African Inlanda Container Depot Zambia Limited v Cobham Capital Limited (2022/HPC/0698) [2024] ZMHC 172 (5 July 2024)

IN THE HIGH COURT FOR ZAMBIA _ AT THE PRINCIPAL REGIS . ~•. (: ~ 1'. Jf' .. COMMERCIAL DIVISI HOLDEN AT LUSA (Commercial Jurisdicti , ~(,}!,;!'~V ·•j. M ~\l ~~~rt~ · t\\1..\\ ~.,-:-.. . ~ ~ \\l\.. <'-"' ------~~"' JiW 2022/HPC/0698 IN THE MATTER OF IN THE MATTER OF IN THE MATTER OF BETWEEN: (2) (a) (i) & 17 (2) (b) (ii) rbitration Act No. 19 Of Rule 23 of the Arbitration (Court Proceedings) Rules S. I No. 75 of A decision of the Arbitral Tribunal dated 31st September, 2022 AFRICAN INLAND CONTAINER DEPOT APPLICANT ZAMBIA LIMITED AND COBHAM CAPITAL LIMITED RESPONDENT Before Hon. Mr. Justice B. C Mbewe in Chambers Marshal Esther Ng'uni ~search Advocate : Mwiche Ntinda- Ndhlovu Jar the Applicant Mr. P. Songolo of Messrs. Philsong and Parlners For the Respondent Mr. M. Ndalameta of Musa Dudhia and Co JUDGMENT Pursuant to Section 17 of the Arbitration Act No. 19 of 2000 and Rule 23 of Statutory Instrument No . 75 of 2001 Cases Referred to: 1. Dongwood Mann and Hummel Company Limited v Mann Hummel GMBH (2008) S. G. C 67; 2. Philippines v Phillipine International Air Terminals Company Incorporation (2007) IS. L. R 278; 3. Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited (2008/ HP/ ARB) (2012) ZR Vol. 3 176; 4. Zambia Revenue Authority v Tiger Limited and Zambia Development Agency - SCZ Selected Judgment No. 11 of 2016; 5. Inda Zambia Banlc Limited v Mushaulcwa Muhanga (2009) ZR 266; 6. In Re Patrick & Lyon Ltd (1935) CH 786; 7. Gondwe V Ngwira {Appeal 37 Of2015); 8. Derry v Peele (1889) 14 App Cas 337; 9. Nyimba Investments Limited v Nico Insurance Zambia Limited, Appeal 30 Of 2016; 10. NHA-MKP Estate Development Ltd v Workers Compensation Fund and Anor Appeal 44 of2017; J2 11. Martin Misheclc Simpemba, Rose Domingo Kakompe v Nonde Mukanta and Zambia Industrial Limited (2008/ HP/268) Zambia Law Reports Volume 1, 2012; 12. Richardson v Mellish (1824) 2 Bing 229; 13. In The Estate of Hall-Hall v Knight and Boxer (1914) P 1; 14. Egerton v Brown Law (EARL) (1853) 4 H. L; 15. Zemalt Holdings S. A v Nu Life Upholstery Repairs Limited (1985) 2 E. G. L. R. 14; 16. Zimbabwe Electricity Supply Authority V Maposa (1999) Z. L. R . 452 · , 1 7. Renusagar Power Company Limited (India) v General Electric Company (US) (1995) 20 Year Book of Commercial Arbitration 681; 18. Mulenga v Mumbi Ex-Parte Mhango (1975) Z. R. 78;· 19. SA Airlink (Pty) Limited v Zambia Skyways Limited (2018/ HPC/ 0034); 20. Smith, Coney & Barrent v Becker, Gray & Co. [ 1916} 2 Ch 86; 21. Harbour Assurance Co (UK) Ltd v Kansa General International Assurance Co Ltd /1993} 3 All ER 897; 22. Sithole v The State Lotteries Board (1975) ZR 106, 23. Audrey Nyambe v Total Zambia Limited (SCZ Judgment No 1 of 2015); 24. Vedanta Resources Holding Limited v ZCCM Investment Holdings Plc (Appeal No 181 of 2019); 25. Woolfv Collis Removal Service [1947] 2 All ER 260; 26. Ex Parte Cooper (1879) 11 Ch. D 68; 27. John Kunda (Suing as Country Director and on behalf of the J3 Adventists Development and Relief Agency (ADRA) v Karen Motors (Z) Ltd 2008/ HPC/ 550; 28. Konkola Copper Mines Limited v Copper Fields (201 OJ ZR Vol. 3; 29. Satyam Shivan Sundarm and Another v Given Chisalrula Kawina Appeal No. 076 of 2017; 30. Martin Misheclc Simpemba Rose Domingo Kakompe v Nonde Mukanta Zambia Industrial Minerals Limited (2012) Vol. 1 ZR 72 at page 89; 31. Pt Asuransi Jasa Indonesia (Parsero) v Dexia Bank S. A (2007) 1 SLR 51; 32. Saving Wealth Limited v Zamastone Limited 2017/ HPC/ 0183. Legislation Referred To: 1. The Arbitration Act No. 19 of 2000; 2. The Arbitration (Court Proceedings) Rules, SI 75 of 2001; 3. The Arbitration (Code of Conduct) Regulations, 2007, SI No. 12 of 2007; 4. The Chartered Institute of Arbitrators Zambia Branch Rules (March 2015), Article 1 7; 5. UNICITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration; 6. Roy Goode on Commercial Law 3 rd Edition Lexis Nexis Butterworths; 7. Russell on Arbitration, 23rd Edition Sweet & Maxwell, 2007; 8. The Constitution of Zambia Act No. 2 of2016; 9. Halsbury's Laws of England, 4 th Edition, Vol. 31 Lexis Nexis Butterworths; J4 10. Law Relating to Arbitration and Conciliation PC Markanda, Naresh Markanda and Rafesh Markanda (2001) 4 th edition page 435 Wadhwa 2001; 11. Mustil and Boyd: Commercial Arbitration 2 nd Edition at page 641 (1989) Class C Standard Work; 12. Black's Law Dictionary, Gamer, 8 th Edition, ST Paul Thomson West. Introduction and Background [1] This Judgment 1s delivered on an originating summons application filed on 8 th November, 2022, by the Applicant, African Inland Container Depot Zambia Limited, against the Respondent Cobham Capital Limited. The application is supported by an affidavit and skeleton arguments of even date. [2] The Respondent filed its documents in opposition on 30th December, 2022. The Applicant filed its affidavit in reply into Court on 14th February, 2023. [3] I apologize to the parties for the delayed Judgment which was due to unforeseen circumstances brought about owing to pressure. of the heavy workload and the existence of two actions between the same parties relating to the same events, this one and 2021/HPC/344. JS Originating Summons Application Applicant's Application [ 4] The Plain tiff has applied to this Court, seeking an order to set aside an Arbitral Award dated 31 st August, 2022. The Application is brought pursuant to Section 17 (2) (a) (i) and Section 1 7 (2) (b) (ii) of the Arbitration Act No. 19 of 2000 as read with Rule 23 of Statutory Instrument No. 75 of 2001. [5] The grounds set out in the originating summons for this application are that the Applicant seeks the following; z. An Order to set aside the Arbitral Award dated 31 st August, 2022 pursuant to Section 17 (2) (a) (i) of the Arbitration Act No. 19 of 2000 on the grounds that the Agreements carrying the Arbitration Clauses namely the irrevocable and Unconditional Holding Certificate and the Warehouse Storage Agreement dated 10th and 15th December, 2020 respectively are invalid for fraudulent misrepresentation or mistake or laclc of clear instructions or want of valid instructions from Trans Africa Mining Sarlu and the Respondent. zz. An Order to set aside the Arbitral Award dated 31 st August 2022 pursuant to Section 17 (2) (a) (iii) of the Arbitration Act No. 19 of 2000 on the grounds that the Arbitrator exceeded the scope of her powers in granting a total sum of US$64, 990.00 and US$1, 907, 320.00 being special J6 damages for misrepresentation and loss of profit together with costs to the Respondent when the alleges facts or evidence including Whatsapp messages on misrepresentation and undertakings by the Applicant upon which the said reliefs were awarded are a dispute that do not fall within the scope of the existing Agreement that carried the Arbitration Clause and are facts that occurred prior to the execution of the said Agreements. zu. An Order to set aside the Arbitral Award dated 31 st August, 2022, pursuant to Section 17 (2) (a) (iii) of the Arbitration Act No. 19 of 2000 on the grounds that the award of the sum ofUS$64, 990.00 and US$1, 907, 320.00 as special damages for misrepresentation and loss of profit together with costs were premised on facts that were not within the contemplation or terms of submission to arbitration. w . An Order to set aside the Arbitral Award dated 31 st August, 2022 pursuant to Section 17 (2) (a) (iii) of the Arbitration Act No. 19 of 2000 on the grounds that the entire award of US$64, 990.00 and US$1, 907, 320.00 being special damages for misrepresentation and loss of profit is an award against public policy for breach of rules of natural justice as the Arbitral Tribunal's powers did not extend to making findings of fact on passage of title in the Cobalt in dispute involving third parties namely Trans Africa Mining Sarlu and Luowoshi Mining Limited both of whom were not only not parties to the Agreements carrying the Arbitration J7 Clause but also were not before the Arbitral Tribunal or making findings of fact on issues of joint bailor/ bailee relationships involving the said third parties. v. An Order to set aside the Arbitral Award dated 31 st August, 2022, for want of jurisdiction which issue was raised during the proceedings but the Arbitral Tribunal chose to determine the challenge to her jurisdiction in the final ward which issue the Tribunal ultimately failed to properly determine. vi. Costs. [6] The Applicant's affidavit in support of its application is deposed to by one Habibullah Shaik, who is Country Manager for the Respondent Company in the arbitration proceedings, which is the Applicant in this application. The affidavit attests that the Respondent herein commenced arbitration proceedings against the Applicant and a Final Award dated 31 st August, 2022, awarded US$64, 990.00 as special damages for misrepresentation, and US$1, 907, 320.00 for lost profits to the Respondent herein. The Respondent was also awarded costs in the sum of US$623, 357.18 and US$15, 000.00. [7] The final Award made a ruling on its own jurisdiction. The Award is exhibited as "HS 1". That the Arbitral Tribunal established its jurisdiction pursuant to an irrevocable and unconditional holding certificate dated 10th December, 2020, which the applicant exhibits as "HS2" and a Warehouse Holding Certificate exhibited as "HS3". That the above-mentioned documents were issued as a result of the Cobalt Sales Purchase Agreement (SPA) J8 dated 8 th September, 2020, that the Respondent contracted with a third party called Trans Africa Mining Sarlu (Trans Africa), which was later amended as Amendment No. 1 and dated 9 th November, 2020. The SPA and Amended are exhibited as "HS4" and "HSS" respectively. [8] The affidavit deposes that the SPA marked HSS shows that the Respondent contracted to buy cobalt from Trans Africa who was to deliver the said cobalt to the Applicant's bonded warehouse. However, Trans Africa delivered the cobalt to the Applicant's general warehouse whereupon it and Trans Africa entered into a bailor - bailee relationship. Trans Africa sent it an e-mail HS6 confirming receipt of the cobalt. That it mistakenly confirmed to the Respondent that the cobalt was delivered to the bonded warehouse. This confirmation was made in the absence of an arbitration clause. [9] That Trans Africa represented to the Applicant and Respondent that it owned the cobalt to be purchased by the Respondent. That Luwowoshi Mining who was said to be working with Trans Africa claimed ownership of the same cobalt as shown by an e mail marked HS7. [10] That as evidenced HS8 on 10th November, 2020, it received an email from the Respondent's General Counsel informing and instructing it that that the Respondent and Tran Africa had resolved their differences and it should prepare a Warehouse Holding Certificate for the initial 326 Mt of cobalt concentrate J9 delivered. The Applicant acted on the Respondent's instructions and issued an Irrevocable and Unconditional Holding Certificate for this initial 325Mt of cobalt concentrate which is marked HS2, issued under fraudulent misrepresentation on part of Respondent in absence of clear or valid instructions from the third=party Trans Africa who instructed on issuance of temporal holding certificate as opposed to the irrevocable and unconditional certificate. [11] The particulars of fraudulent misrepresentation are listed as follows; 1. There were no instructions from Trans Africa to the Applicant to issue an irrevocable and Unconditional Holding Certificate and that rather Trans Africa Instructed that the Applicant to issue either a Provisional Holding Certificate or a Temporal Holding Certificate. There is now produced and shown to me the instructions from Trans Africa namely the letter dated 10th November, 2020, marked "HS- 10" and the email marked "HS-7" dated 2 nd December, 2020, above; 11. Contrary to the instructions from Trans Africa, the Respondent's General Counsel namely Michel Garcia wrote an email to the Applicant r equesting the applicant to draft a warehouse Holding Certificate in a substantially similar manner as the draft that was attached to the email dated 3 rd December, 2020. There is now produced and shown to JlO me a true copy of the said draft Warehouse Holding Certificate marked "HS-11"; 111. The draft warehouse Holding Certificate marked "HS-11" was drafted by the General Counsel of the Respondent as an irrevocable and unconditional holding certificate by fraudulently inserting the words irrevocable and unconditional order of, and for the account of the Respondent and that the same was done in the absence of any such instructions from the owner of the cobalt that was in dispute before the tribunal namely Trans Africa. 1v. That the words irrevocable and unconditional order of, and for the account of appear in the first paragraph in line number 4 of the draft warehouse holding certificate. v. That the inserting of the above words by the Respondent in a Certificate that was only meant to be Provisional or Temporal Certificate was fraudulently misrepresentation on the part of the Respondent which misrepresentation materially induced the Applicant to issue an irrevocable and unconditional certificate to the order of the Respondent, contrary to the instructions from Trans Africa. v1. The Applicant was materially induced due to the fact that the Respondent had instructed the Applicant to issue the Holding Certificate in a substantially similar manner as the Respondent's own draft Warehouse Holding Certificate and the Applicant highly relied on the instructions of the Respondent in preparing the certificate; Jll vn. There were no expressly written instructions to issue an irrevocable and unconditional holding certificate to the order of the Respondent and that the same was only issued due to the misleading instructions and draft that was sent to the Applicant by the Respondent. v111. Trans Africa through a letter dated 18t h December, 2020, authored by its Managing and Operations Director namely David Mteki instructed the Applicant to cancel the irrevocable and unconditional certificate dated 10th December, 2020, for reasons that the Respondent and Trans Africa had failed to reach a conclusive agreement. There is now produced and shown to me a true copy of the said letter marked "HS-12". ix. Following the cancellation of the irrevocable and unconditional certificate, the Respondent wrote an email advising the Applicant that the Applicant cannot cancel the Irrevocable and unconditional certificate and that this notwithstanding, the Respondent together with Trans Africa would issue clear joint instructions from the parties (Trans Africa and the Respondent) on how to proceed. There is now produced and shown to me a true copy of the said email dated 21 st December, 2020, marked , "HS- 13". x. That the email dated 21 st December, 2020, and marked "HS-13" further alleged that the actions of Mr. Mteki were a ctions that were outside his authority to cancel the irrevocable and unconditional holding certificate which J12 allegation contradicts the evidence appearing in the letter dated 10th November, 2020, which confirms that the very Mr. Mteki is the one who signed the letter authorizing the Applicant to issue a Provisional Warehouse Certificate. The said letter dated 10th November, 2020, has been produced and marked "HS-10" above. xi. The above email marked HS13 further confirms that the Respondent had no clear instructions from Trans Africa upon which to instruct the Applicant to issue an irrevocable and unconditional withholding certificate as the Respondent's Counsel promised the Applicant that it would issue clear written joint instructions both from Trans Africa and the Respondent. xn. The Respondent was unsure on who had authority from Trans Africa to issue clear written instructions in the first place on the issuance of an irrevocable and unconditional holding certificate but nonetheless represented to the Applicant that it did at the material time when the irrevocable and unconditional holding certificate was issued. This is confirmed by the Tribunal Transcribed proceedings at page 61 to 63, where Michael Garcia, the Respondent's General Legal Counsel testified that he did not know the actual