Antonio Ventriglia and Anor v Eastern and Southern African Trade and Development Bank and Anor (Appeal No. 11/2009; SCZ NO. 13 OF 2010) [2010] ZMSC 16 (21 April 2010)

. Jl j (271) ~ SCZNO . l3OF2010 Appeal No. l l / 2009 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANTO l'-JIO VENTRIG LIA MANUELA VENTR IGLIA 1 ST APP ELLANT 2 ND APPELLANT AND EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK ROBERT MBONANI SIMEZA (In his capacity as Receiver of Zambezi Portland Ceme nt Limited (in Receivership ) l ST RESPONDENT 2 ND RESPONDENT Coram: Chibesakunda, JS, Mwanamwambwa & Chibomba JJS. 91h April, 2009 and 21st April, 20 l 0. For the Appellants: Mr V. Malambo, State Counsel of Messrs Malambo and Company with M r S. Mambwe o f M essrs Mambwe and Siwila and Company and Mr A. Silwila of M essrs Mambwe Siwila and Company. For the Js1 and2n d Respondent: M r M. M undashi, State Counsel of Messrs M uleng a Mundashi a nd Company w ith Mr J Sangwa o f Messrs Simeza a nd Associates. JUDGMENlC' Chibesakunda, JS., d elivere d the Judgement of Court CASES REFERRED TO : l. RAHIMTOOLA V NIZAM OF HYDERABAD [1952) 3 A LL ER 441 2. TRENDTE X TRADING CORPORATI O N LIMITED V CENTRAL BANK OF NIGERIA [1977) l ALL ER 88. J2 (272) 3. ALFRED DUNHILL OF LONDON IN THE REPUBLIC OF CUBA, 1976. U. S. SUPREME COURT. 4. SHEARSON LEHMAN BROS INC V MACLAINE WATSON & COMPANY LTD. (INTERNATIONAL TIN COUNCIL INTERVENING) NO. 2 [1988) 1 ALL E. R. 116 AT 122, [1988) 1 WLR 16 AT 24, 5. CUSTOMS & EXERCISE COMMISSION V APJ SAMEX & CHANIL SYNTHETIC FIBRE INDUSTRY CO LTD., 3RD PARTY [1983). 6. THAI-EUROPE TAPIOCA SERVICE LIMITED VS GOVERNMENT OF PAKISTAN , 1975 ALL E. R P. 961. 7. I CONGRESO DEL PARTIDO (1981) 2ALL E. R. 1064. 8. HOLLAND V LAMPEN - WOLFE (2000) 3, ALL E. R. 832. 9. OWNERS OF SHIP PHILIPPINE ADMIRAL V WALLEN SHIPPING (HONG KONG) AND OTHERS [1976) 1 ALL E. R. P. 77. 10. PLANMOUNT LIMITED V REPUBLIC OF ZAIRE [1981] 1 ALL E. R. P.1109 11 . OWNERS OF THE SHIP PHILLIPPINE ADMIRAL V WALLEN SHIPPING (HONG KONG) LIMITED AND OTHERS [1976) 1 ALL E. R. P.77. 12. FAO VS NAZARALE PREVIRDNZETRIDGE AZENDE INDUSTRIAL, JUDGMENT NO. 53 1982. 13. ZOORA VS WALDNK ZAKE [1964) 2 AER P. 256 14. MACLAINE WATSON & CO . LTD V DEPARTMENT OF TRADE & INDUSTRY & RELATED APPEALS [1988) 3 ALL E. R. P. 257. 15. RE INTERNATIONAL TIN COUNCIL [1987] 1 ALL E. R. P. 890 16. STANDARD CHARTERED BANK V INTERNATIONAL TIN COUNCIL & OTHERS [1986) 3 ALL E. R. P. 257. 17. EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK PTA BANK AND DR M GONDWE V. MARTIN OGANG (LAWAFRIC A. COM -DELIVERED ON 29 / 1/ 2001 ). 18. KINGSWELL CHIPETA & 4 OTHERS V ZAMBIA PRINTING CO. LTD (1999) ZR P.181 19. AVALON MOTORS LTD (IN RECEIVERSHIP} V BERNARD LEIGH GADSDEN AND MOTOR CITY LIMITED [1998) ZR P. 4 20. NKONGOLO FARMS AND ZANACO, KENT (IN RECEIVERSHIP) CHARLES HARUPERI, SCZ NO. 19 OF 2007. 21. TONONOLEA STEELS LIMITED V. THE PTA BANK LEGISLATION REFERRED TO: 24. ORDER l 4(A) OF THE RSC 1999 EDITION 25. HALSBURY LAW S OF ENGLAND VOL. 18, 4rH EDITION PARAS 1595-11597 26. ARTICLE 29 AND 36 OF THE VIENNA CONVENTION J3 27. Article 2and 174(5) of COMESA CHARTER 28. DIPLOMATIC IMMUNITIES AND PRIVILEGES ACT, CAP 20 OF THE LAWS OF ZAMBIA. 29. ARTICLE 10 AND 16 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948. (273) 30 ARTICLE NO 42 AND 48 OF THE PTA CHARTER 31. STATUTORY INSTRUMENT NO. 123 OF 1992. 32. ARTICLE 18 OF THE CONSTITUTION OF ZAMBIA, CAP 1 OTHER WORKS ,~EFERRED TO: 33 COMMON MARKET OF EASTERN AND SOUTHERN AFRICAN (COMESA) IMMUNITY BY PROF. K K. MWENDA, SENIOR COUNSEL, LEGAL VICE PRESIDENT OF THE WORLD BANK, WASHINGTON DC- MISKOLC JOURNAL OF INTERNATIONAL LAW VOL. 6 (2009) NO. 1 PP 60 - 63. 34 JUDICIAL DECISION ON THE QUESTION RELATING TO THE UN AND RELATED INTER GOVERNMENTAL ORGANISATIONS, PART 3 OF 2005. BEATING THE STATE AT ITS OWN GAME. AN INQUIRY INTO THE INTRICACIES OF SOVEEIGNTY AND THE SEPARATION OF POWERS (BY DE GAAY FORTMAN). 36. L. G. MUTHONGA, "LAW IN THE MAKING "THE LAWYER MAGAZINE NO. 14 (OCTOBER 1999) AS REPRODUED ON THE WEB-SITE OF LAWAFRICA. COM The Court, for convenience sake, heard two appeals, Appeal No. l l of 2009 and Appeal No. 32 of 2009 together. By co nsent o f the parties, these two appeals had been consolidated: Appeal No. 32 was against a High Ruling dated 28th October, 2008. Th e High Court in an application under Order 14(al of the RSC 1999 Edition (l 6). had ruled for reasons stated in that Ruling, that the l st Respondent was covered by Diplomatic Immunity as provided under Section 4 of the Diplomatic Immunity and Privileges Act (2l ). Therefore, the first Respondent was not amenable to any Court proceedings in Zambia and as such the proceedings against it were a nullity and misconceived. Consequently the injunction granted I • J4 (274) against th e 2nd Respondents in favour of th e two Appellants was discharged. The second Ruling, dated 7th November 2008, in Appeal No. 11 o f 2009, the High Court, in an application by the two Appellants for a stay of th e High Court Ruling of the 28th Octob er, 2008 rejected and therefore refused to restore the injunc tion which was d ischarg ed as a result of its Ruling of 28th October, 2008, that the l st Respondent was not amenable to Court proceedings in Zambia . The High Court ruled that, this was so b ecause the action against the 1st Respondent was a nullity as the 1st Respondent enjoyed diplomatic immunity, so there was, therefore, no cause of action against the 1st Respo ndent and the 2nd Respondent for the Court to stay. The Appellants, aggrieved by these two rulings, have come to this Court to challe nge them. The brief history of this matter is that, before the High Court, in a writ taken out of the Commercial Registry, the two Appellants had claimed for :- (a) A declaration that the Defendant having faile d to pe rform its obligations under the loan a greement to declare a dispute and refer the dispute for arbitration, should not be seen to benefit out of its own default, and as suc h the purporte d appointment ]5 (275) of the Receiver under the provisions of the said Agreement be declared a nullity; (b) An order that the Dispute be declared and that the matter be referred to Arbitration as per Clause 16.12 of the Loan Agreement made between the 1st and 2nd Defendants; (c) An Order for an Interim and Interlocutory injunction restraining the Receiver, his agents, servants or whomsoever from performing duties of a Receiver until the determination of this matter or any further Court Order; (d) Damages for undue loss of the Plaintiff's credibility and creditworthiness; ( e) Damages for loss of business (f) Aggravated Damages; (g) Costs and (h) Any other Relief the Court may deem fit. This endorsement on the writ was elaborated in the Statement of claim. We will not restate the Statement of claim. The 1st Respondent in its defence p leaded, inter alia, that: 11 As an international organisation, is immune from the jurisdiction of the Courts in the Republic of Zambia by virtue of Section 4 of the Diplomatic Immunities and Privileges Act, Chapter 20 of the Laws of Zambia and Statutory Instrument No. 123 of 1992.11 This was the point raised as a preliminary point under Order 14(a) of the RSC J6 1999 Edition ( 15), which resulted in the Ruling of 28th October, (276) 2008. Before dealing w ith the issues b efore the High C o urt, we will res tate briefly the history of this case. According to the Statement of claim and the affidavit evidence before the Court, the history of this case is briefly that, the two Appellants were shareholders in a Company registered as Zambezi Portland Cement Limited. The 1st Respondent is a Body Corporate, a Financial Institution providing Banki ng and Financ ial Services and established by Charter pursuant to Chapter 9 of the Treaty for establishment of Preferential Trade Area for Eastern a nd Southern Africa States with its Registered Office as NSSF Complex, 23rd Floor Bishops Road, Nairobi, Kenya . The 2nd Respondent is a Receiver Manager for Zambezi Portland Cement Limited, appointed by the 1st Respondent. Some time in 2005, this Company, Zambezi Portland Cement Limited applied for a loan from the l st Respondent for the constructio n o f a cement making plant in Ndola, on the Copperbelt Province o f the Republic of Zambia. The 1st Respondent accepted the proposals and agreed to finance th e project w ith an initial loan of US$ l 2,000,000. A loan agreement to that effect was executed. After the execution of this loan facility agreement, the l st Respondent executed J7 (277) a mortgage deed and debenture covering five properties including the property o n which the cement making p lant is situated. On and about September, 2005 the parties again executed a p lant