China Henan International Cooperation v G and G Nationwide (Z) Limited (Appeal 199 of 2016) [2017] ZMSC 18 (10 March 2017)

.11 Selected Judgment No.8 of 2017 P.232 IN THE SUPREME COURT FOR ZAMBIA (cid:9) APPEAL NO.199/2016 AT THE SUPREME COURT REGISTRY (cid:9) SCZ/8/242/2016 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: CHINA HENAN INTERNATIONAL COOPERATION APPELLANT GROUP COMPANY LIMITED AND G AND G NATIONWIDE (2) LIMITED (cid:9) RESPONDENT Coram (cid:9) Wood, Malila and Mutuna, JJS On 7th March 2017 and on 10th March 2017 For the Appellant (cid:9) For the Respondent : (cid:9) Ms S. Kaingu, Messrs Chibesakunda and Company Mrs. D. Findlay of Mme D. Findlay and Company JUDGMENT Mutuna, JS delivered the Judgment of the Court. Cases referred to: Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited (2012) ZR volume 3, 174 United Engineering Group Limited v Markson Mungalu and others (2007) ZR 30 J J2 P.233 Paolo Marandola, Candy Marandola and Ivan Marandola v Gianpietro Milanese and others, SCZ judgment Number 6 of 2014 4) John Kunda (suing as Country Director and on behalf of the Adventist Development and Relief Agency (ADRA) V Karen Motors (Z) Limited (2011) ZR volume I, 451 Konkola Copper Mine Plc v Coppetfields Mining Services Limited (2010) ZR volume 3, 156 New Plast Industries Limited v Commissioner of Lands and another (2001) ZR 1 Mutantika and another v Chipungu, SCZ judgment number 13 of 2014 Zambia National Holdings Limited and UNIP v Attorney General (1993- 1994) ZR 115 Chikuta v Chipata Rural Council (1974) ZR 24 Carm Investments Limited v Circolo Italiano Di Lusaka SCZ/ 8/204/2015 Turnkey Properties v Lusaka West Development Co. Limited (1984) ZR 86 Zambia Revenue Authority v Tiger Limited and Zambia Development Agency, SCZ judgment No.11 of 2016 Attorney General v Mutuna and 2 others, SCZ/ 8/ 185/ 2012 Yougo Limited v Pegasus Energy Zambia Limited (2011) ZR volume 2, 280 Zulu v Avondale Housing Project Limited Attorney General v Abubacar Tall and Zambia Airways Corporation Limited (1995) ZR 54 John Kanyanta Mutale and Access Financial Services Limited Appeal No.24 of 201 1 Harrington v Siliya and another SCZ judgment No.14 of 2011 (cid:9) J3 P.234 19) (cid:9) The Incorporated Owners of the Tak Tai Building v Leung Yau Building Ltd (2005) HKCA 87 Other Works referred to: Supreme Court Practice, 1999, volume 1 Arbitration Act, No. 19 of 2000 Arbitration (Court Proceedings) Rules, SI No.75 of 2001 High Court Act, Cap 27 Model Law Decisions - Cases Applying the UNCITRAL Model Law on International Commercial Arbitration (1985-2001), by Henri C. Alvarez, Neil Kaplan, CBE, QC, and David W. Rivikin, 2003, Kluwer Law International, The Hague, The Netherlands. This appeal is against a ruling of the High Court delivered on 8th August 2016, following a motion raised by the Respondent as a preliminary issue, pursuant to Order 33 rule 7 of the Supreme Court Practice, (White Book) 1999 edition. By the said motion, the Respondent (as Defendant) sought a determination of the competence of the substantive application that had been presented before the High Court by the Appellant (as Plaintiff) to set aside arbitral awards pursuant to section 17 of the Arbitration Act. The Learned High Court Judge upheld the motion, and in doing so, dismissed the Appellant's application to set aside awards and discharged the stay of execution of J4 P.235 the awards and arbitral proceedings granted earlier, pending the hearing of the application to set aside the awards. The backdrop leading up to the ruling is that the Appellant and Respondent entered into a construction contract on 14th October 2015. By clause 8 of the said contract, they agreed that any dispute that would arise would be settled by arbitration following good faith negotiations. Sometime in July 2015 a dispute arose which resulted in the appointment of an arbitrator by the Chartered Institute of Arbitrators (Zambia Branch) following a request by the Respondent. The Appellant raised objection to this appointment by way of letters to the appointing authority, the Respondent and the arbitrator. Notwithstanding this, the arbitrator went ahead to invite the parties to a preliminary meeting at which the Appellant challenged the jurisdiction of the arbitrator. In conformity with the agreement of the parties, the arbitrator rendered his decision on the jurisdictional challenge as an award on a preliminary question and not in the award on the merits. J5 P.236 He dismissed the Appellant's objection with costs by way of a ruling (termed award on jurisdiction) dated 25th April 2016. Later, the arbitrator tabled the Respondent's application for taxation of the costs awarded in the award on jurisdiction. After he heard the parties he delivered what he termed an "award on costs following award on