representatives of Trans Africa, there is now produced and shown to me true copies of page 61 to 63 of the Tribunal's transcribed proceedings marked, "HS- 15." J13 [12] That other than the Irrevocable and Unconditional Certificate being invalid, the Warehouse Storage Agreement containing an arbitration clause dated 19th December, 2020, produced above and marked ''HS3" is also invalid as the same was contracted premised on the mistakes that the Applicant was given valid clear instructions to issue an irrevocable and unconditional certificate when in fact not. [13] The particulars of mistake are listed as follows; 1. The Respondent contracted with the Applicant on the premise that the Applicant are holding 326 Mt of Cobalt at the irrevocable and unconditional order of the Respondent when in fact the irrevocable and unconditional certificate is invalid for Fraudulent Misrepresentation or Mistake. [ 14] The Applicant, argues that after the Tribunal established its jurisdiction on two invalid documents, went ahead and awarded damages for misrepresentation anchored on alleged facts that occurred before the existence of any agreement with an arbitration ·clause came into existence. The alleged events are said to have occurred before 10th and 15th December ,2020, before the existence of an arbitration clause, appear at pages 1 to 31 of the Respondent's statement of case. [15] It is argued that the evidence from the above pleadings of the Respondent (then Claimants in the ·arbitral proceedings), together with the evidence at the hearing of the arbitral proceedings, all prove that the alleged misrepresentation as to J14 the cobalt being in a bonded warehouse, when in fact it was in a general warehouse, are events that all occurred and were discovered by the Respondent before 10th December, 2022, when the Applicant issued an Irrevocable and Unconditional Holding Certificate that contained an Arbitration Agreement (clause). [16] That further to paragraph 11 above, it can be seen from the Respondent's own pleading, that Alex Stewart inspected 344 of the 848 metric tons of the cobalt at the Applicant's general warehouse and not bonded warehouse between 18th and 23rd November, 2020. That at this point the Respondent herein discovered that the cobalt was in a general warehouse and not bonded warehouse, which discovery occurred on or before the issuance of the Irrevocable and Unconditional Holding Certificate and before the execution of the Warehouse Agreement dated 15th December, 2020. [ 1 7] The Applicant argues that an award that deals with a dispute not contemplated by, or not failing within the terms of submission to an arbitration can be set aside by the Court and that all events that occurred prior to 10th December, 2020 constitutes events that were not contemplated by the parties or where not failing within the terms of submission to arbitration and hence the application before Court to set aside the said Final Arbitral Award. [18] That in addition to the above between paragraphs 4.5.84 to 4.5.71 of the Arbitral Award marked "HSl" above , the Arbitrator JlS went ahead and awarded damages premised on WhatsApp messages that did not form part of the irrevocable and unconditional certificate and the warehouse storage agreement which agreements constitute the arbitral awards. [ 19] The Applicant argues that an award that deals with a dispute not contemplated by, or not failing within the terms of submission to an arbitration can be set aside by the Court and that all events that occurred prior to 10th December, 2020, constitute events that were not contemplated by the parties or where not failing within the terms of submission to arbitration and hence this application to set aside Final Arbitral Award. [20] The Applicant also argues that the Arbitrator went ahead under paragraphs 4.5.51 to 4.5.56 of the Arbitral Award and pronounced itself on the passage of title from Trans Africa and or Luwowoshi Mining to the Respondent. It is posited that the said Trans Africa and or Luwowoshi Mining were not party to the arbitration agreement between the Applicant and the Respondent and were not party to the arbitration proceedings. [21] That Trans Africa, was not a paid the full purchase price of the 326Mt of Cobalt that the Respondent contracted to purchase from Trans Africa and as a result it (Trans Africa) informed the Applicant that the contract between the Respondent and Trans Africa failed and that the 326Mt of cobalt should be released to the rightful owners Trans Africa. J16 [22) The Applicant, argues that alternatively, the Respondent by virtue of not paying the full purchase price for the cobalt in dispute, remained joint bailors with Trans Africa to the 326Mt of Cobalt subject to the validity of the Irrevocable and Unconditional Holding Certificate and the Warehouse Agreement, and that if the same are invalid for mistake, fraud and or misrepresentation, then, Trans Africa were the sole bailors for the cobalt. [23] It is further argued by the Applicant that were there joint bailors, a single bailor cannot bring an action solely without other joint bailors. [24] The Applicant's skeleton arguments argue that it seeks to set aside the Arbitral Award dated 31 st August, 2022. J. and asks for the orders set out in paragraph [5] above from the Court. The Applicant further argues that the application is brought under Section 17 (2)(a)(i), (iii) and Section 17 (2) (b)(ii) of the Arbitration Act No. 19 of 2000 as well as Rule 23 of Statutory Instrument No. 75 of 2001. [25] The Applicant cites the law on setting aside an arbitral award, positing that an error in fact or law cannot warrant the setting aside of an arbitral award. It relies on the case of Dongwood Mann and Hummel Company Limited v Mann Hummel GMBH ( 1 ); which held that; "If after hearing full argument from both parties, the tribunal decided wrongly that it was not appropriate to J17 draw any adverse inference, it would then be a mere error of fact finding, and or of law which cannot be a ground for setting aside the award. An error of fact, or law made by the tribunal does not come within the ground of setting aside under article 34 (2) (a) (iii) of the Model Law." [26) In the case of Philippines v Phillipine International Air Terminals Company Incorporation (2); the Singapore High Court held that; "An Arbitral award is not liable to be struck down on application in courts because of allegations that it is premised on incorrect grounds whether of fact, or law. An application to set aside an award made in an international arbitration is not an appeal on the merits, and cannot be considered in the same way as the court would consider the findings of a body over whom it has appellate jurisdiction" [27) The case of Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited (3); where the Court held that the starting point in trying to set aside an arbitral award is to firstly understand the rationality behind arbitration. Parties who agree that they resolve a dispute arising from contract by way of arbitration, have in effect agreed that they shall not avail themselves to court proceedings except under the limited circumstances provided by law. It follows therefore that once an J18 award has been published by an arbitrator, it is final and cannot be appealed against. This being said, the role of the court with respect to arbitration is to compliment it in enforcing the award or setting it aside. (28] The Applicant submits that the limited circumstances provided by law under which an arbitral award can be set aside are those contained in Section 17 (2) (a) (i), (iii) and Section 17 (2) (b) (ii) of the Arbitration Act No. 19 of 2000. (29] The Supreme Court is quoted as opining as follows in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency (4); that; "What can be discerned from the foregoing Section is that there are two sets of grounds upon which an award may be set aside. These are the ones under Section 17 (2) (a) (i) to (v) and those under Section 17 (2) (b) (i) to (iii). The threshold that a party must attain in those under Section 17 (2) (a) in order for a court to set aside an award is that there has to furnish proof that the circumstances contained in the grounds exist. This can be discerned from the wording of Section 17 (2) (a)." (30] The Applicant dissects Section 17 (2)(a)(i), (iii) and Section 17 (2) (b)(ii) of the Arbitration Act No. 19 of 2000, as follows ; [31] On statutory interpretation, it is submitted that the natural and ordinary meaning should be applied in interpreting the above J19 provision, as it is not ambiguous nor does the same result in an absurd meaning relying on the decision of the Supreme Court in the case of lndo Zambia Bank Limited v Mushaukwa Muhanga (5); in which it was held; "We have considered the judgment of the Court below, the submissions of counsel and the issues raised in this appeal. At the outset, we wish to commend counsel, for the detailed and thorough submissions they have availed us. We agree with counsel that the kernel of this appeal rests on the interpretation of clause 7 .1. of the terms and conditions of service. The various authorities cited to us endorse the general principle to be applied when interpreting contracts or other legal instruments. The starting point is the document itself. As Lord Hoffman observed in the case of Norwich Union v British Railways Board: "After all that analysis however, I came back to what seems to be the plain question: what, as a matter of ordinary English do the words of the covenant means?" It is envisaged that parties to a legal instrument have expressed themselves through the natural meaning of the words used. This view was again echoed by Lord Hoffman in the case of Investors Compensation Scheme v West Bromwich Building Society, when he said that: J20 "The rule that words should be given their natural and ordinary meaning reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had". We have applied this general principle in this jurisdiction. We did hold, in the case of Mazoka and Others v Mwanawasa and Others, that: '~It is only if there is ambiguity in the natural meaning of the words and the intention cannot be ascertained from the words used by the legislature, that recourse can be had to other principles of interpretation". (32] The Applicant submits that the natural and ordinary interpretation of Section 17(2)(a) (i) of the Arbitration Act in light of the case in casu, is that if the Arbitration clauses contained in the Irrevocable and Unconditional Holding J21 Certificate dated 10th December, 2020, and the Warehouse Agreement dated 15th December, 2015, are invalid under the law, then the Arbitral Award dated 31st August, 2022, can be set aside. [33) The Applicant further submits that under Zambian case law and common law, an Arbitration Agreement or an Agreement in general can be invalid if the agreement in which the arbitration clause in which it is contained is void for fraud or voidable for fraudulent misrepresentation or mistake. [34) The Applicant cites In Re Patrick & Lyon Ltd (6); at page 790, wherein Maugham J, stated that; "The words "defraud" and fraudulent purpose, where they appear in the section in question, are words which connote actual dishonesty involving, according to current notions of fair trading among. commercial men, real moral blame.,,'' [35) That in the decision of GONDWE V NGWIRA (7); the Supreme Court held that; "In civil cases fraud must be proved to a standard higher than a mere balance of probabilities. Fraud usually takes the form of a statement that is false or suppression of what is true. The trial Court's finding of J22 fraud on the part of the Bank is supported by the fact that the Bank falsely claimed to have sold the house to a successful "bidder". By its letter of 6 th September, 2001, the Bank intended to make Ms. Lubasi believe that the house had been sold to someone else on the basis of bids. Additionally, DWI and DW2 gave evidence of anomalies in the way the vendor obtained tax clearance and consent to assign. That evidence, too, pointed to fraud on the part of the liquidators of Lima Bank. The Lima Bank's sale of the House to the Appellant was tainted with fraud. " [36] It is stated that Black's Law Dictionary, 8th Edition, St Paul, MN, USA, Thomson/West, 2004, defines "fraudulent misrepresentation" at page 1022, as follows: "a false statement that is known to be false or is made recklessly without knowing or caring whether it is true or false and is intended to induce a party to detrimentally rely on it." [37] The case of Derry v Peek (8); has also defined fraudulent misrepresentation in a similar manner. That the case of Nyimba Investments Limited v Nico Insurance Zambia Limited (9); has pronounced itself on the requirements that must be proved for a claim of fraudulent misrepresentation to succeed following the case of Derry v Peek (8) . There are two requirements, the first is that J23 the misrepresentation must be material in nature, and the second is that the material misrepresentation must in fact induce the other party. The Supreme Court held as follows in the Nyimba Investment (9) case; "The approach adopted by the learned trial judge is that an untrue statement made by an insured is a misrepresentation a fraudulent misrepresentation at that, which should justify repudiation of a claim. We do not accept such a simplified approach which in the circumstances is clearly assailable. Derry v. Peek still remains instructive in determining whether a misrepresentation is fraudulent or not. Yet, the learned judge did not bother to consider whether the ingredients of fraud as articulated in that leading authority were present in the case before her. It is of course not every untrue representation which is fraudulent. Where, as in the present case, specific questions contained in a proposal form are put to the insured, and they are answered incorrectly, this does not necessarily amount to a fraudulent misrepresentation and should not, ipso facto, entitle the insurer to avoid the policy. In our view, a false answer per se will not necessarily justify avoidance of the policy in every case. The law J24 pertaining to insurance as it applies in this country on the issue of misrepresentation must take into account at least two tests: first, the materiality test and, second, the inducement test. As regards the first of these, a misrepresentation must be material, that is to say it should influence a prudent insurer in deciding first whether or not to take up the risk and second, the premium to be fixed for such risk. A representation must weigh on the critical decision to insure or not to insure, and if to insure, on what terms. In the landmark case of Pan Atlantic Insurance Co. Ltd. v. Pine Top Insurance Co. Ltd. 32, the House of Lords held that: "a material circumstance is one that would have an effect on the mind of a prudent insurer in assessing the risk and it is not necessary that it would have a decisive effect on the insurer's acceptance of the risk or on the amount of premium charged. Before an insurer may avoid a contract for misrepresentation of a material circumstance it has to show that it was induced by the misrepresentation to enter into the policy on the relevant terms." J25 What this comes to, in our view, is this: the insurer must show that either the proposer appreciated that the fact in question would have significance, or assuming that the proposer did not have that appreciation, a reasonable person making the proposal and possessed with factual knowledge by the actual proposer would think that fact to be material to the insurer. The test for materiality is thus an objective one made by reference to the attitude of a hypothetical prudent insurer. In addition to materiality test, the insurer will only be entitled to avoid a policy if they can show that they were induced by the non-disclosure or misrepresentation by the insured, to enter into contract. The inducement test, was also adopted by the House of Lords in the 1994 case of Pan Atlantic Insurance Co. v. Pine Top Insurance Co. 32, to which we have already referred. The law on inducement was however most lucidly summarized by Clerk L J in Assicurazioni Generaliss PA v. Arab Insurance Group36 as follows: i) In order to be entitled to avoid a contract of insurance, an insurer must prove on the balance of probabilities J26 that he was induced into the contract by a material non-disclosure or misrepresentation; ii) There is no presumption of law that an insurer is induced to enter into a contract by a material nondisclosure or misrepresentation; iii) The facts may, however, be such that it is to be inferred that the particular insurer was so induced even in the absence of him." [38] The Applicant argues that, from the above authorities it is incumbent on the applicant to demonstrate by way of affidavit evidence that, the Respondent in this matter issued a material statement that was false, and the Applicant was induced by the statement when issuing the Irrevocable and Unconditional Certificate dated 10th December, 2020, and when the Warehouse Holding Certificate dated 15th December, 2020, was executed. The Applicant's Affidavit in particular paragraphs 16 to 20 evidences the fraudulent misrepresentation on the part of the Respondent. In the said paragraphs the Applicant has demonstrated that; 16. That on 10th November, 2020, the Applicant received an email from the Respondent's General Counsel Michel Garcia who wrote an email informing as well J27 as instructing the Applicant inter-alia that the Respondent had resolved its dispute with the third Party Trans Africa and that the Applicant should prepare a Warehouse Holding Certificate for the initial 326Mt of the Cobalt Concentrate that was delivered to the Respondent's warehouse. There is now produced and shown to me a true copy of the said email marked, ''HSS". 