Atlas Mara Financial Services Limited and Anor v DBF Capital Partners Limited and Anor (2024/HPC/ARB/0680) [2025] ZMHC 29 (19 May 2025)

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AN APPLICATION TO SET ASIDE THE ARBITRAL AWARDS DATED 14 JUNE 2024 AND 16 AUGUST 2024 PURSUANT TO SECTION 17(2) (a) (111) AND SECTION 17(2)(b)(ll) OF THE ARBITRATION ACT, IN THE MATIER OF: AND IN THE MATIER OF: BETWEEN: ATLAS MARA FINANCIAL SERVICES LIMITED 1 ST PLAINTIFF MICRO FINANCE ZAMBIA LIMITED 2ND PLAINTIFF AND DBF CAPITAL PARTNERS LIMITED ACCESS BANK ZAMBIA LIMITED 1 8 T DEFENDANT 2ND DEFENDANT Before the Honourable Mr. Justice L. Mwanabo on 19th May, 2025 For the Isl and 2 nd Plaintiff : Mr. G. Chama and Ms. N. Chibuye of Abigail & Chama Advocates vFor the lsL Defendant: Mr. M. Ndalameta of Messrs. May and Company For the 2 nd Defendant: Ms. C. Chamaombe of AMW & Company Legal Practitioners RULING Cases referred to: 1. Dyson v Attorney General (1911) 1 KB 418 2. China Henan International Cooperation Group Company Limited v G and G Nationwide (Z) Limited Selected Judgment No. 8 of 2017 (Unreported) 3. Cash Crusaders Franchising (PTY) Limited v Shakers and Mover Zambia Limited 2008/HP/ARB/No.001 4. Chick Masters Limited and Another v Investrust Bank Plc Appeal No. 74 of 2014 (unreported) 5. Danny Pule and Others v The Attorney General and Others, CCZ Selected Judgment No. 60 of 2016 6. Zambia Revenue Authority v Professional Insurance Corporation Zambia Appeal No. 34 of 2017 7 . Lubambe Copper Mine Limited v Hambani Ngwenya and Another Appeal No. 81 of 2023 8. Godfrey Miyanda v The High Court (1984) ZR 62 (SC) 9. Konkola Copper Mines Plc v Copperfields Mining Service (2010) 3 ZR 156 10. Satyam Shivan Sundaram and Classic Mining and Trading Limited v Given Chisakula Kawina Appeal No. 076 of 2017 11. Zambia Revenue Authority v Tiger Limited and Zambia Development Agency SCZ, Selected Judgment No. 11 of 2016 12. Road Development Agency v Safricas Zambia Ltd Appeal No. 03/2024 13. Citibank Zambia Limited v Suhayl Dudhia Appeal No. 6 of 2022 Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. The Arbitration Act No. 19 of 2000 4. The Arbitration (Court Proceedings) Rules 2001, SI No. 75 of 2001 5 . Rules of the Supreme Court of England 1999 Edition (White Book) 6 . The Banking and Financial Services Act No. of 2017 7 . The High Court (Amendment) Rules of 2020, SI No. 58 of 2020 Other Materials referred to: 1. Redfern and Hunter on International Arbitration, 6 t h Edition 2. Sir Charles E. Odgers, Craies on Statute Law, 5 th Edition 3. Patrick Matibini, Zambia Civil Proce dure Commentary and Cases Vol 1 (Durban, LexisNexis, 2017) 1.0 APPLICATION 1. 1 The 1st Defenda n t h e rein filed a n a p plication on 5 th November, 2024 by way of Summ ons for a n Order to Dis miss Action for Being an Abuse of Cou rt Process and for Want of J urisdiction. 1.2 The application was m a d e pur su a nt to Section 13 of the High Court Act1 , as read with Order XXX. Rule 1 l(a) of the High Court Rules2 and t h e Court's inherent ju risdiction. 2 .0 INTRODUCTION 2 . l The back ground of this m atter is that the Plain tiffs, 1s t Defendant and African Banking Corporation Zambia Limited ("ABC") ente red into a Share S ale a n d Pu rch ase Agreem ent ("SPA") rela tin g t o shares in the 2nd R2 ::: Plaintiff on 21st December, 2021. On 14th November, 2023, following the termination of the SPA by the 1st Plaintiff, the 1st Defendant declared a dispute and referred the matter to arbitration. 2.2 On 19th April, 2024, the 1st Defendant submitted its Statement of Case and bundle of documents before the Tribunal. The 1st Defendant on the same day submitted an application before the Arbitral Tribunal for interim measures of protection, seeking the preservation of all issued shares in the 2 nd Plaintiff, which were subject to the SPA. Further, on the same date, the 1st Defendant filed a request for joinder of the 2nd Defendant to arbitration proceedings on the basis of the proposed amalgamation between the 2 nd Defendant and ABC. 2.3 The Statement of Defence and bundle of documents were submitted before the Tribunal by the Plaintiffs on 23rd May, 2024. On 14th June, 2024, the Tribunal awarded the 1st Defendant an Order for Interim Measures and on 16th August, 2024, the Tribunal ordered the joinder of the 2 nd Defendant to the arbitral proceedings. 2.4 The Plaintiffs commenced this action on 16th September, 2024 to set aside the Arbitral Awards dated 14th June, 2024 and 16th August, 2024 pursuant to Section 17(2)(a)(III) and Section 17(2)(b)(II) of the Arbitration Act No. 19 of 20003 as read together with Rule 20(1), (2) and Rule 23 of the Arbitration ICourt Proceedings) Rules 2001 4 . 2.5 On 5 th November, 2024, the 1st Defendant filed an application for an order to dismiss action for being an abuse of Court process and for want of prosecution on the following grounds: 1. The Plaintiff's application is an abuse of Court process; and 2. There is no jurisdiction to hear and determine the Plaintiffs' application. 3.0 EVIDENCE AND ARGUMENTS IN SUPPORT OF THE APPLICATION 3.1 The 1st Defendant's affidavit in support of the application was deposed to by Clergy Mweemba Simatyaba, the Country Representative of the 1st Defendant Company. The affidavit in support was accompanied with skeleton arguments and list of authorities. It was disclosed that on 21 st December, 2021 the 1st Defendant and the Plaintiffs, along with the 2nd R3 :: Defendant before its amalgamation with ABC, executed an agreement for the sale to the 1st Defendant of 100% of the shares in the 2nd Plaintiff. A copy of the SPA was exhibited as "CMS 1". 3.2 The deponent stated that in Clause 25.2 of the SPA, the parties agreed to resolve "Any claim or dispute arising under, out of or in connection with this Agreement or the relationship between the parties or the conduct of any negotiations which cannot be resolved amicably between the Parties" through arbitration. 3.3 It was disclosed that on 14Lh November, 2023, the 1st Defendant declared a dispute and accordingly referred the matter to arbitration following the Plaintiffs' purported termination of the SPA. Following the constitution of the arbitral tribunal (the "Tribunal"), on 19th April, 2024, the 1st Defendant requested for interim measures of protection from the Tribunal. The deponent further disclosed that the 1st Defendant duly served the request for interim measures of protection on the Plaintiffs, first via email and thereafter, physically on the same date. 3.4 Further, it was deposed that on 10th May, 2024, the Plaintiff submitted their opposition to the request for interim measures of protection. The deponent stated that the Plaintiffs raised various arguments in relation to jurisdiction including that the order would affect third parties not talcing part in the arbitration. The said opposition was exhibited as "CMS 2". 3.5 The deponent went on to state that on 14th June, 2024, the Tribunal issued the Order on Interim Measures preserving the shares in the 2nd Plaintiff so that the Arbitration is not rendered nugatory. It was revealed that the order was emailed to the parties on 14th June, 2024. A copy of the email and order were exhibited as "CMS 3". On the same order, it was disclosed that to date, the order has kept the arbitration process relevant, and gives the 1st Defendant hope that in the event of a favourable outcome in the arbitration, meaningful relief will be obtained. It was contended that setting aside the Order on Interim Measures would render the whole arbitration pointless. 3.6 According to the deponent, the pt Defendant also served a request for joinder of the 2 nd Defendant on the Plaintiffs and the 2 nd Defendant on R4 :: 19th April, 2024, first via email and thereafter, physically on the same date. He disclosed that on 27th June, 2024, after receipt of the 1st Defendant's first reply, the Plaintiffs asked the Tribunal for permission to file another objection to the 1st Defendant's request for joinder, to which the 1st Defendant could then reply. The Tribunal granted this request and ordered that the Plaintiffs and the 2nd Defendant file their all encompassing objections. 3.7 It was disclosed that the on 12th July, 2024, the Plaintiffs filed their consolidated objection to the joinder request. However, the 2 nd Defendant did not take the opportunity to file any objection to the request for joinder, despite them being directly affected by the same. The deponent exhibited the consolidated objection containing jurisdictional arguments as "CMS 5". 3.8 The deponent revealed that on 16th August, 2024, the Tribunal issued an Order on Application for Joinder of a Party, effectively joining the 2 nd Defendant to the arbitral proceedings. The Tribunal shared the Joinder Award with the parties via email on the date of issuance. A copy of the correspondence from the Tribunal to the parties was exhibited as "CMS 6". It was contended that the order for joinder similarly ensures orderly proceedings as it addresses the amalgamation between the 2 nd Defendant and ABC which ceased to exist as a result of the amalgamation. Further, that if the said order is set aside, it would seriously prejudice the arbitration. 