Silverlands Seed Limited v Felistus Zulu (Administrator of the Estate of the late Benson Zulu)) (2023/HPC/ARB/0582) (27 June 2025) – ZambiaLII

6 IN THE HIGH COURT FOR ZAMBIA 2023/HPC/ARB/0582 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: AN APPLICATION TO SET ASIDE AN ARBITRAL AWARD DATED 16 JUNE 2023 IN THE MATTER OF: SECTION 17 (2) (a) (i), 17 (2) (a) (ii), 17 (2) (a) (iii) and 17 (2) (b) (ii) OF THE ARBITRATION ACT NO. 19 of AND IN THE MATTER OF: RULE 23 OF THE ARBITRATION (COURT ROCEEDINGS)RULES,STATUTORYINSTRUMENT NO. 75 OF 2001 BETWEEN: 'I. r JL J " . lSILVERLANDS SEED LIMITED PLAINTIFF AND FELISTUS ZULU (Administrator of the Estate of the Late Benson Zulu) DEFENDANT Before the Honourable Mr. Justice L. Mwanabo on 27 June, 2025 For the Plaintiff: Ms. D. Nalishuwa with Ms. B. Kauseni of Messrs. Musa Dudhia & Co For the Defendant: Mr. K. Phiri of Messrs. Corpus Legal Practitioners JUDGMENT Cases referred to: 1. Zambia Revenue Authority v Tiger Limited and Zambia Development Agency SCZ Selected Judgment No. 11 of 2016 2. Konkola Copper Mines Plc v Copper Fields Mining Services Limited (2010) 3 ZR 156 3. Brenda Muzyamba v Martha Muzyamba Sinnabbomba and Others Appeal No. 11 of 2019 4. ZESCO Limited v Elijah Nyondo (Suing in his capacity as Administrator of the estate of the late Wilson Sinyinza) CAZ/08/263/2017 5. Elias Tembo (suing as Attorney General for Mike Lungu) v Ian Malilwe Mweemba Appeal No. 33 of 2021 6. Attorney General v Ireen Muhongi Lemba (2008) 1 ZR 215 7. Martin Misheck Simpemba, Rose Domingo Kakompe v Nonde Munkanta, Zambia Industrial Mineral Limited (2012) 1 ZR 72 8. Colgate Palmolive Zambia Inc v Able Shemu Chuuka and Others Appeal No. 181 of2005 9. Lusagen Zambia Limited v The Minister of Mines and Mineral Development Selected Judgment No. 17 of 2019 10. Zinka v The Attorney General (1990-92) ZR 73 11. Atlantic Bakery Limited v ZESCO Appeal No. 47 of 2016 12. John Kunda (suing as Country Director and on behalf of the Adventist Development and Relief Agency (ADRA) v Keren Motors (Z) Limited 2008/HPC/550 13. Attorney General v Katwishi Kapandula (1988-1989) ZR 69 (SC) 14. Attorney General v Lewanika and Others (1993/1994) ZR 164. 15. Necor Zambia Limited v Sylvester Nthenge (2008) 2 ZR 189 16. Zambia Railways Limited v Pauline S. Mundia and Brian Simumba (2008) ZR 287 Vol. 1 1 7. Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited (2012) 3 ZR 174 18. Savenda Management Services Limited v Stanbic Bank Zambia Limited Selected Judgment No. 39 of2017 19. Road Development Agency v Safri.cas Zambia Limited Appeal No. 03/2024 20. Satyam Shivan Sundaram and Classic Mining and Trading Limited v Given Chisakula Kawina Appeal No. 076 of 2017 (CA) 21. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 175 Legislation referred to: 1. The Arbitration Act No. 19 of 2000 2. The Arbitration (Court Proceedings) Rules 2001, SI No. 75 of 2001 3. The Intestate Succession Act, Chapter 59 of the Laws of Zambia J2 4. The Rules of the Supreme Court of England, 1965 (White Book) 1999 Edition Other Materials referred to: l. Black's Law Dictionary, 7th Edition at page 1191 1.0 INTRODUCTION 1.1 By originating summons filed on 21st August, 2023, the Plaintiff herein filed an application to set aside the arbitral award dated 16th June, 2024 on the following grounds: 1. that the Defendant had no capacity to solely represent the Estate of the late Benson Zulu in the arbitral proceedings; 2. that the Arbitral Award offends public policy in its failure to enforce a valid and legally binding agreement; 3. that the Plaintiff was not given an opportunity to be heard on a critical issue determined by the Arbitral Tribunal; and 4. that the Arbitral Award dealt with an issue not contemplated by the parties. 1.2 The application was made pursuant to Section 17 (2) (a) (i) (ii) (iii) and 17 (2) (ii) of the Arbitration Act1, as read with Rule 23 of the Arbitration (Court Proceedings) Rules 20012. 2.0 EVIDENCE AND ARGUMENTS IN SUPPORT OF THE APPLICATION 2.1 The Plaintiff's affidavit in support of the application was sworn by Gary Vaughan-Smith the Manager of Silverstreet Management II S.a r.I. ("Silverstreet"), the General Partner to Silverlands II SCSp and Silvers II Co-Investment SCSp (together, the "Funds"). He deposed that the Plaintiff is indirectly a wholly-owned subsidiary of the Funds. 2.2 That the Plaintiff and the late Benson Zulu (the "Deceased") entered into 3 sale and purchase agreements ("SPA 1", "SPA 2" and "SPA 3") to sell and purchase the shares belonging to the Deceased in Zambia Seed Company Limited for a total purchase price of US$ 12,650,000.00. SPA 1 was executed in January 2018 while SPA 2 J3 and SPA 3 were both executed in May 2018. The copies of SPA2 and SPA3 were exhibited and marked as "GVS 1". 2.3 On 23rd October, 2018, the Plaintiff and Deceased concluded a further agreement known as the Completion Agreement to extend the Long Stop Dates and waive certain conditions precedent of SPA 2 and SPA 3, subject to several new conditions, and, to amend and vary certain terms of SPA 2 and SPA 3 in order to facilitate the transactions contemplated in these agreements. 2.4 Under the Completion Agreement, the Plaintiff agreed to waive conditions precedent under SPA 2 and SPA 3. However, this waiver was subject to several conditions including an increase in the purchase price deferral amounts from US$ 350,000.00 to US$ 959,000.00 under SPA 2 and, from US$ 500,000.00 to US$ 1,500,000.00 under SPA 3. The amount of the purchase price deferral that the Plaintiff could permanently retain was to be determined in accordance with the conditions and formulae agreed in the Completion Agreement. Additionally, under SPA 2 the Plaintiff was entitled to retain a "2018 Net Loss Retention" of US $441,000.00. 2.5 It was further stated that the Completion Agreement did away with the requirement that there should be a proven warranty claim to entitle the Plaintiff to permanently retain the purchase price deferrals in SPA 2 and SPA 3. In accordance with clause 3.1.3 (ii) of the Completion Agreement, on 17th November, 2020, prior to the expiry of the Claim Period under SPA 2, the Plaintiff notified the Defendant that it would permanently retain US$ 1,388,760.00 comprised of US$ 947,760.00 as part of the purchase price deferral and US$ 441,000.00 as the 2018 Net Loss Retention as provided in SPA 2. The purchase price deferral retained under SPA 1 and the Completion Agreement was independently verified by PriceWaterHouseCoopers. An Assurance Report marked "GVS 3" was exhibited. J4 2.6 The deponent revealed that on 12th November, 2021, prior to the expiry of SPA 3 Claim Period, the Plaintiff notified the Defendant that it would permanently retain US$ 1,478,234.00 in accordance with clause 3.1.3 (v) of the Completion Agreement. The purchase price deferral retained under SPA 3 and the Completion Agreement was also independently verified by PriceWaterHouseCoopers. The Assurance Report marked "GVS 4" was exhibited. That in accordance with the Completion Agreement, the Plaintiff exercised its right to permanently retain US$ 2,866,994.00 in aggregate as the purchase price deferral under SPA 2, SPA 3 and the Completion Agreement. 2.7 Further, that the Estate of the Deceased disputed the retention on the basis that the Completion Agreement was not a valid and binding agreement. That under clause 25 of both SPA 2 and SPA 3, it was provided that any claim or dispute arising under, out of or in connection with the agreements would be referred to arbitration in accordance with the Arbitration Act No. 19 of 2000 and determined under the laws of Zambia. By Order of the High Court dated 1st February, 2022, the dispute between the Plaintiff and the Administrators was referred to arbitration. The Order was exhibited as "GVS 5". The Tribunal heard the dispute from 22nd to 24th September, 2022 and delivered and served its Final Award (the "Arbitral Award") on 16th June, 2023. The Arbitral Award was marked and exhibited as "GVS 6". 2.8 Following the death of the Mr. Zulu, the Defendant, Scot Banda and Ntenda Nakazwe were appointed as Administrators of the Deceased's Estate (the "Administrators"). The Letters of Administration were exhibited as "GVS 7". The affidavit revealed that the said Administrators executed a Power of Attorney dated 18th November, 2020 authorising the Defendant to act as the attorney of Scot Banda and Ntenda Nakazwe, in relation with engaging legal advisors and do all things required of the Administrators by law or otherwise with regard to the Estate of the Deceased. The Power of JS Attorney was to expire on 26th September, 2021. The Power of Attorney was exhibited and marked as "GVS 8". 2.9 The deponent disclosed that at the time that the dispute was referred to arbitration, and at all times during the arbitral proceedings, including the period when the Tribunal heard the dispute from 22nd to 24th September, 2022, the Defendant did not have capacity to solely represent the Estate of the Deceased as the Power of Attorney granting her authority to act on behalf of the other Administrators had expired on 26th September, 2021. 2 .10 It was stated that there has been nothing disclosed or on record in the arbitral proceedings, or otherwise, that evidenced any renewal of the Power of Attorney that granted the Defendant the authority to act alone. That in its findings, the Tribunal narrated, without any proof or disclosure, in paragraph 32.3 at page FA20 of the Arbitral Award that the Power of Attorney appearing on record had expired on 26th September, 2021 but had been renewed. 2.11 The deponent revealed that at all times during the arbitral proceedings, including the period when the Tribunal heard the dispute from 22nd to 24th Spetember, 2022, neither Scot Banda nor Ntenda Nakazwe participated in any manner, meaning that the Defendant was the sole representative for the Deceased, a role for which she did not have capacity. 2.12 Further, that the Tribunal in its findings in paragraph 66 at pages FA71-FA72 of the Arbitral Award determined that the Completion Agreement was more than just a simple conditional waiver letter but actually a valid and binding agreement that varied SPA 2 and SPA 3. According to the deponent, it was agreed that the Completion Agreement superseded SPA 2 and SPA 3. 