African Alliance Pioneer Master Fund v Vehicle Finance Limited (SCZ/8/08/2011) [2015] ZMSC 191 (15 May 2015)

Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Appellate Jurisdiction) SCZ/8/08/2011 APPEAL NO. 21/2011 BETWEEN: AFRICAN ALLIANCE PIONEER MASTER FUND APPELLANT AND VEHICLE FINANCE LIMITED RESPONDENT Coram: Wanki, Malila, JJS, and Lisimba Ag. JS on the 9 th October, 2014 and 15th May, 2015 For the Appellant: Mr. M. Practitioners Sakala, Messrs. Corpus - Legal For the Respondent: Mr. E . Mwitwa, Messrs. Musa Mwenya, Advocates JUDGMENT MALILA, JS d eliver ed th e Judgme nt of the Court. Cases referred to:- 1. J. P. Kamezos v. Hermes Safari's Ltd. (1978) 2 R 197 2. Lumus Agricultural Services Company and Others v. Gweembe Valley Development Limited (in receivership) (1999) ZR 1 3. The People v. Fred M'me mbe, Masautso Phiri and Bright Mwape (1997) SZJ. 4. Pacific China Holdings v. Grand Pacific Holdings Limited (2012) HREC 645 5. Shabgdong Textiles Import and Export Corporation v. Dattua Non Ferrous Metals Limited. HCCT 80 (1997) - Judgment 6 March, 2002 6. Stamp Duty Commissioners v African Farming Equipment Company Limited (196 9) ZR 32 7. Quazi v Quazi (1980) AC 744 8. Lilavati Bai v. Bombay State ( 1957) AIR 521 .. J2 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Ramdutt Ramkissendass v. E. D. Sassion & Co., 56 Ind. App. 128. (AIR 129 PC 103) (A) Board of Trade v. Cayzer, Irvine & Co. Arthur Nelson Ndhlovu and Jacob Mumbi Mwanza v. Alshams Building Materials, SCZ Appeal No. 12 of 2002. Libyan American Oil Co. v. Socialist People's Libyan Arab Jomahirya {1980) 482 F. Supp. 1175, 1179 (D. D. C) PT Primia International Development v. Kempinski (2012) SGCA Massioni v IAP Ancorna, Riv. ARb. 1977 pp. 529 Minmetals Germany Gmbtt v. Ferco Steel (1999) 1 ALLER 315 JSC Zestation v. Ronly Holdings Ltd (2004) 2 Lloyds Rep. 335 Fidekitas Shipping Company Ltd v. V/O Exportchleh (1965) Lloyds Rep. 223, Page 230 Rustal Trading Limited v. Gill & Duffus SA (2000) Lloyd Rep. 14 Antaios Cia Naviera SA v. Salen Rederiema AB (1984) 3 All ER 229 Weldon Plant Ltd v The Commissioner of New Tours (2001) lALL ER 204 Fidelity Management SA v. Myricid International Holdings BV (2005) EWHC 1193 (comm.) Petroships Pte Ltd v. Petec Trading and Investment Corporation (2001) 2 Lloyds Rep. 348 Louis Dreyfus SAS v Holding BV (2008) QCCS 5903 Conductive lnkjet Technology Limited v Uni-Pixel Displa;·s Inc. (2013) EWHC2969 Bremer Handelssgeseltschaftmbtt v. Westzneker Gmbtt (No. 2) (1981) @ Lloyd's Rep. 130 Giacomo Costa Fu Andrea v. British Italian Trading Company Limited (1963)1QB 217 Finelvet AG. v. Vinava Shipping Company Limited (9183) lWLR 1469 . Other authorities referred to:- The Authentication of Documents Act, chapter 75 of the laws o};ambia Arbitration Act, No. 19 of 2000 of the Laws of Zambia Black's Law Dictionary by Bryan A. Gardner, 8 th Edition Interpretation and General Provisions Act, chapter 2 of the laws of Zambia Oxford Advanced L earners' Dictionary, New 6 th Edition Klaus Peter Berger, Arbitration Interactive, Peter Land, 2002 edition page Article 28(1) of the Model Law and Procedure: Interlocutory and Hearing Problems, 3 rd Edition, MP6 Books, page 348 Arbitration Practice and Procedure: Interlocutory and Hearing Problems, 3rd edition by Prof Mark D. Carta, LLP, London Article 5(1)(a) of the Arbitration Practice, New York Convention Chitty on Contracts, Volume 1, 29th Edition, paragraphs 11 - 16 The Indian Limitation Act of 191 0 i~ I • 1{t.1 J3 12. 13. 14. 15. 16. 17. Regulation 13(1) of the Arbitration (Code of Conduct and Standard) Regulations Statutory Instrument No. 12 of 2007 Regulation 12(1) of Statutory Instrument No. 12 of 2007 Section 31(1) and 73(1), English Arbitration Act of 1996 Commercial Arbitration by Sir Michael J. Mustill and Stewart C. Boyd, London, Butterworths, 1982. Section 3 of the Authentication of Documents Act, chapter 75 of the laws of Zambia Regulation 13(1) of the Arbitration (Code of Conduct and Standard) Regulations Statutory Instrument No.12 of2007 This appeal anses from the judgment of the High Court in which an award of an arbitral tribunal was set aside, and the matter referred back for arbitration. The genesis of the grievance now before us is largely common cause. It lies in the arbitral award given on 2 nd June, 2010 by a panel of three arbitrators. A dispute had arisen between the appellant and the respondent which prompted the respondent to institute court proceedings in the High Court under cause number 2008/HPC/57. Relying on clause 24 of the Shareholders Agreement (SHA) and clause 10 of the Share Subscription Agreement (SSA) concluded between the parties, the appellant applied to the High Court for a stay of the proceedings, and for an order of referral of the dispute to arbitration. The High Court, correctly, stayed the action and referred the matter to arbitration. J4 An arbitral tribunal was subsequently constituted by the parties in accordance with the terms of the arbitration clause in the SHA. That arbitral tribunal, in due course, met the parties for preliminary meetings. At the second such preliminary meeting, the arbitral tribunal invited the parties to raise any preliminary issues they may have had. In response to that invitation, the respondent raised a preliminary issue which was determined by the tribunal. The appellant raised no preliminary issue at that stage. The tribunal then raised its own preliminary issue, gyrating on the authentication of the contractual documents signed by the parties, partially outside jurisdiction. In particular, the tribunal wondered whether section 3 of the Authentication of Documents Act1 , chapter 75 of the laws of Zambia, was duly satisfied in respect of the SHA, SSA, a nd the Heads of Agreement (HoA), since these agreements were signed partly in Gaborone, Botswana and partly in Lusaka, Zambia. Enlivened by this prompting from the arbitral tribunal, the appellant then filed its own formal notice of intention to raise a preliminary issue, premised on the issue of authentication of documents raised by the tribunal, urging the tribunal to dismiss JS the proceedings for want of jurisdiction. The arbitral tribunal thereupon invited the parties to make submissions on this preliminary issue. Following those submissions, the tribunal rendered what it termed as the Final Award on the 2 nd June, 2010. In the said Award, the tribunal found and decided that the SHA and the SSA were not authenticated 1n accordance with the Authentication of Documents Act1, chapter 75 of the laws of Zambia, and consequently, that neither of those documents could be used in the arbitral proceedings. The arbitral tribunal further found that on the basis of the severability of arbitral clauses . in relation to any underlying contracts relating to such clauses, the arbitral clauses contained in the SHA and the SSA were valid for purposes of determining the nullity or otherwise of the said agreements. The tribunal accordingly terminated the proceedings forthwith. Piqued by the arbitral tribunal's award, the respondent, by way of originating summons supported by an affidavit, took out proceedings in the High Court, beseeching the court to set aside, in its entirety, the award of the arbitral tribunal, and to refer the matter back to arbitration. The grounds upon which the High J6 Court was urged to grant the relief sought, included the fact that the applicant was unable to present its case, as agreed by the parties at the commencement of the arbitral proceedings; that the arbitral tribunal raised and dealt with the preliminary issue which the parties did not raise or contemplate at the arbitral proceedings; and that the arbitral tribunal had no jurisdiction to issue a final award, as such final award could only be made after a full hearing of the parties in the main matter. More pointedly, the deponent of the affidavit in support of the motion before the High Court, averred that the arbitral tribunal made a finding beyond the scope of the issues or questions submitted to arbitration. The respondent, of course, denied most emphatically, the allegation s in the originating process, and supported the findings of the arbitral tribunal, stating that the arbitration was conducted in accordance with the Arbitration Act, No. 19 of 20002 of the laws of Zambia and the SSA, SHA and the HoA. After hearing the parties and evaluating the evidence before it, the High Court came to the conclusion that the approach adopted by the arbitral tribunal was wrong in principle, as it went beyond the agreement of the parties. Furthermore, the court held that it J7 was a misdirection on the part of the tribunal to have issued, what it termed, an award "in full and final settlement of all the claims before [it]", because the issues pleaded in the amended statement of case and amended defence had not been determined. The High Court, accordingly, set aside the award and referred the dispute back to arbitration. Aggrieved by this decision, the appellant has now appealed to this court, assailing the judgment on five grounds, to wit:- 1. That the learned trial judge misdirected himself in law and in fact when he held that the respondent was denied an opportunity to present its case without taking into consideration the fact that