Diego Casili v Jeah Madaika and Ors (2025/HPC/0448) [2025] ZMHC 93 (17 November 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DIEGO CASILLI AND JEAHMADAIKA J & M ADVOCATES 2025/HPC/044 8 PLAINTIFF 1 ST DE FENDANT 2ND DEFENDANT NDED 3RD DEFENDANT EDWIN SY ANANZU INTENDED 4™ DEFENDANT Before the Honourable Lady Justice Chilombo Bridget Maka .. For the Plaintiff: Mr. R. Peterson & Ms. Mwamba- Messrs. Howard Marietta & Peterson Legal Practitioners. For the l•t Defendant: Major M. I. Lifunana (Rtd) - Messrs. Bancroft Legal Practitioners. For the 2 nd Defendant: Mrs. S. Kalima-Banda - Messrs. J & M Advocates. For the Intended 3 rd and 4 th Defendants: Mr. C. Chungu - Messrs. Nsapato & Company Advocates. RULING Legislation Referred to: 1. The Arbitration Act No. 19 of 2000. 2. The Arbitration (Court Proceedings) Rules, S. I No. 75 of 2001. 3. The High Court Rules, Chapter 27 of the Laws of Zambia. Scanned with Ci} CamScanner· 4. The High Court (Amendment) Rules, S. J No. 58 of 2020. 5 . The Rule s of the Supreme Court of Eng)and, 1999 Edition (White Book). 6. The Registration of Business Names Act No. 16 of 2011. . ases Referred to: 1. Sakala and Another v. Fert Seed and Grain Pty Limited & Another Ap,peaJ No. 85 of 2015. 2. Philip MutanUka and Mulyata v. Kenneth Chipungu-SCZ Judgment No. 13 of 2014. 3. African Alliance African Pioneer Master Fund v. Vehicle Finance Limited (2017 /HP /ARB/007). 4. Greenbelt Fertilizrs Limited v. Hygrotech Zambia Limited (2013/HPC/0767. 5. Chief Mwanatete v. Innocent Munyikwa Lushato and Mweene Mutando (2014/HPC/ 1043). 6. The Law Association of Zambia v. The president of the Republic of Zambia and The Attorney-General-Pe,tition No. 13/CCZ/2019. 7. The Bank of Zambia. and The Attorney-General v. Al Shams Building Material and Others-Appeal No. 80/2023 and Appeal No. 005 / 2024. 8. Kalusha Bwalya v. Chardore Properties and Ian Chamun.orwa Nyalungwe Haruperi(2009 /HP /0294). 9. Alick Tembo and 21 Others v. Kwacha Pension Trust Fund and Bank of Zambia -Appeal No. 108 of 2024. 10. ZCCM Investments Holding PLC v. Vedanta Resources Holdings and Konkola Copper Mines PLC- SCZ 8 / 13 of 2021. 11. Ody's Oil Company Limited v. The Attorney-General and Another (2012) Z. R, 164. 12. Audrey Nyambe v. Total Zambia Limited-SCZ Judgment No. 1 of 2015. 13. Leopard Ridge Safaris Limited v. Zambia Wildlife Authority (2008) Vol 2 Z. R, 97. R2 Scanned with {i} CamScanner· 14. Andrew Changala v. Maheba Asset Holding Limited-CAZ Appeal No, 297/2021. 15. JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito v. Development Bank of Zambia-SCZ Appeal No. 07 of 2012. 16. Metalco Industries Company Limited and Others v. First National Bank Zambia Limited and Another-Appeal No. 222/2021. 17. Konkola Copper Mines PLC v. NFC Mining PLC-Appeal No,. 118 of 2006. 18. NFC Afriean Mining PLC v. Lofoyi Enterprises Limited-SCZ Appeal No. 27 of 2006. 19. John Sangwa v. The Legal Practitioners Committee of the Law Association of Zambia-Appeal No. 121 of 2013. 20. Group Five Zambia Limited v. Nuco Industrial Services Limited-CAZ Appeal No. 217 /2021. 21. Heyman & another v Darmins Limited(l942) 1 ALL ER 337. 22. Pouwels Construction Zambia Limited & Ano,ther v. Inyatsi Construction Limited (2016) 2 ZR 1. 1. Introduction 1.1. This Ruling addresses three applications heard on 29th August, 2025, which were respectively filed by the Plaintiff, 1st and the 2 nd Defendants. It also provides a brief position on the application by the Intended 3 rd and 4th Defendants seeking to be joined to these proceedings, which was heard on 16th July, 2025. 1.2. The applications by the 1st and 2 nd Defendants seek an Order to stay the proceedings and refer the matter to arbitration, while the Plaintiffs application seeks an Order to strike out portions of the 1st Defendant's affidavit in R3 Scanned with Ci} CamScanner- reply to the Plaintiffs affidavit in oppos ition to the application for stay and reference to arbitration. 1.3. The applications by the 1st and 2 nd Defendants were filed by way of summons supported by affidavits and skeleton arguments, pursuant to section 10( 1) of the Arbitration Act and Rule 4 of the Arbitration (Court Proceedings) Rules. The Plaintiff opposed both applications individually, and the Defendants subsequently filed their respective replies. 1.4. The Plaintiff's application to strike out the impugned portions of the 1st Defendant's affidavit in reply was made pursuant to Order 5 Rule 15 of the High Court Rules. The 1st Defendant opposed the application on 1st August, 2025, through an affidavit 1n opposition and skeleton arguments, to which the Plaintiff replied on 7 th August, 2025. 2. Background 2.1. By an amended Writ of Summons accompanied by an Amended Statement of Claim dated 6 th June, 2025, the Plaintiff commenced this action seeking the following reliefs: i. A declaration that this Honourable Court is the right forum for the resolution of the matter herein; ii. An Order that the l•t Defendant pay the Plaintiff the sum or USD165,000.00 received and unjustly retained by the l•t Defendant from the Plaintiff; R4 Scanned with I} CamScanner· iii. A declaration that the Plaintiff is. entitled to a refund of the USD375,000 paid by the Plaintiff to the 2 nd Defendant; iv. An Order that the 2 nd Defendant pay the Plaintiff the sum o{ USD375,000.00 which sum was paid to it by the Plaintiff in pursuance of the Escrow Agreement and the Dissolution Agreement; v. General damages, for breach of the Dissolution Agreeme.nt by the 2nd Defendant; vi. Intei:est on all sums adjudged to, be due· to the Plaintiff (inclu_d.ing on any damages awarded), at the appropriate rate and for such period as the Cou.rt shall deem just, pursuant to the High Court Act and applicable law, from the date of judgment fo,Ji s.uch earlier date as the Court may order) until fuU payment; vii. Full costs of and incidental to this action;. and viii. Further or other relief: such further or other Jielief as this Honourable Court may deem just and equitable in the premises. 2.2. On 23 rd June, 2025, the Intended 3 rd and 4 th Defendants jointly filed an application for an Order to be joined to these proceedings on the following grounds: i. The dispute relates to a pre-contract agreement between the Plaintiff and the Intended 3 rd and 4th Defendants and thus have an interest in the matter; ii. The Intended Jrd and 4th Defendants will be affected by the decision of the Court iii. The presence of the Intended 3 rd and 4 th Defendants is necessary to ensure that the Court resolves the matter RS Scanned with ri} CamScanner- comprehensively and will hear submissions from all parties with a stake in the matter. 2.3. The application was supported by an affidavit and skeleton arguments. The 2 nd Defendant also filed an affidavit in support of the application on 9 th July, 2025. 2.4. The Plaintiff opposed the application through an affidavit in opposition and skeleton arguments. The application was heard on 16th July, 2025, during which the 1st and 2 nd Defendants expressed support for the application. 2.5. The 1st and 2nd Defendants also filed their respective applications seeking an Order to stay proceedings and refer the matter to arbitration on 23rd June, 2025, which form the main subject of this Ruling. Before these applications could be heard, the Plaintiff filed an application challenging certain portions of the 1st Defendant's affidavit in reply to the Plaintiff's affidavit in opposition. Accordingly, this Ruling will first address the Plaintiffs application before considering the Defendants' applications for stay and reference to arbitration. 