2.13 It was contended that despite this finding, the Tribunal failed, refused and neglected to enforce the Completion Agreement which does not require proof of breach of warranty claim before a purchase price deferral is permanently retained. The Tribunal instead ignored the provisions of the Completion Agreement, despite determining it J6 as a valid and binding agreement, and rather enforced the provisions of SPA 2 and SPA 3 which previously required that there be a proven warranty claim for a permanent retention of the purchase price deferral and ordered that the Plaintiff pay the Defendant US$ 959,000.00 and US$ 1,500,000.00 (less the sums of US$ 11,240.00 and US$ 21,766.00 already paid to the Estate) with interest at rate agreed under clause 4.6.2 of SPA 2 and SPA 3, that is, 1.375% per month, from the date when payment was due until the date of actual payment. It was contended that the Tribunal's approach is plainly contradictory. 2.14 Furthermore, that the Tribunal's failure to enforce a valid and binding agreement is contrary to public policy and good conscience in the Republic of Zambia. In addition, it was revealed that the Tribunal determined a question that was neither raised by the Plaintiff, the Defendant nor the Tribunal. It was indicated that the Defendant in the arbitral proceedings merely sought to invalidate the Completion Agreement. Additionally, that She did not ask for an alternative relief in the event that the Completion Agreement was found to be valid agreement. The Plaintiff and Defendant's Statement of Case and Statement of Defence and Counterclaim respectively filed in the arbitration were exhibited and marked as "GV S 9". 2.15 It was contended that the Tribunal having determined the validity of the Completion Agreement ought to have ended there. However, the Tribunal proceeded to consider the question as to whether, given that the Completion Agreement was valid and binding, the Plaintiff had also to prove any warranty claim to entitle it to permanently retain the purchase price deferral. It was further contended that by so doing, the Plaintiff was denied the opportunity to be heard, to address the question whether or not a proven warranty claim was actually required and to make its case on this critical point. This is despite that on a different occasion the Tribunal directed the parties to file supplementary submissions to address a legal point that had J7 not been addressed by the parties in their respective final submissions. A letter dated 5th December, 2022 from the Tribunal directing the parties to file supplementary submissions was exhibited as "GVS 10". That in the premises it would be an injustice to allow the enforcement of the Arbitral Award in light of the errors that patently taint it. 2. 16 Skeleton arguments in support of the application were filed by the Plaintiff together with the originating summons. The first part covered the background of this matter. The plaintiff anchored its arguments under five limbs. Firstly, the issue of jurisdiction was addressed. Section 17 of the Arbitration Act1 was fully quoted to buttress the point that this Court has jurisdiction to set aside an arbitral award based on any grounds set out in the provision. Further, it was submitted that the application made to this Court is not an appeal against the merits of the decision but an application on the basis of the grounds provided under Section 17 of the Arbitration Act1 and in particular, Section 17 (2) (i) (ii) (iii) and 17 (2) (b) (ii). The case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency1 and Konkola Copper Mines Pie v Copper Fields Mining Services Limited2 were called to aid in buttressing the point. 2.17 Rule 23 of the Arbitration (Court Proceedings) Rules 20012 which provides for the procedure to be adopted when applying to set aside an arbitral award was cited. It was submitted that the Plaintiff has established the requisite thresholds warranting the setting aside of the Arbitral Award dated 16th June, 2023. 2.18 The second limb of the Plaintiffs arguments was that the Defendant lacked capacity to represent the Estate of the late Benson Zulu. The Plaintiff referred to Section 17 (2) (a) (i) of the Arbitration Act1 and argued that an arbitral award may be set aside if there is proof that a party to the arbitral award was under some incapacity. 2.19 It was submitted that capacity on behalf of another is the very essence of the validity of proceedings in which one person acts in a J8 representative capacity of another person. The Plaintiff further submitted that where an administrator represents the estate of a deceased person as is the case in casu, the administrator must have the authority to act. Section 24 (1) of the Intestate Succession Act3 was quoted as follows: "24 (1) Subject to any limitations and exceptions contained in a grant of letters of administration the grant entitles the administrator to all rights belonging to the deceased as if the administration had been granted at the moment after his death. .. " 2.20 The case of Brenda Muzyamba v Martha Muzyamba Sinabbomba and Others3 was relied upon where Section 24 of the Intestate Succession Act3 was interpreted. The Plaintiff also adverted to the case of ZESCO Limited v Elijah Nyondo (Suing in his capacity as Administrator of the estate of the late Wilson Sinyinza)4 to cement the point that an administrator derives his authority from a grant of administratorship and further that a step taken by a person without authority is a nullity. Section 20 of the Intestate Succession Act3 was cited which is to the effect that where there are several administrators their powers can be exercised by the majority of them in the absence of any direction in the letters of administration. 2.21 The Plaintiff's position is that in the case at hand, at least two of the three administrators should have been party to the arbitral proceedings to ensure that the proceedings were valid. That, the majority administrators may allow one to act as attorney for all other administrators by virtues of a power of attorney. The definition of power of attorney provided by the authors of the Black's Law Dictionary, 7th Edition1 at page 1191 was referred to. Additionally, the cases of Elias Tembo (suing as Attorney General for Mike Lungu) v Ian Malilwe Mweemba5 and Attorney General v Ireen Muhongi Lemba6 were called to aid to buttress the point on power of attorney. The sum total from these authorities is that a power of J9 attorney is an instrument granting someone authority to act as an agent for another person or one delegating authority to another person do something on behalf of the one giving that power and that the document giving power should be in writing and is to be construed strictly within its four corners. 2.22 It was submitted that by a power of attorney dated 18th November, 2020, Scot Banda and Ntenda Nakazwe gave the Defendant authority to act on their behalf with regard to the administration of the Estate of the Deceased. That Clause 4 states that the power of attorney would expire on 26th September, 2021. It was then argued that the Defendant lacked authority to solely represent the Estate of the Deceased in the absence of Scot Banda and Ntenda Nakazwe. According to the Plaintiff, all key stages of the arbitration occurred several months after the power of attorney expired in September, 2021. The arbitration panel was said to have been formed on 17th March, 2022 and the rest of the stages were outlined showing that they all took place after the 17th March, 2022. 2.23 According to the Plaintiff, the Tribunal fell in error in its narration of evidence when it noted at paragraph 32.3 at page FA20 of the Arbitral Award that the Power of Attorney had been renewed in the absence of evidence to back that finding. That the Tribunal merely relied on the Defendant's oral testimony that the Power of Attorney had been renewed. The Plaintiff opined that this approach is patently insufficient and has consequently prejudiced the Plaintiff in that the proceedings commenced against it were prosecuted by a person lacking the capacity to act solely. 2.24 The third limb of the Plaintiffs arguments was that the arbitral award offends public policy. It was argued that the Arbitral Award is in conflict with public policy and ought to be set aside pursuant to Section 17 (2) (b) (ii) of the Arbitration Act1. The case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency1 where the Supreme Court adopted the interpretation of JlO public policy from a decision by the Zimbabwean Supreme stating as follows: ''Where, however, the reasons of conclusion in an award goes beyond mere faultiness or incorrectness and constitutes an inequity that is so far reaching and outrageous in its defiance of logic or accepted standards that a sensible and fair-minded person would consider that the concept of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it." 2.25 My attention was further directed to the case of Martin Misheck Simpemba and Rose Domingo Kakompe v Nonde Mukanta and Zambia Industrial Minerals Limited7 where it was opined inter alia that: " .... Although the term public policy is not defined by the Arbitration Act, or the Model Law, the defence of public policy should only be invoked where the upholding of an arbitral award would shock the conscience; clearly injurious to the public good; wholly offensive to an ordinary member of society; where it violates the forum's most basic notion of accepted moral standards that any sensible, and fair person would be intolerably hurt by such an award." 2.26 Additionally, the explanatory notes to the UNCITRAL Model Law in relation to grounds for setting aside an award in Section (7) (b) (paragraph 46) was quoted which is to the effect that violation of public policy should be understood as serious departures from fundamental notions of procedural justice. 2.27 It was further submitted that it is trite law that parties of full capacity retain the freedom to contract on their own terms as agreed within the confines of the law. That an inability to enforce binding contracts willingly entered into between parties leads to injustices and chaos. Several cases were brought to my attention upon including the case of Colgate Palmolive Zambia Inc v Able Shemu Jll Chuuka and Others8 where the court expressed the need to respect , the utmost liberty for parties of competent age to contract and for courts to enforce contracts that are freely and voluntarily entered into. 2.28 According to the Plaintiff, in the Arbitral Award, the Tribunal found that the Completion Agreement was more than just a simple conditional waiver letter, as proposed by the Defendant, but a valid and binding agreement that altered SPA 2 and SPA 3. 2.29 The Plaintiff opined that the Completion Agreement also supersedes SPA 2 and SPA 3. That in fact, paragraph 4.4 of the Completion Agreement expressly states that ''in the event of any conflict between SPA 2 and SPA 3 and this letter, the terms of this letter shall prevail." It was further argued that having found that the Completion Agreement was valid and legally binding, it follows that the Tribunal ought to have enforced the terms of the Completion Agreement in their entirety. That SPA 2 and SPA 3 in clauses 4.6.1 required that there be a proven warranty claim before the Plaintiff could be entitled to permanently retain the purchase price deferral. However, the Completion Agreement varied SPA 2 and SPA 3 and did away with the requirement to prove a warranty claim before the purchase price deferral could be permanently retained. 