3. 9 The depone nt further disclosed that the arbitral procee dings are still ongoing, and as at 23 rd October, 2024, Order for Direction No. 3 was issued by the Tribunal, amongst other things setting main hearing dates for 26th to 29th November, 2024. It was to the deponent's surprise that the Plaintiffs filed an application on 16th September, 2024, seeking to set aside the Order for Interim Measures and the Order on Application for Joinder of a Party. The deponent a lso questioned the motive of the Plaintiffs, midway through the arbitration, trying to set aside orders that are holding the arbitration together. 3.10 The deponent stated further that h e was advised by counsel of the following: RS .:: 3.10.1 The Plaintiffs' application is an abuse of court process because it is not permissible to set aside an award or order other than the main award in the arbitration process, and thereby have the court interfere with a process that it should only be complementing; 3.10.2 There is no jurisdiction to entertain the Plaintiffs' action, because in truth it is a challenge to the Tribunal's jurisdiction and not only has the wrong manner of commencement been used, but also the Plaintiffs are out of time. For the Interim Measure Order, the Plaintiffs had until 14th July, 2024 (30 days from 14th June, 2024) to file their application challenging the Tribunal's jurisdiction. However, they submitted their application on 16th September, 2024. In the case of the Order for Joinder, the Plaintiffs had until 15th September, 2024 (30 days from 16th August, 2024) to challenge the Tribunal's jurisdiction on this point, yet they filed their application on 16th September, 2024; and 3.10.3 Particularly on the order joining the 2 nd Defendant to the arbitration, it is abusive of court process for the Plaintiffs to be seeking to set it aside in circumstances where the 2°d Defendant is represented in the proceedings, and takes no issue with the order itself. 3.11 Lastly, it was stated that the Plaintiffs agreed to arbitrate in the SPA, and ought to be held to that position and allow the process to run its course. It was asserted that the Plaintiffs' application is without merit and should be dismissed for being an abuse of court process and lacking jurisdiction. 3.12 In its skeleton arguments, the 1st Defendant submitted that the parties agreed to resolve all of their disputes through the private forum of arbitration. It argued that the parties are involved in an ongoing arbitration and are in fact a few weeks from the main hearing. The 1st Defendant emphasised the Court's complementary role in the arbitration process which is guided by the Arbitration Act3 . It was contended that the application made by the Applicants goes against the very essence of arbitration as it seeks to fit into the provisions a reading that is R6 impermissible. In addition, that the application also ignores the route set out specifically for the sort of challenge brought, and falls short even when measured against that standard. It was the 1s t Defendant's submission that the action must be dismissed for being an abuse of court process. 3.13 The 1s t Defendant divided its main arguments into four limbs. Under the first limb, the argument is that it is abusive of court process to seek court intervention in an ongoing arbitration. It was argued that the scheme of the Arbitration Act3 makes it clear that by the time you get to the portion dealing with setting aside of arbitral awards, the arbitration process has been concluded. A passage from paragraph 7 .06 of the learned authors Redfern and Hunter on International Arbitration 6 th Editionl, which analyses the UNCITRAL Model was quoted. The main takeaway from the passage is that involvement of courts in the arbitration process is very limited in that the court can only intervene where so provided by the UNCITRAL Model Law and the 10 recognised possible instances for such intervention are highlighted and further that in any challenge to the arbitral award, or to its recognition and enforcement, the judgment of the competent court will be decisive. 3.14 In developing the above point further, Counsel quoted from the learned authors of Redfern and Hunter on International Arbitration 6 th Edition 1 as follows: "If there is a partnership between arbitrators and the national courts, it is one in which each has a different role to play at different .times. The relationship between courts and arbitrators has been compared by a former senior English judge, Lord Mustill, to a relay race: Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the court; for at that stage there is no other organisation which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take the baton and retain it until they have made an award. At this R7 point, having no longer a function to ful[i.l, the arbitrator hand back the baton so that the court can in case of need l~nd its coercive powers to the enforcement of the award." (underlined and emphasised by the 1st Defendant) 3.15 In line with the above quotation, it was contended that the learned authors highlight that while the arbitral proceedings are ongoing, there is no role for the Court to play, other than consider a question on jurisdiction of the Tribunal. It was submitted that the question that begs an answer is, to what end would this Honourable Court set aside procedural orders made during the arbitration, and even interim measures for preservation of the arbitral process? The 1s t Defendant argued that the Affidavit in Support state that the arbitration is ongoing and demonstrates that in the case of the interim measure, it is particularly holding the arbitration together. It was submitted that the orders appearing as Exhibit "CMS 3" and Exhibit "CMS 6" in the Affidavit in Support are clearly issued for the orderly administration of the arbitral process. To set them aside would collapse the arbitral proce ss that the parties agreed to, and render it nugatory. 3 .16 Furthermore, Section 13 of the High Court Act 1 was quoted which speaks to the power of the court to apply law and equity, grant remedies or reliefs and to deal with all is sues in dispute once a matter is before it. In addition, the case of Dyson v Attorney General1 was called to aid where the court's power to timely dismiss a baseless ca se without waiting for full trial. Additionally, the Explanatory Note 18/19/29 of the Rules of the Supreme Court of England5 and Order XXX Rule 11 (a) of the High Court Rules2 were quoted to buttress the point that an order dismissing the Plaintiffs' case may properly be made on this application. 3.17 The second limb of the 1s t Defendant arguments is that only the final award in an arbitration is susceptible to being set aside by the Court. It was contended that Section 17 of the Arbitration Act3 cannot be used to set aside procedural orders and interim orders, on the basis that they are awards. The 1s t Defendant submitted that it is not unusual for the Model Law to produce what would ordinarily seem to be an odd result. It was argued that this was seen in the Copperfield case (full citation not RB :: given), where courts that are accustomed to issuing stays and entertaining applications to pay a judgment d ebt in instalments were reminded that such a course of action is not open to them. 3.18 Reference was once again made to the learned authors of Redfern and Hunter on International Arbitration 1 (supra) to argue the point that at the end of the arbitration process, there will be 1 award, except where for example a corrective award has been issued. According to the 1s t Defendant, that award will be the subject of a set aside application in the scheme of the Model Law. It was contended that in the action commenced by the Plaintiffs before this Court, it is a red flag that there are supposedly 2 awards that form the subject matter of the requested relief under Section 17, even before the arbitration has come to an end. 3.19 It was the 1st Defendant's position that the Plaintiffs have proceeded on the premise that the definition of Award in Section 2 of the Arbitration Act3 included "order". According to the 1st Defendant, this in itself leads to the absurdity highlighted and that in terms of the purposive rule of interpretation, or ambiguity, the definition cannot fit into a consideration of Section 17 of the Arbitration Act3 because it is a cardinal rule of interpretation that a statute is interpreted as a whole, in its entire context. The maxim of ex visceribus actus was brought to my attention and it was emphasised that it was a long recognised rule of construction positing that words in a statute often take their meaning from the context of the statute as a whole. The meaning of ex visceribus actus as explained by Sir Charles E. Odgers in Craies on Statute Law2 at page 93-94 was reproduced. 