of the word 'shalJ' in Ord r VI rule l, the provision is still regulatory and not mandatory. This is becaus I according to learned counsel 1 the word 'shall' as used in the nlles of procedure: should be distinguished from its effect when used in substantive provisions of any legislation. [n he rules of procedure, the word 'shall' does not always carry a mandatory connotation, and failure to comply with a particular rul does not render a proceeding a nullity but simply constitutes a curable irregularity. This argumen't is fou nded on Order 2 rule 1 RSC 1999 Edition. 42. Learned counsel argu@s that the import of Order 2 was explained by this court in The Republic of Botswana Ministry of Works Transport and Communications. and Rinceau Design Co,nsultants tsued as a firm TI A KZ Architect.s.11 vs Mitre Limited. 12 The court guided that the High Court Ru]es are regulatory or directory and not mandatory. It is submitted that in th same vein, he requir ment that a letter of demand be issued prior to the commenc ment of th matter is regulatory and not mandatory. Tber,efor , the court retains the J21 discretion, upon looking at th circumstances of a particular case, to allow the plaintiff to cur · the defect relating to he issuance of the letter of demand even after the action has be,en commenced, more so when the opposing party is not prejudiced. 43. Another argum nt is that th appellant could not be found. It entered appearance without being served with any court process. Therefore, in the circu mstances of the case, tbe court must enjoy a degr,ee of discretion to allow for a l,etter of demand to be served even after the rna tte r has be en oommenced. Counsel reli.es on Leopold Walford ~Zt Limited vs Unifre lghtJ 13 where the court held that failure to seek leave to issue a writ for service out of jurisdic ion was not fatal. but curable ev n though the rules require leave to be obtained befor issuing rh writ. Jn fact the Suprem,e Court dir cted the plain tiff to seek leave aft r the writ had already been is sued~ as a way of curing the defect, even though the rules :requir, d leav,e of court to be obtained before issuing the writ. This dearly shows that in certain instances a step which is supposed to be taken prior to th co,mmencem,ent of the matter can be taken J22 fwith leave of court) after the commencement of the matter as a way of addressing the curable defect or procedural step. Similarly, in this case. a letter of demand can be issued and served on the appenant even after the matter has been commenced if that is necessary to cure the perceived irr gularity. This is more so that the appellant could not be found until the matter was commenced and was never served with th originating process. Additionally, no prejudice was suffered by the appeUant on account of no being served with th letter of demand. Learned counsel reminds us that where an irr gularity do ~ not prejudic · the opposing party, we have guided that triable issues must go to trial, and that rules of court must not be used as 1nine:fteld for parties. Standard Chartered Bank Zamllia Pie vs John M iC Banda14 is cited in this regard. 44. In addition ro the for,egoing argument1 learned couns l maintains that the documents that accompany a writ of summons serve different purposes. A lett r of demand cannot be compared to a statement of claim, which outlines the dispute. and the claims. An action is inc..""Omplete in th absence J23 of a statement of claim, which is essential to the resolution of the ctispute by the court. On the other hand, a letter of demand simply shows the court that before bringing the matter to court, the intended defendant was informed about the potential lawsuit and given an opportunity to settle the same prior to commencement of the matter. The court does not need a letter of demand to resolve the dispute before it. The two documents are different, and should be treated differently. The importance of each document to the conduct of the proceedings and the effect of not having a particular document should be considered. Attorney General vs Cbipango• is cited in support of this argument. 45. As for the argument that the Court of Appeal wrongly construed the word 'shall' in Order VI rule I (i), learned counsel argues that the Court of Appeal's approach was correct. The word 'shall' did not extend to the accompanying documents. Counsel contends that Order VI rule 1 is self-explanatory. He points out that at the registry, documents are not received by the Honourable Justices. Thus, the phrase 'shall not be accepted' confers ju risdiction on the registry staff (and not the High Court J24 Judges) not to ace pt (and not to disrniss) a writ of summons which is not accompanied with other prescribed documents. 46. Learned counsel goes on to argue that where in the High Court ndes it is intended to em power the judges to dismiss matters, the relevant rule will provide so expressly. An instance is Order 19 rul~s 7 and 8 of the High Court Rules as amended by the same SI 58 of 2020~ which empowers the court to dismiss a matter wh re the parties fail to attend to status conference on two occasions or where an action r,emains dormant for 60 days after it was filed. Therefore, the us of the phrasei 'shall not be accepted' does not mean the sam as 'shall be dismissed. ' Therefore, the Court of Appea] was on firm groun d in holding that once the docun1ents are accepted by the registry, he omission to serve a letter of demand, if an.y, remains a curable irregularity. Learned counsel urged the court to dismiss the appeal. REASONING 47. We hav considered the arguments for and in opposition to the appeal. \V@ note counsel's exertions on both sides, in their J 2'5 endeavor to p rs.uade us on their respective positions. This is the first time th meaning of Order VI rul s l, 2 and 4 as amend d , is being interrogated in this court. Th,;. issue that arises is whether th faj]ure to serv a letter of demand on a defendant before the writ of summons is is.sued is fatal. Both parties are agreed that the provision must be interpr, ted by examining the literal and plai.i.n meaning of the words used, unless this would result in absurdity. Indeed, authorities that confirm this approach in this jurisdiction abound . Attorney General vs Juma,7 Agro Fuel Investment Limlted vs Zambia Revenue Authori,tyll5 and Attorney General & Movement for Multiparty Democracy vs Lewanika,us cit din the arguments before us ar but a few of he authorities tha confirm the courts' approach. 