Silk Bridges LLP v Zebesha Mining Limited (2024/HPC/ARB.0181) (27 June 2024) – ZambiaLII

.. IN THE HIGH COURT FOR ZAMBIA 2024/HPC/ ARB.0181 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA HfGH COURT OF ZAMB\A (Civil Jurisdiction) JUDICIARY COMMERCIAL o,v,s,oN BETWEEN: 2 7 JUN 20t'i ~ I REGfSTRV P.O. BOX 50067 LUSAI( SILK BRIDGES LLP APPLICANT AND ZEBESHA MINING LIMITED RESPONDENT • Before: Honourable Lady Justice Chilombo Bridget Maka For the Applicant: Mr. I. Sampa - Messrs. B& M Legal Practitioners. For the Respondent: Messrs. Freddie & Co. - No Appearance. RULING Legislation Referred to: 1. The High Court (Amendment) Rules, Act No.58 of 2020 2. The Arbitration Act No. 19 of 2000. 3. Arbitration (Court Proceedings) Rules, Statutory Instrument No. 75 • of 2001 . Cases Referred to: 1. Zambia Export and Import Bank vs. Mkuyu Farms Limited and Others (1993-1994) Z.R, 36. 2. S. Brian Musonda (Receiver of First Merchant Bank (In Liquidation) vs. Hyper Foods Products Limited and Two Others (1999) Z.R, 124 (S.C). 3. Cash Crusaders Franchising (PTY) Limited vs. Shakers and Movers Zambia Limited 2008/HP/ARB/No. 001. 4. Savenda Management Services Limited vs. Stanbic Bank Zambia Limited Selected Judgment No. 39 of 2017. 1. Introduction. 1.1. This is the Respondent's application to pay the arbitral Award in monthly instalments. The Application is made pursuant to Order 36 Rule 9 of the High Court Rules as read together with Order 4 7 Rule 1 of the Rules of the Supreme Court 1999 edition. 1.2. The summons was accompanied by an affidavit and • skeleton arguments both dated the 15th May, 2024 . 1.3. The Applicant contested the application and filed an affidavit in opposition and skeleton arguments on 3rd June, 2024. 2. Background. 2.1. On 14th March, 2024, the Applicant took out an exparte Originating Summons for Registration and Enforcement of an arbitration Award. The summons were pursuant to section 18 of the Arbitration Act No. 19 of 2000 as • read with Rule 16 of the Arbitration (Court Proceedings) Rules 2001, Statutory Instrument No. 7 5 of 2001. 2.2. The Hon. Registrar of the High Court (Commercial Division) granted the exparte Order to register the Arbitration Award on 22nd March, 2024. 2.3. Thereafter the Notice of Registration of an Arbitral Award was filed into Court on 17th April, 2024. An affidavit of service dated 20th April, 2024 indicated that R2 the Notice was duly served on the Respondent's Advocates. 2.3. It was subsequent to the above processes that the Respondent filed an exparte Order to stay execution of the Arbitral Award pending the determination of summons to pay the Award in monthly instalments. 2.4. I declined to grant the exparte Order for stay of execution of Arbitral Award, and directed that it be heard interpartes. 2.5. I decided to hear and determine the application to pay • arbitral Award in installment as its outcome would impact the application to stay execution of the Award. 3 . Affidavit in Support of Summons. 3.1. Nathan Mumba, the Finance Manager in the Respondent was the deponent of the affidavit. The gist of his evidence was that the Arbitral Tribunal rendered its Award on 27th November, 2023. 3.2. That subsequent to the Arbitral Award, the Respondent • had made efforts to make payments to the Applicant despite the financial challenges it faces. 3.3. It was contended that because of the threat of execution, the Respondent has engaged the Applicant to consider an affordable payment plan. 3.4. The Respondent thus requests the Court to grant an order to liquidate the Award in monthly installments of USD30,000.00. 3.5. R3 4. Legal Arguments. 4.1. The submissions quote Order 36 Rule 9 of the High Court Rules and 47 Rule 1 of the White Book being the anchor provisions upon which the application is premised. 4.2. It was submitted that as was held in Zambia Export and Import Bank vs. Mkuyu Farms Limited and Others11 l, the Court may order that a Judgment debt be satisfied in installments upon sufficient cause being shown. 4.3. It was pointed out that the Respondent has demonstrated that despite the financial challenges its experiencing, they • have been paying the applicant in installments. That the Respondent has shown commitment to settle the Award in full and has shown reasonable and sufficient cause to support the grant of the application. 4.4. The case of S. Brian Musonda (Receiver of First Merchant Bank (In Liquidation) vs. Hyper Foods Products Limited and Two Others12 was referenced to 1 argue that the Court is reposed with equitable jurisdiction to afford relief were a Judgment debtor can pay within a reasonable time. • 4.5. The Respondent's request was to be allowed to continue settling the Award sum in monthly installments of US$30,000.00. 5 . Affidavit in Opposition. 5 .1. The gist of the evidence in opposition was that this Court does not have the power to re-adjudicate and address any of the issues arising out of the Award. That the Arbitral R4 Award dated 27th November, 2023, reveals that the Applicant was awarded sums to be settled within 21 days from date of the Award. 5.2. That the Award has since been registered and that this Court has no jurisdiction to order the payment of the Award sum in monthly instalments. 6 . Skeleton Arguments in Opposition. 