Zambia Cargo and Logistics Limited v David Chimfwembe (2024/HP/ARB/NO. 008) (2 April 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2024/HP/ARB/NO.008 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ZAMBIA CARGO AND LOGISTICS LI APPLICANT AND DAVID CHIMFWEMBE RESPONDENT Before: The Hon. Mr. Justice Charles Zulu For the Applicant: Mr. A.G. Akapelwa of Messrs Chibesakunda & Company, and & Mr. P. Chomba & Mr. P Chisunka of Messrs Mulenga, Mundashi Legal Practitioners. For the Respondent: Mr. B. C. Mutale SC., & Mr. T. Kasweshi, of Messrs Ellis & Co. RULING Cases referred to: 1. Otima Business Consultants Limited (in Liquidation) Platinum Gold Equity Limited v Platinum Investments Limited (Appeal No. 195/2016). 2. Daws v Daily Sketch & Sunday Graphic Ltd (1960) 1 ALL E.R. 397. 3. Wood v Farr Ford Ltd 2008 CanLII 53848 (ONSC) at paras 24-26. Legislation and other materials referred to: 1. The High Court Rules (HCR), Chapter 27 of the Laws of Zambia. 2. The Arbitration (Court Proceedings) Rules, Statutory Instrument No. 75 of 2001. 3. Dr. Patrick Matibini, Zambian Civil Procedure Commentary and Cases, Vol. l(South Africa: Lexis Nexis, 2017). 1.0 INTRODUCTION 1.1 This ruling is in respect of the Applicant's application for an order for consolidation of actions: to combine this action with Cause No. 2023/HPC/785, actively before the Commercial Division. The application was made pursuant to Orders III rule 5 of the High Court Rules (HCR) Chapter 27 of the Laws of Zambia read together with Rule 38 of the Arbitration (Court Proceedings} Rules of 2001. Order III rule 5 HCR provides: 1.1.1 Causes of matters pending in the Court may, by order of the court or a judge, be consolidated, and the court or a Jude shall give any direction that may be necessary as to the conduct of the consolidated actions. 1.1.2 And Order 38 rule 1 of Arbitration (Court Proceedings) Rules of2001 provides: 1. 2 .1 Where these Rules do not provide for any particular matter or do not make sufficient provision enabling a court to dispose of a matter before it or to enable a party to prosecute its case, the Rules of the High Court or of the Subordinate Court, as the case may be, relating to civil proceedings with these Rules. 2.0 BACKGROUND 2.1 The present cause has its annals from arbitral proceedings between the Applicant and the Respondent. The Respondent was employed as the Chief Executive Officer of the Applicant -R2- Company; a company incorporated in the United Republic of Tanzania. A dispute was manifest after the Respondent's contract of employment was terminated in 2023. Thereafter arbitration proceedings were instituted at the instance of the Respondent; claiming general and special damages for breach of contract. 2.2 Dr. Leonard Nkole Kalinde was appointed the sole arbitrator to preside over the dispute. And in his final award dated February 5, 2024, the Arbitrator inter alia held that: the Respondent's contract of employment renewed for another term of three with effect from March 16, 2023 was wrongfully terminated by the Applicant. 2.3 The Applicant on April 26, 2024 took out the present action, seeking to have the said final award set aside for being contra to public policy; the ground inter alia advanced was that, the arbitral award dealt with a dispute not contemplated or falling within the scope of the arbitration agreement. 2.4 It should also be noted that, in the course of arbitration proceedings, the Applicant raised a notice of motion for determination of preliminary issues relating to whether the arbitral tribunal had jurisdiction to hear and determine the dispute, granted the claims thereof supposedly arose post the expiration of the contract of employment. The determination by the Arbitrator was embedded in a partial award, by holding that, he had jurisdiction. Consequently, the Applicant took out an action under cause number 2023/HPC/785 in the Commercial Division of the High Court, seeking to have the partial award set -R3- aside. It is this Cause No. 2023/HPC/785, the Applicant seeks to be consolidated with the present action. 3.0 AFFIDAVIT EVIDENCE 3. 1 Having given the above common background, and bearing in mind that the issue in dispute is one that is largely legal in nature, I will not labour to reproduce summaries of the depositions stated in the affidavits, because the parties' positions and arguments are ably reflected in their respective arguments here-below stated. 4.0 ARGUMENTS 4.1 The Applicant's Counsel observed that, the two matters sought to be consolidated deal with two arbitral awards, emanating from the same arbitration proceedings. It was argued that the purpose of consolidation was aimed at ensuring common issues of facts and questions of law were tried by one and the same Judge, to avoid conflicting decisions and multiplicity of actions. 4.2 It was argued that the challenge to the two awards relate to common questions regarding the 2020 contract of employment. It was submitted that in the partial award, the Arbitrator made an inconclusive determination that the contract was renewed, and that in the final award the Arbitrator went on to determine that the contract had been renewed, and was wrongfully terminated by the Applicant. That the challenge against the two awards respectively raised the issue of jurisdiction; that the Arbitrator exceeded the scope of the submission to arbitration. 4.3 It was submitted that this Court under the law relied on by the Applicant was vested with jurisdiction to order a consolidation -R4- of the actions herein. It was added that the grant of the application was necessary to avoid the danger of having conflicting decisions in the two actions. 