2.30 Furthermore, Clauses 3.1.3 (ii) and (v) of the Completion Agreement were quoted as follows: (ii). this revised Purchase Price Deferral shall continue to apply in accordance with Clause 4.6 of SPA 2 and in addition, at any time during the period from Completion under SPA 2 until the second anniversary of the Completion Date (the "SPA 2 Claim Period"), the Purchaser may permanently retain for its own account such amounts of the Purchase Price Deferral as determined in accordance with the conditions and formulae detailed in Appendix I to this letter; ..... J12 (v). this revised Purchase Price Deferral shall continue to apply in accordance with Clause 4. 6 of SPA 3 and in addition, at any time during the period from Completion under SPA 3 until the third anniversary of the SPA 2 completion (the "SPA 3 Claim Period"), the Purchaser may permanently retain for its own account such amounts of the Purchase Price Deferral as determined in accordance with the conditions and formulae detailed in Appendix. I to this letter;" (underlined and emphasised by the Plaintiff) 2.31 It was posited that Appendix I to the Completion Agreement set out the circumstances that would entitle the Plaintiff to permanently retain the purchase price deferral and the formulae to be employed in deriving how much would be permanently retained. The Plaintiff contended that there is no provision or condition within Appendix I stating that there should be a proven warranty claim before the Plaintiff would be entitled to permanently retain the purchase price deferral. It was submitted that Clauses 3.1.3 (ii) and (v) of the Completion Agreement allow the Plaintiff to retain amounts based on the following two courses: 2.31.1 a successful warranty claim (i.e. "in accordance with Clause 4.6 of SPA 2"), or 2.31.2 under a formulaic approach (i.e." ... determined in accordance with the conditions and formulae detailed in Appendix I to this letter") 2.32 The Plaintifff submitted that the key words in these paragraphs have clear meamng: ". .. and in addition. .. the Purchaser may permanently retain for its own account such amounts ... as determined in accordance with the conditions and formulae detailed in Appendix I to this letter". (underlined and emphasised by the Plaintiff) 2.33 It was the Plaintiff's further submission that the amounts that were permanently retained by the Plaintiff were derived in accordance J13 with Appendix I to the Completion Agreement as permitted under this clause. Further, that this interpretation and calculation was confirmed by Andrew Chibuye (Senior Partner of PricewaterCoopers Limited, Zambia) an independent expert and experienced professional whose role will commonly include the interpretation and verification of amounts due under contractual arrangements. Additionally, it was posited that wording such as this should be interpreted in accordance with what would normally be meant by two parties. The Plaintiff argued that by having the words " ... and in addition ... ", the clause clearly implies that amounts can also be retained through a second means, namely through the formulaic approach. It was further submitted that the Completion Agreement does not state that the formulaic approach also needs a successful warranty claim. 2.34 The Plaintiff adverted to several authorities among them the case of Lusagen Zambia Limited v The Minister of Mines and Mineral Development9 to buttress the point that words in the Completion Agreement must be given their plain and ordinary meaning. The Plaintiff contends that the Tribunal on the one hand determined that the Completion Agreement was a valid and binding agreement between the Plaintiff and the Deceased that altered the terms of SPA 2 and 3, but on the other hand enforced the provisions of SPA 2 and SPA 3 without the variations brought in by the Completion Agreement when it found at page FA81 that: "In our determination, since the Respondent has failed to prove a Warranty Claim against the Deceased, there is no basis for the deferred amount(s) under SPA2 and 3 to be permanently retained. In other words, a permanently retention cannot be done in isolation of a proven Warranty Claim as its anchor. Such is the import of clause 4. 6 of SPA2 and 3 which continued to be inforce as recognised by clause 3.1.3 (ii) and (v) of the Completion Document as determined earlier". J14 2.35 It was argued by the Plaintiff that it has been prejudiced because its rights under a valid and binding contract are not being enforced. Further, that public policy demands that the sanctity of contracts should be respected to ensure that there is commercial and legal certainty in order for parties to conduct business, to provide protection to encourage foreign investors and donors and, to support Zambia's economic growth. 2.36 Fourthly, the Plaintiff argued that it was unable to present its case. It was argued that the Tribunal's interpretation of Clauses 3.1.3 (ii) and (v) of the Completion Agreement is a key part of the Tribunal's Award and their interpretation is fundamental to the economic implications of the Award. That these two clauses govern the retention of deferred payments and at no time did the Defendant nor the Tribunal make the points now made by the Tribunal in the Award, either in writing or verbally at the hearing. The Plaintiff submitted that it has not been allowed to respond to this interpretation of the clauses governing the retention of deferrals, the heart of this dispute. Therefore, it has not been able to make its case. The case of Zinka v The Attorney General1° was called to aid to argue that the courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially must observe the principles of natural justice. 2.37 The Plaintiff submitted that the interpretation of the key clauses 3.1.3 (ii) and (v) of the Completion Agreement is central to the economic implications of the Award. In addition, the Plaintiff indicated that it was allowed to make its case that the Completion Agreement was valid and binding and that the Tribunal agreed with this. However, the Tribunal introduced an interpretation of these clauses which was new to the arbitration proceedings, and only did this at the Award stage. It was the Plaintiff's position that it has been denied the opportunity to present its case on this key economic issue. That it is clear that the Plaintiff has been prejudiced and its J15 application to set aside the Award satisfies the test set out in section 17 of the Arbitration Act 1. 2.38 The last limb of the Plaintiffs arguments was that the Arbitral Award deals with an issue not contemplated. Section 17 (2) (a) (iii) of the Arbitration Act1 was quoted to buttress the point. The Plaintiff posited that the Tribunal dealt with the matters beyond the scope of the arbitration. This is because both the Plaintiff and Defendant in their pleadings in the arbitral proceedings expressly set out the issues for determination. The case of Atlantic Bakery Limited v ZESCO11 was cited and it was argued that a court should confine its decision to the questions raised in the pleadings. 2.39 The Plaintiff submitted that the Defendant in the arbitral proceedings merely sought to invalidate the Completion Agreement and did not ask for an alternative relief in the event that the Completion Agreement was found to be a valid agreement. I was urged to set aside the Award. 3.0 EVIDENCE AND ARGUMENTS IN OPPOSITION 3.1 In opposing the application, the Defendant on 6th September, 2023 filed an Affidavit in Opposition to Originating Summons for an Order to Set Aside an Arbitral Award, which was accompanied by a list of authorities and skeleton arguments. The affidavit was sworn by Felistus Zulu, the Defendant herein. 3.2 It was pointed out that the Deceased was a shareholder and director in Zambia Seed Company Limited (Zamseed) and held a total of 40,992,106 shares and the consideration thereto under SPA 2 and SPA 2 was set at US$12,146,885.00. 3.3 The deponent stated that SPA 2 and SPA 3 contained clauses that set out the precise conditions under which the Plaintiff could retain what was termed thereunder as a Purchase Price Deferral and the exact circumstances that would warrant retention thereto. Further, that SPA 2 and SPA 3 contained long stop dates which could be extended following agreement of the parties. J16 3.4 It was disclosed that there was a waiver of certain conditions precedent to SPA 2 and SPA 3 by the Plaintiff under its hand by a document termed as a Completion Agreement ("CA"). Under the CA the Plaintiff waived some of the conditions precedent and to a large degree the CA was for the benefit of the Plaintiff with little to no value to the Deceased. 3.5 According to the deponent, the Plaintiff sought to introduce new conditions under the CA which the Deceased registered objections to some of the said conditions. The Plaintiff under the CA waived particular conditions precedent including but not limited to completion of due diligence, discharge of security instruments, transfer of shares in Zamseed by affiliates and removal of caveats. 3.6 It was stated that the Plaintiff attempted, for its own benefit and with not consideration, to increase the retainable sums under SPA 2 and SPA 3 with regards to the Purchase Price Deferral from US$350,000.00 to US$ 959,000.00 under SPA 2, and from US$ 500,000.00 to US$ 1,500,000.00 under SPA 3. 3. 7 Furthermore, that it was always a term of all the agreements that were executed by the Deceased and the Plaintiff, as confirmed by the finding of the arbitration tribunal in its final award issued on 16 June 2023 and marked as "GVS 6" in the Affidavit in Support (the "Final Award"), that for purposes of any retention of the purchase price, warranty breaches must be proved. 3.8 That further clause 3.1.3 (ii) and (v) of the CA provided that notwithstanding its execution the purchase price deferral would continue to apply in accordance with clause 4.6 appearing both in SPA 2 and SPA 3. 3.9 It was contended that clause 4.2 (a) of the CA further stipulated the extent of amendment with respect to SPA 2 and SPA 3, in that any amendment had to specifically be stated and that which had not been stated as amended, will apply as provided in SPA 2 and SPA 3. In addition, that the Plaintiff notified the Defendant of its intention to permanently retain the sums of US$1,388,760.00 and J17 US$947,760.00 as part of the Purchase Price Deferral and US$441,000.00 as the 2018 Net Loss Retention. 