Fratelli Loci SRI Estrazion Minerarie v Road Development Agency (Appeal 112 of 2017) [2018] ZMCA 261 (4 July 2018)

• \ • IN THE COURT OF APPEAL FOR HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: IN THE MATTER OF: AN APPLICATION TO PARTIALLY SET ASIDE AN AND ARBITRAL AWARD IN THE MATTER OF: SECTION 17 OF THE ARBITRATION ACT NO. 19 OF AND IN THE MATTER OF: RULE 23 OF THE ARBITRATION (COURT PROCEEDINGS) RULES STATUTORY INSTRUMENT NO. 75 OF 2001 AND IN THE MATTER OF: AN ARBITRAL AWARD DATED 14TH JULY, 2016 BETWEEN: FRATELLI LOCI SRI ESTRAZION MINERARIE APPELLANT AND ROAD DEVELOPMENT AGENCY RESPONDENT Coram: Makungu, Kondolo and Majula J. J. A On 23rd January, 2018 and 4th July, 2018 For the Appellant: Mr. H. M. Haimbe of Malambo & Company For the Respondent: Mr. R. Ngulube of Tembo Ngulube and Associates JUDGMENT Makungu, JA delivered the Judgment of the court. '\ Leg·islation referred to: 1. The Arbitration Act, 2000 - Section 17 (2) (a) (b) (ii) and (iv) 2. The Court of App,eal A.ct, 2016- Section 24 (i) (a) 1. ZRA v. Tiger Li.mited an.d Zambia D·evelopment Agency, selected Judgment No. 11 of 2016. 2. The Minister of Home· Affairs and Another v. Lee Ha.basonda (suing on his O'Wn behalf a'nd on b'ehalf of the Southern. African Center for the c .onstru.ctive Resolution of Disputes) {20·07) Z. R. 207 3. Dav'id Chiyengele and 5 others v. Scaw Limited, Appeal No. 177 of 201 ,5, selected judgment No. 2of2017 4. Miyanda v. Handahu (1993 -. · 1994) Z. R·. 187 5. Konk.ola Coppe.rmines v. Copperfields (2'01 OJ ZR Vol 3 156 6. J. Z Car Hire Limited v. Chala scirocco and Enterprises Limited - SCZ Judgme·nt no. 20' of2002 7. Y. B and F. Transport v . . Supersonic· Mo 1tors Limite·d (1982) ZE 22 8. Wilso.n Masauso· Zulu v. Avondale Housing project Limited (1982) ZR. 178 In this Judgment we shall refer to the Appellant as the Applicant and the Respondent as such as they were in the court below. This is an appeal against the· High Court de·cision deliver·ed on 30 h June, 2017. The appellant had, in the co·urt b,elow, filed an O·riginating Summo.ns o·n 3rd Octobe·r,. 2016, claiming that part of the Arbitral award dated 8th August,. 2016 relating to th·e refusal to award the -J2- \ , espondent damages ·for· breach O·f contract be set aside on the· following gro·Un·ds: 1. That the proc,edure adopted by the Arbitral Tribunal in .arriving at its de,ci'sion t,o disallow the pl.aintiff's claim for damages was not in accorda,nce with the agreement of ·the parties and/ or with the Arbitration Act No. 19 of 2000 ('the Act') and/ o·r with Zambian law an,d that it was the.ref ore in contravention of Section 17 (2) {a) (iv) 1 of the Act; and 2. That the Arbitral Tribunal's decision to di.sallow the plaintiffs claim for damages was not consistent with its finding that the .agree·m,ents su.bje·ct of the dispute in the arbitration were wro,ngfully terminate,d; consequently, th,at decision was in ,conflict with public poli'cy and is amenable to being set aside pursuant to Sect'io,n 17 .(2) 1 (b) (ii) of the, Ac·t. The ap,plic,ation was opposed on the main ground that t.he applicant did .not lead evidence relating t·o ·dama,ges. The brief facts of the matter were a .s follows. The parties herein entered into three sep,arate contracts as foll,o·ws: ,Contract number RDA/CE/004/ 11 and RDA/SP/005 ('Contract A') which was to be undertaken as a jo,int venture b·etween the claimant and H. HO Afri 1ca Infrast.ructure Engineers (HHO Africa) .. J3- dated 5th . August, 2011 under which the claimant underto·ok to ,carry ,out upgrading of 70 kilometers o·f fu,e pedicle road loc.ated in the Democratic Republic o.f Congo including the construction of o·ne reinfor,c·ed concrete bridge at Lubemba, along the road at the ,contractual sum of ZMK 313,887,290,717978 (Zar11bian Kwacha Three Hundred and Thirteen Billion Eighty Hun,dred and Eighty Seven Million Two Hundred and Ninety Thousand Seven Hundred I and Seventeen Kwacha Sev·en.ty E·ight Ngwee) (before rebasing of Za 1nbian Kwacha). Contract number RDA/CE/014/011 ('C·ontract B'} whi,ch was to be undertaken as a joint venture between the· claimant and Zulu Burrow Develo·pment