Lubambe Copper Mine Limited v Hambani Ngwenya and Anor (2023/HP/0923) [2025] ZMHC 34 (27 May 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Juri sdiclion) 2023/HP/092a BETWEEN: 2'' MAY 2U25 LUBAMBE COPPER MINE LIMITED APPLICANT AND HAMBANINGWENYA ANNIE MUSONDA KAWANDAMI 1 sT RESPONDENT 2ND RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE C. KAFUNDA ON THE 2'T1'H DAY OF MAY, 2025 For the Applicant For the Respondent M. J. Kawana of B & M Legal Practitioners MM. Nalubanga of D. Bunting Associates. N. Mukuka of D. Bunting K. R. Malipenga of Robson Malipenga & Co. JUDGMENT Cases referred to: 1. African Life Financial Services Limited v. Zambia Revenue Authority SCZ Appeal No. 140 of 2014 2. BP Zambia Plc v. Interland Motors (2001) Z. R. 371 Legislation referred to: 1. The Sheriffs Act, Chapter 37 of the Laws of Zambia 2. The High Court Rules, Chapter 27 of the Laws of Zambia CamScanner INTRODU Tl N Thi s ,J11 d gn1c 111 p1 1 l : 1i11 •, 111 : 11 1 :q,plr, : il,r11 1 fil, rl '1 lilt' /\pplir :11 11 Sl'<'hllJ ' :l cir ·( l111:1111>11 ft'cs . 'fill' il J)J l wnlio11 wn ~. 111 ; 1d1 · h y u, 11 ~111 1,1 11 11~ •;1 1t111T11J11', p111 · .1 1; 1nt t,, Section 14 (2) of the ~1i rlJF. A t and Onl r 10 Ru l 11 ( ) and . ,,, . )1:tl,lr• ff/I ( ', ( ' (1 111,,11 ll ntl l l lr' ,, , . .,, p ,, 11<11 ·111· {j) of the lligh ou,-t Uu le . . 'I I w !,p< Ti fi c r di< f; w l <H 11 11 1 I hr· originnti n g s u111111 0 11. · \ c rT fo,. 11 11 ord er tl1 1tf ; (i) (i1) The good s s ci7,r•rl IJIJ " " ' s·,,,,, if[ p11 rs 11wtl lo m i irrr'[Jt1 lnr writ of fl n facin s be fm flu uit h 1c>IC'n s r·rl to the l\pplicrull . osls be bo m e by f/, e Nes1,01tde nl ·. APPLICANT'S CASE The founding affidavit was sworn by Thelma Malenga, an Associate Legal Counsel for Lubambe Copper Mine Limited, who stated that the 1st Respondent was an employee of the Applicant, while the 2 nd Respondent is a permanent and pensionable employee of the applicant under a written contract of employment. She further deposed that both employment contracts stipulate arbitration as the designated method for resolving disputes between the parties. The l st Respondent was summarily dismissed by the Applicant on 5 Lli January, 2022 for misconduct while the 2 nd Respondent is still an employee of the Applicant. The Applicant went on to depose that about December, 2021, the Respondents declared a dispute against the Applicant and both parties appointed Mr. Justice Nig l Kalonde Mutuna to preside as a sole Arbitrator over the dispute in accorda n J2 CamScanner with th Res ponden ts' r ·spcc1iv , co ntrac ts of e mp loyment. The.; h earing of th arbitration proc 'cdings wus s ubse q u e ntly held on 20 th and 21 st May, 2022 and, thcrcuflcr, th e parties filed finaJ submissions for the Arbitra tor 's consideration. I On 7 th September, 2023, the Arbitrator publis h ed an a ward which was in favour of the Respondents. The Applicant challenged the Award before this Court on 28th October, 2022 but the challenge was dismissed in a judgment delivered on 23 rd December, 2022. Under cause number 2022/HP/ ARB/020. That prior to the hearing of the challenges to the Award and the passing of judgment, the Respondents registered the Award under cause number 2022/HP/ ARB/017. The Respondents consequently issued a writ of fieri facias on 10th January, 1n cause number 2022/HP/ ARB/020 to enforce the judgment. On 28 th February, 2023, the Applicants were granted leave to appeal and the writ of fifa was set aside on the basis that the Respondents were not entitled to issue a writ of fifa under cause number 2022/HP/ ARB/020. Opposition The Respondents submitted an affidavit in opposition to the Court on 9 th August, 2023. The essence of their affidavit is that the application to set aside the registration of the award under cause number 2022/HP/ ARB/017 was filed beyond the prescribed 10-day CamScanner period within wh· h th . . IC c Applicant was required to oppose lhc registration of the award. The deponents asserted that, in the absence of a stay of execution, the Respondents were entitled to issue a writ of fierifacias (fifa). They further explained that the writ of fifa was filed under Cause No. 2022/HP/ ARB/020 instead of cause number 2022/HP/ ARB/017 because the Applicant had filed its application to set aside the award before a different Court, despite the matter already being before another Court. This, they argued, amounted to forum shopping, and that the Respondents should not be prejudiced by the Applicant's actions. Additionally, the deponents contended that the Applicant did not formally apply to have the writ of fifa set aside for irregularity, nor was there any Court order granting restitution. Reply The Applicant filed an affidavit in reply on 29th August 2023, sworn by Thelma Malenga, an Associate Counsel for the Applicant. She stated that the application to set aside the registration of the award under cause number 2022/HP/ ARB/017 was filed on 28th October 2022, within the 10-day period directed by the Court. She explained that the application was initially submitted to the Deputy Registrar because the Applicant believed that the Deputy Registrar had signed the order for the registration of the award, in accordance with the Arbitration (Court Proceedings) Rules. As a result, the affidavit and skeleton arguments supporting