3.20 It was argued that the spirit and intention of the Arbitration Act3 and the Model Law is that there is no court interference with the arbitral process while a Tribunal has been duly constituted. Further, the 1s t Defendant contended that notwithstanding what is provided in the definition section of the Arbitration Act3 , Section 17 cannot be construed to apply to procedural and other orders in an arbitration. The 1st Defendant argued that when one considers how the Arbitration Act3 is read, it becomes clear that the Plaintiffs' contention cannot be upheld. The case of China Henan International Cooperation Group Company R9 = Limited v G and G Nationwide (Z) Limited2 was cited, where the Supreme Court held that the Model Law contained in the First Schedule of the Arbitration Act, is read before the sections in the Act. More importantly, the articles of the Model Law are only modified to the extent of the particular section modifying them. 3.21 According to the 1st Defendant, for the word "Award" to have the meaning contended for by the Plaintiffs, it would have been specifically modified in Section 17 itself. Relying on a modification of Section 2 would lead to ambiguous and absurd result canvassed for by the Plaintiffs. It was the 1st Defendant's submission that the modification in the First Schedule would have to read "Modified by sections 2 and 17". Furthe~ and the in the alternative, the learned author of Craies on Statute Law, 5 th Edition2 was quoted at pages 205 to 206 and is said to provide an authoritative explanation on how to deal with provisions in a statute that may seem to be conflicting as follows: "Acts of Parliament sometimes contain general enactments relating to the whole subject matter of the statute, and also specific and particular enactments relating to certain special matters; and if the general and specific enactments prove to be in any way repugnant to one another, the question will arise, which is to control the other? In Pretty v Solly, Romilly, MR stated as follows what he considered to be the rule of construction under such circumstances. "The general rules which are applicable to particular and general enactments in statutes are very clear; the only difficulty is their application. The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it must properly apply .... The rule is that where a general intention is expressed, the particular intention is to be considered in the nature of exception." RlO = 3.22 It was submitted that the definition of an Award in Section 2 of the Arbitration Act3 is the classic example of what a general enactment is. Further, that its general nature being incorporated into Section 17 leads to the absurd result that a party, during arbitration, can be applying to set aside any or all interim and procedural orders issued for the orderly administration of an arbitral process. Yet the Arbitration Act3 envisages only a set aside of the award that concludes the arbitration. On how Section 2 is to be applied, reliance was made on the learned authors of Craies on Statute Law2 (supra) to argue that, it is permissible for the definition to be applied to everything else in the Arbitration Act3 but not Section 17. 3.23 The third limb of argument is that the Plaintiffs' failed plea as to jurisdiction in the arbitration has not been escalated in the manner prescribed by the Arbitration Act3. It was argued that the Plaintiffs have framed a request to set aside the Interim Measure Award and the Joinder Award, alleging that the Tribunal exceeded its jurisdiction by addressing matters not submitted to arbitration and that the "awards" conflict with public policy. The 1st Defendant submitted that a close examination of Exhibits "CMS 2", "CMS 4" and "CMS 5" in the Affidavit in Support reveal that what the Plaintiffs raised is a plea as to jurisdiction. 3.24 It was contended that the Tribunal granted Interim Measures Order on 14th June, 2024 in spite of the Plaintiffs' argument in Exhibit "CMS 2" that the Tribunal should deny jurisdiction over the request as it would affect third party interests, following an agreement to sell shares. The 1s t Defendant argued that in the action now commenced by the Plaintiffs, they are clearly dissatisfied with the Tribunal's determination on jurisdiction. Further, that the Plaintiffs argued that the Tribunal can only address issues submitted to it and ask this Honourable Court to rule on this by examining the terms of reference given to the Tribunal, specifically at paragraph 3. 9, page 7 of the Plaintifrs Skeleton Agreement Supporting the Originating Summons, filed into Court on 15th September, 2024 (the "Arguments in Support"). 3.25 The 1st Defendant alluded to the fact that in paragraph 46.1 at page 7 of the Arguments in Support, the Plaintiffs argue that the Tribunal acted Rll outside its jurisdiction by disregarding the contract. Additionally, that at paragraph 4.6.5 and 4.6.6, page 11 of the Agreements in Support, the Plaintiffs argue that the Tribunal exceeded its jurisdiction by issuing relief that directly impacted third parties who were not part of the arbitral proceedings, arguing that private arbitration cannot be used to affect third parties' rights. 3.26 On the Joinder Order which was issued on 16th August, 2024, it was argued that in the Plaintiffs' consolidated objections produced as Exhibit "CMS 5" of the Affidavit in Support, the Plaintiffs argued in detail that the Tribunal lacked jurisdiction to grant the Joinder Order, arguments which mirror those now advanced before this Honourable Court in paragraphs 4.7.4, 4.7.6 and 4.11 of the Arguments in Support. It was further argued that when rendering its decision, produced as Exhibit "CMS 6", the Tribunal, at pages 11 and 12 thoroughly addressed the jurisdictional issues raised by the Plaintiffs, ultimately affirming its jurisdiction. 3.27 The 1st Defendant contended further that having established that the Plaintiffs' set-aside application is essentially a disguised jurisdictional challenge, the application is improperly before this Honourable Court. It was submitted that Article 16(2) and (3) of the First Schedule of the Arbitration Act3 provides the specific process by which a jurisdictional challenge should be raised before this Honourable Court. The interpretation of the foregoing by the Supreme Court in the China He nan case2 (supra) was produced as follows: "The effect of these two sub articles is that they specify the stage and period within which a party can challenge the arbitrator's jurisdiction. They also state the manner in which an arbitrator can rule on a challenge regarding his jurisdiction, either as a preliminary question or in the final award. It also sets out the recourse open to a party, in the former case, where the tribunal rules that he has iurisdiction. The award on jurisdiction that is in issue in this appeal was determined as a preliminary question and not in the final award. Therefore, in accordance with Article 16 13} of the R12 Model Law, the recourse the Appellant had was to apply to the court, within thirty days of receipt of the award, and not apply to set it aside pursuant to section 17 of the Arbitration Act. This is the only recourse provided in the Model Law for awards such as the one rendered by the arbitrator on iurisdiction." (Underlined and emphasised by the 1st Defendant) 3.28 The 1st Defendant contended that it is clear that a challenge to the Tribunal's jurisdiction, asserting that it is acting beyond scope, must be initially raised with the Tribunal as soon as the issue arises. Further, that the Affidavit in Support shows that the Plaintiffs raised these issues, and the Tribunal determined them, as preliminary matters. It was the position of the 1st Defendant that the only recourse for the Plaintiffs was to ask this Court to decide the matter. However, what has been filed is an orginating summons pursuant to Section 1 7 of the Arbitration Act, rather than Article 16 of the Model Law. 3.29 In addition, it was contended that even if it were treated as an application under the correct provision, it is ill fated because it is out of time and there is no jurisdiction to deal with the action. The 1st Defendant further contended that the Affidavit in Support demonstrates that the Plaintiffs challenged the Tribunal's jurisdiction on 19th May, 2024, in response to the 1st Defendant's request for an Order for Interim Measures. The Tribunal ruled on this as a preliminary matter on 14th June, 2024, and the decision was distributed to both parties on the same date, as seen from Exhibit "CMS 3" of the Affidavit in Support_. It was submitted that the Plaintiffs, therefore, had until 14th July, 2024 (30 days from 14th June, 2024) to file an originating summons asking this Honourable Court to decide on the jurisdictional issues. However, they commenced this action on 16th September, 2024, 2 months late. The 1st Defendant opined that this delay alone warrants the dismissal of the Plaintiffs' action. 3.30 On the question of joinder, the 1st Defendant indicated that the Tribunal ruled on this on 16th August, 2024, and the award was shared with the parties on the same date, as seen from Exhibit "CMS 6" in the Affidavit in Support. It was contended that the Plaintiffs thus had until 15th September, 2024 to challenge the Tribunal's jurisdiction on this point. R13 However, the Plaintiffs' application was filed on 16th September, 2024, missing the deadline by a day. It was thus contended that the Plaintiffs' application is outside the permissible period and should be dismissed. In addition, it was argued that this Court lacks jurisdiction over the Plaintiffs' disguised set-aside application. 