11. That on Yd December, 2020, the Applicant received another email from the Respondent informing the Applicant to prepare the Warehouse Holding Certificate for the initial 326Mt of the Cobalt concentrate. There is now produced and shown to me a true copy of the said email marked, ''HS-9". 1 s. That the Respondent went ahead and followed the Respondent's instructions and issued the Irrevocable and Unconditional Holding Certificate marked ''HS-2" which was issued due to fraudulent misrepresentation on the part of the Respondent and was further issued on the absence of clear or valid instructions from the third-Party Trans Africa who instructed the issuance of a temporal Holding Certificate as opposed to an Irrevocable and Unconditional Certificate. J28 19. That the Respondent fraudulently misrepresented and misdirected the Applicant into issuing an Irrevocable and Unconditional Certificate dated 10th December, 2020, and the particulars of the fraudulently misrepresentation are as follows; Particulars of Fraudulent Misrepresentation i) There were no instructions from Trans Africa to the Applicant to issue an Irrevocable and Unconditional Holding Certificate and that rather Trans Africa instructed that the Applicant to issue either a Provisional Holding Certificate or a Temporal Holding Certificate. There is now produced and shown to me the instructions from Trans Africa namely the letter dated 1 0th November, 2020 marked, ''HS-IO" and the email marked "HS7'' dated 2 nd December, 2020, above. ii) Contrary to the instructions from Trans Africa, the Respondent's General Counsel namely Michel Garcia wrote an email to the Applicant requesting the applicant to draft a Warehouse Holding Certificate zn a substantially similar manner as the Draft that was attached to the email dated 3rd December, 2020. There is now produced and J29 shown to me a true copy of the said draft Warehouse Holding Certificate marked "HS I!" iii) The draft Warehouse Holding certificate marked ''HS-II" was drafted by the General Counsel of the Respondent as an Irrevocable and Unconditional Holding Certificate by fraudulently inserting the words irrevocable and unconditional order of and for the account of the Respondent and that the same was done in the absence of any such instructions from the owner of the cobalt that was in dispute before the tribunal namely Trans Africa. iv) That the words irrevocable and unconditional order of, and for the account of appear in the first paragraph in line number 4 of the draft Warehouse Holding Certificate. v) That the inserting of the above words by the Respondent in a certificate that was only meant to be Provisional or Temporal certificate was fraudulently misrepresentation on the part of the Respondent which misrepresentation materially induced the Applicant to issue an J30 Irrevocable and Unconditional Certificate to the Order of the Respondent, contrary to the instructions from Trans Africa. vi) The Applicant was materially induced due to the fact that the Respondent had instructed the Applicant to issue the Holding Certificate in a substantially similar manner as the Respondent's own draft Warehouse Holding Certificate and the Applicant highly relied on the instructions of the Respondent in preparing the certificate. vii) There were no expressly written instructions to issue an Irrevocable and Unconditional Holding Certificate to the Order of the Respondent and that the same was only issued due to the misleading instructions and draft that was sent to the Applicant by the Respondent. viii) Trans Africa through a letter dated 18th December, 2020, authored by its Managing and Operations Director namely David Mteki instructed the Applicant to cancel the Irrevocable and Unconditional Certificate dated 10th December, 2020, for reasons that the Respondent and Trans Africa had failed to reach a conclusive agreement. There is J31 now produced and shown to me a true copy of the said letter marked, "HS-12 ". ix) Following the cancellation of the Irrevocable and Unconditional Certificate, the Respondent wrote an email advising the Applicant that the Applicant cannot cancel the Irrevocable and Unconditional Certificate and that this notwithstanding, the Respondent together with Trans Africa would issue clear joint instructions from the parties (Trans Africa and the Respondent) on how to proceed. There is now produced and shown to me a true copy of the said email dated 21 st December, 2020, marked, "HS- 13". x) That the email dated 21 st December, 2020, and marked "HSl 3" farther alleged that the actions of Mr. Mtelci were actions that were outside his authority to cancel the Irrevocable and Unconditional Holding Certificate which allegation contradicts the evidence appearing in the letter dated 10th November, 2020, which confirms that the very Mr. Mteki is the one who signed the letter authorising the Applicant to issue a Provisional Warehouse Certificate. The J32 said letter dated 10th November, 2020 has been produced and marked "HS-IO" above. xi) The above email marked ''HS-13" further confirms that the Respondent had no clear instructions from Trans Africa upon which to instruct the Applicant to issue an irrevocable and unconditional Withholding Certificate as the Respondent's counsel promised the Applicant that it would issue clear written joint instructions both from Trans Africa and the Respondent. xii) The Respondent was unsure on who had authority from Trans Africa to issue clear written instructions in the first place on the issuance of an Irrevocable and Unconditional Holding Certificate but nonetheless represented to the Applicant that it did at the material time when the Irrevocable and Unconditional Holding Certificate was issued. This is confirmed by the Tribunal Transcribed proceedings at page 61 to 63, where Michael Garcia, the Respondent's General Legal Counsel testified that he did not know the actual representatives of Trans Africa. there is now produced and shown to me true copies of page 61 to 63 of the Tribunal's transcribed proceedings marked, ''HS-15''. J33 20. That other than the Irrevocable and Unconditional Certificate being invalid, the Warehouse Storage Agreement containing an Arbitration Clause dated 10th December, 2020, produced above and marked, "HS3 " is also invalid as the same was contracted premised on the mistake that the Applicant was given valid clear instructions to issue an irrevocable and unconditional certificate when in fact not. Particulars of Mistake ii) The Respondent contracted with the Applicant on the premise that the Applicant are holding 326Mt of Cobalt at the Irrevocable and Unconditional Order of the Respondent when in fact the Irrevocable and Unconditional Certificate is invalid for Fraudulent Misrepresentation or Mistake. (39] The Applicant submits that the materiality and inducement test to establish fraudulent misrepresentation from the above evidence has been met with respect to the Irrevocable and Unconditional Holding Certificate dated 10th December, 2020, and the Warehouse Storage Agreement dated 19t h December, 2020. That it is clear that the Respondent mislead the Applicant into issuing a Warehouse Certificate that was materially different from what the owners of the cobalt intended to be issued. In J34 particular the owners of the cobalt Trans Africa intended that a temporal certificate be issued and yet the Respondent herein went ahead and drafted a certificate that was fundamentally different from that which Trans Africa instructed the Applicant to issue. In so doing, the Respondent intentionally mislead the Applicant and the Applicant materially acted and was induced on the Respondent's misleading information. [40] The Applicant, argues that the Respondent was not even fully knowledgeable as to the individuals in Trans Africa who had authority to issue instructions on the type of certificates that ought to have been issued. That as a result of being induced by the Respondent's. misrepresentations, the Applicant went ahead and drafted a holding certificate that is completely different from what Trans Africa desired, namely a temporal or Provisional Warehouse Holding Certificate. It is posited that there were no clear written instructions on the issuance of an Irrevocable and Unconditional Certificate that ought to have been issued by the Applicant from Trans Africa. Hence therefore the undertaking by the Respondent in its email marked "HS- 13" in the affidavit in support which undertaking promised the Applicant that the Respondent together with Trans Africa would proceed to issue clear written instructions regarding the Irrevocable and Unconditional Holding Certificates. J35 [ 41) The Applicant states that, it ended up entering into a Warehouse Storage Agreement dated 15th December, 2020, as a result of being fraudulently mislead by the Respondent, on the mistaken belief that in fact it was holding 326Mt of cobalt on the Irrevocable and Unconditional Order of the Respondent when in fact not. [42) The Applicant contends that premised on the above authorities, the two documents namely the Irrevocable and Unconditional Holding Certificate dated 10th December, 2020, and the Warehouse Storage Agreement dated 15th December, 2020, are both Invalid for Fraudulent Misrepresentation on the part of the Respondent. It asks this Court to find that the Arbitration clauses contained in the said documents .are also invalid for fraudulent misrepresentation, mistake or lack of clear instructions from the owners of the cobalt as the said Arbitration clauses are anchored on fraudulent misrepresentation on the part of the Respondent. SECTIONS 17 f 3) (2) (A) (III) OF THE ARBITRATION ACT (FACTS OR DISPUTE NOT IN CONTEMPLETION OR SCOPE OF ARBITRATION AGREEMENT) Statutory & Case Law [43] The Applicant submits that the law under Section 17 (1) (2) (a) (iii) of the Arbitration Act, grants this Court the power to set J36 aside an Arbitral Award which constitutes a dispute that is not contemplated by or not falling within the terms of, the submission to arbitration or contains matters beyond the scope of submission to Arbitration. The Particular wording of Section 17( 1) (2) (a) (iii) of the Arbitration Act is as follows; "( 1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with subsection (2) and (3); (2) an arbitral award may be set aside by the court only if- .... the award deals with a dispute not contemplated by, or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside;" [44] We humbly submit that for the Applicant to succeed in its application as per Section 17 (1) (2) (a) (iii) of the Arbitration Act, the Applicant must prove that; - 1. There is a dispute that has been dealt with by the arbitral tribunal; and J37 11. The dispute is one which was not contemplated by the parties or not failing within the terms of, the submission to arbitration; or 111. There is a dispute that has been dealt with by the arbitral tribunal; and 1v. The dispute is one which 1s beyond the scope of submission to arbitration. [45] The Applicant argues that it has proved the disjunctive test above in its Affidavit in Support of Originating Summons. It points out that paragraphs 21 to 25 of the Affidavit in Support, contain a dispute that the arbitral tribunal dealt with which dispute was not contemplated by the parties as a dispute of arbitration or was actually not falling within the terms of submission to arbitration. It posits that a perusal of the arbitration proceedings proves that the events in paragraph paragraphs 21 to 25 of the Affidavit in Support contain facts of a misrepresentation dispute that all occurred in the absence of any of the Agreements carrying the arbitration clauses on which the Arbitral Tribunal established its jurisdiction. In fact, all the facts prior to 10th and 15th December, 2020, when the Agreements carrying the arbitration clauses were executed, are events that were not a subject of any arbitration agreement and are allegations of breach of duty or care and of misrepresentation involving facts that occurred in the absence of contemplation by the J38 Respondent and Applicant thus could not be a subject of clause or arbitration. [46] It is argued that what makes this dispute on misrepresentation to be one which could not have been contemplated by the parties as misrepresentation that should form part of an arbitration is that the alleged misrepresentation was duly discovered by the Respondent prior to entering any Agreements caring Arbitration clauses with the Applicant. By virtue of this discovery, there was no misrepresentation that the parties had contemplated should be a subject of an arbitration clause or dispute resolution. [47] The Applicant submits that there can be no 1nisrepresentation where there is knowledge and no damages can be awarded once it is established that the alleged misrepresentation was made known to the Representee. Furthermore, the Respondent h ere was made aware of the true status and location of the cobalt prior to entering into an arbitration agreement with the Applicant, and thus could not allege that there was in fact misrepresentation. The discovery of the fact that the cobalt was not in a bonded warehouse by the Respondent is contained in the very Statement of Case filed by the Respondent. J39 [48] On knowledge of a misrepresentation, the Applicant submits that a representee who knows the truth is not deceived relying on Halsbury's Laws of England, 4 th Edition, Volume 31 Lexis Nexis, Butterworths at page 673 at paragraph 1104 which states; ''A representee who knows the truth is not deceived. Proof, therefore, of such knowledge is a complete answer to any proceedings founded on misrepresentation and it is sufficient to show that the representee's knowledge was exact and complete; it is not enough to show partial and fragmentary information or mere suspicion. Moreover, actual knowledge must be proved. Imputed or constructive notice is not sufficient; thus, if the false statement was made to an agent of the representee, the representor is not allowed to protect himself by proving that the agent knew that the statement was untrue." [49] The Applicant contends that the misrepresentation dispute could only have been a dispute contemplated as forming part of an arbitration issue if the misrepresentation was material to enter into an agreement canng an arbitration clause and the misrepresentation did in fact induce the Respondent to enter into an agreement canng with it an arbitration J40 clause. This is taking into consideration the principal of materiality and inducement, which requires that a misrepresentation must be materially relied upon and induce the other party to enter an agreement. It is contended by the Applicant, on materiality and inducement vis-a-vis