2.6. I must state at this stage that I have not summarised the documents relating to the joinder application, as its determination is dependent on the outcome of the 1st and 2 nd Defendants' applications for a stay of proceedings and referral to arbitration. This Ruling will, however, provide guidance on the disposition of the joinder application. R6 Scanned with ri} CamScanner- THE PLAINTIFF'S APPLICATION TO STRIKE OUT PARTS OF THE 1sT DEF'ENDANT'S AFFIDAVIT IN REPLY TO THE AFFIDAVIT IN OPPOSITION TO STAY PROCEEDINGS AND REFER THE MAT-TER TO ARBITRATION 3. The Plaintiffs Affidavit and Skeleton Arguments in Support 3.1. In his affidavit evidence in support, Mr. Casilli deposed that following the commencement of the main action, the 1st Defendant filed an application for an Order to stay proceedings and refer the matter to arbitration, by way of summons supported by an affidavit and skeleton arguments dated 23rd June, 2025. He stated that he opposed the said application through an affidavit 1n opposition accompanied by skeleton arguments filed on 14th July, 2025, to which the 1st Defendant filed an affidavit in reply together with skeleton arguments. That after perusing the affidavit in reply, he observed that paragraphs 8, 11, 15, 24, 37, and 45 contained extraneous matters, while paragraphs 6, 9, 10, 33, 34, 38, 41, 45, 46, and 49 contained statements not within the personal knowledge of the 1st Defendant and unsupported by any disclosed source of information. 3.2. Mr. Casilli further averred that the information contained in the impugned paragraphs had not been raised in the 1st Defendant's affidavit in support of the application to stay proceedings and refer the matter to arbitration. He believed, as advised by his Advocates, that he would not have an opportunity to respond to those new matters. R7 Scanned with {i} CamScanner- 3.3. He also stated that he was advised, and verily believed, that affidavits containing extraneous material in the form of legal arguments, conclusions, or unsubstantiated statements offend the rules of Court governing the content of affidavits. Additionally, that it is contrary to those rules for an affidavit in reply to introduce new matters that were not raised in the affidavit in support. 3.4. In the skeleton arguments, Counsel for the Plaintiff reiterated the factual foundation of the application as set out in the affidavit in support. It was argued that the impugned paragraphs contained extraneous material by way of legal arguments and conclusions and further introduced new matters not raised in the affidavit in support of the application for stay of proceedings. Counsel submitted that these paragraphs offended the provisions of Order 5 Rules 15 and 16 of the High Court Rules, which are couched in mandatory terms. 3.5. To emphasise the mandatory nature of those provisions, reference was made to the cases of Sakala and Another v. Fert Seed and Grain Pty Limited & Another Pl and Philip Mutantika and Mulyata v. Kenneth ChipunguPl where the Courts held that the word "shall" denotes a mandatory requirement and does not confer discretion. 3.6. Counsel further submitted that any affidavit or statement therein that contravenes the mandatory provisions of Order 5 Rules 15 and 16 must be expunged, as established R8 Scanned with : Ii} CamScanner-) in numerous authorities, including African Alliance African Pioneer Master Fund v. Vehicle Finance Limited'31 and Greenbelt Fertilizers Limited v. Hygrotech Zambia Limited14l· 3. 7. It was also submitted that the inclusion of new matters or information not previously raised in the affidavit in support offends the principles of fairness and natural justice, as it deprives the opposing party of the opportunity to respond. Reliance was placed on the decision in Chief Mwanatete v. Innocent Munyikwa Lushato and Mweene Mutando!5l where the Court held that affidavits in reply that introduce new issues contrary to the rules of fairness and natural justice ought to be expunged. 3.8. In conclusion, Counsel urged the Court to expunge the impugned paragraphs of the affidavit in reply and exhibit "DC4" for contravening Order 5 Rules 15 and 16 of the High Court Rules and for offending the rules of fairness and natural justice. Counsel furnished a detailed table demonstrating how each of the impugned paragraphs breached the said provisions and maintained that the Court has no discretion to permit non-compliance. The Court was invited to grant the Order sought, with costs to the Plain tiff. R9 Scanned with Ci} CamScanner· 4. The 1st Defendant's Affidavit and Skeleton Arguments in opposition 4.1. The affidavit in opposition was sworn by Jeah Madaika, the 1st Respondent and Managing Partner in the 2 nd Defendant. The deponent stated that he believed, as advised by his Advocates, that the Plaintiffs affidavit in support off ended the Rules of Court by failing to sufficiently disclose the source of the Plaintiffs information, the time and place the information was obtained, and the circumstances forming the basis of the Plaintiffs belief. 4.2. He denied the assertion that the impugned paragraphs contained extraneous matters or statements beyond his knowledge, or that they raised issues to which the Plaintiff could not respond. He maintained that the contents of the affidavit in reply were within his personal knowledge and belief. 4.3. In the skeleton arguments, Counsel for the 1st Defendant referred to the cases of The Law Association of Zambia v. The President of the Republic of Zambia and The Attorney Genera1(6l and The Bank of Zambia and The Attorney General v. Al Shams Building Material and OthersC7l, in which the Courts discouraged the practice of filing separate preliminary objections and instead encouraged parties to incorporate preliminary issues within the affidavit in opposition. RlO Scanned with Ci} CamScanner- 4.4. This position, Counscl Huhmittcd , justified luc Defendant's app roach in raising preliminary obje ctions within the a ffi davit in opposit ion rather than by way of a se pa rate a pplication . The 1111 Defendant, the refore , adopted th e guida n ce from the above a u thorities. 4 .5 . It was further submitted that paragraphs 8 to 12 of the Plaintiffs affidavit in support of th e present application contravened Order 5 Rules 15, 17, and 18 of the High Court Rules, for failing to dis close t h e Advocate who advised the Plaintiff, as well as th e time, place, and circumstances farming the basis of the Plaintiff s belief. Counsel argued that the Plaintiff, as d ep onent, made unsupported conclusions without d isclosing the factual basis or source of information. 4 .6. In support of the foregoing, reference was m a d e to the cases of Philip Mutantika and Sakala and Another cit ed earlier, underscoring the mandatory nature of Order 5 of the High Court Rules. Additional reliance was placed on the High Court case of Kalusha Bwalya v. Chard ore Properties and Ian Chamunorwa Nyalungwe Haruperi<Bl in which the Court interpreted Order 5 Rules 17 and 18 of the High Court Rules. 4. 7. Based on these authorities, it was submitted that paragraphs 8 to 12 of the Plaintiff's affidavit in support breached the provisions of Order 5 Rules 15, 17, and 18 of the High Court Rules . Accordingly, Counsel argued that Rll Scanned with I' CamScanner- the Plaintiff's application to strike out the impugned paragraphs was anchored on a defective affidavit and ought to be dismissed for want of a proper foundation. 4.8. In the alternative, Counsel for the 1st Defendant provided a detailed tabular response demonstrating that the statements contained in the impugned paragraphs were factual and compliant with the Rules of Court relating to affidavit evidence. It was therefore submitted that the Plaintiff's application was misconceived. 4.9. Consequently, Counsel argued that the Plaintiffs application, having no legal footing, must inevitably fail and prayed that the Plaintiffs affidavit be expunged from the record for offending the Rules of Court. 