Consultants (Zulu Burrow) ·dated 14th May, 201 ·1 under w·hich the claimant overtook to carry out the rehabilitation,. upgrading of urban roads in various towns in Lusaka, Central province and Copperbelt Provinces described as Lot 2,26.47 Kilomete.rs of roads in Mufulira at the contractual sum o.f ZMKS,0,,770,394,·746.18 (Zambian Kwacha Fifty Billi,on S·even Hundred and Seventy Million Three Hundr·ed and Ninety Four T'ho·usand Seven Hund·red and Forty Six Kwacha and Eighteen Ngwee (before rebasing of Zambian Kwacha). -J4- C,ontr.act number RDA/CE/017/011 ('Contrac.t C') which was t·o b,e un 1dertaken as a j ,oint venture b,etween th,e claimant .and Bicon Zamb,1a Lim·ited (B·i,co,n) dated 14th May, 2011 under which the claimant und,erto1o'k to· carry out the rehabilitation, upgrading works of urban r ·oads in various towns in Lusaka, Centr.al Province .and Copperbelt p·rovin,ces of Lot numb·er 5 N,dola City roads, 33.282 Kilomet·ers at the contractual s.u .·m o·f Z·MK91,849,611,033.85 (Zamb1ian Kwacha Ninety One Billi,o·n Eighty Hundred and Forty Nine Mi. Ilion s,ix Hundred an.d Eleven Thous.and and Thirty Three Kwacha Eig.hty Fiv,e Ngwee) (before re basing of Zambian Kwacha) . It is noteworthy that HHO Africa, Zulu Burrow and Bicon were all not parties to this Arbitration. The dispute which was submitted to Arbitration arose from the termination. of the contracts by the respondent by separate l·etters date·d 18th s .eptember, 2012. Upon hearing the parties c,onc·erned, the arbitral tribun,al composed of three arbitrators rendered its final award on 14th July, .2016 app·earin,g on pages 35-79, of the record of appeal. Page 43 of the award i.e. page 78 of the record of appeal -JS- shows the full ,and final settlement of ,all claim.s in the arbitration as follows: • The ,claimant is p ,arlially, successful to the extent· that t.he· sum of ZMK28,058,387,3.65.,0'0 is due to 'it on the bas·is of the ,c[alms that have been allowed after adjusting total amounts due to it ag,ainst th,e respondent's counterclaim. • The claimant is entitled to return of equipment o,n site. • Interest will be p ,ayabl,e on the amount due to th,e r:espondent from the date of co,mmence·ment of the, arbitration up to the date of the award at the commercial bank average short ter1n .d,eposit rate. From th,e dat,e of the award, interest shall be due· and ac,cn.ie in acc,ordance with the provisions of Section 2 of the Judgment Ac,t. For this purpose, we d ,etermin,e that this rat,e sh,all be equivalent to the prevailin.g Bank of Zambia Monetary Polic,y rate .. • The costs of the Arbitral Tribunal inclu,ding disbursements be borne in equal prop,ortions by the parties. • As both claims ,have bee.n partially s·uccessfu.l, e·ach party will bear their own costs .. To put the case in p,erspective, we reite.rat.e that the application before the low,er ,court arose from the arbitral tribunal.'s refusal to award gener,al d,amages for breach of contract. In <let.er.mining the matt.er, the low,er court considered the affidavits in suppo,rt .an·d in opposi.tion to the appli.cation, skeleton argu·m·ents, lists of authorities .and other writt·en .submissions. In det·ermining whether there was pr,oc·e·du·r.al impropriety committed by the arb·itral tribunal, the cou.rt lo10 1ked at. Article 19 of th 1e Model Law on Internatio1nal Arbitration which gives guidelines on arb,1tration procedure an,d examined the arbitr.ation .agreement executed by th·e part·ies. The l·ower c,ourt found th.at the Arbitration agr·eement merely provided for the appointment ·O·f .an arbitr.al tribunal .and gave th·e p 1art:ies lib·erty to· call witnesses. The learned Judge found no other documen.t relating t,o agreed p·rocedure .. The ·court also, consid,ered Section 17(2) (a) (i·v) ·Of the Arbitratio·n Act flJ' which p·rovides. that: .,, 17(2) An A·rbitral award may be set aside by the ,cou.rt only ·if. (a} The party mak·ing the application furnish.es pr.oaf that (iv) the .composition of the arbitral tribunal on the arbitral procedure was not i·n acc·ordance ·with the agreement of the parties, or, failing suc·h agreement, was not in accordance with thi.s Act o.r the law