misrepresentation dispute 1s supported by para 1066 of Hals bury Laws of England Volume 31 4 th Edition, which states; "Distinction between inducement and materiality. No misrepresentation, however gross or fraudulent, draws with it any civil consequences unless it was material and was intended to and did influence the mind of the representee so as to affect his conduct Inducement in fact and materiality (a tendency to induce) are wholly distinct and separate matter, and in any form of proceedings it is necessary to establish both. Actual inducement must be shown, irrespective of materiality. In other words, however antecedent probable it may have been in any case that the misrepresentation alleged would influence a normal person to take just the steps which he did, yet if in fact he was not so influenced, he has no cause of action. " [50] The Applicant argues, that due to the fact that the Respondent was knowledgeable about the status of the cobalt prior to entering into the two agreements carrying arbitration clauses, the same cannot be a matter of dispute that was contemplated J41 or failing within the scope of arbitration or terms that ought to have been a subject of arbitration. [51] The Applicant, argues that regarding the scope of jurisdiction of arbitration, it is guided by the Supreme Court in the case ofNHA MKP Estate Development Ltd v Workers Compensation Fund and Anor ( 10); in which the Supreme Court held that; "However, the appellant's counsel is correct to assert that in order to ascertain the jurisdiction of an arbitrator, it is open to the court to look at the award itself and the affidavits and pleadings of the parties if the submission to arbitration is not available .... " [52) The Applicant submits that premised on the pleadings and affidavits of the parties, the Arbitrator in question went beyond the scope of her jurisdiction in making findings as to misrepresentation when the facts in question occurred before the signing of the Agreements caring arbitration clauses. That furthermore, the Arbitrator went beyond the scope of her jurisdiction and pronounced herself on Whatsapp assurances and undertakings that did not form part of agreements caring arbitration clauses. These assurances appear between paragraphs 4.5.64 to 4.5.71, of the Arbitral Award marked "HS I". SECTION 17 2 (B) (II) OF THE ARBITRATION ACT (AWARD AGAINST PUBLIC POLICY J42 [53) The Applicant submits that the law further stipulates that an award will be set aside if the same is against public policy relying on Section 17 2(b)(ii) which states that; "if the Court finds that- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zambia; or (ii) the award is in conflict with public policy;" [54) That what constitutes an award being against public policy has been pronounced upon by the Supreme Court in the case of NHA-MKP Estate Development Ltd v Workers Compensation Fund and Anor ( 10); to mean; "Considering the case of Zambia Revenue Authority v. Tiger Limited with regard to the definition of public policy, we are of the view that an arbitral award or part thereof can only be set aside on the ground that it is in conflict with public policy if it is apparent .that the award would result in gross injustice." [55) The Applicant submits that the interpretation of what amounts to an arbitral award being against public policy J43 is a very narrow interpretation. This is to allow finality of arbitral proceedings. That the term public policy covers fundamental principles of law and justice from the procedural and substantive stand point. [56] That an applicant seeking to set aside an arbitral award on account of public policy must always have in mind the fact that such an application should not be approached with the tactic to discern the legal weaknesses, inconsistences or faults in the application of the law. The objective is to read the award in a reasonable and commercial sense, provided there is no procedural or substantive error in the making of the award. In other words, it is not enough to merely show that an arbitrator was wrong at law or in fact, for an arbitral award to be set aside as it is not an appeal on the merit. The Applicant quotes, Hon. Justice Dr. Patrick Matibini on the concept of public policy vis-a-vis arbitral awards in the case of Martin Misheck Simpemba, Rose Domingo Kakompe v Nonde Mukanta and Zambia Industrial Limited (11); at page 74) in which the Court held that; "The term public policy should be understood to cover fundamental principles of law and justice from the procedural and substantive standing points ... the defence of public policy should only be invoked where the upholding of an arbitral J44 award would shock the conscience; dearly injurious to the public good; wholly offensive to an ordinary member of society; where it violates the forums' most basic notion of morality or justice; or it is outrageous in its defiance of logic or accepted moral standards that any sensible and fair minded person would be intolerably hurt by such an award ... On application to set aside, awards are not approached with a view to discern the legal weaknesses, inconsistences or faults in the application of the law. Rather the objective is to read an award in an reasonable and commercial sense assuming that there is no fundamental or substantial procedural or substantive error in the making of the award.... The defence of public policy is narrowly construed in a bit to preserve, and recognize the goal of finality. in all arbitrations. Thus, an arbitral award is not liable to be struck down on allegations that is premised on incorrect ground whether of fact or law. An award will not be contrary to public policy, merely because the reasoning, or conclusion of the arbitrator are wrong in fact or law. This is because an application to set aside an award is not an appeal on the merit." J45 [57] The Applicant on arguing a point of public policy to set aside an arbitral award, quotes the caution by Lord Burrough Jin his remarks in the case of Richardson v Mellish ( 12); as follows; "I for one protest against arguing too strongly upon public policy; it is very unruly horse, and when you get aside it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail." [58] That Conzens Hardy M. R. In The Estate of Hall- Hall v Knight and Boxer ( 13); also had this to say on public policy; "You do not look for public policy in the sense in which that expression is used in an Act of Parliament. It is something which is really part of the common law of the land, and does not depend upon statute. [59] In the case of Egerton v Brown Law (14); the Court have had this to say; "Public Policy in relation to this question is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, J46 which may be termed, as it sometimes has been, the policy of the law, or public in relation to the administration of the law. 11 [60] The Applicant argues that the concept of public policy is approached with respect to setting aside an arbitral award can be observed from comments of Bingham J. in Zemalt Holdings S. A v Nu Life Upholstery Repairs Limited ( 15); that; "The Courts strive to uphold arbitration awards. The_y do not approach them with meticulous legal eye endeavoring to pick holes, inconsistencies, and faults in arbitration far from it. The approach is to read an arbitration award in a reasonable and commercial way expecting as it usually the case that there be no substantial fault that can be found with it. 11 [61] In the Zimbabwe Electricity Supply Authority V Maposa (16); Chief Justice Gubby made the following observation about the term public policy; "In my opinion the approach to be adopted is to construe the public policy defence as being applicable to either foreign, or domestic award restrictively in order to preserve, and recognize the basic objective of finality in all arbitrations, and to hold such defence applicable only if J47 :: some fundamental principal of law, or morality, or justice is violated. This is illustrated by dicta • 1n many cases ... II [62) The Applicant also quotes the Indian case of Renusagar Power Company Limited (India) v General Electric Company (17); "Would be refused on the grounds that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interest of India (iii) justice or morality. 11 [63] The Applicant argues that from the above, an arbitral award will be set aside on account of it being against public policy if one can demonstrate that the award in terms of procedural law, it violated the rules of natural Justice by not giving the parties to the arbitral award a fair opportunity to be heard or unequal treatment of the parties. Thus, an arbitrator cannot be partial towards a party to the arbitration. [64] As regards substantive law, the Applicant posits that the Courts are not in the business of finding errors of law or fact in the application of substantive law by an arbitrator. That what the Court aims at is to read the award in a commercial and reasonable sense J48 assuming there is no fundamental or substantial error in the making of the award. (65] The Applicant submits that applying the above case authorities to the evidence in the Affidavit in Opposition, the pleadings of the parties at arbitration and arbitral award itself, it is evidently clearly that the 326Mt of cobalt was cobalt originally owned by Trans Africa, who entered into a bailment relationship with the Applicant herein. It is further requirement that unless the full purchase price of the 326Mt of Cobalt was paid by the Respondent to Trans Africa as per the Sale Purchase Agreement and Amendment marked ''HS-4" and "HS -5", Trans Africa would always remain bailors with an interest in the 326Mt of cobalt. It further follows that if title in the 326Mt of Cobalt hasn't been passed to the Respondent but remains with Trans Africa, then the said Trans Africa remains a bailor of the 326 Mt of Cobalt. Even where title in the goods passes to the Respondent but the Respondent has not yet paid the full purchase price to the 326 Mt of Cobalt, Trans Africa and the Respondent become joint baiiors to the 326 Mt of the Cobalt that was in dispute. The Applicant submits that the Respondent and Trans Africa were their Joint bailors to the cobalt in dispute. That an action cannot be brought by a single bailor against a bailee. Procedurally, the J49 Arbitrator in this matter defied this significant procedural principal of bailment. [66] The Applicant refers to the law on bailment and to the aspect of joint bailors in Halsbury's Laws of England, Volume 4 th Edition, Pages 53 at para 108, which provides that: "Where chattels belonging to co-owners are delivered to a bailee to hold on behalf of all, it is implied, unless expressly stipulated to the contrary, that he shall deliver up possession only upon the demand of all the co-owners. He is therefore, justified in refusing to redeliver the chattels on the demand of one or some of them only, and a claim will not lie against him for such a refusal (Broadbent v Ledward (1839) 11 AD & EL 209 see also Atwood v Ernest (1853) 13 CB 881; May v Harvey (1811) 13 East 197; Nathan v Buckland (1818) 2 Moore CP 153 (A bailee cannot refuse to release the property where one co-owner has a sped.al property in the entire chattel. See Nyberg vs Handelaar (1892) 2 QB 202). But if, in such a case, he delivers up the chattels to one of the co-owners upon his sole request, no claim will lie against him for so doing unless all the bailors join for that purpose; and as the person to whom they were actually redelivered cannot join with his co owners in maintaining a claim for a breach occasioned JSO by his own act, no claim will lie against the bailee. (Brandon v Scott (1857) 7 E & B 234" [67] The Applicant submits, that the Arbitrator proceeding to make an award when the Respondent in this matter could not procedurally bring an action without the legal or beneficial owners of the 326Mt of cobalt amounts to gross injustice. [68] It is argued that the Arbitrator went ahead to award damages and costs on the finding that passage of title to the 326Mt of cobalt passed from Trans Africa to the Respondent relating to a Sale Purchase Agreement between the Respondent and Trans Africa to which the Applicant herein was not a party and could not effectively defend itself. If anything, they said Trans Africa upon which the Arbitrator made pronouncements on was a third party that was not privy to the arbitration agreements between the Applicant and the Respondent. [69] The Applicant submits that an Arbitrator cannot grant an award or making findings of fact relating to third parties that are not party to the arbitration agreement. [70] The Applicant points out that the law on non-joinder of a party is very clear, relying on the case authority of Mulenga v Mumbi Ex-Parte Mhango (18); wherein the Court held that: JSl "NO order should be made to the detriment of an individual unless he is a party to the proceedings and is given an opportunity to be heard before any such order is made. Anything done to the contrary would be a breach of the rules of natural justice. " (71] The Applicant asks this Court to take in account the gross injustice that arises from the findings of the Arbitrator under paragraphs 4.5.51 to 4 .5.56 of the Arbitral Award that the Respondent herein had acquired title to the 326Mt of cobalt thereby creating a bailor and bailee relationship between the Respondent and the Applicant. Without pronouncing herself on the continued existence of the already existing bailor and bailee relationship that she had established to have existed between the Applicant, Trans Africa and Luwowoshi at paragraphs 4 .5.16 of the Arbitral Award. That it follows therefore that without the Applicant extinguishing its bailment relationship with the said Trans Africa and Luwowoshi, a joint bailment relationship existed between the Respondent, the Applicant, Trans Africa and Luwowoshi and thus procedural requirement under bailment law requires that where their co-owners to the property in dispute, a single bailor cannot sustain an action against the bailee, unless the action is brought jointly by the joint bailors. (72] It is submitted by the Applicant, that premised on the above law and the affidavit evidence in question, the Court should set aside J52 the Arbitral Award dated 31st August, 2022, in its entirety with costs to the Applicant. Respondent's Arguments and Submissions in opposition [73] The Respondent filed its affidavit in opposition to this application on 30th December, 2022, supported by skeleton arguments. The affidavit is deposed to by one Gildardo Michel-Garcia, Vice President and General Counsel in the Respondent Company. [74] The affidavit deposes that the deponent has been advised by his advocates that the issues for the Court's consideration are; 1. Whether the Applicant is precluded from appealing the Tribunal's ruling that it had jurisdiction, now that more than 30 days have elapsed after having received notice of the ruling of the Tribunal; u . Whether the arbitration clauses in the holding certificate and warehouse storage agreement exhibited respectively as HS2 and HS3 to the affidavit in support (together the "Binding Arbitration Agreements"), are valid and binding arbitration agreements between the Applicant and the Respondent under the Laws of Zambia; iii. Whether the arbitration clauses in the Binding Arbitration Agreements cover the scope of the dispute between the parties; and iv. Whether the award is in conflict with public policy. JS3 [75] The affidavit deposes, with regard to jurisdiction, that 1. the Applicant had the opportunity to object to the jurisdiction of the Tribunal prior to the commencement of the arbitral proceedings and did not do so in time; ii. during the arbitral proceedings, the Applicant submitted a late application for the Tribunal to determine the validity of jurisdiction, and the Tribunal, even though it could have dismissed the application, still issued a detailed ruling on the issue, and ruled that it had jurisdiction over the dispute between the parties; and iii. now that more than 30 day shave elapsed from the date of the receipt of the notice of the jurisdictional ruling by Applicant, the Applicant is precluded from appealing the jurisdictional ruling of the Tribunal. [76] The Respondent argues that