and assessment deed where Zambezi Portland Cement Limited agreed to pledge its rights and interests in prospecting licence No. 193 and 168/1 to the l st Respondent once all the formalities of changing title from the third party were concluded. After that it was then realised that the repayment schedule, as agreed in the loan agreement, would not be achieved due to the delay in the construction o f the plant. The parties, therefore, agreed on variation of the loan agreement. The parties, executed the deed of variation o f 2006 and 2007. As the construction of the p lant was going on in 2006, it became apparent that constru ction costs had gone beyond the estimated costs and that additional funding was needed to complete the project. So, the Appellants sourced an additional US$ l 3,000,000 from Barclays Bank. Again even this additional US$ l 3,000,000 was not sufficient to complete the construction of th is project. By December, 2007only 95% of the project was completed. Therefore having exhausted the whole US$ l 3,000,000 a furth er loan, was required . The Appellants in order to secure another loan approached the Trust Merchant Bank of Congo DRC to source for US$7,000,000 to complete the plant. In order to secure this (278) loan a property known as Plot No. 1468 was pledged as security. The Appellants' position at the High Court was that they never defaulted on loan repayment to the l st Respondent as the loan repayment was re-scheduled to begin on 30th June, 2008 and that the first instalment was in fact made on 3rd July, 2008 and that this payment, was acknowledged by the l st Respondent. The Appellants were, therefore, surprised that the l st Respondent wrote to them g ivin g notice of default on 4th July, 2008. Before a response could be given to them, the l st Respondent again gave them a notice of default on 8th July 2008, demanding immediate payment of the whole loan aforesaid. Before a response would be given to the l st Respondent to its notice of demand and demand for immediate payment, on the 14th of July, 2008, o ne, Robert Mbonani Simeza (now the 2nd Respondent) issued a letter to the Appellants stating that he was appointed as receiver by the l st Respondent and that he enclosed a notice to that effect. Their argument before the High Court was that even if there was that breach alleged to have been committed by Zambezi Portland Limited on certificate of title No. l 0571, the valuation of the cement plant, on which the l st Respondent had security, was three times the amount lent and it was therefore unreaso nable for th e l st Respond e nt to appoint a receiver. Their argument a lso is that if the l st Respondent J9 (279) had wanted title deeds of the property pledged to the Trust Merchant Bank, they should have resorted to the method of settling the dispute stipulated in the loan agreement which was to declare a dispute. According to the Appellants, the appointment of the 2 nd Respondent as Receiver therefore was, done in bad faith. They argued further that at law, a receiver c annot be appointed for a Company which is a going conc ern. In fact, the receiver was appointed just two weeks before the said project was to be commissioned. Therefore, th ere was no reason for appointing a receiver. The 1st and 2nd Respondents' position was that the two Appellants defaulted in their repayment of the loan which they obtained from the 1st Respondent. Because of this failure, the 1st Respondent appointed the 2nd Respondent as Receiver to execute a ll the debts under the debenture and mortgage executed between the l st Respondent and Zambezi Portland Cement Limited. The l st and 2nd Respondent 's position also is that the two Appellants ceased to be share holders in Zambezi Portland Ceme nt Limited. Zambezi Portland Cement Limited had failed to meet its payments obligation in the loan agreement upon due notice. J lO The Appellants, a fter issuing a writ against the l st and 2nd Respondents, applied for an injunction ex-parte . This was granted ex-parte. {280} Before hearing the substantive claim, the l st Respondent raised a p re liminary issue under Order 14(a} of the RSC , 1999 Edition(1 5J. In this application, the l st Respondent sought a declaration from the Court that as per Statutory Instrument No. 123 of 1992, as read together with Cap 20 of the Laws of Zambia and its own Charter, it enjoyed absolute immunity a nd as such was not amenable to any Court proceedings in Zambia . Mr Sangwa for Respondents argued that under Section 4 of Cap 20, the President of the Republic of Zambia has declared certain legal entities to be immuned from any Court p rocesses in Zambia. He argued that the President issued the statutory instrume nt No. 123 of 1992 to confer Diplomatic Immunity on the l st Respondent. Therefore, the issuance of the w rit a gainst the l st and 2nd Respondents was irregula r. He cited two cases; (i) Shearson Lehman Bros Inc v Mcclaine Watson & (Company Ltd, & Re International Tin Council lnterveninq (4)and (ii) Standard Chartered Bank v. International Tin Council and Another( 16J in support of his argument. According to him, the claim by the Appellants that th e 1st Respondent waived its immunity under Jl I Clause 16 of th e Mortgage Deed , was not legally te nable as according to the authorities, only the express waiver would be reg arded as a waiver at law. (281) In response, Mr Musaluke and Mr Muya, for the two Appellants, argued: ( 1) that, although the 1st Respondent enjoyed treaty immunity, it nonetheless had waived this immunity under C lause 16 o f the Mortgage Deed; (2) that there is a development in Internatio nal Customary Law o f the concept o f restric tive immunity which is tha t Sovereign immunity can not be invo ked in matters relating to commercial activities between States. Restri ctive immunity doctrine had developed in cases where States through Inte rna tio nal Organisations o r by the mse lves have e ngaged in co mme rc ia l transactions. In support of this a rgument, they c ited the c e lebrated case of I congreso del Partido ( 1981) 2ALL E. R. 1064(7) as authority. We w ill not resta te the full arguments by both parties in this application o n this preliminary issue raised under Order 14(a) of the RSC 1999 Edition ( l 6), before the High Court save to state that o n this pre liminary issue raised by the Respondent, the Learne d tria l Judge held that: 11 Under the circumstances, I hold that the 1st Defendant did not waive its diplomatic immunity under S. I No. 123 of 1992 aforementioned. This suit against the 1st Defendant is Jl 2 therefore a nullity." consequently, the lower Court discharged the ex parte injunc tion hence this appeal before this Court. (282) Before this Court, Mr Malambo SC, leading the arguments on behalf of the Appellants, addressed this Court extensively and admirably on the jurisprudential growth of the body of International Law since World War 11, after the establishment of Treaty Bodies, such as the World Bank, IMF, UN, PTA etc., on this branch of law o n th e international organisations' immunity. In his a rgument, he brought out the intensity of this debate o n the applicability or opposability o f these principles of absolute or restrictive immunity. He argued that there is a general a cceptance of the princ iple of the International C ustomary Law o n granting absolute immunity to acts described as jure imperii a nd not to acts described as jure gestionis. He conceded to the argument that, Internationa l Customary law's general principle is th a t, except by consent of Sovereign States, the C o urts of any country will not implead a foreign Sovereign State in a claim for damages. The th esis behind this is that if the Courts e ntertained a claim against a Sovereign State , and if there was a judgm e nt against such a State , the Courts would be called upon to execute that Judgment. A s such, that execution would destroy the relations between States and lead to suc h repercussio ns impossible to fore see. Th e Learned State Counsel further pointed out that, th is was on e Jl 3 (283) side of the coin. On the o ther side of the coin, he went on, is the p roposition that, legal entities should abide by the rules of the market and that there should be accountability for their actions. He submitted that usually, in such cases there is also the inclusion of arbitration cla uses . He argued that it is trite law that immunity, granted to State actors, is absolute, whereas the immunities given to treaty b odies, e ngaged in commercia l activities, are restrictive. He cited the cases of Rahimtoola V Nizam of Hyderabad(l L Trendtex Trading Corporation Limited V Central Bank of Nigeria, Alfred (2) Dunhill of Lodon Inc V Re[public of Cuba (3) I congreso del Partido(7) , Holland v Lampen - Wolfe (8) , Planmount Limited v Republic of Zaire ( 10), Owners of the Ship Philippine Admiral v Wallen Shipping (Hong Kong) Limited and Others (9) and an Italian c ase of FAQ vs D-Preivide NZE Asiyende (l 2) drawing a distinction between the concep t o f abso lute immunity e njoyed between Sovereign States and restrictive Immunity granted to Treaty Bodies engaged in commercial activities. He referred to Lord Dennin g as the pioneer o f this approach in the celebrated case of Rahimoola V Nizam of Hyderabad (l) where he expounded this principle this way: " If the dispute brings into question for instance the legislative or international transaction of a foreign government, or the policy of its executive, the Court should grant immunity if aske d to do so, because it does offend the dignity of a foreign Sovereign to have the merits of such a dispute canvassed in the domestic Courts of another country: but if the dispute concerns for instance, the commercial transactions of a foreign governme nt (whether carried on by its own departments or agencies or J 14 by setting up separate legal entities) and it arises prope rly within the territorial jurisdiction of our Courts, there is no ground for granting (284) . 