SA Airlink (PTY) Limited v Zambia Skyways Limited and Ors (APPEAL NO. 060/2020) [2020] ZMCA 185 (23 December 2020)

• IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: APPEAL NQ 060/2020 SA AIRLINK {PTY) LIMITED APPELLANT AND ZAMBIA SKYWAYS LIMITED 1 ST RES PON DENT YOUSUF VALLI ZUMLA LEWIS KUNDA 2ND RESPONDENT 3RD RESPONDENT DEC 2020 SULEMAN AHMED PATEL ~r- RESPONDENT GILLIAN LEE CASILLI - I ~ TH RESPONDENT DIEGO GAN-MARIA CASILLI 6TH RESPONDENT CORAM: Chashi, Lengalenga and Ngulube, JJA On 14th October, 2020 and 23 rd December, 2020. For the Appellant: Mr. M. M. Mundashi, SC with Mr. D. Chakoleka and Mr. Nalishuwa - Messrs Mulenga Mundashi Legal Practitioners For the Respondents: Mr. J. Madaika - Messrs J & M Advocates JUDGMENT LENGALENGA, JA delivered the Judgment of the Court J2 Cases referred to: 1. ZAMBIA REVENUE AUTHORITY v TIGER LTD & ANOR - SCZ JUDGMENT NQ 11 OF 2016 2. WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD (1982) ZR 172 3. VICTOR KONI v THE ATTORNEY GENERAL (1990 - 92) ZR 20 4. KAFUE DISTRICT COUNCIL v CHIPULU (1995 - 97) ZR 190 5. KABWE INTERNATIONAL TRANSPORT LTD & ANOR v MATHEWS NJELEKWE (1998) ZR 68 6. MOHAMED S. ITOWALA v VARIETY BUREAU DE CHANGE (2001) ZR 96 7. MICHAEL MABENGA v SIKOTA WINA & ORS (2003) ZR 110 8. NSANSA SCHOOL INTER EDUCATION TRUST v GLADYS MTONGA MUSAMBA (2010) 1 ZR 457 Legislation referred to: 1. THE ARBITRATION ACT, NQ 19 OF 2000 2. THE CIVIL AVIATION ACT, NQ 5 OF 2016 3. THE HIGH COURT RULES, CHAPTER 27 OF THE LAWS OF ZAMBIA Other works and materials referred to: 1. CHITTY ON CONTRACTS, 26th Edition, Volume 1 at page 177 2. THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL) MODEL LAW 1.0 INTRODUCTION 1.1 This appeal arises from Hon. Mr. Justice Sunday B. Nkonde, SC's judgment dated lih September, 2019 by which he declined to set aside an arbitration award dated 8th November, 2017 and the supplementary award dated 16th January, 2018. J3 2.0 BACKGROUND TO THE APPEAL 2.1 The background to the appeal is that the 6th Respondent, an Italian national, engaged the Appellant, SA Airlink (Pty) Limited, a South African airline operator with a view of entering into a joint venture with the 1st Respondent whose objective was to establish, implement and operate domestic and international flights in and out of Zambia. To that effect, on 16th June, 2014, a Memorandum of Understanding (hereinafter referred to as "MOU") was entered into by the Appellant, the 1st Respondent, Zambia Skyways Limited, the 5th and 6th Respondents. The MOU among other things provided under Clause 7.2 that within 180 days of signing the MOU, they would enter into detailed agreements that would govern the relations between them. 2.2 After the 180 days had lapsed, the MOU expired and the Appellant and the Respondents with the exception of the 1st Respondent company entered into a Shareholders Agreement on 29th October, 2014, which increased the share capital of the 1st Respondent company. By the said agreement, the Appellant company became a majority shareholder of 49% shares in the company, with a further '- J4 33% shares through its nominee, Gillian Lee Cassili, the 5th Respondent. To further cement its hold in the 1st Respondent company, the Appellant and the 5th and 6th Respondents entered into a voting agreement as the 5th Respondent is a Zambian. The remaining 18% shares were held by the 2nd , 3rd and 4th Respondents. 2.3 On 28th November, 2014, the 1st Respondent company obtained approval of the shareholding structure from the Department of Civil Aviation. Then on 13th February, 2015, the 1st Respondent company passed a resolution increasing the share capital and further allotted shares to the 5th Respondent and the Appellant company, and appointed new directors. 2.4 In July, 2015, Zambian inspectors travelled to South Africa at the Appellant company's expense, to inspect the aircraft to be used. The Appellant also made several payments towards obtaining an air operators certificate, registration and allotment of shares through transfers to a company owned by the 2nd Respondent. Later, following a disagreement between the Appellant and the 2nd Respondent with regard to the lease of a hangar, the Appellant company decided to withdraw from the joint venture and further JS refused to pay the outstanding US$300 000.00 on the basis that the Shareholders' Agreement was not effective, even despite the fact that the Appellant company had been allotted shares. 2.5 Thereafter, the Respondents invoked Clause 23 of the Shareholders Agreement and commenced arbitration proceedings claiming, inter a/ia: for specific performance of imposed on the (1) An order the Appellant by the obligations Shareholders' Agreement, damages for delayed performance and in the alternative, damages for breach of the Agreement and all consequential losses; (2) Special damages of US$1 618 573.98, being the Company's loss of business resulting from the breach; (3) Damages in the sum of US$350 000.00, being the aggregate of legal, consultancy, and technical advisory costs incurred as a result of the proposed joint venture; (4) Loss of profits for the period May, 2015 to a date to be determined by the arbitrator; and ( 5) Interest. J6 2.6 In the Order for Directions, it was agreed among other things, that strict rules of evidence would apply in the arbitral proceedings. At the hearing, only the 2nd , 3rd and 6th Respondents and one Captain Godfrey Mulundika testified. After hearing the parties and considering the evidence, the sole arbitrator found that the Shareholders' Agreement was modified by the Voting Agreement and was contrary to public policy as it watered down Clause 3 of the MOU that Zambian majority shareholding was to be maintained in terms of the Civil Aviation Act, 2016. 2. 7 The arbitrator further found that the Appellant sought to avoid liability for any alleged breaches on the basis of its own actions and/or omissions by invoking the ex turpi causa rule. He noted that the 5th and 6th Respondents (the Cassilis) were aware of the illegality as they entered the Voting Agreement. Therefore, he found the 1st Respondent company, 2nd , 3rd and 4th Respondents to be innocent and not privy to the shareholding deception. 2.8 Finally, the sole arbitrator awarded the 1st to 4th Respondents the sum of US$432 000.00 as expectation damages; the 1st Respondent company was also awarded reliance damages in the sum of J7 US$40 000.00 to be recovered from the Appellant and to be paid to the 3rd Respondent and Captain Godfrey Mulundika for the consultancy services they undertook on behalf of the 1st Respondent; a further sum of US$175 000.00 was awarded to the 1st Respondent as reliance damages and interest. Costs of the arbitration were to be shared equally while each respective party (side) would pay its respective legal costs and expenses. The relief for specific performance was however, refused. 3.0 DECISION BY THE COURT BELOW 3.1 Being dissatisfied with the arbitral awards the Appellant moved the High Court in accordance with section 17(2) of the Arbitration Act, NQ 19 of 2000, to set aside the arbitration award dated 8th November, 2018 and the supplementary award dated 16th January, 2019. The grounds upon which the Court below was moved are that: (1) The award rendered by the arbitral tribunal on 8th November, 2017 be set aside in its entirety on the grounds that the award deals with a dispute not contemplated by, or not falling within the terms of the submission to arbitration, and thus contains decisions on matters beyond the scope of the submission to arbitration thereof; J8 (2) The award rendered by the arbitral tribunal on 8th November, 2017 and 16th January, 2018 be set aside for being contrary to public policy to the tribunal awarded extent expectation damages outside the scope of the submission to arbitration; the arbitral that (3) The award rendered by the arbitral tribunal on 8th November, 2017 be set aside for being contrary to public policy to the extent that the arbitral tribunal the 4th awarded expectation damages Respondent notwithstanding the fact that the said Respondent did not prosecute his claim, if at all; to (4) The award rendered by the arbitral tribunal on 8th November, 2017 be set aside for being contrary to public policy to the extent that the arbitral tribunal awarded reliance damages outside the scope of the submission to arbitration; (5) The award rendered by the arbitral tribunal on 8th November, 2017 be set aside for being contrary to public policy to the extent that the arbitral tribunal proceeded to award reliance damages to the Respondent in the absence of any evidence to support a claim for reliance damages; (6) The award rendered by the arbitral tribunal on 8th November, 2017 be set aside for being contrary to public policy to the extent