5. The Plaintiff's Affidavit and Skeleton Arguments in Reply 5.1. The essence of the Plaintiffs affidavit in reply was that the affidavit in support of the present application fully complied with the Rules of Court. The Plaintiff deposed that he had expressly stated that his Advocates were the source of the information not within his personal knowledge, and had outlined the circumstances forming the basis of his belief. He further averred that, as advised by his Advocates, the requirement to state the time, place, and circumstances applies only where the source of information is a person other than one's legal Counsel, and therefore, the Rule was inapplicable in his case. Rl2 Scanned wit h {i CamScanner- 5.2. The Plaintiff further stated that he believed, as advised by his Advocates, that any objection alleging non-compliance with the Rules of Court should have been raised by way of a formal preliminary application. That failure by the 1st Defendant to adopt this procedure constituted a breach of the Rules of Court. 5.3. In the skeleton arguments 1n reply, Counsel for the Plaintiff identified four issues for determination. The first was whether the 1st Defendant's objection to paragraphs 8 to 12 of the Plaintiffs affidavit in support was properly raised in the absence of a formal application. It was submitted that the preliminary objection was irregular, as it contravened Order 30 Rule 1 of the High Court (Amendment) Rules, 2020, which mandates that applications in chambers be initiated by summons supported by an affidavit. 5.4. Counsel contended that the Law Association of Zambia and Bank of Zambia and Attorney-General cases relied upon by the 1st Defendant to justify the chosen procedure were misplaced, as those decisions could not override mandatory procedural prov1s1ons. It was further submitted that those cases were decided prior to the enactment of the High Court (Amendment) Rules, 2020, and were therefore superseded by the current procedural framework. Consequently, there was no legal basis for the 1 ■t Defendant's procedural approach. R13 Scanned with {i} CamScanner- S. S. It was therefore argued that the manner in which the 1 st Defendant sought to have paragraphs 8 to 12 of the Plaintiffs affidavit in support expunged was ir regular and the objection ought to be dismissed. 5.6. On the issue of whether the Plaintiffs affidavit complied with the requirements of Order 5 Rules 17 and 18, Counsel submitted that the two Rules are distinct and should not be conflated. That Rule 17 requires a deponent to set forth facts and circumstan.ces derived from any source other than personal knowledge, while Rule 18 requires particulars of time, place, and circumstances only where the information is derived from another person. 5. 7. It was argued that since the Plaintiffs source was his Advocates and not another person, Rule 17 was satisfied and Rule 18 was inapplicable. Counsel distinguished the Kalusha Bwalya case noting that it involved multiple informants. It was further submitted that even if any defect were found, it would be curable. 5 .8. The fourth issue addressed was whether the statements in the impugned paragraphs of the 1st Defendant's affidavit in reply were within his personal knowledge and belief. Counsel argued that the 1 st Defendant's claim in this regard was unfounded and illogical. Through a detailed tabular analysis, Counsel demonstrated that the impugned paragraphs contained assertions regarding the Plaintiffs state of mind, legal arguments, and new issues R14 Scanned with I' CamScanne/ : not raised in the initial affidavit, all in contravention of the Rules governing affidavit evidence. 5. 9. It was maintained that the 1st Defendant's affidavit in reply, which is the subject of this application, contravened Order 5 Rules 15 and 16 of the High Court Rules as well as the principles of fairness and natural justice. The Court was accordingly urged to strike out the impugned paragraphs. 6. Hearing 6.1. When the Plaintiff's application was called for hearing, Counsel for both parties were in attendance and relied on their respective documents filed on record. 7. Consideration and Determination 7.1. I have carefully considered the Plaintiffs application, together with the supporting, opposing, and reply affidavits, as well as the submissions filed by both parties. 7.2. The Plaintiff's application is anchored on Order V Rules 15 and 16 of the High Court Rules, which provide as follows: •us. An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. 16. Every affidavit shall contain only a statement of facts and clrcumatances to which the witness deposes, either of bis own penonal knowledge or from information which be believes to be true.• RlS Scanned with Ci} CamScanner· 7 .3. Rule 15 prohibits the inclusion in an affidavit of extraneous matters, such as objections, prayers, legal arguments, or conclusions. Rule 16, on the other hand, prescribes that an affidavit must only contain statements of fact within the deponent's personal knowledge or information the deponent believes to be true. 7.4. The Plaintiff contends that paragraphs 8, 11, 15, 24, 37, and 45 of the 1st Defendant's affidavit in reply to the application for a stay of proceedings off end Rule 15, and that paragraphs 6, 9, 10, 33, 34, 38, 41, 45, 46, and 49 offend Rule 16 as they contain statements not within the 1st Defendant's personal knowledge and unsupported by any disclosed source of information. 7 .5. The 1st Defendant opposed the application by way of preliminary objection, contending that paragraphs 8 to 12 of the Plaintiff's affidavit in support contravened Order V, Rules 15, 17, and 18 of the High Court Rules. Rules 17 and 18 provide as follows: "17. When a witness deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. 18. When the belief of a witness is derived from information received from another person, the name o,f bis informant ■hall be stated, and reasonable particulars shall be given Rl6 Scanned with {i} CamScanner- reapectln1 the informant, and the time, place and clrcumatancea of the information." 7.6. Upon reviewing paragraphs 8 to 12 of the Plaintiffs affidavit in support, I observe that the Plaintiff stated he believed certain matters as advised by his Advocates , though he did not specify which Advocates. However, the Plaintiff later clarified in his reply documents that the advice in question emanated from his Advocates of record. I am satisfied that the Plaintiff sufficiently identified the source of his information. Accordingly, I find that no basis to expunge them. 7.7. Turning to the Plaintiffs substantive application, I have examined the impugned paragraphs 6, 8, 9 , 10, 15, 24, 33, 34, 37, 38, 41, 45, 46, and 49 of the 1s t Defendant's affidavit in reply. The 1st Defendant maintains that these averments are factual and within his personal knowledge. Without reproducing the paragraphs verbatim , I will address them by reference to their substance, beginning with those alleged to contravene Rule 15 and thereafter those said to breach Rule 16. 7.8. Paragraphs 8, 11, 15, 24, 37, and 45 are alleged to contain extraneous matter. Specifically, Paragraph 8 asserts that this is a proper case to misjoin the 1st Defendant; paragraph 11 alleges that the action constitutes an abuse of the Court process; paragraph 15 reproduces part of the dissolution agreement; paragraph refers to R17 Scanned wit h {i CamScanner- correspondence annexed to the 1st Defendant's affidavit in support; paragraph 3 7 accuses the Plaintiff of involving the 1st Defendant in the escrow agreement to lure him into the dispute; and paragraph 45 alleges that the Plaintiff seeks to exclude the Chipepo Foundation to conceal evidence of a discount. 