Shoprite Holdings Limited and Anor v Africa Opportunity Fund L.P and Anor (2019/HPC/0501) [2023] ZMHC 74 (4 May 2023)

-:., I , j r,I\ \ > Y'J' c/l;, i._ c \ f'. J L.::i \ Q\·.\ ti v' IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY COMMERCIAL DIVISION ~F;"''~-~,., HOLDEN AT LUSAKA • • (Commercial Junsdictwn) .,l~~~cP~ ... ,, . i,·"-..·~~-,.. ./. .~/ ,r-:'\1,."'i IJ >-1 • . IN THE MATTER OF: ( IN THE MATTER OF: 2019/HPC/0501 ' ~ , _, • .-- ., ;,;_:,,-- , -~;_-~ -•·"'\ ~"'). , , . ·) 'l:)) {,;1':.,..,i, ~~-~.!\.i~J;11A..,,.."'-~~ ~ ' .• :(:\'>--} \ t p;, /~ / \ ,i.~ .r. , .¥ ? 1?.1s-l fl 1;" \'· \ x-:,_,,. · I \ i,~~!;.:\ •:. ~~;'.k\,. '\"", ~ .,FOif i~:i,~~~;;,-· RECOGNITION OF ,.. C\ b ,:Y ' I' \ ) \ ~ f~':-v~~~ic:ATION FOR AN ORDER AND AN REGISTRATION ARBITRATION AWARD IN TERMS OF THE ARBITRATION ACT NO. 19 OF 2000 READ TOGETHER WITH RULE 15 OF PART VII OF THE ARBITRATION (COURT PROCEEDINGS) RULES SECTION 18 OF THE DATED AN ARBITRATION AWARD ON 12th APPEAL DECEMBER 2018 IN THE MATTER BETWEEN SHOPRITE HOLDINGS AFRICA AND LIMITED OPPORTUNITY FUND L. P AND FUND AFRICA CAYMAN LIMITED (CASE NO: 16486/2014) HELD IN CAPE TOWN OPPORTUNITY -Jl- BETWEEN: SHOPRITE HOLDINGS LIMITED SHOPRITE CHECKERS (PTY) LIMITED 1st APPLICANT 2 nd APPLICANT AND AFRICA OPPORTUNITY FUND L. P 1st RESPONDENT AFRICA OPPORTUNITY CAYMAN LIMITED 2 nd RESPONDENT Before Hon. Mr. Justice Bonaventure . C. Mbewe on the 04th day of May 2023 Marshal Esther Ng'uni Research Advocate Mwiche Ntinda-N dhlovu For the Applicant Mr. William B Nyirenda S. C of William I ;' ]or the 1st & 2 nd Respondent: Nyirenda and Company Mr. M. Ndalameta of Messrs. Musa Dudhia and Co JUDGMENT on an Appeal Pursuant to Order 30 Rule 10 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia -J2- LEGISLATION REFERRED TO: 1. High Court Act, Chapter 27 of the Laws of Zambia; 2. Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Vol 1; 3. The Arbitration Act No 19 of 2000; 4. Arbitration (Court Proceedings) Rules, Statutory Instrument No 75 of 2001; 5. Landlord and Tenant (Business Premises) Act, Chapter 1 93 of the Laws of Zambia; CASES REFERRED TO: 1. Leopold Walford (Zambia) Limited v Unifreight (1985) ZR 203; 2. Chishala Karabasis Nivel v Lastone Geoffrey Mwale (Selected Judgment No 40 of2018); 3. Stanbic Bank (Zambia) Limited v Savenda Management Services CAZ 08/ 40/ 2016; 4. Winnie Zaloumis (Suing in her capacity as Acting National Secretary for the Movement of Multi- Party Democracy) v Felix Mutati and 3 others (2016); 5. Shamwana v Mwanawasa (1993 - 1994); 6. Bloomfield v Sereneyi ( 1 945) 2 All ER 646; 7. Tommy Mwendalema v Zambia Railways Board (1978) ZR 65; 8. Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited HP/ ARB/ 1 of 2008 (2012) ZM CH 40; 9. Pule Elias Mwila and Others v Zambia State Insurance Corporation Limited (2015) ZR 3 152; -J3- 1 0. Finance Bank Zambia Plc v Lamasat International Limited CA Appeal No 175/2017; 11. Kawambwa Tea Company v Zygo Bonsai Limited SCZ Appeal No 11 of2003; 12. China Henan International Economic Technical Corporation v Mwange Constructors Limited (2002) ZR 28; 13. ZEGA Limited v Zambezi Airlines Limited and Diamond General Insurance Limited SCZ Appeal No 39 of 2014; 14. Himani Alloys Limited v Tata Steel Limited (2011) 15 SCC 27. OTHER AUTHORITIES REFERRED TO: 1. Rules of the Supreme Court of England 1965 (White Book) 1999 Edition, Vol. 1; 2. Zambian Civil Procedure, Commentary and Cases Vol. 1 by Dr. Justice Patrick Matibini at page 245; 3. Black's Law Dictionary, Gamer, Bryan A. Black & Henry Campbell, 8 th Edition, St Paul, MN, USA, Thomson/ West, 2004; 4. Commercial Arbitration, Sir Michael J Mustill and Stewart C Boyd QC, London Butterworths 1982; 1.0 INTRODUCTION 1. 1 This is a Judgment delivered on an Appeal by the Respondents (the Appellants in this application), filed on the 27th of October 2022 and 21st November 2022, by way of Notice of Appeal to a Judge in Chambers accompanied by grounds of appeal, affidavit in support, and heads of arguments . -J4- 1. 2 The appeal seeks to set aside the originating process registering an arbitral award and ex-parte orders of the Court issued thereunder. The application is made pursuant to Order 30 Rule 10 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia. 2.0 BACKGROUND 2.1 The Applicants in the substantive .matter (Respondents in this application), applied for and were granted various ex - parte orders against the Respondents (Appellants), arising from an Arbitral Award dated 12th December 2018 ("the Arbitral Award" or ''the Award"), granted in the Republic of South Africa. The former commenced an action for the recognition and registration of the Arbitral Award in this jurisdiction. The latter are not resident within the jurisdiction. 