of the country where the .arbitration took p l1ace. '' -J7- • L The court foun,d further that th,e applicant 1d1d not challenge the arb1tral procedure stipulated in the agreement .. That no spec fie p,rocedural impropriety was referr 1ed to but substantive issues r 1egarding the arbitral tribunal's refus .. al to, aw.ard damag.es. As a r,esult, she refus.ed. to p·artially s·et aside the .awar·d for pro·cedural im·propri,ety. On the issue whether the part ·of the award soug.ht to be set aside is co·nt·rary to public policy as provided under Section. l 7(2) l(b) (ii) of the Arbitration Ac·t, t1J the Court co1nsi 1dere 1d the Sa. Id Section which provides that: 17(2) ''An Arbitral 1a ·ward ·may be set aside by the court (b) If the court .finds that (i·i) the award is in 1C·onfl.ict wi.th public policy .... '' The low·er court relied ,on the case of ZRA v. Tiger Limited .an.d Za.mbia D'evelop·me·nt Agency <1lwhere the s .uprem,e Court ad·opt 1ed the . Zimbabwean case 0 1f Electricity Supply Authority v. Maposa in which the court made the following pronouncement on public polic.y cons.iderations in arbitral matt·ers: JS- ''Where, however the reasons or conclusion in a :n award g ,oes beyond mere faultiness ·Or incorrectness and constitutes a .n inequity that is so far reaching and outra;geo,us ·in its defiance ,of logic or accepted standards that ,a sen.sib,le and fair ·minded person would consider that the concept of justic1e in Zimbabwe ,wou ,ld be intolerably h·urt by the award, then it ·w,ould be contrary to pu.blic p ,olicy t ,o ~pho, ld it .. '' The court foun 1d. that in paragraphs 154. I to 161 of the· Arbitral Award, ·the ,arbitral t.ribunal expr,e.ssly analyzed the applicant's ,claim for damages. That in parag.raph 156 in particular, ·the tribunal .. tated th·us · ''As w ,e have pointed out, it is a recognized principle of law in Zambian jurisprudence that each party bears the bu.rden of p ,roving the facts re.lied ,on to support a claim or defence. Durin.g the hearing) no ,evidence was led to prove the claims that have b,een particularized in p,arag.raph 16 of th,e, statement of claim with .resp,ect to general ,damag.es. E ,vidence which h,as not been test,ed through cro,ss ,exami.nation cannot be introduced ·in the form of workings calculate.d by a party and included as a schedule to its submissions as the claimant has attempted to do. We therefore find that there is no b,asis for the claims that have been p ,articularized in par·ag.raph 16 of the statem,ent of ctaim with resp,ect t,o contr,a,cts . A, B an,d C. '' -J9- lio The ,court th.,eref ore found that the Arbitral Tribunal exposed the applic,ant's own lap.ses in the prosecution of its claim. That therefore the claim that the tribunal did not address their .minds to the is,sue of dam.ages lacked merit .. The lowe.r court found no proof th,at the refusal to .award damages wa,s ag.ain.st public policy as defined in the Tiger Transport flJ cas,e. The Appe .. llants have, raised f've grounds of ap1peal co·uch.ed as, follows: 1. The court below erred in law and in fact when it held that there was no tangib1le C'Ontentio,n or evidence relating to w ,ant of pr,ocedural aptness on the part of arbitr,al' tribunal and that the applicant had misco,nceived Se,cti,o·n 1 7 .(2)' (a) (iv)' of the Act lead.ing t,o a failure to satisfy the threshold of adducing p .roof· of procedural impropriety. 2. The court below .misdirected itself· when it .refused to partially set aside the arbitral award in is·sue withou·t h.aving due regard to the .fact that there was a requireme·nt for the arbitral tribunal to first determine the question of liability before determining th·e questi,on of quantum and that this re,quirement W'as a procedural one imp,osed upon the, arbitral tribunal by law w ,hereby the arbitral tribunal had to satisfy the said requirement in order for it to, properly d'ischarge its mandate to resolve all the matters in dispute in the arbitration. JlO- • 3. The court below erred in law an,d in fact whe,n it held that no, e·vidence had been furnished to it to show, tha·t the award in issue c·reated an ine,quity that was so far reac,hing and ,outrageous that it defied logic o,r accep,te,d standards s ,o as to le.ad a s ,ensible or fair minde,d person to c,onsid,er that the concept of justice in Zamb,ia had been in tolera.bly hurt by the said aw,ard .. 