Automated Summary
Key Facts
The case centers on whether the Plaintiffs properly served the 2nd Defendant with a letter of demand prior to initiating litigation. The Plaintiffs claimed electronic service via email on 5th December 2024, evidenced by a read receipt. The 2nd Defendant denied receiving the demand letter, asserting he only became aware of the action on 6th March 2025. The Court determined that the affidavit of service submitted by the Plaintiffs, confirming email delivery, satisfied the procedural requirements under Order VI Rule 1(d) of the High Court (Amendment) Rules 2020, even without the defendant's explicit acknowledgment.
Issues
- The primary issue was whether the Plaintiffs complied with Order VI Rule 1(1)(d) of the High Court (Amendment) Rules, 2020, which mandates that a letter of demand be served on the defendant and its receipt acknowledged, or an affidavit of service be filed. The 2nd Defendant argued that he only received the letter of demand when he was served with the originating process on 6th March, 2025, and that this failure to serve it earlier rendered the action incompetent. The Plaintiffs countered that the letter was served electronically on 5th December, 2024, with read receipts confirming the 2nd Defendant's access. The court found that the Plaintiffs had indeed served the letter, as evidenced by the affidavit of service and the read receipts, and thus complied with the rule. The court dismissed the application to set aside the process.
- The court addressed whether the 2nd Defendant's denial of receiving the demand letter constituted misrepresentation or perjury. The Plaintiffs provided evidence of read receipts showing the 2nd Defendant accessed the email containing the letter. The 2nd Defendant claimed he never saw it, but the court found his denial to be unfounded, noting that he admitted receiving the email and that the same address was used for serving the originating process. The court dismissed his claim of non-receipt as devoid of merit.
- A secondary issue was whether the 2nd Defendant's application was properly moved under the correct legal provision. The Plaintiffs contended that the application should have been grounded in Order III Rule 2, which grants the court broad discretionary powers, rather than Order VI Rule 1(d), which outlines mandatory pre-action requirements. The court acknowledged that while Order VI Rule 1(d) does not explicitly allow setting aside the process, the application could still be entertained under Order III Rule 2. The court determined that the application was properly before it and that the 2nd Defendant had raised a valid issue affecting the action's competence.
Holdings
The Court dismissed the 2nd Defendant's application to set aside the writ of summons and statement of claim, finding that the Plaintiffs complied with Order VI Rule 1(1)(d) of the High Court (Amendment) Rules by filing an affidavit of service attesting to electronic service of the letter of demand. The Court held that the 2nd Defendant's denial of receipt was without merit, as he admitted receiving the email and had access to the communications. The application was deemed procedurally improper and lacked jurisdiction under the cited rule, though the Court retained discretion under Order III Rule 2 to address the issue.
Remedies
- Leave to appeal is hereby granted.
- Costs of and incidental to this application are awarded to the Plaintiffs against the 2nd Defendant, to be taxed in default of agreement.
- The 2nd Defendant's application for an Order setting aside the writ of summons and statement of claim and service thereof is devoid of merit and is hereby dismissed.
Legal Principles
- The court applied the principle of equitable estoppel, noting the 2nd Defendant's contradictory position regarding the receipt of the letter of demand. The Defendant acknowledged receiving emails but denied seeing the attached demand letter, which the court deemed inconsistent and an attempt to mislead.
- The court emphasized compliance with Order VI Rule 1(d) of the High Court (Amendment) Rules, 2020, which requires serving a letter of demand before initiating legal action. The plaintiffs submitted an affidavit of service attesting to electronic delivery, which the court accepted despite the Defendant's denial of receipt.
Precedent Name
- Zambia National Commercial Bank Plc v. Rachel Mudiyo Banda
- Lamise Trading Limited v. Kapsch Trafficom AG and Intelligent Mobility Solutions Limited
- Lukasu Properties Limited v. African Banking Corporation Zambia Limited
- Rose Gabekile Fakudze v. Bhekinkhosi Tsabedze and Lindiwe Tsabezi
- African Banking Corporation Zambia Limited v. Copper Harvest Foods Limited & Others
- Charles Mambwe and Others v. Mulungushi Investments Limited (In Liquidation and Mpelembe Properties Limited
- Thompson Phiri v. Toyota Zambia
- Rachel Lungu Saka v. Hilda Bwalya Chomba & Attorney General
- Brian Mundubile & 8 Others v. Miles Sampa
Cited Statute
- High Court Rules
- High Court (Amendment) Rules
Judge Name
Chilombo Bridget Maka
Passage Text
- I therefore, find no procedural irregularity in the issuance or service of the originating process. Accordingly, the 2nd Defendant's application for an Order setting aside the writ of summons and statement of claim and service thereof is devoid of merit and is hereby dismissed.
- Upon examining the exhibits annexed to the affidavit of service, I noted under the bundle marked "JC 1" that the 2nd Defendant was indeed among the recipients of the letters of demand by email. While the 2nd Defendant denies seeing the letter of demand, he admits receiving the email, thereby undermining his claim of non-receipt.
- The issue for determination by this Court is whether the Plaintiffs complied with Order VI Rule 1(1)(d) of the High Court (Amendment) Rules, 2020. ... I find that the Plaintiffs' action is properly before this Court.