that the arbitral tribunal awarded reliance damages in respect of a non party to the arbitration proceedings; J9 (7) The award rendered by the arbitral tribunal on 8th November, 2017 be set aside for being contrary to public policy to the extent that the arbitral tribunal notwithstanding awarded express provision in the Shareholders Agreement to the effect that the parties were to bear their own costs for negotiation and implementation of the proposed joint venture; damages reliance (8) The arbitration process including the analysis evidence and the award was not in accordance with the arbitration procedure as agreed by the parties and as set out in the Orders for Directions; (9) To the extent that the arbitration process was not in accordance with the arbitration procedure as agreed by the parties, the arbitration award is contrary to public policy; (10) The Shareholders Agreement as read with the Voting Agreement was contrary to public policy and the dispute thereof was therefore not capable of determination by arbitration; (11) In the event that the Court is of the view that the dispute is capable of determination by arbitration, the matter be referred back to arbitration for determination of the case submitted to the arbitral tribunal by the Applicant and the Respondents; (12) The Court may grant the Applicant any other relief the Court deems fit or necessary; and J10 (13) The Applicant be granted costs of and incidental to this action. 3.2 The Applicant and Respondents' submissions were received and considered by the Court below. 3.3 The learned Judge, in arriving at his decision, cautioned himself that he was not sitting as an appellate court on the arbitral tribunal's award but that his role was limited to determining whether there were shown facts that warranted the Respondents to invoke section 17 of the Arbitration Act to have the final award set aside based on the grounds set out under section 17(2)(i) to (v) of the Act. 3.4 In dealing with ground one, the learned Judge identified the matters alleged to be beyond the scope of the submission as: (a) When the tribunal proceeded to award expectation damages in the sum of US$432 000.00 to the 2nd , 3rd and 4th Respondents when the said damages were not claimed or pleaded by the said Respondents in their pleadings; (b) When the tribunal ruled that the Appellant was in breach of the Wet Lease Agreement which agreement was of neither determination in the arbitral proceedings nor the subject of an arbitration agreement between the Appellant and the Respondents; and subject the Jll (c} When the tribunal ordered that the Appellant should pay the sum of US$20 000.00 as reliance damages to Captain Mulundika who was neither a party to the arbitration proceedings nor the subject of an arbitration agreement between him and the Appellant. 3.5 The learned Judge extensively referred to the Applicant's affidavit in support, in particular, paragraphs 37 to 57.1. He found that the arbitral tribunal pointed out the dispute and the parties' contentions in clauses 1.3 and 3 of the arbitral award and outlined the Respondents' contention on the agreement that the Appellant should be made to specifically perform and/or pay damages. He noted that after the tribunal declined to order specific performance, it awarded damages for breach of agreement instead. In this regard the Court below found that the arbitral tribunal did in fact refer to the pleadings, the contested evidence and took into account the ex turpi causa rule before awarding the sum of US432 000.00 in damages to the founder members, namely the 2nd , 3rd and 4th Respondents. The same to be shared in proportion of their shareholding in the joint venture so as to serve the interests of justice. J12 3.6 The Court below further found that even though the award was referred to as expectation damages in the award, it was in fact compensatory in nature. That therefore, the arbitral tribunal did not deal with a dispute not contemplated by or falling outside the terms of the submission to arbitration, and did not contain decisions on matters beyond the scope of the submission to arbitration by awarding expectation damages to the 2nd , 3rd and 4th Respondents in the total sum of US$432 000.00. 3.7 With regard to the second limb of ground one of the arbitral tribunal going beyond the scope of the submission to arbitration when it ruled that the Appellant was in breach of the Wet Lease Agreement, the Court below found that the arbitral tribunal, in paragraph 6.12 of the final award was merely tabulating the various breaches on the Appellant's part, and did not award any of the Respondents any relief for the breach of the Wet Lease Agreement. The Court below was of the view that the Wet Lease Agreement was mentioned in obiter dicta/ and that it cannot be a basis for setting aside the arbitral tribunal's final award. J13 3.8 With respect to the third and last limb of ground one relating to the award of US$20 000.00 as reliance damages to Captain Godfrey Mulundika who was neither a party to the proceedings nor the subject of the arbitration agreement between the Appellant and himself, the Court below found that the Appellant had misconstrued the arbitral award in that respect. It referred to paragraphs 6.15 and 7.2 of the final award and found that the award of US$20 000.00 was not made to Captain Mulundika per se but to the 1st Respondent who was a party to the arbitral proceedings. It opined that the 1st Respondent, as a party to the proceedings was entitled to recover the sum of US$40 000.00 from the Appellant as reliance damages to be paid over to Captain Mulundika and the 3rd Respondent. The same was for the expenditure incurred, loss or obligations in reasonable reliance upon the Appellant performing its side of the transaction. 3.9 Ground two was to a large extent a repetition of the arguments made in ground one in relation to expectation damages awarded to the 2nd , 3rd and 4th Respondents except that the contention was to set aside the award on grounds of public policy. The Court below having J14 determined in ground one that expectation damages awarded to the 2nd , 3rd and 4th Respondents were not outside the scope of the submission to arbitration, was not persuaded that the award could be set aside for being contrary to public policy as the said damages were within the scope of the submission to arbitration. 3.10 With regard to ground three, the Court below was of the view that the essence of the Appellant's argument was that the 4th Respondent neither pleaded expectation damages nor testified during the arbitral proceedings and, therefore, should not have been awarded the said damages. The Respondents' argument was that the 4th Respondent was one of the Respondents who pleaded loss of business and profits in the statement of case, and that, in a joint claim, claimants are not all bound to testify personally. The Court below noted that in ground one, it found that expectation damages were pleaded by all the Respondents and that, therefore, the tribunal awarded damages and guided on how the amount was to be apportioned to the 2nd , 3rd and 4th Respondents. It opined that, the fact that the 4th Respondent did not personally testify could not have been the reason to disentitle him of the expectation damages. The Court below found that the JlS arbitral tribunal had adequate basis for awarding the 4th Respondent as one of the founder members, the expectation damages. 3.11 In dealing with ground four, the Court below adopted its findings and determination in ground one in relation to the award of US$20 000.00 to Captain Godfrey Mulundika and US$175 000.00 to the 1st Respondent. Therefore, it found that the reliance damages awarded were not outside the scope of the submission to arbitration. 3.12 In ground five, the Appellant contended that reliance damages were awarded in the absence of any documentary or independent evidence to support a claim for reliance damages, which the arbitral tribunal acknowledged in paragraph 16.18 of the final award. The Court below, however, accepted the arbitral tribunal's view in paragraph 16.18 of the award, that thrown away or wasted costs in legal, consultancy and technical advice are recoverable and hardly needs any debate. It further accepted that the arbitral tribunal made an intelligent guess in the circumstances to award half of the amount, being US$175 000.00 and that it cannot be a basis for setting aside the award for being contrary to public policy. The Court below therefore found that the arbitral tribunal's reasoning and conclusion J16 in making the award in the circumstances, neither went beyond mere faultiness or incorrectness nor did it constitute a palatable inequity in terms of the test adopted in ZAMBIA REVENUE AUTHORITY v TIGER LTD &ANOR1 • 3.13 With respect to ground six, the Court below found no basis for the Appellant's contention that damages in the sum of US$432 000.00 ought to exclude amounts due to 3rd parties, being Eastern Safaris Limited and Amagrain, in view of the arbitral tribunal's reasoning in arriving at the total damages. It referred to paragraph 4 of the supplementary award delivered on 16th January, 2018 in which the arbitral tribunal stated that in dealing with the unsatisfactory evidence, it was engaged in doing the best in order to arrive at a figure that would do justice. The Court below, therefore, found that the arbitral tribunal in arriving at the damages, neither awarded damages at its own motion nor was it supposed to deduct amounts for Eastern Safaris Limited and Amagrain. 