2.2 Subsequently, the Applicants obtained ex-parte orders for inter alia, the recognition and registration of the Arbitral Award and its amendment and substituted service, in order to serve upon the Respondents who are not resident within the jurisdiction of Zambia. 2 .3 The Respondents, for the reasons advanced within the application before me, are of the view that the proceedings were commenced in non-compliance with the law and that the ex parte orders granted therein are flawed and ought to therefore be discharged as a matter of urgency before the execution of the -JS- '.. final Ex-parte Order dated 26 th August 2021, which seeks to hold the Respondents accountable for an alleged failure to comply with the ex-parte orders of the Court. 3.0 ARGUMENTS AND SUBMISSIONS 3.1 Both parties filed documents in support of and in opposition to the appeal. Respondents' Arguments and Submissions 3.2 The Respondents, on the 21 st of November, 2022, filed into this Court; grounds of appeal, affidavit in support, and heads of arguments; to set aside originating process and ex-parte orders of the Court. 3.3 In their Heads of Arguments, the Respondents outlining, their First Ground of appeal, argue that: "The Registrar erred in law and fact when he failed to appreciate that there was no jurisdiction to entertain this action because no leave was sought prior to the commencement, for issuance of process for service outside the jurisdiction." 3.4 The Respondents, contend that Order 10 Rule 16 of the High Court Rules, Chapter 27 of the Laws of Zambia, vests the Court with power to grant leave to issue process for service out of the jurisdiction. The Respondents argue that the said Rule -JG- cited, has the same effect as Order 6 Rule 7 of the Rules of the Supreme Court 1965 (White Book), 1999 Edition Vol.1, which argues that, no writ or notice of which is to be served out of the jurisdiction shall be issued without the leave the Court. 3.5 The Respondents, citing the case of Leopold Walford (Zambia) Limited v Unifreight (1), assert that the import of the above authorities is that a party seeking to commence an action against another party not resident in the jurisdiction ought to obtain leave of the Court before it can issue such originating process; and such leave of Court is obtained by deposing an Affidavit containing a copy of such writ or summons. 3.6 The Respondents, also cite Rule 19 of the Arbitration (Court Proceedings) Rules, Statutory Instrument No 75 of 2001 (the "Arbitration Rules"), asserting that the same is clear as it states that the rules on seeking leave for issuing process for service outside the jurisdiction ought not to be disregarded simply because the action in question arises from an arbitration award. 3. 7 The Respondents, citing the case of Chishala Karabasis Nivel v Lastone Geoffrey Mwale (2), therefore states that in the absence of such leave, the Applicants application for the recognition or enforcement of the Arbitral Award on 8 th November 2019, without first obtaining the leave of Court, cannot be said to have been properly issued and the Court has no jurisdiction deal with the action in the manner that it has all along. -J7- 3.8 In their Heads of Arguments, the Respondents outlining their Second Ground of appeal, argue that: "The Registrar erred in law and in fact when he failed to recognize that the Respondents had been prejudiced by the Applicant's failure to comply with the Arbitration Rules which safeguards the Respondents by providing a time period within which to apply to set aside registration of an award and guarantee a statutory stay of execution." 3.9 The Respondents, citing Rule 17 of the Arbitration Rules, assert that the recognition and enforcement of arbitral awards in Zambia is governed by the Arbitration Rules, which provide a maximum time period (90 days) within which an opposing party may apply for the registration of the award to be set aside. The Respondents therefore contend, that they have been deprived this statutory safeguard by way of deprivation of their opportunity to apply to set aside the registration of the Arbitral Award, which they intend on applying. 