jurisdiction" on 2nd June 2016, in which he set out the amount of costs to be paid to the Respondent by the Appellant and when the same were due. The said award omitted to make provision for interest on the costs and as such the arbitrator rendered another award on 27th June 2016 which he this time termed "corrective award to the award on costs following award on jurisdiction". In this award he awarded the Respondent interest on the taxed costs. The events we have explained in the preceding paragraphs did not please the Appellant which was prompted to apply to the High Court on 15th July 2016: to set aside the three awards pursuant to section 17 of the Arbitration Act; for a reconstitution of the arbitral J6 P.237 tribunal in accordance with the arbitration agreement; and an order to stay arbitral proceedings and enforcement of the three awards. Along with this application, the Appellant filed an ex-parte summons to stay arbitral proceedings and enforcement of the awards pending the hearing of the application to set aside the awards. The Learned High Court Judge promptly signed the ex-parte order for a stay of the arbitral proceedings and awards on 18th July 2016 and directed that the inter partes hearing would be held on 22nd July 2016. The evidence in support of the Appellant's application, aforestated, is contained in affidavits and it explains the background to the relationship between the parties and the dispute. The Appellant also contends that the arbitrator had no jurisdiction to adjudicate upon the matter because he was not appointed in accordance with the agreement of the parties; that in view of this, his awards were amenable to setting aside. The Respondent opposed the application with evidence contained in an affidavit in opposition. It denied the Appellant's contention of want of jurisdiction by the J7 P.238 arbitrator and that it was not necessary to grant the stay of execution and proceedings because the awards were not yet registered, and as such, could not be enforced; that in any event, even after the awards are registered, there is a ninety days grace period in which they cannot be enforced. Prior to the hearing of the application to set aside the awards, the Respondent filed a notice to raise preliminary issue, whose ruling is the subject of this appeal, seeking the determination of questions crafted as follows: Whether the Appellant's originating summons to set aside arbitral award on jurisdiction dated 25th April 2016, was properly before the court, when the appropriate prescribed procedure for challenging the arbitrator's jurisdiction had not been complied with and the requisite time frame of thirty days within which the aforesaid question maybe referred to the court following receipt of the aforestated arbitral award on jurisdiction had since expired; (sic) Whether the Appellant's originating summons to set aside arbitral awards on costs following the award on jurisdiction can therefore be entertained by the court. J9 P.240 (Pty) Limited v Shakers and Movers Zambia Limitedl, United Engineering Group Limited v Markson Mungalu2 and Paolo Marandola, Candy Marandola, Ivan Marandola v Gianpietro Milanese and others3. In conclusion the Respondent contended that the Appellant cannot use the remedy of setting aside as a means of reviewing the arbitral tribunal's findings on the merits or deliberate on the substantive issues again. Reliance was placed on the cases of John Kunda (suing as Country Director and on behalf of the Adventist Development and Relief Agency (ADRA) v Karen Motors (Z) Limited4 and Konkola Coppermines Plc v Copperfields Mining Services Limiteds where it was respectively held that an application to set aside cannot be used as a means for reviewing the arbitrator's award and that such hearing is not akin to a hearing on review. The contentions and arguments by the Appellant in opposing the motion as contained in the affidavit in opposition and skeleton arguments disputed the Respondent's contentions and questioned the manner in which the motion was laid before the court. In relation to the latter, it was the Appellant's position, that in terms of P.241 Order 30 rules 1 and 5 and Order 10(8) of the High Court Rules, an application in chambers such as the motion before the High Court, is commenced by way of summons supported by an affidavit and not a notice. The Appellant found solace in our decision in the case of New Plast Industries Limited v Commissioner of Lands and another6 in which we held that where a statute provides for procedure for commencing an action, a party has no option but to abide by that procedure. Further, that the use of the word "shall" in Order 30 rule 1 of the High Court Rules makes it mandatory for a party to comply with the rule as we pronounced ourselves on the issue in the case