3.14 In ground seven, the Appellant's contention is that in awarding reliance damages, the arbitral tribunal acted outside Clause 28 of the Shareholders Agreement which stated that each party was to bear J17 and pay its own costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of the agreement. The Respondents in opposing this ground argued that the Appellant could not derive a benefit from its own default under an agreement the Appellant had breached. 3.15 The Court below opined that a true interpretation of Clause 28 of the Shareholders Agreement is that, the costs and expenses referred to, are those related to negotiation, drafting and implementation of the Agreement. It was noted that since the joint venture did not materialise, the tribunal found that there was a breach by the Appellant. Consequently, the costs and expenses mentioned in Clause 28 did not apply. 3.16 Grounds eight and nine were considered together as they relate to the arbitration process, the analysis of evidence and the contention of the award not being in accordance with the arbitration procedure as agreed by the parties and as set out in the Order for Directions. The Court below rejected the Respondents' argument that by referring to strict rules of evidence, the Appellant raised the standard of proof from a balance of probabilities. The Court, however, noted J18 that upon its close examination of the Appellant's argument, it was of the view that the arbitral tribunal substantially complied with the need to adhere to strict ru les of evidence in awarding reliance and expectation damages as there were figures pleaded in the statement of case, upon which the arbitral tribunal evaluated and determined the quantum after hearing the Respondents' witnesses. 3.17 On the issue of the arbitral tribunal failing to make a reasoned award on all issues raised by the parties, the Court below found that there was no such failure as the tribunal had pointed out that the dispute in paragraph 1.3 of the final award was exactly the same as the one submitted for arbitration. 3.18 In ground ten, it is contended that the Shareholders Agreement and the Voting Agreement were contrary to public policy and that therefore, the dispute was not capable of determination by arbitration. The Court accepted the Respondents' submission that the ex turpi causa rule applied against the Appellant by preventing it from using its own illegalities to prevent the innocent Respondents from being awarded what was due to them as damages for breach of contract. That was because the arbitral tribunal had found that the J19 founder members and the 1st Respondent, as a metaphysical and juristic entity were innocent and that they were awarded damages in order to prevent them from suffering injustice. 3.19 The Court below further found that upon its perusal of paragraph 16.11 of the final award, it was not persuaded to accept that the arbitral tribunal found the Shareholders Agreement to have been contrary to public policy. Consequently, the Court below found that the dispute was capable of being determined by way of arbitration, and that no conflict with public policy existed. 3.20 Finally, the Court below dismissed all ten grounds upon which the Appellant sought to have the arbitral tribunal's awards of 8th November, 2017 and 16th January, 2018 set aside for lacking merit. It further awarded costs to the Respondents, and the same to be taxed in default of agreement. 4.0 GROUNDS OF APPEAL 4.1 The Appellant being aggrieved by Hon. Justice Sunday B. Nkonde, SC's decision, appealed to this Court and advanced the following grounds of appeal: 1. The Court below erred in law and fact when it held that the expectation damages awarded by the 2. 3. 4. J20 , 3rd and 4th Respondents arbitral tribunal to the 2nd had been pleaded despite the evidence on record clearly showing that no such damages had been pleaded by the said Respondents; The Court below erred in law and fact when it held, in the absence of any evidence whatsoever, that the expectation damages granted by the , 3rd and 4th Respondents had tribunal to the 2nd been granted under further and other relief; that the arbitral The Court below erred in law and fact when it found and held tribunal substantially complied with the requirement for the rules of evidence to be strictly complied with, which finding and holding was contrary to the orders for directions which required a strict compliance with the rules of evidence, as opposed to substantial compliance; The Court below erred in law and fact when it held that the arbitral tribunal did not go beyond the scope of the submission when it found that the Appellant was in breach of the Wet Lease Agreement, which finding is against the position of the law to the effect that an arbitral tribunal's jurisdiction is circumscribed by both the pleadings and the arbitration agreement which is the subject of the arbitral pleadings; 5. The Court below erred in law and fact when it held that the arbitral tribunal did not award any damages for breach of the Wet Lease Agreement, 6. 7. J21 notwithstanding clear evidence on the record showing that the arbitral tribunal actually granted damages for what it termed as a series of breaches of contract, which alleged series of breaches of contract included the alleged breach of the Wet Lease Agreement; the arbitral The Court below erred in law and fact when it held tribunal rightly awarded that the 4th Respondent expectation damages to despite the fact that the said Respondent did not prosecute his case, which position was contrary to the order for directions to the effect that the rules of evidence were to be strictly complied with; tribunal The Court below erred in law and fact when it completely neglected to make a determination on the Appellant's contention to the effect that the for in considering arbitral reliance damages, did not discount the claims which were being made by non-parties to the arbitration, notwithstanding the fact that the Appellant adduced sufficient evidence to show that the claim for reliance damages in the sum of US$350 000.00 comprised claims by non-parties to the arbitration; the claim 8. The Court below erred in law and fact when it held that the arbitral tribunal was right to award reliance damages to the Respondents in the absence of any evidence whatsoever to prove such damages; J22 9. The Court below erred in law and fact when it held that the costs in Clause 28 of the Shareholders Agreement did not apply because the joint venture envisaged never materialised, which position was contrary to the express provisions of Clause 28 of the Shareholders Agreement, and consequently offending the provisions of the Arbitration Act, NQ 19 of 2000; 10. The Court below erred in law and fact when it found and held that the arbitral tribunal did not fail to provide a reasoned award on issues in contention, which holding was not supported by the evidence on record which clearly showed that the arbitral tribunal did not adjudicate upon all the issues in contention between the parties; and 11. The Court below erred in law and fact when it held that the arbitral tribunal had jurisdiction to award damages notwithstanding the fact that enforcement of the Shareholders Agreement had been found to be contrary to public policy. 4.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 In the filed heads of argument in support of ground one, it is contended on behalf of the Appellant that none of the 2nd , 3rd and 4th Respondents pleaded expectation damages for a twelve (12) months period or adduced any evidence supporting a claim for such damages. It was submitted that the only claim that was made by the J23 said Respondents was for reliance damages in respect of costs purportedly incurred by them. It was contended that paragraph 51 of the Statement of Case makes reference to the 1st Respondent making a net profit of US$202 321.75 and does not state anywhere that the 2nd , 3rd and 4th Respondents are seeking expectation damages for a twelve (12) month period. 