1mmunr y: Lord Denning continued to propound this thesis of ·t " restrictive immunity in another c elebrated case of Trendex Trading Company Limited Vs Central Bank of Nigeria (2) . This approach was equally followed in the case of Thai Europe Service Limited v Government of Pakistan (6) . Under-pining all these authorities is the school of thought according to Mr Malambo, SC., that a treaty body once it e ngages in c ommercial activities, brings itself on equal footing with an individual it is dealing with. The Accepted principle of international customary law is that, absolute immunity is accorded to only acts of a Governmental nature described in Latin as jure imperii. But restrictive immunity is a c corded to acts of Commercial nature, jure gestionis. Lo rd Denning in the c ase of I congreso del Partido(?) put it th is way: "actions, whether commenced in personam or in rem, were to be decided according to the restrictive theory of Sovereign immunity so that a State had no absolute immunity as regards commercial or trading transactions. Whether an act of a Sovereign State attracted Sovereign immunity depend on whether the act in question was a private act Uure gestionis) or a Sovereign or public act Uure imperii) and the fact that the act was done for governmental or political reasons would not convert what would otherwise be an act of jure gestiouis or an act of private law into one done jure imperii." In considering whether State immunity should be granted, the Court had to consider the whole context in which the claim against the State was made, with a view to . ' ' . Jl 5 (285) deciding whether the relevant act on which the claim was based should, in the context, be considered as fairly within an area of activity, trading or commercial or otherwise, of a private law character in which the State has chosen to engage or whether the relevant act should be considered as having been done outside that area and within the sphere of Sovereignty." Mr M a la m bo a lso quo ted Lord Wilberforce in the same case as having exp laine d this theory this way: " It is necessary to start from first principle. The basis on which one State is considered to be immune from the territorial jurisdiction of the Courts of another State is that of 'par in parem ... .' which effectively means that the Sovereign or governmental acts of one State are not matters on which the Courts of other States will adjudicate." The relevant exception, or limitation, which has been engrafted on the principle of immunity of States, under the so called restrictive theory, arises from the willingness of State to enter into commercial or other private law transaction with individuals. Its appears to have two main foundations. (a) It is necessary in the interest of justice of individuals having such transactions with States to allow them to bring such transactions before the Courts ..... (b) To require a State to answer a claim based on such transactions does not involve a challenge to or inquiry into any act of Sovereignty or governmental act to the State. It is, in accepted phrases, neither a threat to the dignity of that State nor any interference with its Sovereign functions. (Emphasis ours) Lord Wilberforce concluded: " the restrictive theory does not and could not deny capability of a State to resort to Sovereign or governmental actions. It merely assets that acts done within the trading or commercial activity are not immune. The inquiry has to be made whether they were within or outside that activity." (emphasis ours). The House o f Lords resta te d and ' ' J16 (286) applied the above principles in the case of Holland v Lampen - Wolfe (BJ. In his Judgment, Lord M illet said: " Until 1975 England, almost alone of the major trading nations, continued to adhere to a pure, absolute doctrine of State immunity. In the 1970s mainly under the influence of Lording Denning M. R., we abandoned that position and adopted the so called restrictive theory of State Immunity under which acts of a commercial nature do not attract State immunity even if done for governmental or political reasons. This development of the common law was confirmed by your Lordships' House in the ! Congreso(7) case in relation to acts committed before the passing of the 1978 Act. " According to Sta te Counsel, from 197 5, th e Co urts in Britain and in Europe have invoked this principle o f restrictive immunity in cases such as Planmount Limited v Republic of Zaire (10) and the Privy Council in the case of Owners of the Ship Phillippine Admiral V Wallen Shipping (Hong Kong} Limited and others (l 1). Mr Malambo SC, argued further th at this was in line with the general provisions of International Law and Equity, which requires th at suc h immunity from jurisdic tion is m ea nt to be g ranted to such Internatio nal Organisations whilst balancing that w ith the principle o f protecting and guaranteeing the fundamental rights and legitimate interests o f ordinary citizens. These members of the p ublic must e qually be afforded judicial protection. Their individual's right to access • I I (287) to justice under Article 10 of the UDH ought to be guaranteed. This concept is known as restrictive immunity. He argued that, that right of international customary law of immunity granted to international organisations should not negate the right of those individuals' access to justice in cases where international o rganisations have joined the market place in commercial activities because these entities have placed themselves on equal footing with the members of the public that they have entered into commercial intercourse with. He argued that they should be held accountable for their actions. Referring to the facts before this Court, Mr Malambo SC, submitted that the holding by the Learned trial Judge that the suit against th e 1st Respondent was a nullity as the 1st Respondent enjoyed absolute immunity from suit in the Zambian Courts even before he examined the nature of the action against the 1st Respondent, was a gross misdirection by the Learned trial Judge. According to State Counsel, this approach no longer represents th e international law. In his further arguments, State Counsel argued that, the Learn ed trial Judge treated this legal issue rath er c asually, a legal issue that has serious implications on the fundamental rights of access to justice for impartial and fair d e termination of the members of public' proprietary rights. To accept as I J l8 (288) the Learned trial Judge did that the 1st Respondent was entitled to absolute immunity from suit even before examining whether the facts on which it claim ed immunity were jure imperii or jure getionis, was a gross m isdirection. According to State Counsel, the proper approach should have been as Lord Denning put it in his Judgement in the case Trendex Trading Corporation Limited V Central Bank of Nigeria(2) , that is to examine the claim o f immunity by the 1st Respondent. He cited further the case of Companie Naviera Vascongada V SS Christina 1939(16) and the case of the Trendex Trading Corporation Limited (2J , in which case Lord Denning held that even in the absence of arbitration clause, if a foreign Sovereign entity enters into an agreement, it is obliged and bound like any o th er trader. According to Mr Malambo, S C , th e Public International Custo mary Law which has received w ide acceptance internationally is that e ven the immunity and privilege accorded depe nd o