4.4 In support of the application an excerpt from the learned author, Dr. Patrick Matibini's book: Zambia Civil Procedure Commentary and Cases Vol 1 was cited, wherein at page 323, he submits as follows: 4.4.1 In the High Court where, separate matters have already been instituted by different parties, it may sometimes be convenient to consolidate the different actions into a single action. The primary purpose of consolidation of actions is to have the issues which are substantially similar, tried by a single hearing in order to save time and costs that ensure from multiplicity of actions. Therefore, where there are two or more Applicants and two or more causes of action, they may be consolidated into a single action if the right to relief and the causes of action arises from the same act or transaction or there is 'some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the actions to render it desirable that the whole should be disposed at the same time. 4.5 Reference was also made to the case of Otima Business Consultants Limited (in Liquidation), Platinum Gold Equity Limited v Platinum Investments Limited1 where the Supreme Court held: 4.5.1 Normally, where two or more matters are pending in the same Court and it appears to the Court that some common questions of law -RS- parties in both or all of them, or that the rights to relief claimed therein are in respect of or arise out of the same transactions or series of transactions or for reason it is desirable to do so, the court ay order those causes or matter to be consolidated on such terms as it thinks just or to be heard at the same time. in this appeal it is. apparent that there are a number of parties litigating over the same common question of law or fact before different judges and several actions have been commenced almost the various parties. The appropriate step the parties should have taken first was to apply to consolidate the various actions into one suit so they are tried at the same time before a single judge. This has the advantage of avoiding multiplicity of actions, conflicting decisions and according to the notes to).4 r.9 RSC, it serves costs and time. 4.6 I was urged to grant the application. 4. 7 In opposition, it was firstly contended that the Court is divested of jurisdiction to consolidate the two actions pending in two separate divisions, unless they were pending before the same division. Order 4 rule 9(1) of the RSC was cited, which provides that: a consolidation of actions only applies to matters that are pending in the same division. It was noted that whereas the matter in the Commercial Division involves a challenge to an interlocutory decision, the matter herein involved a challenge to a final award. 4.8 Secondly, the case of Daws v Daily Sketch & Sunday Graphic Ltd2 was relied on, where it was held: , 4.8.1 In the absence of any summons in the first action the court had no Jurl.sdtctton to make an order in the second action purporting to direct how the first action should proceed. -R6- 4. 9 Additionally, the learned author, Dr. Patrick Matibini's book titled: Zambia Civil Procedure Commentary and Cases Vol 1, (supra) was also cited by the Respondent, where at page 326, the author submits: 4.10.1 The application for consolidation of actions should be made as soon as possible by summons or on the application of summons for direction if the application has not been made before. A separate summons should be issued in each action proposed to be consolidated or one summons may be issued provided it fully sets out the title of each such actions. The principle is that the actions to be consolidated or tried together should be before the court at the same time. 4 .11 I was urged to dismiss the application. 4.12 And in reply, it was argued that the argument stating that the consolidation was untenable because the matters were sitting in two separate divisions was misconstrued because, the High Court was one. It was contended that, in the light of our High Court Rules, Order 4 rule 9(1) RSC was not applicable. 5.0 DETERMINATION 5.1 I have carefully considered the facts in issue and the arguments thereof. At the outset it is imperative to appreciate the legal effect of consolidation. And the effect can be distilled from remarks expressed in the case of Wood v Farr Ford Ltd3 by , Judge Quinn, who stated that: 5.1.1 Where two actions are consolidated, they become, and proceed as, one action. Thus, there is one set of pleadings, one set of discoveries, one judgment, and one bill of costs. -R7- 5.2 In general terms, Order III rule 5 HCR only makes provision for consolidation of actions pending in the High Court. But this prov1s1on 1s subject to further considerations, which considerations inter alia by default rule are spelt out under Order 4 rule 9(1) of the RSC, and the same provides: 5.2.1 1. Where two or more causes or matters are pending in the same Division and it appears to the Court - (a) that some common question of law or fact arises in both or all of them, or (b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this paragraph the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them. 5.3 While the parties in the two actions are the same, and while the facts, the questions and issues under Cause No 2023/HP/785, are typically similar to the matters herein, and prima Jacie ideal for determination by one Judge than in scattered litigation, the tenability of the application to turn the two actions into one is without obvious procedural considerations. 5.4 It is remarkable to note that, the actions sought to be consolidated are not sitting in the same division, and that renders the fate of this application inevitable. The baseline for consolidation would have been for the Applicant to start by applying for the transfer of this matter from here to the -R8- Commercial Division, and have this matter consolidated with the Commercial Division matter, which was filed earlier in time than the present action. 5.5 Even assuming arguendo that consolidation of the two actions was permissible for some reasons, nevertheless, I am disinclined to allow a consolidation. Ironically, the arbitration process was concluded before the preliminary issue migrated to litigation was even concluded. In the light of the fact that the present action comprehensively challenges the final award, and incorporates the ground advanced for seeking to set aside the partial award, Cause No 2023/HPC/785 should consequentially abate. 5.6 In fact, a timely resolution of this action whatever the outcome would ultimately render the action under Cause No. 2023/HPC/785 moot. 6.0 CONCLUSION 6.1 In the light of the foregoing, the application for consolidation is dismissed with costs. Accordingly, the hearing of the main matter slated to take place on April 7, 2025 at 10:00hrs shall proceed as scheduled. 6.2 Leave to appeal is granted. DATED THE 2N°DAY OF APRIL, 2025 - ~e;:---=::::::::::::::--===="'--- 5;; ~ - ...................................................,. .......... THE HON. MR. JUSTICE CHARLES ZULU -R9-