Fratelli Locci SRI Estraxion Minerarie v Road Development Agency (APPLICATION No. SCZ/8/06/2019) (26 June 2019) – ZambiaLII

AND IN THE MATTER OF: SECTION 17 OF THE ARBITRATION ACT No. 19 of 2000 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 LOCCI SRI ESTRAXION MINERARIE APPLICANT AND ROAD DEVELOPMENT AGENCY RESPONDENT Before Hon. Justice Dr. Mumba Malila in chambers on 24th June, 2019 and 26th June, 2019 For the Applicant: Mr. M. H. Haimbe of Malambo & Company &/ For the Respondent: Mr. M. Moonga of Messrs Tembo Ngulube Associates RULING R2 Case referred to: Kekelwa Samuel Kongwa and Meamui Georgina Kongwa, SCZ/ 8/ 05/ 2019 Legislation referred to: 1. Court ofA ppeal Act No. 7 of 2016 2. Order XI r4 of the Court ofA ppeal Rules On 28th March, 2019, I granted an ex-parte order to the applicants to file their application for leave to appeal out of time. The application for leave was duly filed and came up for hearing on the 24th June, 2019. That application for leave to file appeal came in the wake of a refusal by the Court of Appeal to grant the applicant leave to appeal. It thus came to me by way of a relaunched application. At the hearing of the application, the parties through their legal counsel, adopted the affidavits filed in support of their respective positions. One point must be made clear from the outset. Appeals to the Supreme Court are now no longer a matter of right. Leave must be sought from the Court of Appeal, and if not granted by that court, R3 from a single judge of this court. This is pretty mu ch what the applicant was seeking to do by the present application. The criteria for granting of leave to appeal to the Supreme Court is set out in Section 13(1) and (3) of the Court of Appeal Act, No. 7 of 2016 and Order XI Rule 4 of the Court of Appeal Rules. That section states as follows: 13(1) An appeal from the judgment of the court shall lie to the Supreme Court with the leave of the court (3) The court may grant leave to appeal where it considers that (a) the appeal raises a point of law of public importance; (b) it is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; (c) the appeal would have reasonable prospects of success; or (d) there is some other compelling reason for the appeal to be heard. In respect of a civil appeals, the principal requirements under the section as quoted are that the intended appeal should raise a point of law of public importance and that it should, in any event, enjoys reasonable prospects of success. Aside these two preconditions, R4 leave to appeal may be granted where there are some other compelling reasons for the appeal to be entertained. I have examined the affidavit in support of the application as well as the skeleton arguments by counsel for the applicant. The grounds for the intended appeal, as stated in the summons, are that the appeal raises a point of law of public importance; that point, according to the appellant, being whether or not the law and jurisprudence in Zambia allows a wrong-doer, found to have committed a legal infraction, to escape liability, including liability in nominal damages. It is also suggested by the applicant's learned counsel that a further point of law of public importance is the question whether it is not against public policy in Zambia for successful parties in arbitral proceedings to be denied any form of relief despite a finding in the arbitral award favourable to the applicants. The affidavit in opposition is rather scanty, with the respondent merely stating that as a judge of the Supreme Court sitting alone, I have no power to grant the applicant's application. At the hearing of the application, Mr. Moonga relied on that affidavit and prayed that RS the application be dismissed. He did not, however, explain why or in what respects I have no power to grant the application. I have already stated that the criteria set out in section 13 of the Court of Appeal Act ought to be satisfied before leave to appeal is granted. And so, I have to satisfy myself that the applicant has discharged that onus. I have perused the draft grounds of appeal which are attached to the affidavit of one Mulambo Hamakuni Haimbe dated 26th February 2019, in support of the ex-parte summons for leave to file an application out of time. There are five intended grounds in all. Those five proposed grounds of appeal are alleging error or misdirection on the part of the lower court. They read as follows: GROUND ONE The lower court erred in law and in fact when, in dismissing ground 1 and 2 of the appeal, it held at page J19 to J22 of the judgment appealed against that the High Court was on firm ground when it refused to partially set aside the arbitral award complained against on the ground that doing so would have amounted to delving into the substance of the