Alick Tembo and Ors v Kwacha Pension Trust Fund and Anor (Appeal No. 108 of 2024) [2025] ZMCA 69 (6 June 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 108 of 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : 06 JU: ALICK TEMBO AND 21 OTHERS APPELLANTS AND KWACHA PENSION TRUST FUND BANK OF ZAMBIA 1sr RESPONDENT 2ND RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 22nd April & 6th June 2025 For the Appellants: Mr. K. Kaunda Messrs. Kau nda Kaunda & Mwila Legal Practitioners For the 1st Respondent: Mr. P. Chungu Messrs. Ranchhod Chungu Advocates For the 2nd Respondent: Ms. S. Kaingu- In House Counsel Bank of Zambia JUDGMENT Patel, JA, delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. Leopard Ridge Safaris v Zambia Wildlife Authority (2008) ZR 97 vol 2 Richard H. Chama & 213 others v National Pension Scheme Authority and 8 others -SCZ Appeal No. 001/2018. Audrey Nyambe v Total Zambia limited - SCZ Appeal No. 29 /2011 Zambia National Holdings Limited and Another v The Attorney-General (1993- 1994} ZR 115 5. Thelma Maunga v The Anti Corruption Commission and Attorney General -SCZ Appeal No. 5 of 2024 6. Road Transport and Safety Agency v First National Bank Zambia Limited and Josephine Milambo - SCZ Appeal No. 127 /2016 7. Aristogerasmos Vangelatos and Vas il ki Vangelatos v Metro Investments Limited and others- SJZ No. 36 of 2016 8. 9. NAPSA v Philip Stuart Wood -SCZ Selected Judgment No. 45/2018 Zlatan Zlatco Arnautovic v Stanbic Bank Limited c -SCZ Appeal No. 219/ 2006 10. Environmental Investigation Agency Inc, News Diggers Media Limited v Given Lubinda, Jean Kapata and Tasila Lungu -CAZ Appeal No. 77 /2020 11. Road Development Agency v Stefanutti Stocks and Consolidated Contractors Company Joint Venture -CAZ Appeal No. 31/2024 12. Megha Engineering and Infrastructure Limited and The Attorney General v Marks Industries Limited -CAZ Appeal No. 270/2021 13. Yangts Jiang Enterprises Limited (In Receivership) v Society House Development Company Limited -CAZ Appeal No. 64/2022 14. African Banking Corporation v Mubende Country Lodge Limited - SCZ Appeal No. 116/2016 J2 :. 15. John Sangwa v The Legal Practitioners Committee of the Law Association of Zambia -SCZ Appeal No. 121/2013 16. ZCCM Investments Holdings Pie v Vedanta Resources Holdings and Konkola Copper Mines Pie {2022} ZMSC 10 17. Heyman and Another v Darmis limited (1942} AC 356 18. Konkola Copper Mines Pie v NFC Africa Mining Pie -SCZ Appeal No. 118/ 2006 19. Ody's Oil Company Limited v The Attorney General and Constantinos James Papaoutis -SCZ Judgment No. 4/ 2012 20. Ashville Investments v Elmer Constructors Limited 1988 2 ALL ER 577 21. Vangelatos v Vangelatos -SCZ Appeal No.7 of 2006 Legislation referred to: 1. 2. 3. 4. 5. 6. The Arbitration Act No. 19 of 2000 The Arbitration (Court Proceedings) Rules, 5.1. No . 75 of 2001 The High Court (Amendment Rules) Statutory Instrument No. 58 of 2020 The Pension Scheme Regulation Act as amended by Act No 27 of 2005 The Court of Appeal Act No. 7 of 2016 and the Rules 5.1. No. 65 of 2016 The Rules of the Supreme Court of England 1965, (1999) Edition (White Book) (RSC) Texts and other materials referred to: 1. Gary B. Born in International Commercial Arbitration (Kluwer Law International 2020} 2. Michael Mcilwrath and John Savage in "Arb itration Law: A Practica l Guide" (Kluwer Law International 2010} 3. Black's Law Dictionary 10th Edition by Bryan A. Garner, 2009 J3 4. Halsbury's Laws of England volume 2, fifth Edition (2008) paragraph 1215 5. Commercial Arbitration by Sir Michael J Mustill and Stewart C. Boyd Q. C. (2 nd Edition at page 185) 6. International Arbitration Law and Practice by Manro Robina Summartano (Kluwer La w International 2001) 7. Chitty On Contracts Vol. 1 - General Principles - 28th Edition -London Sweet & Maxwell 1999 1.0 INTRODUCTION 1.1 This is an interlocutory appeal against the Ruling in Cause No. 2021/HP/0999 delivered by Hon M. C. Kombe, J. dated 29th December 2023. 1.2 This Appeal interrogates once again, the role of the Court, in the particular context of an application made under section 10 of th e Arbitration Act1 as read with rule 4 of the Arbitration (Court Proceedings) Rules 2 hereinafter referred to as the section 10 application. 1.3 The appeal also entreats us to guide litigants on what appears to have become a thorny area in the practice following the passing of the High Court (Amendment Rules) of 20203 with respect to the entry of appearance. 1.4 There is also within the main appeal, an issue canvassed by the Appellants in its heads of argument and referred to as a jurisdictional issue. To this inclusion, without leave of Court, the p t Respondent mounted a formal challenge by way of its notice to raise a preliminary objection. We will deal with the preliminary objection within the appeal. J4 1.5 We also note that this appeal is cause-listed for hearing in the same session with Appeal No. 203 of 2024. Both appeals arise out of Orders made by the lower Court to stay proceedings and refer the Parties to arbitration. Invariably, in addressing the grounds of appeal, other than where they may be specific to each appeal, the genera l ana lysis and determination will reflect in both appeals. 1.6 The Record of Appeal is presented in a single volume. Reference to page numbers shall refer to the Record of Appeal unless otherwise noted 2.0 BACKGROUND 2.1 For the purposes of this section, the Parties shall be referred to as they are in this Court. 2.2 It is noted that on 25th August 2021, the Appellants, (then the Plaintiffs) commenced proceedings in the general list of the High Court seeking reliefs which are clearly endorsed on the Writ of Summons and Statement of Claim as can be seen from pages 37 to 43. 2.3 Th e ist Respondent subsequently filed a conditional memorandum of appearance on 2nd September 2021 and proceeded to make a section 10 application with the supporting affidavit and skeleton arguments of 6th September 2021. The said process is noted from pages 49 to 77. 