of Mutantika and another v Chipungu7. The arguments went on to contend that there are limitations imposed upon the High Court to adjudicate upon matters that have been wrongly presented because the High Court does not have jurisdiction in such instances in accordance with our decisions in the cases of Zambia National Holdings Limited and UNIP v Attorney Generals and Chikuta v Chipata Rural Counci19. The Appellant also questioned the suitability of determining the matter as a preliminary issue and drew P.242 our attention to our decision in the case of Carm Investments Limited v Circolo Italian° Di Lusakal° where we expressed the court's misgivings at parties frequently raising preliminary objections. The arguments also contended that there was a danger of the court straying into the substantive application in determining the preliminary issue which is against the spirit of our decision in the case of Turnkey Properties Limited v Lusaka West Development Co. Limited". In conclusion, the Appellant contended that the substantive application was properly presented before the court because it was an application to set aside an award pursuant to section 17 of the Arbitration Act which is the only recourse against an award as we held in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency12. Further, that section 17 is a stand alone section which cannot be subject to the provisions of Articles 13 or 16 of the Model Law which Articles are, in any event, subordinate to the section by virtue of being part of the Schedule to the Act. Reliance was placed on the majority decision by this court in the case of Attorney General v Mutuna and Two others13 in which we J12 P.243 discounted the contention that there is an interplay between Articles 91 and 98 of the then Constitution on the one hand and the Judicial (Code of Conduct) Act, on the other hand. The Learned High Court Judge considered the application and identified the issue for determination as being whether the award on the jurisdiction of the arbitrator is an award on the merits. In answer to the issue he found that the award was dealt with by the arbitrator as a preliminary question which he was entitled to do by virtue of Articles 13 and 16(3) of the Model Law and as such, it was not an award on the merits. The Learned High Court Judge went on to find as a fact that all the three awards rendered by the arbitrator were not registered with a competent court. After making the foregoing findings, the Learned High Court Judge took the view that the Appellant should not have sought recourse under section 17 of the Arbitration Act but rather made an application under Rule 11 of the Arbitration (Court Proceedings) Rules, and Articles 13(3) and 16(3) of the Model Law. He observed further that the P.244 time for resorting to the remedy under this rule and Articles had, in any event, elapsed. The Learned High Court Judge also rejected the argument by the Appellant that in arbitral proceedings the court has inherent, original and unlimited jurisdiction under Article 134(a) of the Constitution (as amended) and Order 3 rule 2 of the High Court Rules to grant any order. He, in this regard, pointed out that the court's complimentary role in the arbitral process is limited to the instances contained in the Arbitration Act and the Rules made pursuant to the Act. This, he stated, is in accordance with the decisions by Kajimanga J and Mutuna J (as they then were) in the cases of Yougo Limited v Pegasus Energy (Z) Limited14 and Cash Crusaders Franchising (PTY) Limited v Shakers and Movers (Z) Limitedl, respectively. As a result of the foregoing findings, the Learned High Court Judge held that he had no jurisdiction to determine the Appellant's substantive application and dismissed it. In so doing, he upheld the preliminary issue raised by the Respondent and awarded it costs. He also set aside the order staying execution of the award and the arbitral proceedings. J14 P.245 The Appellant is unhappy with the events we have recounted in the preceding paragraphs, and has launched this appeal anchored on three grounds as follows: The Learned High Court Judge erred in law and fact when he failed to make a ruling on the fact that the Respondent wrongly commenced its interlocutory application for a preliminary issue by notice instead of summons The Learned High Court Judge erred in law and fact when he entertained and upheld the Respondent's interlocutory application for a preliminary issue which was commenced by notice contrary to the mandatory requirements that interlocutory applications are to be commenced by summons The Learned High Court Judge erred in law and fact 0 (cid:9) when he upheld the Respondent's preliminary issue and failed to make a ruling that section 17 of the Arbitration Act No.19 of 2000 is a stand