the parties were sent an agenda for the preliminary meeting which presented an opportunity for the Applicant to raise jurisdictional issues and questions. The Applicant did not raise jurisdictional issues or the validity of the Binding Arbitration Agreement at the meeting held on 18th January, 2022. That any challenge to the jurisdictional issue should have been made by the Applicant before the filing of the statement of defence in the arbitral proceedings. [77) The affidavit, on the question of whether the Binding Agreements are valid and binding arbitration agreements between the parties under Zambian law, the affidavit deposes that the Applicant J54 never challenged the Tribunal's jurisdiction based on the validity of the arbitration agreements and the Tribunal specifically ruled that the Binding Arbitration Agreements were valid and enforceable arbitration agreements. That the Applicant's application herein cannot appeal against the merits of the ruling. [78] The affidavit, on whether the arbitration clauses in the Binding Arbitration Agreements cover the scope of the dispute between the parties, deposes that it commenced the arbitration pursuant to the Agreements which each carry arbitration clauses and the Tribunal ruled that the terms of the arbitration clauses covered the scope of the dispute between the parties. That the Applicant cannot appeal the merits of such award. [79] The affidavit, on whether the award is in conflict with public policy, deposes that on advice from his counsel nothing in the award elicits a sense of shock from a public policy perspective. [80] The Respondent's skeleton arguments argue that there are very limited grounds under which arbitral awards can be set aside by Courts under Section 1 7 of the Arbitration Act. That the mere whims of an unsatisfied party are not_ one such ground. That the application has not satisfied the test. The Applicant's application ought not to be treated as a review of the Award [81] The Respondent argues that the application to set aside an arbitral award ought not to be treated as an appeal against the award. That this was recognized by the Court of Appeal in the JSS case of NHA-MKP Estate Development Limited v Workers Compensation Fund Control (10); wherein the Court noted as fallows at page J22; "It is clear from the judgment of the lower court that the court did not adjudicate on the issue of the arbitral award of damages for non-completion, because the law proscribes reviewing arbitral award. The court relied on the case of Konkola Copper Mines v Copper.fields where it was held inter alia that: "An application to set aside an award is not intended for the court to review the award of the tribunal or indeed conduct a hearing akin to an appeal" The court was therefore on firm ground." [82] The respondent cites the case of SA Airlink (Pty) Limited v Zambia Skyways Limited ( 19); where the High Court also noted as follows: "Now, I must necessarily caution myself that I am not sitting as an Appellate Court against the Arbitral Tribunal. Rather, my role is limited to determining whether there are indeed shown facts that the invocation of section 1 7 of the Arbitration Act No 19 of 2000 to have the Final Award of the Arbitral Tribunal set aside." JS6 [83] The Respondent argues that a perusal of the Applicant's application reveals that the Applicant is attempting to challenge the merits of the award. The gist of the application is that the holding certificate dated 10t h December, 2020, and the Bonded Service Warehouse Storage Agreement dated 15th December, 2020, (the "Warehouse Storage Agreement") which contain the arbitration clauses are invalid on account of fraud. [84] The Respondent argues that the invalidity or otherwise of the holding certificate and warehouse storage agreement is an issue touching on the merit of the award which this Court is precluded from determining whether or not these documents are invalidated by fraud. In fact, it will be noted from Exhibit GMG 5 of the Respondent's affidavit in opposition deposed to by Mr. Michel-Garcia that during the arbitral proceedings, the applicant challenged the jurisdiction of the Tribunal on the ground that the Respondent's cause of action was founded on tort as opposed to contract. The validity or otherwise of the holding certificate was argued as a substantive issue. [85] That the Court is therefore only mandated to determine whether the application meets the criteria set out under section 17 of the Arbitration Act. The Respondent contends that the applicant's real grievance is with the arbitral tribunal's decision on her jurisdiction. This application is a disguised appeal against the Tribunal's decision on jurisdiction. The procedure for challenging the tribunal's jurisdiction is clearly laid out in J57 Article 16 (3) of the First Schedule to the Arbitration Act No. 19 of 2000, which provides in part that: "(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of the ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; [86] The Respondent argues that the relevant rule re·quires an application to the High Court challenging the Tribunal's jurisdiction to be made within 30 days after receiving notice of the ruling. The Tribunal's ruling onjurisdiction was delivered on 31 st August, 2022, the Applicant's application was brought on 8 th November, 2022. This application is in breach of the Rules. It is therefore too late in the day to consider whether the Tribunal in fact has jurisdiction. That on this basis, the Applicant's application herein should not even be considered. The Applicant's application does not meet the threshold to set aside the award (87] The applicant's application is premised on Section 17 (2) (a) (i) and (iii) and Section 17 (2) (b) (ii) of the Arbitration Act. [88] Section 17 (2) (a) (i) test - The Respondent argues that a determination of the validity of the holding certificate is an issue J58 calling upon this Court to deal with the substantive arbitral proceedings which is not the mandate of this Court in an application such as this. The Respondent reiterates that to address the issues raised by the Applicant requires looking at the merits of the said issue, which shows that the Applicant's application is in fact an appeal disguised as an application to set aside the award. The Respondent contends that the applicants do not satisfy the necessary test to invoke Section 17 (2) (a) (i) of the Arbitration Act. [89] The reading of this section reveals that an arbitral award may be set aside if the arbitration agreement is not valid under the law to which the parties have subjected it. The section is clear that it relates to the invalidity of the arbitration agreement and not the invalidity of the main contract. The application does not impugn the validity of the arbitration clause in the holding certificate and warehouse storage agreement. What that applicant impugns is the holding certificate and warehouse storage agreement. This is an entirely different matter not envisaged by section 17 (2) (a) (i) of the Arbitration Act. [90] The Respondent relies on the case of Smith, Coney & Barrent v Becker, Gray & Co. (20); where the Plaintiffs attempted to obtain an injunction to restrain the other party to a contract going to arbitration on a dispute which had arisen, one of the grounds being that the contract between the parties was illegal. The Court held as follows: JS9 "I think that the Plaintiffs in order to succeed must show that the contract for arbitration with the submission was invalid. For that purpose, I think that I am bound to look at the date at which the contract was made, and to see whether at that date there is any reasonable ground for saying that the contract was invalid. Was that so? For that it really is" [91] It is argued that needs to be looked into is whether the relevant arbitration clauses themselves are invalid. There is nothing that can be discerned from the arbitration clauses to show that they are not valid under Zambian Law. [92] The Respondent cites Clause 11 of the holding certificate appearing as Exhibit HS 2 of the affidavit in support provides as follows: "The contract contained in or evidence by this Holding Certificate is governed by and constructed in accordance with the Republic of Zambia and AFID hereby agrees that any dispute arising under or in connection with it shall, as the option of the Buyer, be referred to arbitration and seat shall be in the Republic of Zambia." .. [93] That Clause 3 of the warehouse storage agreement dated 15 December, 2020, shown as HS 3 of the Applicant's Affidavit in Support particularly provides that: "This agree1nent is governed by and constructed in accordance with the law of the Republic of Zambia and AFICD Zambia hereby agrees that any dispute arising JGO under or in connection with it shall, at the option of Cobham, be referred to arbitration and seat shall be in the Republic of Zambia." [94] The Respondent argues that the arbitration clauses do not violate Zambian laws in any way. That the Applicant has not provided any authority to support the proposition that the invalidity of the main agreement also invalidates an arbitration clause which is in fact a separate agreement from the main contract. That the question whether a main agreement is invalid as in this case, is one that falls within the jurisdiction of the Arbitral Tribunal. This is precisely why entertaining the Applicant's applicant will mean this Court would be reviewing the merits of the Arbitral Tribunal's Award. [95] The Respondent cites the case of Harbour Assurance Co (UK) Ltd v Kansa General International Assurance Co Ltd (21); where the Plaintiffs brought an action against the Defendants for a declaration that certain insurance policies made by way of obligatory quota share retrocession, taking effect for the years 1980 to 1984 and entered into by the Plaintiffs with the Defendants, were void and that the Plaintiffs were not liable in respect of them on the grounds of non disclosure of material facts and misrepresentation. The reinsurance contracts between the Plaintiffs and the Defendants contained an arbitration clause providing for arbitration of 'all disputes or differences arising out of this Agreement'. On the trial of a preliminary issue whether by J61 reason of illegality the arbitration agreements contained in the retrocession agreements for the underwriting years 1980, 1981 and 1982 were null and void, inoperative or incapable of being performed, the judge dismissed the application for a stay of the proceedin.gs in which the Plaintiffs sought to establish that illegality, on the grounds that the principle separability or autonomy of the agreement expressed in an arbitration eau se extend so as to enable the arbitrator to determine Whether or the contract in which the arbitration clause was contained was in ab initio illegality. On appeal, the English Court of Appeal, held at page 907 that: "I am therefore chary of the assumption upon which we have been invited to proceed for purposes of this appeal that the retrocession agreement was itself illegal by reason of the assumed illegality of the underlying re-insurance agreements. But making that assumption, I agree with the judge's conclusion that- 'the separability principle, as applicable also to cases of the initial invalidity of the contract, is sound in legal theory. It is also in the public interest that the arbitral process, which is founded on party autonomy, should be effective. There are strong policy reasons in favour of holding that an arbitration clause is capable of surviving the initial J62 invalidity of the contract. As a matter of precedent, it is therefore open to make a ruling such as I have indicated. In my judgment, the developments which have taken place. and the reasons for it, required me to make such a ruling.' I do so.' I also agree that it would be consistent with his general approach to say that the initial illegality of the contract is capable of being referred to arbitration provided that it does not impeach the arbitration clause itself: that supervening illegality can be so referred: and that an arbitrator appointed under a contemporaneous document separate from the contract can determine an issue as to initial illegality. " [96] The English Court of Appeal went on to hold that: "The arbitration agreement, if sufficiently widely drawn, is from its nature intended by the parties to govern any dispute that may arise between them, including a dispute about the initial illegality of the contract. There is no reason why the parties should have intended to exempt from the scope of the arbitration clause a dispute such as the respondents saw fit to instigate here about whether the retrocession agreement was itself J63 infected by illegality of the underlying insurance agreements. Otherwise, it would put it in the power of one contracting party to prevent arbitration from taking place simply by alleging that the contract was void for initial illegality." [97] The Respondent argues that the point is that an agreement to arbitrate is separate from a main contract setting out the parties' underlying duties and obligations. The invalidity of a main contract does not in itself invalidate the agreement to arbitrate so as to render the Tribunal void of jurisdiction. For these reasons, the Applicant's application does not meet the appropriate test to warrant the setting aside of the Award. [98] The Respondent argues that if this Court were inclined to accept that a determination of the validity of the Holding Certificate and Warehouse Storage Agreement is an issue capable of consideration under section 1 7 of the Arbitration Act. It is submitted, that the Applicant has not adduced any evidence to prove its allegations of fraud. The Applicant in paragraph 19 of its affidavit in support of originating summons (the "Affidavit in Support") , asserts among other things that, the Holding Certificate was procured by fraud because the Applicant only had instructions from Trans Africa Containers Mining (Trans Africa') to issue a provisional holding certificate and not an irrevocable one. This claim J64 alone is not sufficient to satisfy the standard of proof necessary to prove a claim of fraud. [99) The Applicant does not dispute that it had instructions from Trans Africa to provide a Holding Certificate. This is clear from Exhibit GMG 3 of the Affidavit in Opposition which is an instructing letter dated 10th November, 2020, from Trans Africa to the Applicant (this letter formed part of the documents that were attached to the Applicant's Statement of Defence). In its instructing letter to the Applicant, Trans Africa stated as follows in so far as is relevant: "Please be irrevocably advised and instructed as follows: 5. Once Cobham pays the Damphen 522 Invoice Down Payment please prepare a Provisional Warehouse Holding Certificate for the 326Mt of the Delivered Product together with a conditional release of the same made out to the order of Cobham ..... ,.,, [ 100] The Respondent argues that the Applicant was irrevocably instructed to provide a Holding Certificate to the Respondent. There is no proof whatsoever to support the allegation that the Holding Certificate was procured by fraud. Furthermore, the Applicant itself had occasion to review the Holding Certificate before it issued it in its final form. The Applicant's reliance on JGS the case of Nyimba Investments Limited v Nico Insurance Zambia Limited (9); is misguided. We say so because this case dealt with circumstances under which an insurer may be allowed to avoid an insurance policy on grounds of misrepresentation and failure by an insured to disclose material facts. The Applicant is not an insurer and the relationship between the Applicant and the Respondent was not that of insurer and insured. The Nyimba Investments Limited case has no bearing on this application. [101] The Respondent argues that the Applicant was not induced to provide the Holding Certificate. In the case of Sithole v The State Lotteries Board (22); the Supreme Court noted as follows: "l agree, however, that there is nothing in the judgment to suggest that the learned judge appreciated that if a party alleges fraud the extent of the onus is greater than a simple balance of probabilities. In Bater v Bater Denning, L J said: "(A