Law Association of Zambia (LAZ) president Eddie Mwitwa has submitted to the Lusaka High court that there was nothing illegal or irregular about the manner in which the court process was served on Kabwe Central PF member of parliament Tutwa Ngulube.
This is the matter in which Mwitwa has sued Ngulube, seeking damages for libel and slander for accusing him of being used by UPND to fight political battles after LAZ petitioned the State for attempting to alter the Constitution of Zambia through Bill 10, 2019.
Ngulube had asked the court to stay execution of an order for leave by Mwitwa to serve him writ of summons and statement of claim by substituted service, pending his application to set aside the matter.
He argued that the manner in which the writ of summons was served on him was irregular and illegal and the same must be set aside for irregularity.
“On August 20, I received a phone call from one media house stating that I had been sued in my personal capacity by Mwitwa. A day later, I saw some correspondence circulating on social media and later on a copy of the Writ and statement of claim. I am aware that the said writ having being issued out of the principal registry in Lusaka ought to have been personally served on me or an adult member of my household and not any other premises,” Ngulube had stated.
But Steven Kaonga and Lumamba Mudenda of Theotis Mataka and Sampa Legal practitioners, have argued that the order for stay of execution of the order for leave to serve the originating process to Ngulube, had been overtaken by events.
This is according to an affidavit in opposition to the affidavit in support of summons for stay of the execution of order for leave to serve writ of summons and statement of claim by substituted service pending the application to set aside for irregularity filed on Tuesday.
Kaonga and Mudenda stated that the sequence of events were consistent with a party who was elusive or evading service and as such, the application for substituted service was made in good faith as precipitated by the sequence of events.
They further stated that prior to Mwitwa’s commencement of the main matter in action, his lawyers attempted to serve a letter of demand on Ngulube at his law firm, Tutwa Ngulube and Company, in Olympia on August 16, 2019.
The duo explained that employees received the letter after they spoke to Ngulube on phone but he refused to acknowledge receipt of the said letter.
Kaonga and Mudenda stated that the employees informed them that they had received instructions from Ngulube that the letter of acknowledgment be sent to the National Assembly and see his secretary.
They claimed that they attempted to serve a copy of letter of demand at his office at the National Assembly but it also proved futile as the security guards also allegedly received instructions from Ngulube not to receive the letter.
“On August 17, 2019, we proceeded to serve the demand letter on Ngulube’s law firm’s pigeon hole at the High Court and further engaged the services of a courier company known as Max Speedy to serve the said letter on Ngulube. The courier company informed us that they served the letter to Ngulube at the National Assembly but were later called by to take up the letter from the registry,” read the affidavit.
Kaonga and Mudenda stated that owing to the fact that Ngulube did not comply to the terms set out in the demand letter, Mwitwa commenced legal action against him but could still not effect personal service on Ngulube to serve writ of summons and statement as such they had to substitute it by way of public advertisement which was filed unto court on August 22, 2019.
The duo further stated that the record would show that they filed an application to serve process by substituted services by way of public advertisement before the court on August 22, 2019.
They explained that the court granted leave to serve Ngulube by substituted service and as such they proceeded to advertise in the Zambia Daily Mail on August 26 and August 27. 2019.
“We wish to repeat that the sequence of events as outlined above and wish to add that the sequence of event aforesaid are consistent of a party who is elusive or evading service,” read the affidavit.