3.10 The deponent disclosed that the Plaintiff failed at the hearing to prove breach of any of the warranties, as the Deceased complied with and ensured that the warranties were a true and proper reflection of ZamSeed. A copy of the arbitral proceedings were exhibited as "FZ 2". 3 .11 It was indicated that the Plaintiff notified the Defendant that it sought to permanently retain the sum of US$1,478,234.00 and that the same had to be proved against a proven warranty breach. Further, that the Plaintiff attempted to illegally retain the sum of US$ 2,866,994.00 in the absence of proof of any breached warranty. 3.12 On the power of attorney, it was stated that the same was renewed for a further period which included and covered the subsistence of the proceedings relating to all claims before the arbitral tribunal and which will only expire once all sums due to the Deceased are paid to the Estate. 3.13 The deponent further added that there was a subsisting Power of Attorney and that the Administrators of the Estate of the Deceased exercised their authority in the majority dated 25th January, 2022. A copy of the renewed power of attorney was exhibited and marked "FZ 3". The deponent disclosed that the record will reflect that she testified on oath that the said Power of Attorney was renewed on 17th December, 2021 and the same was not challenged at the hearing and appears at page 10 of the arbitral proceedings. A copy of an excerpt of the arbitral proceedings was exhibited and marked "FZ 4". It was indicated that at all material times during the subsistence of the proceedings the defendant was acting in pursuance of a valid power of attorney. 3.14 It was further disclosed that the arbitral tribunal found that the CA did not supersede SAP 2 and SPA 3 in their entirety but only in specific respects as amended, such as waiver of conditions precedent and variation of the sums pertaining to the Purchase Price Deferral. J18 That the arbitral tribunal refused to order that the CA does not require proof of breach of warranty claim. 3.15 It was contended that, a reading of the final award at page FA78 provides that the amendments under the CA were particular in nature and the effect of amendment will only apply to specified amendments and not SPA 2 and SPA 3 in their entirety. That further to the preceding paragraph clause 3.1.3 (ii) and (v) of the CA provided that the Purchase Price Deferral would continue to apply in accordance with clause 4.6 contained both in SPA 2 and SPA 3. 3.16 Further, that in line with clause 3.1.3 (i) and (v) of the CA as well as SPA 2 and SPA 3 and as rightly found by the Arbitral Tribunal proof of breach of warranty is required as that aspect was not amended under CA. The Defendant asserted that the award was not contrary to public policy as the Arbitral Tribunal gave effect to the terms of the CA as the requirement for proof of breach of warranty was not extinguished. That a perusal of the exhibit "GVS 9'' in the Affidavit in Support will evidence that the Defendant sought the enforcement of SPA 2 and SPA 3 and payment of the sums due there under which the arbitral tribunal correctly awarded. 3.17 In addition, it was contended that a further perusal of the statement of case reveals that the Defendant sought the following as part of the issues for resolution in paragraphs 12 to 37: (a) Payment of the sum of circa US$ 2,800,000.00 while invalidating the raised Purchase Price Deferral and the premises thereto; (b) That the CA was in effect a waiver of the conditions precedent by the Plaintiff under SPA 2 and SPA 3; (c) That there were no breaches of the warranties under SPA 2 and SPA 3 or otherwise and that the Plaintiff was therefor not entitled to any retentions against the payment referred to in (a) above; and J19 (d) That the Plaintiff was not entitled to a net loss retention as the losses were never proved by the Plaintiff under SPA 2 and SPA 3. 3.18 The Defendant's asserted that the Arbitral Tribunal correctly determined the claim as set out in clause 37(c) of the statement of case for the requirement of proof of a breach of a warranty claim, which would entitle the plaintiff to retain the Purchase Price Deferral. She went on to disclose that the Plaintiff had an opportunity to respond to the alluded to claim and accordingly filed a statement of defence during the arbitration to the same, which response appears in clause 32, 35 and 36 of the Defence and Counter Claim exhibited as "GVS 9" in the Affidavit in Support. She further disclosed that the Plaintiff had an opportunity to be heard on all the aspects that were claimed by the Defendant and ordered by the Arbitral Tribunal. A copy of an excerpt of the proceedings evidencing the Plaintiff's rebuttal was exhibited and marked as "FZ 6". 3 .19 The Defendant stated that justice was served as per award and an upset of the same would be tantamount to injustice. That the plaintiff has neglected and or refused to make payment of what is legally due to the Defendant for over 3 years to date even after being served with a formal letter of demand on 22nd March, 2021 ("Letter of Demand") and has consistently raised actions before this Court and the arbitration tribunal. 3.20 The Defendant stated that the Plaintiff's action to attack the merits of the Final Award is against public policy especially in light of the other numerous applications by the Plaintiff and is an attempt to escape liability and deny the Defendant its rights as already determined by this Court in the previous action and the arbitration tribunal. According to the Defendant, the Plaintiff has failed to meet the test or any of the grounds upon which as award can be set aside. 3.21 Finally, it was indicated that, the plaintiff is attempting to re-litigate the arbitration where an award has been rendered on all issues being deposed to in the Affidavit in Support. J20 3.22 The Defendant supplemented the Affidavit in Opposition with skeleton arguments. A background to this matter was first given. The following are the issues for determination submitted by the Defendant: (a) Whether this Honourable Court has jurisdiction to consider an application to set aside an arbitral award; (b) Whether the Defendant lacked capacity to represent the Estate of the late Benson Zulu; (c) Whether the arbitral award rendered m favour of the Defendant offends public policy; and (d) Whether the Plaintiff was able to present its case and whether the arbitral award rendered m favor of the Defendant dealt with a dispute not contemplated by the parties. 3.23 On the first issue, Section 17 of the Arbitration Act1 and Rule 23 of the Arbitration (Court Proceedings) Rules 20012 were quoted to buttress the point that this Court is clothed with the requisite jurisdiction to entertain an application to set aside an arbitral award. It was submitted that the Plaintiffs application before this Court is deeply misconceived as the Final Award does not fall within the ambit of any of the circumstances provided for under Section 17(2) of the Arbitration 1. 3.24 It was submitted that the Plaintiff being dissatisfied with the Final Award simply seeks to abuse the Court process herein by making the application herein on flimsy grounds as a way of relitigating the arbitral hearing. Further, that the Plaintiff seeks to "appeal" against the Final Award and the same is disguised as an application to set the Final Award contrary to the settled principles oflaw that hold that the parties should accept a final award as final but also that an application to set aside an award should not be treated as an appeal. 3.25 My attention was drawn to the case Konkola Copper Mines v Copper Fields Mining Services Limited2, where the Court emphasised that J21 an application to set aside an award cannot be used as a means for reviewing the arbitrator's award. In that case, the court held that: "The wording of the section makes it abundantly clear that grounds to be proved before an award can be set aside are those set out therein. Further, the application to set aside an arbitral award is not intended for the court to review the award of a tribunal or conduct a hearing akin to an appeal." (underlined and emphasised by the Defendant) 3.26 The case of John Kunda (suing as Country Director and on behalf of the Adventist Development and Relief Agency (ADRA) v Keren Motors (Z) Limited12 was cited where the Court held that: "To preserve the integrity of the arbitral process, the point should be noted that setting aside proceedings do not serve as a means to achieve a review of the tribunals decision on the merits. This court's view is fortified by the learned authors, Redfern and Hunter, law and Practice of International Commercial Arbitration, Third Edition (London, Sweet & Maxwell, 1999) where they state that: "Arbitral rules, such as those of the UNCITRAL ... provide unequivocally that an arbitration award is final and binding. These are not intended to be mere empty words. One of the advantages of arbitration is that it is meant to result in the final determination of the dispute between the parties... By choosing arbitration, the parties choose a system of dispute resolution that results in a decision that is in principle, final and binding. It is not intended to be a proposal as to how the dispute might be resolved; nor is it intended to be the first step on a ladder of appeals through national courts." (underlined and emphasised by the Defendant) 3.27 Further, the case of Martin Misheck Simpemba (supra) was relied upon to emphasise that an application to set aside arbitration awards are not approached with a view to discern the legal weakness, J22 inconsistencies or faults in the application of the law. It was submitted that the import of the above holding is that a party should not use the mechanism of setting aside an award to try to relitigate the matter. Furthermore, the Defendant submitted that the grounds for setting aside, and the corresponding facts appearing herein suggest that the Plaintiff is attempting to relitigate the arbitral hearing as it was unsuccessful on their part. The Defendant asserted that the application to set aside the award is simply frivolous and vexatious. 3.28 On whether the Defendant lacked the capacity to represent the Estate of the late Benson Zulu, it was submitted from the onset that the Defendant had the capacity to represent the Estate of the late Benson Zulu at all material times prior to, during the arbitration proceedings and post the hearing and still continues to have capacity in this respect until the conclusion of all matters or claims herein and until all collectables are paid to the Estate. The Defendant submitted that her submission is premised not only on the facts in the case in casu but also per law provided in respect of capacity of an administrator. 