3.31 The fourth and final limb of the 1st Defendant's arguments is that the Plaintiffs have no locus standi to challenge the joinder Order, which the 2nd Defendant has not objected to. It was submitted that the 1st Defendant's application for the Joinder Order was aimed at joining the 2 nd Defendant to the arbitration proceedings. It was indicated that this request was duly served on the 2 nd Defendant and its Advocates, as explained in Paragraph 12 of the Affidavit in Support. The l5t Defendant asserted that the Tribunal provided the 2nd Defendant ample opportunity to file any objections. Despite this, the 2 nd Defendant, the party directly affected, chose not to object. It was contended that by contrast, the Plaintiffs, who are not directly affected, have no standing to contest it. It was asserted that the Plaintiffs lacks locus standi to challenge the Joinder Order, in circumstances where the 2 nd Defendant itself has no problem with the order. 3.32 In conclusion, the 1st Defendant submitted that the Plaintiffs' action is in fact an abuse of court process for seeking to interfere with an ongoing arbitration process presided over by a duly constituted arbitral tribunal. In addition, that the set aside action is disguised challenge to jurisdiction brought under the wrong provisions of law, and statute barred in any event. I was urged to protect the integrity of the court's process and dismiss the Plaintiffs' action with costs. 4.0 EVIDENCE AND ARGUMENTS IN OPPOSITION 4.1 In opposing the application, the Plaintiffs filed an Affidavit in Opposition deposed to by Mutule Museba, an agent of the 1st Plaintiff and former Head of Legal of ABC. The affidavit was accompanied by skeleton arguments and list of authorities. 4.2 The deponent did not dispute the contents of paragraph 5 of the Affidavit in Support except to the extent that all disputes to be referred for Rl4 submission to arbitration were to be determined within the scope of the SPA and relevant legislation. 4.3 Further, the deponent stated that he was advised by Counsel that contrary to the 1st Defendants assertions in paragraph 10 and 11 of the Affidavit in Support, setting aside the order on interim measures for conflicting provisions of the Arbitration Act3 will not render the arbitration useless. The deponent asserted that the 1st Defendant has made a claim for damages in the arbitration proceedings and the integrity of the arbitration proceedings will still be maintained in the event of setting aside of awards that do not satisfy section 17 of the Arbitration Act3 . 4.4 It was stated by the Plaintiffs that contrary to the 1st Defendant's assertions in paragraph 13 to 16 of the Affidavit in Support, the 2 nd Defendant, in an email dated 21 st April, 2024, advised the 1st Defendant that at the date of the request for joinder, the amalgamation between ABC and the 2 nd Defendant had not concluded. In addition, the 1st Defendant was informed that the subject matter of the arbitration had been hived out from the transaction relating to the sale of the 1st Plaintiff by its shareholders to the 2 nd Defendant, and therefore, the 2 nd Plaintiff was not acquired by the 2 nd Defendant, actually nor constructively. Further, that the 2 nd Defendant objected to its addition to the arbitration proceeding. A copy of the email correspondence was exhibited as "MMl". 4.5 The deponent contended that the application to set aside the arbitral tribunal's interim measures order dated 14th June, 2024 andjoinder order dated 16th August, 2024 is properly before this Honourable Court. Further, that the Plaintiffs application to set aside the order for interim measures is not a challenge to the jurisdiction of the arbitral tribunal but is brought on the specific ground that (i) the orders contain decisions on matters beyond the scope of the submissions to arbitration; and (ii) the orders are contrary to public policy. 4.6 Furthermore, it was contended that contrary to the 1 st Defendant's assertions in paragraph 18 of the Affidavit in Support, this Court has jurisdiction to set aside interim orders where the specific grounds for setting aside are satisfied. The deponent stated that the Plaintiffs' are not requesting this Honourable Court to review the merits of the arbitral RlS tribunal's decisions but rather, to exercise its complementary role of setting aside awards that do not comply with the requirements set out in Section 17 of the Arbitration Act3 . 4.7 On the 1st Defendant's assertion in paragraph 18 of the Affidavit in Support, it was contended that the paragraph is contrary to its position in cause number 2024/HPC/ARB/0480 in which it has applied to register the interim measures order dated 14th June, 2024. A copy of an order under cause number 2024 / HPC /ARB/ 0480 was exhibited as "MM2". The deponent disclosed that this Honourable Court under cause number 2024/HPC/ARB/0480, referred to the order of 14th June, 2024 as award and ordered that the said order could be set aside on or before 19th September, 2024. It was contended that the orders being sought by the pt Defendant in its application would conflict the order referred to above. The deponent asserted that this action is properly before the Court and the Plaintiffs have sufficient interest in this matter to prosecute the action. 4.8 On the 1st Defendant's assertion that challenges to the Tribunal's jurisdiction must be made within 30 days, it was contended that this is misplaced as the Plaintiffs are not raising jurisdictional objections. Rather, the Plaintiffs seek to set aside the Interim Awards on substantive grounds of the Tribunal acting beyond the scope of submission to arbitration and contradicting public policy. 4.9 Lastly, the deponent deposed that contrary to paragraph 18.3 of the Affidavit in Support, it is not an abuse of court process for the Plaintiffs to challenge the joinder order as the 2 nd Defendant is not a party to the arbitration agreement. It was asserted that the 1st Defendant's application lacks merit and should be dismissed with costs. 4.10 In their skeleton arguments, the Plaintiffs first gave the background of the matter and outlined the basis for opposing the 1st Defendant's application as follows: 4.10.1 An interim or interlocutory award is an award that is subject to the provisions of the Arbitration Act No. 19 of 2000 ("Arbitration Act") relating to setting aside awards; 4.10.2 The steps taken by the 1st Defendant to register the interim awards of 14th June, 2024 and 16th August, 2024 show that even the 1st R16 Defendant regards the interim awards as "awards" capable of registration under Section 18 of the Arbitration Act; 4.10.3 Even under the Model Law, interim and interlocutory awards can be challenged; 4.10.4 The 1st Defendant has misapplied the reasoning and decision in the China Henan Case; and 4.10.5 The Plaintiffs have locus standi to make the application to set aside the awards of 14th June, 2024 and 16th August, 2024. 4 .11 The Plaintiffs then augmented their arguments under 5 limbs. The first limb of the Plaintiffs' arguments was on whether it is an abuse of court process to apply for court intervention in an ongoing arbitration. It was argued that courts play a complementary role in ensuring that arbitration proceedings are effective. The book by the learned authors, Redfern and Hunter on International Arbitration, 6 th Edition1, was quoted where they state at paragraph 7 .06 that: "UNCITRAL Model Law seeks to exclude the involvement of the courts as far as possible. Article 5 states: 'In matters governed by this Law, no court shall intervene except where so provided in this Law.". .. The Model Law also acknowledges that the assistance of the competent court may be necessary in the taking of evidence, and that in any challenge to the arbitral award, or its recognition and enforcement, the judgment of the competent court will be decisive." (Underlined and emphasised by the Plaintiffs) 4 .12 It was con tended that the above excerpt indicates that despite the court's limited involvement in arbitration, it plays a complementary role in instances such as any challenge to the arbitral award, which is an issue at hand. To buttress the point, the case of Cash Crusaders Franchising (PTY) Limited v Shakers and Mover Zambia Limited3 was relied on, where it was held that: "The complementary role the Courts play in the arbitral process means that the Courts merely assist the arbitral process to be effective because, since it is manned by private citizens and not the State, there are no systems put in place to R17 make effective such as those available to the Courts. It is inter alia the form of providing a forum for registering awards and setting aside of awards.,, (underlined and emphasised by the Plaintiffs) It was argued that from the above passage, courts have recognised that their complementary role in the arbitration process includes providing a forum for setting aside awards and are not precluded from assisting the arbitral process to ensure effectiveness. 