the application to set aside the registration were served on the J4 CamScanner Respondents' advocat s on 31st O tobcr 2 022 . The Respondents were also inforn1ed that they would b, crv d wilh a summons once it was obtained fron1 the Court. She further stated that on 211 <1 Novcinber, 2022, Lhe Applicant's advocates received a call from the Judge's Marshall, advising them to refile the summons and address it to the Judge inStead. The Applicant complied with this directive, and no additional charges were incurred at the Registry for the re-filing. Additionally, she deposed that the application to set aside the award remains pending before the court. In a ruling dated 28th February 2023, the court held that the application should have been filed before the same court that had granted the order for the registration of the award. SUBMISSIONS The court received well-researched skeleton arguments from both parties, which, although not explicitly reproduced in this judgment, have been fully considered. ANALYSIS AND DETERMINATION I have carefully considered the application as well as the submissions of the parties. As a starting point, it is clear that the power to enforce an arbitral award through execution, once that award is validly registered, is vested in the party obtaining the award, unless a competent court issues a stay of execution or invalidates the registration. Procedural rules govern1·ng JS h execu 10n sue t· ( as the CamScanner requirement to obtain a . ) num er serve . b . Wnt of fi eri facias u nder the correct cause ~ important administrative and practical pu rposes; ensunng clarity and case management. . consistency in the Court 's record-keeping and However it · ' Is equally well established that courts do not t-ypicaJly permit procedural technicalities to defeat substant ive justice , especially where no specific prejudice is shown, and the corrective steps to cure a procedural flaw are both apparent and easily effected. In the instant case, the error consists merely of referencing the wrong cause number when the Respondents moved to enforce the award. The question is not whether the Respondents followed the ideal procedure, but rather whether this deviation so fundamentally undermined the enforcement process that it should be deemed null and void. This Court finds no evidence that the Respondents were acting mala fide or were attempting to subvert any established process. On the contrary, it appears to have been a straightforward clerical or procedural mistake. It is undisputed that no stay of execution was granted in favour of the Applicant at the time the Respondents commenced the execution process. In Zambian civil procedure, absent a stay of execution, the successful party is generally free to enforce its judgment or arbitral award by available means. The Applicant's pending challenge to the arbitral award, in and of itself, does not automatically bar enforcement. JG CamScanner This principle is r · ~ einiorced by case law, particu1arly BP Zambia Plc v. lnterland Motors, which instructs that unless the court has stayed or set aside the enforcement instrument, the judgment creditor (or award-holder) is entitled to proceed. Therefore, so long as the arbitral award stands in legal force, i.e., has not been invalidated nor stayed, its enforcement remains permissible. The Court recognises that the irregularity in the cause number might, in other circumstances, cause confusion or potentially subject the parties to duplicative or conflicting processes. Yet where there is a straightforward path to rectification, namely, by issuing a corrected writ under the proper cause number or amending the current process in compliance with the High Court Rules, the Court sees little reason to deem the writ void and deny the Respondents their substantive right to execute on the valid award. This position is consistent with the Supreme Court's admonitions in African Life Financial Services Limited v. Zambia Revenue Authority, SCZ Appeal No. 140 of 2014, wherein the Court reiterated that technical irregularities should generally not deny a litigant a lawful remedy, absent any demonstrated prejudice or injustice. CONCLUSION In light of the foregoing considerations, the Court reaches the fallowing conclusions: ~a) The fact that the writ of .fieri facias was issued under an Incorrect cause numb . Itself, render th I e certainly an irregularity, does not, b er, w h'l t· . Y e en ire enforcement process a nullity. J7 CamScanner (b) At the time of award that wa e Respondents held a valid arbitral stay of exe e In the absence of any court-ordered execution th s enf orceab1 . cution. . (c) The approp . for the R nate rem d · e Y, where such a misstep has occurre , 1s d espondents to regularise the form of the writ so it aligns .th Wl . th e proper cause number, rather than to penalise them by dismissino th · . eir nght to enforce the award entirely. Accordinoly , th . e Applicant's request that the Court d I ec are th e Respondents' enforcement rights extinguished on account of the irregular \vrit is refused. The Respondents' right to enforce subsists, subject only to curing the noted defects in compliance with the established procedural requirements. Costs are awarded to the Respondents, to be taxed 1n default of agreement. DELIVERED AT LUSAKA THIS 2 F MAY, 2025. JB CamScanner