Shukri Esidieg Ahmed Eljaiedi v Khaled A M Melabbar and Ors (2025/HP/0685) [2025] ZMHC 119 (11 December 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ICilli/Jurisdiction) 2025/HP/0685 KHALED AM MELABBAR ~ DEFENDANT LAICO ZAMBIA LIMITED TONY NKHOMA :: 2 ~ EFENDANT \ ~-~~· :·_·; ~ Pf FEN DANT ORACLEMEDIAPRODUCTIO ~~• EFENDANT I IL' ,, ---- / (T/ A MAST NEWSPAPER) ~ , ,....,, Forlhel'lainliff: Mr. W. Pluri and Mr. E Saka/a - :.s:ti~~n~,;°nda Williams Legal For the I • and 2"" Defendants For !he 3"' and 4"' Defendants; Mr. E. B. Kaluba and Mr. 0 Sambo and Emmanuel Messrs. OnesimusLega/Prae1i1ioners RULING Ca. Nt nferredtp, 1. Leopold Wa lford (ZI Limited v. Unlfn:1,;ht jSCZ Juda;ment No. 223ofl985). 2. Lllka.• u Propertiu Limited V. African Bank.inc Cnrpnratlnn Limited (SCZ Appul No. 5 of 2023). 3 . Thom.son Phlrl v. Tnyota Za mbia. Limited (Appe al No. 31 / 2022). Leqis lationre fe ,nrdto: 1. Hi&h Court Rulea , Chapte r 27 nf the Lawa of Zambia. 2. The Rulu of the Supn:m e Court 1999 Editinn . 3. Statutorylnatnom e ntNo.27of2012 . 4. Sta tutorylnatnom e ntNo. 58of2020. I. INTRODUCTION This is a ruling on an application for an order to set aside the writ of summons and dismiss the action for irregularity . The applicationiamadepursuantto0rder7rule I (l)(a)ofthe High Court Rules as amended by Statutory Instrument No . 27 of 2012,0rder6 rulel(ll (d)oftheHighCourtRulesasamended by Statutory Instrument No 58of2020,0rdcr82rule2and Order 2 rule 2 of the Rules of the Supreme Court 1999 edition 2 . l H AND 2 ~D DEFENDANT'S AFFIDAVIT JN SUPPORT The affidavit in support was d eposed by EMMANUEL BWALYA 2.2 'rhcdcpon entdcposedthatthePlaintifJinstitutedproceedings on 16"' May, 2025, by way of writ of summons whcr-e he observed the following irregularities: physical,postalandelectronicaddress; summon s has no endorsement of the particulars of the allegeddefamationpublication;and c. Aspartof theoriginatingproccss,thePlaintilJ didnotfileany letter of d emand which was duly acknowledged by thc 1~ Defendant nor did he file an affidavit attesting service of the The deponent believed that the Plaintifrs en t ire action was iTTegularandimproperlybeforeth eCourt 3. PLAINTIFF'S AFFIDAVIT IN OPPOSITION The affidavit in opposition was deposed by WILLIAM PHIRI 3.2 The deponen t affinncd to n ot endor s ing the addres~ on the on th e writ of summons but a d ded that the omissions "'"re 3.3 The deponent denied that he did not endorse the particu lars of t he defamatio,1 as the same was produced in paragraph 5 of the state ment of claim and th e implication of the article had been explain ed inparagra p h 7 In relation to the letter of demand, the deponent explained that the I" Defendant was an employe e of the 2 nd Defe ndant and waa sued in that capacity with the letter of demand to him duly served and acknowledged by h is emp loyers as required. He produced a copy of a PACRA print out that was marked as 3.5 That there was n o n eed for th e l " Defe ndant to personally acknowlcdgereceiptof theletterofdcmand 4. l OT AND 2~P DEFENDANT'S AFFIDAVIT IN REPLY The I" and 2"" Defendant's Reply was dcpo~cd by EMMANUEL The depon ent alleged that the omission on the writ of summons was prejudicial to th e De fendants and that the Plaintiff had n ot taken out any application to amend the court p rocess Additionally, the De fendants had already taken steps to set aside t h e writ for irregularity and h ad incurred costs to that 4 .3 Th e d eponent clarified th at it was the writ of summons and not particu]ar,cofthcallcgcddefamatoryartideasrequiredbylaw The deponent further deposed