4.13 It was the Plaintiffs' submission that their application to aside the arbitral awards dated 14th June, 2024 and 16th August, 2024 is not an a buse of court process. Rather, the Plaintiffs are merely seeking the courts assistance regarding setting aside of awards on the grounds set out in the Arbitration Act3. In addition, the Plaintiffs asserted that arbitrators, being private citizens appointed by agreement of the parties, are not without supervision in the exercise of their powers. The Plaintiffs' argued that the supervision is as prescribed in the Arbitration Act3 , which details instances in which the court can intervene in arbitration proceedings. A passage from the case of China Henan case2 (supra) at page J36 was quoted to cement the point. 4 . 14 The Plaintiffs argued that this action, being permitted under the Arbitration Act, cannot be an abuse of court process. The case of Chick Masters Limited and Another v Investrust Bank Plc4 was called to aid where what amounts to abuse of court process was pointed out. It was submitted that this action is, therefore, not an abuse of court process as alleged by the 1st Defendant. 4.15 The second limb of the Plaintiffs' arguments is on whether an interim or interlocutory order is susceptible to being s e t aside by the Court. The Plaintiffs referred to Paragraph 3 of the 1st Defendant's skeleton argument, where it is argued that only a "final award" can b e set aside by the court for the reasons that a proper reading of Section 17 of the Arbitration Act3 requires a restricted meaning of "award" as used in Section 17 of the Arbitration Act3 , and that the Model Law does not provide for court interference with the arbitral process while a Tribunal has been R18 constituted. It was submitted that the arguments by the 1st Defendant are flawed for the reasons highlighted below: 4 . 15.1 Firstly, Article 34(4) of the Model Law recognises that a court can suspend setting aside proceedings in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or take such action as required to eliminate the grounds for setting aside. The Plaintiffs contended that a logical progression would then follow that the Court has jurisdiction under Article 34(4) of the Model Law to hear an application to set aside proceedings challenging awards of an interlocutory nature. Further that the provision of Article 34(4) is therefore consistent with the Plaintiffs' argument that "interim or interlocutory'' awards also fall within the ambit of awards that can be set aside by the court, and that the jurisdiction of the court to set aside awards is not limited to final awards. 4.15.2 Secondly, that Article 16 of the Model Law (even though inapplicable in this matter) shows that orders on a preliminary question can be set aside. Thirdly, that the interpretation being proposed by the 1st Defendant conflicts with the approach Zambian courts take in interpreting statutes. The case of Danny Pule and Others v The Attorney General and Others5 was relied on to argue on the general or guiding principles of interpretation being that the starting point is to consider the literal or ordinary meaning unless that route leads to absurdity to justify resort to the purposive approach. 4 .15. 3 The last reason was that the position taken by the 1st Defendant is contradictory to its positions under cause number 2024 / HPC /ARB/ 0480 wherein it has obtained an ex-parte order to register the order of 14th June, 2024, and the court permitted any party to apply to set aside the registration on or before 19th September, 2024. 4.16 I was beseeched to consider invoking the doctrine of Judicial Estoppel espoused in the case of Zambia Revenue Authority v Professional Insurance Corporation Zambia6 where the Supreme Court at page R45 R19 held that Counsel was estopped from arguing one position in an action and the contrary position in another matter for expediency. The Plaintiffs asserted that the doctrine against assertion of inconsistence in position is designed to protect the integrity of the judicial process. 4.17 The Plaintiffs posited that the literal interpretation of the word "award" as defined in Section 2 of the Arbitration Act3 and as used in Section 17 of the Arbitration Act3 means that it refers to interlocutory or interim or final awards. Further, that the interpretation is consistent with the observations of the Supreme Court in the China Henan Case2 (Supra) at page J34 that: "In the circumstances, the Learned High Court Judge, did not Misdirect himself when he held the application to set aside to be Misconceived. We have taken this view notwithstanding that section 17 of the Act does not make a distinction between a final award and interim or interlocutory award, because there is specific recourse provided against a decision on jurisdiction handed down as a preliminary question. In effect the two reliefs under section 17 and Article 16 are separate and distinct and there is no interplay between the two. Further, the former is not subordinate to the latter." 4.18 It was the Plaintiffs' position that sustaining the 1st Defendant's argument that the order of 14th June, 2024 cannot be challenged will conflict with the order granted by this court under cause number 2024/HPC/ARB/0480. In addition, that the order of court of 12th September, 2024, which was served on the Plaintiffs on 17th September, 2024 (a day after these proceedings were commenced) clearly states that an .application to set aside registration may b e made within 7 days of the order, that is, 19th September, 2024. It was indicated that despite this order being granted on 12th September, 2024, it was only made known to the Plaintiffs on 17th September, 2024, after the Plaintiffs had commenced these proceedings to set aside the two interim or interlocutory orders. 4 . 19 I was asked to note that the court order under cause number 2024 / HPC /ARB/ 0480 refers to the 14th June , 2024 order as an arbitral award which the 1s t Defendant now seeks to dispute. It was asserted that R20 allowing a different view to be given by this court is potentially embarrassing to the High Court as there will be two conflicting decisions on the same issue. The Plaintiffs submitted that the Interim Measures Order and the Joinder Order fall within the ambit of the definition of an 'award' under section 2 of the Arbitration Act3 and is therefore susceptible to be set aside by this Honourable Court exercising its jurisdiction under section 17 of the Arbitration Act3 . 4.20 Furthermore, the Plaintiffs submitted that the spirit and intention of section 1 7 of the Arbitration Act3 is that when it is interpreted literally, it envisages applications for setting aside interim or interlocutory awards. The literal approach of interpretation of Section 17 of the Arbitration Act3 means that parties can set aside an award whether interim, interlocutory, partial or final. It was the Plaintiffs' submission that Section 17 of the Arbitration Act3 is not restricted to only setting aside final awards. 4.21 The third limb was on whether Article 16 of the Model Law applies to this action. It was argued that 1st Defendant argues at Paragraph 4.6 of its skeleton arguments that this action is a disguised challenge to the jurisdiction of the arbitral tribunal. The Plaintiffs argued that the 1st Defendant argument is flawed for the following reasons: 4.21.1 Firstly, the application to set aside has been launched pursuant to section 17 of the Arbitration Act and not Article 16 of the Model Law. 4.21.2 Secondly, Article 16 of the Model Law is inapplicable as the Plaintiffs did not challenge the jurisdiction of the Tribunal as contemplated in Article 16 i.e. a challenge to jurisdiction prior to filing the statement of defence. Instead, by these proceedings, the Plaintiffs assert that the orders granted by the Tribunal on 14th June, 2024 and 16th August, 2024 infringe Sections 17(2) (a) (iii) and 17 (2) (b) of the Arbitration Act. 4.21.3 Thirdly, as s tated in the China Henan case2 , at J34, the reliefs under Section 17 of the Arbitration Act and Article 16 of the Model Law are two separate and distinct reliefs and there is no R21 interplay between the two nor is Section 17 subordinate to Article 16. 4.22 The Plaintiffs submitted that the reference to Article 16 of the Model Law by the 1st Defendant is misconceived as Article 16 deals with a challenge to the jurisdiction of the Tribunal to deal with a matter prior to the hearing. It was asserted that in casu, the Tribunal made certain orders which the Plaintiffs assert infringe the provisions of the Arbitration Act3 , and the appropriate remedy is an application to set aside under Section 17 of the Arbitration Act3 . The Plaintiffs contended that there are multiple Zambian authorities that show that the only remedy to challenge an arbitral award is a set aside application on the grounds set out in sections 17 of the Arbitration Act3 . Reliance was made on the case of Lubambe Copper Mine Limited v Hambani Ngwenya and Another7 , where the Court of Appeal held that: "An arbitral tribunal not being a court and its orders not being judicial orders could not exercise its power ex debito justitiae. An arbitrator cannot call in aid other people's contract in order to resolve the dispute. The mandate can only lie with a court." It was the Plaintiffs' view that Article 16 of the Model Law is inapplicable to this matter. 