award but without paying due regard to the crucial elements of the law and practice of arbitration which require an R6 arbitrator to follow very specific procedural steps during the arbitral as regards the procedure to be followed when arriving at a decision. GROUND TWO The court below misdirected itself it dismissed ground 1 and 2 of the appeal on the ground that the arbitral tribunal could not be faulted for not finding the respondent liable in damages and thereby misapprehended the matters put forward for determination in grounds 1 and 2 of the appeal which related to procedural impropriety by the arbitral tribunal rather than to the substantive relief granted or refused in the award per se. [sic!] GROUND THREE The court below erred in law and in fact when it held that the judgement of the High Court met the test for a proper judgment within the meaning of judgment in the case of the Minister of Home Affairs and Another v. Lee Habasonda without having due regard to the fact that in arriving at its decision, the High Court ignored or glossed over some of the matters put before it for determination without giving any cogent reason for doing so. GROUND FOUR The court below fell into grave error when it dismissed grounds 3 and 4 of the appeal without addressing its mind to the question as to whether the public policy in Zambia was offended by the part of the arbitral award in issue that allowed an injured party to go without redress despite a finding by the arbitral tribunal of wrong doing and despite the wide discretion to do substantial justice enjoyed by an arbitral tribunal. R7 GROUND FIVE The court below misdirected itself when it held that in order for an arbitral award to be set aside on grounds if it being in conflict with public policy, there must be proof that the arbitral tribunal had done gross injustice. My reading of these proposed grounds of appeal leads me to the inescapable conclusion that they are solely targeted at redressing what the applicant considers to have been denied by the lower court in addressing the arbitral tribunal's alleged misdirections. In Kekelwa Samuel Kongwa and Meamui Georgina Kongwa, sitting as a single judge I delivered a ruling in which I pointed out that for a legal question to be treated as a point of law of public importance, it must have a public or general character rather than one that merely affects the private rights or interests of the parties to a particular dispute. The issue should relate to a widespread concern in Zambia the determination of which will have effect beyond the two parties to the appeal. The issues in the present case, which the applicant seeks to escalate to the Supreme Court through the intended appeal should leave be granted, turn purely on the contractual rights of the two R8 parties to the dispute which was a subject of arbitral proceeding. It will not go beyond the two disputants. Unless it is demonstrated that the issues to be determined on appeal snowball into the public arena and becomes of interest to other members of the public generally, and not merely the private interest of other private parties in cognate cases, it will not satisfy the requirements of the law as set out in section 13(3){a). A matter does not become a point of law of public importance merely because it may create a useful precedent for disputes between other private parties. In this particular case, the genesis of the dispute is private. The intended appeal is a reaction to the treatment of the applicant by the arbitral tribunal on the question of relief due to the applicant. Although the applicant has tried to couch the issue for determination in a language that suggests that they go way beyond the immediate parties, I am unable to accept that there is any point of law of public importance that falls to be determined. The full Court of Appeal was, in my considered view, also right to hold that the application for leave to launch the intended appeal not only failed to satisfy the benchmarks as set out in section 13 of .' R9 the Court of Appeal Act but was also, on the whole, without any reasonable prospects of success. I sense from the proposed grounds of appeal that four of them, that is to say 1, 2, 4 and 5, invariably impeach in their substance, the award of the arbitral tribunal. I have, of course, not had the opportunity to preview the arguments of the parties in support of and against the intended appeal on the grounds revealed by the applicant, but I am satisfied, having regard to the benefits touted for the preference for arbitration to litigation that the prospects of the appeal succeeding are remote. I am therefore, inclined to refuse the application as it is destitute of merit. It is hereby dismissed with costs to the respondent. fY~ Dr. Mumba rvfalila SUPREME COURT JUDGE