4.2 It was further contended that the 2nd , 3rd and 4th Respondents conceded that they did not specifically plead expectation and reliance damage but that they were awarded the same under the claim of "further and other relief as the tribunal may deem fit" as set out in the Statement of Case. It was submitted that even when the witness statements are considered, it can be seen that the 2nd Respondent only claimed for expenses incurred in furtherance of the aborted joint venture while the 3rd Respondent only claimed for consultancy fees. 4.3 In support of ground two, it was argued on behalf of the Appellant that the 2nd , 3rd and 4th Respondents had admitted in their affidavit in opposition that they had not specifically pleaded expectation damages, but that they were granted under further and other relief. J24 Appellant's Counsel further submitted that the Respondents relied on their affidavit in opposition, skeleton arguments and list of authorities before the Court below and at no time did they abandon their assertion that they were awarded expectation damages under "further and other." This Court was urged to reverse the finding by the Court below on the basis that it is perverse in terms of the guidance given by the Supreme Court in the case of WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT LTD2 • 4.4 In ground three, the Appellant faults the Court below for finding that the arbitral tribunal substantially complied with the orders for direction when the said orders required strict compliance with the rules of evidence as opposed to substantial compliance. Appellant's Counsel submitted that the Appellant provided evidence before the Court below to show that the tribunal found as a fact that the Respondents had not provided proof in respect of certain claims but still made substantial awards in their favour. This Court was, therefore, urged to reverse the decision by the Court below. 4.5 In support of ground four which faults the Court below for holding that the arbitral tribunal did not go beyond the scope of the J25 submission to arbitration when it found that the Appellant was in breach of the Wet Lease Agreement, Appellant's Counsel submitted that the arbitral tribunal's jurisdiction is circumscribed by both pleadings and the arbitration agreement. It is contended that the Court below did not address itself to the fact that the Wet Lease Agreement contained no arbitration clause and that as such it could not be pronounced upon in arbitral proceedings. It was therefore submitted that the Court below ought to have found that the arbitral tribunal exceeded its jurisdiction as the issue of the Wet Lease Agreement was never pleaded and as such, was not a subject of the arbitration. 4.6 It contended that even though the Court below found that the issue of the Wet Lease Agreement was not pleaded but merely referred to as obiter dicta, the arbitral tribunal had no jurisdiction to comment on an agreement that was neither a subject of the dispute between the parties nor agreements which did not form part of the scope of the submission to arbitration. In the circumstances, this Court was urged to find that the arbitral tribunal exceeded the scope to arbitration and J26 to set aside the arbitral awards in accordance with section 17 of the Arbitration Act. 4.7 In ground five, the Court below is faulted for holding that the arbitral tribunal did not award damages for breach of the Wet Lease Agreement when there is evidence on record to show that it awarded damages for what it termed a series of breaches of contract which included alleged breach of the Wet Lease Agreement. It is contended that the said holding was in conflict with the clear wording of the final award at paragraphs 6.12 and 6.14 which awarded damages for the alleged breach of the Wet Lease Agreement, among other breaches. 4.8 It is further contended that the finding by the Court below was a misdirection and is perverse and should be reversed and set aside since the arbitral tribunal awarded damages for collective breaches as opposed to separate awards for damages. 4.9 Ground six challenges the finding by the Court below that the 4th Respondent was rightly awarded expectation damages despite the fact that he did not prosecute his case contrary to the order for directions that required strict compliance with the rules of evidence. Appellant's Counsel argued that the Court below by taking the view that the fact that the 4th Respondent did not personally testify, could not be a reason to disentitle him to expectation damages, it, in effect, reversed the burden of proof. It was further argued that the 4th Respondent neither pleaded nor adduced evidence to stake his claim to such damages, and that on the authority of the WILSON MASAUSO ZULU case it has never been the legal position that parties can get relief merely on the basis of pleadings without adducing evidence. 4.10 Ground seven alleges that the Court below completely neglected to make a determination that the arbitral tribunal in considering the Respondents' claim for reliance damages did not discount claims for non-parties to the arbitration. The Appellant challenged the US$350 000.00 award as reliance damages to the 1st Respondent as it comprised amounts in respect of non-parties such as Eastern Safaris and Amagrain Limited. It was submitted that by the Court below neglecting to make such determination, it failed to discount the sum of US$120 000.00 awarded to Eastern Safaris for the hangar. It is contended that even though the arbitral tribunal made J28 a finding of fact that some of the claims were made on behalf of third parties which are incompetent in the arbitral proceedings, it still made the award. It was, therefore, submitted on the authority of the decision in the case of ZAMBIA REVENUE AUTHORITY v TIGER LTD & ANOR, that the award of US$350 000.00 as reliance damages goes beyond mere faultiness or incorrectness, but constitutes an inequity that is far-reaching and outrageous in its defiance of logic or acceptable standards that a fair minded person would consider that the concept of justice would be intolerably hurt by the award if it is allowed to stand. 4.11 Ground eight attacks the decision by the Court below that the arbitral tribunal was right to award reliance damages to the Respondents in the absence of any evidence to prove such damages. It is contended that reliance damages, being special damages have to be proved by the Respondents adducing evidence, but that, as noted by the tribunal at paragraph 6.18 of the award, no such evidence was adduced. That however, the arbitral tribunal awarded the 1st Respondent the sum of US$175 000.00 based on an "intelligent guess." It was, argued, that, therefore, the Court erred when it J29 held that the making of an intelligent guess cannot be the basis for setting aside of the arbitral award for being contrary to public policy. This Court was urged to set aside the intelligent guess award as it was not supported by evidence as held in the case VICTOR KONI v THE ATTORNEY GENERAL3 , and also as it was not in compliance with the strict rules of evidence. It was further argued that in the cases of KAFUE DISTRICT COUNCIL v CHIPULU4 and KABWE INTERNATIONAL TRANSPORT LTD & ANOR v MATHEWS NJELEKWE5 , in instances where courts had to make intelligent guesses, the awards have been nominal and reasonable. 4.12 Ground nine challenges the holding by the Court below that the costs in Clause 28 of the Shareholders Agreement did not apply because the joint venture envisaged never materialised. It is contended that this position was contrary to the express provisions of Clause 28 and thus offended the provisions of the Arbitration Act. It was argued that by so holding, the Court below engaged in active interpretation of Clause 28 of the Shareholders Agreement which is in excess of the complimentary role of the courts in arbitration proceedings. It was further argued that as the reason for not applying Clause 28 does not J30 appear anywhere in the final arbitral award, it means that the Court below came up with the said reason on its own volition, thereby exceeding its complimentary role. 4.13 It is contended firstly that Clause 28 of the Shareholders Agreement does not state that it would only be applicable when the joint venture materialised; and secondly, that the reason advanced by the Court below for the non-application of Clause 28 was not canvassed by the arbitral tribunal. 