48. Rule 1 {i) (d) or Order VI in paragraph 1 abov leaves no doubt that the plaintiff is requir d to serve a 1 t er of demand on the defendant. This letter must set out the claim and th circumstances that surround it in d tail. When commencing th action, the plaintiff is required to include the Jett r of demand, with an ackr10\\1lcdgement of its receipt by th J 26 defendant, or an affidavit attesting to the service of the letter of demand. ThusJ 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 call@d by the plaintiff at trial and the said leU r of demand. 49. Before Order Vl was amended, the Judge had to issu Orders with respect to discovery. But now, a plaintiff is required to disclose the documents he or she wiU be r-elying on at trial, a.s well as th number of witnesses they will call. The amendm nt was quite revolutionary, the cl ar intention b ing abridgement of the time it takes for a matter to be concluded, from comm1encement . As pointed out by counsel for the appellant, the main purpose of Statutory Instrument No. 58 of 2020 was to expedite the conclusion of civil ma tte.rs befoI"e the High Court. 50. Order VI as amended departs from the steps taken before a matter comes to trial in th White Book. It became apparent over th years that litigation was moving at a very slow pace in our Courts becaus of the steps requ ired to be taken. This led to backlog. especially whea the process was entirely left to th · J27 parties. Amendments aimed at addressing the r-esultant delay, due to in rtia on the pa.rt of some parties were made. Statutory ·1nstniment o. 58 of2020 is one such amendment. 51. Th rule refers to 'the defendari.tJ as the party on whom the letter of demand should be served. \Ve have not seen the letters of demand that were served on the J. sl, 2 nd and 4 1h defendants in the High Court, as th said letters are not on r cord. We note that the claim against the 3 rd defendant was a. declaration that the 1 !lt defendant's transfer of stand No. S/D A of S/D 6 of S/D X of farm No. 748 Ndola to the 3 rd defendant was done in bad faith with the objective of depriving Leasing Finance and subsequently Alrican Banking of its rights in relation to the parties. 52. Learned counsel argues that the letters of demand that were served on the othe r defendants sufficed, as the c-ompanies are related, and shared one legal counsel. Counsel imputes notice to the appelJant as a r sult. This argument reads wo,;ds into the enactm n . Its import is that even though the rule refers to 'the defenda11t. ' it actually means 'some defendants' where more than one are sued. Whereas l a rned counse.l argues that J28 the literal rule is applicable, his argument undermines the said rule. Our considered view is that when the literal rule of in terpretation is applied, the words 'the defendant' mean a defendant that is cited to an action and does not include associated companies. 53. Quite apart from the literal rule of interpretation, Section 4 of the Interpretation and General Provisions Act Cap 2 of the Laws of Zambia addresses the question. It reads, in Subsection 3 as follows: 4. (l) ... (2) ..• (3) Words and expressions in a written law in the singular include the plural and words and expressions in the plural include the singular. 54. A Statutory Instrument is interpreted as 'written law' in Section 3 of the Act. Order VI (i) (d) should, in the light of these provisions, be read as referring to a plural of defendants where there are more defendants than one. It foUows that a plaintiff is required to serve a letter of dema nd on every defendant before issuing a writ of summons. J29 55. It is argued on the respondent's behalf, that this provision is directory and not mandatory. Reliance is placed on The Republic of Botswana case. It is true that in that case, this Court held that the High Court ru les, like the English rules, are rules of procedure and therefore regulatory, and that any breach of t he rules should be treated as mere irregularity which is curable. In that case, however, the court set aside the order that had granted the respondent an extension of time within which to apply to set aside an arbitral award . The reason was that the respondent had not fumjshed sufficient reason. 56. It will be noticed that Leopold Walford (Zambia) Limited vs Unifreight13 was cited in part in The Republic of Botswana case. The relevant holding was not cited in full. We reproduce it for completeness: i. if. As a general rule, breach of a regulatory rule is curable and not fatal, depending upon the natu_re of the breach and the stage reached in the proceedings iii. iv, 57. We wish to reiterate this general rule, as espoused in the Walford case. It is equally true that Order 2 RSC, which is J30 applicable to High Court matters by virtue of Section 10 of the High Court Act, describes the failure to comply with the rules as irregularities, and reprieves the proceedings from nullification. 58. However, two factors should be borne in mind in considering whether the foregoing observations are applicable to the instant case. The first is that Order Vl of the High Court Act has undergone a number of amendments before Statutory Instrument No. 58 of 2020. These amendments have never addressed the effect of failure to comply with the requirements of the Order. It is only in Statutory Instrument No.58 of 2020 that the Order now forbids the acceptance of a writ of summons when the documents that should accompany the writ are missing. 