civil) case may be proved by a preponderance of probabilities, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a J66 charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still, it does require a degree of probability which is commensurate with the occasion." [102]The Respondent argues that the mere allegation that the Holding Certificate is fraudulent is not enough to meet the standard of proof required to invalidate the Holding Certificate for fraud. The Holding Certificate is valid and therefore, the Applicant's application does not fall under the ambit of Section 17 (2) (a) (i) of the Arbitration Act. Moreover, the learned Arbitrator found that the Holding Certificate is not fraudulent and this court should not entertain a disguised appeal of the Arbitrator's findings of fact and law under the laws disallowing appeals of findings of fact in a valid arbitration proceeding. [103]Section 17 (2) (a) (iii) test-The Respondent argues in respect to this subsection, that the important thing to take note of is whether the arbitration clauses under which the arbitral proceedings were commenced are couched in terms that cover all claims made by the Respondent. The Respondent relies on the case of Audrey Nyambe v Total Zambia Limited (23); J67 where the Supreme Court dealt with an appeal against the decision of the High Court to stay proceedings and refer the dispute to arbitration. The Scope of the arbitration agreement was alleged not to cover the dispute. The Supreme Court held at page 09 as follows: " .... in determining whether a matter is amenable to arbitration or not, it is imperative that the wording used in the arbitration clause itself is closely studied." [104]That the Supreme Court went on to state as follows: "lt is clear that even if the Arbitration Act gives a guide on the form of an arbitration agreement, it does not dictate what terms the patties should include in their arbitration clause. We have no doubt that the parties before us were within their contractual rights when they agreed to limit arbitration to any disputes arising during the continuance of the agreement and to limit the time period within which the arbitration could be commenced". (lOS]Also, in the case of Vedanta Resources Holding Limited v ZCCM Investment Holdings Pie (24); the Court of Appeal held as follows, at pages J44 and J45: "In determining whether a matter is caught by an arbitration clause, we find the approach of the Court J68 of Appeal of Singapore in Tomolugen Holdings Ltd and Another vs Silica Investors Ltd and Other Appeals persuasive. Sundaresh Menon CJ, delivering the Judgment of the court, said the following at J62: "In our Judgment, when the court considers whether any 'matter' is covered by an arbitration clause, it should undertake a practical and common-sense enquiry in relation to any reasonably substantial issue that is not merely peripherally or tangentially connected to the dispute in the court proceedings. The court should not characterize the matter(s} in either an overly broad or unduly narrow and pedantic manner. " Our understanding of this decision is that the proposed enquiry requires the court to address its mind to the question whether realistically speaking, the matter belongs to arbitration as agreed. Too narrow a view might deprive the parties of an opportunity to employ their agreed mode of dispute resolution while an unduly broad assessment might well consign matters to arbitration which do not belong there, as would be discovered by the arbitrator. This would lead to avoidable time wasting." J69 [106] Clause 11 of the Holding Certificate appearing as Exhibit HS 2 of the Affidavit in Support provides as follows: "The Contract contained in or evidence by this Holding Certificate is governed by and construed in accordance with the Law of the Republic of Zambia and AFICD hereby agrees that any. dispute arising under or in connection with it shall, at the option of the Buyer, be referred to arbitration and seat shall be in the Republic of Zambia" [ 107] Clause 3 of the Warehouse Storage Agreement dated 15 December, 2020, shown as Exhibit HS 3 of the Applicant's Affidavit in Support particularly provides that: "This agreement is governed by and constructed in accordance with the law of the Republic of Zambia and AFICD Zambia hereby agrees that any dispute arising under or in connection with it shall, at the option of Cobham, be referred to arbitration and seat shall be in the Republic of Zambia" J70 [108] The Respondent posits that the relevant arbitration clauses are couched in wide enough terms to cover all claims made by the Respondent at arbitration. The Statement of Case reveals that the Respondent sought among other things, special damages for misrepresentation and lost profit. Such a claim is not excluded under the arbitration clauses which founded the arbitral proceedings. [109]The Respondent refers to paragraphs 23, 25 and 39 of the Respondent's Statement of Case and states that as pleaded from these paragraphs, the Respondent's claim (at arbitration) for damages for misrepresentation stems from the Holding Certificate and Warehouse Storage Agreement executed between the Applicant and the Respondent. That the claim for damages cannot therefore be divorced from these two agreements. [1 l0]The Respondent cites the case of Woolf v Collis Removal Service (25); in which the plaintiff contracted with the defendant to remove his furniture from his store in London to another store in Marlow. The defendant removed the goods to a destination not agreed by the parties and some of the goods were lost or damaged. One of the Plaintiffs claims was that the goods were lost and damaged owing to the negligence of the defendant. In dealing with an appeal on the matter, the English Court of Appeal, held as fallows at page 263: "The second broad point on which the Plaintiff relied was that, although in his statement of claim sounding J71 in contract is given pride of place, yet there is a further or alternative claim for negligence, and that such alternative claim cannot be referred to arbitration under the arbitration clause since it is not made under the contract of which that clause forms part. It is contended that this alternative claim is made either in pure tort or quasi-contract, but, at all events, not under the contract itself. The reasoning which led us to our conclusion on the first point is, in our view, equally fatal to this one. While it is true that, without any special contract, the mandatory, when once he had entered on the execution of the task which he has undertaken, is bound, apart from special contract, to exercise reasonable cam and diligence. none the less, where them is a special contract. that contract defines the measure of the obligation. In the present case them is an obligation of diligence in the contract itself, pleaded in para 2 of the statement of claim and apparently (co-extensive with toe non contractual obligation of diligence in the contract itself, pleased para 2 of claim, and apparently co extensive with non-contractual obligation of diligence. The effect of "deviation. " as we have seen, is not to put an end to the contract for all purposes, but, when accepted, to deprive the mandatory of the benefit of any exceptions in that contract limiting the J72 liability of the mandatory under it. The deviation in the present case, if it took place as alleged, was accepted as a repudiation by the issue of the writ, but the claim in negligence, like the alternative claim in this action, arose out of acts done before the issue of the writ, ie, before the acceptance of the repudiation. The arbitration clause remains in force to settle all such claims if they fall within its ambit. " The arbitration clause in the present case is, as to the subject-matter of claims within its ambit, in the widest possible terms. That clause is not in terns limited to claims arising "under" the contract. It speaks simply of "claims." This, of course, does not mean that the term applies to claims of every imaginable kind. Claims which are entirely unrelated to the transaction covered by the contract would no doubt be excluded; but we are of opinion that. even if the claim in negligence is not a claim "under the contract: " yet there is a sufficiently close connection between that claim and that transaction to bring the claim within the arbitration clause even though framed technically in tort. A claim so framed was treated in Polemis v Furness, Withy & Co Ltd as falling within an arbitration clause in the contract. which provided that, should any dispute arise between the owners and charterers, the matters in J73 dispute should be referred to three persons in London. For these reasons, the appeal fails and must be dismissed with costs." [11 l]The Respondent argues that there is a sufficiently close connection between the claim for misrepresentation and the Holding Certificate and Warehouse Storage Agreement executed between the Applicant and Respondent. The Respondent points out for instance, in paragraph 25 of the Statement of Case, the Respondent pleaded as follows : "25. Further and in the alternative, the Claimant will aver that the Holding Certificate was false or was made fraudulently or otherwise in breach of the duty of care owing to the Claimant as a recipient of the Respondent's representation, whereby the Claimant has suffered loss and damage. PARTICULARS OF THE FALSITY 2 5.1 The First Cobalt Consignment was not held in the Respondent's bonded warehouse; 25.2 The First Cobalt Consignment was held in a part of the Respondent's warehouse under common control with Luwowoshi Mining and could not be inspected or sampled without the consent of Luwowoshi Mining; 25.3 The First Cobalt Consignment was not held fees, of encumbrances subject only to the payment of the J74 Respondent's fees, since the Respondent Knew of Luwowoshi Mining's interest. " [ 112]It is argued that further, the Respondent's Affidavit in Opposition has shown that the Respondent's claims are tied to the Holding Certificate and Warehouse Storage Agreement. refer to paragraphs 9 to 1 7 of the Affidavit in Opposition. The Respondent reiterates that the claim for damages for misrepresentation cannot be separated from the Holding Certificate and Warehouse Storage Agreement. [113]The Respondent, argues that because the claim for damages for misrepresentation is not an independent claim separate from the Holding Certificate and Warehouse Storage Agreement. it is not a matter not contemplated by the relevant arbitration clauses and it rightly falls within the ambit of arbitration. [114]The Respondent argues further, and in the alternative, that even if the Applicant was to succeed on the argument the claim for damages for misrepresentation stems from facts that pre date the arbitration agreements contained in the Holding Certificate and Warehouse Storage Agreement, the Award would only partially be set aside. The Respondent relies on the provisions of section 17 (2) (a) (iii) of the Arbitration Act, which states in clear terms that: (iii) the award deals with a dispute not contemplated by, or not falling within the terms of, the submission J75 to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decision on matters not submitted to arbitration may be set aside; [115]The Respondent argues that it's claim for damages for loss of business postdated the submission to arbitration and was integral to the harm suffered by Respondent due to Applicant's actions is therefore a matter contemplated by the submission to arbitration. It is submitted that the Applicant's application is clearly without merit. [ 116] Section 17 (2) (b) (ii) test - The Respondent submits that the questions whether there was a bailment relationship between the Applicant and, Respondent, whether the Respondent was a joint bailor with Trans Africa and whether the arbitral proceedings could not have been commenced by the Respondent alone, _ are calling upon this Honourable Court to deal with the substantive arbitral proceedings. This, it is argued, is not the mandate of this Court in an application such as this. The Respondent reiterates its submissions that if in order to address the questions posed by the Applicant, the Court is required to delve into the merits of the said questions, this in itself shows that the Applicant's application is in fact an appeal disguised as an application to set aside the J76 Award. The Respondent goes on to argue the merits to show why the App_licant's application does not fall under section 17 (2) (b) (ii) of the Arbitration Act which provides that an arbitral award may be set aside if the court finds that the award is in conflict with public policy; [117]The Respondent argues that the Applicant's basis for claiming that the Award is in conflict with public policy is that the Respondent was a joint bailor of 326Mt of cobalt with Trans Africa. That the Tribunal did not have jurisdiction to determine proceedings that were commenced by the Respondent in the absence of Trans Africa. That the Applicant further argues that it was a gross injustice for the Tribunal to find that title to 326Mt of cobalt that was held by the Applicant passed to the Respondent thereby creating a bailor and bailee relationship between the Applicant and Respondent. [118)The Applicant's contention that an action in bailment can only be maintained if Trans Africa and Luwowoshi Mining Limited ("Luwowoshi") were joined to the proceedings is misguided. We say so because on 14th December, 2020, the Applicant delivered a Holding Certificate to the Respondent, certifying that the Applicant was holding 326Mt of cobalt at the irrevocable and unconditional order of, and for the account of the Respondent. [ 119) The Applicant having agreed to hold the goods on behalf of the Respondent, a relationship of bailment was created between J77 the Applicant and Respondent. Even though the Applicant initially held the goods on account of Trans Africa, as soon as the Holding Certificate was given in favour of the Respondent the Applicant's allegiance shifted from Trans Africa to the Respondent. That in the case of Ex Parte Coopert (26); the Court stated that; "When goods are placed the possession of a carrier to be carried for the vendor, to be delivered to the purchaser, the transitus is not at an end, so, Yong as the carrier continues to hold the goods as a carrier. It is not at an end until the carrier, by agreement between himself and the undertakes to hold the goods for the consignee not as carrier but as his agent. Of course, the same principle will apply to a warehouseman or a wharfinger." [120]The Respondent argues that by issuing the Holding Certificate in favour of the Respondent, the Applicant not only assumed the position of a bailor holding goods only for the Respondent but also became the Respondent's agent. As the Respondent's agent, the Applicant ought only to have acted on instruction from the Respondent. [12l)The position that the goods were held by the Applicant only for the Respondent is also strengthened by the Warehouse Storage Agreement executed by the Applicant and Respondent J78 in which the Applicant agreed to store the goods that it held on account of the Respondent. [122]The Respondent was not a joint bailor with Trans Africa and Luwowoshi and therefore, the Respondent rightly commenced the arbitral proceedings against the Applicant alone. The Respondent argues that Paragraph 108 of Halsbury's Laws of England Volume 4, 5 th edition at page 108 relied on by the Respondent begins by stating as follows: "Where chattels belonging to co-owners are delivered to a bailee to hold on behalf of all, it is implied, unless expr_essly stipulated to the contrary, that he shall deliver up possession only upon the demand of all co-owners He is therefore justified in refusing to redeliver the chattels on the demand of one or some of them only. and a claim will not lie against him for such refusal. " [123]The Respondent argues that even assuming that the Respondent was a joint bailor the authority cited above stipulates that a bailee will only redeliver the goods held upon demand of all co-owners. The Applicant redelivered the goods that it held to Luwowoshi when the Respondent categorically informed the Applicant not to release the goods. In this regard, the