the respondent had proper notice of and took an active part in responding to the appellant's application to raise a preliminary issue; 2. That the learned trial judge misdirected himself in law and in fact when he held that the arbitral tribunal had no mandate to determine whether the contractual documents, which formed the basis of the dispute were properly authenticated under the Authentication of Documents Act Chapter 75 of the Laws of Zambia; 3. That the learned trial judge misdirected himself in law and in fact when he held that the arbitral tribunal dealt with a dispute not brought before it by the parties; 4. That the learned trial judge misdirected himself in law and in fact when he held that the arbitral tribunal did not conduct the proceedings in accordance with the procedure agreed upon by the parties; and 5. That the learned trial judge misdirected himself in law and in fact when he held that the arbitral tribunal erred when it rendered an award it termed final in respect only of the preliminary issue argued before it. JS Both parties filed in very detailed written heads of argument. At the hearing of this appeal, counsel for both parties adopted and placed reliance on their copious heads of argument replete with such materials as excerpts and quotations from books, legislation and judicial dicta from within and without jurisdiction. We pause here to observe that although five grounds of appeal were raised, c• they do in truth, resolve themselves into a lone question, revolving around jurisdiction ratione materiae of the arbitral tribunal. The prolixity of the grounds of appeal and the corresponding submissions of both counsel, have the potential of obscuring the core issue to be determined. While reminding ourselves that, based on the grounds of appeal and the heads of argument before us, it is the jurisdictional elephant that would be determinative of this appeal, we shall plow on into the comprehensive submissions, complete with authorities, which the learned counsel for both sides have addressed to us. We feel justified to do so since the issues traversed raise recondite points, congenial to arbitration disputes which are increasingly ending up in our courts, particularly when an application to set aside an award becomes a relevant option for a party. J9 In support of ground one of the appeal, Mr. Sakala, submitted -«hat it was a misdirection on the part of the learned High Court ___ -:judge to hold that the respondent was denied an opportunity to :Present its case. Counsel argued that section 17 (2)(a)(ii) of the .. Arbitration Act No. 19 of 20002 , which deals with setting aside an arbitral award, did not, as the learned judge held, cover the circumstances presented by the present dispute. According to counsel, section 17 (2)(a)(ii) of the Arbitration Act is intended to provide for a situation where a party is prevented from participating in the arbitral process for very specified reasons. According to Mr. Sakala, using the ejusdem generis rule, the phrase "otherwise unable to pre s en t his case" as used in that section, denotes something similar to a party not being given proper notice of the appointment of an arbitrator or notice of the arbitral proceedings. In the present case, the respondent fully participated in the arbitral process, including the raising of the preliminary issue. Counsel's argument here was that for section 17(2)(a)(ii) to be invoked, a party must show that he was "not given proper notice of the appointment of arbitrators or of the proceedings," or for other reasons similar to these two. He insisted that the ejusdem generis rule was the J9 In support of ground one of the appeal, Mr. Sakala, submitted «hat it was a misdirection on the part of the learned High Court ___ -:Judge to hold that the respondent was denied an opportunity to yresent its case. Counsel argued that section 17 (2)(a)(ii) of the ... Arbitration Act No. 19 of 20002 , which deals with setting aside an arbitral award, did not, as the learned judge held, cover the circumstances presented by the present dispute. According to counsel, section 17 (2)(a)(ii) of the Arbitration Act is intended to provide for a situation where a party is prevented from participating in the arbitral process for very specified reasons. According to Mr. Sakala, using the ejusdem generis rule, the phrase "otherwise unable to pre s en t his case" as used in that section, denotes something similar to a party not being given proper notice of the appointment of an arbitrator or notice of the arbitral proceedings. In the present case, the respondent fully participated in the arbitral process, including the raising of the preliminary issue. Counsel's argument here was that for section 17(2)(a)(ii) to be invoked, a party must show that he was "not given proper notice of the appointment of arbitrators or of the proceedings," or for other reasons similar to these two. He insisted that the ejusdem generis rule was the Jll In what appears to us to be a clear instance of belabouring the point, the learned counsel cited the case of Lumus Agricultural Services Company and Others v. Gweembe Valley Development Limited2 in which the meaning of the words "any deed, contract, power of attorney, affidavit, or other writing ... " had to be determined. He reminded us that we, in that case, held that the words "other writing" in section 2 of the Authentication of Documents Act, which was at issue in that case, meant "similar to 'deed', 'contract', 'power of attorney' and 'affidavit'." The learned counsel also quoted another statement on the ejusdem generi.s rule by the High Court in the case of The People v. Fred M'membe, Masautso Phiri and Bright Mwape. 3 Applying these authorities to the present case, the learned counsel reiterated that the phrase "or was otherwise unable to present his case" in ~ section 17(2)(a)(ii) of the Arbitration Act, should mean something akin to the party making the application to set aside an arbitral award being unable to participate in the arbitral proceedings and present his case due to notice related reasons. Mr. Sakala then turned to consideration of the phrase 'a party not fully participating in the arbitral process' and submitted that in J12 the present case, the respondent was fully aware and participated in the arbitral proceedings as the record clearly shows. It was Mr. Sakala's view that the court below erred when it held that the respondent was denied an opportunity to present its case on the basis that a hearing on the dispute, as pleaded, was not held, nor were witnesses allowed to testify. The learned counsel quoted Article 21 of the First Schedule of the Arbitration Act which provides that the arbitral proceedings in respect of a particular dispute, commences on the date on which a request, for that dispute to be referred to arbitration, is received by the respondent. In the present case, the arbitral proceedings commenced upon receipt by the respondent of the request for the dispute to be referred to arbitration, and the respondent, therefore, had the opportunity to present its case. The respondent was furthermore invited to present its submission on the preliminary issue and the award was only rendered after those submissions were considered. The learned counsel went on to argue that the courts have developed a high threshold with regard to breach of Article 34 of the United Nations Commission on International Trade (UNICITRAL) Model Law on International Commercial Arbitration, for which Jl3 section 17 of the Arbitration Act No. 19 of 20002 , is the local equivalent. He cited the case of Pacific China Holdings v. Grand Pacific Holdings Limited4 where it was held that in order to set aside an award pursuant to grounds set out in Article 34, the conduct complained of must be sufficiently serious or egregious so that one could say a party has been denied due process. Mr. Sakal a also ref erred us to the case of Shabgdong Textiles ~ . Import and Export Corporation v. Dattua Non Ferrous Metals Limited5 , and quoted a passage from the judgment in that case which reads:- .... it is generally enough if the court is satisfied that the hearing was conducted with due regard to any agreement between the parties and in accordance with the principle of equality of treatment and the right of each party to have a proper opportunity to present its case. A party must thus show that it has been prejudiced to a significant degree in not being allowed to present its case such that the proceedings or an important part of them have been conducted unfairly. The lack of fairness and equality is key here .... The learned counsel concluded his submission on this ground by reiterating that the respondent did, in fact, fully participate in the arbitral process and that the respondent's complaint was a natural reaction of a losing party. J14 In his equally detailed and animated written submissions in rebuttal, Mr. Mwitwa, learned counsel for the respondent, addressed us on what he considers are the demerits of this ground of appeal by way of gainsaying the arguments advanced on behalf of the appellant. Mr. Mwitwa supported the holding of the lower court that the respondent was not given an opportunity to present its case before ~ the arbitral tribunal. The learned counsel contended