4.14 Ground ten alleges that the Court below erred in finding that the arbitral tribunal did not fail to provide a reasoned award on issues in contention, which finding was not supported by evidence on record which clearly indicated that the arbitral tribunal did not adjudicate upon all the issues in contention between the parties. It was submitted that the issue is not whether the tribunal set out the issues in dispute but whether the decision rendered was reasoned with respect to all the issues that were in contention between the parties. To emphasize the point, it was submitted that the tribunal did not explain whether the Appellant's withdrawal from the joint venture was considered a breach of contract; and why it considered the J31 Appellant's withdrawal from the joint venture to be wrongful. It was further submitted that the tribunal did not adjudicate upon the issue of whether the Appellant breached Clause 28 of the Shareholders Agreement or not. Consequently, it was submitted that in terms of section 17(2)(a)(iv) of the Arbitration Act, the arbitral tribunal did not render a reasoned award and that the said award should be set aside on the basis that the procedure agreed upon by the parties was not adhered to. 4.15 Ground eleven challenges the decision by the Court below when it held that the arbitral tribunal had jurisdiction to award damages despite the fact that enforcement of the Shareholders Agreement had been found to be contrary to public policy. It is contended by Appellant's Counsel that the approach taken by the Court below in ascertaining whether the Respondents were innocent parties in light of the ex turpi causa rule was erroneous. It is further contended that the main issue for consideration by the Court below ought to have been whether after having found the enforcement of the Shareholders Agreement to be contrary to public policy, the arbitral tribunal had jurisdiction to proceed and make awards for damages in J32 favour of the Respondents in view of section 6(2) of the Arbitration Act. 4.16 This Court was urged to reverse the decision by the Court below and to find that the tribunal had no jurisdiction to determine the dispute a~er having found that enforcement of the Shareholders Agreement was contrary to public policy. 5.0 RESPONDENTS' ARGUMENTS IN OPPOSITION TO THE APPEAL 5.1 In the filed heads of arguments in opposition to the Appellant's grounds of appeal, Respondents' Counsel by way of introduction, submitted that in addressing the appeal, this Court's role is not whether the Court below erred in agreeing with the arbitral tribunal's awards, but whether upon perusal of the arbitral proceedings, orders for directions, pleadings, witness statements and the two awards, the arbitrator breached any of the provisions of section 17 of the Arbitration Act. This Court was urged to take note that the real issue for determination in this appeal is the arbitral award and that, therefore, it should not sit in an appellate jurisdiction with regard to the arbitral awards, that is, on the merits or demerits thereof. J33 5.2 In response to ground one, it was submitted on behalf of the Respondents that Appellant's Counsel argued three separate issues. The first being that the holding by the Court below that expectation damages were pleaded in the arbitration is perverse. The second, that the Respondents conceded to not having pleaded expectation damages, whilst the third was that witness statements do not contain any claim for such damages. 5.3 The first and third issues were dealt with together. Respondents' Counsel submitted that the arguments and approach taken by the Appellant are a misdirection and indicate that words were put in the arbitrator's mouth and mind. It was argued that expectation damages were awarded to the 2nd , 3rd and 4th Respondents because the Appellant had entered into a Voting Agreement with the 5th and 6th Respondents which would have given the Appellant more voting power than is permitted by the Civil Aviation Act, NQ 5 of 2016. It was submitted that the arbitrator found that this collusion by the Appellant, the 5th and 6th Respondents to try and circumvent the law, could not benefit them on account of the ex turpi causa rule, hence the arbitrator declined to grant an award for specific performance but J34 instead granted the 1st Respondent an award as pleaded in the Statement of Case. 5.4 It was submitted that it can be seen from paragraph 6.16 of the award that the arbitrator spoke to the claim by the 1st Respondent and its shareholders, the same being the 2nd to 6th Respondents, for money that they had expected to make pursuant to the Shareholders Agreement if the joint venture had been prematurely terminated. It was, therefore, submitted that the award of 18% (being the shareholding of the 2nd , 3rd and 4th Respondents) of the total claimed sum of US$ 2 400 000.00 was restricted to the 2nd , 3rd and 4th Respondents, being innocent parties that were not privy to the Voting Agreement. It was further submitted that the award came to US$ 432 000.00 representing expectation damages that were clearly pleaded in paragraph 57.2.3 of the Statement of Case. 5.5 Respondents' Counsel dismissed the Appellant's argument that the 2nd , 3rd and 4th Respondents neither pleaded nor led evidence for the expectation damages, as being misleading. It was submitted that the term 'reliance damages' is merely a term or phrase used by the arbitrator for the claim for expected profits. It is thus contended that J36 submitted that the award referred to the Wet Lease Agreement in passing when the arbitrator noted that the Appellant sought to rely on its own defaults to escape liability against the Respondents. He further submitted that the arbitrator was therefore neither making any substantive pronouncement nor awarding any relief in relation to the breaches but merely tabulating the Appellant's various breaches. 5.9 He further argued that the arbitrator's language and train of thought in paragraph 6.12 of the final award is clear and concise, and that any attempt by the Appellant to connect what was stated in that paragraph to any other portion of the award, and allegation that the arbitrator awarded reliefs in relation to the Wet Lease Agreement is a misdirection. It was further argued that the arbitrator took time to analyze and determine the amount due under each claim and that there is nowhere in the final or supplementary awards where any amount was apportioned for breach of the Wet Lease Agreement. 5.10 In response to ground six, it was submitted that the Appellant has totally misconstrued the law of evidence by contending that all claimants are required to testify in order to be entitled to damages. J37 It was argued that in matters of class or joint actions that are taken out by a number of claimants not all the claimants need to testify. 5.11 Respondents' Counsel dealt with grounds seven and eight together. He submitted that ground seven amounts to an invitation to this Court to determine how the arbitral tribunal evaluated the evidence before it and arrived at the quantum of damages awarded as reliance damages. It was submitted that this would amount to an appeal on the merits which must fail on account of its breach of the strict provisions of section 17 of the Arbitration Act which does not permit an appeal against an arbitral award on the merits. 5.12 With regard to the Appellant's reliance on the case of ZAMBIA REVENUE AUTHORITY v TIGER LIMITED & ANOR, it is the Respondents' contention that it was quoted out of context because the issue in that case was that an arbitrator found a third party liable in arbitration proceedings to which he was not a party. It was submitted that, therefore, in that case, the excess of jurisdiction was on the face of the record and that the Court did not delve into the merits or demerits of the decision as alleged herein by the Appellant. J34 instead granted the 1st Respondent an award as pleaded in the Statement of Case. 5.4 It was submitted that it can be seen from paragraph 6.16 of the award that the arbitrator spoke to the claim by the 1st Respondent and its shareholders, the same being the 2nd to 6th Respondents, for money that they had expected to make pursuant to the Shareholders Agreement if the joint venture had been prematurely terminated. It was, therefore, submitted that the award of 18% (being the shareholding of the 2nd , 3rd and 4th Respondents) of the total claimed sum of US$ 2 400 000.00 was restricted to the 2nd , 3rd and 4th Respondents, being innocent parties that were not privy to the Voting Agreement. It was further submitted that the award came to US$ 432 000.00 representing expectation damages that were clearly pleaded in paragraph 57.2.3 of the Statement of Case. 5.5 Respondents' Counsel dismissed the Appellant's argument that the 2nd , 3rd and 4th Respondents neither pleaded nor led evidence for the expectation damages, as being misleading. It was submitted that the term 'reliance damages' is merely a term or phrase used by the arbitrator for the claim for expected profits. It is thus contended that J35 the arbitrator did not introduce a new claim or award outside what was pleaded. It was submitted that, therefore, the Court below did not make any perverse finding of fact as alleged by the Appellant. 