Anthony Yufuf Filamba v Asphalt Roads (Z) Limited (APPEAL NO. 190/2005) [2007] ZMSC 195 (23 February 2007)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 190/2005 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANTHONY YUSUF FILAMBA Appellant And ASPHALT ROADS (Z) LIMITED Respondent Coram: Chirwa and Chitengi, J JS. Kabalata, AJS On 29th J u ne, 2 006 an d 23rd February, 2 007 For the Appellant . . Mr. Wright of Messr s Wright Chambers Forthe Respondents : Mrs. Qu adri of Messrs S olly Patel, Hamir & Lawren ce JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases r eferred to: - l. Marshall V LPTB (1936) 3 ALLER 83 Statute referred t o:- l. High Court Rules Chapter 27 of the Laws of Zambia Order VI 1(1) 1997 Edition and Order VI l(l) 1998 Edition Works r eferred t o: - l . Halsburys Laws of England 4 th Edition Volume 36 Paragraph 4 - 12 - In this judgment, we shall refer to the appellant as the Plaintiff and the Respondent as the Defendant, which were their designations in the High Court. The facts of this case can be briefly stated. On the lOtll September, 2004 the Plaintiff took a Writ of Summons out of the Principal Registry claiming from the Defendant certain sums of money and the Writ of Summons was accompanied by a Statement of Claim. Although the statement of claim explained the circumstances under which the amount claimed arose, the Writ of Summons itself did not. When the Defendant was served the process, he entered Conditional Appearance and subsequently took out a Summons to set aside Writ of Summons pursuant to Order 6 Rule 4 of the high Court Rules Chapter 27 of the Laws of Zambia. The ground on which the Defendant sought to set aside the Writ of Summons was that the Writ of Summons did not disclose any cause of action. The Plaintiff opposed the summons to set aside the Writ but the learned trial Judge in the Court below agreed with the Defendant and set aside the writ of summons. The learned trial Judge held that the writ of summons was not endorsed with a statement of claim or the relief or remedy sought. Further, the learned trial Judge held that apart from stating the various sums of money to be paid to the Plaintiff by the Defendant, the writ of summons did not disclose any cause of action. Furthermore, the learned trial Judge held the averments in the Statement of Claim did not cure the defects. Dissatisfied with the Ruling of the learned trial Judge in the Court below the Plaintiff now appeals to this Court. The Plaintiff advanced three grounds of appeal. But in the view we take of this case it is necessary to consider the first ground of appeal only because the success or failure of the first ground of appeal will determine the entire appeal. - J3 - The first ground of appeal is that the court below misdirected herself at law when she set aside the Writ if Summons on the basis that the Writ of Summons was not endorsed either with a "Statement of Claim'' or the "relief' .or "remedy" s ought. When we heard the appeal, there was no representation from the Defendant. There was no explanation as to why the Defendants did not attend. Accordingly, we decided to proceed with the hearing of the appeal. Mr. Wrights' submissions on ground one are that under Order 6 Rule 4 there is an option to either endorse the Writ of Summons with a statement of the nature of the claim or the relief or remedy required. Mr. Wright pointed out that in this case the Plaintiff is seeking the payment of sums of Kl00,800,000 and K7,000,000 with interest and costs. In the alternative Mr. Wright submitted that a defective endorsement could be cured by service of a proper statement of claim. As authority for this statement Mr. Wright cited the case of Marshall V LPTBf1J. Mr. Wright pointed out that under Order 6 Rule 1 a Writ of Summons must be filed together with the Statement of Claim. He said that in this case the Writ of Summons was accompanied by a full statement of Claim. We have carefully considered the Affidavit evidence that was before the learned trial Judge, the submissions of counsel and the Ruling appealed against. As we see it, the determination of this appeal turns on the interpretation of Order 6 Rule 1 of the High Court Rules which deals with commencement of proceedings. Order 6, like the other Orders, is not without history. It is common knowledge that before the High Court Rules were amended into their present form, civil litiga tion was lawyer - J4 - driven. Now civil litigation is Judge driven. The reason for this 1s to speed up the litigation process. In its original