that the interpretation placed on section 17 (2)(a)(ii) of the Arbitration Act by the appellant in line with the ejusdem generis rule was tenuous in at least two senses; first, section 17 (2)(a)(ii) of the Arbitration Act which states that: 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 ... ~ 1s not amenable to statutory interpretation through the ejusdem generis rule as suggested by the appellant, since resort to the ejusdem generis rule would only be appropriate where there was a lacuna in our law. Mr. Mwitwa's contention is that the Interpretation and General Provisions Act4, chapter 2 of the laws of Zambia, particularly section 4(4), provides useful guidance J15 m interpreting section 17(2)(a)(ii) of the Arbitration Act. That section provides that: where the words "or", "other" and "otherwise" are used in any written law, they shall be construed disjunctively and not as implying similarity, unless the word "similar" or some other words of like meaning is added It was Mr. Mwitwa's submission that section 17(2)(a)(ii) of the Arbitration Act was misapprehended by the appellant. According to Mr. Mwitwa, the words 'or' and 'otherwise' as used in that section cannot be read to limit the application of that section to reasons related to notice of the appointment of the arbitrators or the actual hearing of the arbitral proceedings as canvassed by the appellant. In Mr. Mwitwa's view, the provisions of section 17(2)(a)(ii) of the Arbitration Act, is an exemplar, in a classical way, of a provision envisioned by s ection 4(4) of the Interpretation and General Provision Act, so that an application of the ejusdem generis rule to construe section l 7(2)(a)(ii) of the Arbitration Act would bluntly fly in the teeth of section 4(4) of the Interpretation and General Provisions Act. The learned counsel submitted that section l 7(2)(a)(ii) of the Arbitration Act, when read in the light of section 4(4) of the Jl6 Interpretation and General Provisions Act, can only denote a situation where, for any other reason not related to the two specific reasons mentioned in the said section, a party is unable to present its case. The learned counsel then quoted a passage from the judgment of the Court of Appeal in the case of Stamp Duty Commissioners v African Farming Equipment Company Limited6 and the English case of Quazi v Quazi7 as authorities. Given the foregoing position, the learned counsel fervidly submitted that the ejusdem generis rule is not of universal application since the Legislature, through section 4(4) of the Interpretation and General Provisions Act, has ruled out the application of that rule of interpretation of statutes. As r egards the case of Lumus Agricultural Services Limited and Others v. Gweembe Valley Development Limited2 , which ~ was cited and relied upon by the learned counsel for the appellant, Mr. Mwitwa contended that, that authority was not helpful to the appellant's case since in that particular case, the Authentication of Documents Act, which was the subject of interpretation, gives the definition of a document, thereby excluding the application of section 4(4) of the Interpretation and General Provisions Act4 . J17 The learned counsel also supported the holding of the lower Court that the ejusdem generis rule is inapplicable to section l 7(2)(a)(ii) of the Arbitration Act on the basis that the later part of the section, namely that which reads "or was otherwise unable to present his case", was a specific phrase. The learned counsel adverted to the Oxford Advanced Learners' Dictionary5 , for the definition of the word "otherwise". He then, more purposely, in our view, referred us to the Indian case of Lilavati Bai v Bombay State8 . The learned counsel then responded to the submissions on the second limb of the appellant's argument that the respondent, as a party that participated in the arbitral proceedings cannot invoke section 17(2)(a)(ii) of the Arbitration Act. Here, it was Mr. Mwitwa's contention that the court below correctly dealt with the issue whether the respondent fully participated 1n the arbitral proceedings. Adopting the words of the lower court, Mr. Mwitwa posited that what was in issue in this case was not whether or not the respondent had notice of the hearing or was heard on the preliminary hearing, but rather, whether the respondent was given an appointment to present its case on the substantive dispute as Jl8 pleaded. This, according to Mr. Mwitwa, should solicit a negative answer. The learned counsel referred to Article 18 of the Arbitration Act, which he said was in line with section 17(2)(a)(ii) of the Act and enjoins the arbitrator to afford equality of treatment to the parties and to give them the full opportunity of presenting their case. In counsel's submissions, the matter at hand was referred to ~ - the arbitral tribunal to determine questions set out in the respondent's amended statement of case with clearly set out reliefs which were sought by the respondent, and to which the appellant (as respondent before the arbitral tribunal) duly responded. The appellant did not raise any counter claim but joined issue with the respondent upon its averments in the statement of case. The mandate of the arbitral tribunal, according to counsel, was limited to the issues raised by the parties. The learned counsel pointed out that the issue of auth entication of documents was not raised by the parties. He asserted that even after the arbitral tribunal, on its own volition, raised the issue of authentication of documents, the reaction of the Jl9 appellant's counsel as recorded by the tribunal, was one of clear disinterest on the part of the appellant to pursue that issue. According to the learned counsel for the respondent, it was after the reaction from the learned counsel for the appellant that the tribunal asked counsel for the :~appellant to file a formal application to which the respondent's counsel was to respond. Mr. Mwitwa argued that, in these circumstances, the learned Judge in the court below was on firm ground when he held that the finding by the tribunal curtailed the respondent from prosecuting its case before the tribunal in accordance with the amended statement of the case. Since no hearing on the dispute as pleaded ever took place, nor were any witnesses allowed to testify in accordance with order for directions issued by the arbitral tribunal, the dispute referred to the arbitral tribunal was not determined. e, We have carefully considered the detailed arguments advanced on behalf of the parties on this ground. Although, as we have earlier on in this judgment observed, the rival submissions of counsel are long and discursive, we have deliberately chosen to consider all arguments raised as they bristle with interesting points of law. J20 We have earlier on in this judgment asserted that the substratum of the appellant's case, as formulated and submitted to this court, is the jurisdiction ratione materiae of the arbitral tribunal. The real question being, did, or did not the arbitral tribunal have jurisdiction to deal with the question of authentication of the relevant contractual documents before the arbitral tribunal? There is no doubt, 1n our view, that many questions radiate from this seemingly simple and straight forward issue. They include the allegation that the award given by the arbitral tribunal was ultra pertita; that the principle of kompetenz-kompetenz was inappropriately applied; that the concept of party autonomy was decidedly violated and, that the arbitrability of the issue of authentication of documents was inappropriately dealt with. r· ~ ·, The application by the respondent in the lower court was \. premised on section 17(2)(a)(ii) of the Arbitration Act No. 19 of 2000 which empowers a court to set aside an arbitral award if the party making the application was not given proper notice of the appointment of an arbitrator or the arbitral proceedings, or he was otherwise unable to present his case. J21 In our op1ruon, what ought to be established in the present case 1s whether or not the respondent was unable to present its case within the meaning of section 17(2)(a)(ii). This question turns on the interpretation of the words "or was otherwise unable to present his case" as used in that section. Mr. Sakala made an interesting argument that construing the words "or was otherwise unable to present his case", ejusdem generis, with the r proceeding words, it can only logically be concluded that those words could only mean inability to participate in arbitral proceedings due to notice related reasons, and not, as was the case in the present case, due to disposal of the matter on a point of law. In his rejoinder on this issue, Mr. Mwitwa dismissed the suggestion that the ejusdem generis rule was applicable in interpreting section 17(2}(a)(ii) of the Arbitration Act. He argued that r:• it is instead s ection 4(4) of the Interpretation and General Provision Act4 , chapter 2 of the laws of Zambia that should apply. We consider the authorities cited by the learned counsel for the appellant on the meaning and use of the ejusdem generis rule of statutory interpretation, as apt. In the timeless words of the J22 authors of Black's Law Dictionary3 , as referred to by counsel for the appellant, the ejusdem