that it was mandatory for the Defe ndant personally which was required to be duly ackn owledged by the\"' Defendant. ln the absence of such acknowledgement, the Plaintiff was required to file writ of summon s together ,,,ith a n affidavit explaining the The deponent believed that the Plu intilfs entire action was irregular and improperly before Court and that this Court had beenrobbedofth ejurisdictiontocntcrta inthesame The application was heard on 14" August, 2025, where learned counsel Mr. W. Phiri a n d Mr. E. Sakala from Messrs. Miyanda Williams Legal Practitioners and Mr. B . Hantumbu from Messrs Mul"7~> Mwiimbu & Company were present on behalf of the Plaintiff. Learne d coun sel Mr. E. B . Kaluba mid Mr. 0. Samba from Messrs . Emmanuel and Oncsimus Legal Practitioners were pttsent on behalf of the l • and 2 "" Defe ndant. Learned counsel Mr. G. C. Ma!ipilo from Messrs. Nchito and Nchito was pttaent Mr. Kaluba ttlied on the affidavit in suppon, affidavit in uply andakeletonargurnentafiledintoCoun. endorsedwiththePlaintifrs physica!,po s talandelectronic address as required by Order 7 Rule 1(1) la) of the High Coun Rules a s ame nded by Statutory Instrument No. 27 of 2012, counselcitedth e saidprovisionwhichreadsasfollows ~ 111) The advocate of • plalntlfT s ulna:hy sn advocate s ball endorse upon the writ or s ummons. (a) Phyaics l , postal and electronic a ddress or the plaintiff. (b) His own n a me or firm and his own place of bus in ess and the postal, physical a nd electronic 5.4 Mr. Kaluba argued that from the foregoing, where a Plaintiff suedthroughanadvocate,thewritofsummonamustbearthe addre uforthe Plaintiffhim selfas we\laathatofthePlaintifrs Advocates . This position was settled by the Supreme Court in the case of Leopold Wa lford (ZI Limited y Unlfreight 111 where r e quhea ,notonlythattheaddress ofthe plalntlfl"a advoca t e• • hall b e e ndorM d on the w rit, but a lso that the a ddress or the plaintiff • h a ll • ;milarly b e 5 .5 The relevant part of the Order reads as folluw$ " l(llThe•o llcltor of the plalntlff •ulnr; by ■ollcitor • hall e ndoac upon the writ of aummon•- (alTheaddress ofthe Plalnt lfJ; (b)Hia own name or firm a nd hia o"'n pla c e of bUA!neHandthe po• taladdru• thereof; He submitted that as could be seen from what had been set out abovc, itwasnccessaryforthePlaintill"ssddressaswe llasthat mandatory requirement In th e present case it was indisputable that the writ of indisputably irregular 5 .1 0 On the second ground of objection wh ich was that the writ of summonswas not e ndorsedwiththe particulars of the alleged defamatory publication as r,:qu ired by Order 82 Rule 2 of the Rules of the Supreme Coun 1999 Edition, coune,cl al so repro<lucedthesaidOrde rwhich readsfollows: Before a writ In an action for libel is iu ued lt must b e indorsed with a •tate m e nt giving aufficlent particulars of the publication• in reapect of w hlcb the action la brought to enable them to be MOrder 82/2/2 - Sufficient particulars or the publication: ThewordMpubllcatlon"la uaedhere In the aenae or the Mpubllahed document." complained or. The former o.3 r.9 (from which the rule ia takenl amended and then preacrlbed form or lndorsme nt on the writ ~the plaintiff'• claim is £or d a mages for libel" by requiring it to Identify th e document complained of." 5.11 Mr. Kalubasubmittcd thatitwasclea rfrom theforegoingthat it was not sufficient to just indicate on the writ of $Ummons that itwa$anactionforlibel,thewritmustalsoidentifythealleged defamatory publication by givin g sufficient particulars of the same. lnthepresentmatter,thewritwasonlyendorsedwith theP!aintiffsclaimsandnottheallegeddefamatorypublication 5.12 On the last point of objection, Mr. Ka. Juba argued that there was no lette r of d emand duly acknowledged by the l " Defendant or an affidavit of service attesting to the scrv:itt of the letter of 5 . 