IN THE SUPREME COURT OF ZAMBIA SCZ/08/14/2021

HOLDEN AT LUSAKA
(Civil Jurisdiction)

BETWEEN

KNOX MAGUGU MBAZIMA APPLICANT

TOBACCO ASSOCIATION OF ZAMBIA RESPONDENT

Coram: Malila CJ, Wood and Kabuka, JJS

on 10th May, 2022 and 9th November, 2022

For the Applicant: In Person

For the Respondent: Ms. M. L. Nkhonde of Messrs Mweshi Banda and '
Associates

RULING

Malila, CJ delivered the ruling of the Court.

Cases referred to;

1. Bellamano v. Ligure Lombarda Limited (1) (1976) Z.R. 267 (S.C.)
2. Kansanshi Mine Plc v. Joseph Maini Mudumina & Others (Appeal No.
149/2010)
3. Zambia Telecommunications Company Limited v. Muyawa Liyuwa SCZ
No. 16 of2002
4. Rosemary Nyangu v. Pamodzi PLC SCZ/8/ 08/2021
5. Clever Mpoha and Savenda Management Services v. ETS Rwasa
Salvator SCZ/8/25/2021
6. ZCCM Investment Holdings PLC v. Muyangwa Mufaioli & 141 Others
(Selected Judgments No. 14 of 2017)
7. National Milling Company Limited v Vashee (2000) Z.R. 98
 R2

8. Westacre Investments Limited v. Jugo Import - SDPR Holding Company

Limited [1999] 3 ALL ER 864
9. Takhar v. Gracefield Developments Limited {2019] EWCA Civ. 13
10. Natasha Nawa v. The People (SCZ/9/2/2019)
11. Bidvest Food Zambia Limited & Others v. CAA Import and Export
Limited (SCZ Appeal No. 57 of 2017)
12. Standard Chartered Bank Zambia PLC v. Wisdom Chanda &
Christopher Chanda (SCZ Judgment No. 18 of 2014)
13. ZCCM Investments Holding PLC v. Vedanta Resources Holding Limited
and Konkola Copper Mines PLC (SCZ Appeal No. 14 of2021)
14. Savenda Management Services v. Stanbic Bank Zambia Limited
Selected Judgment No. 10 of 2018

Legislation and other works referred to:

1. Arbitration Act No. 19 of2000
2. Court of Appeal Act No. 7 of 2016
3. Rules of the Supreme Court of England (White Book) 1999 Edition
4. Rule 48 (4) of the Supreme Court Rules
5. Practice Direction No. 1 of2002

1 .0. INTRODUCTION AND BACKGROUND FACTS

1.1. We regret the delay in delivering this ruling. It was

occasioned by circumstances beyond our control.

1.2. The present application was filed pursuant to Rule 48 (4)

of the Supreme Court Rules. It is a renewed application

coming to us following a refusal by a single judge to grant

leave to appeal against a judgment of the Court of Appeal

given on 4th November, 2020.

 R3

1.3. The background to the application is that the parties

enjoyed an employer-employee relationship. During the

course of this relationship, they executed various

contracts of employment. In the contract subject of these

proceedings, the parties had agreed that any dispute

between them arising out of their relationship would be

settled through arbitration.

1.4. As fate would have it, a dispute ensued between the

parties. The matter was referred to arbitration and an

award was subsequently given. The applicant was

incensed by the award rendered. This prompted him to

move the High Court in an attempt to have the arbitral

award set aside.

1.5. The sole ground forming the bedrock of his

discontentment with the award was his conviction that

part of the evidence adduced by the respondent during the

arbitral proceedings was tainted with fraud.

 R4

1.6. After hearing the parties, the High Court noted that the

applicant had failed to challenge the alleged fraudulent

evidence at arbitration. Regarding the matter before it, the

High Court found that the applicant had failed to

demonstrate that the arbitral award was founded on

fraudulent evidence. It thus held that the applicant had

failed to distinctly allege and prove fraud to warrant

setting aside the award.