generis rule is: [a] canon of construction that when a general word or phrase followed a list of specifics, the general words or phrase will be interpreted to include only items of the same type as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other form of animal, the general language 'or any other form of animals', despite it seeming breadth - would probably be held to include only four - logged, hoofed mammals found on the farms and thus would exclude chickens. We reaffirm our dicta regarding the use of the ejusdem generis rule as given in the case of Lumus Agricultural Services Company Limited v Gwembe Valley Development Ltd. 2 which was cited and relied upon by the learned counsel for the appellant. The critical question, however, is whether the ejusdem generis rule has any room in construing section 17(2)(a)(ii). Having carefully considered the . opposing arguments of counsel on this point, we accept the view canvassed by counsel for the respondent that the ejusdem generis rule was not the appropriate tool to use to understand section 17(2)(a)(ii) of the Arbitration Act. As Mr. Mwitwa correctly points out, recourse should rightly be had to section 4(4) of the Interpretation and J23 General Provisions Act4 , chapter 2 of the laws of Zambia which we have already referred to. The statutory provision in issue in the present case, namely, section 17(2)(a)(ii) uses the words "or" and "otherwise". In the absence of a void or lacuna in our statutory law, resort to the ejusdem generis rule becomes, in our view, inapropos. If authority for this view were required, one would look no further than the f decision of the Court of Appeal, predecessor to this court, in Stamp Duty Commissioners v African Farming Equipment Company Limited6 • The relevant passage of the judgment of that court as quoted by the learned counsel for the respondent, reads as follows: Section 4(4) of the Interpretation and General Provisions Ordinance precludes the application of the ejusdem generi.s rule to statutory interpretation unless the word "similar" or some other word of like meaning is included. ~ We are also p ersuaded by the decision in the Indian case of Lilavati Bai v Bombay State8 cited by the learned counsel for the respondent. That case involved interpretation of a subsection of a statute which provides that there would be deemed to be a vacancy when the tenant "ceases to be in occupation upon termination of his tenancy, eviction or assignment or transfer in any other manner J23 General Provisions Act4 , chapter 2 of the laws of Zambia which we have already referred to. The statutory provision in issue in the present case, namely, section 1 7 (2)(a)(ii) uses the words "or" and "otherwise". In the absence of a void or lacuna in our statutory law, resort to the ejusdem generis rule becomes, in our view, inapropos. If authority for this view were required, one would look no further than the ~ decision of the Court of Appeal, predecessor to this court, in Stamp Duty Commissioners v African Farming Equipment Company Limited6 • The relevant passage of the judgment of that court as quoted by the learned counsel for the respondent, reads as follows: Section 4(4) of the Interpretation and General Provisions Ordinance precludes the application of the ejusdem generis rule to statutory interpretation unless the word "similar" or some other word of like meaning is included. ~ · We are also p ersuad ed by the decision in the Indian case of Lilavati Bai v Bombay State8 cited by the learned counsel for the respondent. That case involved interpretation of a subsection of a statute which provides that there would be deemed to be a vacancy when the tenant "ceases to be in occupation upon termination of his tenancy, eviction or assignment or transfer in any other manner J25 Having accepted that the phrase "or was otherwise unable to present his case" as used in section 17(2)(a)(ii) is not a general phrase but a specific phrase, we now have to consider the consequences of this interpretation on this ground of appeal. The result of this interpretation, in our view, is that a party to arbitral proceedings may invoke section 17(2)(a)(ii) of the Arbitration Act in any other situation than those specified, or similar to those ~ specified, in that section, where the party was unable to present his case. In the pre sent situation, therefore, provided it can be shown that the respondent was not able to present its case before the arbitral tribunal, it would be deemed to have been perfectly entitled to invoke s ection 17(2)(a)(ii) of the Arbitration Act. The learned High Court judge in holding that the respondent could invoke section l 7(2)(a)(ii) of the Arbitration Act stated the ~ following at J 1 7 : What is in contention here is not whether or not the Applicant had notice of the hearing or was heard on the preliminary hearing, but rather, was it given an opportunity to present its case on the substantive dispute as pleaded? Further the respondent's argument that recourse to this ground is not available to one who participated in the appointment of the arbitrator and had notice of the hearing is unt enable. My finding is based on the fact that section 17 does not stipulate that this ground is not open to such a party. J26 In supporting the learned judge in this vein, the learned counsel for the respondent adverted to the specific requests set out in the statement of case, which the respondent (as applicant before the arbitral tribunal) had put to the arbitral tribunal to determine. The learned counsel also referred to the appellant's (then respondent) defence. It is common cause that, as the learned judge in the court ~ below found, the arbitral tribunal did not address the issues presented to it by the respondent in its statement of case, but disposed of the proceedings on a technical point of non authentication of documents. We accept the position taken by the learned judge that the determination of the preliminary issue, curtailed the respondent from pres enting its case as pleaded in the amended statement of ~ case before the arbitral tribunal. We accordingly uphold the part of the decision of the High Court which held that the respondent was not given an opportunity to have its case heard. Ground one of the appeal, fails accordingly. Under ground two, the learned counsel for the appellant sharply criticized the judge below for holding that the arbitral J27 t 'b n Unal had no mandate to determine whether contractual documents, which formed the basis of the dispute, were properly authenticated under the Authentication of Documents Act 1 , chapter 75 of the laws of Zambia. Counsel contended that the learned judge in the court below erred when he held that an arbitral tribunal is not at sea to conduct an independent investigation to ensure that every fact of the KS dispute is in line with Zambian law without recourse to the parties. While conceding that party autonomy is a fundamental principle in the conduct of arbitral proceedings, the learned counsel bravely accused the judge below of having misapplied the authority the learned judge relied on, namely Klaus Berger's Arbitration Interactive6 , to the extent that the learned judge made no distinction between procedural matters, which may be the subject ~ of party autonomy, and substantive matters of law, which may not be the subject of party autonomy. The learned counsel contended that whereas the principle of party autonomy empowers the parties to decide upon the identity of the arbitrators and the procedures to be adopted in the proceedings, it does not empower them to exclude the application of substantive and mandatory laws like the J28 Authentication of Documents Act 1 , where the arbitrators are, in any case, duty bound to apply, being the substantive law agreed to govern the agreement between the parties. To buttress this point, the learned counsel for the appellant quoted Article 28(1) of the Model Law7 • The learned counsel then quoted a passage from the judgment KS of the Privy Council in Ramdutt Ramkissendass v. E. D. Sassion & Co. 9 where the court stated that it is an implied term of the contract that an arbitrator must decide the dispute according to the existing law chosen by the parties. In that particular case, the court held that the arbitral tribunal should have considered the fact that the action was barred by the Indian Limitation Act of 1910, although there was no plea by the litigants before it to that effect. The learned counsel also argued that an arbitral tribunal is bound to give effect to all legal defences which any party to arbitral proceedings is entitled to raise. He cited in this regard the case of Board of Trade v. Cayzer, Irvine & Co. 10 , and that of Arthur Nelson Ndhlovu and Jacob Mumbi Mwanza v. Alshams Building Materials 11 • J29 It was Mr. Sakala's view that the appellant had the right to raise the statutory issue of non-authentication of the contractual documents at any stage of the arbitral proceedings, and the arbitral tribunal was duty bound to admit and consider such issue. In any case, since in clause 24.1 and 31 of the SHA the parties chose Zambian law as the governing law of their agreement, and in view of Articles 28 of the Model Law7 , the arbitral tribunal had a duty, ~ independent of the