alone provision. The parties filed heads of argument which they relied upon at the hearing of the appeal and augmented by viva voce arguments. Prior to the hearing of the appeal, the P.246 Respondent raised, a preliminary objection by way of a notice filed on 10th February 2017. By the said notice, the Respondent sought our determination of questions as follows: 1) Whether the appellant's appeal is properly before this Honourable Court, in light of sections 11 and 12 of the Supreme Court (amendment) Act Number 24 of 2016, which repeals and replaces section 23 of the Supreme Court Act, Chapter 25 of the Laws of Zambia and by virtue thereof do not provide for an appeal to the Supreme Court from a judgment of the High Court; and 2) Whether the Appellant's Appeal is properly before this court, in light of Article 13(3) and Article 16(3) of the UNC17'RAL Model Law, First Schedule to the Arbitration Act Number 19 of 2000, which specify that a decision of the court in relation to a challenge of the arbitrator per Article 13(3); and a decision of the court on a preliminary question as to jurisdiction of the arbitrator as per Article 16(3) shall be subject to no appeal; The Respondent relied on the combined heads of argument in support of the motion and the appeal and J16 P.247 sought an order dismissing the appeal. It, however, withdrew the first preliminary question prior to the hearing. The Respondent sought leave to file arguments opposing the notice to raise preliminary issue which we granted. The thrust of the arguments by Learned Counsel for the Respondent, Mrs. D. Findlay, in support of the motion was that the appeal is misconceived because no appeal can lie against the decision of the High Court arising out of an application under Articles 13 and 16 of the Model Law. She relied on decision of the Hong Kong Court of Appeal of The Incorporated Owners of Tak Tai Building v Leung Yau Building Limited 19 which she contended is on all fours with this appeal because it arose from facts similar to those surrounding this appeal. Mrs. D. Findlay took the position that we are bound to follow the decision in the said case as it is made by a court in a Model Law country• in conformity with our obligation under section 2(3) of the Arbitration Act to have regard to the desirability of achieving international uniformity in the interpretation of the Model Law. J17 P.248 Following a query from the court, Mrs. D. Findlay conceded that the application that the Learned High Court Judge considered was not an Article 13 or 16 application but rather a section 17 application to set aside an award. In response, Learned counsel for the Respondent, Ms S. Kaingu argued that the preliminary question was misconceived because it raised the same issues to be considered under ground 3. She accordingly, relied on the Appellant's arguments under ground 3. After we heard the motion, we dismissed it and stated that we would give our reasons in this judgment and we thus do so now. The record of appeal reveals that the pleadings that were filed by the Appellant in the court below, pursuant to which the Respondent raised a preliminary objection, were for the setting aside of the arbitral awards pursuant to section 17 of the Arbitration Act. The application was not contesting the decision of the arbitrator clothing himself with jurisdiction in terms of Article 16 of the Model Law. As such, the court below did not consider such an J18 P.249 application or indeed one under Article 13 to render its decision the subject of no appeal in terms of those two Articles. Further, we have had opportunity to consider the case of The Incorporated Owners of Tak Tai Building and do agree with Mrs. D. Findlay that the background to that appeal is similar to the background in this appeal. This is the position we have taken because the facts of that case show that what the court of first instance considered was an application to set aside an award pursuant to section 23 of the Hong Kong Arbitration Ordinance and not an application under Article 16. The court of first instance found that the application was misconceived because the applicant had not proceeded by way of Article 16. On appeal to the Hong Kong Court of Appeal, the court did not dismiss the appeal on the ground that it was misconceived because the decision of the court of first instance was final but rather that its decision was correct. It went on to observe that even if the process filed in the court of first instance were to be considered as having been made under Article 16(3), the Judge's decision would have been final. It is, therefore, only in this latter instance that J19 P.250 the court of appeal held the Judge's decision would have been final and not as Mrs. D. Findlay contended. For these reasons we found the preliminary