Colonel Paul Chikuswe v Lt Colonel Sianga (Appeal 18 of 2002) [2003] ZMSC 16 (14 May 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO 18/2002 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: COLONEL PAUL CHIKUSWE CHILANGA IsT APPELLANT S M SWETA (sued in his capacity as Secretary to the Committee on sale of Government Pool Houses and Flats) ATTORNEY-GENERAL AND rd APPELLANT R T) ‘I•PELLANT LT. COLONEL PROGRESS NAMENDA SIANGA RESPONDENT CORAM: LEWANIKA, DCJ., SAKALA, MAMBILIMA HS ON 14th May, 2002 and 14th May. 2003. For the ld Appellant: (cid:9) For the 2nd & rd Appellants: M. HAIMBE, Senior State Advocate For the Respondent: (cid:9) R. MA1NZA of Mainza & Co. D. 0. SAKALA of Mabutwe & Associates JUDGMENT LEWANIICA, DCJ., delivered the judgment of the court. When we heard this appeal, we dismissed it with costs ad said we would give our reasons later and we now do so. This appeal arises from a Ruling made by a Judge of the High Court on a preliminary issue raised by counsel for the Appellant. Counsel for the Armellant had applied to set aside the writ of summons herein for irregularity in that it was not endorsed with a claim contrary to the provisions of Order 6 Rule 2 of the Rules of the Supreme Court. The argument advanced by counsel for the Appellant is that a writ of summons must stand on its own and be endorsed by a statement of claim setting out the reliefs sought by the Plaintiff It is common cause that the writ of summons in these proceedings was not endorsed with a claim but was accompanied by a full statement of claim setting out the Respondent's claim. We drew counsel's attention to Order 6 Rule 1(1) of the High Court Rules as amended by Statutory Instrument No. 71 of 1997 which provides as follows:- Order VI 1(1) "Except for petitions under the Constitution and Matrimonial Causes Acts and applications for writs of habeo.rcotpus, every action in the court shall notwithstanding the provisions of any other written law, be commenced by a writ of summons endorsed with or accompanied by a fitll statement of claim." In this judgment therefore a litigant has a choice whether to endorse his claim on the actual writ or annex to it a full statement of claim. The learned Judge in the court below was on firm ground in refusing to sem aside the writ of summons and it was for this reaspn th (cid:9) dismissed the ppeal • D. M. Lewanika DEPUTY CHIEF JUSTICE • EL. Sakala SUPREME COURT JUDGE I. M. C. Mambilima SUPREME COURT JUDGE 2