59. Order 6/ 1 /3 RSC, which deals with writs of summons, states that non-compliance with form does not render the proceedings void, but is a non-compliance which can be dealt with under Order 2 RSC. In stark contrast to this position, a reading of Order VJ of our High Court Rules clearly reveals that the intention behind sub rule 2 of Order Vl is that a writ of J3J • summons that is unaccompanied by the list of documents enumerated in the Order is incompetent. It is not to be accepted by the Court under any circumstances. This proscription demolishes the argument that a failure to serve a letter of demand on a defendant is but an irregularity that will be countenanced by the Court. 60. On this view, it is difficult to conceive the default that is contemplated by Section l O of the High Court Act, which enjoins the courts to refer to the \Vhite Book in such an event. There being no default in the practice and procedu re to be followed where a plaintiff fails to file the writ of summons with the listed documents, Order 2 RSC cannot be enlisted. This is because Order VI rule (2) stipulates the effect of non compliance. 6 l. The Cour t of Appeal thought that it is the registry staff who ought not to receive the deficient process, and not the Judges. Once the registry stalT accept the writ of summons, the Judges can exercise discretion to allow a matter to proceed, more so when no prejudice is inflicted on a defendant. J 32 62. We respectfully disagree with this view. The proscription against acceptance of 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 ,vith the form now prescribed by Order VJ. Subsection 2 of the Order leaves no doubt that such an action will be discountenanced by the Courts. It matters not that the registry staff have accepted the process. Subsection 4 of Order VJ reveals that all the listed documents, including the letters of demand are to be stamped. 63. It is true that a letter of demand serves the purpose of bringing the claim to the notice of the inte nded defendant. It is now required of a plaintiff to s tate the claim in detail, a nd explain the circumstances in which it arises. It is ou r cons idered view that this is intended to d rive home to the prospective defendant the claim they will have to meet should an action be brought against them. They may decide to settle the claim even before the plaintiff issues process against them. \!/hile it has always been required of ad vocates to write a letter of demand , this practice has waned over the years. There has been a penchant J33 • "' by some to rush to courl tvithout engaging their opponent over their daim in cl - tail. Embodying this r -quirement mn a rule of Court now compels prospective plaintiffs o meaningfully engage their opponents befor issuing a wri of summons. This may \<VeU nip pot ntia.l litigation in the bud 1 resulting in a reduction of cases requiring bearing and detem1ination by the Courts, hat are hard pr"ssed to hear and dispose of cases in a reasonable ime. 64. On this view, the argument that issuing a l@tter of demand to some of the d fendants is sufficient complianc with the rule coUapses. This is on account of the requirement to inform each and very defendant of the daim against th m, thereby affording them an opportunity to decide to settle the matter, or litigate the claim. As noted abov , the claim against the app Hant was that property number S/D A of S/D 6 of S/D X of farm No. 748 Ndola was transferred to it in bad faith. The appellant was entitled to be notified of the claim in its own right, as a prospective defendant, and decide wh ther or not to litigate the claim. Given tht! dear intention behind the rule as J34 • amended, constructive notice of the claim cannot be imputed to the appellant. 65. Another argument is that the appellant was not even served with the claim, but entered appearance on its own volition, when the respondent's application for s ubstituted service was pending in court. That this circumstance, should incline the court to allow the process to continue, and the appellant served with the letter of demand even after the writ has been issued . Moreover, the respondent should not be made to suffer doubtful penalization, since letters of demand were served on the other defendants. Our short response to these arguments is that having interpreted the import of Order VI as amended, these arguments are rendered otiose. 66. We stand by our sentiments in Standard Chartered Bank Zambia Pie vs John MC Banda 14, that rules should generally not be used as a mine field for parties who make fairly inadvertent mistakes that translate into no tangible prejudice to the other party, and that if an irregularity can be cured without undue prejudice then it is desirable that such J35 • irr,egularity b put right subject to an Order as to rights against the erring party. 6 7. However, our considered view· is that the ci t d case is inapp]icable to this case. The r ason is that currently. it is aot now possible fo:r one to issue a. writ of summons without stric adherence to the requLrements stipulated in Order VL ]f the documents outlJned in Order VI do not accompany the writ of summons, but it is nonetheless issued as was done in the instant case, such a writ is improperly issued. 68. Matters cannot be put right aftenvards. It matters not that the missing document is not the statement of claim. Rule 2 leaves no doubt that all the accompanying documents are n cessru:y for a "vrit of summons to be properly issu d. To argue that a matter is tried on a statement of claim is to m iss the point. 69. In sum_ th respondent was required to senre a lett,er of demand on each and every defendant before comrnenc,ing the ac ion. The failure to serve a letter of demand on the appellant was a fundamental and fatal omission. ]t unde·rmined th int ntion behind Order V] rules l, 2 and 4 as amended. Th action was im.properJy before the Court, and was bound to be J36 ,. ;. set aside. We accordingly allow the a.pp al, and set aside the writ of summons for incompetence. The appellant wiU have its costs in this Court~ and th - Court of Appeal The ,costs will be agreed and in default, taxed. ! = .!.,.,., -A - _ GE, F . M. CHISANGA SUPREME COURT ,JODGE J37