litigant's agreement and wishes, to apply all substantive laws that from part of the Zambian legal system, including the Authentication of Documents Act 1 , chapter 75 of the laws of Zambia. Mr. Sakala n ext referred us to the Prof. D . Mark Carto, learned author of t h e book Arbitration Practice and Procedure: Interlocutory and Hearing Problems8 • There, the learned author l("' states that a proper arbitral award must, among other things, be legal and executable. Counsel then argued that had the tribunal proceeded without determining the authentication of documents, the award could have been illegal, and thus challengeable under section 17(2)(a)(i) of the Arbitra tion Act and Article 5(1) of the New York Convention9 , and therefore, unenforceable. Counsel also J30 relied on the Lumus Agricultural Services Company2 case for the proposition that an unauthenticated document cannot be used in this country for any purpose. According to Mr. Sakala, it was a misdirection on the part of the learned judge 1n the court below to hold that the arbitral tribunal had no mandate to determine the issue of the authentication of the contract documents because had the arbitral ~ tribunal not done so, its award would have violated the most essential features of a valid arbitral award, namely, legality and enforceability. Mr. Sakala then focused his argument on an arbitral tribunal's r efusal to uphold an agreement that could lead to subsequent illegality if enforced. Citing the case of Libyan American Oil Co. v. Socialist People's Libyan Arab Jamahirya, 12 ~ : counsel argued that an a rbitral award given in violation of local law is unenforceable. In the present case, argued the learned counsel, if the arbitral tribunal had allowed the unauthenticated contractual documents into evidence , the award would have been illegal, that is to say, in contravention of the governing law under section J31 17(2){a)(i) of the Arbitration Act and Article 5( l)(a) of the New York Convention 9 . The learned counsel ended his submission on this ground with, what we view as, an argument in the alternative. Here the learned counsel cited the Pacific China Holdings4 case to support his contention that even if the violation of any of the grounds in section 1 7 could be established, the court still has the discretion to ~ I ~ refuse to set aside the award, if satisfied that the outcome could not have been different. According to the learned counsel, since the documents which formed the basis of the arbitral proceedings were not authenticated, this was fatal to the arbitral proceedings and no other conclusion could have been arrived at. In his rejoinder on this ground, the learned counsel for the respondent supported the learned High Court judge's holding that '(!' the arbitral tribunal had no mandate to determine whether or not the contractual documents, which found the basis of the dispute, were properly authenticated. As authority for the view he took, the learned counsel cited the words of the court in PT Primia International Development v. Kempinski1 3 to the effect that the J32 parties to an arbitration agreement are not obliged to submit whatever disputes they have for arbitration. It was the contention of Mr. Mwitwa that the scope of the dispute was clearly defined by the statement of case and the defence. This, coupled with the clear admission by the appellant through its counsel that there was no dispute as to the authenticity of the documents, meant that the arbitral tribunal had no mandate ~ to deal with authentication of documents. The learned counsel then submitted on party autonomy 1n arbitration 1n contradistinction to litigation. As regards the argument by the appellant's counsel on the law pertaining to the place of authentication of documents and the effect of documents that are not authenticated, the learned counsel submitted that these issues have no relevance to the setting aside ~ - of an arbitral award; that the task of the court below was to determine whether or not the narrow grounds set out by section 17 of the Arbitration Act had been proved by the respondent. Counsel submitted further that the jurisdiction of this court on appeal is similar to that of the High Court - namely to determine whether the J33 learned High Court judge validity found that the grounds for setting aside an award were proved. Mr. Mwitwa made a striking submission that the case of Lumus Agricultural Service Company Limited v Gwembe Valley Development Company Limited2 which was relied upon by the appellant, is in fact authority for the proposition that an instrument which is not authenticated is valid between the parties, and £{, \.) . ineffective against third parties. For this reason, counsel went on to submit, the agreements in question in this matter were valid between the parties and could validity be used for purposes of arbitral proceedings, which are private in nature. The learned counsel dismissed as presumptious, lost in the realm of conjecture, suggestions by the appellant's counsel that the arbitral award that would have followed from any continuation of the arbitral \" proceedings, would not have been enforceable. By submitting that without the arbitral tribunal determining the issue of authentication of documents, the award would be challengeable, the appellant, according to the learned counsel for the respondent, was speculating on matters that had not happened. J34 Mr. Mwitwa further submitted that in the event that this court finds that the court below had a duty to deal with the Authentication of Documents Act 1n order to determine the application to set aside the arbitral award, then he would rely on the argument advanced before the arbitral tribunal on the issue which are in the record of appeal. The learned counsel reiterated the point that as arbitral 'l, ~ proceedings were private in nature, the requirement to have documents authenticated should not arise especially as the parties themselves have no dispute as to the validity and authenticity of the documents. Counsel then submitted that it is a gross injustice for a party that has not attended to authentication of documents, such as the appellant in the present case, to subsequently rely on his own default. The learned counsel quoted in this connection, Chitty on Contracts 10 paragraphs 11 - 16. With repetition and circumlocution, the learned counsel concluded his submission on this ground by quoting a passage in the judgment in the case of Kempinski Hotels SA v PT Primia International Development13 where the court stated that it was J35 justifiable to set aside an arbitral award where matters determined by the tribunal were beyond the scope of the submission to arbitration which should be gleaned from the pleadings. We have ruminated on the submissions of both counsel relative to ground two. The appellant impugns the holding of the High Court judge that the arbitral tribunal had no mandate to delve into the authentication of contractual documents which formed the basis of the dispute. The respondent is, of course, satisfied with the decision of the lower court on this point. In our view, ground two raises several sub issues that require to be addressed, namely; (a) does the doctrine of party autonomy in arbitration relate only to procedural, and not substantive issues? In other words, does the choice of law in contract documents grounding the arbitration entitle and/ or oblige the arbitral tribunal to apply the substantive law of the chosen law regardless of whether the parties have asked it or not? (b) Could failure by the arbitral tribunal in the present case to determine the issue of authentication of contractual J36 documents, have made the resultant award illegal or inexecu table? (c) Can the question of authentication of documents be considered as a defence available to either party to the arbitral proceedings, so that the arbitral tribunal was obliged to consider it? It hardly bears repeating that the principle of party autonomy 1s the bedrock of arbitration. It is the guiding standard in determining the procedure to be followed in an arbitration. However fulsome or simple the arbitration agreement may be, the parties have ultima te control of their dispute. Klaus Peter Berger, the learned author of Arbitration Interactive6 , states (at page 18) of party autonomy a s follows: "The contractual character of arbitration is reflected not only in the requirement of an arbitration agreement but also in the parties freedom to structure the arbitration according to the needs of their dispute, including the choice of the "private judges" (arbitrator) who will decide their dispute . The dominance of party autonomy is the major difference to adjudication of disputes by domestic courts where the rules of procedure laid down in the code of Civil Procedure of the court's lex fori provide a relatively fixed and mandatory framework, and where the parties have to accept the judge(s) to whom their case is referred through the court's internal allocation of dockets. In arbitration, the parties are free to agree on rules for the conduct of the procedure. They may also determine the number and identity of the arbitrator or arbitrators. The J37 arbitration laws merely provide "fall back" rules for those cases where the parties have not