form, Order 6 Rule 1(1) read, leaving out what is not necessary: - "ORDER VI WRITS OF SUMMONS AND ORIGINATING PROCESS 1(1) Except ....................................... every action in the court shall . .. . . . . .. . .. . . . .. .. . . .. .. .. . .. .. .. . . .. . . be commenced by Writ of Summons endorsed with or accompanied by a full statement of claim"f1J. When litigation was made Judge driven, Order VI(l) was am.ended into its present form which reads: - "1(1) Except as otheru;ise provided by any written law or these Rules every action in the High Court shall be commenced by a Writ of Summons endorsed and accompanied by a full statement of claim. "f1J It is clear to us that before the current amendment, it was possible to file a Writ of summons without an endorsement on it as long as there was a full statement of claim attached to it. It was possible to state after the words for "The Plaintiff's claim is for" the words "see attached statement of claim." As framed the old Order VI Rule 1 ( 1) did not require that the Writ of Summons and statement of claim should be filed at the same time. But in its present form Order VI Rule 1(1) requires that the Writ of summons must be endorsed and accompanied by a full statement of claim. In other words, the endorsed Writ of Summons and the Statement of Claim must be filed together. In this particular case, the Writ of Summons was endorsed and filed together with the statement of claim. -15 - And the advocate for the Defendant deposed in his Affidavit in support of the Summons to set aside the Writ of Summons, that the Writ of Summons and the statement of claim were served together. But the complaint is that the endorsement on the Writ of Summons does not disclose the cause of action and consequently the Defendant is unable to defend the matter. As we have already said, the learned trial Judge set aside the Writ of Summons, principally on the ground that it did not disclose any cause of action. In arguing the first ground of appeal, Mr. Wright raised some ingenious arguments about the options open to the Plaintiff when endorsing the Writ of Summons. We find no force in these arguments. The endorsement on the Writ of Summons on its own does not say how the Defendant came to owe the Plaintiff the sum of money claimed by the Plaintiff. The only parts of Mr. Wright's submissions in which we find force are those which raise the question whether the full statement of claim does not cure the defect in the Wright of Summons. The learned trial Judge in her Ruling held that even the statement of claim does not cure the defect in the Writ of Summons. A Writ of summons and a statement of claim are pleadings in a case. The function of pleadings is to give a fair notice of the case which has to be met and to define the issues on which the Court will have to adjudicate in order to determine the matter in dispute between the parties. See Halsburys Laws of Englandl1l. The question arises, when read together do the Writ of Summons and the Statement of Claim not give a fair notice to the Defendant of the case to be met and define the issues? In our view, the answer is in the affirmative. The Writ of Summons states the amounts claimed while the Statement of Claim states the amount claimed and explains the circumstances under which the Defendant became liable to the Plaintiff in the sums of money - J6 - claimed. Rule VI I(l) requires that the endo_rsed Writ of Summons and a full statement of claim shall be filed together. And we have no doubt in our minds that it is the requirement of Order VI 1(1) that when the Defendant is served with a Writ of Summons accompanied by a full statement of claim, the Defendant must read the two documents together and not in isolation. The Defendant has no right under Order VI Rule 1(1) to choose to read the Writ of Summons only and ignore the accompanying full statement of claim. It was equally a misdirection on the part of the learned trial Judge to say that the full statement of claim did not cure the defect in the endorsement on the Writ of Summons. The Writ of Summons and full statement of claim read together clearly notified the Defendant the case he was to meet in Court. For these reasons we allow the appeal, reverse the Ruling of the learned trial Judge and direct that the trial proceeds before the learned trial Judge in accordance with the law. Costs will abide the outcome of the main action. . ......... ~ . . ! ................... . D. K. CHIRWA SUPREME COURT JUDGE ENGi ...... ..... ~ SUPREME COURT JUDGE AG/SUPREME COURT JUDGE BALATA