n the nature o f the activities involved in the agreement. This development of International law has been accepted a s a correct interpretatio n of th e Vienna Convention. He argued that it is a fallacy to a llege that the Vienna Convention is not applicable to tre aty b odies. In his view a ll the important statutory instrume nts under Cap 20 of our la ws were c rafted on the provisions of the Vienna Convention. He argued that all th e immunities d escribed J 19 (289) under Article 29 and 36 of the Vienna Convention (20) were incorporated in the statutory instruments made under Cap 20. On the argument that, Cap 20 is divided into two segments, the first dealing with Sovereignty immunity and the second segment dealing with International Organisations Immunity, he argued that Cap 20 was enacted before th e creation of such bodies as PT A Bank. This explains why Cap 20 is constructed in that way because its main body is the Vienna Convention. However, he went on to argue that if one examined these statutory instruments, one would find that immunities and privilege conferred on the treaty bodies are derived from the Vienna Convention. His argument therefore was that these statutory instruments which derive authority from th e Convention cannot be interpreted differently from the Vienna Convention. According to him, paras, 159 5-1597 of the Halsbury Laws of England 4th Edition( 17) supports this proposition. Citing the case of Zoora vs Waldnk Zake 1964(13), he argued further that immunities and privileges enjoyed by diplom atic missions are the same as those enjoyed by treaty bodies. There is no difference and these immunities given to treaty bodies' do not depend on treaties but on International Law as interpreted by the Courts . He argued that th e Vienna Convention is part o f the International Customary Law. He argued that the various I J20 (290) statutory instruments that have been d rawn under section 4 of Cap 20(221 relating to immunities of treaty bodies cannot have different interpretations from the Vienna Convention. Under the body of International law there is a doctrine of restrictive immunity when it comes to Treaty Bodies engaged In commercial activities. His main argument is therefore that, the Learned trial Judge misdirected himself in refusing to accept this development of the law. As regards the injunction, State Counsel argued that the findings by the Learned trial Judge that the two Appellants were no longer shareholders in Zambezi Portland Cement Limited, was not supported by any evidence before him . State Counsel Malambo further pointed out that even the Learned trial Judge's ho lding at p .12 of Vol. (l) of the record of appeal, that: "The Plaintiffs have not disputed or challenged the Defendant's assertions. If it is true that the Plaintiffs are not shareholders in Zambezi Portland Cement Limited, then they are not entitled to protection by way of an interlocutory injunction ", was not supported by any evidence o n record. He pointed out that contrary to that holding, the two Appellants did dispute and challenge the l st Respondent's assertions on th e ownership of the shares. The affidavit evidence before the Court by the Appellants established that the issue of ownership was being hotly contested by the two Appellants. He referred to page 593 in Vol. 2 of the record of appeal which indicates that this • J2 I (291) issue was being hotly contested. According to State Counsel Malambo, the learned trial Judge used reasons which were not supported by the evidence on record , a s basis for rejecting the injunction. He argued that this was a miscarriage of justice . Mr Malambo SC, further pointed out that according to the Learned trial Judge, he discharged the injunction on g rounds; ( 1) that, th e Appellants had commenced an action on the basis of being share holders of Zambezi Portland Cement Limited; (2) that, the Appellants did not disclose the material facts namely that, they ceased to be shareholders in Zambezi Portland Cem ent Limited on or about 4th June, 2007. These two grounds, according to State Counsel, as already submitted, were not supported by any evidence on record. Th e Learned State Counsel pointed to th e Statement produced before the Court from the Registrar of Companies and argued that the document before the Court, established that the two Appellants were the only share holders in Zambezi Portland Limited even at the time the High Court discharged the injunction. He therefore urged the Court to uphold the appeal. Mr Siwila in support o f State Counsel Malambo submitted that his only point was to echo his submissions before the lower Court. Acc ording to Mr Siwila, a lthough the 1st - ' J22 (292) Respondent enjoyed diplomatic immunity a s per the PTA treaty, nevertheless, it had waived this immunity by sig ning the mortgage deed with Clause 16. According to Mr Siwila, by signing this mortgage deed willingly and voluntarily, they submitted th emselves to the jurisdictio n o f the Zambian Courts. So the 1st Respondent was amenable to th e jurisdiction of the Zambian Courts. We will not restate his argument o n the d ischarging of the injunction. Mr Mambwe did not make any submissions. Mr Mundashi State Counsel, leading the response for the Respondent made only two points leaving the main argument to Mr Sangwa. His first point in response is that all the arguments canvassed by State Counsel Malambo were never raised in the Court below. Therefore th ese n ew issues ft cannot be raised befo re this Court. He submitted that Sta te Counsel Malambo was not in the lower Court and as such may not have realised that the two Counsel, who represented the two Appellants, conceded to th e fact that the 1st Respondent enjoyed immunity and as su c h was not amenable to the Zambian Courts1 jurisdic tio n. His second point was that Cap 20 is set in two distinct segments. In the first segme nt, Se ction 3 deals w ith the (293) domestication of the Vienna Convention, Section 2 defines the Vienna Convention. In the second segment, Section 4 spells out the immunities of treaty bodies such as the l st Respondent. So as far as State Counsel Mundashi was concerned, there is no blanket application of a Vienna Convention in Zambia. The first segment of Cap 20 is confined to dealing with the immunity of the States and this is the segment which deals with the domestication of the Vienna Convention. The second portion of Cap 20 deals with immunities conferred on treaty bodies. So the Vienna Convention has no application to Treaty Bodies and therefore has equally no application to this case before this Court. On ground 2 Mr Mundashi State Counsel accepte d that the issue of ownership of the shares was not as settled as put by learned trial Judge in his Judgment. He also accepted that the learned trial Judge knew or ought to have known by the time he discharged the injunction that the issue of ownership of shares was still contentious and that this issue was still pending before the High Court. However, as far as he was concerned, at the time the Appellants applied for this ex parte injunction, which was granted, they had an obligation to disclose the fact that the ownership of shares was still contentious. So, according to the law, they were being punished for failure to disclose this material fact. (294) Mr Sangwa, augmenting the arguments by Mr Mundashi SC., argued spiritedly and extensively, firstly that, the arguments by Mr Malambo SC were new as these were never canvassed in the Court below. He argued that, in fact, th e argument by Mr Malambo SC., were at variance with the arguments which were before the High Court on behalf o f the Appellants. Then Mr Sangwa argued that the Ru ling of 28th October, 2008, whic h is now subject of this appeal, resulted from an application pursuant to Order 14A of the Rules of the Supreme Court, 1999 edition (2l) calling upo n the Court to make a specific finding on whether or no t the l st Respondent was immuned from suit and legal process by virtue of the provisions of the Diplomatic Immunities and Privileges Act(22) and th e Diplomatic Immunity Privileges of the Common Market for Eastern and Southern African Development Bank, Statutory Instrument No. 123 of 1992. The l st Respondent had also prayed that should the High Court answer the said question in the affirmative, it should declare the whole claim null and void and set it aside. The Court below agreed that the l st Respo ndent had immunity from suit and legal process by virtue of Statutory ]25 (295) Instrument No. 123 and Section 4 of Cap 20 as read w ith the COMESA Treaty. According to Mr Sangwa, the two Learned Counsel representing the Appellants accepted that, th e 1st Respondent was im muned