13 He supported his a rgument "~th reference to Order 6 rule 1{1) of th e High Court Rul es as amended by Statutory Instrument No . 58of2020wh ichprovidesthat "1(11 Except aa otherwise provided by any writte n law• or these Rule •, a n a ction In the High Court s hall b e comme nce d, In writing or e lectronically by writ of aummon■ endorsed and a ccompanied by- (a)A , tate m e n t ofclalm; (bJLl■ tandde•crlptlonofdocumentatobe reliedon attrlal; (c)Lllt or wltneuu to b e e a lle d by the pla intiff a t tria l; a nd (d)Le tte r of d e m a nd who.e r e c e ipt s hall b e acknowle dged by the Ddendant or an a ffidavit of aervlce atteatlng to the service of the lette r of d e mand, which s hall ■e t out the cla im a nd circumstance • urrounding the cla im In detail. (2) A w rit of s ummons w hich i• not accompa nie d by the docum e nt■ unde r lllb-rule Ill , h a ll 11ot b e a cce pte d" . 5.14 Counsel submitted that the law required that at the lime of commencing an action the Pla intiff must file amon g other things.acopyoftheletterofdemandwh ichwasserverlon the Dcfondant prior to commencement of the matter and that the letterofdemand h adtobeackn owlcdgedbytheDefendant . That in a n eventthatit wa snotacknowledgedbytheDefendant,the Plain t iffhad to filean affidavitattesting to theservice 5.15 Reliance wa s pla ced on the case of Lub■u Propertie• LJ,nlted v. African B•nld11J Co..-po.-.t1011 Lhrdted ta1 where the Supreme Courtpronounceditselfbystatingth at "The pro ■erlptlo11•pln■ taeeepta11eeofthe proceH that 011>lts 1ome or the documents that ■ ho1,1ld aeeomp■ ny the writ of ■1,1mmon• Implicate■ the Court'• j1,1rl.■ dietlon to entertain an action commenced wit hout eonfonnity with the fonn now prescribed by Order VI. Subsection 2 or the Order leave no doubt that s uch action will b e di■counte n■need by the Court■. It matters not th■ t the re a;l.■ try ■ taff have aeeepted the proeeu. Sulneetion 4 or Order VI reveal• that a ll the 11.■ ted document ■, lncludlna; the letten or demand are to be ■tamped. On th!.■ vie w, the •r&ument that ia ■ulna; a letter or demand to some or the d efendant• i• ■ufflclent compliance with the rule collap■ e ■• Thi■ I• on account of the requirement to inform e•ch and every defendant of the claim •plnst them, thereby dfordinJ them an opport1,1nlty to decide to ■etUe thematter,ortolltlptetheclalm, In the aum, the rnpondent waa require d to ae rve a letter of demand on e a ch and eV<:ry defendant befon, commencing the action. The falltue to aerve a letter od demand on the a ppellant waa fundamental a nd fatal omission. It undermined the Intention be hind order VI Ruic• 1, 2 and 4 •• a mende d . The action waa lmprope dybetorc the court, andwaa bound to 5.16 Mr. Kaluba emphasized that it was cl ear that every writ of summons must be a ccompanied with all documents pre""ribed under0rder6 rule 111) and an omission of any s ingle document went to the jurisdiction of the Court and it WB.!I fatal. individually served with the letter of demand. In the present casc,the P!aintiffdidnotservethe l "' Defendantwiththelctter through an employee of the 2"'1 Defendant 5. 