Zambia-Zambia Logistics Ltd v ARS Freight Company Ltd (HPC/ARB 7 of 2018) [2018] ZMHC 559 (15 June 2018)

IN THE HIGH COURT FOR ZAMBIA /^^'^TT'''<^f^O18/HP/ARB/07 AT THE PRINCIPAL REGISTRY f & ! , ' "~1 \ couh'i of HOLDEN AT LUSAKA (CIVIL JURISDICTION) IN THE MATTER OF: AN ARBITRATION ACT NO. 19 OF 2000 AND IN THE MATTER OF: SECTION 11 OF ARBITRATION ACT NO. 19 OF 2000 AND IN THE MATTER OF: AN INTERIM ORDER OT ATTACHMENT OF PROPERTY BEFORE THE COMMENCEMNET OF ARBITRATION PROCEEDINGS BETWEEN: ZAMBIA - ZAMBIA LOGISTICS LIMITED APPLICANT AND ARS FREIGHT COMPANY LIMITED RESPONDANT BEFORE HON. JUSTICE E. P. MWIKISA FOR THE PLAINTIFF: MR. H. MULENGA OF MESSRS PHILSONG & FOR THE DEFENDANT: MS. P. M. MUNTHALI OF C. L. MUNDIA & CO. PARTNERS RULING This is an application for an order of interim attachment of property pursuant to section 11 of the Arbitration Act No. 19 of 2000. The application is supported by an affidavit sworn by one R1 Wisdom Maseka. He deposed therein that sometime in January, 2018, the Applicant and the Respondent entered into a clearing and forwarding Agreement, wherein the Respondent agreed to clear the Applicant’s goods at the port in Dar-es-salaam, Tanzania at the agreed price as shown by exhibit marked “WM1.” That it was an express term of the said agreement that the price of transporting a 20 ft container and 40 ft container from Tanzania to Zambia namely, Lusaka or Ndola, was US$4800.00 and US$5000.00 respectively but that contrary to that agreement, the Respondent overcharged the Applicant on numerous containers totalling the sum of US$ 4500.00 as shown on exhibit collectively marked “WM2”. The above-mentioned price included all the expenses to be incurred by the Respondent up to delivery of goods in Lusaka, serve the costs of storage and demurrage on its goods if the transportation documents were delivered to the Respondent 3 days before the arrival of the ship at the port of Dar-es-salaam and that the Applicant sent all the documents 3 days before the arrival of the ship as shown at exhibit marked “WM3”. That despite sending the said documents to the Respondent, namely the bill of laden before the arrival of the ship at the port of Dar-es-salaam, and the R2 Applicant not being responsible to pay any storage and demurrage, the Respondent wantonly charged the Applicant storage and demurrage now standing at the sum of US$55,749.00. That the Applicant for fear of being surcharged by its clients paid the above sums to the Respondent with a view to reconcile which reconciliation the Respondent has now refused and has proceeded to hold the Applicant’s container in Dar-es-salaam, with goods valued afar above US$40,000.00. That the Respondent transported another consignment to be delivered to the Applicant’s address in Kitwe, Copperbelt but that the Respondent has refused to deliver the goods and has threatened to offload the said goods at unknown place and go back to Tanzania as shown at exhibit marked “WM4”. That the clearing and forwarding Agreement referred to in paragraph 5 of the affidavit in support, has an Arbitral clause and that the parties have a dispute but that they have not yet appointed arbitrators. It was finally deposed that unless the Applicant is granted an interim order for the Respondent driver to off load the goods at the Applicant’s client in Kitwe and an interim attachment of the Respondent’s truck with the following details, registration number T109CLP, trailer registration number T505BVD and container with R3 registration No. PONU 306546 attached to these proceedings, the Respondent may remove the truck from Zambia which is the country of jurisdiction to another country which may be difficult for the Applicant to enforce its rights. It was therefore the Applicant’s prayer for the court to grant him an order of interim attachment of the said truck and trailers. The Respondent on the other hand did not file an affidavit in opposition and at the hearing of the matter on 7th June, 2018, the learned Counsel of the Respondent informed the court that they had failed to talk to their client in order to obtain instructions and were therefore unable to file the affidavit in opposition. The application is made pursuant to section 11 of the Arbitration Act which is couched in the following terms: Section 11(1) “A party may, before or during arbitral proceedings, request from a court an interim measure of protection and, subject to subsection (2) (3) and (4), the court may grant such measure.” 11(2) upon a request in terms of subsection (1), the court may grant - (a) An order for the preservation, interim custody, sale or inspection of any goods, which are the subject matter of the dispute; (b) An order securing the amount in dispute or the costs and exercise of the arbitral proceedings; (c) An interim injunction or other interim order; or (d) Any other order to ensure that an award which may be made in the arbitral proceedings is not rendered ineffectual. ” R4 Section 11(4) further states that: “The court shall not grant an order or injunction under this section unless - (a) The arbitral tribunal has not yet been appointed and the matter is urgent; (b) The arbitral tribunal is not competent to grant the order or injunction; or (c) The urgency of the matter makes it impracticable to seek such order or injunction from the arbitral tribunal; and the court shall not grant any order or injunction where the arbitral tribunal, being competent to grant the order or injunction, has already determined an application therefore.” Having granted the order for attachment of property exparte on 2nd May, 2018, subject to interparte hearing on 7th June, 2018, I am of the considered view that the order of interim attachment of property, should be and is hereby confirmed for the reasons that the Respondent is based in Tanzania, where it is established and if the order of interim attachment herein is not confirmed the judicial proceedings herein could be rendered nugatory. Further section 11 of the Arbitration Act No. 19 of 2000, empowers this court to make the necessary orders as the case may be as provided for in the said section especially under section 11(2). It is for this reason that I find that the Applicant has on a balance of probabilities shown to this court through the affidavit on record that the said order of interim attachment of the said truck and R5 trailers be granted to it, and I accordingly confirm the said order granted on 2nd May, 2018. I order no costs. Leave to appeal is granted. Dated at Lusaka in chambers the........ day of ^2018 E. P. MWIKISA HIGH COURT JUDGE R6