4. The court below fell i'nto g.rave e11or when it held that t.here was no basis upon w .hich it could .make· a finding th.at the award in issue off ended public policy. 5. The learned trial Judge erred in, law and in fac't when she dismissed the app,lication to partially set aside the arbitral award in issue with ,c.osts to the resp,ondent. Grounds 1 and 2 w,ere argu·ed to,gether and so were grounds 3 and 4, while ground 5 was argue·d s.e·parately. In support of ground 1 and 2 counsel contended that the trial Judge disreg.arded the evidence before her when she held that the appellants did not satisfy the threshold that was set out under :Sectio,.n 17 (2)· (a} (iv) of the Act f 1J in order to pr,ove procedural impropriety. On this premise, it was argued th,at the· le.arn·ed ·trial Judge ignored the fact that the arbitral tribunal's decision making p.ro,cess was an in.tegral part of the arbitral procedur,e. Counsel . Jll • to the ,effect that the arbitral tr1b·unal imp,roperly handled th,e matter when it failed to make pron,ouncements ,on the question ,of liability before determining wh·ether there was proof of drunages. Further that, the learned Judge did not address any of the contentions that were made b·y the applicant. That the Judgment. of th·e lower ·court does not confo·rm ·to the meaning of a judgment as, es.paused n the case of th·e The Minister of Ho:me Affairs and Ano·ther v. Lee Habasonda f3J whe ·1 ein it was held inter .ali.a that there is need for the trial Judge· to discuss all the specific issues that are raised by the parties. in arrivi·ng at the Judgment. Counsel stated that the lower court avoided dealing with the is.sues put f o·rward for consideration on the basis that it ·· ould have ended up reviewing the award. Ho,wever, the c,ourt di,d not explain how that would have be·en th.e outcome. Cou·nsel urged us to, inv,oke Section 24 ,(l)' (~}of the ,Court of App,eal Act. l2J which provides that: ''The court may on the hearing of an appeal in civi.l matters (a) 1 confirm, vary amend, or set aside the judgme.nt· appealed against or gi.ve judgment as the case may re,quire. '' In supp1ort of grounds three and four, Mr. H,aimbe submitted that the trial 1COUrt omitted to tak.e into ,acco'u .nt the appellant's argument on. the issue of public policy. That contrary to t.he trial court's conclusion that it was the applicant's assertion that. the arbitral tribunal did not address the issue of damag.es, the applicant contends that the ·manner in which the arb,itral tribunal allowed the respondent that was f o,und guilty of wrong doing to simply walk aw~y without sanction, c.·onflicted with the public policy tenable in Zambia. That the conc,ept of justice in Zambia woul,d be deeply injured 1f such an award were to stand as ·that would sen,d a message that wrong doers can go scot free. He further contended that it was outrageo,us and defiant of lo,gic that a s.u ,ccessful party in a commercial arbitration coul,d be den·ied any reli,ef whatsoever (including nominal 0 1r declara·tory relief) on the pretext of lack of evidence to sup·port its claim ev,en in t.he f ac,e of progressive decisions of the Supreme Court. In aid of this, he placed reliance on the case of David Chiyengele, and 5 others v. Scaw L'imited l4J where it was established that an injured party should not g,o without redr·ess for injury or wrong occasioned t,o, him. That th.e -J13- ,, po,rt1,on of the award c,omplained of is against public policy ,and sho,uld be s,et aside. Mr,. Haimbe submitted under g,r,oun,d five that the entire ,judgment of t,he ow,er ,cou,rt is er,roneous ,and that it should be set asi,de with costs to th,e appellant. Consequently the case should be r,emitted to a different arbitral tribunal for reh.earing of the issue o,f damages, for In response, the ,gist of Mr. Ngulube's arguments on grounds 1 and 2 is th,at ther,e is need to ap.ply th·e literal rule in interpreting Section 17 (2)(a)(ivJ of the Arbitration Act. (1)1 In ai,d ,of' this, he relied ,on the case of Miy,anda v. Handahu t5J where it was held as follows: '' ... when th,e lan:guage is plain and there is nothing to suggest, that any words are used in technical sense or that the context requires a depar ture from the fundamenta ,l rn ,le,, there would be no occasi.on to depart fr,om the ordinary and 'lit,eral meaning and it would be inadmissible to read into the terms anything els,e on grounds ,such ,as of' policy, expediency, justice or politi,caz· ,exigency, motive of the f ra.mers, and the like.'