18 It was further submitted that alth ough the l " Defendant was an employee of the 200 Defendant, the J>< Defendant was supposedtobeindividuallyservedwithalctterofdcmandas guide d by the Supreme Cou rt. That the service on the 2'"' 5.19 That given the foregoing, the proceed ing" we re therefore irregularly and imp roperly before Court and that this Court had nojurisdictiontoentertainthesame 5.20 Mr. Malipilo adopted the I"' and 2"" Defendant's submissions regarding the application made. S.21 In opposition and in response to the first ground. Mr. Phiri submitled that wh ile there may have been a technical non compliance with rule l(ll(a) of Order 7 of the High Court Rules a samendedhyS.l. 27of2012,suchomiuionwasnotfatalto the proceedingstojustifysetting a sidethewritofsummon sin 5.22 Reference was made to the case of Leopold Walford Zambia Limited wh er<, the Supreme Court had this to say "It I• necea Hry ror the Plah•Uff'a • ddresa, u well thattheorhlaadvoeate,toheendoraedonthewrlt. There haabeen • nll.lternatlvear(Umentputfonrrard hy Mr. Kawanambuh•, n•mely, that non-compliance with O. VII r (1) !•) la not fatal beeau« the ru le ia merely reJulatory or directory. In accepting thla arcument, we wlah to a dd that, when, then, ha• been a breach or rerulatory rule, ■ uch breach will not always be rat.al u much will depend upon the nature or the bruch a nd the at.ace or the proceeding■ reached. Thia therefore mean• tha t , a• a ce n e..al nde, brea ch ofa reculatory rule la curable. " 5.23 Mr. Phiri submitted that the omission to endorse the Plaintiffs address was an irregularity that was curable at the discretion 5.24 fn relation to the second ground of objection of not endorsing th e particulars of th e defamation on the writ of summons, Mr Phirirefe rrcdtotheexplanatorynotesof0rder82 Rule 2(21 of the Rules to th e Supre me Court 1999 Edition that explains the meaningofsufficientparticulars.ltprovidesthal: "The word " puhllcatlona" la uaed here In the ae nae of the " publlahed document■" complained of. The tormer 0.3 , r9(trom which thi• rule la t a k e n) a m e nde d the t h en prucrlhe d form otindoram e nt on writ. " The Plaintiff'• claim la for damage• for llbel" by re quiring it to Identify the d ocument complained defamatory words was for the purposes of identification of the d efamatoryassertions. !nthe proceedings beforetheCourt,the Plaintiffhadclear!yindicatcdinparagraphSofthestatement of claim that the entire article published by the Defendants was defamatory and the endorsement on the writ was to that effect 5.26 On the as pe,:,t or the letter demand to the I " Defendant not being acknowledged, Mr. Phiri s ubmitted that the re was no n eed for the 1• Defendant to personally acknowledge the letter of demand as the same was acknowledged by hi s employer i.e. the 6. DEC ISION or JUE COURT 6 . 1 l have carefully considered the parties' affidavit evidence and submissions here in and I am indebted to them for being 6.2 This is a n.iling on an application for an order to set aside the writ of s ummons and dismiss the action for irregularity. Th e application is made pursuant to Order VII Rule I 11) {•J of the Hl&h Court Rulea • • a mended by Statutory Instrument No. 27 of 2012, Order VI Rulel(l) (di ofthe Hla;h Court Rules u ame nde d by Statutory Instrume nt No. 5 8 of 2020, Order 8:2 rule :2 and Orde r 2 rule :2 of the Rule■ of the Supreme Court 6 .3 The I" and 2"" De fendants have raised three grounds of objectionregardingtheoriginatingprocess llledbythePlaintiff. These are that: (ii The writ of summons has no endorseme nt of the P1aintifrs p0staland e lectronicaddr<,u (iiJThePlainlifrs action was an action for libel and the writ of summons has no e ndorsement of the particulars or the alleg,:,ddefamatorypubHcation (iii)Aspart of the originating process, the Plaintiff did not file any letter of demand which was duly acknowledged by the i "' Oefendantnordid he file an affidavit of attesting to the 6.4 l shall first consider the last ground whether the letter of de mand was served on the 1"' Defendant and acknowledged a s requiredin0rder6rule !