3.10 In their Heads of Arguments, the Respondents outlining their Third Ground of appeal, argue that: "The Registrar erred in law and in fact when he failed to recognize that the Respondents had been prejudiced by the Court straying beyond its complementary role in relation to arbitration when it issued orders, directives and reliefs that were not granted by the Arbitral Tribunal." -J8- 3.11 The Respondents contend, that the Arbitration Act No 19 of 2000, seeks to give efficacy to the decision of an arbitral tribunal, hence the need to have the same registered. The Respondents, state that because of its final and binding nature, parties to an arbitration, must obtain orders they seek from an arbitral tribunal and ensure the same are worded precisely because registration and enforcement of an arbitral award is simply that the award is registered as it was published and enforced accordingly. 3.12 Citing the authorities of Savenda Management Services Limited v Stanbic Bank Zambia Limited (3); Winnie Zaloumis (Suing in her capacity as Acting National Secretary for the Movement of Multi- Party Democracy) v Felix Mutati and 3 others (4); Shamwana v Mwanawasa (5), the Respondents submit that the grant of various ex-parte orders allowing for the effect of changes and additions to the arbitral award are irregular. They further state that the Court only ought to grant an ex-parte application, where it is satisfied that the application is of real urgency and if not decided ex-parte, would be rendered nugatory. The Respondents submit for these reasons, that the Applicant's applications should not have been granted ex-parte as there was no urgency warranting the exercise of the Court's ex-parte jurisdiction. 3.13 In their Heads of Arguments, the Respondents outlining their Fourth Ground of appeal, argue that: -J9- "The Registrar fell into error by not holding that service of process was ineffective, improper and prejudicial to the Respondents because the Applicants opted to use substituted service by publication despite knowing that the Respondent's address to courier documents to." 3.14 The Respondents, assert that the Order 10 Rule 1 of the High Court Rules, requires the personal service of Court process and subsequent documents. In the event that it is not possible, Order 10 Rule 10 allows for substituted service following leave obtained from the Court. The Respondents contend that by reason of the cited authorities and in the circumstances, the Applicants are at law required to furnish the Respondents with the applications and ex-parte orders obtained against them in order to enable them to asses any requisite steps to be taken in response. 3.15 The Respondents, argue that on the 31 st of August 2020, the Applicants made an application for substituted service which application was granted 20th November 2020. The Respondents, citing the cases of Bloomfield v Sereneyi (6) and Tommy Mwendalema v Zambia Railways Board (7), however, submit that the said application was made without compliance with the requirement for full and frank disclosure of the material facts. The Respondents therefore assert that the Applicants' application for substituted service in the case in casu was -JlO- obtained to serve through publication despite the Applicants being fully aware of the Respondent's address. 3.16 The Respondents, conclude their Fourth Ground of argument, by stating that the substituted service by publication proved to be ineffective as the Respondents did not receive the notice of these proceedings issued by this Court. 3.17 In their Heads of Arguments, the Respondents, outlining their Fifth and final ground of appeal, argue that: "The Registrar fell into error when he recognized that proceedings had gone on for three years on an ex - parte basis and the Respondents ought to have been served with all subsequent applications and orders that followed the initial order for recognition and enforcement but failed to set aside the orders given in the absence of the Respondents over the 3 years period." 3.18 The Respondents, assert that the learned author of Zambian Civil Procedure, Commentary and Cases Vol. 1 by Dr. Justice Patrick Matibini, at page 245, notes that there is no sacrosanct method to prove service of process and states that while the affidavit of service would lay the issue of service to rest, a party may present to the Court an endorsed or acknowledged letter evidencing service. In that case, the Court would be called on to infer service in the circumstances, based on the letter presented. -Jll- 3.19 The Respondents, contend that the Applicants herein, have not in any of the matters highlighted in the heads of arguments, produced evidence of service of all the ex-parte orders obtained from this Court, following the grant of the Order for substituted service on 20th November 2020. The Respondents, posit that it was therefore improper for this Court to continue to entertain the Applicants and issue further orders, in the absence of evidence on record confirming that the Respondents had been served. 