3.29 It was contended that it is trite law that in order for an administrator to represent an estate of a deceased person, such an person must have the authority to act. This authority is conferred upon such an administrator through the grant of letters of administration in accordance with Section 24(1) of the Intestate Succession Act3 which provides as provides as follows: "Subject to any limitations and exceptions contained in a grant of letters of administration the grant entitles the administrator to all rights belonging to the deceased as if the administration had been granted at the moment after his death except that letters of administration shall not render valid any intermediate acts of the administrator tending to the dimunition or damage of an intestate's estate." 3.30 Section 20 of the Intestate Succession Act3 quoted as follows: J23 "Where there are several administrators, their powers may, in the absence of any direction to the contrary contained in the letters of administration, be exercised by the majority of them". (Underlined and emphasised by the Defendant) 3.31 It was submitted that general position of the law with respect to the exercise of power by several administrators is that their power should be exercised by the majority of them in absence of any direction to the contrary. That, however, the authority to act can be delegated by one or more of the administrators to a single administrator by way of power of attorney. This then confers and or grants a single administrator the power and authority to act for and on behalf of the other administrators and exercise their powers or authority accordingly. The case of Elias Tembo (supra) was called to aid, where the court adopted the Black's Law Dictionary's definition of a power of attorney already reproduced above. 3.32 Further reliance was made on the case of Attorney General and Others v Ire en Muhongi Lemba ( supra) where a power of attorney was defined as an instrument whereby one is set in the stead or place of another to act for him. It was the Defendant's position that the import of the authority cited is that one party is able to exercise the authority of many pursuant to a valid power of attorney granting him authority to so act and the acts thereto will be deemed to have been done by the <loner of the power of attorney. 3.33 According to the Defendant, by the Power of Attorney dated 18th November, 2020, the Defendant's co-administrators, Scot Banda and Ntenda Nakazwe (the "Co-administrators") granted the Defendant authority to act for and on their behalf. The Power of Attorney in question expired on 26th September, 2021. However, renewed power of attorney granting the Defendant power to exercise administrative functions solely was executed by the co-administrators Scot Banda and Ntenda Nakazwe in favour of the Defendant. The aforementioned power of attorney was only to expire upon the Estate being in receipt J24 of all its collectables. The said renewed power of attorney appears as exhibit "FZ 3" in the affidavit in opposition. 3.34 It was submitted that at the hearing before the Tribunal when questioned by the Plaintiff's Counsel as to the capacity in which the Defendant prosecuted the matter therein and whether she had the requisite authority responded in the affirmative. That this evidence appears at page 10 of the arbitration proceedings which have been exhibited as exhibit "FZ 2'' in the Affidavit in Opposition. 3.35 Further, that the Plaintiffs Counsel at the hearing before the Tribunal further attempted to impeach the capacity by making reference to the expiry date of the initial power of attorney to which the Defendant responded that the same had been renewed. It was contended that this evidence appears in exhibit "FZ 2" in the Affidavit in Opposition. It was the Defendant's position that this evidence being unimpeached and uncontroverted at trial was bound to be considered as true. The case of Attorney General v Katwishi Kapandula13 was relied upon to buttress the point that unchallenged evidence must be relied on. 3.36 The Defendant further submitted that the Tribunal rightly observed at paragraph 32.2 of page FA20 of the Final Award that the Defendant had capacity to prosecute the matter owing to the unchallenged evidence submitted by the Defendant. That the renewed power of attorney is dated 17th December, 2021 and conferred the Defendant with authority to act on behalf of her co-administrators in relation to the dispensation of the duties of the duly appointed administrators of the Estate. 3.37 It was the Defendant's submission that in light of the evidence on record and the position of the law, the Plaintiff's argument in this regard is deeply flawed and misconceived. The Defendant argued that a reading of the power of attorney will evidence the fact that the Defendant had capacity to act for and on behalf of her Co administrators prior to, during and post arbitration hearing and still retains the said authority to date until the Estate is in receipt of its collectables. J25 3.38 The Defendant contended that there was no need for either one of the co-administrators to be present for the arbitral proceedings as each party had delegated his/her authority to the Defendant. That based on this, it is palpably clear that the Plaintiff's claim that the Defendant lacked capacity to act on behalf of the Estate of the deceased is bereft of any merit as the power of attorney rightly clothed the Defendant with the capacity to act on behalf of the Estate and in place for the Co-administrators. I was urged to dismiss the Plaintiffs claim as it is baseless and unfounded in fact and law. 3.39 On whether the arbitral award rendered on behalf of the Plaintiff is contrary to public policy, it was submitted that the Final Award did not offend public policy. According to the Defendant, there was no gross injustice occasioned to the Plaintiff by virtue of the Final Award neither was the same defiant in logic such that the concept of justice in Zar:r;tbia has been intolerably hurt by the award. Several cases were cited including the case of Zambia Revenue Authority (supra) to buttress the point. It was argued that for an award to be set aside on the ground of public policy, it must be shown that the award resulted in gross injustice. The Defendant submitted that there is no gross injustice that has been occasioned by the Final Award in question as the conclusion arrived at is in accordance with the procedures relating to evidence but also the facts as presented before the Tribunal. 3.40 It was further submitted that the conclusions drawn by the Tribunal in the Final Award do not in any way go beyond mere faultiness or incorrectness, neither do they constitute an inequity that is so far reaching and outrageous, in its defiance of logic or accepted standards that, a sensible or fair-minded person would consider that the concept of justice in Zambia would be intolerably hurt by the award. 3.41 The Defendant contends that owmg to the fact that the Tribunal found that the Completion Agreement is valid, the Tribunal should have proceeded to order that the Plaintiff was entitled to permanently J26 retain the Purchase Price Deferral without the need for proof of any breach of warranty as provided in the collective agreement between the parties. That the postulation aforestated and as submitted by the Plaintiff is akin to unjust enrichment as the Plaintiff seeks to withhold sums that should as per SPA 2 and SPA 3 be paid to the Estate. It was stated that the Plaintiff in its interpretation want to state that the Plaintiff can retain said amounts without justification for the same simply because it would have informed the Estate accordingly. The Defendant contended that had the Tribunal so ordered then such order would have been amounted to contravention of public policy and subject of an application to set aside. 3.42 However, according to the Defendant, in the present case, the Tribunal found that the CA was valid and binding. This is as per paragraph 66 of the Final award and further held that it altered some of the terms of SPA 2 and SPA 3. That while the Tribunal found that the CA amended SPA 2 and SPA 3, the Tribunal found that the CA did not supersede the previous agreements in their entirety but rather only specific clauses were amended and the same were not to be read in isolation but together with the SPA 2 and SPA 3. 3.43 With respect to the Purchase Price Deferral, the Plaintiff submitted that under the CA the same did not require proof of any warranty breach and a finding otherwise is against public policy. My attention was drawn to clause 3.1.1 (ii) and (v) of the CA. It was opined that the import of the clause as correctly found by the Tribunal is not the removal of proof of breach of a warranty claim. However, it is simply an increase of the purchase price deferral save to state that for purposes of retention thereto the Plaintiff had to prove breach of a warranty claim as required by SPA 2 and SPA 3. Further that, the CA was to be read together with SPA 2 and SPA 3 and the requirement for proof continued to apply as was found in paragraph 90 of the Final Award at page FA77. 3.44 The Defendant posited that in any event, the CA categorically states in clause 4.2 (a) that it will be read together with SPA 2 and SPA 3. J27 The Tribunal further rightly held that clause 4.2 of the CA stipulated the extent of amendment that was made thereto and save for what is specifically amended SPA 2 and SPA 3 would apply. As such, any amendments such as the remove of the requirement to prove a breach of warranty had to be specifically provided before retention. That no evidence at the arbitral proceedings was advanced by the Plaintiff that the requirement aforestated was amended. As such, the Plaintiff cannot claim that the Tribunal made a decision that was contrary to public policy when it simply gave effect to the agreements executed by the parties as required by public policy. 3.45 Furthermore, the Defendant contended that in turn, as the Plaintiff failed to prove by way of evidence before the Tribunal any warranty breaches as found in Paragraph 84,85 and 86 of the Final Award, the Tribunal cannot be faulted in respect of its findings as the underlying agreements are clear and findings as postulated by the Plaintiff would fly in the teeth of the public policy principle it has advanced. In the light of the above, it was submitted that the Final Award rendered by the Tribunal cannot in any way be said to have offended public policy as it does not fall within the ambit of the Court's interpretation of the same. I was urged to dismiss the Plaintiffs claim. 