(l)(d)ofStatutorylnstrumentNo.58 servethe letterofdemandonthe! a< Defendantisfatalasitgoes lothe jurisdictionofthis Court lt isclearuponafairreadingof0rde r6rul e l(l)(d)thatthe one of th e docume ntsthat s houldacx:ompanytheendon<edwritof should be acknowledged by the Defendant or an affidavit of se rvice attestingtoth eservice oftheletterofdemand 6.6 As rightly pointe d out by counsel for the ! a< and 2"" Defendants , the Supre m e Court in the case of Luka.n; Propitrtfe.1 Limlt<td which is a precedent setting decision clearly explicated the import of the said Order and the effect of non-compliance 6 .7 The Supreme Court s tate d that the proscription or prohibition agains t acceptance of the process that omits some of the documents that s hould accompany the writ of summon s implicates the Court's jurisdiction to ente rtain an action comme nced without conformity with the form now prescribed by 6.8 The Supreme Court further stated that each and every Defe ndant must be served with the letter of demand disclosing the claims against thembefore commencingtheaction. Failure behind0rder6rules l ,2,and4. 6 9 The Court of Appeal in the case of Thomson Phlri v , Toyota Zambia Limited !,i al so s tated that it was patent that a letter of d emandwasone ofthedocume ntstobeattachedtothewritof summons. This was in orde r to help the Court ascertain what the action in s tituted e ncompassed as well as alerted the Defendant what action he would face if the matter ended up in 6. JO!n the present case, what I havediscemcd from\" and2"" Defendant's affidavit in support as well as the Plaintiff's affidavit in opposition i~ that the I " Ddendant wru, not served with the 6.11 The position taken by the Defendants is that the omission to serve the letter of demand is fatal to the Plaintiff's case. The Defendant on the other hand contends that it was not necessary e mployer, the 2"" Defendant had been served through the 6.12 On the authority of the Lukasu Properties U m ludcase , the Plaintiffwassupposedtopersonallyservethe l"Defendantwith the le tter of demand and the same was supposed to be duly acknowle dged. In the event that it was not acknowledged , the Plaintiffwa:,supposedtofileanaffidavitattestingtotheservice 6.13 Therefore, given the fact that the I" Defendant was not served with the letter of demand, I find that the failure or omiasion to do so by the Plaintiff was fundamental and fatal as it undermined the intention behind0rder6rule l, 2,and4. 7. C ONCLUSION 7.1 Theupshotofthisfindingisthalthereismeritintheapplication by the l "' and 2"" [k,fondants that the writ of summons filed by the Plainti1Ti9 incompetently before thi9 Court as no lette r of demand was p ersonally served on I.h e ]" Defendant and duly acknowledged and there was no affidavit of service attesting to the service of t h e letter of demand on the 1"' Defendant in 7 .2 Oiventhe foregoing,lae<:ordinglyse tasidethewritofsummons for incompete nce and the Plaintiff's entire action is hereby dismisscdforirreb•ttlarityandwantofjurisdiction Jn view of what I have stated above, it is pointless to consider the other two grounds as I do not have the jurisdiction to adj udicate upon this matter which was commenced outside the agree ment. DELIVERED AT LUSAKA THIS 11™ DAY OF DECEMBER, 2025