from any legal process in Zambia by virtue o f the COMESA Treaty and Cap 20 of the Laws of Zambia. The ir only contention in the Court below was that, by virtue of Clause 16 in the Mortgage Deed, the 1st Respondent had waived its immunity. Mr Sangwa argued that there was no mention of this concept of restrictive immunity or even a ny argument on the development of International Customary Law on the concept o f restrictive immunity. The thrust o f his argument is that these doctrines of absolute immunity and restrictive immunity had nothing to do with the 1st Respondent's immunity. According to him, this Treaty Body and its p rivileges are defined in the Treaties creating it. He then argued that the 1st Respondent is a c reatio n of various statutes and treaties. As such its claims of immunity are from COMESA a nd PTA _Treaties to which Zambia was a party and Cap 20 of the Laws of Zambia. He a rgued that Zambia voluntarily e nac ted the Diplomatic Immunities' Act Cap 20 in which Section 4 gave effect to Zambia's treaty o bligations. He quoted Section 4 and went into details on the definition and c haracteristics of an International O rganisation relating to the 1st Respo ndent. He c ited the case of Maclaine Watson &. Co. Ltd v Department of Trade &. lndustrv(l4J, in defining the attributes of an International J26 (296) Organisation. He went on to say that, the Court held in this case that: "The expression 'International Organisation ' is a term of art in public international law. It is a body or entity created by agreement between States or other entities in international law." He went on to a rgue that, Treaty Organisations can only e njoy such immunities as are conferred on them by the Treaties that created them and that such Treaties a re given legal effect by statutes in Member States. According to him , this is what happened to the l st Respondent. He submitted that the l st Respondent has now claimed immunity conferred upon it pursuant to provisions of the Charters which Zambia was party to and that these immunities have been given legal e ffect by the Diplomatic Immunities Act, Cap 20 of the Laws of Zambia (21) . He argued that by Article 174 of the Preferential Trade Area for Eastern and Southern African States Charter, which was signed by Zambia, Zambia had committed itself to recognise some of these institutions created under the Preferential Trade Area of Eastern and Southern Africa and that these were to continue to operate under their respective Charters. Mr Sangwa continued to argue that, although he accepted totally the jurisprudential arguments of State Counsel Malambo as reflecting the International Customary Law, according to him, these are irrelevant to the case before the Court because (a) the law as propounded by Lord Denning (297) in the case Trendex Trading Corporation Limited V Central Bank of Nigeria (2) , can on ly be invoked where parties claiming immunity are Foreign Sovereign States; (b) According to him, the decision in Trendex Trading (2) case was never founded on the interpretation of the Vienna Convention . So given that scenario, he argued, the entire concept of absolute or restrictive immunity had nothing to do with the Vienna Convention . He argued that there should be no connection between the rationale in the Trendex Trading (2) case on the development of this restric tive immunity theory to the Vien na Convention and the case before the court. He submitted that the two concepts or approaches i.e. absolute and or restric tive immunity are certainly part of the International Customary Law. But the Vienna Convention and other Trea ties have dic tated their own terms. He went on to submit that the 1st Respondent as a Trea ty Body is therefore not claiming that it is immune d from suit and legal process in Zambia as was in Trendex Trading (2) c ase. It is seeking immunity on th e basis; ( 1) of the CO MESA Treaty an Agreement between each Member State; (2) th e provisions of the Diplomatic Immunities Act, Cap 20 of the Laws of Zambia and (3) on the Statutory Instrument of No. 123 of 1992. The 1st Respondent is not a State, it cannot therefore, claim State immunity. He c ited the c a se of Standard Chartered Bank v International Tin Council & Others( l 6) e mphasising that the J28 (298) Treaties and legislation invariably confer on the International Organisation and Treaty Bodies in question the legal capacities of a body corporate. They confer such privileges and immunities which are decreed 1n the Treaties. Accordingly, he argued, the concepts of absolute immunity and restric tive immunity have nothing to do w ith the International Organisations which are Treaty bodies. International Organisations only enjoyed such privileges, no more no less, as stated in the Treaties creating them. This is why in the Court bellow the Respondent relied entirely on the provisions of Statutory Instrument No. 123 of 1992(30), Section 4 of Cap 20 of the Laws of Zambia26), Article 174 of the COMESA Charter(27) and Article 42 of the PTA Charter(28), which clearly defined the l st Respondent 's privileges and immunities . He urged this Court to adopt the definition of an International Organisation as pronounced in the case of Mcclaine Waton & Co. Ltd v Department of Trade & Industry & Related Appeals ( 14) and urged this Court to apply that definition to the l st Respondent. He referred further to the case of Standard Chartered Bank V International tin Council and Others ( 13) and again urge d this Court to adopt the ratio decidendi in that case. He therefore argued that the l st Respondent was entitled to the immunity stipulated in Article 174 5(4) of the COMESA Treaty and Article 42 of the PTA Charter(29) , which have been given legal effec t by Section 4 of Cap 20 and Statutory Instrument No. 123 of 1992(30) unless the same was expressly waived by the l st Respondent. (299) On this argument, that the l st Respondent waived its immunity under Clause 16 of the Mortgage Deed, which appears at page 19 of the record, he argued that Clause 4 of Statutory Instrument No. 123 of 1992 (Diplomatic Immunity and Privileges of COMESA PTA Bank) requires a waiver to be express. His argument is that Clause l 6 even if g iven liberal interpretation, cannot be held to be a waiver as stipulated in Clause 4 referred to sup ra . He argued that Clause 16 if stripped o ff what is irrelevant to this case, simply means that when it comes to the realization of the security given by Zambezi Portland Cement Limited, in the exerc ise of any rights reserved under the Mortgage Deed, the l st Respondent would have to follow the Zambian law. So Clause l 6 of the Mortgage Deed was not a waiver by the l st Respondent even by any stretch of imagination. He argued that in finding out whether Clause 16 was a waiver, this Court should adopt the approach which the English Court adopted in Standard Re International Tin Council & Oth ers( 13) . The Court held that: "As in most questions of pure construction, much turns on the initial impression which the words create. The Language of art 6(1) (a) did not first reading, and does not now after detailed exegesis, strike me as containing any limitation on the time at which the waiver, to be effective, must be made. The waiver must be express." In augmenting this argument he referred to Article 3 of the Agreement between m ember States which reads: "The Common Market, its property and asse ts wherever loc ated and • (300) by whomsoever held shall enjoy immunity from every form of legal process. except in so far as in any particular case it has expressly waived its immunity. It is however, understood that no waiver of immunity shall extend to any measure of execution. 