3.46 Lastly, the Defendant considered the issue whether the Plaintiff was unable to present its case and whether the arbitral award rendered in favour of the Defendant dealt with a dispute not contemplated by the parties. It was submitted that the Plaintiff is raising a flimsy ground in support of its application in an attempt to relitigate already heard and determined issues. That the ground implies that the Plaintiff was not given an opportunity to present its case with respect to its interpretation of Clause 3.1.1 (ii) and (v) of the CA. It was argued that the parties were each given an opportunity to consider all the claims as set out in the statement of case and to submit on the same. Clauses 36.4, 31 and 33 were quoted by the Defendant to argue that the issue for determination relates to the understanding, J28 interpretation and effect of any of the clauses in the CA, which was termed as a "waiver" and the effect that it had on SPA 2 and SPA 3. 3.47 It was the posited that essentially, the entire CA was under consideration and the effect thereto. That, therefore, it is inconceivable that the Plaintiff would now advance a ground that the interpretation of the CA (and particularly the provisions on purchase price deferrals as well as the net loss retentions) were never contemplated to be part of the dispute and that it did not have an opportunity to consider or present its case in relation to the interpretation of certain clauses in the CA. 3.48 The Defendant contended that the entire claim for and on behalf of the Defendant before the Tribunal was with respect to the Purchase Price Deferral and further that the Deceased had not in any event breached any of the warranties and there was no proof to the contrary. The Court's attention was drawn to clause 32 of the Statement of Case wherein the Defendant clearly made it known that it considered it pertinent that the proof of breach of warranty should be considered whether under the SPAs or under the CA as such the Defendant was placed on reasonable notice. 3.49 Additionally, that the Plaintiff proceeded to mount a defence against the same in the form of bare denial as to the claim in clause 32 of the Statement of Case and further remained silent on the issues that were raised at clause 36 of the Statement of Case. Furthermore, that during .the hearing before the Tribunal, the Plaintiff had an opportunity and seized the same to ask the Defendant questions surrounding the interpretation of the CA and whether the Purchase Price Deferral still applied and should be preceded by a proven warranty. I was referred to pages 25-26 of the transcript proceedings exhibited as "FZ 2" in the Affidavit in Opposition. 3.50 According to the Defendant, the above submission entails that the Plaintiff not only had notice of the need to address the issue of interpretation but also cross examined the Defendant on the same. It was contended that the Plaintiff cannot now proceed to claim that it J29 did not have an opportunity to be heard when it is clear that it addressed its mind to the same and asked questions concerning the subject it now claims it had no opportunity to be heard on. It was submitted that the Plaintiff simply seeks to relitigate the arbitral proceedings before this Court, a practice which is proscribed. 3.51 My attention was drawn to the principle of nemo judex in causa sua as espoused in the case of Zinka v The Attorney General (supra). It was argued that the Plaintiff cannot claim that it was not heard when on the aspect of interpretation of the CA in respect of the Purchase Price Deferral and how the same was applied was a key basis of the case on which it had an opportunity to be, and was actually heard thereto. The Defendant submitted that clause 3.1.3 of the CA in question is clear and unequivocal in its meaning and as such did not require any further elaboration. That the reading of the clause is clear that the CA will be read together with SPA 2 and SPA 3. The general rule of interpretation being that words should be given their ordinary and grammatic meaning. Reliance was placed on the case of Attorney General v Lewanika and Others14. 3.52 I was urged to dismiss the Plaintiffs claims in their entirety with costs to the Defendant and that Counsel be ordered to pay costs personally for bringing a frivolous application before this Court. 4.0 PLAINTIFF'S ARGUMENTS IN REPLY 4.1 The Plaintiff filed skeleton arguments in reply to the Defendant's skeleton arguments in opposition to the Originating Summons for an order to set aside the Arbitral Award on 5th October, 2023. In reply, the Plaintiff contended that it was not challenging the merits of the Arbitral Award dated 16th June, 2023. It was asserted that the grounds on which the Plaintiff seeks to have the Final Award set aside fall within the ambit of Section 17 of the Arbitration Act1. That the Plaintiffs application to set aside the Final Award is premised on 4 grounds namely: 4.1.1 the Defendant had no capacity to solely represent the Estate of the late Benson Zulu in the arbitral proceedings; J30 4.1.2 the Final Award offends public policy in its failure to enforce a valid and legally binding agreement; 4.1.3 the Plaintiff was not given an opportunity to be heard on a critical issue determined by the Arbitral Tribunal; and 4.1.4 the Arbitral Award dealt with an issue not contemplated by the parties. 4.2 The Plaintiff argued the above grounds further and merely reemphasised the issues raised in the skeleton arguments filed together with the Affidavit in Support of the action. I will refer to any relevant issues raised by the Plaintiff on the above grounds in my determination. 4.3 On the Defendant's contention that the Plaintiff has been delaying this matter by making various applications, it was submitted that the Arbitration Act1 does not preclude a party from commencing an action in the High Court simply because of the presence of an arbitration clause in an agreement. The Plaintiff relied on Section 10 of the Arbitration Act1. 4.4 The Plaintiff addressed the Defendant's prayer that costs be borne personally by the Plaintiffs Counsel and further referred to the case of Necor Zambia Limited v Sylvester Nthenge15, where the court observed that the jurisdiction to award wasted costs must be cautiously exercised. It was contended that the Defendant has not demonstrated how the three stage test for the award of wasted costs has been satisfied. The Plaintiff submitted that in the circumstances of this case, the Plaintiff's Counsel has not acted unreasonably or negligently to justify the award of wasted costs. 5.0 HEARING OF THE APPLICATION At the hearing of the application held on 14th March, 2025, Counsel on both sides relied on the documents filed on behalf of each party and orally augmented the parties' positions. Both Counsel merely repeated what was raised in their written submissions. J31 6.0 ANALYSIS AND DECISION 6.1 I have heard and considered the parties' evidence, arguments and submissions advanced herein. The action by the Plaintiff is to set aside the award by the arbitral tribunal dated 16th June, 2024 on the following grounds: 6.1.1 that the Defendant had no capacity to solely represent the Estate of the late Benson Zulu in the arbitral proceedings; 6.1.2 that the Arbitral Award offends public policy in its failure to enforce a valid and legally binding agreement; 6.1.3 that the Plaintiff was not given an opportunity to be heard on a critical issue determined by the Arbitral Tribunal; and 6.1.4 that the Arbitral Award dealt with an issue not contemplated by the parties. 6.2 In determining this matter, I wish to remind myself of the burden of proof and the duty to prove applicable in civil matters. In the case of Zambia Railways Limited v Pauline S. Mundia and Brian Simumba16 the above principle was espoused to the effect that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable. 6.3 In this matter, it is not in dispute that the Plaintiff herein entered into 3 sale and purchase Agreements ("SPAl, "SPA2" and "SPA3") to sale and purchase the shares belonging to the late Benson Zulu in Zamseed Company Limited. The agreements were entered into in January, 2018 and May, 2018. It is also not in dispute that the parties signed another agreement on 23rd October, 2018 known as the Completion Agreement. The dispute arose on the quantum to be paid for the said shares. By Order of the High Court dated 1st February, 2022, the dispute was referred to arbitration. The Arbitral Tribunal heard the dispute from 22nd to 24th September, 2022 and delivered its Final Arbitral Award on 16th June, 2023. The Plaintiff then commenced these proceedings to set aside the Final Arbitral Award based on the grounds highlighted above. J32 6.4 The Plaintiff contends that it has met the stringent test set out in Section 17 of the Arbitration Act1 relating to circumstances when an award may be set aside. The Plaintiff further contends that this is an appropriate case for this court to exercise its jurisdiction to set aside the award and decide in its favour. 6.5 The Defendant, on the other hand, has submitted that the issue of capacity was dealt with in the award and the evidence availed and the matter was uncontroverted as such the first ground should fall. That in any event, a valid power of Attorney has been exhibited before the Court in the affidavit in opposition. With respect to public policy and the assertion that the Tribunal did not give full effect to a valid agreement, the Defendant argued that the award took into consideration the whole agreement. 6.6 On the issue of the Plaintiff not being given an opportunity to be heard on a critical issue determined by the Arbitral Tribunal, the Defendant argues that the Plaintiff was given an opportunity to present its case with respect to its interpretation of Clause 3.1.1 (ii) and (v) of the CA. That the parties were each given an opportunity to consider all the claims as set out in the statement of case and to submit on the same. Lastly, on the issue of relief in the award not being contemplated by the parties, Defendant contends that the Tribunal was within its authority to consider clause 3.1.3 of the CA and make its determination. 