2.4 The Parties made other applications which were dealt with and determined and not relevant to the appeal before us. JS 2.5 The said section 10 application was opposed by the Appellants by process filed on 27th September 2021 and noted from pages 89 to 92 and the 1st Respondent' s Affidavit in Reply is noted from pages 93 to 119. 3.0 DECISION OF THE LOWER COURT 3.1 Upon hearing the 1st Respondent' s section 10 Application, referred to in paragraph 2.3 above, th e learned Judge delivered her Rul ing, now the subject of the appeal before us, which is noted from pages 13 to 36. 3.2 The learned Judge noted that the issue for determination was whether the lower Court should stay proceedings and refer the matter to arbitration as envisaged by the arbitration clause in Clause 26 of the Kwacha Pension Trust Fund (KPTF) . 3.3 The learned Judge noted that the Supreme Court has in a plethora of cases canvassed the need for a Court to stay proceedings and refer a matter to arbitration and placed reliance on the case of Leopard Ridge Safaris v Zambia Wildlife Authority1 • 3.4 The learned Judge also considered the Appellants' action which is anchored on the claim that their portable pension benefits were not computed in line with section 18 (3) (b) of the Pension Scheme Regulation Act as amended by Act No 27 of 2005 4 and that was why they sought re-computation of their probable pension benefits as per the statutory formula under the said section 18 (3) (b ). 4 JG 3.5 The learned Judge found that a dispute had arisen between the Parties regarding the construction or effect of the rules. In light of the arguments of the Parties on record which are noted from pages R13 to R34, the learned Judge found that the dispute between the Appellants and p t Respondent fell with in the purview of the arbitration clauses relied on by the 1st Respondent. 3.6 The learned Judge ultimately found merit in the p t Respondent' s application that the arbitration clause was valid, operative and capable of being performed . She accordingly stayed proceedings and referred th e Parties to arbitration . 4.0 THE APPEAL Dissatisfied with the said Ruling in the Court below, the Appellants filed their Notice and Memorandum of Appeal, on 25th January 2024, advancing three (3) grounds of appeal, as follows; 1. The Court below erred both in law and fact by holding that the arbitration clause in rule 26 of the Rules of the Kwacha Pension Trust Fund is operative herein contrary to the fact that the Appellants are not in full time employment as guided by the definitions of 'member' and 'employee'. 2. The Court below erred both in law and fact by holding that the arbitration clause is operative herein notwithstanding that rule 14{2} of the Trust Deed of the Bank of Zambia Pension Trust Fund, and rule 26 of the Rules of the Kwacha Pension Trust Fund are ejusdem generis. J7 3. The Court below erred both in law and fact by referring this matter to arbitration notwithstanding that one of the Appellants' claims relate to article 189 of the Constitution of the Republic of Zambia, Chapter 1 of the Laws of Zambia, on which an Arbitrator has no jurisdiction. 5.0 APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 5.1 We have duly considered and appreciated the Heads of Argument filed on 9th May 2024. 5.2 We have taken on board the arguments and submissions of Counsel. We note that pages 1 to 5 of the Heads of Argument appear to raise an issue, wh ich the Appellants submit, touches on jurisdiction. We also note that this part of the Heads of Argument is the subject of a separate notice of intention to raise a preliminary objection filed by theist Respondent and to which we shall allude later in our Judgment. 5.3 Pertaining to grounds 1 and 2, which were argued together, the Appellants have canvassed the argument that both rule 26 of the Rules of the (KPTF}, namely the arbitration clause, as well as clause 14 (2) of the Trust Deed of the Bank of Zambia Pension Trust Fund were rendered inoperative, on account of the Appellants ceasing to be employees of the 2nd Respondent, and correspondingly, no longer Members of the 1st Respondent' s Trust Fund . 5.4 The Appellants have canvassed the argument that the use of the words 'or any other person or persons" in rule 26 are ejusdem generis with the words 'The Trustees, the Employer, the Members' and cannot be the basis for bringing the JS Appellants within the reach of rule 26 and clause 14 (2) of the Trust Deed of the Bank of Zambia Pension Trust Fund. 5.5 The Appellants have also canvassed the argument that the Appellants' reliefs are as pleaded and endorsed on its originating process and based on the Appellant's statutory claims in section 18 (3) (b) of the Pension Scheme Regulation Act4 . 5.6 The Appellants have also canvassed the argument that their correct portable pension benefits ought to be calculated in accordance with the Judgment of the Supreme Court in the case of Richard H. Chama & 213 others v National Pension Scheme Authority and 8 others2 . 5.7 In as much as the Appellants have attempted to demonstrate that their entitlements are based on the decision taken in the Richard Chama case, as well as the direction of the Pensions Insurance Authority (PIA), we will not take these arguments into consideration as we are not determining or computing the entitlements of the Appellants, if any. On the contrary, we will only look at these arguments to determine if these can be used to defeat the section 10 application. 5.8 The Appellants have submitted that the arbitration clause in casu, name ly rule 26 of the KPTF is inoperative, in relation to the Appellants. Counsel has argued that the two trigger elements of rule 26, are non-existent and as such rendered the arbitration clause inoperative against the Appellants. 