5.6 With regard to the alleged confessions in the Respondents' affidavit, it was submitted that the Court below correctly held that the said issue was quoted out of context because the Appellant was not reading the flow of the depositions but was reading words into the text that were not there and imputing a meaning that is not there. 5.7 In response to ground two, it was submitted that ground two was a repetition of ground one that the Respondents had conceded in their affidavit that expectation damages were granted under further and other relief. It was emphasized that the issue of whether expectation damages were pleaded or not under the said head, is irrelevant because the said damages were expressly pleaded in the statement of case as damages for loss of profits for which only the innocent parties, being the 2nd , 3rd and 4th Respondents were awarded damages. 5.8 Respondent's Counsel dealt with grounds four and five together as they both address the issue of the Wet Lease Agreement. He J36 submitted that the award referred to the Wet Lease Agreement in passing when the arbitrator noted that the Appellant sought to rely on its own defaults to escape liability against the Respondents. He further submitted that the arbitrator was therefore neither making any substantive pronouncement nor awarding any relief in relation to the breaches but merely tabulating the Appellant's various breaches. 5.9 He further argued that the arbitrator's language and train of thought in paragraph 6.12 of the final award is clear and concise, and that any attempt by the Appellant to connect what was stated in that paragraph to any other portion of the award, and allegation that the arbitrator awarded reliefs in relation to the Wet Lease Agreement is a misdirection. It was further argued that the arbitrator took time to analyze and determine the amount due under each claim and that there is nowhere in the final or supplementary awards where any amount was apportioned for breach of the Wet Lease Agreement. 5.10 In response to ground six, it was submitted that the Appellant has totally misconstrued the law of evidence by contending that all claimants are required to testify in order to be entitled to damages. J37 It was argued that in matters of class or joint actions that are taken out by a number of claimants not all the claimants need to testify. 5.11 Respondents' Counsel dealt with grounds seven and eight together. He submitted that ground seven amounts to an invitation to this Court to determine how the arbitral tribunal evaluated the evidence before it and arrived at the quantum of damages awarded as reliance damages. It was submitted that this would amount to an appeal on the merits which must fail on account of its breach of the strict provisions of section 17 of the Arbitration Act which does not permit an appeal against an arbitral award on the merits. 5.12 With regard to the Appellant's reliance on the case of ZAMBIA REVENUE AUTHORITY v TIGER LIMITED & ANOR, it is the Respondents' contention that it was quoted out of context because the issue in that case was that an arbitrator found a third party liable in arbitration proceedings to which he was not a party. It was submitted that, therefore, in that case, the excess of jurisdiction was on the face of the record and that the Court did not delve into the merits or demerits of the decision as alleged herein by the Appellant. J38 It was submitted that ground seven is, therefore, misconceived and in breach of statute, and must fail. 5.13 With regard to ground eight, Respondents' Counsel submitted that the Appellant is challenging the quantum awarded by arguing that the normal measure of damages where intelligent guesses are made by a court or tribunal, is nominal by reference to the cases of KAFUE DISTRICT COUNCIL v CHIPULU and KABWE INTERNATIONAL TRANSPORT LTD & ANOR v MATHEWS NJELEKWE. He argued that the said cases were cited out of context, as firstly no explanation was given to explain how the facts and decision in those cases apply to the present case; and secondly that this shows that the actual issue being argued goes to the merit. It was further submitted that in other words, the Appellant's argument that the award is excessive amounts to an appeal and that ground eight directly contradicts ground three. 5.14 In opposing ground nine, it was submitted on behalf of the Respondents that the Appellant is seeking to derive a benefit from the same agreement it breached by inviting this Court to overturn the decision by the arbitrator and the Court below on the basis that it did J39 not honour the agreement which led to arbitration proceedings. It is the Respondents' contention through Counsel that this ground cannot succeed because in terms of the ex turpi causa rule, a party cannot derive a benefit from its own default. It was argued that even if the Appellant was correct on the import of Clause 28 of the Shareholders Agreement, the Appellant cannot succeed in the relief it is claiming hence the decision by the Court below to uphold the award by the arbitrator. 5.15 It was further argued that Clause 28 refers to legal costs and expenses incidental to the negotiation, drafting, preparation and implementation of the agreement, and not damages awarded as a result of the breach of the contract. It was submitted that costs awarded by the arbitrator were not legal costs or costs of the arbitration, and that each party was ordered to bear its own costs. Respondents' Counsel further submitted that the Appellant's arguments in support of this ground amount to an appeal on the merits and must not be granted. 5.16 The Respondents opposed ground ten and submitted that it is mischievous and an entire misdirection. It was submitted that the J40 Appellant's position that the Court below erred by finding that the arbitral tribunal did not fail to provide a reasoned award on the issues in contention and which finding was not supported by evidence, is mystifying considering the fact that the Respondents declared a dispute, inter a/ia/ of the Shareholders Agreement which was executed in pursuance of the joint venture. It was submitted that the said breach was pleaded and the arbitrator adjudicated upon it and rendered a reasoned award and thereby discharged his duty, and hence the Court below's upholding of the award. 5.17 In responding to ground eleven, it was submitted on behalf of the Respondents that the issue that the Appellant had placed before the Court below was not that the Shareholders Agreement was contrary to public policy. It was further submitted that neither the arbitrator nor the Court below found the Shareholders Agreement to be contrary to public policy and that what was found to be contrary to public policy was the Voting Agreement. 5.18 It was argued that the two agreements are separate and cannot be connected as the 2nd , 3rd and 4th Respondents were not parties to the Voting Agreement and were therefore innocent parties. It was J41 submitted that the arbitrator addressed his mind to the improprieties in the Voting Agreement and penalised the errant parties by not awarding any reliefs to them. It further submitted that the 1st, 2nd , 3rd and 4th Respondents being innocent parties who did not participate in the illegality of the Voting Agreement cannot be divested of their rights under the Shareholders Agreement. To support this position, the Respondents relied on the case of MOHAMED S. ITOWALA v VARIETY BUREAU DE CHANGE6 where the Supreme Court held that: "(1) A party cannot sue upon a contract if both knew that the purpose, the manner of performance and participation in the performance of the contract necessarily involved the commission of an act which to their knowledge is legally objectionable. (2) The appellant's title to his money is unaffected and did not result from an illegal transaction." 5.19 Based on the foregoing, it was submitted that the Appellant cannot by association, impute its own illegalities upon the entire transaction and prevent the innocent Respondents from obtaining damages for the various breaches committed by the Appellant. J42 5.20 The Respondents, therefore, urged this Court to find that the Court below was on firm ground in upholding the award and dismissing the Appellant's application to set aside the awards. 