6.7 For the sake of good order, I propose to deal with the issues raised seriatim. The Plaintiff's action was commenced pursuant to Section 17 (2) (a) (i) (ii) (iii) and 17 (2) (b) (ii) of the Arbitration Act1 as well as Rule 23 of the Arbitration (Court Proceedings) Rules 20012. I will reproduce the provisions here for the sake of context: "17. ( 1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3). J33 (2) An arbitral award may be set aside by the court only if:- (a) the party making the application furnishes proof that: - (i) a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the laws of Zambia; (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; (iii) the award deals with a dispute not contemplated by, or not falling within the terms of, the •submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; (iv) ... (v) (b) if the court finds that: - (i) (ii) the award is in conflict with public policy; or (iii) ... J34 Rule 23 of SI No. 75 of 2001 23. (1) An application, under section seventeen of the Act, to set aside an award shall be made by originating summons to a Judge of the High Court. (2) The application referred to in sub-rule (1) shall be supported by an affidavit- (a) exhibiting the original award or a certified copy thereof; (b) exhibiting the original arbitration agreement or duly certified copy thereof; (c) stating to the best of the knowledge and belief of the deponent, the facts relied upon in support of the application; and stating the date of receipt of the award by the party applying to set aside the award. (3) The affidavit shall be accompanied by such other evidence with respect to the matters referred to in subsection (2) of section seventeen of the Act, as may be necessary to support the application. (4) On an application to set aside an award, the Court may direct that an issue between the parties shall be stated and tried and may give such direction in relation to the trial of such issue as may be necessary, to make any other order considered necessary in the circumstances." 6.8 It is clear from the above cited provisions of the law that this Court has jurisdiction to consider the Plaintiffs application. However, it is important that I say something about arbitration and the role of the court in arbitral process in order to understand the extent of the Court's jurisdiction. Courts have time and again guided that when parties opt to settle their dispute via arbitration, they are in fact saying that they do not wish to subject the resolution of their J35 dispute to the Courts process except in limited circumstances provided by the law. Once an award is rendered, it is binding and enforceable upon the parties as provided by section 20 of the Arbitration Act1 that: "Subject to subsection (2) and (3), an award made by an arbitral tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any person claiming through and or under them." 6.9 The foregoing position was espoused in the case of Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited17 which was approved with authority by the Supreme Court in the case of Savenda Management Services Limited v Stanbic Bank Zambia Limited18. Mutuna J, as he then was, in the Cash Crusaders case (supra) at page 176 stated the following regarding Section 20 of the Arbitration Act1 and the complementary role of courts in the arbitral process: "By virtue of the said section an award once rendered is enforceable except that an aggrieved party can only apply to have set it aside. The complementary role the Courts play in the arbitral process means that the Courts merely assist the arbitral process to be effective because, since it is manned by private citizens and not the state, there are no systems put in place to make it effective such as those available to the Courts. It is inter alia in the form of providing a forum for registering awards and setting aside of awards. The registration of an award by the court is for purposes of giving it an official seal for enforcement purposes and not for purposes of bringing it into the realms of a judgment and therefore subject to the dictates of a Court. 6.10 It is clear from the above passage that an aggrieved party can only apply to have an arbitral award set aside. The question is how then J36 does the court consider the application to set aside an arbitral award? The Supreme Court in the case of Road Development Agency v Safricas Zambia Limited19 guided that courts do not enjoy the same liberty they have in litigation when examining the decisions of an arbitrator's award because their power is restricted to reviewing the due process or roadmap leading to the award and not the merits of the arbitrator's award. In Konkola Copper Mine case (supra), it was held that the wording in Section 17 of the Arbitration Act makes it abundantly clear that the grounds to be proved before an award can be set aside are those set therein. Further, that an application to set aside an award is not intended for the court to review the award of a Tribunal, or conduct a hearing akin to an appeal. 6.11 In the case of Satyam Shivan Sundaram and Classic Mining and Trading Limited v Given Chisakula Kawina20, the Court of Appeal held that the only recourse a party aggrieved with an award of an arbitrator has is by applying to set aside the award in accordance with the provisions under Section 17 of the Arbitration Act1 upon furnishing proof of the circumstances or grounds set out in the section. In addition, in the Zambia Revenue Authority case (supra) cited by both parties, the Supreme Court guided that there are two sets of grounds upon which an award may be set aside. The first grounds fall under Section 17 (2) (a) from (i) to (v) and the second ground falls under Section 17 (2) (b) from (i) to (iii). The Supreme Court went on to hold that for the court to set aside an award, a party has to furnish proof that circumstances contained in the grounds exist. 6.12 Having highlighted the above principles of law, I will now consider the grounds raised in the Plaintiff's application for setting aside the arbitral award. The first ground is that the Defendant had no capacity to solely represent the Estate of the late Benson Zulu in the arbitral, which is contrary to Section 17 (2) (a) (i) of the Arbitration Act1. The Plaintiff contends that the Defendant lacked J37 ---------- - authority to act as administrator as required by Section 24 (1) of the Intestate Section Act3. Furthermore, it is the Plaintiffs contention that as provided by Section 20 of the Intestate Succession Act3 where there is more than one administrator their , powers may be exercised by the majority. That the Power of Attorney dated 18th November, 2020 that gave the Defendant to act of behalf of the other administrators expired on 26th September, 2021. 6.13 The issue of the Power of Attorney was raised by the Plaintiff as can be seen at pages 10 and 11 of the Arbitral Proceedings exhibited as "FZ 2" of the affidavit in opposition. Further, Paragraph 32.3 of the Final Award, which was exhibited as "GVS 6" in the affidavit in support, reveals that the Tribunal addressed the issue when it stated that the power of attorney expired on 6th September but was renewed. I find that the issue of the Plaintiff's capacity to represent the estate in the arbitration proceedings was raised during the proceedings and was also addressed in the final award. The Plaintiff is simply not satisfied with the Tribunal's one sentence determination of that issue and is now seeking the intervention of this Court to overrule the Tribunal on its acceptance of the evidence that the power of attorney had been renewed. However, doing so will be tantamount to conducting a hearing akin to an appeal which is not within the jurisdiction of this Court. Whether that evidence was properly accepted or not cannot be a subject of these proceedings. My considered view is that the Plaintiff has failed to prove that the ground relating to capacity as required under Section 17 (2) (a) (i) of the Arbitration Act1 has been satisfied. The stated ground, therefore, fails. 6.14 I now turn to the second ground, which is that the arbitral award offends public policy in its failure to enforce a valid and legally binding agreement. The Plaintiff relies on Section 17 (2) (b) (ii) of the Arbitration Act1. The Tribunal's finding on paragraph 66 at J38 pages FA71-FA72 of the Final Award was that the Completion Document was a valid and binding agreement between the Plaintiff and the late Benson Zulu. 6.15 The Plaintiffs contention 1s that having determined that the Completion Agreement was valid and binding the Tribunal acted against public police by not giving it its full effect regarding the purchase price deferral and permanent retention of the deferral amount. It was contended that the Completion Agreement amended SPA 2 and SPA 3 by removing the requirement for breach of warranty before laying a claim on the deferral amount. However, at page FA76 and FA77 of the final award, the Tribunal dealt with the extent of amendment of the SPA 2 and SPA 3 by the Completion Agreement and held that it did not do away with the need to prove breach of warranty before laying claim to the deferral amount. My duty is not to consider whether that determination was correct or wrong but whether there was blatant disregard of an agreement by the parties. The extent to which the Completion Agreement altered or amended SPA 2 and SPA 3 was addressed. The Plaintiff is simply displeased with the said determination. There was no violation of public policy in the manner of the Tribunal's interpretation of the document. 6.16 In the Zambia Revenue Authority case (supra) the Supreme Court considered the test to apply when determining whether an arbitral award offends public policy under Section 17 (2) (b) (ii) of the Arbitration Act1• The apex adopted the reasoning of the Zimbabwean Supreme Court case of Zimbabwe Electricity Supply Authority v Maposa ( 1992) 2 ZLR 452 (S) follows: "Where, however, the reasons or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes and inequity that is so far reaching and outrageous in its defiance of logic or accepted standards that a sensible and/air minded person would consider that the concept of justice in Zimbabwe would be intolerably J39 hurt by the award, then it would be contrary to public policy to uphold it." 6.17 I am further persuaded by the reasoning in the case of Martin Misheck Simpemba case (supra) where Matibini J, as he then was, summarised the law relating to Section 17 (2) (a) (ii) of the Arbitration Act1 at pages 89 to 90 as follows: "the term ''public policy should be understood to cover fundamental principles of law and justice from the procedural and substantive stand points. Although the term public policy is not defined in the Arbitration Act, or the Model Law, the defence of public policy should only be invoked where the upholding of an arbitral award would: shock the conscience; clearly injurious to the public good; wholly offensive to an ordinary member of society; where it violates the forum's most basic notion of morality, or justice; or it is so outrageous in its defiance of logic, or accepted moral standards that any sensible, and fair minded person would be intolerably hurt by such an award." 