Lubambe Copper Mines Limited v Hambani Ngwenya and Ors (2022/HP/1RB20) [2023] ZMHC 80 (28 February 2023)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) 2022/HP / ARB20 IN THE MATTER OF: THE ARBITRATION ACT NO. 19 OF 2000 IN THE MATTER OF: RULE 23 OF THE ARBITRATION (COURT PROCEEDINGS)RULES,STATUTORY INSTRUMENT NO. 75 OF 2000 BETWEEN: LUBAMBE COPPER MINES LIMITED APPLICANT AND HAMBANI NGWENYA ANNIE MUSONDA KAWANDAMI-NGULUBE 2 8 F[g 2023 . -· 0UG7, LO~;:c.\·. :-; 1 ST RESPONDENT 2ND RESPONDENT BEFORE THE HON. MR JUSTICE C. KAFUNDA IN CHAMBERS THIS 28TH DAY OF FEBRUARY, 2023 For the Applicant: For the Respondents: Mr. M. Sakala of B and M Legal Practitioners, with Mr. D. Chakoleka, P. Chomba and Mr. O. Hasalama of Jlllulenga Mundashi Legal Practitioners lvlr. R. K. Malipenga of Robson Malipenga & Co. with Ms. Simumba & N. Mukuka of D. Bunting & Associates RULING Cases referred to: 1. Breza Engtneering Limited v GM International Limited and Konkola Copper Mines Plc S. C. Z Judgment No. 2 of 2010; 2. Mulenga and Others v Investrust Merchant Bank Limited 2004 Z. R. 96; 3. Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No.18 of 2016; 4. Aristogerasimos Vangelatos and Another v Metro Investments Limited(Appeal 45 of2014); 5. Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and Others SCZ/8/179/2003; 6. Tap Zambia and Percy Lumbusha and 8 Others {Selected Judgment No. 47 of 2007); 7. John Mumba and Others v Zambia Red Cross Society Appeal No.141 of 2005; and 8. China Henan International Cooperation Group Company Limited v G and G Nationwide (Z) Limited (Selected Judgment No. 8 of 2017). Other works referred to: 1. The Court of Appeal Act, 2016; 2. The Arbitration Act, 2000; 3. The Arbitration (Court Proceedings} Rules, Statutory Instrument No. 75 of2001; and 4. The Rules of the Supreme Court of England (White Book). R2 This is a combined Ruling on the Applicant's applications for leave to appeal against the Judgment delivered by this court, on 23rd December 2022, dismissing the application to set aside the Arbitral Award dated 7 th September 2022; and for an order to stay execution of the said Judgment. The applications have been made by way of summonses and supporting affidavits. Ikayi Gertrude Sambondu Mushinge, the Director-External Relations for the Applicant, deposed in the affidavit in support of the application for leave to appeal that a dispute was declared between the parties about December 2021, whereupon arbitration proceedings ensued. She stated that the matter was heard and determined by the Arbitrator and an Arbitration Award accordingly rendered. The deponent averred that the Applicant thereafter instituted proceedings in the High Court to challenge the A:rbitral Award on the ground that the Arbitrator had no jurisdiction to determine the matter. Further, that the application to set aside the Arbitral Award was dismissed and the Applicant now wishes to appeal against the Judgment dismissing the application to set aside award. R3 It was argued in the skeleton arguments filed in support of the application for leave to appeal that the grounds of appeal set out in the Memorandum of Appeal are meritorious and that there is a likelihood that the appeal would succeed. The Applicant then referred to the case of Breza Engineering Limited v GM International Limited and Konkola Copper Mines Plc 1 wherein the court considered the issue of prospects of success of the appeal when dealing with an application for stay. Further, it was argued that the Respondents would not be prejudiced by the appeal because the award given to them is monetary and that they were awarded interest from the date of the award until payment. The affidavit in support of the application to stay execution of the Judgment was similarly sworn by the aforementioned Jkayi Gertrude Samboudu Mushinge and her deposition was that this is a proper case in which the court ought to grant a stay of execution of the Judgment. R4 In the skeleton arguments filed in support of the application for stay of execution, the Applicant referred to the case of Mulenga and Others v Investrust Merchant Bank Limited2 wherein the Supreme Court held that in exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of success of the appeal. Fw·ther, the Applicant submitted that the application for leave to appeal will be rendered nugatory if the stay is not granted. The Respondents filed an affidavit in opposition to the application to stay execution of Judgment wherein they deposed that they had lodged a notice to register the Award, which Award ,vas duly registered on 20th October, 2022. That thereafter, on the 10th of January 2023, they applied to execute and enforce the Arbitral Award by •,Nay of writ of fieri facias. The