5.9 Further and in support of grounds 2 and 3, it is argued that the Appellants claim for payment of salaries until the pension payments are liquidated, being Jg in line with Constitutional provisions, is outside the ambit of the power of an Arbitrator, and hence the argument that the reference to arbitration is erroneous as the arbitration clause had become inoperative . In support of this composite argument, reliance was placed on a decision of the Apex Court rendered in the case of Audrey Nyambe v Total Zambia Limited 3 • 6.0 15r RESPONDENT'S NOTICE TO RAISE PRELIMINARY OBJECTION 6.1 The 1st Respondent, upon being served with the Appellants Heads of Argument, filed its Notice to raise preliminary objection dated 20th June 2024. This was filed with the attendant affidavit and skeleton arguments . (hereinafter referred to as the Preliminary Objection). Suffice it to note that the 2nd Respondent supported the Preliminary Objection by its Affidavit and skeleton argument of 12th July 2024. The Appellants filed their opposing process in the form of an Affidavit in Opposition as well as skeleton argument on 12th July 2024 to which the 1st Respondent filed its reply on 15th July 2024. 6.2 We note that the above stated process was filed before a single Judge of the Court who subsequently on 16th July 2024, issued an Order pursuant to the provisions of Order X rule 2 {6) 5 wherein the single Judge adjourned the application for consideration before the full Court at the time of the hearing of the main appeal. (Hereinafter referred to as the Order of the single Judge). 6.3 Accordingly, and as proposed by Counsel at the hearing of the appeal, we will determine the preliminary objection in the course of our Judgment, noting that the arguments of the Parties referred to above, sit on the Yellow File and not on the Record of Appeal. JlO 7.0 1st RESPONDENT'S HEADS OF ARGUMENT 7.1 We have equally considered the 1st Respondent's Heads of Argument filed on 6th August 2024. The first part of its arguments canvasses the objection taken to what it refers to as a new or additional ground of appeal. We have already noted that we will determine the preliminary objection in the latter part of our Judgment. 7.2 In response to grounds 1 and 2, the 1st Respondent has strongly argued against the attempt by the Appellants to invoke the ejusdem generis rule when they have in fact used the literal rule of interpretation in addressing rule 26, the arbitration clause. 7.3 It is the strong argument of the p t Respondent that a literal interpretation of rule 26 of the Kwacha Pension Tru st Deed Rules would lead to absurdity and should be avoided . It was submitted that to remove the Appellants (as former members or former employees}, as canvassed by the Appellants, from the definition of a Member or Employee, would lead to an absurdity, which the Court should not allow. 7.4 We have been beseeched by the 1st Respondent to employ the correct application of the ejusdem generis rule in the interpretation of the arbitration clause, the subject of the Order made by the lower Court. 7 .5 With respect to the generality of its arguments in opposition, the 1st Respondent has attempted to show the Court, that the dispute the subject of the arbitration, may arise at any time, and that the Appellants are interested Jll persons and that the dispute relates to the construction, meaning or effect of the Rules. 7.6 Finally, and in dealing with the ground that the dispute cannot be settled by arbitration due to the constitutional issues raised, Counsel has argued that Courts have held that arbitral tribunals have the authority to resolve disputes within the scope of the arbitration agreement, noting that their decisions ought not violate statutory laws or public policy. 8.0 THE 2nd RESPONDENT'S HEADS OF ARGUMENT 8.1 We have equally considered the 2nd Respondent's Heads of Argument filed on 5t h September 2024. The initial part of the 2nd Respondent's arguments also canvasses the objection taken to what it refers to as a new or additional ground of appeal. We have already stated that we will determine the preliminary objection in the latter part of our Judgment. 8.2 In response to the referral to arbitration, it is the 2nd Respondent's contention that an arbitral clause survived post-employment, for the determination of any dispute between any of the Trustees, the Employer, the Members or any other interested persons. It was argued that where there was a valid agreement to arbitrate, all matters that fall within the scope of that agreement a re to be arbitrated. 8.3 The 2nd Respondent submitted that the Parties showed the intention to arbitrate and went as far as having their intention expressed in the Pension Fund Trust Deed. It is the contention that where parties freely and J12 independently agree to an arbitration agreement, the effect is that the jurisdiction of the Court is ousted. The 2nd Respondent referred to Zambia National Holdings Limited and Another v The Attorney-General 4 in which the Supreme Court held that where parties have agreed to settle any dispute between them by way of arbitration, the court's jurisdiction is ousted unless the agreement is null and void, inoperable, or incapable of being performed. 8.4 The 2nd Respondent referred to the learned authors of Gary B. Born in International Commercial Arbitration (Kluwer Law International 2020) 1 and Michael Mcilwrath and John Savage in "Arbitration Law: A Practical Guide" 2 and submitted that in situations where mixed issues arise in a dispute, the dispute involving both arbitral and non-arbitral issues, the arbitral issues may be referred to arbitration and the arbitration process may proceed on those issues whereas the non-arbitral issues will remain in Court. It was submitted that the Court will handle these aspects of the dispute, while the arbitration addresses the parts that are within its scope. 