Reuben Kabala v Gustave Buleti (Sued in capacity as the Administrator of the Late Happiness Emmanuella Buleti) (2025/HP/0092) [2025] ZMHC 101 (13 November 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: REUBEN KABALA AND 2025/HP/0092 REGISTRY 8 80X50067, PLAINTIFF GUSTAVE BWALYA BULETI DEFENDANT Sued in capacity as the Administrator of the Late HAPPINESS EMMANUELLA BULETI. BEFORE HON. JUSTICE E. P. MWIKISA For the Plaintiff' Mr. C. P. Chilambwe- Messrs Chipoma P. Chilambwe Legal Practitioners. For the Defendant: Mr. A. K. Phiri- Messrs Antho RULi G Cases referred to: 1. Mumba (suing on behalf of the Kalindawalo Mndik:ula Royal Family) vs. Nsangu and Others Appeal No. 31 of 2021. 2. Lukasu Properties Limited vs. African Banking Corporation Zambia Appeal No. 5 of 2023. 3. Thomson Phiri vs. Toyota Zambia Limited Appeal No. 31 of 2022. 4. African Banking Corporation vs. Mubende Country Lodge Appeal No 116 of 5. Philip Mutantika and Mulyata Sheal S vs. enneth Chipungu SCZ judgment No. 13 o/2014 Rl 6. Gift Luyako Chilombo v Biton Manje Hamel . ke Appeal No. 2 of 2016 7. Leopold Walford (Z) Limited v Unifreight 191 5 ZR 203 8. Gabriel Muyinda vs. Menox Property Merch f nts 2020/ HPC/ 0551 9. Access Bank Zambia Limited vs. Attorney neral CCZ judgment No. 21 of Legislation referred to: 1. High Court Act, Chapter 27 of the Laws of mbia 2. Rules of the Supreme Court, Whitebook, 19 ' 9 Edition. 1. Introduction. 1.1 On 27th February 2025 , the efendant filed into Court summons to determine a mater on point of law. The summons was pursuant to Ord r 14A and Order 33 Rule 3 of the Rules of the Supreme Court of England, 1999 edition as read together with Order 6 Rule 1 of the High Court Rules , Chapter 27 of the Laws of Zambia. 1.2 The preliminary issues raised for determination are the following; a) Whether in the absence of a letter of demand for the Plaintiff's claim, the Writ of Summons herein is competently before the Court; and b) Consequently, whether the Writ should be set aside and or this action be dismissed with costs. 1.3 The summons to determine m atter on a point of law was accompanied by an affidavit in support and skeleton arguments of an even date. R2 1.4 The Plaintiff contested the appli ation and filed an affidavit in opposition and skeleton ar ments on 5 th May, 2025. 2. Background 2.1 The Plaintiff commenced actio against the Defendant on 24th January, 2025, by way of Writ of Summons and a Defendants are as follows; a) Outstanding sum of ZMW2 7,000.00 b) Interest at commercial 1ank lending rate from March 2021 to the date of ayment; c) Damages for the breach of oan contract; d) Alternatively, an order for the sale of titled property pledged as security by the Late Emmanuella Buleti known as Stand No. LUSAK/LN_l8305/3 for the Plaintiff to recover there frbm the outstanding sum of ZMW277,000.00 plus damages and the aforesaid interest; e) Any other reliefs that the Court may deem fit; and f) Costs of and incidental to this action. 3. The Affidavit in Support 3.1 It was deposed by one Anthony Khetani . Phiri, the Counsel seized with conduct· of this matter that o~ 24th January . . 2024, the Plaintiff commenced the action herein. That the Plaintiff has not filed into Court a letter of demand to the R3 Defendant for his claims. hus, the action 1s not competently before Court. 4. Skeleton Arguments in suppo t of the application. 4.1 Counsel cited both Order 14A ule 1 and Order 33 Rule 3 of the Rules of the Supreml Court of England, 1999 edition and argued that the urpose of an application under the above-mentioned law is to determine an action without a full trial as affirmed in the case of Mumba (suing on behalf of the Kalindawalo Mndikula Royal Family) vs. Nsangu and Others1 . Thus, it was submitted that the action is suitable for determination on a point of law without the necessity for a full trial. 