11 (Emphasis ours). So in line w ith this provision, he urged this Court to dismiss this argument on waiver. Mr Sangwa canvassed the view that as per the c ited case of Re International tin Council (l 5) , the concept o f restrictive immunity does not apply to the l st Respondent. According to Mr Sangwa, an International Organisation like the l st Respondent, once incorporated, is merely a means by which member States engaged in collective enterprise , agree to carry on the project in the atmosphere of common interests. So if a group of member States c arry out this e nterprise collectively through a medium of an International Organisation, no one Member State either b y executive, legislative or judicial action can assume the management of that enterprise or subjec t it to its own domestic law. On ground 2 in relation to the appeal against the disc harge of an ex-parte injunction by the learned trial Judge, Mr Sangwa argued that the Appellants had a duty to disclose to the learned trial Judge at the ex-parte injunction stage that there was a d ispute on ownership of shares in Zambezi Portland Limited. He argued that the Appe llant in an affidavit in support o f ex-parte injunction on 6th Se ptember, 13 1 (301} 2008, did not disclose that material fact. They obtained the ex-parte injunction without disclosing this material fact. The fact was only fully disclosed when the Respondents applied to set aside this ex-parte injunction on the l 3th September, 2008. He argued that it is trite law that since th ey ought to have disclosed at that stage o f getting the ex-parte order that ownership o f shares in this compa ny was contentious. The Court was punishing them for that. The second argument is that even if this court was to reject this argument, in the alternative, there is still no legal basis for the learned trial Judge to have granted an injunc tion to the Appellants. Mr Sangwa argued that, this is so because in line with the trite injunction law, there was no prospect of their claim succeeding because; (a) th ere is this issue of immu nity from legal process by the l st Respondent; (b) on the basis of the maxim that "He who comes to equity must come with clean hands," th e Appella nt had not come to equity with clean hands because; (i) the Appellants defa ulted in their obligation under Clause 3(d) o f the Loan Agreement. (ii) The certificate of title which was supposed to remain in the name of the l st Respondent as part and parcel of security provided for in the first loan was instead used by the Appellants to secure a nother loan from the Trust Merchant Bank of Congo for US$7million. I . (302) Mr Sangwa argued that on the foregoing , the Appellant did not come to Court with clean hands. Further Mr Sangwa pointed out that it is trite law that a Court will not grant an interlocutory injunction unless the right to relief is clear and unless the injunction is necessary to protect the claimant from irreparable injury, According to Mr Sangwa, there was no evidence establishing irreparable damage to be suffered by the Appellants and the right to relief was not clear. So again he asked this Court to dismiss this appeal. In response to these arguments by Mr Mundashi, SC and Mr Sangwa, Mr Malambo SC, responded firstly that, there was no contradiction between his arguments and those of the two Counsel before the High Court. His argument before this Court is an elaboration of what the two Counsel presented before the lower Court. He pointed out that in their arguments before the lower Court, the two learned Counsel cited the case of I congreso de l Partido(7J, a celebrated case because Lord Denning pioneering in this field o f the law, propounded the doctrine of restrictive immunity. He argued that in this cele brated case of I congre so del Partido(7J, Lord Denning in pioneering this c oncept of restrictive immunity enunciated the principle of law o f restrictive immunity. (303) According to State Counsel Malambo, the Learned trial Judge ignored this argument and concluded in the way he did without dealing with these issues presented before him. Further State Counsel Malambo argued that in concluding the way he did, the Learned trial Judge failed to analyse the nature of activities of the l st Respondent which were subject to the agreement and thus determining whether o r not such activities fell under the activities covered by absolute immunity: jure imperii, or whether or not such activities were of a commercial nature to be covered by the doctrine of restrictive immunity: jure gestionis. He argued that in the alternative, should the Court hold that the l st Respondent was protected by Article 4 of Cap 20(25), his o ther argument is that, the l st Respondent under Clause 16 of the Mortgage Deed waived that immunity. In response with regard to the issue of the discharge of the ex-parte injunction, Mr Malambo SC, argued that, the learned trial Judge made certain findings of fact that were not supported by any evidence. He based his decision to discharge the injunction on these findings of fa c t and as such misdirected himself. He, therefore, urged this Court to uphold the appeal. We have given much thoughtful co nsideration to the issues raised in this appeal. Hence our taking time. Th ese issues in J34 (304) this appeal, in our view, a re seminal, providing future development of the law in Zambia on this principle of jurisdictional Immunity of the States and the International Organisations. This branch of the law has been an unknown sea to the Zambian Courts. We must pay tribute to Counsel on both sides for presenting arguments to th is court spiritedly and convincingly, these a rguments have been of great assistance to the Court. Before dealing with substantive arguments, we will deal with the preliminary issues raised by Mr Mundashi, State Counsel and Mr Sangwa on behalf of the Respondents. Their arguments before us are that, the issues raised on the doctrine of absolute and or restrictive immunity were never pleaded nor raised before the High Court. Both Counsel argued that the Appellants before the Court accepted that the l st Respondent enjoyed immunity from legal process and as such was not amenable to any Court process in Zambian Courts, because of Article 174 (5) of the COMESA Charter(27) as read together with Article 42 of the PTA Charter(30) , which has been given legal effect in Zambia by Section 4 of Cap 20 (26) and Article 4 of Statutory Instrument No. 123 of 1992(32). According to both Counsel, the a rgument being advanced before this Court are at variance with the a rgume nts which (305) were advanced by both Counsel for the Appellants before the High Court. According to Counsel for the Respondents, as per plethora of authorities, the Appellants therefore cannot be allowed to raise fresh issues before this Court. We agree that, that principle of law has been clearly laid down in a plethora of authorities by this Court that in o rder not to ambush the o ther party, on ly issues that were pleaded and or raised in the Court below can be raised in this Court as this is a Court o f record. O nly in very exceptional cases is this Court obliged to receive fresh evide nce. But that Statement on issues not raised before the lower Court is not cast in iron. We have held that issues which were not pleaded but which were nevertheless raised in the Court below, w ithout any objection from the other side, can not be ignored a nd the Court has an obligation to consider su ch issues. See the Case o f Nkongolo Farms and ZANACO, Kent (in Receivership) and Charles Haruperi, SCZ No. 19 of 2007 (20). At first blush it wou ld appear Mr M undahsi, SC, and Mr Sangwa's arguments are correct, but on furth er scrutiny of the matter, we are satisfied that, looking at the record at page 604, the issues rela ting to the doctrines o f absolute and restrictive immunity were raised by Counsel for the Appellants' c itation of the case of I congreso def Partido (7). We agree with Mr Malambo State Counsel that, the arguments before us are a (306) further development of the issues which were raised in the High Court: See the Case o f Kingswell Chipeta and 4 Others v Zambia Printing Company Ltd. (1 8). We a lso agree w ith Mr Malambo SC, th at the learned trial Judge made no mention o f these issues in his Ruling of 28th October, 2008. That was misdirection and miscarriage of justice. As Mr Malambo State Counsel pointed out that the learned trial Judge ignored or causally dealt with these major issues raised by the Appellants. We w ill, therefore, address our minds to th ese issues raised by the Appellants. Looking at a ll of these issues canvassed in this appeal, we hold the view that, the issues raised in this appeal represent a development of the International law on th e applicability and or opposability of th e two doctrines of absolute immunity and restrictive immunity. Before we delve into these schools of thought, the view we hold is that the a rgument before this Court is not whethe r or not, the 1st Respondent d id not enjoy immunity from suit o r any legal process, because we agree w ith Mr Mundashi SC and Mr Sangwa that the Appellants did not deny that the l st Respondent, by virtue of Article 174(5) of the COMESA Charter(27), read together with Article 42 of the PTA Charter(29) and Section 4 of Cap 20 and Statutory Instrument No. 123 of 1992(30) was accorded immunity from legal suit and process in Zambia. It is trite law (307) that the Respondent 's claim for immunity is based primarily on International Customary law which has accorded immunity to public internatio na l organisations at least for their non comme rcial a ctivities. See the Miskolc Journal of International Law by Professor K K Mwenda page 61 (32.) Rather, the