7.9. Having reviewed these, I find that paragraphs 8, 11, 37, and 45 contain extraneous matters in the form of legal argument and conclusions, contrary to Order V, Rule 15. Paragraphs 15 and 24, however, are factual and thus compliant. The four offending paragraphs are therefore expunged. 7. IO. With respect to paragraphs 6, 9, 10, 33, 34, 38, 41, 46, and 49, it was alleged that these contravene Rule 16 of Order V. In paragraph 6, the 1st Defendant alleged that the Plaintiff believed he could manipulate the contents of the dissolution agreement by creating a false narrative. Paragraph 9 asserts that the Plaintiff was using the 1st Defendant's name as a form of pressure and to leverage the 1st Defendant's influence to secure a favourable outcome. Paragraph 10 avers that the Plaintiff is intent on excluding Chipepo Foundation from the proceedings. Paragraphs 33 and 34 adopt the contents of paragraphs 5 to 12. In paragraph 5, the 1st Defendant denies personally receiving any funds from the Plaintiff; in paragraph 7, he denies the existence of any agreement between himself R18 Scanned with {i CamScanner- and the Plaintiff; and in paragraph 12, he identifies the parties to the dissolution agreement, referencing an exhibit marked "DC 1 ". 7. 11. Paragraph 38 asserts the 2nd Defendant's willingness to settle the dispute amicably through mediation, referencing exhibit "JM 1 ". Paragraph 41 reiterates that the Plaintiff allegedly invented a false narrative to involve the 1st Defendant in the proceedings. Paragraph 46 adopts the contents of paragraphs 42 to 45, wherein the 1s t Defendant contends that arbitration is the appropriate forum to resolve the dispute and explains the circumstances giving rise to the dissolution agreement. Paragraph 49 alleges that the Plaintiff is attempting to exclude Chipepo Foundation from the proceedings and that the case constitutes forum shopping and an abuse of Court process. 7.12. Considering Order V, Rule 16, I find that paragraphs 6 to IO contravene this Rule, as they purport to speak to the Plaintiffs state of mind and do not constitute statements of fact. Paragraphs 33 and 34 adopt paragraphs 5 to 12; I find that paragraphs 5, 7, 8, and 12 are compliant, while paragraphs 6, 9, 10, and 1 1 breach the Rule for the reasons previously stated. Paragraph 38, being a factual statement of circumstances within the 1st Defendant's knowledge, is compliant with the Rules governing affidavit evidence. R19 Scanned wit h {i} CamScanner· 7.13. Paragraph 41, which purports to speak to the Plaintiff's motives, similarly falls outside the scope of Rule 16. Paragraph 46 adopts the contents of paragraphs 42 to 46; save for paragraph 45, which refers to the Plaintiffs intention and is therefore non-compliant, paragraphs 42 to 44 are compliant. Paragraph 49 also addresses the Plaintiff's intentions rather than factual matters within the 1st Defendant's personal knowledge and thus falls outside the ambit of Rule 16. 7.14. In summary, and for the avoidance of doubt, paragraphs 8, 11, 37, and 45, containing extraneous matters, are expunged, while paragraphs 15 and 24 are retained. Further, paragraphs 6, 9, 10, 41, and 49, which contain statements not factual or within the 1st Defendant's personal knowledge, are expunged, whereas paragraphs 33, 34, and 38 are retained as compliant with Rule 16. THE 1ST AND 2N° DEFENDANTS' APPLICATIONS TO STAY PROCEEDINGS AND REFER MATTER TO ARBITRATION 8. The I st Defendant's Affidavit and Skeleton Arguments 1n Support. 8.1. In the 1st Defendant's affidavit in support, a background to the action was provided. It was stated that the claim against him relates to the sum ofUSD165,000.00 allegedly paid by the Plaintiff, which formed part of the negotiated agreement between the Plaintiff and Chipepo Foundation R20 : Scanned with ! 11 CamScanner- . ---··-------------- ------- for the sale of 6,000 hectares of land. The Plaintiff and Chipepo Foundation had entered into a pre-contract agreement for the sale of the land, produced as exhibit "JMI". 8.2. That following the execution of the pre-contract agreement, several correspondences were exchanged between the Plaintiff and Chipepo Foundation, including letters marked "JM2" and ''JM3", which accounted for the sum of USD 165,000.00 in both the pre-contract agreement and the escrow arrangements. 8.3. It was further averred that under an Escrow Agreement dated 21 st August 2023, marked "JM4," the 2°d Defendant was appointed as Escrow Agent. That the appointment was not made solely at the behest of the Plaintiff but with the agreement of Chipepo Foundation. Additionally, that both the pre-contract agreement and the Escrow Agreement provide for arbitration as the agreed mechanism for resolving disputes. That the Plaintiff acknowledges this fact in its pleadings, specifically in paragraphs 4 and 25 of the amended writ and statement of claim. 8.4. On this basis, it was submitted that this Court lacks jurisdiction to hear and determine the matter, as the parties had agreed to resolve disputes via arbitration. It was further contended that this case was fit and proper for R21 Scanned with I} CamScanner- stay of proceedings and referral to arbitration, which would not prejudice the Plaintiff. 8.5. In the skeleton arguments, reference was made to section 10(1) of the Arbitration Act and Rules 4(1) and 4(2) of the Arbitration (Court Proceedings) Rules to demonstrate compliance with the procedural requirements for invoking section 10(1). Additionally, reliance was placed on the cases of Alick Tembo and 21 Others v. Kwacha Pension Trust Fund and Bank of Zambia(9l and ZCCM Investments Holding PLC v. Vedanta Resources Holdings and Konkola Copper Mines PLC( 10l to highlight the Court's duty to respect the will of contracting parties who have opted for arbitration and to show that, in such circumstances, the Court's jurisdiction is ousted. 8.6. Further reliance was placed on Ody's Oil Company Limited v. The Attorney-General and Another( 11l where section 10(1) was interpreted as conferring jurisdiction on the Court to determine whether arbitration was the chosen mode of settlement by satisfying itself as to the existence of a valid arbitration clause. 8. 7. It was therefore submitted that the application was properly before the Court and that there was clear evidence warranting referral of the dispute to arbitration. The Court was urged to grant the Order sought by the 1st Defendant. R22 Scanned with I} CamScanner- 9. The 2 nd Defendant's Affidavit and Skeleton Arguments 1n Support 9.1. The 2 nd Defendant's affidavit in support of its application was deposed to by Sachikunka Muhumpu Kalima-Banda, a Senior Associate in the 2 nd Defendant firm. 9.2. She averred that the Plaintiff's action arises from two contracts, namely the pre-contract agreement and the Escrow Agreement, exhibited as "SMKB 1" and "SMKB 2" respectively. Both agreements contain dispute resolution clauses providing for mediation and arbitration as the chosen modes. 9.3. She stated that the main dispute concerns whether the Plaintiff could unilaterally direct the release of the escrow funds without consulting the Chipepo Foundation, the other party to the Escrow Agreement. 9.4. It was further deposed that the Plaintiff initially issued a notice of intention to commence proceedings by a letter dated 17th March, 2025, marked "SMKB 3", in line with the arbitration clause under the Escrow Agreement. In response, by a letter dated 26 th March, 2025, marked "SMKB 4", the 2 nd Defendant proposed the procedure for appointing a mediator and recommended the inclusion of the Chipepo Foundation to facilitate a tripartite mediation. That by a letter marked, "SMKB 5", the Plaintiff intimated consent to the proposed process. R23 I Scanned with Ci} CamScanner-j 9.5. That notwithstanding this agreement, the Plaintiff proceeded to institute proceedings seeking a refund of the escrow funds, contrary to the agreed dispute resolution mechanism. It was therefore contended that this is a proper case for the Court to stay the proceedings and refer the parties to arbitration. 