8.5 The 2nd Respondent further submitted t hat a portion of the Appellant's claim arises out of a statutory provision being Section 18 (3) (b) of the Pension Scheme Regulation Act3 , on which one of their claims for payments of the correct portable pension benefits to be based. It is the 2nd Respondent's submission that this Court is endowed with the jurisdiction to vary the High Court's decision to stay proceedings and refer the Parties to arbitration by making a ruling to bifurcate these proceedings so that the arbitral matters are referred to arbitration and the non-arbitral ones in nature are deliberated by the Courts. J13 9.0 THE HEARING 9.1 At the hearing, Counsel canvassed their respective positions as espoused in the heads of arguments filed by the Parties respectively. Counse l Kaunda, in support of the Appellant's jurisdictional issue referred the Court to a recent decision of the Supreme Court delivered on 17th April 2025 in the case of Thelma Maunga v Anti Corruption Commission and Attorney General 5 -SCZ Appeal No. 5 of 2024 which decision reiterated, in Counsel's opinion was that a Court that had no jurisdiction to hear and determine a matter, rendered all consequent proceedings a nullity. It was therefore his submission that the lower Court whi ch heard the section 10 application had no jurisdiction and that its proceedings were rendered a null ity. Counsel urged us to dismiss the 1st Respondent's preliminary objection. 9.2 To counter reliance on the cited case of Thelma Maunga, Counsel Chungu distinguished the decision in that case as it related to a transfer between divisions of the High Court and by which decision, the Apex Court remitted the matter for re-hearing. He stood by his preliminary objection and the authorities on which it was based. 9.3 When questioned by the Court, as to the propriety of raising what Counsel considered to be a jurisdictional issue, within the heads of argument, Counsel Kaunda was of the opinion that a jurisdictional issue could be ra ised in any shape or form and even from the Bar, as has been done in other cases including being raised suo moto by the Court. J14 9.4 Counsel canvassed the arguments with respect to the grounds of appeal respectively which we shall not recast as the same are on record and have been duly considered. 10.0 ANALYSIS AND DECISION OF THE COURT ON THE 1sr RESPONDENT'S PRELIMINARY OBJECTION 10.1 As noted above, we w ill deal with the preliminary objection and then revert to the grounds of appeal, unless the same are rendered otiose on account of our determination of the preliminary objection. 10.2 The Appellants, within the heads of argument filed on 9th May 2024, have included on pages 1 to 4 thereof, arguments pertaining to the jurisdiction of the lower Court in proceedings to hear the section 10 application of the ist Respondent when there was no evidence of the Respondents (the defendants in the lower Court}, of having filed its appearance and defence prior to launching the section 10 application. According to the Appellants, and it is their understanding, that this raised a jurisdictional issue which they could properly bring before the Court even though not raised or noted in the lower Court. 10.3 The Appellants have drawn our attention to page 171 and page 48 being a 'Search' conducted for appearance and defence and a copy of the ist Respondent's conditional appearance respectively. With reference to the High Court {Amendment Rules) of 20203 , the Appellants argued that conditional memorandum of appearance is no longer procedurally correct and that consequently, the lower Court was divested of jurisdiction, in hearing the ist JlS Respondent's section 10 application, without the attendant memorandum of appearance and defence. 10.4 The Appellants have placed reliance on the case of Road Transport and Safety Agency v First National Bank Zambia Limited and Josephine Milambo6 which case also considered the jurisdictional issue addressed by the Cou rt in the case of Aristogerasmos Vangelatos and Vasilki Vangelatos v Metro Investments Limited and others7 . 10.5 We are familiar with the authorities cited and take no objection to the principle espoused that where a Court has no jurisdiction to entertain an application, any resultant Ruling is a nullity and may be set aside despite the issue not having arisen in the Court below. 10.6 However, and of concern to us, is the fast-developing practice by litigants in our Courts, is the dangerous trend of categorizing every issue as a jurisdictional issue. This is either to simply waive a red flag in the face of the Court to draw the Court's attention or to hide behind its own laxity for having failed to challenge what it perceives as an issue or irregularity at the appropriate time in the proceedings. We will speak to this later in our Judgment. Needless to say, the power of the Court to raise a jurisdictional issue suo moto, cannot be equated to the right of the Parties to do the same . 10.7 In a case of procedural ping-pong, the 1st Respondent filed its Notice of preliminary objection pursuant to Order XIII rule 5 5 , supported by the 2nd Respondent, challenging the manner in which the issue by the Appellants was raised . It is the 1st Respondent's argument that th is was an attempt to argue a new ground of appeal, for which leave had not been obtained and which was J16 irregular and invited the Court to strike out the arguments or at least the portion that related to this issue . Reliance was placed on the provisions of Order X rule 9 (2) and (3)5 which provision is mandatory and obligates a litigant who intends to canvass an additional ground of appeal, to first obtain leave of Court. 10.8 The p t Respondent has also referred to the cases of NAPSA v Philip Stuart Wood 7 and Zlatan Zlatco Arnautovic v Stanbic Bank Limited 8 in support of the principle that the Supreme Court would not consider an issue which did not fall under the grounds of appeal. The Respondents thereby urged us to strike out the new or fourth ground of appeal. 