objection lacking in merit We now turn to determine the appeal and in doing so we have considered the heads of arguments filed by the parties along with the record of appeal, and ruling appealed against and will refer to the relevant portions of the arguments as we consider the three grounds of appeal in the order they have been presented. By way of recapping and considering ground 1, it alleges that the Learned High Court Judge erred when he failed to make a ruling on the Appellant's argument and prayer that the Respondent wrongly commenced the motion for the preliminary issue. The thrust of Ms S. Kaingu's argument is that trial courts have a duty to adjudicate upon every aspect of the dispute between the parties. Despite this, the Learned High Court Judge omitted to make a determination on a cardinal point raised by the Appellant as to appropriateness of the J20 P.251 originating process pursuant to which the Respondents preliminary issue was tabled before him. Our attention was drawn to three cases where we affirmed the need for trial courts to adjudicate upon all matters presented by the parties. These cases are Zulu v Avondale Housing Project Limited 15, Attorney General v Abubacar Tall and Zambia Airways16 and John Kanyanta Mutate v Access Financial Services Limited 17. It was Ms S. Kaingu's submission that the Learned High Court Judge, having reneged on his duty to adjudicate on the issue, the ground should be allowed. In response, Mrs. D. Findlay took the position that the Appellant's objection to the manner in which the motion was raised was not properly presented and as such, the court below was on firm ground when it ignored it. She also contended that the motion it laid before the court below was not an application as envisaged by Order 30 rule 1 of the High Court Act; and that in any event, trial and appellate courts are at liberty to ignore certain issues raised before them if they have no bearing on the dispute P.252 presented. Reference was made to our decision in the case of Harrington v Siliya and another18. We accept that the Learned High Court Judge did not address the objection raised by the Appellant in his ruling and as such it was a misdirection on his part. Be that as it may, we are of the considered view that the misdirection, as we have explained in our consideration of ground 2, is such that it does not affect the outcome of the appeal. For this reason ground I must fail. Ground 2 alleges that the Learned High Court Judge erred at law and in fact when he entertained the preliminary issue notwithstanding the irregularity in its commencement. Counsel for the Appellant, in advancing this ground, restated the arguments in the court below that applications such as the application that is the subject of this appeal should be commenced by summons and not motion; and the requirement thus stated is a mandatory requirement. As such, any default renders the court incompetent to deal J22 P.253 with the matter. A plethora of authorities to that effect were cited. The response by counsel for the Respondent repeated the argument advanced under ground 1. The preliminary issue that was before the court below was made by way of a notice to raise preliminary issue pursuant to Order 33 rule 7 of the White Book. The said Order is preceded by Order 33 rule 3 which permits a court to determine a preliminary issue before, at or after the trial. The Order state as follows: "The court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial, of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated". On the other hand Order 33 rule 7 upon which the preliminary issue in the court below was anchored states as follows: J23 P.254 "If it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just". Whilst the former Order gives the court jurisdiction to entertain a preliminary issue, the latter sets out what steps the court can take where there is merit in the preliminary issue raised and its determination substantially disposes of the matter. In terms of how such preliminary issues should be laid before the court, which is what is in dispute under ground 2, the explanatory notes to Order 33 rule 3 sub-rule 1 and Order 14A of the White Book are instructive. The former Order states that Order 33 rule 3 should be read with, among other orders, Order 14A. While Order 14A (2) states that applications tabled before the court for determination of any question of law at preliminary stage may be made by summons or motion or orally in the course of any J24 P.255 interlocutory application to the court. Therefore, the Respondent had a choice of commencing the application for a preliminary issue either by summons or motion. The finding we have made in the preceding paragraph brings us to the next question, which is on how motions are to be commenced. The