6.1. The gist of the submissions pertain to the role of the Court • in Arbitral Proceedings as elucidated in the case of Cash Crusaders Franchising {PTY) Limited vs. Shakers and Movers Zambia Limitedl3 ). 6.2. Section 20 of the Arbitration Act was pointed out to the effect that the arbitral award was final and binding on both parties. That the only remedy was to apply to set aside the Award within three months, which period has elapsed. 6.3. The second aspect of the submission pertains to this Court's jurisdiction to grant the order for payment in installments. • 6.4. It was contended that as was held m Savenda Management Services Limited vs. Stanbic Bank Zambia Limited141 this Court has no jurisdiction to order that , payment of an arbitral award be in installments. 6 .5. It was thus contended that the application has no merit and should be dismissed with costs. RS 7. Hearing of the Application. 7 .1. The application first came up for hearing on 6th June, 2024. Counsel representing both parties were before Court. 7.2. Counsel for the Respondent Mrs. T. Chisela Banda requested for an adjournment so as to file an affidavit in reply. The application for adjournment was granted and the hearing of the application was adjourned to 21st June, 2024. • 7.3. When the matter came up for hearing on 2 1st June, 2024, Counsel for the Respondent was not present and no reasons were advanced for the absence. 7 .4. On account that Counsel for the Respondent was fully aware of the return date, I proceeded to hear the Applicant on the application and to determine the application based on documents in so far as the Respondent is concerned. This is authorized under Order 30 Rule 6A( 1) of the High Court (Amendment) Rules. 7.5. On behalf of the Applicant, Mr. Sampa relied on the • affidavit in opposition . 8. Consideration and Determination. 8.1. I have considered all the evidence and the written submissions by both parties. 8.2. It is trite that the arbitral tribunal rendered its Final Award on 27th November, 2023. The dispositive part of the Final Award, exhibited as "AT 2" indicates that the Respondent R6 was ordered to pay the Applicant the sum of USD842,465.50 as full and final settlement. In addition, the Respondent was to pay total costs of the arbitration in the sum of USD6,331.70 and ZMWl l ,157.00 within 21 days of the date on which the Award was notified to the parties. 8.3. Failure to pay the Award sum ofUSD842.465.50 within 2 1 days, post award interest shall continue to accrue at the daily rate of 0.2% until date of final payment of all outstanding sums owed. • 8.4. It is trite law that an arbitral Award is final and binding on the parties. This is contained in section 20 of the Arbitration Act, which states that: "Subject to subsection (2) and (3), an award made by arbitral tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any person claiming through or under them". 8.5. The role of the Court therefore after an Arbitral Award is made is limited to either enforce or resist the award. The • limited grounds upon which the Court may refuse the recognition and enforcement of the arbitral award are set out in section 19 of the Arbitration Act. 8.6. Similarly, a party may challenge the arbitral award and seek to set it aside on limited grounds set out in section 17 of the Act. R7 8. 7. In casu, the Respondent is not challenging the arbitral award nor have they resisted its registration and enforcement. 8.8. The Respondent is seeking to pay the Award sum in installments and has relied on Order 36 which provides for payment of Judgment sum in installments. 8.9. In the case of Savenda Management Services Limited vs. Stanbic Bank Zambia Limited(3l, the Supreme Court determined whether this Court has jurisdiction to order payment of an Arbitral Award in installments. The Court • held that the High Court lacks jurisdiction to entertain applications for paying Arbitral Awards in installments. Furthermore, the Supreme Court emphasized that allowing such installment payments would undermine the fundamental purpose of arbitration. 8.10. Based on the preceding information, it is evident that this Court lacks jurisdiction to consider the Respondent's application for paying the Award amount in installments 9 . Conclusion. • 9 .1. After an arbitral award is rendered, the role of the High Court is limited to enforcement of the award or setting it aside. The grounds upon which the Court can intervene are limited to maintain the finality of Arbitral Awards. 9.2. Where an Arbitral Award has set out the period within which the arbitral sum is to be settled, that decision is final and binding. R8 9.3. Consequently, the Supreme Court has determined that the High Court has no jurisdiction to entertain an application to pay the arbitral award in instalments. 9. 4. The Respondent's application is therefore one that is misconceived as it is directed at the Court which has no jurisdiction to entertain it. 9.5. Consequently, the application to pay arbitral Award in instalments is dismissed with costs to the Applicant be taxed in default of Agreement. • 9.6. In view of the foregoing outcome, the application to stay execution of Arbitral Award is rendered otiose and its equally dismissed. Delivered at Lusaka this 27th day of June, 2024 ················~ ··:······· Chilombo Bridget Maka HIGH COURT JUDGE • R9