10.9 The Appellant has also placed reliance on a Judgment of this Court rendered in the case of Environmental Investigation Agency Inc, News Diggers Media Limited v Given Lubinda, Jean Kapata and Tasila Lungu9 , to buttress the argument that the issue raised is a jurisdictional issue and not a new or additional ground of appeal. They have also referred to this Judgment to support the argument that as a Court, we agreed with Counsel, (in that case), that not having filed a memorandum of appearance and defence, the lower Court was divested of jurisdiction to hear the preliminary application. 10.10 We have noted the seriously contested arguments on the p t Respondent's notice to ra ise preliminary objection . The question for our determination is the following: Is the Appellant intending to raise a new ground of appeal in the form and manner it has couched its heads of argument at pages 2 to 5 specifically? J17 10.11 It may also be argued that the Appellants, in opposing the section 10 application, as seen on pages 89 to 92, can be said to have acquiesced and taken what is referred to 'as a further step in the proceedings' so as not to be able to raise this issue at this stage in the appeal. 10.12 We have scrutinized the preliminary objection together with the supporting process filed by the 1st Respondent by its Notice of 20th June 2024. We have already stated that there was support by the 2nd Respondent as seen by its process of 12th July 2024. This is obvious as the 1st and 2nd Respondent have moved in tandem due to the nature of their relationship, and which is not important for us to canvass any further at this stage of the Appeal. 10.13 We agree entirely with the p t Respondent and note that any attempt to raise an issue, even one termed as a jurisdictional issue, ought to be done in a manner consistent with settled jurisprudence and the rules of Court. We have no hesitation in finding that the manner in which the Appellants have purported to sneak in arguments, within their heads of argument, as though canvassing a new ground, albeit under the guise of jurisdiction, is wrong. 10.14 We have guided litigants in the manner they approach the Court, wielding what are termed as arguments on Jurisdiction, which in fact are not. We refer to a recent Judgment of the Court rendered in the case of Road Development Agency v Stefanutti Stocks and Consolidated Contractors Company Joint Venture 10 . Paragraph 8.24 of the Stefanutti Judgment is quoted as follows : "In our considered opinion, the attempt on the part of the Appellant at raising what it termed a jurisdictional issue, was wholly inappropriate, and an example of the unnecessary Jiddle-faddle' that is the hallmark J18 of wasted time and resources in an attempt to undermine the Courts' focus on resolving the merits of the appeal. 10.15 Ordinarily, this would end our determination on the p t Respondent's Notice to raise preliminary objection and we would have no hesitation in ordering that the offensive arguments of the Appellants be expunged off the Record. However, in the interest of justice, and in settling jurisprudence in the area, we have opted to seize the opportunity to guide on the law, procedure and rationale of the requirement to enter an appearance post the High Court (Amendment Rules) of 20203 as pertain to a section 10 application. 10.16 In our Judgment, delivered in the case of Megha Engineering and Infrastructure Limited and The Attorney General v Marks Industries Limited 11, we made pronouncements to the effect that a party wishing to mount an application to the Court for setting aside for irregularity of process or for want of jurisdiction of the Court, must enter appearance and defence in accordance with Order XI rule 1 (a) and (b)3 and promptly make the necessary application to challenge the writ. 10.17 In a subsequent Judgment of the Court, rendered in the case of Yangts Jiang Enterprises Limited {In Receivership) v Society House Development Company Limited 12 , we guided litigants that post the High Court Amendment Rules, there was no provision to enter conditional appearance. We followed our decision as rendered in the cited case of Megha Engineering. However, and in our considered opinion, reference by the Appellants in their arguments, to decisions of the Supreme Court, such as the Judgment in the case of African Banking Corporation v Mubende Country Lodge, 13 rendered in the context of J19 applications made under Order 14A and Order 33 of the RSC6 do not assist the Appellants in casu and are placed out of context. 10.18 In casu, the issue to be addressed is the requirement of a defendant to file an appearance and defence before it raises a section 10 application viz the provisions of Order Xl rule 1 (a) and (b)3. To settle this issue, we must look at section 10 (1) of the Arbitration Act1 which provides as follows: "A court before which legal proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests at any stage of the proceedings and notwithstanding any written law, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative on incapable of being performed." (emphasis added) . 10.19 Rule 4 of the Arbitration (Court Proceedings) Rules2 deals with the procedure of how the section 10 application is mounted . What is cardinal to note is that section 10 allows for the application to be made 'at any stage of the proceedings' and 'notwithstanding any written Jaw'. We are of the considered view that a section 10 application is not a preliminary objection or application to a Court in which a party intends to raise a challenge to jurisdiction or irregularity against the process . Nor does it seek a terminal effect. It is, to the contrary, an application made to the Court, in pursuance of a prior arbitration agreement and seeks the Court to stay proceedings and refer the matter to the correct forum upon satisfying itself that the arbitration clause or agreement is not null and void, inoperative or incapable of being performed. J20 10.20 In a section 10 application, there is no issue or challenge on ground of validity or jurisdiction or any other such ground. The Court is simply being moved at any stage of the proceedings' and, notwithstanding any written law.,' to make the appropriate reference to a forum in keeping with the Parties chosen mode of dispute resolution. It makes no procedural sense to succumb before a forum and enter a defence before making an application asking that forum to stay proceedings. 