answer to the said question lies in the practice and procedure both in this and other courts that motions are brought before the court by way of a notice. There is no rule of law or practice, so far as we are aware, that requires commencement of motions by way of summons only. Consequently, we are of the considered view that the Respondent was on firm ground when it tabled the motion by way of a notice. Further, even though the Learned High Court Judge did not pronounce himself on the issue we feel that this omission was not fatal nor did it prejudice the Appellant in view of our finding that the application was properly presented before the court. As a result of this, ground 2 also fails. We now come to ground 3 which challenges the Learned High Court Judge's finding that recourse to section 17 of the Arbitration Act was not the correct J25 P.256 remedy for the Appellant to pursue. Ms S. Kaingu's arguments on this ground were that: the Learned High Court Judge misdirected himself when he found that there is an interplay between section 17 of the Arbitration Act and Articles 13 and 16 of the Model Law; that is to say, he erred when he found that section 17 is subject to Articles 13 and 16 of the Model Law; that these two Articles are a part of the First Schedule to the Act, as a consequence of which, they are subordinate to section 17; and lastly, section 17 does not distinguish between a preliminary and final award, thus, all awards are amenable to setting aside under the said section. In response Mrs. D. Findlay argued that the award rendered by the arbitrator was an award on a preliminary issue and not an award on the merits. As such, it was not amenable to challenge under section 17 of the Arbitration Act but rather in accordance with Article 16 of the Model Law. She also contended, without elaborating, that in line with our observations in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency12, the Arbitration Act is in effect the Model Law. J26 P.257 The last argument by Mrs. D. Findlay suggested that the arbitrator's ruling was a decision on a preliminary issue which should be distinguished from an award on the merits. As such, it is amenable to an application under Article 16 which should be made within thirty days and not section 17 of the Arbitration Act. Reliance was made once again on the case of The Incorporated Owners of Tak Tai Building v Leung Yau Building Limited". Before we determine this ground we feel that it is necessary for us to explain once again the relationship between the Arbitration Act and the Model Law which is the First Schedule to the Act. We are compelled to do so because of the position taken by counsel for the Appellant that Articles 13 and 16 of the Model Law are subordinate to section 17 of the Arbitration Act because the Model Law is a Schedule to the Arbitration Act. The Model Law was adopted by the United Nation's Commission on International Trade Law (UNCITRAL) in June 1985 and was introduced onto the international plane for purposes of harmonizing arbitration laws and thus providing a law consistent with the United Nations J27 P.258 Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention'). The need for harmonizing international arbitration laws stems from the fact that on the international plane arbitration is the preferred choice of dispute resolution in international trade and other relationships, resulting in a need to have a uniform set of rules relating to international arbitration to avoid the uncertainty and inconsistency that arises from conflicting legal regimes, particularly at the point of enforcing an award. After the Model Law was introduced, nations were given an opportunity to adopt it into their or domestic legislation either in its entirety (cid:9) with modifications. When the old Arbitration Act, Chapter 40 of our laws was repealed and replaced by the Arbitration Act, Zambia chose to adopt the Model Law with modifications which are contained in the sections in the Arbitration Act. By this we mean that, the sections in the Arbitration Act vary the application of the Model Law by substituting certain Articles in the Model Law with the sections in the Arbitration Act. The First Schedule to the Arbitration Act confirms this because the articles of the J28 P.259 Model Law that are not applicable to Zambia are clearly indicated as "modified by" specified sections of the Act. The effect of the foregoing, as we stated in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency12, is that our Arbitration Law is in effect the Model Law. This situation is not unique to Zambia alone as evidenced by the Zimbabwean Arbitration Act which also has the Model Law appended as Schedule 1 to the Act. In explaining the relationship between the Zimbabwean Act and the Model Law three renowned