4.2 Counsel cited Order 6 of the High Court Rules, Chapter 27 of the Laws of Zambia and argued that it is imperative for . . a letter of demand setting out the claim and circumstances of the claim in full detail to be filed together with a Writ of Summons. To buttress this position, the case of Lukasu Properties Limited vs. Afric n Banking Corporation Zambia2 was relied upon. R4 4 .3 Furthermore, Counsel argued hat the letter of demand that was filed together with the Writ of Summons, did not make mention the claim for MW277,000.00 thus, the action is not properly befor Court and should be dismissed. 5. Affidavit in Opposition 5.1 It was deposed by one Hope Ka apula, Legal Assistant for the Law Firm representing the laintiff. 5 .2 It deposed that on 21 st Nove ber, 2024, the Plaintiff through 'his Advocate wrote a letter of demand to the Defendant in which they clearly demanded for the sum of ZMW530, 000.00 as the total sum owed to the Plaintiff constituting-the borrowed sum, plus interest among other reliefs. A copy of the demand letter was exhibited and marked "HKl ". 5.3 That in a letter dated 29th November, 2024, the Defendant through its lawyers responded to the demand letter dated 21 st November, 2024, in which he acknowledged a debt of ZMW277,000.00, as an outst ding balance from the . RS borrowed sum of ZMW417 ,00 .00. This correspondence was exhibited and marked as " K2" . 5.4 Furthermore, that due to the Defendant's admission of owing the Plaintiff the sum ofZ W277,000.00 and after a series of correspondences, th I Plaintiff commenced the action herein and claimed fort e sum of ZMW277,000.00 which debt has been acknow edged by the Defendant. Thus, it was argued that the requirement to issue a demand letter before commenc ment of an action at the High Court ,vas dully complied ·th. 6. Skeleton arguments in suppo t of the Opposition. 6.1 Order 6 Rule 1 of the High Cou t rules, Chapter 27 of the Laws of Zambia 'was cited and Counsel argued that the Plaintiff did satisfy the ·requir ment of the law above- m entioned. It was argued that the said letter of d emand reveals the detailed circumstan es leading to the claim for sale of titled property as security by the late Emmanuella Buleti as Stand No. payment of the outstanding lo sum as well as interests R6 on the said sum. That from a 1 tter dated 29th November, 2024, the Defendant herein acknowledged owing a reduced sum of ZMW277,000.0 as outstanding principal debt. 6.2 It was argued that in acco dance with the case of Thomson Phiri vs. Toyota Zambia Limited3 , the demand letter dated 24th Nov mber, 2024, is sufficient proof that the cause of actio is well known by the Defendant and the Defendant was well alerted by the Plaintiff that non-compliance of the demand letter, the Plaintiff would resort to commencing an action before him. 6.3 Furthermore, it was argued that the late Happiness Emmanuella Buleti, freely and voluntarily executed a contract of sale, pledging the subject property as collateral clearly intending that the same should be sold in default of payment and that it is factual that the Defendant has defaulted since 2021, to date. I 6.4 It was argued that the Defendant's application should be dismissed with costs. R7 7. Hearing. 7.1 The application was heard o 17th June, 2025, both counsel for the Plaintiff and De endant were present. 7.2 Counsel for the Defendant Mr. Phiri, informed the Court that their reliance is placed o the documents filed in support of the application herein. Counsel briefly augmented that the action bed smissed on the basis that the Plaintiff failed to file a dem d letter together with the Writ of S1:1mmons. 7.3 Mr. Chilambwe, Counsel for e Plaintiff informed the Court that his reliance is placed on the documents filed in opposition to the application he ein. I shall not recast the oral submissions as they have ready been submitted in the skeleton arguments. 8. Consideration and Determina ion. 8.1 I have considered all the eviden e and the submissions by all parties. 