10.21 For the avoidance of doubt, and for guidance in the future, it is not mandatory to file a defence before making a section 10 application. Under the Arbitration Act, the application is for a stay of legal proceedings based on an arbitration agreement and does not seek an Order for a dismissa l or other terminal effect as a consequence of the application. This was also pronounced in a recent Judgment of the Apex Court in the case of John Sangwa v The Legal Practitioners Committee of the Law Association of Zambia 14 . The section 10 application focuses on the existence and validity of the arbitration agreement and not on the merits of the underlying dispute. The entry of appearance and filing of defence is therefore not a prerequisite. 11.0 ANALYSIS AND DECISION OF THE COURT ON THE GROUNDS OF APPEAL 11.1 We shall now move to interrogate the grounds of appeal. The Appellants have argued grounds 1 & 2 together and we sha ll determine them in like manner. It is the composite argument of the Appellants that rule 26 of the KPTF and ru le 14 (2) of the trust Deed of the Bank of Zambia Pension Trust Fund is inoperative against the Appellants. They contend that at the time of discovery J21 of their respective underpayments, the Appellants were no longer employees of the 2nd Respondent and consequently not members of the 1st Respondent. 11.2 It is not disputed that the Appellants were members of the p t Respondent's Pension Scheme and employees of the 2nd Respondent. It is also not disputed that the main document which governed the relationship of the Parties is the Kwacha Pens ion Trust Fund Rules (hereinafter the KPTF Rules). It is also not disputed that the relevant arbitration clause is Rule 26 of the said KPTF Rules . 11.3 It is also not disputed that the 1st Respondent was established or constituted by the 2nd Respondent to among other things, manage, invest employee employer contributions, and to pay ou t portable pension benefits, as mandated or prescribed by law to the employees of the 2nd Respondent who have retired or separated from the 2nd Respondent. 11.4 In the main matter, what is in dispute, however, is the applicability or otherwise of the arbitration clause to the dispute at hand . What we need to consider and determine is whether the arbitration clause (rule 26) falls within the definition of section 2 of the Arbitration Act1 . It is also noted that the learned authors of Black's Law Dictionary3 define arbitration agreement as an "agreement by which the parties consent to resolve one or more disputes by arbitration." 11.5 It is imperative and the starting point for a Court faced with such an application, is to recognize that the Parties have opted to reso lve their dispute by reference to arbitration, their chosen mode of dispute resolution. It is also trite that where parties freely and independently agree to an arbitration agreement, the effect is that the jurisdiction of th e Court is ousted. The J22 .. Supreme Court in the case of ZCCM Investments Holdings Pie v Vedanta Resources Holdings and Konkola Copper Mines Ple15 stated as follows: ... . where parties have chosen that they would refer any of their dispute to arbitration instead of resorting to regular courts, a prim a facie duty is cast upon the court to act on their agreement. " 11.6 Lord MacMillan in an English decision of the House of Lords, in the case of Heyman and Another v Darwins Limited 16 referring to an arbitration clause noted as follows: ... the arbitration clause does not impose on one of the parties an obligation in favour of the other. It embodies the agreement of both parties that, if any dispute arises with regard to the obligations which the other party has undertaken to the other such dispute shall be settled by a tribunal with their own constitution ... the arbitration clause survives for determining the mode of their settlement." 11.7 Guided by the decision in the Audrey Nyambe case, and contingent on the prima facie duty of the Court to give effect to party autonomy, it is imperative that the wording of the arbitration clause is carefully studied . We are equally alive to the established principle that a Court will not merely 'down tools' at the sight of an arbitration clause. It must be satisfied that the arbitration agreement is not nu ll and void, inoperative and or incapab le of being performed. This has bene settled in our jurisdiction and on which we have rich jurisprudence. Decisions in the cases of Konkola Copper Mines Pie v NFC Africa Mining Ple17 and Ody's Oil Company Limited v The Attorney General and Constantinos James Papaoutis18 refer. J23 11.8 Rule 26 of the KPTF Rules seen on page 53 reads as follows : "Except where the decision of the Trustees or Employer is made conclusive if at any time hereafter any dispute difference or question shall arise between the Trustees, the Employer, the Members or any interested person or persons or the representative of any of them respectively touching the construction meaning or effect of the rules or any of them hereunder then every such dispute or question shall be referred to arbitration by one Arbitrator agreed upon by both parties thereto, the result of which shall be regulated by the provisions of the Arbitration Act in force in Zambia or any law or instrument taking the place of such Act in force at the time of such Arbitration". 