4.23 The fourth limb of the Plaintiffs' arguments was on whether the Plaintiffs' set aside application has been escalated in the manner prescribed by the Arbitration Act3 . It was indicated that the Plaintiffs' set aside application is predicated on the following grounds: 4.23.1 The orders granted by the Tribunal on 14th June, 2024 and 16th August, 2024 dealt with a dispute not contemplated by, or not failing within the terms of, the submission to arbitration, or contained decisions on matters beyond the scope of the submission to arbitration; and 4.23.2 The orders granted by the Tribunal on 14th June, 2024 and 16th August, 2024 are in conflict with public policy. 4.24 It was argued that the Plaintiffs have emphasised in the skeleton arguments ("Plaintiffs' Arguments") exhibited as "CMS 2" in the 1st R22 Defendant's affidavit that the orders granted by the Tribunal on 14th June 2024 and 16th August, 2024 be set aside on the grounds mentioned above. In addition, that in Paragraph 4.3 of the Plaintiffs Arguments, the Plaintiffs argue that the orders granted by the Tribunal on 14th June, 2024 and 16th August, 2024 are contrary to public policy for the reason that they disregard the provisions of section 31 of the Banking and Financial Services Act6 which provides for parties to agree on assets to be transferred on a corporate restructuring transaction and prescribes how assets vest in a corporate restructuring transaction. 4.25 The Plaintiffs indicated that in Paragraph 46.6 of the Plaintiffs' Arguments in the main matter, they argue that the decision to extend the preservation order to third parties not party to the arbitration proceedings is in conflict with public policy. Furthermore, that at Paragraph 4.6.8 of the Plaintiffs' Arguments, the Plaintiffs argue that the Tribunal in awarding the orders delved into issues far exceeding the jurisdiction of the Tribunal and outside the scope of submission to arbitration. The Plaintiffs' argued that that is in conflict with public policy. 4 .26 Paragraph 4.8 of the Plaintiffs' Argument was also referred to where the Plaintiffs argue that the purpose of the arguments availed in the Plaintiffs' Arguments is not to determine the merit of the orders granted by the Tribunal on 14th June, 2024 and 16th August, 2024. It was the Plaintiffs' position that on the contrary, the arguments are meant to indicate that the issues determined by the Tribunal could not properly be submitted for arbitration under the SPA. Additionally, it was contended that at Paragraph 4.9, the Plaintiff argues that allowing an award which goes beyond the scope of issues submitted to arbitration would undermine the arbitration process, which is contrary to the purpose of arbitration. 4.27 It was the Plaintiffs' further contention that at Paragraph 4 .10, the Plaintiffs argue that there is no integrity in an arbitral process if two parties voluntarily go to arbitration that begins to impact a third Party and/ or beginning to pronounce on a matter outside the scope of the submission to arbitration. It was asserted that it is clear from the cited paragraphs of the Plaintiffs' Arguments that the Plaintiffs' application to set aside the orders granted by the Tribunal on 14th June, 2024 and 16th R23 August, 2024 is not merely to question the jurisdiction of the Tribuna l, but rather that this Honourable Court provide a forum for setting aside the orders on the grounds set out in Section 17(2) of the Arbitration Act3 . 4.28 Section 17 of the Arbitration Act3 was cited to show tha t the action herein is properly before this Court, which provides that: "An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award, or, if a request under articles 33 of the First Schedule, from the date in which that request had been disposed of by the arbitral tribunal." 4.29 On the interim measures order, which was granted on 14th June, 2024, it was posited that the Plaintiffs had until 16th September, 2024 (three months from 14th June, 2024) to file the application to set aside the interim measures order. In the case of the joinder granted on 16 th August, 2024, the Plaintiffs argued that they had until 16th November, 2024 (three months from 16th August, 2024) to file an application to set aside the joinder. It was opined that the Plaintiffs' a pplication for setting aside of the interim measures order was timely and filed within the prescribed tim e of three months from the date of receipt of the award as set out in Section 17 of the Arbitration Act3 . The Plaintiffs submitted that this Court has jurisdiction over the Plaintiffs' application to set aside the orders granted by the Tribunal on 14th June, 2024 and 16th August, 2024. 4.30 The last limb of the Plaintiffs arguments was on the Pla intiffs' locus standi to challenge the joinder order. It was argued that the 1st Defendant's contention that the Plaintiffs cannot challenge the joinder order because the 2 nd Defendant has not opposed the joinder order a llowing them to join the arbitration proceedings was flawed. This is because nothing prohibits a party affected by an award from applying to set it aside if it does not comply with the Arbitration Act3 . Secondly, it was argued that the Plaintiffs are parties to the arbitration proceedings and therefore have sufficient interest to commence this action pursuant to Section 17 of the Arbitration Act3 . It was contended that a reading of Section 1 7(2) (a) (ii) shows that even non-party to the arbitration proceedings has locus standi R24 to launch a Section 17 application. I will deal with the cited Section 17(2) (a) (ii) later. 4.31 Finally, it was submitted that this Court dismiss· the 1st Defendant's application for an Order to Dismiss Action for being an Abuse of Court Process and Want of Jurisdiction and prayed for costs. 5.0 HEARING OF THE APPLICATION 5.1 At the hearing of the application held on 13th January, 2025, Counsel on both sides relied on the documents filed on behalf of each party and orally augmented the parties' positions. 5.2 Counsel for the 1st Defendant submitted that this is one application that is dependent on a holistic interpretation of the Arbitration Act3. He indicated that interpretations of individual sections would lead to a distortion of the scheme of the arbitration. Counsel contended that this is the reason why an award for interim measure of protection may be registered under the Arbitration Act3 purely for enforcement as arbitration is moved by private citizens, yet the same interim award cannot be the subject of set aside application because it is not final. It was submitted that this position addresses arguments that will be made by the Plaintiff in relation to judicial estoppel. Counsel prayed that the application made before this court be allowed and the main matter be dismissed. 5.3 Counsel for the Plaintiffs relied on the documents filed in opposition on 8 th January, 2025 and opposed the application to dismiss for want of jurisdiction and abuse of court process. 5.4 In relation to the argument by Counsel that interim awards can be recognized under Section 19 of the Arbitration Act3 as they have done under cause number 2024/HPC/ ARB/0480 but the same cannot be set aside under Section 17 of the Arbitration Act3 , it was submitted that interpreting statute in that manner does not conform to settled principles of statutory interpretation in Zambia. Counsel further submitted that, the grounds on which to refuse recognition under Section 19 are the same grounds to set aside under Section! 7. R25 5.5 It was submitted on behalf of the Plaintiffs that Section 19(2) of the Arbitration Act3 itself recognises that this Court can set aside an award before it is recognised. Additionally, that an ordinary interpretation of Section 17 should be employed and Section 2 of the Arbitration Act3, which defines award to include interim or interlocutory awards gives this court relevant jurisdiction to entertain the matter. 5.6 Counsel for the Plaintiffs asserted that the 2 nd ground for objecting is on the doctrine of judicial estoppel. It was submitted that the Plaintiffs have cited at paragraph 6.6 of their arguments and key to their argument against assertion of inconsistent practice in different matters is designed to protect interference of judicial process. Counsel further submitted that the 1st Defendant should not be allowed to refuse that interim measure order is an award under cause number 2024/HPC/ARB/0480 while on the other hand contending that it is not an award. It was Counsel's position that the consequence of conflicting positions in this court and in the cause would hurt the doctrine of judicial cstoppel. Counsel disputed the 1st Defendant's argument that this application should have been made in 30 days. It was submitted that Article 16 deals with challenging the jurisdiction of the tribunal in the context where the tribunal 1s asserting jurisdiction and validity of arbitration arrangement. 