·' -J14- • H 1e stated that Black's Law Dictionary defines 'pro,cedure' to m ,ean a specific method or ,course ,of action ,and the judicial rule or manner for carrying 0 1n a civil lawsuit or criminal prosecution. ,also term,ed rul,es of procedu·re. That there was no sp,ecifi,c procedure agree 1d upon by the parties on th 1e issues of liability for damag,es an 1d quantum of damages. There, was n.01 evidence t.o show th.at th.e arbitral tribunal had co,ntravened the arbitral pro,cedur,e. Further that, the part of the award that the ap1p 1ellant is seeking to set aside is not P',rocedural in nature and character but sub1stantive. That ·the law does not provide the proce,dure on ho,w ,an arbitral tribunal should determin,e the iss·ue· o·f l.iab,ility and the quantum of· damag,es as alleged by the appellant. The tribunal did no,t address the issue of liability· for damages b ,ecause there was n .o e idence that was led to prove such a clrum. ,Counsel r,eferr,ed to Art·icle 19 ( 1), (2) of the Schedule o,f ·the· Act (1) i.e. the modified mo,,del law which provide: ARTICLE 19 Determination of rules of proce 1dur,es ''( 1) Subject to the provisi.ons of this law, the parties are free to ,agre,e, on the procedure to, be fol .lowed by the arbitral tribunal in conducting the proceedings.'' -J15 "(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of th.is z,aw, conduct the arbitration it considers manner as appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materi,ality and weight ,of any evi.dence. '' From the abo·ve, counsel submitted that the tribunal had the power to decide on the admissibility of evide·nce. That the tribunal rightly ·declined t,o admit the evidence of the appellant in the form of the workings included a.s. a schedule to .its submissions an·d which ·evidence was never subjected to cross- examination. To buttress this, he referr·ed to Section 15 (c) of the Act f1J which provides: 15 ''Un less othe·rwise agreed by the parties, if, without showing .sufficie·nt cause (c) any party fails to produce documentary eviden.ce, the ~ - arbit.ral tribunal may continue the pr,oceedings and make the award o,n the evidence before it.'' Mr .. Ngulube further submitted that the substantive issues of liability and quantum of damages cannot be· broug.ht pursuant to Section 17(2) (a) (iv) of th 1e Act. (I) He add,ed that the appeal therefore -J16- • lacks merit as the tribunal arrived at its d,ecision ,on the basis of est,ablished principle·s and in SUp,port 10f this position h ,e referred t,O a number of cases including J~Z Car Hire Limited v. Cha,la Scirocco & Ente~prises Limited f6l where the ,supreme Court held that: ''This court has said in, a n,umber of cases such as Zulu v. Avondale Housing Project and Mhango v. Ngulube ,and 7 others that it is for the party cla.i.ming the d 1amages to prove the damage, never mind the opponent's case.'' He th ·refore argue,d that there was need for the appellant to· p,rove th,e all,eged. loss. In th,e absence of proo,f, the tribunal was on firm ground when it declined to award the appellant damages. That th,e appe,llant is in es,sence attacking the merits of the award rather than discharg·ing the onus ,of proving, that it has met the threshold set by Section 17.