8.2 It is trite that Order 33 Rule 3 o the Rules of the Supreme Court of England provides for determination of a R8 preliminary point of law at an stage of the proceedings, • including before trial and provi I es as follows ; "The Court may order any qu stion or issue arising in a cause or matter, whether o fact or law or partly of fact and partly of law, an whether raised by the pleadings or otherwise, to b tried before, at or after the trial of the cause or matter, and may give directions as to the manner n which the question or issue shall be stated" 8 .3 The supreme · court in se of African Banking Corporation vs. Mubende Co ntry Lodge 4 stated that Order 33 Rule 3 should be i voked together with the mandatory requirements of Order 14A of the Rules of the Supreme Court of England. 8.4 It is comn1on cause that this case was commenced by way of Writ of Summons. The Defendant entered appearance and filed defence on 25th February, 2025, thus, adhering to the procedural requirements as guided by the case cited above. Thus,· the summons to determine matter on point of law is properly before this Court. 8 .5 The first issue-for consideration is whether the Plaintiffs action is· incompetent for failure to adhere to Order 6 Rule R9 l(d) of the High Court Rules Cap 27 of the Laws of Zambia, with regards to the r quirements of a demand letter. 8.6 Order 6 Rule l(d) of the High I ourt Rules, Chapter 27 of the Laws of Zambia, as amendecl by Statutory Instrument No.58, of.2020, provides for the ommencement of matters in the High Court as follows :- "Except as otherwise provid d by any written law or these Rules, an action in t~e High Court shall be commenced, in writing or eTlectronically by writ of summons endorsed and acco panied by- (a) a stateme·nt of claim; · (b) list and description of documents to be relied on at trial; · (c) list of witnesses to be calle by the plaintiff at trial; and (d) shall be acknowledged by the defen ant or ·. an affidavit of service attesting to the servic of the letter of demand, which shall set out the claim and circumstances letter of demand w ose receipt · su.rroun~ing the claim fa dett l:''. . . . . 8.7 It 1s clear from the foregoing pr vision that a Plaintiff who commences an action by way o a Writ of-Summons must file a letter of demand together ith the Writ of Summons. This position was confirmed in he case of Thon1son Phiri RlO vs. Toyota Zambia Limitedl0 1 cited by the Plaintiff, wherein it was stated as follows; "It is patent that in Order 6 ule I (d) of the HCRs, a letter of demand must be on of the documents to be attached to the Writ of Sum ons. This is in order to help the Court ascertain w t the action instituted encompasses as well as al rt the Defendant what action he would face if the atter ends up in court." 8.8 Sub rule (2) of the above-menti ed Order goes on to state that; "A writ of summons which is not accompanied by the documents -under sub-rule (1) shall not be accepted." 8.9 As guided by the law above- entioned, it imposes a penalty for breach in that if a Writ of Summons is not accompanied by the documen s highlighted under sub rule (1) , then the Writ of Summ , ns shall not be accepted. 8. 10 I am of the considered view t at the above provision is couched in mandatory terms a it uses ·the word "shall'. This in my considered view m ans that it is not in the discretion of this Court to eith r accept or not accept a Writ of Summons not accom anied by the documents mentioned therein Order 6 (1), but it is mandatory. This position is fortified by the · case of Philip Mutantika and Rll Mulyata Sheal S vs. Kennet Chipungu5 wherein the Supreme Court stated; "Both provisions are couche in a mandatory manner as each uses the word 'sh , ll'. The two Rules are therefore not regulatory as t · ey do not at all give the Court discretionary power." 8.11 I am further guided by the case of Gift Luyako Chilombo v Bi ton Manje Hameleke 6 wherein the Constitutional Court held the view that; "In its ordinary usage, "shal " is a word of command and is .normally given a com ulsory meaning because it is intended to show obligation and is generally mandatory." 