reached agreement." Article 19(1) of the Model Law7 grants the parties freedom to agree "on the procedure to be followed by the arbitral tribunal in conducting its proceedings." Article 28 (i) on the other hand enjoins the tribunal to decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substantive ( ~ dispute. It states in specific terms that:- The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute [governing law]. Any designation of the law or legal system of a given state shall be construed, unless otherwise expressed, as directly referring to the substantive law of that state. On the first sub issue on this ground, the learned counsel for the appellant makes a short point. He claims that once the parties, as in the present case, have indicated the choice of law, they submit ( ' to that law which should govern the substantive aspects of the arbitration. His argument, if we follow it c'orrectly, is that party autonomy is circumscribed as it is only confined to procedural, as opposed to substantive matters which remain governable by the law chosen by the parties as their lex fori. We are inclined to accept this argument by Mr. Sakala. It is supported by the case of J38 Ramdutt Ramkissendas v. E. D Sassion & Co9 . cited by the learned counsel. In that case, the Privy Council held that the arbitral tribunal should have considered the fact that the action was barred by the substantive law, namely, the Indian Limitation Act of 191011 , although there was no plea by the litigants before it on that issue. In other words the substantive law, re Limitation Act of 191011 was applicable regardless of the parties choice. The validity as to form and substance of the arbitration agreement, the arbitrability of the issues and the regularity of the constitution of the arbitral tribunal, are in our considered view, some of the matters that are governed directly by the law of the seat of arbitration, regardless of what the parties' choice on procedure is. We also find persuasive comfort in taking this position from the Italian Supreme Court decision in Massioni v IAP Ancorna 14 . In that case an arbitral award was declared null and void due to the absence of an arbitration clause, notwithstanding the fact that both parties to the arbitral proceedings had proceeded without obje ction. In the present case, we think, with utmost respect to the learned judge in the court below, that party autonomy is not to be J39 Understood to be without limits. Parties are not at liberty to choose to have arbitration proceedings which clearly contravene the law chosen by them as the governing law. It is for this reason that we accept the argument of the learned counsel for the appellant that party autonomy is confined to procedural matters, and not to questions involving the substantive law of the law chosen to apply to the agreements and arbitration. Were this not to be the case, (~ arbitration would be an obvious avenue of clear way of circumventing the law and public policy. The learned judge in the court below properly stated that the provision of Article 19 and 28 of the Model Law7 were all subject to party agreement, and that in the present dispute the parties had agreed the procedure to be adopted. The learned judge found as a fact that the arbitral tribunal changed the procedure agreed to by (J the parties without r ecourse to the parties. What the learned judge failed, in our view, to apprecia te was that Article 19(1) of the Model Law7 is confined to agreement on the procedure to be followed, and not the law to be applied. The learned judge equally did not state how Article 28( 1) of the Model Law7 , which entitles the tribunal to decide the dispute in accordance with such rules of law as are J40 chosen by the parties, applied to the facts before him. By clause 24.1 and 31 of the SHA the parties chose Zambian law as the governing law of their agreement. It follows, in our view, that Zambian substantive law, including m this regard, the Authentication of Documents Act, provided it was relevant, applied. As regards the second sub issue, we accept the argument by the learned counsel for the appellant that an arbitral tribunal is bound to give effect to all defences available to a party which are raised during arbitral proceeding. All we can add, is that such defence should be within the agreement of the parties in the reference and within the general law governing the arbitral proceedings. On the third sub issue, we again agree with the submissions by counsel for the appellant. His argument on the legality and enforceability of an arbitral award, are in substance correct. An arbitral award must be legal and executable. For reasons which will become apparent later on in this judgment, we do not wish at this stage to comment on whether or not, the arbitral award would have been challengeable under section 17 (2) (a)(l) of J41 the Arbitration Act, or Article 5(1) of the New York Convention9 , as suggested by the learned counsel for the appellant. On ground two of the appeal, we hold that the arbitral tribunal had the mandate to consider the law chosen by the parties to the arbitral proceedings as the law to govern their agreement. Such law would include the Authentication of Documents Act, if it was relevant. To the extent indicated, this ground of appeal succeeds. In regard to ground three, the learned counsel took issue with the holding of the learned judge in the court below that the arbitral tribunal dealt with a dispute not contemplated and brought before it by the parties through the statement of case and the defence. Counsel contended that the judge erred when he held that the issue of the authentication of documents was not brought before the arbitral tribunal by the parties in their statement of case and defence. Accordingly, it was beyond the mandate of the arbitral tribunal. To support his submissions, the learned counsel referred us to Regulation 13(1) of the Arbitration (Code of Conduct and Standard) Regulations Statutory Instrument No.12 of 200712, which counsel argued, places a duty on the arbitral tribunal to J42 determine all issues submitted to it for determination. Counsel contended that the issue of authentication of documents was submitted to the arbitral tribunal through the preliminary issue upon which both parties submitted before the tribunal ruled. The learned counsel next dealt with the issue of the mandate of the tribunal. Counsel admitted that by Regulation 12(1) of Statutory Instrument No. 12 of 200713 , an arbitrator is enjoined (~ to observe faithfully both the limitations and inclusions of the jurisdiction conferred b y an agreement or other instrument under which the arbitrator serves. The learned counsel argued that the ascertainment of the questions which the arbitrator is empowered to investigate, allows recourse solely to the express and implied terms of the priva te contract between the parties. However, where no objection is m a d e of the arbitrator's lack of jurisdiction to deal with a fresh claim, both parties would be bound by an award on the merits of the claim. It was Mr. Sakala's further submission that when, through its notice of intention to raise a preliminary issue, the appellant tabled the issue of authentification of documents before the arbitral tribunal, to which the respondent gave its response, there was in essence, an implied agreement to bring the J43 dispute before the arbitral tribunal. The learned counsel cited the case of Minmetals Germany Gmbtt v. Ferco Steel15 as authority for the submission that where, as in this case, a party continues to fully participate in the arbitration after the alleged procedural breach occurs, and never raises a complaint against the alleged procedural breach, that party waives its right to complain on the ground of the procedural defect. Mr. Sakala went on to cite a multitude of authorities, all in an effort to persuade us to accept his argument that the arbitral tribunal was well within the law in determining the issue of authentification of documents which culminated in the termination of the arbitral proceedings. More pertinently perhaps, was the learned counsel's argument that a claim that the arbitral award dealt with a matter not contemplated by the parties, is, in essence, a claim that the arbitral tribunal did not have jurisdiction to determine the issue. The learned counsel then referred us to Article 16(2) of the Model Law7 on the manner of challenging an award of arbitral tribunal which deals with a matter outside the parties' contemplation. That article reads: J44 A plea that the arbitral tribunal exceeded the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. According to Mr. Sakal a, the fore going provision raises two issues of interest to the present case, namely that the challenge of the arbitral tribunal's jurisdiction should, in keeping with the principle of competence - competence, be made first before the arbitral tribunal itself, and secondly, it ought to be made promptly. For whatever it was worth, the learned counsel referred to section 31 ( 1) and 73( 1) of the English Arbitration Act of 1996 14 on raising objections to an arbitral tribunal's substantive jurisdiction, and also to the case of JSC Zestation v. Ronly Holdings Ltd16 which interpreted those