(2) (a) (iv) of the Act. (1) In the case of Zarnb,ia Revenue Authority v. Tiger Limited and Zambia Development Agency f 11 the court established t'hat when inte,rpreting· the model . . law, one must not lose sight of the fact that it is an international instrument to be used. on ,an intern,ational p,Jane. That the app,ell,ant's appeal b·efo,re this court is merely requestin,g this court to review the awar,d ·on its merits., -J17 He c,onclud,ed by stating th,at grounds o.ne and two must fail because there was no proof of procedural impropriety to, satisfy Se,ction 17 (2) (a) (iv) ,of the Act. (Il In r,esp,onse to groun 1ds three and fo 1 r, Mr .. Ngulube submitted that the trial co,urt was on firm ground when it declined to award 1damages to' the ap 1pellant and that this did not constitute an inequity that was so far reaching or outrageo1us to defy logi,c or accep·t d stan,dards that a fair minded person would consider the d cision Of the tribunal to have . ntol,erably hurt the C01llC 1ept 10f justice in Zambia. In arguing ground five, Mr. Ngulube submitted t'hat the trial co1urt was entitled to award costs t·o the respondent in t,he exer,cise of its discretion. He relied on the case of Y. B. and F'. Transport V 1 • Superso.nic Motors Limited f7J where th,e cro,urt held inter alia as tallows: ''The ,general principle is that costs should follow the event, in othe,r words, .a successful party should normally not be deprive,d of his costs,, unless the successful party did someth·ing wrong in th:e action or i.n the conduct of it.'' -J18- • In light of' this authority counsel stated that in the present case, it is improper for the appellant t,o question the trial Judge's discretionary power to award costs because the respondent did n 10 1thing wro1·ng in th,e c'o1nduct of the case.. That th·e lower courts findings cannot be set aside pursuant to the Wilson Masuso Zulu fBJ ,cas,e because the appellant has failed to show that the findings were either perverse or made in the absence of any relevant evidence or upon a misapprehensio,n ,of facts. He therefore urged. us, to dismiss the appeal with costs to the respondent. We hav,e scrutinized the record of appeal an,d carefully considered the written arguments made by both parties. We· s,hall determine the grounds of appe,al in the order in which. they have been argued. As ·regards the first and second grounds, it is clear t.hat on page 17· of the Ru.ling, the court below considered whether 1or not. t,he arbitral tribunal ha 1d ac·ted ,contrary to the Arbitr.ation Agreement .. T·he lower court found that the· Arbitration Agreement only provided procedure for th,e app,o,intment of the arbitral tribunal and gave parties liberty to call w.itnesses. We have read the Agreement for submission to A.rbitratio,n dated ,8th July, 2013 on p .ages 31 to 34 of --J19'- • the record of appeal. We note that the said agr·eement does not merely p,r,ovi·de fo·r the procedure for appointment of the arb"tr.al : ribun.al and the c.alling of expert witnesses but also provides for the .g·overning law and jurisdiction etc. The lower court therefore ·erred t·o find that i.t merely provides for the appointment of an arb,itral trib1unal and the calling ,of witnesses. The arbitral tribunal was required to apply Zambian law as part of the procedure. We also· note that despite th.e sai,d error, the ·court consi.dered the refusal t·o award damages as an issue touching on the substantive issues determined by ·the· arbitral tribunal. In the co,urt below, the applicant had argued that the failure of the arbitral t·rib,unal to award damages was against Zambian law. That it w ,as therefore an error to find that the applicant had misconceived Section 17 (i) (a) (iv) o·f the Act. It is clear to us th.at in paragraph 156 of the Award which paragraph is quoted at page· 8 hereof,. the arbitral tribunal r·efuse·d to awar,d the applicant dan1ages on the basis of the recognized p·rinciple of law .in Zambian jurisprudence that he who alleges must prove. The tribunal found no proof of the claim for g.eneral damages. We are of the view that the tribunal cannot be faulted for -J2·0- • failing to ,cite Zambian cases .in support of its holdings and findings. I.tis suffi.cient that the tribun,al had considered Zambian law. Although the case of David C.hiyengele and 5 others v. Scaw . Limite,d f4J' was decided much later than t.he case of J. Z Car . Hire (6) the law that it is for t'he party claiming any damages to prove