11.9 We have had the occasion to scrutinize the definitions of the KPTF Rules. On pages 56/57, we note the following definitions: "Employer: shall mean Bank of Zambia a corporate Body established by the Bank of Zambia Act No. 24 of 1985 of the laws of Zambia, or its successors in title. Employee: shall mean a person in the full-time employment on the permanent establishment pf the Employer. Member: shall mean an Employee who has been admitted to membership of the Fund in accordance with these rules. Trustees: shall have the meaning expressed in the Trust Deed. " J24 11.10 The Appellants have identified what they refer to as the trigger elements of rule 26, which they outline as follows: (see page 6 of the Heads of Argument) . (i} The particular dispute or question must be between the Trustees, the Employer and the Members; (ii) The dispute or question must relate to the construction, mean ing or effect of the Rules of the Kwacha Pension Trust Fund . 11.11 The 1st Respondent has countered that Rule 26 envisages that: (see page 5 of the 1st Respondent's Heads of Argument) (i) A dispute, difference or question may arise at any time; (ii) Such dispute may arise at any time between the Trustees, the Employer, the members, interested persons or representative of the aforementioned; and (i ii) The dispute that may arise at any time between the above individuals should touch on the construction, meaning or effect of the rules. 11.12 It is the Appellants contention that the trigger elements are non-existent and for this they refer to the amended Writ of Summons and Statement of Claim seen on pages 37 to 43 and 163 to 170. They have further placed reliance on a decision of the Supreme Court in the cited case of Audrey Nyambe where the Court determined that at the time the dispute arose, the arbitration clause had become inoperative and incapable of being performed, to advance the argument that by the time the dispute (in casu) arose, the Appellants being former employees, the arbitration clause was rendered inoperative. J25 • .. 11.13 It is trite, and Courts have consistently guided that the logical starting point is to closely examine the arbitration clause itself. This approach was also confirmed in the cited case of Audrey Nyambe. May L. J. in the case of Ashville Investments v Elmer Constructors Limited 20 guided as follows: "In seeking to construe a clause in a contract, there is scope for adopting either a liberal or a narrow approach1 the exercise which has to be undertaken is to determine what the words mean." 11.14 The learned authors of Halsbury's Laws of England 4 have guided as follows regarding the construction of an arbitration clause: 11Thus1 it has now been said that arbitration is consensual1 and depends upon the intention of the parties as expressed in their agreement.. .. A proper approach to construction therefore requires the Court to give effect1 so far as the language used by the parties will permit1 to the commercial purpose of the arbitration clause. 11 11.15 What is apparent to us is that the intention of the Parties should be clear and unambiguous. It is also cl ear that the arbitration process survives the termination as espoused by the doctrine of severability and separability. This has been aptly postulated in the book Commercial Arbitration by Sir Michael J Mustill and Stewart C. Boyd Q. C. 5 where the learned authors state as follows: "This doctrine treats the arbitration clause as having a life of its own, severable from the substantive contract, and capable of surviving it so as to give the arbitrator continuing jurisdiction not only over disputes arising from events happening whilst the contract was in existence, but also upon J26 • whether the contract has come to an end, and if so with what consequences to the parties. 11 11.16 At this juncture, we ask ourselves what the terms 'inoperative' and 'incapable of being performed' mean. Once again, we lean heavily on the book on Commercial Arbitration,5 where the learned authors at page 464 guide that inoperative includes instances of an arbitration agreement which has for some reason ceased to have effect or where the legal doctrine such as frustration and discharge have occurred or where the agreement has ceased to operate by reason of some further agreement between the parties. In the Audrey Tembo case, the arbitration clause was drafted in a narrow and restrictive manner and only gave effect to the arbitration clause provided the dispute arose during the continuance of the agreement. Obviously therefore, the Court took the view that a dispute that arose after the termination of the agreement was inoperative. 11.17 The significance or import of an arbitration agreement or arbitration clause is clearly illustrated by the observation of the authors in a book entitled International Arbitration Law and Practice6 as follows: " The agreement to refer a dispute to arbitration whether in a submission agreement or in an arbitration clause, consists in the agreement of the parties to refer to arbitration one or more disputes which have already arisen or which may arise. According to prevailing opinion, such an agreement is a contract between persons or bodies acting in a private capacity to which the arbitrator who at the time is generally not even appointed is at least at the time not a party. 11 J27 .. 11.18 In casu, rule 26 does not provide any such restriction to the timing of the dispute. We have quoted the rule above and it clearly provides ' .. if at any time .. '. The Appellants have also argued that rule 26 does not apply to them as the dispute arose after they left the employment of the 2nd Respondent. However, as is clearly noted, the dispute that has arisen, albeit after their employment, pertains to the period or duration of their employment as to the calculation of their portable benefits. 11.19 The issue is now that there is a dispute, difference or question on how those benefits were calculated, how will that be resolved? In our considered view, the answer lies ' ..... in the construction meaning or effect of the rules or any of them hereunder then every such dispute or question shall be referred to arbitration ..... " 11.20 The Appellants have argued that the arbitration clause is inoperative against them, as they are no longer covered by any dispute, difference or question now arising by virtue of them being former employees . They have attempted to canvass this argument using the ejusdem generis principle and argue that they are beyond the reach of rule 26. 