deponents stated that on 13th January 2023, the Applicant lodged an application to stay execution pending determination of the appeal. It was deposed that the said application is ineffective as the execution was effected by the Sheriff of Zambia and his Bailiffs on RS 17th January, 2023. That in any event, the Judgment in question is not capable of being stayed. The Respondents in their skeleton arguments referred to the case of Zambia Revenue Authority v Post Newspaper Limited3 wherein the Supreme Court stated that only a Judgment or Ruling which a.vards a remedy and which can be enforced by court process can be stayed. It was averred that the Judgment of this court merely determined the issue of jurisdiction of the Arbitral Tribunal. Further, the Respondents argued that execution was already effected and so the application for stay of execution is not tenable. In support of this position, the Respondents placed reliance on the case of Aristogerasimos Vangelatos and Another v Metro Investments Limited4 . The Respondents contended that an order for stay of execution must only be granted on good and convincing grounds and in support of this position, they relied on the case of Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and Others6• R6 In the affidavit in reply, lkayi Gertrude Samboudu Mushinge deposed that after registration of the Award on 20th October 2022, the Applicant filed an application to set aside the Registration Order on 2 nd November 2022. That thereafter, on 10th January 2023, the Respondents filed a writ of fieri facias which writ was executed on 17th January, 2023. It was deposed that the Respondents are proscribed from levying execution on the assets of the Applicant until the application to set aside the Registration Order before Honourable Justice Kawimbe has been determined. This, they argued, was in line with Rule 20 of the Arbitration (Court Proceedings) Rules Statutory Instrument No. 75 of 200 l ·which states thus: (1) .... (2)1/ an application is made to set aside the registration of the award, execution shall not issue until the application has been disposed of. .. " It was thus argued that the execution levied by the Respondents was irregular and that it ought to be set aside as it was done in R7 contravention of the aforesaid Rule 20 of the Arbitration (Court Proceedings) Rules. In arguing this point, the Respondents referred to the holding by the Supreme Court in the case of Tap Zambia and Percy Lumbusha and 8 Others6 to the effect that: "it is clear, therefore, that a writ of execution which is improperly or irregularly issued ought to be set aside at any stage so that, in an appropriate case, liability should attach to the party on whose demand the irregular execution process has been issued". Fw·ther, in response to the Respondents that the Judgment sought to be stayed is not stayable as it did not award any remedy, the Applicant argued that a review of the writ of fieri facias filed before this court shows that the execution was levied pursuant to both the Arbitral Award and the Judgment itself. I have considered the affidavit evidence and the parties' spirited arguments in relation thereto. The issue for determination is w·hether this is a proper case 1n which I should exercise my discretion to grant leave to appeal and to stay execution of the Judgment I rendered on 23 rd December, 200. I will deal ,'v.ith the RS application for leave first, after ·which I shall proceed to determine the application for stay of execution. As rightly argued by Counsel for the Applicant, there is need for a party to be granted leave to appeal before he or she can proceed to appeal to the Court of Appeal. This is in accordance with Section 23 of the Court of Appeal Act which states thus: "An appeal shall not lie• (aJ •••• (bJ .. .. (c) .. .. (d)from an order made in chambers by a judge of the High Court or by a quasi-judicial body or from an interlocutory order or interlocutory judgment ma.de or given by a judge of the High Court or by a quasi,:judicial body, without the leave of that judge or quasi-judicial body or, if that has been refused, without the leave of a judge of the Court ... " R9 Therefore, noting that leave to appeal was not granted to the Applicants in the Judgment in question, l find that this application is properly before me. Having so found, I will now proceed to determine whether this is a case warranting the grant of such leave. Order 59 of the Rules of the Supreme Court of England (White Book) 1999 Edition is instructive on the circumstances that would warrant the grant of leave to appeal. According to this provision, the general test is that the grounds of appeal must have a reasonable prospect of success. I have perused the