Applicant still breached its duty owed to the Respondent. The Tribunal was therefore on firm ground when it determined J79 the Respondent's claims even in the absence of Trans Africa and Luwowoshi. [124]The Applicant has relied on several foreign decisions not binding on this Court to show what is considered as contrary to public policy. As insightful as these authorities may be, they do not assist the Applicant's application in any way. In the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency (4); the Supreme Court adopted the Zimbabwean case of Zimbabwe Electricity Supply Authority v Maposa (16); in which the Court made the following pronouncement on public policy considerations in arbitral matters: "Where, however the reasons or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes an inequity that is so far reaching and outrageous in its defiance of logic or accepted standards that a sensible and fair-minded person would consider that the concept of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. II [125]The Tribunal's finding that a bailment relationship existed between the Applicant and Respondent is not so outrageous that it defies logic or acceptable standards. In fact, nothing in the Tribunal's Award comes within the definition of what J80 would be considered a conflict with public policy. Public policy demands . the opposite conclusion, that the sanctity of contracts that can be arbitrated under Zambian law should be respected and provide parties the commercial certainty in order for them to conduct business and grow the economy of Zambia. The Respondent submits that it is abundantly clear that the Applicant's application to set aside the Award is without merit and should be dismissed as the Applicant has not satisfied any of the requirements of section 1 7 (2) of the Arbitration Act. It therefore goes without saying that the Award delivered in the Respondent's favour ought not to be set aside. Hearing [ 126] At the hearing, Counsel for the parties relied on the documents on record and augmented with viva voce submissions; Applicant's Submissions [ 127] The first ground that is grounded on section 17(2) (a) (i) on the ground that in fact the agreement that carried the Arbitration clauses, that in fact granted Jurisdiction to the Arbitral Tribunal are invalid for fraudulent misrepresentation or mistake or lack of clear instructions or want of valid instructions from Trans Africa Mining and the Respondent herein. [128]The second ground is that the Arbitral Tribunal, exceeded the scope of her powers as an Arbitral Tribunal by considering matters that were clearly not in the contemplation of the parties J81 when they sat in the Arbitral Tribunal. The Court will notice from the statement of case that has been produced as HS 15 in the Affidavit in support that the story started on the 8 th of September, 2020, the representations that the Respondent herein complains of only came into existence in December of 2020. That at the time the misrepresentations complained of were made there was no relationship between the Respondent and your Applicant in this matter, they could not possibly have contemplated that the statements they were making in August November ,2020, would be a subject of Arbitration on December, 2020, that is the grievance of the Applicant on that ground. [129) Secondly on that Ground, the grievance of the applicant is that there could not have been misrepresentation at law that could have induced the Respondent herein in a material way to enter into the holding certificates of 10th December and warehousing certificate of 15t h December, 2020. That it is trite that there can be no misrepresentation attracting an award of damages to the tune of USD 1. 9 million dollars when the representee knows the truth of the matter. Counsel directed the Court to paragraphs 21 and 22 of the Respondent's statement of case produced into court as HS15 of the Affidavit in Support and of those two paragraphs. [130)That the Respondent sent their surveyors to inspect and were aware that they were not in fact in a bonded warehouse. The argument is that that knowledge is imputed to the Respondent and therefore could not be have misled by it. J82 (131]The third ground on which the award is being assailed is that the Arbitral Tribunal lacked jurisdiction - it is a basic principle of arbitration, that the tribunal must only make reference and orders to the parties before it - I direct the attention of the Court to clause 11 of the statement of case produced herein as HS15 where the Respondent herein openly pleads in its pleading that in fact the Cobalt in issue was held on behalf of Luwowoshi Mining Limited rather than Trans Africa. (132]The last grievance is grounded in public policy. That the award elicits a sense of shock to that Applicant thereby attracting the wrath of public policy in that the Arbitral Tribunal, firstly proceeded with the Arbitration with the Arbitration affecting parties not before it, secondly despite complaints from your Applicant that the law of bailment dictated that where there is more than one bailer as was the case in this case where your applicant ended up with three hailers actually. The Respondent herein Trans Africa Mining and Luowoshi Mining as confirmed by the Respondent itself, one bailer cannot bring such an action to the exclusion of the other hailers, the Arbitral Tribunal my Lord entertained the Respondent's Action to the shock and surprise of your Applicant in the face of clear legal guidance under the law of bailment. (133]Thirdly the Arbitral Tribunal proceeded to award damages in the sum of USD 1. 9 million relying on a sales contract with an unnamed Chinese company and this contract has been produced in the Affidavit in reply as exhibit HS4. That the Court J83 will notice in that exhibit that the party to that contract 1s redacted, the quantum of the cobalt they were buying 1s redacted, the price at which the cobalt was being bought is redacted, thereby leading to an inescapable conclusion that this Agreement did not exist and could not be a basis on which the Arbitral Tribunal could anchor an award of USD l. 9 million. Respondent's Submissions [ 134] Mr. Songolo in arguing the Originating Summons Application argued that this is the Applicant's application for an order to set aside an Arbitral Award dated 31 s t August 1 2022 and made pursuant to section 17(2)(a)(i)&(iii) and Section 17(2) (b) (ii) of the Arbitration Act No. 19 of 2000 as read with Rule 23 of Statutory Instrument No. 75 of 2001. That in making this application, the applicant relied on the Affidavit in support and also the Affidavit in reply filed into Court as well as the skeleton arguments and authorities in support of the Application filed into Court. [ 135] Counsel argued that the application is that the Award subject of these proceedings is available for setting aside on account of the different grounds. That the first ground that is grounded on Section 17(2) (a) (i) on the ground that in fact the agreement that carried the Arbitration clauses, that in fact granted jurisdiction to the Arbitral Tribunal are invalid for fraudulent misrepresentation or mistake or lack of clear instructions or J84 want of valid instructions from Trans Africa Mining and the Respondent herein. [136]It was posited that the law, the Arbitration Act in the section cited makes it very clear that an award grounded on an invalid underlying agreement will be set aside if it is invalid, the act also is plain that the Applicant must furnish proof of invalidity. The Applicant argues that the language in section 17 (2)(a)(i) is not ambiguous. The Applicant in its Affidavit has pointed to the background of the documents that are being assailed and I point the Court to paragraph 16 - 20 of the Affidavit in support. My Lord the Sum1nary of the evidence under those paragraphs and the attendant exhibits referred to in those paragraphs is that the Respondent's General Counsel. [ 137] The Applicant argues that the Applicant was fraudulently misled into issuing the irrevocable and unconditional holding certificates when in fact the instructions from the owners of the Cobalt i.e Trans Africa Mining were for the Applicant to only issue a conditional temporal or provisional holding certificate. That this is the basis for claiming fraudulent misrepresentation and or mistake which renders those documents void and invalid. [138]The award heavily relies on those two documents as the basis on which damages were awarded and the Court was directed to paragraph 4.5. 79 of the award. [139]The grievance of the Applicant on the Second ground is that the Arbitral Tribunal, exceeded the scope of its powers as an Arbitral J85 Tribunal by considering matters that were clearly not in the contemplation of the parties when they sat in the Arbitral Tribunal. The from the statement of case that has been produced as HS 15 in the Affidavit in support, that the story started on the 8 th of September, 2020. That the representations that the Respondent complains of only came into existence in December, of 2020. That at the time the misrepresentations complained of were made there was no relationship between the Respondent and the Applicant in this matter. That they could not possibly have contemplated that the statements they were making in August - November, 2020, would be a subject of Arbitration on December, 2020. [ 140] Secondly on this Ground, the grievance of the applicant is that there could not have been misrepresentation at law that could have induced the Respondent herein in a material way to enter into the holding certificates of 10th December and warehousing certificate of 15th December, 2020. That it is trite that there can be no misrepresentation attracting an award of damages to the tune of USD 1. 9 million dollars when the representee knows the truth of the matter. Counsel directs the Court to paragraphs 21 and 22 of the Respondent's stamen of case produced into court as HS 15 of the Affidavit in Support and of those two paragraphs the Respondent sent their surveyors to inspect and were aware that they were not in fact in a bonded warehouse. The argument is that that knowledge is imputed to the Respondent and therefore could not be misled by it. J86 [ 141] The third ground on which the award is being assailed my Lord is that the Arbitral Tribunal lacked jurisdiction - it is a basic principle of arbitration my Lord that the tribunal must only make reference and orders to the parties before it - I direct the attention of the Court to clause 11 of the statement of case produced herein as HS 15 where the Respondent herein openly pleads in its pleading that in fact the Cobalt in issue was held on behalf of Luwowoshi Mining Limited rather than Trans Africa. [142]That it was imperative that these owners of the cobalt are joined to the proceedings. [ 143] The Applicant raised the issue of Jurisdiction and which Counsel did not go into it as it is said \Vas sufficiently pleaded [ 144] The last grievance is grounded in public policy. That the award elicits a sense of shock to that Applicant thereby attracting the wrath of public policy in that the Arbitral Tribunal, firstly proceeded with the Arbitration with the Arbitration affecting parties not before it. Secondly; despite complaints from the Applicant, that the law of bailment dictated that where there is more than one bailer as was the case in this case where the Applicant ended up with three hailers actually, the Respondent herein Trans Africa Mining and Luwowoshi Mining as confirmed by the Respondent itself, one bailer cannot bring such an action to the exclusion of the other hailers, the Arbitral Tribunal entertained the Respondent's Action to the shock and surprise J87 of the Applicant in the face of clear legal guidance under the law of bailment. [145]Thirdly and lastly, the Arbitral Tribunal proceeded to award damages in the sum of USD 1. 9 million relying on a sales contract with an unnamed Chinese company and this contract has been produced in the Affidavit in reply as exhibit HS4. The Court will notice in that the exhibit that the party to that contract IS redacted. The quantum of the cobalt . they were buying IS redacted and the price at which the cobalt was being bought is redacted, thereby leading to an inescapable conclusion that this Agreement did not exist and could not be a basis on which the Arbitral Tribunal could anchor an award of USD 1. 9 million. [146] Counsel stated that to the credit of the Arbitral Tribunal, facilities were availed of virtual appearance by the parties. In fact, the Respondent's witness testified via the internet, but shockingly no one was called from this unnamed Chinese company to prove the validity of this document to warrant the awards that were handed down. This, it is posited, is gross injustice and offends public policy. That it offends a basic procedure of our Courts as we know them: that he who alleges must prove. It is therefore your Applicants submission that the award cannot stand based on public policy consideration grounded on gross injustice. The Applicant also prays for costs. J88 The Respondents Case [ 14 7] Mr. Ndalameta for the Respondent relied on the Affidavit in opposition sworn by Gildardo Michelle - Garcia as well as Skeleton Arguments m opposition. Counsel augmented to emphasize two points. [ 148] The first point is that Section 17 of the Arbitration Act, that has been cited does not permit this court to delve into the merits of what happened at Arbitration. That it is clear that this is what the Applicant is trying to do, for example the argument on the quantum of the award rather that the fact of awarding damages. Another example is regarding who led what evidence during the Arbitral proceedings and which parties were present. The Respondent's simple response is that these are all matters to do with the merits and if indeed there was a party that was affected, that was not heard, that party will come forward . The important point is the Applicant was present and heard. [149]The second and last issue relates to the argument on the scope of the Arbitration. That the Respondent contends that if an arbitral clause is meant to operate from a particular date going forward, it will expressly state so. The arbitral clauses in this case contained no such Limitation as is being canvased by the Applicant and the Respondent urges this court to dismiss the Application. [150]The Respondent made a final observation, that in these circumstances where the Applicant's claims are so lengthy in the J89 Affidavit in support and also in the Affidavit in reply the Court is urged to take this as a sign that the real intention is to re-hear the Arbitration. The Respondent contends that that is not permissible at all under the Arbitration Act. The Respondent prays that the application to set aside the award is dismissed with costs to the Respondent. Applicant's Reply [ 151] Mr. Songolo argued in reply, that Section 17 of the Arbitration Act, in particular Section 17(1)(2)(a), places a heavy burden on the Applicant to provide proof of what transpired at Arbitration. That is the reason why the Applicant provided detailed Affidavits to show proof. The Applicant argues, secondly and lastly, that the Respondent is attempting to rely on the interpretation of the Arbitral clauses which the Applicant alleges and has provided proof were fraudulently drafted to suit it. The Court is urged to decline the invitation from the Respondent to benefit from its own questionable activities. Judgment [152]1 have read and considered the application and all documents filed by the parties, as well as the arguments on the law in support of and against the application. The Applicant's application is made pursuant to Section 1 7 of the Arbitration Act and Rule 23 of the Arbitration (Court Proceedings) Rules S. I 75 of 2001 . Section 1 7 gives a party in an arbitration the right to challenge an award made therein and have it set aside J90 on the grounds contained 1n Section 1 7 (A) (iii). The said Section provides that; 1. Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3). 