1.7. Consequently, the court found no merit in the application

to set aside the arbitral award and dismissed it.

1.8. Determined to have the arbitral award set aside, the

applicant escalated the matter to the Court of Appeal.

There he raised issue, unsuccessfully, with the

respondent’s locus standi as a party to the proceedings. In

the appeal, the applicant again challenged the evidence

that was admitted and relied upon by the arbitral tribunal.

The appeal hinged on the argument that the arbitral award

was tainted by fraud, serious irregularities and

misrepresentation.
 R5

1.9. The Court of Appeal, in a nutshell, was of the view that the

award was not induced or affected by fraud or serious

irregularities, neither was it blemished with

misrepresentation. The court, as did the High Court,

refused to set aside the award, citing the failure to meet

the requirements under section 17(2)(b)(iii) of the

Arbitration Act as the reason. The appeal was thus

dismissed in its entirety.

1.10. The applicant’s attempt to obtain leave to appeal to this

Court from the Court of Appeal was unsuccessful. The

court’s basis for the refusal was that the applicant did not

satisfy the threshold for the grant of leave as set out in

section 13 of the Court of Appeal Act. Section 13 (3) of the

Court of Appeal Act stipulates that:

13.(3) The Court may grant leave to appeal where it

considers that—
(a) the appeal raises a point of law of public
importance;

(b) it is desirable and in the public interest that

an appeal by the person convicted should be
determined by the Supreme Court;

(c) the appeal would have a reasonable prospect of

success; or
 R6

(d) there is some other compelling reason for the

appeal to be heard.

1.11. Troubled by the court’s refusal to grant leave, the

applicant moved a single judge of this court by way of

renewal of the application for leave to appeal. The single

judge condensed the issues raised in the proposed appeal

into a solitary question. In his view, the question was

simply whether or not the award should be set aside and

whether this falls within the intendment of section 13 (3)

of the Court of Appeal Act. He noted that the applicant,

through his intended appeal, seeks to raise procedural

issues that arose at arbitration as opposed to highlighting

the basis upon which the award must be set aside in

keeping with the provisions of section 17 of the Arbitration

Act.

1.12. The single judge concluded that the intended appeal does

not reveal any prospects of success, nor does it raise any

point of law of public importance to justify the grant of

leave to appeal. The renewed application for leave to

appeal thus fell on stony ground.

 1.13. Riled by the decision of the single judge, the applicant has

now decided to take his chance with the full Court, still

eager to obtain leave to appeal, and hence the current

motion.

2 .0. APPLICATION TO AMEND MOTION

2.1. When the motion came up for hearing, the applicant made

an application to amend his motion. We refused the

application and heard the motion in the manner and form

it was initially filed. We had indicated then that we would

give our reasons for our refusal later. We now do so.

2.2. For the sake of brevity, we shall not belabor or rehash all

the issues that the applicant raised in his application to

amend the motion. Suffice it to say that the applicant’s

application was made pursuant to Order 20 of the Rules of

the Supreme Court of England (White Book) 1999 Edition.

To assist him move the court, the applicant also relied on

Order 18 of the High Court Rules. In his oral submissions

at the hearing, he made his intention to amend the motion

clear.
 R8

2.3. Ms. Nkhonde, Counsel for the respondent, informed us

that she did not file any response to the application in

question but opted to oppose the application viva voce, on

points of law. She quickly pointed out that the Rules of the

High Court relied upon by the applicant are not applicable

in our court.

2.4. She was, however, of the view that even if we allowed the

proposed amendment, the same would not assist the

applicant’s case. In any event, counsel argued, the

respondent’s affidavit in opposition to the motion would

still adequately address the issues the proposed

amendment sought to raise.