3.20 The Respondents pray that the Order for Substituted Service be set aside and all other orders discharged, as there is no evidence of service of any documents on the Respondents; no real urgency was revealed and there was non-disclosure or material facts among other things resulting in prejudice against the Respondents. The Respondents also pray for costs 3.21 In the Respondents' Affidavit in support deposed to by one Francis Daniels, who is the Director and Investment Manager of the 1st Respondent Company, as well as Director of the 2 nd Respondent Company, the Respondents reiterate their arguments outlined in their application and further argue that the Order obtained by the Applicants dated 14th November 2019, for recognition and registration of the Arbitral Award dated 12th December 2018, was irregular as it did not contain: a time period within which the Respondents could apply to set aside the registration of the award in question and that the execution of the award would not issue until expiration of the period given. -J12- 3.22 The Respondents, also depose that they have not been served with a notice of registration of the Arbitral Award resulting in the Applicants' non-compliance with the process set out for registration and enforcement of the Arbitral Award. The Respondents, also argue that they have been prejudiced by the Order dated 26th August 2021, which Order deemed the shares of the Respondents as having reverted to the Applicants, effective from the date the Award was confirmed, causing effective alteration and 're-writing' of the Award. Such re-writing of the Arbitral Award, according to the Respondents, are with regards to: 1. the requirement of the Lusaka Securities Exchange to amend the register; n. the deeming of shares as having reverted to the 1st Applicant from the date of the first award and having third parties make changes to the share registers and central securities depository. The Respondents, argue in context, that the arbitral proceedings in which they took part had no such determination, nor did the Applicants seek such order from the Arbitral Tribunal. 3.23 The Respondents, further depose that the Applicants were aware of the Respondents' addresses as stated by their company secretary in their Affidavit sworn on the 08th of November 2019, -J13- and whereas the Applicants opted to advertise Court process as opposed to having the same couriered to the Respondents' registered offices. The Deponent also deposes that the Applicants and their South African Lawyers have always been able to reach the Respondents via phone and he specifically, in the recent past has spoken to the Applicant's company secretary by phone. Applicants' Arguments and Submissions 3.24 The Applicants, on the 21 st of December 2022, filed an Affidavit in opposition to the Appeal to Judge in Chambers, as well as heads of arguments. 3.25 In the heads of arguments, the Applicants, placing emphasis on Section 33 of the Arbitration Act, contend, in response to Ground 1 of the Respondent's Appeal, that the law applicable in the case in casu, being a matter regarding Arbitration in this jurisdiction, is the Arbitration Act No 19 of 2000. The Applicants' also cite the case of Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited (8), and contend that the arbitral process and the Court system are separate and ought to be treated as such, hence the rules of the High Court being inapplicable in this matter. 3.26 The Applicants, argue that the parties are bound by Section 18 of the Arbitration Act, which states that an arbitral award irrespective of the country in which it was made, shall be recognized as binding and upon application in writing to the competent Court shall be enforced. The Applicants also contend -J14- that the Arbitration (Court Proceedings) Rules of 2001, are the applicable rules that govern the application for the registration and enforcement of an arbitral award and not the High Court Rules. Citing Rule 16 of the said rules the applicants argue that an application for registration and enforcement of an award shall be made by ex-parte originating summons to the Registrar of the High Court. The Applicants, therefore assert that there is no requirement or provision for obtaining leave prior to commencement for issuance of process for service outside the jurisdiction as the said requirement for leave to issue process for service outside the jurisdiction is one argued for under the High Court Rules. Notwithstanding the said argument, the Applicants state that it is also trite, that a process commenced by way of ex-parte originating summons is in its very nature not issued for service, hence the parties' emphasis, that prior leave to issue service out of the jurisdiction will not suffice. 