6.18 Based on the above principles of law, I do not see how the interpretation by the Tribunal on the extent of amendment by the Completion Agreement of SAP 2 and SAP 3 can be deemed to be contrary to public policy. The Award in my view did not lead to gross injustice. 6.19 The third ground of the Plaintiff's application is that the Plaintiff was not given an opportunity to be heard on a critical issue determined by the Arbitral Tribunal. This ground is anchored on Section 17 (2) (a) (ii) of the Arbitration Act1. As highlighted above, the issue of not being heard falls under the procedural perspective of public policy. It is not in dispute that natural justice demands that parties to the arbitral proceedings must be treated equally and must also be given full opportunity to present their J40 cases. This was noted in the Zinka v The Attorney-General case (supra) cited by the Plaintiff. 6.20 It is the Plaintiffs position that the Tribunal's interpretation of Clauses 3.1.3 (ii) and (v) of the Completion Agreement was a key part of the Tribunal's Award and their interpretation is fundamental to the economic implications of the Award. The Plaintiff contends that the clauses in contention govern the retention of deferred payments and that at no time did the Defendant or the Tribunal make the points made by the Tribunal in the Award, either in writing or verbally at the hearing. It is for this reason that the Plaintiff asserts that it was not allowed to respond to interpretation of clauses governing the retention of deferrals. 6.21 I have perused through the proceedings before the Tribunal with particular attention to the following: paragraph 10 (1) on FA2, pages FAl0 to FA13 of the Final Award, clauses 36.4 to 36.6, 37 (c), (d), (e) and (g) of exhibit marked "GVS9" statement of case and clauses 39.4 and 43 of exhibit marked "GVS9" statement of Defence and counterclaim of the Plaintiffs affidavit, pages 7 4 to 76 of exhibit marked "FZ2" of the affidavit in opposition. 6.22 I have also perused through the Final Award and established that the two clauses in question were considered under Issue No. 4 by the Tribunal which is from pages FA76 to FA82 under paragraphs 87 to 111. What I have pointed to above constitute the campus of the issues surrounding ground three. My view is that the application of the Completion Agreement to SPA 2 and SPA 3 was very prominent in the documents and deliberations before the Tribunal and the parties were at liberty to address the issue comprehensively. At page 75 of "FZ2", RWl confirmed that the basis of the retention of the amounts that were before the Tribunal was the letter of 23rd October, 2018 which happens to be the Completion Agreement exhibited as "GVS 2" by the Plaintiff. On J41 .. page 76 of the proceedings there is an open question that was asked to the Plaintiffs witness RWl as follows: "Q. So, just to have clarity, aside from the supposed losses that were recorded in the year 2018, what other basis does Silverlands have for retaining the sum that is currently being disputed before this Honourable Tribunal which is approximately US$2.8 million?" That question gave the Plaintiff an open chance to cover the issue of the Completion Agreement and how it applied to SPA 2 and SPA 3 but chose not to comprehensively answer the question to cover the full basis of its position. It was not up to the Tribunal to guide the Plaintiff how to answer that question. Furthermore, the parties agreed to submit to the Tribunal all disputes and differences between them arising from the Share Purchase Agreements and the Completion Agreement according to exhibit marked "GVS6" at pages FA2 and FA3 of the Affidavit in Support. 6.23 Premised on what I have demonstrated above, I do not see how the Plaintiff can now say that it was not given an opportunity to be heard on a critical issue determined by the Arbitral Tribunal when it was given an opportunity to present its defence and counterclaim. Moreover, the Tribunal merely considered the whole Completion Agreement and the extent to which it altered SPA 2 and SPA 3. My view is that the Plaintiff has failed to furnish convincing proof that it was not given an opportunity to be heard by the Tribunal. 6.24 I now turn to the last ground, which is that the Arbitral Award dealt with an issue not contemplated by the parties based on Section 17(2) (a) (iii) of the Arbitration Act1. The Plaintiffs contention is that the Defendant herein, who was the Plaintiff before the Tribunal, merely sought to invalidate the Completion Agreement and did not ask for an alternative relief in the event that the Completion Agreement was found to be a valid agreement. The Supreme Court in the Road Development Agency case (supra) J42 when considering Section 17 (2) (a) (iii) of the Arbitration Act1 held as: "Arbitration is a dispute resolution mechanism which is party driven and depends on the consent of the parties. The parties define the nature and extent of their dispute which they place before the arbitrator by way of a submission or reference to arbitration. The arbitrator cannot determine the dispute beyond this submission and reference and if he does, he falls foul of section 17 (2) (a) (iii) of the Act.'' 6.25 A perusal of the Final Arbitral Award shows that after considering the entire claim and counterclaim, the Tribunal at paragraph 30 came up with the follow core issues for determination: 30.1 whether the Completion Document was simply a unilateral letter of waiver by the Respondent or whether it was binding and enforceable agreement between the Deceased and the Respondent that altered the SPAs; 30.2 What was the purchase price for the Shares under SPA 2 and SPA 3 and how much has been paid by the Respondent; 30.3 whether or not the Deceased breached any of the warranties under SPA 2 and SPA 3 and thereby: 30.3.1 affected his right to payment of the full purchase price; and/ or 30.3.2 entitled the Respondent to compensation from him and or his estate; and 30.4 whether the Respondent is otherwise entitled to enforce the Price Deferral provisions under SPA 2 and SPA 3 and the Net Loss Retention provisions under SPA 2. 6.26 I have looked at the statement of case and the statement of defence that were submitted to the Tribunal. It is clear from the said documents that the dispute and reliefs sought before the Tribunal were not limited to simply seeking to invalidate the Completion Agreement. The tribunal was asked to resolve the issue of payment between the parties taking into account SPA 2, SPA 3 and the J43 ... Completion Agreement. In fact, as already stated above, the Tribunal was asked to determine all the disputes and differences between the parties. The award would have been patently deficient in terms of depth if the issue of payment was determined without considering the extent to which the Completion Agreement altered the terms under SPA 2 and SPA 3 after holding that it was a binding agreement between the parties. With much prudence, the Plaintiff should have addressed that issue in its submission since its refusal to pay was based on the Completion Agreement with the belief that it altered or waived the requirement to prove breach of warranty in order to claim entitlement to the deferral amount and permanent retention of the same. My considered view is that the Arbitral Tribunal's interpretation of the entire Completion Agreement was contemplated and its mandate was not restricted to only clause 3.1.3. The Tribunal merely applied its mind to the issues that required determination and considered what was brought before it by the parties. This Court is precluded from deciding whether the reasoning of the arbitrators was erroneous. Therefore, the Plaintiff's contention has failed to meet the requirements of Section 17 (2) (iii) of the Arbitration Act1 m order to prove ground four. The ground has equally failed. 6.27 The net result is that the Plaintiff has failed to prove any of the four grounds to the required standard as guided in the case of Wilson Masauso Zulu v Avondale Housing Project Limited21 by the Supreme Court that the burden to prove any allegation is always on the one who alleges. 6.28 Lastly, I will deal with the Defendant's prayer that Counsel for the Plaintiff be ordered to pay costs personally for bringing a frivolous application before this Court. I agree with Counsel for the Plaintiff that it is within its rights to make permissible application before this Court in line with Section 10 of the Arbitration Act1• Furthermore, an aggrieved party has the right to apply for setting aside of an arbitral award under Section 17 of the Act. I take J44 .... cogmzance of the three stage test enunciated in the Necor Zambian Limited case (supra) which was adverted to by the Plaintiff. Order 62 Rule 11 of the Rules of the Supreme Court of England, 1965 (RSC)4 provides for personal liability of legal representative for costs. The explanatory note to Order 62/ 11/3 of the RSC4 states as follows: " ... the courts in the exercise of the wasted costs jurisdiction, should be astute to control the threat of a new and costly form of satellite litigation. When a wasted costs order was contemplated a three stage test should be applied: (a) Had the legal representative of whom complaint was made acted improperly, unreasonably or negligently? (b) If so, did such conduct cause the applicant to incur unnecessary costs? (c) If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?" 6.29 The terms improper, unreasonable and negligent are explained under the explanatory note to Order 62/11/4 of the RSC4 as follows: ""Improper" covered, but not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. "Unreasonable" aptly described conduct which was was (sic) vexatious, designed to harass the other side, rather than advance the resolution of the case, and it made no difference that the conduct was the product of excessive zeal and not improper motive. "Negligence" should be understood in an untechnical way to denote failure to act with the competence reasonably expected of ordinary members of the profession. In J45 adopting that approach the court firmly discountenanced any suggestion that an applicant for a wasted costs order needed to prove, under the negligence head, anything less than he would had to prove in an action for negligence. ... " 6.30 I hold the view that it has not been demonstrated as to how the conduct of Counsel for the Plaintiff in these proceedings can be said to be improper, unreasonable and negligent based on the conditions stated above. There is no convincing reason given in order for me to order that Counsel personally pays the costs. 6.31 Costs will follow the award costs to the Defendant against fault of agreement. J46