8.12 I am also ?live to the general p sition that the High Court Rules are regulatory, and the S preme Court has guided in several cases that a breac of a regulatory rule is curable. One ·such example is t e holding of the Supreme ' ' Court in the case of Leopol Walford (Z) Limited v Unifreight 7 wherein the Court . tated that: "There has been an alternati~ argument put forward by Mr. Kawanambulu, name y, that non-compliance with Order VII, r. (l)Rl4 (a) is n tfatal because the rule is merely· regulatory or dire tory. In accepting this R12 argument, we wish to add that, where there has been a breach of a regulatory rul e, such breach will not always be fatal, as much wil depend upon the nature of the breach and the st ge of the proceedings reached. This, therefore, means that, as a general rule, breach of a regulatory tu. le is curable." 8.1 3 In t h e cas e of Gabriel Muyinda vs. Menox Property Merchants8 Hon ou rable La dy ustice Dr. W. S. Mwenda h a d this to s ay con eerning t e n eed for a Plain tiff to comply wit h Order 6 1 ( d) of e High Court Rules and whether the s ame was fatal; "It seems to me that the n w 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 earliestp ssible time, to allow the defendant to prepare for his ase as well. In my view, therefore, a breach that wo ld warrant a cure to be ordered would be one that t uches, for instance, on the substance and form of th documents filed before a court, such as was the ca e in Leopold Walford (Z) Limited vs. Unifreight whe~f the plaintiff did not endorse the plaintiffs addres on the Writ as required by Order 7, Rule (1) (a) of th High . Court Rules. The regards the breach in same would not be the case casu." 8.14 Similarly, I am of the con sider e view tha t failure to file a letter of d em and togeth er with the originating process is more of a b r each th at would arrant a d ismissal of a R13 matter. In this particular case owever, there is a letter of demand on record filed on 24th anuary, 2025, and failure to not mention the sum on cl · of ZMK277,000.00 is not fatal as it can be amended. Th. s position was made very clear by the Supreme Court in the case of Access Bank Zambia Limited vs. Attorney eneral9 , where the court stated that; rules are an i tegral part of the "Court administration of. justice i this jurisdiction. The importance of court rul s was pre-eminently pronounced in the case of NF Mining PLC. vs. Techro Zambia Limited ( 16), where the Supreme Court stated that rules of court are intended to assist in the proper and orderly administration justice." 8 . 15 Premised on the foregoing, a p rusal of the record shows that the Plaintiff adhered to Or er 6 Rule 1 (d) as there is a demand letter dated 21 st N ove ber 2024. However, what is in contention is the ·conten of the de mand letter, as mentioned above. The Defend t argues that what was demanded for in the letter of de , and dated 21 st November, 2024, does not make mention f the claims stated in the R14 Writ of Summons, thus, it is s bmitted by the Defendant that the Plaintiff has not compl ed with Order 6 Rule l(d) . 8 .16 On the other hand, the Plain ff argues that there were correspondences between the imself and the Defendant, where the Defendant admitted wing the Plaintiff the sum claimed in the Writ of Summon . 8.17 A perusal of the corresponden 1 e between the Defendant and the Plaintiff specifically the etter dated 29th November 2024, shows that the Defend t was notified about the claims in the Writ of Summons. I am of the considered view that the law is clear concerning serving or issuing a demand letter before the comm ncement of an action. The rationale behind making such a law is to bring to the Defendant's attention before a atter is commenced, the substance of the Plaintiffs clai s against the Defendant and to let the Defendant know at if he does not meet the Plaintiff's demands, the Plainti f would commence court proceedings against the Defe dant based on the said claims. RlS 9. 9.1 Conclusion Premised on the foregoing, find no merit in the Defendant's application and it is hereby dismissed. I order that the matter proceed to trial or determination 9 .2 Costs to the Plaintiff to be taxe in default of agreement. Leave to appeal is hereby grant d . !Gm Dated at Lusaka this ................... day of ....................... ,.,.2025 JS~ . ELITA PHIRI MWIKISA HIGH COURT JUDGE R16