6.0 THIS COURT'S CONSIDERATION OF THE APPEAL AND ITS DECISION 6.1 We have considered the appeal, respective arguments by Counsel, authorities cited, evidence on record and the judgment appealed against. We have also considered the provisions of the Arbitration Act, 2000 as read together with the provisions of the United Nations Commission on International Trade Law (UNCITRAL) Model Law in the First Schedule of the Act. In terms of section 6(1) of the Arbitration Act, any dispute which the parties agree to submit to arbitration may be determined except for those matters outlined in subsection 2 which include an agreement that is contrary to public policy. Since so much autonomy has been given to an arbitral tribunal such that the final decision or award rendered therefrom cannot be the subject of an appeal, the only recourse a party to an arbitration has is to have an arbitral award set aside upon application J43 to a court in accordance with the provisions of section 17(2) of the Act as was done in the present case. 6.2 Therefore, in considering the issues raised in the grounds of appeal we are mindful that this is not an appeal on the merits of the final and supplementary awards by the arbitral tribunal, but the judgment of the Court below. Our role as an appellate Court therefore, is to satisfy ourselves whether or not the Court below properly guided itself in terms of section 17(2) of the Act. 6.3 We turn to ground one in which the Appellant challenges the arbitral tribunal's award of the sum of US$432 000.00 as expectation damages to the 2nd , 3rd and 4th Respondents based on the argument that the evidence on record does not reveal that they were pleaded by the 2nd , 3rd and 4th Respondents. According to the arbitral tribunal, the amount awarded was found to be the loss of money the shareholders expected to get out of the joint venture if it had succeeded. 6.4 A perusal of the Respondents' Statement of Case at paragraphs 48 to 52 and 57 .2.1 at pages 166 to 168 of the record of appeal indicates that the Respondents pleaded loss of business and projected profits J44 of US$1 067 527.75 from the projected total of 98 rounds of trips per month between Lusaka, Ndola, Mfuwe and Livingstone had the joint venture succeeded. It was pleaded in paragraph 51 that the 1st Respondent company expected to incur a total loss of US$865 206.00 in expenses and a net profit of US$202 321.75. According to paragraph 52 the 1st Respondent company projected total profits of US$1 618 573.98 for eight months from September 2015 to April, 2016. We noted that to support their claim, the Respondents attached exhibit "CD16" in the bundle of documents accompanying the Amended Statement of Case found at page 241 of the record. 6.5 Upon further perusal of the final award at paragraph 6.16 and page 755 of the record it is indicated that the arbitral tribunal considered the Respondents' claim and evidence in arriving at its decision. In the circumstances, therefore, we are satisfied that the honourable Judge in the Court below rightly found that the expectation damages awarded to the 2nd , 3rd and 4th Respondents by the arbitral tribunal were pleaded. Consequently, we find that ground one is devoid of merit and we, accordingly, disallow it. • J45 6.6 In ground two, the Court below is faulted by the Appellant for finding that the Respondents had abandoned their assertion that the expectation damages granted to the 2nd , 3rd and 4th Respondents by the arbitral tribunal, were granted under further and other relief in the absence of any evidence. 6.7 It is the Appellant's contention that the Respondents relied on their affidavit in opposition and that they did not raise any such arguments before the Court below, whether written or oral that they had abandoned their argument. We are of the considered view that this Court having found that the Court below was on firm ground in finding that expectation damages were pleaded, in paragraph 57.2.1 of the Statement of Case as special damages, ground two is otiese. We, therefore, find that it is bereft of merit and we, accordingly, disallow it. 6.8 We turn to ground three which faults the Court below for finding that the arbitral tribunal substantially complied with the strict rules of evidence contrary to the orders for directions which required strict compliance with the rules of evidence. To support its contention, the Appellant argued that the arbitral tribunal found as a fact that the J46 Respondents had not provided proof in respect of the claim for reliance damages but that it proceeded to make substantial awards in their favour. 6.9 A perusal of paragraph 7 of the final award shows that reliance damages of US$40 000.00 were awarded to the 1st Respondent company against the Appellant to be paid to Mr. Lewis Kunda, the 3rd Respondent and one Captain Godfrey Mulundika for the consultancy work the duo were contracted to undertake in view of the joint venture. It is also indicated that a further US$175 000.00 was awarded to the 1st Respondent company in legal, consultancy and technical advisory expenses or costs which were wasted on account of the failed joint venture. 6.10 We earlier found in ground one that expectation damages were pleaded and that there were supporting documents in the claimants bundle of documents exhibited as "CD16" as found by the Court below. With regard to the arbitral tribunal's award of reliance damages, we note that the Court below accepted that it made an award based on an intelligent guess and found that there was also oral testimonies from CWl, CW2, CW3 and CW4 and documentary • J47 evidence before the arbitral tribunal, which supported the claims in respect of which it made the awards. A perusal of the said evidence and the judgment of the Court below shows that it considered how the arbitral tribunal arrived at the said awards and that there was strict observance of the rules of evidence in accordance with the orders for direction. 6.11 In the Respondents' arguments opposing ground three, Counsel argued that an arbitrator is permitted to make an intelligent guess and relied on some cited cases. We opine that the Court below was on firm ground in finding as it did because it considered the fact that the arbitral tribunal took into account the oral and documentary evidence before it. 6.12 Therefore, we find that ground three also lacks merit and we disallow it. 6.13 Grounds four and five were argued together as they are both based on the Wet Lease Agreement. The Appellant attacks the finding of the Court below that the arbitral tribunal did not go beyond the scope of the submission when it found that the Appellant breached the Wet Lease Agreement and held that the arbitral tribunal did not award J48 any damages for breach of the Wet Lease Agreement when there was clear evidence on record of awards for damages for what the arbitral tribunal termed as a series of breaches of contract, including alleged breach of the Wet Lease Agreement. 6.14 We had occasion to peruse paragraph 6.12 of the final award at page 754 of the record of appeal and we noted that the arbitral tribunal in its reasoning stated that the Appellant was seeking to avoid liability for any alleged breaches which in essence it had committed. The breaches were listed as: not providing start-up funds, not completing the needful under the Wet Lease Agreement, the offending shareholding which they shot down, and abrupt walking away from the joint venture on account of disagreement over the lease of a hangar from a third party corporate entity owned by CW2. 6.15 Upon perusal of the judgment of the Court below, we note that the Court below took the view that the arbitral tribunal's pronouncement on the alleged breach of the Wet Lease Agreement was referred to as obiter dictum. After reading the contents of the final award we are satisfied that it shows that the arbitrator only referred to the Wet Lease Agreement in passing which we consider as obiter dictum. We • J49 are fortified by reference to the case of MICHAEL MABENGA v SIKOTA WINA & ORS7 where the High Court Judge when hearing the parliamentary petition made the following remark: "I would further like to mention that the Electoral Commission and the Attorney General allowed what happened in Mulobezi Parliamentary Constituency." 6.16 On the basis of the learned trial Judge's remark, the Attorney General applied to be joined as a party when the matter went on appeal before the Supreme Court but it declined to allow the application and stated that: " ........ that remark by the learned trial judge was an obiter dictum, that did not go to the root of the judgment appealed against." 6.17 Similarly, in the present case, we opine that the arbitrator's reference to breach of the Wet Lease Agreement was made obiter dictum as he did not veer from the terms of reference to inquire into the Wet Lease Agreement in the manner that he extensively dealt with the Shareholders Agreement and the Voting Agreement. 