legal experts and practitioners in Zimbabwe, namely, I. A. Donovan, AR. McMillan SC and M. A. Masunda, writing in the text Sourcebook of Arbitration Materials, had this to say on the issue: "The Act itself contains only enabling and incidental provisions while the substance of the new Arbitration Law of Zimbabwe is to be found in Schedule 1". Indeed, this is the position we have also taken in Zambia and from a practical point of view, in applying the Arbitration Act one must at all times look at the First Schedule, first, and only where a particular Article is not J29 P.260 applicable, does one resort to the section in the Act that has modified the Article. To this extent, the argument by counsel for the Appellant that Articles 13 and 16 of the Model Law are subordinate to section 17 of the Arbitration Act is untenable. Further, we do not accept the argument that the Learned High Court Judge found that there is an interplay between section 17 and Articles 13 and 16 because he made no such finding. Our reasons for saying this will be made clear in the paragraphs that follow in this judgment. Coming back to the issue on hand, the genesis of the Appellant's grievance under ground 3 is the award on jurisdiction rendered on 25th April 2016. By the said award, the arbitrator found that he had jurisdiction to preside over the dispute between the parties which decision displeased the Appellant prompting it to commence the application to set aside that award and the other two that followed, in accordance with section 17 of the Arbitration Act. The Respondent's position on this is that the Appellant's remedy lay in Articles 13 and 16 and not section 17 of the Arbitration Act, and that in any event it J30 P.261 could not have recourse to the Articles because the time for such recourse had elapsed. We have had occasion to revisit the said provisions of the law. As regards Article 13 of the Model Law it provides for procedure for challenging an arbitrator's appointment, as opposed to his jurisdiction, on the grounds of justifiable doubt as to his independence, impartiality or want of qualification agreed upon by the parties. The Article is, therefore, not relevant in the determination of this ground which challenges a decision on jurisdiction. On the other hand, Article 16 makes provision for the procedure for challenging an arbitrator in terms of jurisdiction and also clothes the arbitrator with competence to rule on his own jurisdiction. The relevant portions of Article 16, for purposes of determination of ground 3, are sub articles (2) and (3) which state as follows: "(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed or participated in the appointment of, J31 P.262 an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified". (3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request within thirty days after having received notice of the ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award". 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 _ (cid:9) 1 _ • P.263 award. It also sets out the recourse open to a party, in the former case, where the arbitrator rules that he has jurisdiction. 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(3) of the 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 for in the Model Law for awards such as the one rendered by the arbitrator on jurisdiction. When we say this, we are alive to the fact that the application to set aside was in relation to the two subsequent awards as well on interest and costs. These awards were complimentary to the award on jurisdiction and are to be treated as one with it as they were additional to and corrective of the award on jurisdiction. The position we have taken with respect to the recourse available to the Appellant has the support of the J33 P.264 learned authors Henri C. Alvarez, Neil Kaplan, CBE, QC and David W. Rivkrin, writing in Model Law Decisions - Cases Applying The UNCITRAL Model Law on International Commercial Arbitration (1985-2001) at page 167 as follows: "[Article 16] sets out when and under what circumstances a party may raise a plea that the arbitral tribunal does not have jurisdiction, and allows for Article 6 authority [which in Zambia is the Court] review of the decision of an arbitral tribunal rendered in a preliminary question that it does have jurisdiction". We also agree with the argument advanced by the Respondent in this regard and the reference made to the Hong Kong case of the Incorporated Owners of Tak Tai Building which decided that where an arbitrator rules on his jurisdiction as a preliminary issue that he has jurisdiction, the recourse the losing party has is to apply to court within 30 days pursuant to Article 16 of the Model Law. We are persuaded by this decision although it is by a lower court of a foreign jurisdiction because in rendering J34 P.265 the decision the court was interpreting the Model Law in a manner which is in keeping with our interpretation. Further, we are also alive to the provisions of section 2(3) of the Arbitration Act which compel us to take cognizance of the Model Law's "international origins and to the desirability of achieving international uniformity in its interpretation and application". 