questions before this Court are: ( l) w hat is the nature of the immunity accorded to the l st Respondent? (2) What is the extent of that immunity from any suit and leg a l p rocess? (3) Can Treaty or international law supersede our Acts of Parliament? In response to the first question, we agree with Mr Malambo SC., that the immunities and privileges enjoyed by treaty bodies are the same as diplomatic immunities a ccord ed to State actors. The immunities g ranted to State actors in Zambia are the same as the d iplomatic immunities g ranted to treaty bodies. Hence th e title of Cap 20 of the Laws of Zambia savs: "Diplomatic Immunities Act"(26). Even Statutory Instrument No. 123 of 1992(30) is titled " Diplomatic Immunities and Privileges of COMESA 11 So, these treaty bodies I immunities do not depend on treaties o nly; they have to be interpreted against the background of Interna tio nal Law (See Article 2 of the COMESA Charter). We also agree w ith Mr Malambo SC., that immunities co nferred on treaty bodies in accordance with Section 4 of Cap 20(26) are derived from the Vie nna J38 {308) Convention. The Vienna Convention, besides being part of our statutory law is as much part of the treaty law as it is part o f the International Customary law. It is binding, as codified International Customary law. It is binding also because it has acquired the force of custom through general practice accepted as law. So, we agree with State Counsel Malambo that, th e various Statutory Instruments that have been drawn under Section 4 of Cap 20(26), relating to immunities and privileges cannot have different interpretation from the Vienna Convention or International Customary law. On the next question, as to what is the nature of that immunity accorded to the 1st Respondent, Mr Mundashi, State Counsel and Mr Sangwa admirably tried to convince us that the 1st Respondent's immunity and privileges are as stipulated in the treaties which created it, nothing more and nothing less. According to them, this principle derives its authority from a well known principle of International Customary law that an International Organisation enjoys statutory or treaty immunity accorded to it by the treaty or treaties creating it. This theory is based on a well established principle that, an International Organisation cannot confer on itself privileges and immunities. It can only enjoy the privileges and immunities granted to it by its member States. (309) Mr Mundashi, SC, and Mr Sangwa further argued that, in the case before us, it is wrong to look elsewhere in dealing with this matter other than to look at these Charters (COMESA and PTA) which created the 1st Respondent and also to look at Section 4 Cap 20 and Statutory Instrument No. 123 of 1992, whose provisions gave legal effect to the 1st Respondent's claim of jurisdictional immunity. Attractive as this argume nt may be, we find this argument not in consonance with the COMESA Charter which says in its Article 2 (27) that, the establishment of the Common Market for Eastern and Southern Africa (COMESA) has to be with due regard "to the principles of international law governing relations between Sovereign States, and the principles of liberty, fundamental freedoms and the rule of law/our own e mphasis) ... " The 1st Respondent is one of the principal organs o f COMESA. In our view, therefore, the privileges and immunities that have been accorded to the 1st Respondent have to be in tandem with the acceptable princ iples o f the International Law governing relations between Sovereign States and principles of liberties, fundamen tal freedoms and the rule of law. Since it is trite International Customary law that except by consent of the parties, the Courts universally will not implead another Sovereign State's claim for damages and since it is equally trite International Customary law that Foreign Sovereign States and or legal bodies who carry out duties of the State are c onferred absolute immunity jure (310) imperii for non commercial activities and that, legal bodies whether State o r legal entities involved in commercial activities for the States can only invoke restrictive immunity(see Professor Mwenda's article 'Miskolc Journal of International Law} , the immunities and privileges conferred on the 1st Respondent CO MESA, PT A Treaties and given legal effect by Section 4 of Cap 20 and Statutory Instrument No.123 of 1992 have to be interpreted against that background. In a Kenyan Court of Appeal case of Tononolea Steels Limited v. the PTA Bank(21 ), which dealt with the issue o f p t Respondent's claim of absolute immunity, the b rief facts, as narrated by Professor K K Mwenda in his article 'M iskolc Journal of International Law' are that Tononolea Steels Limited21) had a financing importation contract in the order of the amount of US$ 80,000,000.00. There was an alleged breach o f the agreement between the 1st Respondent and Tononolea Steel Limited (21) This Company then took the 1st Respondent to Court. The 1st Respondent claimed absolute immunity as provided in the COMESA, PTA Treaties, read together w ith the Kenyan domestic law, which give legal effect to these treaty obligations. The Kenyan Court of Appe a l in three different Judgements, delivered by three differe nt Judges, (311) dismissed the claim o f absolute immunity by the l st Respondent. One of the three Judges opined that: " It is inconceivable that the Government of Kenya could knowingly disregard such an important rule of International Law and grant PTA Bank absolute immunity from every form of legal process extending to even its commercial activities." This judgement has been subjected to severe criticism by those who advocate for absolute immunity for International Organisations. (See Professor Mwenda 's article 'Miskolc Journal of International Law). In another case in which the l st Respondent claimed absolute immunity before the COMESA Court is the case of Eastern and Southern African Trade Deve lopment PTA Bank and Dr M Gondwe V Martin Ogang (17), the COMESA Court dealt with a dispute in which one Martin Ogang alleged that he had been wrongfully d ismissed by the Board of the l st Respondent. The l st Respondent in making its own claim placed great emphasis of its jurisdictional immunity in Article 48 of the PTA Bank Charter which says: '"'( 1) ... Actions may be brought against the Bank in th e territories of the M e mber State s or elsewhe re in a Court of c ompete nt jurisdiction. 2. No action shall be brought against the Bank by membe r of the bank or p e rsons acting for or deriving claims from them ..... " In the Court's first hearing Martin Ogang was granted a suspension o rder to stop the l st Respondent from enforc ing its decision to terminate his employment contract. On the second instance, the issues . ' J42 (312) before the Court included the following: (a) to determine whether or not the l st Respondent, an international financial institution, was immuned from jurisdiction of the COMESA Court and (b) to resolve the claim made by the l51 Respondent and Dr M ichael Gondwe, the Applicants, that since Mr Martin Ogang, d id not State the law upon which the l st Respondent could be made to stand before the COMESA Court, Mr Martin Ogang had no locus standi. The Court invoked Article 42 of its Charter which states: (2) No action shall be brought against the Bank by members of the Bank or persons acting for or deriving claims from them. However, members of the Bank shall have recourse to such special procedures for the settlement of disputes between the bank and its members as may be prescribed in this Charter or in the regulations of the Bank made in accordance with the terms of contracts entered into with the Bank. " The CO MESA Court ruled that the l51 Respondent's immunity was applicable only in actions brought to COMESA Court by its members and that these were member States and or financial institutions and therefore did not include individual members o f the public. The Court therefore ruled that the immunity provided under Article 42 of the PT A Charter (before Clauses l - 2 were amended), d id no t apply to actions brought by ind ividuals to COMESA Court . The COMESA Court also ruled that its decisions take precedence over decisions of national Courts in the interpretation of its Charter. {313) Article 2 (27) and the two cases we have cited , fortify our view that, the interpretation of the 1st Respondent's immunities a nd privileges as spelt out in the treaties, have to have due regard to a ll these provisions o f International law, fundamen tal freedoms and principles of liberties and the rule of law. Mr Malambo, SC., has argued, rightly in our view, that this development of the law on