6.18 Based on the foregoing, we find that grounds four and five also lack merit and we disallow them. • JSO 6.19 Ground six faults the Court below for holding that the arbitral tribunal rightly awarded expectation damages to the 4th Respondent despite the fact that he did not prosecute his case, contrary to the orders for directions and the requirement for strict compliance with rules of evidence. 6.20 It is clear from the evidence on record and arguments advanced by Respondents' Counsel that this appeal arises from a judgment of the Court below that dealt with an application to set aside arbitral awards arising from a class action by the shareholders of a company claiming the same reliefs from the Appellant. That being the position, we opine that any one of the Applicants could commence an action on behalf of the others and adduce evidence in support of the action. We are fortified in our position based on the provisions of Order 14 Rules (2) and (3) of the High Court Rules, Chapter 27 of the Laws of Zambia which state that: "(2) Where a person has jointly with other persons an alleged ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit. (3) Where more persons than one have the same interest in one suit, one or more of such persons JSl may be authorised to sue or to defend in such suit for the benefit of or on behalf of all parties so interested." 6.21 Therefore, based on the foregoing, we opine that the mere fact that the 4th Respondent did not testify at the arbitral proceedings, does not mean that he did not prosecute his case and should not be entitled to the expectation damages. We find that his claim was covered in the testimonies of the other shareholders and witnesses and the pleadings and documents exhibited in the bundles of documents. In the circumstances, we find that the learned Judge in the Court below was on firm ground in holding that the arbitral tribunal rightly awarded expectation damages to the 4th Respondent. 6.22 We, therefore, find ground six to be bereft of merit and we, accordingly, disallow it. 6.23 We turn to grounds seven and eight which we considered together as they relate to the issue of reliance damages. In ground seven the Appellant alleges that the Court below neglected to make a determination on its contention that the arbitral tribunal in considering the Respondents' claim for reliance damages, failed to discount the claims by non-parties to arbitration. • ' J 'L J52 6.24 We noted from the evidence on record and the judgment of the Court below that the 1st Respondent company incurred expenses in view of the envisaged joint venture and was liable to non-parties to the arbitral proceedings. We further noted that the Court below acknowledged that the arbitral tribunal neither awarded damages of its own volition nor was it expected to deduct amounts for non parties in arriving at the damages. 6.25 Ground eight faulted the Court below for holding that the arbitral tribunal rightly awarded reliance damages to the Respondents in the absence of evidence to prove such damages. In our considered view, the issue of evidence, including pleadings and the intelligent guess upon which the arbitral awards were made were earlier addressed in grounds one and two which we found to be devoid of merit. 6.26 Before we move away from this ground, we noted that the Appellant argued that in view of the cited cases of KAFUE DISTRICT COUNCIL v CHIPULU and KABWE INTERNATIONAL TRANSPORT LTD v NJELEKWE, the awards made on an intelligent guess ought to be nominal and reasonable in the circumstances. The ,o/ I . J J53 cited cases involved local organisations and individuals whilst the present case involved an international joint venture involving large sums of money in foreign currency. Therefore, we opine that any amount awarded as an intelligent guess would not be nominal in the circumstances. 6.27 Further to our view on the issue of nominal award, we opine that grounds seven and eight as Respondents' Counsel has rightly submitted amount to an appeal on the merits as they invite this Court to determine how the arbitral tribunal evaluated the evidence before it and arrived at the quantum of damages awarded as reliance damages. We, therefore, find that these two grounds are not only devoid of merit but are misconceived and are accordingly, disallowed. 6.28 We turn to ground nine which faults the holding by the Court below that the costs referred to in Clause 28 of the Shareholders Agreement did not apply since the joint venture envisaged by the Appellant and Respondents did not materialise. The Appellant's contention is that the said position is contrary to the express provision of Clause 28 and consequently offends the provisions of the Arbitration Act. It was J54 argued on behalf of the Appellant that Clause 28 provides that costs shall be borne by each party as it states that: "Each party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement." 6.29 From the judgment of the Court below we note that it reasoned that on a true interpretation of Clause 28, the costs and expenses referred to are those related to the negotiation, drafting and implementation of the Agreement not for the breach thereof. 6.30 In considering whether the Court below properly upheld the arbitral award or not, we are guided by the Supreme Court's decision in the case of NSANSA SCHOOL INTER EDUCATION TRUST v GLADYS MTONGA MUSAMBA8 , where it cited the learned authors of CHITTY ON CONTRACTS, 26th Edition, Volume 1 at page 177, in giving the rationale for awarding damages to an aggrieved party in a contract by stating that: "Damages for a breach of contract committed by the defendant are compensation for damages, loss or injury he has suffered through the breach. He is, as far as money can do it, to be placed in if the contract had been the same position as performed." the plaintiff to wf I 'I " JSS 6.31 Based on the said guidance, we are of the view that even though Clause 28 of the Shareholders Agreement required the parties to bear their own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of the Agreement, compensation for loss suffered through breach of the Agreement was not covered. We, therefore, find that the Court below was on firm ground in upholding the arbitral award. We, accordingly, find that ground nine lacks merit and we disallow it. 6.32 Ground ten faults the Court below for finding that the arbitral tribunal did not fail to provide a reasoned award on issues in contention. It was contended on behalf of the Appellant that the said finding was not supported by evidence on record thereby indicating that the arbitral tribunal did not adjudicate upon all the issues in contention between the parties. 6.33 We opine that Respondents' Counsel rightly submitted that the arbitral proceedings arose as a result of breach of the Shareholders Agreement by the Appellant and that the arbitral tribunal, accordingly, found that there was such breach by the Appellant when he withdrew from the joint venture on account of the failed hangar J56 lease negotiations with the 2nd Respondent. The arbitral tribunal having addressed all the issues in the award, the Court below, found that there was no failure on its part to render a reasoned award on the issues in contention. 6.34 Therefore, we find that the Court below was on firm ground in finding as it did. We, accordingly, find that ground ten is devoid of merit and we dismiss it. 6.35 We finally turn to ground eleven which challenges the holding that the arbitral tribunal had jurisdiction to award damages despite the fact that the enforcement of the Shareholders Agreement was found to be contrary to public policy. Respondents' Counsel argued that this ground was misconceived as neither the arbitral tribunal nor the Court below found the Shareholders Agreement to be contrary to public policy and that what was found to be contrary to public policy is the Voting Agreement between the Appellant and the 5th and 6th Respondents, as it sought to make the Appellant, a foreign entity, the majority shareholder in the Respondent company contrary to the Civil Aviation Act. J57 6.36 Therefore, based on the foregoing clarification, we opine that ground eleven is not only misconceived but intended to mislead this Court. In any case, the two Agreements are separate and involve different parties in that the Voting Agreement involved the Appellant and the 5th and 6th Respondents whilst the Shareholders Agreement involved the Appellant and all the six Respondents. 6.37 Consequently, we find this ground to be bereft of merit and we dismiss it. 7 .0 CONCLUSION 7.1 In conclusion, all eleven grounds of appeal being unsuccessful, the net result is that this appeal fails and it is, accordingly, dismissed for sha 11 be taxed. J. Chashi COURT OF APPEAL JUDGE ......... ~ ....... . ········~ COURT OF APPEAL JUDGE P. C. M. Ngulube COURT OF APPEAL JUDGE ··············