5.7 It was Counsel's submission that there is nothing on record to show that this is what the Plaintiffs are claiming, the fact that arbitration proceedings are on going. According to Counsel for the Plaintiffs, what the Plaintiffs are challenging are interlocutory or interim awards that can be granted and fall under Section 17 of the Arbitration Act3 and that this court in providing its complementary role has jurisdiction to intervene if allegation are substantiated. 5.8 Counsel for the Plaintiffs submitted that Section 17 allows 3 months period to challenge an order to this court and that they are within time. Further, Counsel opined that the matter is properly before court and urged me to dismissed the 1st Defendant's application with costs. 5.9 Counsel for the pt Defendant replied to the issue of judicial estoppel, by indicating that the extent that it is argued, it will be inconsistent for the application to succeed. Counsel clarified that the registration of order of R26 interim measure of protection docs not affect interim measure that is a final award. It was submitted that the distinction is extremely important because the preliminary issue in the present case is concerned with the final award. 5.10 Furthermore, Counsel responded to the Plaintiffs' argument that the registration of an award in the other cause can be opposed on the same grounds that exist in Section 17. Counsel replied that a successful opposition to registration under Section 18 merely results in refusal of registration and not set aside of the award or interim award. 5.11 The last point raised by Counsel was that while it is agreed that registration has taken place in the other cause, it is only registration of interim measure of protection. Counsel submitted that, in any case the Plaintiffs have a statutory reward under Section 18 to oppose that registration not to seek to set aside as they have done. 6.0 ANALYSIS AND DECISION 6.1 I have read the affidavits filed by the parties and also considered their arguments and submissions. The action by the Plaintiffs herein is to set aside the orders made by the arbitral tribunal. The first order is on interim measures while the second one is on joinder of a party. The action of the Plaintiffs is on the basis that the interlocutory orders contain decisions on matters beyond the scope of the submission to arbitration and are in conflict with public policy. The basis of the 1st Defendant's application to dismiss the Plaintiffs' action is that the action is an abuse of court process and that there is want of jurisdiction for this court to hear and determine the action. Therefore, I will determine the 1st Defendant's application based on these two issues but I will start with the issue of want of jurisdiction. 6 .2 In the case of Godfrey Miyanda v The High Court8 , the Supreme Court defined the term jurisdiction as follows: "The term jurisdiction" should first be understood. In one sense, it is the authority which a court has to decide matters that are litigated before it; in another sense, it is the authority which a court has to take cognisance of matters presented in R27 a formal way for its decision. The limits of authority of each of the courts in Zambia are stated in the appropriate legislation. Such limits may relate to the kind and nature of the actions and matters of which the particular court has cognisance or to the area over which the Jurisdiction extends, or both." 6.3 The Plaintiffs' action is premised on Section 17 (2)(a)(III) and (b)(II) of the Arbitration Act3 wh ich p rovides as follows: "17(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3). (2) An arbitral award may be set aside by the court only if: (a) the party making the application furnishes proof that: - (i) a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the laws of Zambia; (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; (iii) the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains decisions on matters beyond the R28 scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or failing such agreement, was not in accordance with this Act or the law of the country where the arbitration took place; or (v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or (b) if the court finds that: - (i) the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Zambia; or (ii) the award is in con(l.ict with public policy; or (iii) the making of the award was induced or effected by fraud, corruption or misrepresentation. " 6.4 From a procedural point, the provision under which the Plaintiffs' action is anchored gives the High Court jurisdiction to hear and determine R29 actions for setting aside arbitral awards. It was held by a Court of even jurisdiction in the highly respected judgement of Konkola Copper Mines Pie v Copperfields Mining Service Limited9 . In that case, the instances when courts can intervene in arbitral proceedings were outlined as follows: "These include, under the Act; Court assistance in the grant of interim measures of protection pursuant to section 11; Court assistance in the appointment of arbitrators under section 12; Court assistance in the appointment of substitute arbitrator pursuant to section 13; providing aforumfor setting aside an award pursuant to section 17; and providing a forum for registration and challenging the registration of an award pursuant to sections 18 and 19, respectively. Under the UNCITRAL Model law (to the extent of its application to Zambia); providing a forum for a party to challenge the arbitral tribunal's jurisdiction pursuant to Article 16(3); and Court assistance in the taking of evidence pursuant to Article. These are the only permissible parameters for the Court to supervise the arbitral process and take the form of complementing the process, to ensure that it is effective. " Further, in the case of Satyam Shivan Sundaram and Classic Mining and Trading Limited case 10 (supra), the Court of Appeal when considering Section 17. of the Arbitration Act3 relied on the Supreme Court's decision in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency 11 as follows: "... the Supreme Court opined that it can be discerned from section 1 7, that there are two sets of grounds upon which an award maybe set aside. The first ground falls under section 17 (2) (a} from (i} to (v) and the second ground falls under section 17 (2) (b) from (i) to (iii). The Supreme Court went on to state that the threshold that a party must attain under section 17 (2) (a} in order for the court to set aside an award is that he has to furnish proof that circumstances contained in the grounds exist. As regards the R30 threshold for grounds under section 17 (2) (b) is a finding by the court that the award is caught up in one of those grounds falling under (i) to (iii) of the subsection." 6.5 In addition, in the China Henan case2 (supra), which the 1st Defendant referred to, the Supreme Court held that Section 17 of the Arbitration Act3 does not make a distinction between a final award and interim or interlocutory award, because there is specific recourse provided against a decision on jurisdiction handed down as a preliminary question. The Supreme Court further guided that the two reliefs under Section 1 7 of the Arbitration Act and Article 16 of the Model Law are separate and distinct. 6.6 The question, therefore, is that, can the Court exercise its authority under Section 17 of the Arbitration Act3 in a limitless manner? The Supreme Court in the case of Road Development Agency v Safricas Zambia Limited12 guided at paragraph 62 that on an application for setting aside an arbitral award, the duty of the court is to determine whether due process was followed in the making of the award. Further, that it examines and determines the roadmap leading to the award and not the substance of the award. The Supreme Court also emphasised at Paragraph 77 that the Court's power is restricted to reviewing the due process or roadmap leading to the award and not the merits. What can be deduced from Supreme Court's guidance above is that in as much as the Court can consider an application to set aside an arbitral award, it is only limited to reviewing the due process or roadmap leading to the award and not the merits or substance of the award. 6. 7 At this stage I wish to address the issue of whether there was any award made by the tribunal and whether the due process was followed? Section 2 of the Arbitration Act3 defines "award" as follows: "award" means the decision of an arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award and on any procedural or substantive issue." R31 6.8 The Supreme Court in the case of Citibank Zambia Limited v Suhayl Dudhia 13 on paragraph 5.17 at page J.40 guided as regards interpretation of statutes that: " ... the default position when interpreting legislation is for the court to consider the plain language of the statute itself. In other words, the interpretive process normally begins with a narrow focus on the meaning of particular words and phrases. Where the language of the statute is simple and unambiguous, it must be applied according to its terms." 6. 