9.6. In the skeleton arguments, Counsel cited the Alick Tembo and 21 Others case to illustrate that it was not necessary for the 2 nd Defendant to enter appearance and file a defence before invoking section 10( 1) of the Arbitration Act. 9. 7. In support of the application, reliance was placed on section 10( 1) of the Arbitration Act, underscoring this Court's jurisdiction to grant the Order sought. Further reference was made to Order 73 Rule 6(2) of the White Book to demonstrate the Court's discretion to stay proceedings where an arbitration agreement exists. It was submitted that since both contracts forming the basis of the Plaintiffs action provide for arbitration as the dispute resolution mechanism, it would be in the interest of justice to grant the 2nd Defendant's application. 9.8. Further reliance was placed on the case of Audrey Nyambe v. Total Zambia Limited( 12l to emphasize the Court's duty to examine the wording of an arbitration clause when considering a referral to arbitration. It was argued that once the existence of a valid arbitration clause is R24 Scanned with {i} CamScanner- established, the Court must refer the matter to arbitration, as was affirmed in Leopard Ridge Safaris Limited v. Zambia Wildlife Authority(t3J 9.9. The Court's attention was drawn to clause 6 of the Escrow Agreement and clauses 7.2, 7.3, and 7.4 of the pre contract agreement, which clearly establish valid arbitration clauses. It was submitted that the existence of these clauses ousts this Court's jurisdiction to entertain the matter, rendering the action improperly before it. Counsel therefore prayed that the 2 nd Defendant's application be granted and the dispute referred to arbitration. 1 O. The Plaintiffs Affidavit and Skeleton Arguments in Opposition 10.1. The gist of the Plaintiffs affidavit in opposition to the 1st Defendant's application was that the claim against the 1st Defendant was premised on the sum of USO 165,000.00 paid to him, which amount the Plaintiff now seeks to recover following the dissolution of the Escrow account held on his behalf. It was asserted that this amount did not form part of the negotiated purchase price under the pre-contract agreement. 10.2. The Plaintiff further averred that payment of the USD165,000.00 to the 1st Defendant was made pursuant to a separate arrangement, distinct from the pre-contract agreement, and that this separate arrangement did not R25 Scanned wit h {i} CamScanner- contain any arbitration clause. That in the absence of an agreement between the Plaintiff and the 1st Defendant to submit disputes arising from the said payment to arbitration, the Court should proceed to hear and determine the matter. 10.3.lt was additionally contended that referring the dispute to arbitration would greatly prejudice the Plaintiff, as he would be compelled to submit to a forum he did not consent to. 10.4. In opposing the 2 nd Defendant's application, the Plaintiff deposed that his action against the 2 nd Defendant arose from the dissolution agreement executed between the two parties regarding the Escrow account. The said dissolution agreement was produced as exhibit "DC · 1". While admitting that he had earlier entered into a pre-contract agreement with the Chipepo Foundation and an Escrow Agreement with the 2 nd Defendant, both of which contained provisions for mediation and arbitration, he clarified that the present dispute stems from the dissolution agreement. 10.5. Mr. Casilli further confirmed that attempts were made to resolve the matter through mediation, but these failed due to the 2 nd Defendant's lack of responsiveness. He emphasized that the dissolution agreement expressly provided that, upon the Chipepo Foundation's failure to obtain either an offer letter or certificate of title from the R26 Scanned with {i} CamScanner- Ministry of Lands within 60 days, the Escrow would be dissolved and the Plain tiff ref uncled in full. 10.6. That when the stipulated period expired on 13th October , 2024, the Plaintiff made several written requests to the 2nd Defendant for a refund of the funds held in escrow. Copies of the letters were exhibited as "DC 7", "DC 2", and "DC 4". 10.7. The Plaintiff stated that he was compelled to commence this action because the 2 nd Defendant had failed to engage in the agreed dispute resolution process. He expressed concern that referring the matter to arbitration would only result in further delay, as the 2 nd Defendant had previously ignored similar requests. 10.8. In the skeleton arguments, Counsel for the Plaintiff challenged the competence of the 1st and 2 nd Defendants' applications on the ground that they had not entered appearance to the action. Counsel relied on Order 11 of the High Court (Amendment) Rules and the case of Andrew Changala v. Maheba Asset Holding Limitedf14l which underscores the necessity of entering appearance and filing a defence to notify both the Court and the Plaintiff of a party's intention to contest the claim and the evidence to be relied upon. 10.9.lt was submitted that the failure by the 1s t and 2nd Defendants to comply with these mandatory procedural requirements rendered their applications incompetent and R27 Scanned with {i} CamScanner- not properly before Court. Reference was made to ,JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito v. Development Bank of Zambia!15) to support the argument that the Court has no jurisdiction to make orders 1n respect of such improperly constituted applications. 10.10. Counsel proceeded to address whether the agreement between the Plaintiff and the 1st Defendant was subject to arbitration, acknowledging that it is settled law that where an arbitration clause exists, the Court's jurisdiction is ousted. 10.11. It was, however, submitted that the Plaintiff and the 1st Defendant did not agree to refer disputes concerning the USO 165,000.00 payment to arbitration. Counsel argued that neither the pre-contract agreement nor the Escrow Agreement, upon which the 1st Defendant relies, makes reference to the said amount, demonstrating that the payment arose from a separate arrangement between the Plaintiff and the 1st Defendant. The Court was therefore urged to examine both agreements to confirm their distinct nature. 10.12. Relying on the Ody's Oil Company Limited case, it was argued that the 1st Defendant, not being a party to either the pre-contract or the Escrow Agreements, lacked locus standi to invoke the arbitration clauses therein. It was further submitted that arbitration is consensual in nature, R28 Scanned wit h ri} CamScanner- and compelling parties to submit to a process they did not agree to would offend the principles governing arbitration . 10.13. In the alternative, it was submitted that there existed no dispute between the Plaintiff and the 1st Defendant to warrant a referral to arbitration, as the 1st Defendant had not denied receiving the USD 165,000.00 from the Plaintiff. Counsel cited Metalco Industries Company Limited and Others v. First National Bank Zambia Limited and Anotherl 16l in which it was held that the existence of a dispute is a prerequisite for referral to arbitration. 10.14. Counsel contended that the matter was only before Court because the Escrow account had been dissolved upon the lapse of the period stipulated in the dissolution agreement, and the Plaintiffs refund requests were ignored. Thus, no dispute existed to warrant arbitration. The Court was therefore urged to dismiss the 1st Defendant's application. 10. IS. With respect to the 2 nd Defendant, it was similarly submitted that no dispute existed between it and the Plaintiff, as the 2 nd Defendant had not denied receiving the sum of USD375,000.00, again citing the Metalco Industries Company Limited case in support. 