provisions. Finally, on this ground, the learned counsel raised the issue of estoppel. According to counsel, where an application is made to set aside an arbitral award, a person cannot be permitted to set up a new ground of opposing the arbitral tribunal's award if the same was not raised before the arbitral tribunal, unless the said ground was not reasonably available to the applicant on the date of J45 hearing. The learned counsel quoted Lord Diplock in Fidekitas Shipping Company Ltd v, V /0 Exportchleh17 where he said: .... yet, I take it to be too clear to read citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same issue advance argument or adduce further evidence to show that the issue was wrongly determined. The learned counsel submitted that where a matter not contemplated by the parties is determined by an arbitral award, a party relying on this fact as a ground for setting aside the award, should have objected to the determination of that issue before the arbitral award, if h e is to be allowed to rely on the objection in court. The respondent in the present appeal did not do so and could not do so before the High Court. The learned counsel for the respondent opted to respond to grounds three and four of the appeal together for, as Mr. Mwitwa (f. observed, the two grounds were not unrelated. As we have already intimated in this judgm ent, both ground three and ground four impugned, in their different formulations, the holding of the learned judge in the court b elow to the effect that the arbitral tribunal dealt with, and gave an award in a matter which was not properly submitted before it by the parties. We accordingly consider the J46 appellant's arguments under ground four before we consider the joint arguments in rebuttal on these two grounds. In ground four of the appeal, the appellants impeaches the finding of the learned judge in the court below that the arbitral tribunal dealt with a dispute not brought before it. The learned counsel for the appellant, in a manner reminiscent of periphrasis, argued that the arbitral tribunal had, by the acquiescence of the parties, acquired the mandate to determine the issue of authentication of the contract documents subject of the arbitral proceedings. According to Mr. Sakala, since there was no statutory prescription as to the form the agreement should take, the same could be express or implied. Counsel then referred to the authors Sir Mich eal J. Mustill and Stewart C. Boyd in Commercial Arbitration 15 on page 245 where the learned authors assert that an :'· rt P agreement on one or more aspects of the arbitral procedure can be inferred from the way the parties conduct themselves. He cited the case of JSC Zestation v. Ronly Holdings Limited16 to buttress this point. The learned counsel then posited that the parties to the present dispute had, by acquiescing to the submission on the issue of the authentication of the contractual documents through their J47 oral and written submissions on the issue, as a preliminary point, they had impliedly amended the procedure of the arbitration. In this regard, argued the learned counsel, the learned judge in the court below erred when he held that the determination of the issue of authentication of the contractual documents violated the parties' agreed procedure. Yet, the learned counsel did not leave matters there. He cited Article 4 of the Model Law7 and identical provisions in the English Arbitration Act, 1996 14 , being section 73(1), to the effect that a party who knows that any requirement under the arbitration agreement has not been complied with, and yet proceed s with th e arbitration without stating his objection to su ch n on-com pliance with out undue delay, shall be deemed to have waived his righ t to object . The learn ed counsel also cited a passage by More-Bick at page 19 in Rustal Trading Limited v. Gill & Duffus 18 where it was stated that a party who b elieves h e has a ground for objecting to the conduct of the proceedings should raise such objection as soon as is or ought reasonably to be , aware of it. In what we can only take as superabaundance of argument on this point, Mr. Sakala also referred to the authors, Sir Micheal J. J48 Mustill and Steward C. Boyd of Commercial Arbitration 15 at page 522, to support his argument that irregularities of procedure can be waived. In Mr. Sakala's view, the fact that there was no objection from the respondent when the issue of authentication of the contract documents was raised, made the respondent waive the irregularity and is stopped from denying the tribunal's authority to determine the issue. The learned counsel concluded his submission on this ground by raising a somewhat unrelated argument that the court is only allowed to interfere with the findings of an arbitral tribunal in exceptional circumstances. He quoted the following passage from the judgment of the court in Antaios Cia Naviera SA v Salen Rederiema AB 19 : .... judicial interference with an arbitrator's award was only justified if it was shown that the arbitrator had misdirected himself in law or had reached a decision which no reasonable arbitrator could have reached. In the present case, 1n Mr. Sakala's estimation, it was not justified for the court below to have interfered with the award given by the arbitral tribunal. Acknowledging that the arguments respecting grounds three and four could not be much different from those already advanced J49 in respect of ground two, the learned counsel for the respondent indicated that he would rely on the grounds already submitted under ground two, to rebut the arguments on grounds three and four. In supplementing the arguments already made, the learned counsel referred us to regulation 13(1) of the Arbitration (Code of Conduct and Standard) Regulations, Statutory Instrument No. 12 of 200717 • That rule directs that an arbitrator shall decide all issues submitted for determination. The learned counsel referred us to the case of Weldon Plant Ltd v The Commissioner of New Tours20 where, in interpreting section 68(2)(d) of the English Arbitration Act of 1996 Judge Humphrey Lloyd s ta ted tha t the section is not to be used as a means of launching a detailed enquiry into the manner in which the tribunal considered the various issues, but is concerned with a failure by the arbitral tribunal to deal at all with the case of a party so that substantial injustice has r esulted. The learned counsel also cited the cases of Fidelity Management SA v Myricid International Holdings21 and that of Petroships Pte Ltd v Petec Trading and investment Corporation22 to buttress his submission that the learned judge below cannot b e faulted as the arbitral JSO tribunal overlooked the issues presented to it and concentrated on the authenticity of the contract documents thereby making the resultant award far removed from what could reasonably be expected of the arbitral tribunal. This resulted in an injustice to the respondent. In his peroration to the arguments on grounds 3 and 4, Mr. Mwitwa aptly referred to the decision of the Canadian Superior Court in Louis Dreyfus SAS v Holding BV23 , where the arbitral tribunal asked the parties whether the agreement should be terminated by recourse to the doctrine of frustration. Both parties, for different reasons, responded that the doctrine of frustration was not applicable. The tribunal nevertheless found that the agreement had been frustrated, and neither party could rely on it in respect of the buyout provisions or to claim damages for breach. The court found that the tribunal did not respect the scope of the mandate agreed by the parties and dealt with a dispute which was not contemplated by the parties and, thereby decided matters beyond the scope of the terms of reference. We have considered the opposing arguments of the parties on grounds 3 and 4 of the appeal which relate to the mandate of the JSl arbitral tribunal. The principle of ultra petita, and more generally the violation of its mandate by the arbitral tribunal as a cause for annulment of arbitral awards is well recognized. Of course a violation of its mandate by the arbitral tribunal constitutes a ground for annulment of awards under Article 34. 2 (iii) of the UNICITRAL Model Law7 states that if: 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 matter submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. The arbitral tribunal placed much premium on the Authentication of Documents Act 1 chapter 75 of the Laws of Zambia, to hold the contract documents unusable in Zambia. That Act provide s in s ection 3, the circumstances when any document executed outside Zambia shall be deemed to be sufficiently authenticate d for purpose of use in Zambia if the conditions set out in that section are satisfied. The tribunal held that: we declare that, the Share Subscription Agreement ("the SSA"), the Share Holders Agreement ("the SHA"), the Heads of Agreement ("the HOA") and the agreement to acquire Industrial Credit Company Africa Holdings Limited's entire shareholdings by the claimant (together referred to as "the Agreements in issue") which were executed outside the Republic of Zambia and which were not J52 authenticated in accordance with the Authentication of Documents Act, Chapter 75 of the Laws of Zambia cannot be used for the purpose of the present arbitral proceedings. Execution of a document as used In section 3 of Authentication of Documents Act refers, in view, to signature of the contract document. The learned authors of Black's Law Dictionary3, define the term "execute" as follows:- 1. To perform or complete (a contract or duty) (once the contract was fully executed, the parties owned no further contractual duties to each other). 