2. An arbitral award may be set aside by the court only if- a) the party making the application furnishes proof that- i. a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the laws of Zambia; ii. the party making the application was not given proper notice of the appointment of an arbitral or of the arbitral proceedings or was otherwise unable to present his case; iii. the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated J91 from those not so submitted, only that part of the award which contains decision on matters not submitted to arbitration may be set aside; iv. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with this Act or the law of the country where the arbitration took place; or v. the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or b) if the court finds that - i. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zambia; or ii. the award is in conflict with public policy; or iii. the making of the award was induced or effected by fraud, corruption or misrepresentation. J92 3. An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request has been made under articles 33 of the First Schedule, from the date on which that request had been disposed of by the arbitral tribunal. 4. The court, when asked to set aside an award may, where appropriate and if so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside." [ 153] The question of this Court's jurisdiction to determine the application as tabled before it has been argued by the Respondent that this Court has no jurisdiction over the application as the Applicant is trying to reopen or have a rehearing of the arbitration which Section 17 of the Arbitration Act does not permit this Court to delve into the merits of what happened at Arbitration. [ 154] The issues to be determined are thus those in the Respondent's originating summons and I believe that I have the jurisdiction to hear the application and determine it under Section 17 of the Arbitration Act, under which the Court has been moved. As to J93 whether I can actually set aside the award 1s what will be determined below, having heard both parties. [155]1 remind myself that this is an application ar1s1ng out of arbitration proceedings and the role of the Courts in arbitration proceedings is very limited as stated by my learned brother Honorable Mr. Justice Nigel Mutuna in Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited (12), wherein he stated, in relation to what was an application for registration of an arbitral award, that; " ..... The complimentary role the courts play means that the courts merely assist the arbitral process to be effective because since it is manned by private citizens and not the state, there are no systems put in place to make it effective such as those available to the courts ..... " [156]The rationale for the Court's limited role, is to preserve the final and binding nature of the arbitration process, as stated by the Court in the case of John Kunda (Suing as Country Director and on behalf of the Adventists Development and Relief Agency (ADRA v Karen Motors (Z) Ltd (27); that; "To preserve the integrity of the arbitral process, the point should be noted that setting aside proceedings do not serve as a means to achieve a review of the tribunal's decision on the merits. The courts view is fortified by the learned authors, Redfern and Hunter, J94 Law and Practice of International Commercial Arbitration, Third Edition (London, Sweet & Maxwell, 1999) where they state that:- "Arbitral rules, such as those of the UNICITRAL ..... provide unequivocally that an arbitral award is final and binding. These are not intended to be mere empty words. One of the advantages of arbitration is that it is meant to result in the final determination of the dispute between the parties ... by choosing arbitration, the parties chose a system of dispute resolution that results in decision that is in principle, final and binding. It Is not intended to be a proposal as to how the dispute might be resolved; nor is it intended to be a first step on a ladder of appeals through national courts .... " [ 157] Further guidance on the role of the Court, is given in the case of Konkola Copper Mines Limited v Copper Fields (28); at page 156 that· ' ' "An application to set aside an award is not intended for the Court to review the award of the tribunal or indeed conduct a hearing akin to an appeal." J95 [158]The Court of Appel is quoted as stating as follows in the case of Satyam Shivan Sundarm and Another v Given Chisakula Kawina (29); "Arbitral rules such as those of UNCITRAL, provide unequivocally that an arbitration award is final and binding. These are not intended to be mere empty words. One of the advantages of arbitration is that it is meant to result in the final determination of the dispute between parties. If the parties want a compromise to be proposed, they should opt for mediation. If they are prepared to fight they should opt for litigation. By choosing arbitration, the parties choose a system of dispute resolution that results in the decision that is in principle final and binding. It is not intended to be a proposal as how the dispute might be resolved, nor is it intended to be the first step on a ladder of appeals through national courts." I also defer to the case of Philippines v Phillipine International Air Terminals Company Incorporation (2); cited by the Applicant where the Singapore High Court held that; "An Arbitral award is not liable to be struck down on application in courts because of allegations that it is premised on incorrect grounds whether of fact, or law. An application to set aside an award made in an international arbitration is not an appeal on the merits, J96 and cannot be considered in the same way as the court would consider the findings of a body over whom it has appellate jurisdiction" [ 159] I therefore remind myself, that Courts like this one, are given very narrow or limited parameters by Section 17 of the Arbitration Act in setting aside arbitral awards. The above authorities speak to this which is really poignant in this case as the grounds of application to set aside are many and were covered to some detail in the arbitration proceedings and there is a real risk of this Court overstepping its bounds and delving in to the merits of the actual Arbitration as warned by the Respondent. The risk above is most pronounced in this case where the level of detail argued by the Applicant and the Respondent can easily sway the Court to overlook and forget that it is not sitting in an appellate capacity. I will endeavor to stick to the narrow path, that is allowed to this Court under the Act. I will use the summary of the issues adopted by the Respondent for ease of navigating the Judgment. Whether the Applicant is precluded from appealing the Tribunal's ruling that it had jurisdiction, now that more than 30 days have elapsed after having received notice of the ruling of the Tribunal [160]The Applicant argues in its first ground that under Section 17(2) (a) (i) the agreement that carried the Arbitration clauses, and J97 granted jurisdiction to the Arbitral Tribunal are invalid for fraudulent misrepresentation or mistake or lack of clear instructions or want of valid instructions from Trans Africa Mining and the Respondent herein. (161)The Applicant's arguments and submissions on this ground for applying to set aside the Arbitral Award as they relate to jurisdiction were in my view addressed and would, if I am to go into them be delving into the merits of the Award which I am precluded from so doing. [ 162) Further, the points raised by the Respondent regarding the Applicant's failure to ·challenge the jurisdiction of the Tribunal within 30 days is a valid one which I agree with. (163] I therefore dismiss this ground. Whether the arbitration clauses in the holding certificate and warehouse storage agreement exhibited respectively as HS2 and HS3 to the affidavit in support (together the "Binding Arbitration Agreements"), are valid and .binding arbitration agreements between the Applicant and the Respondent under the Laws of Zambia; Whether the arbitration clauses in the Binding Arbitration Agreements cover the scope of the dispute between the parties; [ 164] Clause 11 of the Holding Certificate appearing as Exhibit . HS 2 of the Affidavit in Support provides as follows: J98 "The Contract contained in or evidence by this Holding Certificate is governed by and construed in accordance tuith the Law of the Republic of Zambia and AFICD hereby agrees that any. dispute arising under or in connection with it shall, at the option of the Buyer, be re[erred to arbitration and seat shall be in the Republic of Zambia" Clause 3 of the Warehouse Storage Agreement dated 15 December, 2020, shown as Exhibit HS 3 of the Applicant's Affidavit in Support particularly provides that: "This agreement is governed by and constructed in accordance with the law of the Republic of Zambia and AFICD Zarnbia hereby agrees that any dispute arising under or in connection with it shall, at the option of Cobham, be referred to arbitration and seat shall be in the Republic of Zambia" [165) The Applicant has argued that the arbitral tribunal dealt with which a dispute was not contemplated by the parties as a dispute of arbitration or was actually not falling within the terms of submission to arbitration. (166)1 have carefully perused the facts and the arguments for and against as well as the Award itself and I am of the position that I cannot fault the Tribunal's Ruling that the Binding Arbitration Agreements are valid and binding on the parties and the clauses J99 thereof do cover the scope of the dispute taken to arbitration. I equally dismiss this ground. Whether the award is in conflict with public policy [167) The Applicant has argued that an award will be set aside if the same is against public policy relying on Section 17 2 (b) (ii) which states that; "if the Court finds that- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zambia; or (ii) the award is in conflict with public policy;" [168] The Applicant gone on to argue that an arbitral award will be set aside on account of it being against public policy if one can demonstrate that the award in terms of procedural law, it violated the rules of natural Justice by not giving the parties to the arbitral award a fair opportunity to be heard or unequal treatment of the parties. Thus, an arbitrator cannot be partial towards a party to the arbitration. [ 169] The Applicant has submitted that the Respondent and Trans Africa were its Joint bailors to the cobalt in dispute. That an action cannot be brought by a single bailor against a bailee. Procedurally, the Arbitrator in this matter defied this significant procedural principal of bailment. JlOO [ 170) The Respondent denies that it was a joint bailor with Trans Africa and Luwowoshi and therefore, it rightly commenced the arbitral proceedings against the Applicant alone. The Respondent argues that by issuing the Holding Certificate in favour of the Respondent and the Warehouse Storage Agreement, the Applicant not only assumed the position of a bailor holding goods only for the Respondent but also became the Respondent's agent. As the Respondent's agent, the Applicant ought only to have acted on instruction from the Respondent. [ 1 71] The Respondent argues that even assuming that the Respondent was a joint bailor a bailee will only redeliver the goods held upon demand of all co-owners. The Applicant redelivered the goods that it held to Luwowoshi when the Respondent categorically informed the Applicant not to release the goods and thus the Applicant still breached its duty owed to the Respondent. The Tribunal was therefore on firm ground when it determined the Respondent's claims even in the absence of Trans Africa and Luwowoshi. [172)In the Zambian case of Martin Misheck Simpemba, Rose Domingo Kakompe v Nonde Mukanta and Zambia Industrial Minerals Limited ( 11 ), Matibini J, defined public policy as; "The law relating to S.17 (2) (b) (ii); that an arbitral award may therefore be set aside by the High Court if the award is in conflict with public policy, may be J101 summed up as follows: the term "public policy" should be understood to cover the fundamental principles of law and justice from the procedural and substantive stand points. Although the term public policy is not defined in the Arbitration Act, or the Model Law, the defence of public policy should only be invoked where the upholding of an arbitral award would: shock the conscience; clearly injurious to the public good; wholly offensive to an ordinary member of society; where it offends the forum's most basic notion of morality, or injustice; or it is so outrageous in its defence of logic, or accepted moral standards that any sensible, and fair minded person would be intolerably hurt by such an award." [ 1 73] In the Indonesian case of Pt Asuransi Jasa Indonesia (PASERO) v Dexia Bank S. A (30), the Court stated that; "Although the concept of public policy is not defined in the Act, or the Model Law, the general consensus of judicial, and· expert opinion is that public policy under the Act encompasses a narrow scope. In our view, it should only operate in instances where the upholding of an arbitral award would "shock the conscience" ... or is clearly injurious to the public good, or "wholly offensive to the ordinary reasonable, and fully informed member of the public." (See Deutsche Schachbau v Shell International Petroleum Company Limited, at 254 J102 per Sir John Donaldson M. R.) or where it violates the foru~s most basic notion of morality and justice (See Parsons and Whittemore Overseas Inc. v Societe General de Industrie du Paier.)." [ 174] Public policy has been defined in the following cases Zambia · Revenue Authority v Tiger Limited and Another (24); Zimbabwe Electricity Supply Authority v Maposa ( 16); and Pt Asuransi Jasa v Dexia Bank (30). The Respondent quotes Lady Justice I Z Mbewe in the case of Saving Wealth Limited v Zamastone Limited(32); that; "The .defence of public policy is narrowly constructed in a bid to preserve and recognize the goal of finality of all arbitration proceedings. The concept of public policy should therefore only operate in instances where the upholding of an arbitral award is clearly injurious to the pu~lic good, or that it violates the most basic notions of morality and justice such as where a decision is tainted by a breach of natural justice. It follows that the threshold to establish a public policy exception is therefore high and the party seeking it must show an unacceptable violation of the principles of justice or the rule of law. Thus, an arbitral award is not liable to be struck down on allegations that is premised on incorrect grounds whether of fact or law. This is because an application to set aside an award is not an appeal on the merits." J103 .., [ 175] I agree with the arguments and submissions by the Applicant relating to0 _the existence of a relationship of joint bailors by Trans Africa and the Respondent to the 326 Mt of the Cobalt that was in dispute. The Arbitral Tribunal having made a finding that the Respondent and Trans Africa were Joint bailors to the cobalt in dispute, an action cannot be brought by a single bailor against a bailee, i.e. by the Respondent in the absence of Trans Africa. Conclusion / Order [176]Upon consideration of all facts and circumstances surrounding the application and the law, I hereby uphold the Applicant's application in respect of Ground (iv) only and I hereby set aside the Arbitral Award dated 31 st August, 2022, pursuant to Section 17 (2) (a) (iii) of the Arbitration Act No. 19 of 2000 on the grounds that the entire award of 0S$64, 990.00 and US$1, 907, 320.00 being special damages for misrepresentation and loss of profit is an award against public policy for breach of rules of natural justice as the Arbitral Tribunal's powers did not extend to making findings of fact on passage of title in the Cobalt in dispute involving third parties namely Trans Africa Mining Sarlu and Luowoshi Mining Limited both of whom were not only not parties to the Agreements carrying the Arbitration Clause but also were not before the Arbitral Tribunal or making findings of fact on issues of joint bailor / bailee relationships involving the said third parties. J104 [ 1 77] I award costs to the Respondent, to be taxed 1n default of agreemen~ [ 178] Leave to appeal is her~~ranted. Delivered at Lusaka this ~day of ~2024 'J10 5