10.16. It was further submitted that the 2 nd Defendant forfeited any right to invoke arbitration when it refused to participate in the mediation process. Counsel emphasized that the mere existence of an arbitration clause does not automatically justify a referral to arbitration, citing the R29 Scanned with I} CamScanner- case of Konkola Copper Mines PLC v. NFC Mining PLC(17l where the Court held that proceedings should not be stayed where an arbitration clause 1s null, void, inoperative, or incapable of being performed. 10.17. It was therefore, argued that the arbitration clause relied upon by the 2 nd Defendant was inoperative and incapable of performance due to its own failure to participate in mediation. The Plaintiff maintained that despite his willingness to include even non-parties such as the Chipepo Foundation in the process, the 2 nd Defendant remained unresponsive, leading to the breakdown of mediation and the commencement of this action. 10.18.lt was further contended that, in any event, the arbitration clause in question provides for a tiered dispute resolution process, commencing with negotiation, followed by mediation, and only thereafter arbitration. The failure to exhaust the pre-arbitration steps rendered the present applications inapplicable under section 10 of the Arbitration Act. 10.19. It was therefore reiterated that, as the 2 nd Defendant did not enter appearance and no genuine dispute exists between the parties, the Plaintiff's action is properly before Court. The Court was urged to dismiss the 2 nd Defendant>s application with costs. R30 Scanned with {i} CamScanner- 11. The 1st and 2 nd Defendants' Affidavits and Skeleton Arguments in Reply 11. l. In his affidavit in reply, the 1st Defendant maintained that the claim against him arises from the reference to the sum of USD 165,000.00 in the dissolution agreement, which forms part of the Escrow Agreement and cannot be separated from the arbitration process. He contended that arbitration therefore, remains the appropriate forum for resolving all disputes between the parties. The 1st Defendant further denied entering into any personal agreement with the Plaintiff. 11.2. In the skeleton arguments, the 1st Defendant relied on the case of Alick Tembo and 21 Others case to justify bringing the present application under section 10 of the Arbitration Act without the need to first enter appearance or file a defence. 11.3. Regarding the Plaintiffs assertion that there was no dispute suitable for reference to arbitration, the 1st Defendant submitted that this contention was both misleading and inaccurate. It was argued that the 1st Defendant had not admitted owing the Plaintiff the sum of USO 165,000.00, as alleged. Reference was made to exhibit "DC 1 ", the dissolution agreement, wherein the said amount is merely mentioned, with no indication that it was ever personally paid to the 1st Defendant. R31 Scanned with Ci} CamScanner- 11.4. It was further submitted that the totality of the evidence on record demonstrates that the Plaintiff's claim is anchored on agreements that expressly provide for arbitration as the chosen dispute resolution mechanism. Reliance was placed on the case of NFC African Mining PLC v. Lofoyi Enterprises Limited( 18l to emphasize the Court's duty to ensure that its conclusions are firmly grounded in the evidence before it. 11.5. The 1st Defendant beseeched this Court to stay the proceedings and refer the matter to arbitration. 11.6.ln the 2nd Defendant's affidavit in reply, deposed by Sachikunka Muhumpu Kalima-Banda, it was averred that the failure to conduct mediation does not vest this Court with jurisdiction to determine the matter in the face of an existing arbitration clause. It was further stated that the Defendants have at all times demonstrated a willingness to resolve the dispute through mediation, provided that the Chipepo Foundation participates in the process. 11.7. She further contended that this action is not a straightforward debt recovery claim and denied that the 2nd Defendant owed any funds to the Plaintiff. Reference was made to exhibits "SMKB 1" and "SMKB 2", which, it was argued, show that although the Escrow Agency Agreement was executed between the Plaintiff and the 2 nd Defendant, the funds in issue were held on behalf of both the Plaintiff and the Chipepo Foundation. Therefore, that R32 Scanned with I} CamScanner- the dispute as to whether those funds should be released to the Plaintiff falls within the purview of an arbitral tribunal. 11.8. It was also deposed that the Plaintiff had not demonstrated any specific prejudice he would suffer if the matter were referred to arbitration. On the contrary, it was argued that by opposing the present application, the Plaintiff was the one refusing to engage in the agreed dispute resolution process. The 2 nd Defendant therefore maintained that this was a proper case for the Court to stay the proceedings and refer the matter to arbitration. 12. Hearing 12. l. When the applications for stay of proceedings and referral to arbitration were called for hearing, Counsel for the Plaintiff and for the 1st and 2 nd Defendants were all in attendance. 12.2. Major Lifunana(Rtd) and Mrs. Kalima-Banda, appearing respectively for the 1st and 2 nd Defendants, relied on the documents filed in support of their applications, both dated 23rd June, 2025. Their oral submissions essentially reiterated the contents of their written arguments, and I shall therefore not belabour to restate them. 12.3. In opposing the applications, Mr. Peterson, Counsel for the Plaintiff, relied on the documents filed in opposition on 14th July, 2025. He contended that the applications were R33 Scanned with ri} CamScanner- misconceived, as the prerequisites under sections 10 and 2 of the Arbitration Act had not been satisfied, given that the contract forming the subject of this action did not contain an arbitration clause. His oral submissions substantially mirrored the written arguments and will likewise not be summarised. 12.4. In reply, Major Lifunana (Rtd) relied on the affidavit and skeleton arguments in reply filed on 15th July, 2025. He maintained that the Dissolution Agreement was not distinct from the Escrow Agreement and read the concluding paragraph of the Dissolution Agreement to demonstrate that the claim for USD 165,000.00 could not be separated from the claim for USD375,000.00, as both sums arose from the same transaction. 12. S. He further referred the Court to various paragraphs in the Plaintiff's affidavit in opposition and submitted that the totality of the circumstances warranted determination by an arbitral tribunal. He the ref ore prayed that these proceedings be stayed and the matter referred to arbitration. 12.6.ln her reply, Mrs. Kalima-Banda relied on the affidavit in reply filed on 15th July, 2025. She submitted that the application was properly before the Court, citing the Alick Tembo case in support. She further contended that a valid arbitration agreement existed, thereby ousting the Court's R34 Scanned with {i} CamScanner- jurisdiction to determine the matter, and urged that the 2 nd Defendant's application be granted. 