2.5. We perused the applicant’s application and noted, as did

the respondent, that the applicant relied on wrong law in

moving the court. In providing the legal basis for

applications made in the Supreme Court, High Court rules

are obviously alien to this court. We must hasten to state

that it is always necessary for parties to not only cite the

law that they seek to rely upon when moving the court but
 R9

to also, most importantly, cite the correct law. In the case

of Bellamano v. Ligure Lombarda Limited W we guided that

when moving a court:

It is always necessary ... for the summons or notice of

application to contain a reference to the order and rule
number or other authority under which relief is sought.

Our decision in Kansanshi Mine Plc v. Joseph Maini

Mudumina & Others <2> is to the same effect.

2.6. Practice Direction No. 1 of 2002 requires all applications

brought to court to indicate the Act and Section or Order

and Rule under which applications are made. This

position applies now as it did then.

2.7. Besides the attempt to move the court under wrong rules,

a perusal of the proposed amendments, revealed that the

amendments would not materially alter the applicant’s

motion in its initial form.

2.8. It was for the foregoing reason that we refused to allow the

proposed amendment and instead heard the applicant’s

motion in the form and manner in which it was filed.

 RIO

Inevitably, this meant that we invoked our inherent

discretion and ignored some of the irregularities manifest

in the manner in which the motion was presented.

2.9. One irregularity we noted is by no means insignificant.

The applicant presented the motion to us as an appeal

against the decision of the single judge as opposed to it

being presented as a renewed application. This is apparent

from paragraph 5 of the applicant’s affidavit in support of

the motion where he states that:

I have indicated my grounds of appeal against the ruling

of the single judge of the Supreme Court...

The applicant, in fact, sets out six grounds of appeal

against the decision of the single judge at page 207 of the

record of motion.

2.10. We have stated on numerous occasions that an

application or motion properly comes from a single judge

to the full Court by way of renewal and must be presented

as such. It is not an appeal necessitating new grounds

premised on the decision of the single judge. In Zambia

 Rll

Telecommunications Company Limited v. Muyawa Liyuwa*3) we

stated as follows:

...we want to state here for the benefit of litigants and

advocates who appear before judges of this court at
chambers, that when aggrieved, or dissatisfied by any
decision of a single judge of this court, they come to a
full court by way of renewal of the application or motion
and not by way of appeal. This is so because in terms of
section 4 of the Supreme Court Act, Cap. 25 of the Laws
of Zambia a single judge of the court may exercise any
powers of the court not involving the decision of an
appeal or a final decision in the exercise of his original
jurisdiction...the renewed application is not an appeal.

2.11. We must again warn all litigants that come before us that

presenting a motion before the full Court that emanates

from a decision of a single judge in the form of an appeal is

fatal. In Rosemary Nyangu v. Pamodzi PLC<4) and more

recently in Clever Mpoha and Savenda Management Services v.

ETS Rwasa Salvator(5> we dismissed the motions on account

that they were erroneously presented to us as appeals

from decisions of a single judge as opposed to renewed

applications.
 R12

2.12. We shall revert to this important issue later in this ruling.

For now, we shall turn to consider the applicant’s motion.

3 .0. NOTICE OF MOTION FOR LEAVE TO APPEAL TO THIS COURT: THE

APPLICANT’S CASE

3.1. As we indicated earlier in this ruling, the applicant was

aggrieved by the decision of a single judge of this court.

He has now moved the full court seeking leave to appeal.

3.2. The applicant swore the affidavit in support of the motion.

In his words, the “grounds of appeal against the ruling of

the single judge of the Supreme Court [appear] on page

207”.

3.3. The ‘grounds’ of appeal, as the applicant puts it, are

reproduced, below:

a) The single Judge erred and severely prejudiced the

Applicant by failing to pronounce himself on Ground one
as shown [on] page 132 of the Applicant’s Supplementary
to the Ex-parte motion for leave of Court to appeal to
the Supreme Court.

b) The single judge did not address and pronounce himself

[on] ground two on page 132 regarding the locus standi
of one Owen Simukoko (Late).
 R13

c) The single Judge erred in fact by not pronouncing

himself on the Applicant’s challenge to the Court of
Appeal Judgment of 4th November, 2022 reported on
page 133 of a misrepresented] case law Westacre
Investment Limited v. Jugo Import - SDPR Holding
Company Limited.