2. To make (a legal document) valid by signing; to bring (a legal document) into its final, legally enforceable form (each party executes the contract without a signature witness). It is In the second sense that the Authentication of Documents Acts 1 envisages execution of documents. In our view, wh a t becomes a relevant question is that of loci contractu, that is to s ay, whether those documents were indeed (« executed outside Zambia so as to require authentication 1Il accordance with the provisions of the Authentification of Documents Act 1 ' chapter 75 of the laws of Zambia, bearing Ill mind that the Act applies only to contracts executed outside Zambia. J53 In determining, for legal purposes, where a written contract was executed, courts should consider (i) the place of execution as agreed to and specified in the contract, even if the contract was actually signed elsewhere, (ii) the place where the parties actually signed or sealed the contract, if all parties signed in one location; or (iii) if the contract does not specify a place of execution and the parties did not sign or seal the contract in the same place, the place where the last signature was executed. It is also possible for a contract to be executed in two different places. The High Court of England and Wales in the case of Conductive lnkjet Technology Limited v Uni-Pixel Displays inc24 , a non-disclosure agreement did not include a choice of law and jurisdiction clause as the parties were unable to agree on one during negotiations. The contract was agreed in an email exchange by the parties, and was signed by Conductive Inkjet Technology in England and by Uni-Pixel Displays in Texas. On a claim by Conductive Inkjet Technology that certain proprietary information in breach of the agreement was used by Uni-Pixel Displays, Conductive Inkjet Technology sought permission to serve claims on Uni-Pixel Displays in England. Uni-Pixel Displays challenged this J54 by arguing that English courts did not have jurisdiction in this matter. What became an issue is where the contract was signed. Roth J. held that the parties had expressly agreed not to incorporate a choice of law and jurisdiction cause, and it would be wholly artificial to determine the place of the contract by applying the traditional postal rule. We have perused the contract documents in issue which are in the record of appeal. We note that these documents were signed by one party in Gaborone, Bostwana, and the other party in Lusaka Zambia on two diverse dates namely in Gaborone Botswana on the 9 th of September, 2008 and in Lusaka Zambia on 29th September, 2008. It is, therefore, erroneous to assume that the documents were executed outside Zambia because they were partially executed in Zambia. Adopting the definition of execution as given by the learned authors of Black's Law Dictionary3 which we have quoted above, that execution entails giving validity to a document, then the date and place of execution of these documents is the date and place of signature of the last party to those documents. It is almost a matter of commonsense that unless both parties sign a contract document, it is not an agreement worth its name. As soon as the J55 second party signs the deed, it becomes an agreement. In the present case, therefore, the conclusion of the contract documents took place in Lusaka, Zambia on the date reflected as the day the last party signed, that is to say the 29th of September, 2008. In other words, there was no contract to talk about when only one party had signed them outside jurisdiction. On a proper view of the facts before us, we come to the conclusion that in the present case, the contracts were not executed in a foreign country, as the arbitral tribunal supposed, but was in fact executed in Zambia. At the very least, a finding should have b een made that the contract documents were signed partly in Zambia. The question of authentication of those contracts did not therefore, arise. In any case, those documents r emained valid and binding between the parties to it, and remained useful in determining the agreement of the parties to it. Our decision in Lumus Agricultural Services Company & Others v. Gwembe Valley Development Limited2 , applies. Given this position, the arguments so spiritedly advanced by Mr. Sakala on this ground become academic. J56 The final ground of appeal attacked the lower court's holding that the arbitral tribunal erred when it rendered an award it termed final in respect of the preliminary issue argued before it. In building his argument in support of this ground, the learned counsel for the appellant started by quoting from the learned authors of the book Commercial Arbitration 15 at page 331 that: There is no doubt that an arbitrator generally has power to order a preliminary issue to be tried and to give effect to his decision by publishing either an interim award or if the decision disposes of the whole dispute, a imal award. Mr. Sak:ala contended that in casu the arbitral tribunal rendered an award on a preliminary issue relating to authentication of documents, which a ward went to the root of the entire arbitral proceedings and disposed of it entirely. The arbitral tribunal was, therefore , on firm ground to term the decision it reached as final. With predictable superfluity , the learned counsel for the appellant referred us to the case of Bremer Handelssgeseltschaftmbtt v Westzneker Gmbtt25 where Lord Donaldson stated, inter alia, that no particular form of Award is r equired. Counsel then referred us to Article 32 (2)(c) of the Arbitration Act2 , and argued that the proceedings had to be terminated because it was impossible and <.. J57 unnecessary to continue with them 1n view of the fact that the foundational documents of the claim were invalid for use in arbitral proceedings. Counsel also contended that the name attached to the award can never be a ground for setting aside the arbitral award. He relied for this submission on the cases of Giacomo Costa Fu Andrea v British Italian Trading Company Limited26 , and Finelvet AG. V Vinava Shipping Company Limited27 , whose citation the learned counsel did not give. The learned counsel ended his submission by fervidly beseeching us to reverse the judgment of the High Court and uphold the decision of the arbitral tribunal. In his ephemeral submissions in rebuttal on this ground, learned counsel for the respondent posited that the important question that decides the issue in ground five is whether the arbitral tribunal could raise its own preliminary issue. Counsel was of the view that the arbitral tribunal could not raise its own preliminary issue. He supported the decision of the learned judge in the court below, based on the authority of Commercial Arbitration 15 by Sir Micheal J Mustil and Stewart C. Boyd. The learned counsel submitted that the tribunal did not address the JSS issues submitted to it by the parties and could, therefore, not have < made an award in full and final settlement of all the claims before it, as it purported to do. The learned counsel beseeched the court to uphold the decision of the High Court and allow the respondent to present its case as pleaded. In our view, ground five related to the terminology employed by the arbitral tribunal. The lower court was of the view that the tribunal misdirected itself when it rendered what it called a final award when all it did was to determine a preliminary issue before it. We have no hesitation in accepting the reasoning of the learned trial judge that what was determined by the arbitral tribunal was m erely the preliminary issue which the tribunal raised itself. The real issues requested of the tribunal to determine were not considered by the tribunal. The award could not, in the circumstances, be said to be an award in full and final settlement of the parties' dispute. Ground five is bound to fail. Before we conclude, we wish in passing, to observe that the Authentication of Documents Act 1 is probably anachronistic and (. ( J59 is incongruous with the business realities of today. It may well be overdue for reconsideration by the relevant actors in government. In summary, this appeal in substance fails. We order that the matter be referred back for arbitration before a different panel of arbitrators to be chosen by the parties in accordance with their agreements. Given the unusual mutual misapprehension that characterized the attempt to resolve this dispute, we make no order as to costs both h ere and in the court below. w~~l- . . . . . . . . ..... :-· ...... r.. ~.~ ......................... . M. E. Wa nki SUPREME COURT JUDGE ·· ·· · ·~ · ~~~ - ········ ......... . ..... ..... ... . . alila, SC . SUP EME COURT JUDGE ,-,- __ .- ~- ,,,,/ _,,,-7 / / , /// ;~ ? ( ' . / ~ ,, / ·· · ······· ·· ·· ·•:;.7••················ ···· · M. Lisimba AG./SUPREME COURT JUDGE