13. Consideration and Determination 13.1.1 have carefully considered the Defendants' applications for Orders to stay these proceedings and to ref er the dispute to arbitration. Although filed separately, both applications are anchored on the provisions of section 10(1) of the Arbitration Act, which provides as follows: "A court before which legal proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests at any stage of the proceedings and notwithstanding any written law, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed." 13.2. The above provision was aptly interpreted by the Supreme Court in John Sangwa v. The Legal Practitioners Committee of the Law Association of Zambia(191 in the following terms: "The interpretation we have given to section 10 is that it compels a court to stay proceedings before it which are commenced in contravention of an arbitration agreement and refer the parties to arbitration. The stay and referral of the parties to arbitration marks the end of those proceedings before the court because the parties will have been referred to their R35 Scanned with I} CamScanner- preferred choice of dlapute reaolution forum. The Court la only precluded from ataying proceeding• where the arbitration clauae la not enforceable or cannot be invoked for being pathologically or poorly drafted." 13.3. From the foregoing, it is evident that this Court 1s empowered to stay proceedings and refer a matter to arbitration where appropriate circumstances exist. 13. 4. The Plain tiff, however, challenged the competence of the Defendants' applications on the ground that the Defendants had not entered appearance or filed their respective defences before invoking section 10( 1) of the Arbitration Act. 13.5. This contention was addressed by the Court of Appeal in the Alick Tembo and 21 Others case wherein it was held as follows: -what is cudinal to note is that section 10 allows for the application to be made 'at any stage of the proceedings' and 'notwithstanding any written law'. We are of the considered view that a section 10 application is not a preliminary objection or application to a Court in which a party intends to raise a challenge to jurisdiction or irregularity against the process. Nor doe• it seek a terminal effect. It is, to the contrary, an application made to the Court, in pursuance of a prior arbitration agreement and seeks the Court to stay proceedings and refer the matter to the correct forum upon satisfying itself R36 Scanned with I) CamScanner- that the arbltratlon clause or agreement ia not null and void, inoperative or incapable of being performed." 13.6. The Court went on to state that: "For the avoidance of doubt and for guidance in the future, it is not mandatory to file a defence before making a section 10 application." 13.7. Guided by the foregoing authority, I find that the Defendants' applications for stay and referral to arbitration are properly and competently before this Court. 13.8. Having so found, the next and cardinal issue for determination is whether the circumstances contemplated under section 10(1) of the Arbitration Act exist in this case to warrant a stay of proceedings and referral to arbitration. As rightly submitted by the parties, the Court must first satisfy itself as to the existence, validity, and enforceability of an arbitration agreement. 13.9. The starting point in this determination is to establish the source of the claims before this Court. From the reliefs endorsed on the writ of summons, the Plaintiff claims against the 1st Defendant the sum of USD 165,000.00, allegedly received from and unjustly retained by him. As against the 2nd Defendant, the Plaintiff seeks a refund of USD375,000.00, being the sum paid under the Escrow and Dissolution Agreements. R37 Scanned with {i} CamScanner· 13.10. Upon a holistic examination of the evidence in support and opposition of the present applications, it is clear that both the Escrow and Dissolution Agreements were executed between the Plaintiff and the 2 nd Defendant. The Escrow Agreement contains an arbitration clause, whereas the Dissolution Agreement does not. 13.11. The Defendants have argued that the disputes before this Court arise from the Escrow agreement containing arbitration clause. Conversely, the Plaintiff maintains that the Dissolution Agreement, and particularly the transaction relating to the USO 165,000.00 claimed against the 1st Defendant, does not contain an arbitration clause. The Plaintiff nonetheless acknowledges the existence of an alternative dispute resolution mechanism under the Escrow Agreement but contends that the arbitration clause is incapable of being performed owing to the 2nd Defendant's alleged refusal to participate in the mediation process. 13.12.lt is evident from the record that there is no written agreement between the Plaintiff and the 1st Defendant. Nonetheless, the Plaintiff commenced this action seeking a refund of USO 165,000.00, which the 1st Defendant denies having received or being party to any agreement concerning it. At this stage, this Court is precluded from examining the merits or demerits of the parties' respective R38 Scanned with I} CamScanner- positions, as such matters fall for determination in the main action, regardless of the forum in which it is heard. 13.13. What is apparent, however, is that the Dissolution Agreement references a refund of this amount. A close reading of the Dissolution Agreement reveals that it contains no arbitration clause. 13.14. Regarding the claim against the 2nd Defendant, one of the reliefs sought on the amended writ of summons is for an order compelling payment of USD375,000.00 pursuant to the Escrow and Dissolution Agreements. As already established, the Dissolution Agreement does not contain an arbitration clause. The Escrow Agreement, however, provides in clause 6 as follows: •Any dlapute arising from this agreement shall firstly mediated. Ifno resolution ia achieved after 30 days of mediation, then the matter ■hall be referred to arbitration with sole arbitrator to be ■elected by the parties. If' a sole arbitrato,r cannot be agreed apon, then each party shall appoint an arbitrator of their choice and the two arbitrators shall select an umpire." 13.15. The foregoing clause is clear and unambiguous, and its existence is not in dispute. The Plaintiffs contention, however, is that it is incapable of being performed because firstly, there is no dispute, as the 2nd Defendant has not denied receipt of the USD375,000.00, and secondly, the R39 Scanned with {i} CamScanner- 2nd Defendant refused to participate in the mediation process. 13.16. I find the assertion that no dispute exists to be without merit. The mere institution of this action is sufficient demonstration of the existence of a dispute. I equally find no merit in the contention that the arbitration clause is inoperative. The clause expressly provides that failure of mediation should lead to arbitration, not that such failure renders the clause inoperative. The Court of Appeal in the case of Group Five Zambia Limited v. NUCO Industrial Services Limited(201 at pages J24-25 elaborated on circumstances that render an arbitration clause inoperative, stating that: "The word inoperative covers circumstances where the arbitration agreement has ceased to have effect. This may occur for a number or reasons i.e where the parties have revoked the agreement to arbitrate, or where the dispute has already been decided ID court/arbitration and even where a settlement was reached before the commencement of proceedings. These may have the effect or rendering Inoperative." the arbitration agreement 13.17. Guided by the foregoing authority, I find that the dispute resolution clause in the Escrow Agreement is valid, operative, and enforceable. It does not fall within any of R40 Scanned with I} CamScanner- the circumstances that would render it null, void, inoperative, or incapable of being performed. 13.18. The issue that now arises is the effect of the Dissolution Agreement on the Escrow Agreement, which contains the arbitration clause. The terms of the Dissolution Agreement set out the conditions upon which the Escrow Agreement would be dissolved or terminated. The Plaintiffs position is that the Escrow Agreement dissolved on 13th October, 2024, when the period within which the Chipepo Foundation was required to provide either a certificate of title or an offer letter expired. It is on that basis that the Plaintiff seeks a refund of the funds held in escrow from the 2nd Defendant. 