the damag,e has not changed. Since the tribunal found no evidence of the ·claim for damages it cannot be faulted for not fmding the respondent liab:le for damages. ·we ac·cept the Respondents submissions that the tribunal acted in accordance with Section 15 (c) oft.he Arbitrati·on A·ct (l ) and Article 19 (2) of the schedule to the Act. (I) We cannot. fault the lower court's finding on page 9 of the jud.gment to th·e ·effect that .she could not delve into issues of substance because it woul.d. defeat the whole essence of ar·bitration as an alternative dispute resolution mech.anism. According to the lower co,urt issues regarding the liability and quantum o·f damages are substantive and th·ey were ably handled by the arbitral tribunal. In lig.ht of the ·case of Ko.nkola Coppermines v. Copperfields f61 where it was hel,d that: -J21- • ''A.n application t.o set aside an award is not inte·nde 1d for the court to review the, awa.rd of the tribuna.l or inde,ed conduct a heari.ng akin to an appeal,'' we are of the co,nsidered view that the low,er court was on firm ground. As regards the appellants argument that the lower Court's Ruling is not a Judg.ment within th,e meaning of the Lee Habasonda f2J case. We are o·f the view that the Ruling· to a large e·xtent complies with the lai·d ·down format because on p 1ages 2-5 ·of the Ruling the Judge summarized the claims before her. On pages 5-14· the court r·eferre·d to affidavit evid·ence and submissions. of t.he parties., she also analysed the issues and facts and applied the law to the facts. The Judge's omissio1n to summarise th,e evid 1ence and the submissions before her does not warrant nullification O·.f the Ruling. For the foregoing reasons, the 1st and 2nd grounds of appeal cannot be sustaine·d. As regards the thir·d an·d fourth gr·ounds of appe.al, it is clear that the applicant relies heavily on the case of Davi.d Chiyenge·le· and 5 others v. Sc.a ·w Limited f4J to show that the arbitral award was against public policy. The applicant argues that the tribunal s.houl·d have award,ed even nomin,al damages to the .appli;cant for breach of -J22- cont.ract. The Chiyengele f4J cas·e is distinguishable from the cas,e at h .and in th.at it was an ,appeal against the Deputy Registrar's assess.m.,ent of dam,ages for loss o·f employment while this is an .appeal agains.t p .art of ,an arbitral. awar,d. T'he facts of the C.hiyengele f4J 1case ar,e very differ,ent from the facts of this ·C.ase. Th·e integrity of the arbitral proce.ss mus,t be pres,erv·ed by not revi,ewing ,an aw·ard or p .ar·t thereof un. Iess ,on cogent grounds, which do not 1exist. in this matter The definition of public policy adopted in the Tiger Limited Transport f 1J case shows that a very high standar·d of proo·f is set for a perso1n applying to set aside an award on an. allegation that it is contrary to public policy. Our view· is that for an award to be set asid·e on that ground there must be proof tha.t the arbitral tribunal has done gross injustice. In the present case, we agree with the lower court that there was no evidence upon. which a finding that the award is against public policy as defined by law co·uld be made·. Failure to award no·minal dam.ages did not in this particular cas,e result in gross injustice. Grounds three and four therefore also fail. Coming to the fift.h ground of appeal, we entirely a,gree with the Respondent that having dismissed the ap,plicant's application, the -J23- court below· w·as entitled to, exercise its discretion to1 award costs. to the Respondent because normally costs foll,ow the event. Applying the case of Y. B. and F · Transp·ort v. Supersoni·c . Moto·rs Limited 17J to the facts of this c.ase, we agree with the . Respond.ent's counsel that the . Respondent was no,t guilty of any imp,roper conduct during the proceedings and therefo,re it d 1eserved an award o.f costs. Gro·und five ther·efore .also fails. Fo·r the foregoing reasons, th 1e ap·p,eal is hereby dismissed with co·sts which may be taxed in default of agreement. C. K. MAKU . GU COURT OF APPEAL JUDGE M. M. KONDOL,O, S 1C COURT OF APPEAL JU. DGE B . . MAJULA COURT OF APP·EAL JUDGE -J24-·