11.21 The learned authors of Chitty on Contracts7 at paragraph 12-085, with reference to the ejusdem generis rule state as follows: "The rule which is laid down with reference to the construction of statutes, namely, where several words preceding a general word point to a confined meaning the general word shall not extend in its effect beyond subjects ejusdem generis (of the same class), applies to the construction of contracts. The rule depends on the assumed intention of the framer of J28 the instrument, i.e. that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind. (emphasis added). 11.22 Paragraph 12-087 provides as fo llows: ''The ejusdem generis rule is not a rigid technical rule, but a mere canon of construction. It has been held that, in a commercial contract, where general words follow an enumeration of particular things, those words are prima facie to be construed as having their natural and larger meaning, and are not to be restricted to things ejusdem generis with those previously enumerated, unless there is something in the instrument which shows an intention so to restrict them. 11 11.23 Chitty on Contra ct7, with reference to the scope of an arbitration agreement have gu ided that this is to be determined by reference to the precise wording of the agreement, construed accord ing to its language and in the light of the circumstances in which it was made . The words, "all disputes or differences" or "all claims" are words of wide import but must necessarily be controlled by the subject-matter to wh ich they relate. The word "differences" is wide enough to embrace a difference between the parties, e.g. as to the price, where the contract provides for this to be determined by mutual agreement, and the parties fai l to agree . There is a "dispute" between the parties if a claim is made by one party on the other, which is neither admitted nor disputed, but merely ignored . There is also a "dispute" even if the claim made by one party on the other is one to which there is n o arg u a ble defence . The word s "in J29 connection with" "in relation to" "in respect of" or "with regard to" (a contract) are clearly wide in scope. A wide meaning will also be attributed to the words "arising out of". 11.24 Whilst the Appellants' submission, on the face of it may appear attractive, it is simply an attempt to split hairs in an effort to remove the matter from resolution by the agreed mode of dispute resolution. What is critical to note is that the relationship between the Parties, (the 2nd Respondent and the Appellants) was that of Employer and Employee and the 1st Respondent administered the Fund, from which it made payment to an Employee, who became a Member of the Fund. It is obvious that a dispute, when it arises is a dispute in the course of the relationship of Employer/Employee/Member. It is also equally obvious that the dispute may arise within or outside the period of employment if it relates to the period while the Member was in employment. There can be no other dispute. It is also obvious that the arbitration clause survives the period of employment. In casu, we are alive to the fact that the Court's power to utilize a viable interpretation over one that impugns an arbitration clause is in keeping with party autonomy and choice of dispute resolution. 11.25 In casu, we cannot fault the learned Judge in the lower Court for doing specifically what the Supreme Court has directed Courts to do. Authorities abound where it is noted that a Judge has no option but to stay legal proceedings and refer the parties to arbitration where there is a valid arbitration agreement and where the Court is satisfied that the agreement is not null and void, inoperative or incapable of being performed. Notable authorities are the cases of Vangelatos v Vangelatos21 , and the cited cases of J30 Leopard Ridge Safaris v Zambia Wildlife Authority and John Sangwa v Legal Practitioners Committee of the Law Association of Zambia. We therefore find no merit in grounds 1 & 2 and dismiss them. 11.26 With respect to ground 3, the Appellant has argued that the claim for unpaid salaries of the Appellants, in as far as they touch on the provisions of the Constitution, may amount to the construction and interpretation of the Constitution, which powers are outside the jurisdiction of an Arbitrator. 11.27 In our reasoning above, we have already found and held that the reference to arbitration of any dispute difference or question arising out of the relationship between the Parties, and thereby dealing with underpayments if any, are valid submission to arbitration and that the dispute properly falls within the purview of section 6 of the Arbitration Act1 . We will therefore not be drawn into any speculative discourse on the hypothetical application, interpretation or otherwise of Constitutional provisions. It is also trite in our jurisdiction that mere reference to the Constitution in itself, does not divest a Court or indeed an Arbitrator of jurisdiction. Ground 3 must fail. 11.28 With reference to the 2nd Respondent's attempt to submit that the dispute can be bifurcated, as noted in paragraph 8.4 and 8.5 above, it is our considered opinion, that the Court will not delve into the merits of the dispute and that such application, if at all tenable, may be placed before the Arbitral Tribunal for its determination . 11.29 We have no hesitation whatsoever in dismissing the appeal on all grounds raised. J31 -... 12.0 CONCLUSION 12.1 We uphold t he decision of the learned Judge as a consequence of wh ich the Part ies must proceed to arbitration being their choice of dispute resolution. 12.2 We dismiss t his appea l w it h cost s to t he Respondents to be ta xed in defau lt of agreement. f M . J. SIAVWAPA JUDGE PRESIDENT <-{Q1mu~"' F. M CHISHIMBA COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE J32