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. In view of our findings in the preceding paragraph that the Learned High Court Judge did not misdirect himself when he held that the application made for setting aside J35 P.266 under section 17 of the Arbitration Act was misconceived, ground 3 is doomed to fail. The foregoing marks the end of the determination of the grounds presented in support of the appeal. However, before we conclude we feel compelled to comment on what we consider a grave error made by the Learned High Court Judge in the course of adjudicating upon the matter. After the application for setting aside the awards was filed, the Appellant applied and was granted a stay, not only of execution of the awards but also the arbitral proceedings. We consider this a serious misdirection on the part of the Learned High Court Judge because the court has no jurisdiction to stay execution of an award or any arbitral proceedings. The reason for this is that arbitration is in no way a part of the court system and it is an alternative to court proceedings. A court cannot, therefore, stay an award of an arbitrator or indeed arbitral proceedings because it has no jurisdiction to do so. In the case of staying an award, the problem is compounded by the fact that the court would not have rendered it hence it cannot stay that which it did not render. This position was articulated in the , t r u o C h g i H 1 d e t i m L i n o i t i s o p e h t t u p , s u n o g n i d n i b t o n h g u o h t , n o i s i c e d h c i h w s t i n i d r a w a y a t s o t n o i t c i d s i r u j f o t n a w s ' t r u o c 0 (cid:9) ral co (cid:9) cd (cid:9) .2 (cid:9) Lt-) In (cid:9) co (cid:9) a.) (cid:9) to (cid:9) OA (cid:9) 0 (cid:9) 4 (cid:9) a.) (cid:9) ,4 E—, (cid:9) +:. (cid:9) X (cid:9) Q.) (cid:9) la' (cid:9) ) . c e h t I-. (cid:9) a.) (cid:9) ca. o 0 10, La (cid:9) r e p p o C v c l P s e n i M r e p p o C a l o k n o K f o e s a c • o 00) (1) (cid:9) '.0 (cid:9) -4e) (cid:9) 0 (cid:9) Z (cid:9) o (cid:9) 0 (cid:9) 45) - Om (cid:9) L O (cid:9) el) (cid:9) C (cid:9) O o (cid:9) 0 (cid:9) co (cid:9) ZS (cid:9) .... Ti t0 Ci ;5 0.1 0 u C -fa b0z CO o ti (cid:9) --4 O) co ci o r.. o 4.-? 4.4 • ,. (cid:9) 0 ) 0) (cid:9) 13, 0) -z -, ,..._'4--, 141 te (cid:9) ' •--, 0) (cid:9) i.. 'AS 401 0) 4L4'm (cid:9) )... ), 0 w pc co . r e d n e r t o n d i d i t h c i h w pr4 Z ".'.. o t .., 0 Z ea d .45 leS' .0 .... E-1 c OD O T1 .. > o s... ai ,..., o ›-, co tto ai Z CO v u (cid:9) co 0 a (cid:9) o 1-i co (cid:9) Q. (cid:9) o To -1-.) (cid:9) z 1-. (cid:9) ka (cid:9) s... (cid:9) -1-) (cid:9) .. (cid:9) o (cid:9) ..0 1 4-, 1.., (cid:9) as 7) H (cid:9) 'ts (cid:9) ..-i (cid:9) .., 0 o co cci (cid:9) cti (cid:9) rn CO V bp (cid:9) 04 (cid:9) -1--, 0 0 •U S.4 0 -1-) 0 et:1--I .,--1 al 0 (cid:9) < > U (cid:9) 0 (cid:9) 0 0 ;-( (cid:9) .2 -.9) cag (cid:9) 4-2 to' $.., ,0 i... czS rC 1.) --P, 7. S ra >1 (cid:9) 0 7:1 co (cid:9) a.) -- (cid:9) .0 (cid:9) › 'LI ., 0.0 (cid:9) co (cid:9) 0 I) v O. (cid:9) 1 ? .2 7:1 (cid:9) 4-, (cid:9) .,-, i.., (cid:9) --9, (cid:9) j) E .,.. )-, . " d r a w a n a of n o i t u c e x e y a t s o t s s e c o r p l a r t i b r a (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) J37 P.268 forum for registering an award for execution purposes and the appointment of arbitrators where the appointment process breaks down. Those instances are not exhaustive and are only used as examples. In relation to the stay of the arbitral proceedings, Article 16(3) of the Model Law is very clear on the issue, that "while [an application under Article 16(3)] is pending, the arbitral tribunal may continue the arbitral proceedings and make an award". The Learned High Court Judge's actions were, therefore, a grave departure from the provisions of Article 16(3). We have been compelled to make the comments in the preceding paragraph in order to dispel any misconceptions that the court below may have in relation to its complimentary and supervisory role and not unlimited jurisdiction, in matters arising out of arbitration proceedings. Returning to the matter at hand, the three grounds of appeal having failed, we uphold the decision of the Learned High Court J38 P.269 Judge and dismiss the appeal In doing so, we award the Respondent costs, to be agreed, in default taxed. A. M. WOOD SUPREME COURT JUDGE 1SLMALILA, Sc SUPREME COURT JUDGE UTUiSTA SUP EME 6OURT JUDGE