d) In his ruling of 9th March, 2021, the single judge

misdirected himself by concluding that the Applicant
had limited his appeal to applying of grounds of an award
premised on fraud, corruption and misrepresentation as
stated in Section 17 of the Arbitration Act (2) and (3)
when in fact on his page 137 last paragraph and 138 first
paragraph he actually indicated that the applicant had
challenged the locus standi of Mr. Owen Simukoko (Late)
and that of the jurisdiction of the Respondent suing in
its name when it was a voluntary unincorporated
association which was not a legal entity effectively
denying the Court jurisdiction which was a challenge to
the Arbitral award under Section 17 subsection 2 (b)(iii)
of the Arbitration Act in regard to an award that was
against public policy.

e) The Single Judge erred in law and fact when he ruled

that court[s] are not concerned with matters of
procedure in civil matters when in fact there exists civil
procedure rules that courts use in English Courts whose
laws are the basis of our own laws.

f) The learned judge, by holding an award in which key

evidence being the Forensic Audit was relied upon but
not produced failed to pronounce himself on the matter
 R14

of fraudulent concealment of evidence to adduce an

award.

3.4. It is on the basis of the above ‘grounds’ that the applicant

entreats us to reverse the ruling of the single judge. We are

alive to the fact that before the Court of Appeal, the

applicant formulated proposed grounds of appeal which

were different from those presented before the single

judge. We have had sight of both of them and note that

their substance is essentially the same.

3.5. In his affidavit, the applicant avers that he has exhibited a

forensic audit report authored by a firm called Walis

Management Accountants dated 30th November, 2012. He

revealed that a copy of this report was sent to him on 22nd

May, 2019. On the strength of this report, which

apparently speaks to the allegations of fraud at

arbitration, the applicant urged us to reverse the decision

of the single judge and grant him leave to appeal to this

court.
 R15

3.6. In his skeleton arguments, the applicant recounted, in

sequence, the facts that culminated into the case before

the arbitral tribunal up until the decision of the tribunal.

More relevantly, he argued that the decision of the arbitral

tribunal did not take into account the contents of the

forensic audit report.

3.7. The applicant maintained that he challenged the award on

the basis that the respondent, being an association, has

no legal capacity to be party to these proceedings. This

argument, according to the applicant, also extends to the

respondent’s witness, at the arbitral tribunal and in the

High Court, a Mr. Simukoko. The applicant claimed that

Mr. Simukoko had no capacity to give evidence for and on

behalf of the respondent.

3.8. The applicant went on to argue that the question of locus

standi, at least in relation to the respondent, goes to

jurisdiction. More forcefully, he argued that the question of

jurisdiction can be raised at any stage of the proceedings.

To buttress this point, he referred us to our decision in

 R16

ZCCM Investment Holdings PLC v. Muyangwa Mufalali & 141

Others <6>.

3.9. The applicant invited us to consider the legal capacity of

the respondent as a party to these proceedings against the

guidance we gave in National Milling Company Limited v.

Vashee*7) that an unincorporated association is not a legal

person and, therefore, cannot sue or be sued.

3.10. It was the applicant’s contention that the question of legal

capacity of the respondent was raised at arbitration but

was never addressed by the tribunal. However, he was

unable to point to a portion in the record of motion

showing that the issue was indeed raised at arbitration.

3.11. The applicant questioned why the forensic audit report

was never considered by the arbitral tribunal when, in his

estimation, the report showed the extent of the fraudulent

evidence that was accepted and relied upon by the

tribunal.
 R17

3.12. Aside the procedural issues that the applicant raised he

argued that it was wrong for the Court of Appeal to rely on

a non-existent passage purportedly extracted from the

case of Westacre Investments Limited v. Jugo Import - SDPR

Holding Company Limited*8). He submitted that the Court of

Appeal judgment must be set aside on this basis alone.