9 It is clear from the literal interpretation of Section 2 of the Arbitration Act3 that an award envisaged under Section 2 relates to a decision of the arbitral tribunal that touches on the substance of the dispute whether final, interim or interlocutory or one based on procedural or substantive issue. The question is whether an order for interim measure and order for joinder in issue qualify to be considered as awards. Do they touch on the substance of the dispute or are they dealing with a procedural or substantive issue? I have read the orders in issue and find that they did not touch on the substance of the issue in dispute and they also did not touch on the procedural or substantive issue submitted for arbitration. My interpretation of the definition of award under Section 2 of the Arbitration Act3 is that it does not include the orders in issue. In short, they are not awards. I have fur ther noted that the tribunal itself did not use the word award for both orders. This means that, from the tribunal's perspective the orders in issue are not awards. The argument by the Plaintiffs that the pt Defendant in an application for registration of the order on interim measure referred to the order as an award and therefore even for purposes of the action herein should be considered as such is not binding on this Court because that interpretation was not made by this Court. Moreover, that position is not corning from a Court superior to this Court. 6.10 I now wish to address the orders in issue assuming that they are awards, while I still maintain that they are not, for sake of putting to rest the arguments advanced by the parties. As regards the interim measure, the jurisdiction of the tribunal to make the order in issue is R32 derived from Section 14(1) and (2) of the Arbitration Act3 which modified Article 1 7 of the Model Law and provides as follows: "14 (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute and the arbitral tribunal may require any party to provide appropriate security in connection with any such measure. (2) Unless otherwise agreed by the parties, an arbitral tribunal shall have power- (a) To grant an interim injunction or other interim order; (b) ... (underlined for emphasis only) 6.11 There is no evidence from the Plaintiffs to show that the tribunal was excluded from making the order in issue. Therefore, it was within the jurisdiction of the tribunal to make the order for interim measure. On the order for joinder, Article 17(5) of the UNITRAL Arbitration Rules, 2021 provides thus: "5. The arbitral tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitration as a party provided such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. The arbitral tribunal may make a single award or several awards in respect of all parties so involved in the arbitration." 6.12 Again, a tribunal is clothed with jurisdiction to join a third person to the arbitral proceedings and the parameters to which those powers are subject to are stated in the same provision. The issues raised by the R33 Plaintiffs are not among those contained in Article 17 under which the order was made. 6.13 The issue of the orders going beyond the dispute submitted for determination and issue of public policy do not arise as the tribunal did not make any pronouncement touching on the dispute. The issue of liability or breach of agreement was not touched on. The scope for the issues to be determined remained untouched. There is no evidence advanced before me of any blemish in the due process or roadmap leading to issuance of the orders in issue. My view is that what the Plaintiffs are asking me would amount to looking at the merits or substance of those orders and arrive at a position different from the one arrived at by the tribunal. There is no evidence that any of the parties was deprived of a chance to be heard or that the tribunal does not have jurisdiction to make the orders in issue. Having taken into account the precedents earlier cited above, I hold the view that the intervention sought by the Plaintiffs is outside the authorised level of intervention by the High Court in arbitral proceedings. Given the nature of the orders in issue and the manner they were issued, my understanding of the law is that I lack jurisdiction to intervene. The issues being raised before me were raised before the tribunal and they were addressed in the orders made by the tribunal. 6.14 On the issue of abuse of court process, the learned author of Zambian Civil Procedure: Commentary and Cases3 gives a clear exposition at page 322 that initiation of a multiplicity of actions on the same subject matter, by the same parties, simply amounts to abuse of the court process. The learned author uses the words of Kaoma JS in the case of Chick Masters Limited4 (supra) to define the phrase 'abuse of court of process' as follows: "Abuse of court process can arise where the claim is vexatious, scurrilous or obviously ill-founded such as where proceedings are stated to pursue a claim which has already been dealt with by way of full and final settlement between the parties." 6.15 Furthermore, in amplifying on the Chick Masters Limited4 case (supra) stated that: R34 "It was also pointed out that the underlying public interest is that there must be.finality in litigation and that a party should not be vexed twice in the same matter. Therefore, when considering whether the second claim is an abuse of court process, it is necessary to decide not only that the second claim could have been brought in the earlier claim, but whether it should have been brought in the first claim. Further, the court has to make a broad merits-based judgment taking into account all the public and private interests involved and all the facts. In this regard, the court must focus on the crucial question whether in all circumstances, the claimant is misusing or abusing the process of the court." 6.16 Based on the above, it is imperative to consider whether the principle of abuse of court process applies to the present case. The Plaintiffs herein commenced this action on 16th September, 2024 to set aside the Arbitral Awards dated 14th June, 2024 and 16th August, 2024 and the action is anchored on Section 17(2)(a)(III) and Section 17(2)(b)(II) of the Arbitration Act3 . The gist of the 1st Defendant's argument concerning the abuse of court process is that, it is not permissible to set aside an award or order other than the main award in the arbitration process as the court should not interfere with the process that it should only be complementing. The 1st Defendant further argue that the issues raised by the Plaintiffs were raised in the Arbitral Tribunal and were determined as preliminary issues. It was also contended that the Plaintiffs' application was filed out of time because the Tribunal's Order for interim measure and Order for joinder should have been challenged within 30 days from the time they were granted. 6.17 The Plaintiffs, on the other hand, contend that their application for setting aside the arbitral tribunal's interim measure dated 14th June, 2024 and joinder order dated 16th August, 2024 is properly before this Court. It is the Plaintiffs' position that the application to set aside the two orders of the Tribunal is brought on the specific ground that (i) the orders contain decisions on matters beyond the scope of the R35 submissions to arbitration; and (ii) the orders are contrary to public policy. 6.18 As earlier stated, Section 14(2)(a) of the Arbitration Act3 clothes an arbitral tribunal with power to grant an interim injunction or other interim order unless excluded from doing so by the parties. The tribunal is also empowered to join a third party to the proceedings at the request of a party. Therefore, in light of my position that the action by the Plaintiffs is in essence a disagreement with the decision of the tribunal arid that those decisions have nothing to do with the scope of the issues submitted for determination before the tribunal or violation of public policy, I adjudge that the action herein should not have been commenced. It is just a protest to the two decisions by the tribunal. No evidence was adduced to show that by virtue of the order of interim measures or order for joinder the scope of issues submitted to the tribunal for determination has changed. On the issue of the order being against public policy on mergers and acquisitions, the joinder order did not decide the issue of liability in order to make the conclusion advanced by the Plaintiffs. The action therefore is an abuse of the court process. The Court of Appeal in the case of Satyam Shivan Sundaram and Classic Mining and Trading Limited v Given Chisakula Kawina 10 ( supra) held that: " ... the courts cannot and should not entertain an attempt on the part of the Applicants to re litigate a matter that has been properly dealt with by the arbitral tribunal." 6.19 Having established that the I have no jurisdiction to entertain the Plaintiffs' action and that the same amounts to abuse of court process, I hereby dismiss the Plaintiffs' action forth~th for the said reasons. """'~ist the Plaintiffs to be taxed in default of agreement. \J La ne Mwanabo HIGH COURT JUDGE -:-. > R36