the applic ability of restrictive immunity, which is receiving universal recognition underscores a duty of States to guarantee the fundamen tal rig hts of a ccess to justic e for members of the p ublic who e ngage in commercial activities with th e treaty bodies. We adopt Lo rd Wilberforce 's words in the case of I congreso del Partido (7) when he says: "It is necessary in the interest of justice of individuals having such transactions with States to allow them to bring such transactions before the Courts ... . " Article 1 o -16 of UDHR(28) spells out this fundamen tal human right of a ccess to justice. We are alive to the fa ct that, the UDHR(29J is not a treaty and th erefore not binding qua international co nve ntion. Nonethe less, o ur view is that even with th at stated, the UDHR (29) is binding on the basis that, it is part of the International Customary law codified . It is equally binding because the provisions of the UDHR(29) have acquired th e force o f c ustom thro ugh general prac tice accepted as law. J44 (314) Also, and even more persuasive, our Constitution in Article ~ )(32) a s a grand norm of ou r laws has incorporated a ll the elem ents o f this fundamen ta l human righ t (that is access to justice) . Defining this fund amental Human Rights, Professor de Gaay Fo rtman in his Article, " Beating the State at its own Game, an inquiry into the intricacies of sovereignty and the separation of powers " says: "the link with public justice points to duty rather than mere discretionary power. A real step forward in this connection is the current emphasis on the other side of the sovereign coin: the responsibility to protect. In other words, sovereignty in the sense of the execution of national authority implie s responsibility rather than just discretion." Th erefore, a lthough huma n rights a re not hieratical, the Courts have, in balancing and weighing between these fu ndam e ntal hu m a n rights g iven an edge to fundam enta l human rights such as the right to access to justice. Th erefore, using this a p proach, our country is under a duty by virtue o f Article 18 or our Constitution (32)) read together w ith Article 1 O and 16 of the UDHR (29) to guarantee this fundamental human rig ht of access to justice and to equa lity befo re the law to the Appellants . According to Professor de Gaay Fortman, in the same article referred to above, a na lysing this fundamenta l rig ht after September 11 th 2001 a ttacks on USA and the consequential arrests and detentio ns of a number of people w ithout tria l has this to say on this duty of ensuring this fundamenta l right of access to justice: " ........ .... .. .. the legality principle the rule of law implies that • everyone, including the state itself and its functionaries, is subject to the law in the sense of clear and unambiguous rules and standards that generally have no retroactive effect ... " (315) The next question is, can treaty law or international c ustomary law supersed e our domestic law. As we have a lready rule d that the diplo matic immunities and privileges enjoyed by treaty bodies are the same as the diplomatic immunities and privileges accorded to State actors, these have been g iven legal effect by Section 4 of Cap 20 (28). So, the diplomatic immunities and privileg es accorded to the 1st Respondent have been given legal effect by Section 4 of Cap 20(28) . The diplomatic immunities and privileges of th e 1st Respondent are part of tre aty law as well a s our statutory law. The question is, is there any conflict b e tween our sub sidiary legislation in Cap 20(28) and the treaty law in CO MESA, PT A and o ur C onstitution on the right to access to justice? Our Constitution which is a grand no rm of o ur laws as already stated in our Judgement, has incorporated the provisions of this right of access to justice (see Article 18 o f o ur C onstitution). So if there is a confli c t between our Co nstitution and the subsidiary legislation in Cap 20, our Constitution (32) prevails. In this case therefore, the right of access to jus-fice has an edge over the consideration of the treaty obligatio ns under COMESA a nd PTA treaties as domesticated in Section 4 and Statutory Instrument No. 123 of 1992(31). f JI ... J47 (317) have already held that there is merit in the argument that the learned trial Judge misdirected himself when he ruled that the l st Respondent enjoyed absolute immunity, we will not go too much in the arguments on this point. However, looking at Clause 16, we agree with Mr Mundashi, SC., and Mr Sangwa that there was no express waiver o f immunity. Article 4. of Statutory Instrument No. 123(31) provides that there has to be express waiver of immunity before it can be enforced . Coming to ground 2 the thrust of this ground is that, the learned trial Judge erred when he held that the Appellan ts failed to disclose that they ceased to be shareholders in Zambezi Po rtland Cement Limite d and as such the y were not e ntitled to any equitable re m edy of an injunc tion. Mr Mundashi, SC, and Mr Sangwa have argued tha t altho ugh such a finding was not supported by evidence that the Appellants were no long shareholders, no netheless, th e Appellants are being punished for failing to d isclose, th is material fact that ownership of shares was contentious at the stage the Appellants applie d for an ex-parte injunction. We understand th e argume nt but have difficulties in accepting that argument. The finding s of th e le arned trial Judge at page 12 of the record were: "the fact that the Plaintiffs (now Appellants) ceased to be share holde rs in the company afore mentioned was a very material fact. The suppression of that fact, • • A, (318) with a further claim that they are shareholders when they are not, means that the injunction cannot be sustained." Th erefore the argument of Mr Mundanshi, SC, and Mr Sangwa cannot be accepted. The Learned trial Judge based his conclusion on his holding that the Appellants were no longer sh areholders in the Company, which was a wrong holding as it was not supported by any evidence before the learned trial Judge. In the a lternative, it has been argued that even if the learn ed trial Judge misdirected himself on that finding as a basis for refusing to grant interlocutory injunction, applying the well established principles in granting o r rejecting application for an interlocutory injunc tion, the Appellants would not have been granted that relief as their claim of right was not clear and the chances of succeeding on the main claim were not established. Also according to the Respondents, th e Appellants did not come to e quity with clean hands in that they failed to honour their obligation in the loan agreeme nt by not surrendering the title deed to the l st Respondent and by failure to pay as stipulated in the loan agreement. In addition, Mr Sangwa argued that as the Appellants came to court seeking this relief after Receiver had been appointed they were no longer an interested party and as such cannot seek for any remedy. J49 (319) We have considered these arguments. Firstly, we agree that there was evidence on record that the Appellants were still Directors of Zambezi Portland Cement Limited using the authority of Avalon Mortors Limited (in Receivershi ( 19), As already Stated we are satisfied that the Learned trial Judge based his rejection to grant the Appellant an injunction on his conclusions which were not supported by any evidence on record. He concluded wrongly that the Appellants were to be punished because they had failed to disclose the facts that they ceased to be shareholders. So he misdirected himself. Coming to the other argument by Mr Sangwa that even if there was no misdirection, the lower Court would not have granted the Appellants the injunction since the Appellants did not have a clear claim of right. We hold that there are two main contentious issues which were to be dealt w ith at trial stage, these are: ( l) whether or not the l st Respondent was right to appoint the 2nd Respondent as a receiver at that stage; (2) whether or not there was a breach of th e loan agreement between Zambezi Portland Cement Limited and the l st Respondent. Looking at these two issues, we are satisfied that th ere was need for an interloc utory injunction to b e granted to the Appellants to protect prope rty pendete lite. We th erefore find m erit on ground 2 as well. ... }50 In sum total, the appeal succeeds. We award costs to the Appellants, to be agreed upon or to be taxed in default . (320) ... .. ...... . ~ ~ ............ .... ... . L. P. Chibesakunda SUPREME COURT JUDGE SUPREME COURT JUDGE .... ..... ........... ..... .... ... ... ........ c::::::p;;~ \ H. Chibomba SUPREME COURT JUDGE