13.19.lt is clear from the evidence, particularly exhibit "DC3" and the Invitation to Treat issued by the Ministry of Lands marked "DC6", that the Chipepo Foundation did not provide either the certificate of title or the offer letter within the sixty days stipulated in the Dissolution Agreement. According to the letter from the 2 nd Defendant marked •DC3", the offer letter was only issued sometime in April 2025. 13.20. The consequence of this failure is expressly set out at page 2, paragraph 5 of the Dissolution Agreement, which reads: "BaviDI falfllled the terms of the escrow, it is now agreed that the Mid eacrow will be dissolved, and the funds paid back to Mr. Diego Cullll, IF, within sixty (60) days of this document, the R41 Scanned with I} CamScanner- Clllpepo llatural Re1ource1 Con■ervatlon Foundation Llmited fall to fa1ft1 their end or the bargain and produce a Tltle deed or Valid offer letter from Ministry or Landa relating to Farm 5582 Gwembe." 13.21. The import of the foregoing is that the failure to provide a Certificate of Title or an offer letter within sixty days from 14th August 2024 (the date of the Dissolution Agreement) automatically terminated the Escrow Agreement. Therefore, by 15th October 2024, the Escrow Agreement had been dissolved. 13.22. As already established, the Escrow Agreement contains an arbitration clause, whereas the Dissolution Agreement does not. The question that arises is whether the dissolution of the Escrow Agreement extinguished the arbitration clause. In this jurisdiction, it is settled law that an arbitration clause is separable and independent from the substantive contract that contains it, and survives the termination or invalidity of that contract. This principle was articulated in Heyman & another v Darmins Limitedt211 wherein Lord MacMillan stated as follows: "I venture to think that not enough attention bas been directed to the true nature and function of an arbitration clause in a contract. It la quite distinct from the other clauses., The other clauaea aet out the obligations which the parties undertake towuda each other .. . but the arbitration clause does not lmpoae on one of the parties an obligation in favour of the other. R42 Scanned with {i CamScanner- It eml,ocUe1 the aareement of both partle• that, if any dllpute arlae• wlth reprd to the obllgatlona whlcb the other party ha1 undertaken to the other auch dlapute 1hall be aettled by a trtbual with their own constitution ....... the arbitration clause 1urvive1 for determining the mode or their settlement. The purposes or the contract have failed, but the arbitration clause la not one or the purposes or the contract." 13.23. Applying this principle, I find that the arbitration clause in the Escrow Agreement survived its dissolution and the ref ore remains operative for purposes of determining the mode of settling disputes arising between the parties. 13.24. The parties to both the Escrow and Dissolution Agreements are the Plaintiff and the 2 nd Defendant. It is, however, pertinent to note that the 1st Defendant is the Managing Partner in the 2 nd Defendant law firm. It is trite that partnerships, unlike incorporated entities, do not possess separate legal personality. This accords with the definition of a "firm" under section 2 of the Registration of Business Names Act, 2011, which provides that: '"'firm" meana an unincorporate body of two or more individuals or one or more individuals and one or more corporations, or two, or more corporations, who have entered into partnership with one another with a view to carrying on busin.ess for profit." 13.25. The above position is reinforced by the documents on record, which show that the 1st Defendant executed both R43 Scanned with {i} CamScanner- the Escrow and Dissolution Agreements on behalf of the 2nd Defendant. Accordingly, the assertion that the 1 at Defendant is not party to the arbitration agreement cannot be sustained. 13.26. The Dissolution Agreement is evidently interrelated with the dissolved Escrow Agreement, and together these agreements form the subject of this action. 13.27 . Since the arbitration agreement survived the dissolution of the Escrow Agreement, and given that both agreements are central to the present dispute, I am inclined to adopt the guidance in the decision of the Supreme Court in Pouwels Construction Zambia Limited & Another v. Inyatsi Construction Limitedl22l where the Court observed ~s follows: "We cllacem from the statement of claim that the disp,ute in this matter uoae from the contract executed between the 1st appellant and the respondent ... From the foregoing, we are of the considered view that all the claims in paragraph 15 of the statement of claim trace their origin from the contract executed between the l•t appellant and the respondent. That contract contained an ubitration clause and all the claims in paragraph 15 fall within that clause and are therefore arbitrable." 13.28. Applying the principle laid down m the Pouwels Construction Zambia Limited & Another case above , I am of the considered view that the claims in the present action R44 Scanned w ith {i} CamScanner- are arbitrable, as they originate from an agreement containing an arbitration clause, specifically, the Escrow Agreement. The correspondence on record, evidencing the parties' attempts to resolve their differences through mediation, further demonstrates that the arbitration clause was nearly given effect prior to the commencement of these proceedings. It is therefore, reasonable to conclude that the parties, acting as rational business persons, intended that any dispute arising from their contractual relationship would be resolved through arbitration. 13.29. In light of the foregoing, I find this to be a proper case in which to stay the current proceedings and refer the matter to arbitration. The net effect of the analysis above is that this Court lacks jurisdiction to entertain the substantive disputes. This finding aligns with the Supreme Court's guidance in Pouwels Construction Zambia Limited & Another case that: _. Since there wu a valid arbitration agreement, the learned trial Judce had DO jurisdiction to adjudicate the matter. He had an obligation to atay the proceedings and refer the parties to their choice of diapute resolution forum." 13.30. Consequently, the Intended 3 rd and 4 th Defendants' application for joinder cannot be entertained before this Court for want of jurisdiction. R45 Scanned wit h {i} CamScanner- 14. ~onclusion 14.1. Although the 1st and 2nd Defendants filed their applications separately, both seek the same relief and are founded on similar grounds. The pre-contract and Escrow agreements each contain valid arbitration clauses, while the Dissolution agreement does not. However, the Dissolution agreement emanates from and dissolved or terminated the Escrow agreement. The two being the subject of the disputes among the parties, cannot be considered in isolation. Additionally, the principle of severability of an arbitration clause dictates that an arbitration clause survives the termination of the contract in which it was embodied. 14.2. Having found that valid and operative arbitration clauses exist, this is an appropriate case in which to stay the proceedings and refer the parties to arbitration, as the jurisdiction of this Court is ousted by those clauses. 14.3. Accordingly, I hereby stay the main action and refer the parties to arbitration. 14.4. Costs are for the 1st and 2 nd Defendants to be taxed in default of agreement. 14.5. Leave to appeal is hereby granted. Delivered at Lusaka this 17th day of November, 2025 . .................. Chilombo Bridget Maka HIGH COURT JUDGE R46 Scanned with I} CamScanner-