This, according to Mr. Mbazima, is in keeping with the

views of the Supreme Court of England and Wales in

Takhar v. Gracefield Developments Limited*9*. In this case the

Supreme Court of England intimated that a judgment

obtained by fraud ought to be set aside.

3.13. In closing, the applicant invoked the spirit of justice,

referring us to Article 118(2)(e) of the Constitution which

directs that justice should be administered without undue

regard to procedural technicalities.

3.14. We were urged to grant the applicant leave to appeal to

this court as, in his view, the issues he has raised in the

intended appeal are of public importance.

 R18

4 .0. THE RESPONDENT’S CASE

4.1. The respondent opposed the application and filed an

affidavit in opposition deposed to by Counsel for the

Respondent, Mrs. Mweshi Banda-Mutuna. She informed

us, through that affidavit, that the High Court dismissed

the applicant’s matter on account of his failure to prove

the allegations of fraud to the satisfaction of the court.

4.2. She averred that, on appeal, the lower court equally

dismissed the applicant’s case with costs and

subsequently refused to grant him leave to appeal. She

went on to state that the applicant’s attempt, before the

Court of Appeal, to have its decision varied on account

that it incorrectly applied the case of Westacre Investments

Limited v. Jugo Import - SDPR Holding Company Limited'8)

failed.

4.3. According to the deponent, the applicant also

unsuccessfully sought leave to appeal to this court before

a single judge of this court.

 R19

4.4. In addition to relying on the affidavit in opposition, Ms.

Nkhonde, counsel for the respondent, in her skeleton

arguments, gave a brief background of the matter and

raised objections regarding the form of the motion.

4.5. At the hearing, we ruled that we would hear, and did in

fact hear, the motion in its original form for the reasons we

have given at paragraphs 2.7 and 2.8 of this ruling.

Therefore, we shall not reproduce the arguments raised

regarding the imperfections in form, of the motion.

4.6. With regard to the substance of the motion, counsel

argued that the application does not meet the threshold

set out in section 13 of the Court of Appeal Act 7 of 2016.

According to her, the applicant has not given any reason

why leave should be granted.

4.7. Ms. Nkhonde stressed the fact that the Applicant

discusses, in his motion, issues irrelevant to his

application for leave. She went on to submit that in line

with section 13(3) of the Court of Appeal Act, an appeal

will only be allowed if it raises a point of law of public

 R20

importance or has prospects of success or there is some

other compelling reason for the appeal to be heard by this

court.

4.8. According to Counsel, this motion is bound to fail if the

guidance we gave in Natasha Nawa v. The People*10* and

Bidvest Food Zambia Limited and Others v. CAA Import and

Export Limited*1 D is anything to go by. The gist of our

sentiments in these cases, particularly in the Bidvest*11*

Case, is that appeals to this court are restricted to only

those raising weighty issues deserving our determination

and pronouncement. We emphasized that the purpose of

section 13 of the Court of Appeal Act is to filter out those

cases that do not warrant our attention.

4.9. Ms. Nkhonde maintained that the intended appeal is

devoid of points of law of public importance. Counsel

pushed the argument further and submitted that the issue

of locus standi is not the basis for setting aside an arbitral

award. To contextualise this point, Ms. Nkhonde referred

us to the provisions of section 17 of the Arbitration Act

 R21

which sets out the grounds upon which an award may be

set aside.

4.10. Counsel submitted that the issue of locus standi has been

sufficiently litigated in the past and numerous decisions

have been made by this court in that regard. In her view,

the law on that issue is settled.

4.11. With regard to the question of the forensic audit report,

Counsel contended that the applicant ought to have

produced the report during the arbitration proceedings.

4.12. On the issue relating to the Court of Appeal not taking into

account the applicant’s submissions, it was contended by

Counsel that the applicant had an option to make the

relevant application to have any accidental slips corrected

by the Court of Appeal as provided for under Order 13 rule

8 of the Court of Appeal Rules. To support this line of

argument we were referred to the case of Standard

Chartered Bank Zambia PLC v. Wisdom Chanda & Christopher

Chanda*12) where we stated that a defect in a decision of the

 R22

court can be considered if a party makes an application to

have it corrected.