grounds of appeal exhibited in the affidavit in support of the application for leave to appeal and without delving into the merits of the case, I find that this is a proper case in which I ought to exercise my discretion in favour of granting the said application. Leave to appeal is therefore granted. I v.,j. JJ now turn to consider the second application which is the application for stay of execution. At the core of this application is the question as to whether there is anything to be stayed in the Judgment which is subject of the application for stay. Or put RlO differently, whether there is anything in the Judgment that can be enforced as a Court Order if the application for stay is not granted. As stated by the Supreme Court in the case of John Mumba and Others v Zambia Red Cross Society7 , a court ought to first ask itself this question before proceeding to determine such an application. In the case of Zambia Revenue Authority v Post Newspapers Limited (Supra) the court held that a Judgment or Ruling which does not award a remedy such as money or property that can be obtained through execution, cannot be stayed. The court went on to state that: " ... a Jailed Judgnient or Ruling cannot be stayed because it did not award anything. If there is nothing to execute about such a Judgment or Ruling then there is nothing to stay about it." I have carefully examined the Judgment which the Applicant seeks to stay and my view is that there is nothing therein to stay. In the said Judgment, I merely dismissed the application to set aside the Arbitral Award dated 7th September 2022. The Judgment did not award any remedy which could be subject of a stay and therefore, I find that the said Judgment is not one that can be stayed. Rll Further, it will be noted that after the application to set aside the Arbitral Award was dismissed, the Arbitral Award became enforceable in terms of Section 20 (3) of the Arbitration Act which states as follows: "where the time for making an application to set aside an arbitration award has expired or where the application has been refused by a court, the award shall be deemed to be, and shall be enforceable in the same manner as, an order of the court." Thus, by applying for a stay of the Judgment, the Applicant is essentially seeking to stay the Arbitral Award which Award cannot be subject to a stay by the courts. I am fortified in this position by the holding of the Supreme Court in the case of China Henan International Cooperation Group Company Limited v G and G Nationwide (Z) Limited8 to the effect that a court has no jurisdiction to stay an Arbitral Award. The court in the aforementioned case explained that arbitration is not part of the court system and that the court cannot stay an Award it did not render. R12 For the reasons aforestated, the application for stay of execution is hereby dismissed. Consequently, the interim order to stay execution of Judgment is accordingly discharged. I further wish to state that I have noted that the wTit of fieri facias was filed before this court and that it was issued pursuant to both the Arbitral Award and the Judgment of this. court. As I have already mentioned, the aforesaid Judgment did not award any remedy and so it was erroneous on the part of the Respondents to use it as a basis for their execution. It is also worth noting that Part VII of the Arbitration (Court Proceedings) Rules, which is headed "enforcement of awards" deals with both registration and enforcement of Awards. Rule 16 actually states that: "an application for the registration and enforcement of an award shall be made by ex parte originating summons to the register of the High Court." (Embolden for emphasis). In view of the aforestated, it can be said that what is envisaged by the Arbitration (Court Proceedings) Rules is one process for both registration and enforcement. It follo\\rs therefore that the RB application for the registration and enforcement ought to be made before the same court. I take judicial notice of Cause No. 2022/HP/ARB/017 in which my Learned sister, Honourable Justice Kawimbe, J granted the Respondents an Order for the registration and enforcement of the Award. It will be noted that despite the aforesaid Order being issued by Honourable Justice Kawimbe, J, the Respondents went ahead and issued the process for enforcement of the Award before this court. As earlier mentioned, registration and enforcement is one process and as such it should be done before the same court. In the circumstances, I find that the filing of the writ of fieri facias before this court was irregular and I accordingly et aside the writ of fieri facias. Each party to bear their own co s. Delivered at Lusaka the 2 th day of ebruary • 2023 C. HIGH 0