4.13. Ms. Nkhonde entreated the court to dismiss the

applicant’s application for leave to appeal because, in her

view, it lacked merit.

5 .0. DECISION OF THE COURT

5.1. We have painstakingly considered the motion before us,

the arguments of both parties and their oral submissions.

Our view is that it is beyond doubt that what is at the core

of the matter is whether this is a proper case for us to set

aside the single judge’s decision in which he refused to

grant the applicant leave to appeal, and whether there is a

point of law of public importance likely to arise in the

appeal.

5.2. The single judge refused to grant the applicant leave to

appeal because, in his view, there was no point of law of

public importance that required our intervention. In brief,

the single judge found that the applicant failed to justify

his request for the grant of leave to appeal as

 R23

contemplated under section 13(3) of the Court of Appeal

Act.

5.3. A perusal of the applicant’s application immediately

reveals that he raises two broad issues which, in his view,

would warrant the grant of leave to appeal to this court.

5.4. The two questions, as we see them are: first, whether the

arbitral tribunal took into account the forensic audit

report; and second, whether the respondent has the

requisite legal capacity to play any part in these

proceedings.

5.5. On the other hand, the thrust of the respondent’s

opposition is that the issues the applicant raises have

nothing to do with the issues he ought to be presenting to

show that the award must be set aside and leave to appeal

must be granted. The respondent has particularly pointed

out that the question of locus standi is not a basis for

setting aside an award.

 R24

5.6. In determining whether leave to appeal to this court

should be granted, we shall address the two broad

questions that emanate from the applicant’s motion.

5.7. Before we do, it is imperative for us to note that we have

stated on numerous occasions that with regard to setting

aside arbitral awards, the hands of the court are tied in a

strait jacket. The courts have very little wriggle room, if at

all, with respect to the circumstances under which they

are allowed to set aside an award. The number of cases in

which we have echoed this position are legion.

5.8. Fairly recently, in ZCCM Investments Holding PLC v. Vedanta

Resources Holding Limited and Konkola Copper Mines PLC<13>

we stated as follows:

It is obvious that it should not be the remit of this court

to attempt to make a determination on issues that were
already a subject of determination by the arbitral
tribunal.

5.9. We went on to state that:

 R25

In keeping with the spirit of Article 5 of the Model Law,

our courts are enjoined to embrace the principle of
limited court intervention in arbitration...obviously, a
principal rationale for the non-interventionist stance is
respect for party choice and autonomy.

5.10. Therefore, it is clear that the approach we took in the

ZCCM<13) case, above, and many others is founded on the

appreciation that an arbitral award is an award emanating

from the tribunal chosen by the parties themselves.

5.11. The provisions of section 17 of the Arbitration Act clearly

illustrate the fact that the courts may only set aside

awards in very limited circumstances. For the sake of

clarity, we shall produce the provisions of section 17

below:

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).

(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
 R26

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 arbitral 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 decision
on matters not submitted to arbitration
may be set aside;

(iv) the composition of the arbitral tribunal or

the arbitral procedure was not in
accordance with the agreement of the
parties or, failing such agreement, was
not in accordance with this Act or the law
of the country where the arbitration took
place; or
 R27

(v) the award has not yet become binding on

the parties or has been set aside or
suspended by a court of the country in
which, or under the law of which, that
award was made; or

(b) if the court finds that -

(i) the subject-matter of the dispute is not

capable of settlement by arbitration under
the law of Zambia; or

(ii) the award is in conflict with public policy;

or

(v) the making of the award was induced or

effected by fraud, corruption or
misrepresentation.

(3) An application for setting aside may not be made

after three months have elapsed from the date on
which the party making that application had
received the award or, if a request has been made
under articles 33 of the First Schedule, from the
date on which that request had been disposed of by
the arbitral tribunal.

5.12. Having carefully perused the record of motion, we note

that the applicant initially approached the High Court to

have the arbitral award set aside on account that the

 R28

award was tainted with fraud. He essentially invoked the

provision of section 17(2)(b)(iii) of the Arbitration Act.

5.13. From our scrutiny of the record, we note that the

applicant’s case has steadily morphed as it has made its

way through the court hierarchy on appeal. Along the way,

the applicant has raised various peripheral issues that

have tended, in our view, to obfuscate the real reason he

moved the courts.

5.14. We do not intend to lose track of the fact that the

applicant initially moved the court to have the arbitral

award set aside on account that it was tainted with fraud.

He has vehemently argued, at every level, that he has

issue with the tribunal’s failure to take into account the

forensic audit report which, in his view, clearly highlights

the fraud that he has so forcefully referred to.

5.15. At the hearing, we asked the applicant whether or not the

report was produced at arbitration. He initially agreed that

it was but when we quizzed him further, he reneged on his

 R29

statement and indicated that he did not produce the report

during the arbitral proceedings.

5.16. The view we take is that the applicant’s failure to produce

the report is a procedural issue which, by his own

admission, is attributable to him. This cannot be the basis

for setting aside an award let alone the basis for granting

leave to appeal to this court. In fact, the report was

available at the time the arbitral proceedings were on

going but the applicant failed to produce it. We note that

the Court of Appeal adequately dealt with the issue of the

report when, at page J23, it noted that:

We now turn to deal with the issue of the Forensic Audit

Report. During the arbitration proceedings, parties are
expected to raise concerns about documents which they
feel should be brought before the arbitrator at the
earliest opportunity, failing which they waive their
rights to raise objections relating to those documents
(see Article 4 of the Model Law). The Forensic Audit
Report was in existence at the time of the applicant's
resignation and hearing of the matter by the arbitral
tribunal. However, the applicant did not request for a
subpoena to be issued for its production.
 R30

5.17. Therefore, although the report was available during the

arbitration proceedings, the applicant failed to produce it.

More importantly, the failure to take into account

evidence, in this case the report, does not constitute a

ground for setting aside the arbitral award.

5.18. The question of locus standi or capacity of the Respondent

was also raised by the applicant. This too is a procedural

issue and should have been raised before the arbitral

tribunal. Above all, the issue of capacity of a party cannot

be the basis for setting aside an arbitral award as

envisaged under section 17 of the Arbitration Act which we

reproduced earlier in this ruling.

5.19. As rightly noted by the single judge, the applicant has

failed to meet the threshold for the grant of leave to appeal

as outlined in section 13(3) of the Court of Appeal Act. In

Savenda Management Services v. Stanbic Bank Zambia Limited

(14> we stated that:

...this Court should only be open to a litigant who has

moved the Court of Appeal and met the threshold set out
in section 13 (3) of the Court of Appeal Act.
 R31

5.20. In the Bidvest(11> case, we stated that the reason for

restricting the grant of leave to appeal to the limited

circumstances set out in section 13 (3) of the Court of

Appeal Act is that the Supreme Court must necessarily

concentrate its attention on a relatively small number of

cases recognized as raising questions of general

importance. This is not one such case.

5.21. We agree with the single judge that the applicant, in his

proposed appeal, seeks to raise procedural issues that do

not fall within the scope of section 17 (2)(b)(iii) of the

Arbitration Act to warrant setting aside the award. The

intended appeal raises no point of law of public

importance nor does it have any prospects of success.

5.22. Apart from the fatal irregularity we referred to earlier in

our ruling, at paragraph 2.9, which is in itself sufficient to

warrant dismissal we have illustrated that the application

was still bound to fail on the merits for all the reasons we

have adumbrated above. We accordingly dismiss it.

 R32

5.23. Costs shall follow the event to be taxed if not agreed.

Mtirnba Malila
CHIEF JUSTICE

J. K. Kabuka
SUPREME COURT JUDGE SUPREME COURT JUDGE