3.27 In response to Ground Two of the Respondents Appeal, the Applicants contend in their heads of arguments, that the Respondents were properly notified of the registration of the Arbitral Award in line with the law and hence suffe.red no prejudice as alleged. The Applicants argue that the Arbitral Award was duly registered in the High Court on the 14th of November 2019, and an Amended Order was filed to Court on the 2 nd of June 2020; at the time of registration and filing of the Amended Order the Respondents were not represented by Counsel and their location within the Jurisdiction was unascertainable. As such, the Applicants sought leave to serve -J15- the registered award on the Respondents, by way of substituted service and such leave was granted on the 21st of August 2020. The Applicants argue, that such service was duly effected by way of advertisement in the Times of Zambia on the 30th of November 2020, as well as by way of advertisement in the Compass Media of Cayman Islands on the 14th of January 2021. That accordingly, the mandatory stay period before commencement began to run from the 14th of January 2021. The Applicants thereafter moved to enforce the Arbitration Award on the 11 th of March 2022, from which an order reverting shares to the Applicants was delivered, which order was granted following the expiration of the 90 day stay period for enforcement or execution or the said Award. The Applicant argues that the attempted execution in March 2022, cannot be faulted and was done in accordance with the law. 3.28 The Applicants, also contend that despite the same not being a requirement under the Arbitration Rules, the Respondents were on the 14th of January 2021, served with the Order of registration of the said Award and therefore their contention that the Applicants did not notify them of such registration is not factual. It is the Applicant's submission that in any event, the Respondents were not only party to the Arbitral proceedings in South Africa, but privy to the existence of the Arbitral Award and no prejudice, if at all, can be claimed for any purported failure to challenge the registration of the Award. The Applicants submit therefore, that the Second ground of appeal should likewise fail. -J16- 3.29 In response to Ground Three of the Respondents' Appeal, the Applicants argue that the jurisdiction of the Court to issue orders, premised on the Arbitral Award submitted to it for registration, is encompassed within the law. Citing the case of Savenda Management Services Limited v Stanbic Bank Limited (3), and the learned treatise Commercial Arbitration, 1982 Edition, the Applicants argue that the Court must provide a forum for registration of an award by way of Court order and what is critical, is that the said award is not altered by the Court in any way which was not done in this case. 3.30 In response to Ground Four of the Respondents' Appeal, the Applicants contend that the applicable rules of procedure in the case herein, are the Arbitration (Court Proceeding Rules) 2001, and not the erroneously cited High Court Rules. The Applicants citing Rule 36 of the said rules, further argue that the dealing Court can be satisfied of the need to effect service through substituted service, even where the place or country of such service is known. The Applicants, argue that the Respondents having been duly served via substituted service as ordered by the Court, did not suffer any prejudice, and further, the matter of the Applicants having been aware of the Respondents address is in this case immaterial. 3.31 In response to Ground Five of the Respondents' Appeal, the Applicants contend that the Respondents were served with all orders of this Court to their last known address, but couriers could not locate them and returned the said documents. -J17- Following this, substituted service was accordingly effected on the 30th of November 2020, and the 14th of January 2021, and the same, the Applicants submit, is good service. The Applicants emphasize their contention that the Respondents have not demonstrated any prejudice, if at all, suffered by themselves and pray that their appeal on all grounds fail with costs. 3.32 In the Applicants' Affidavit in support dated 21 st December 2022, deposed to by one Pieter Gerrit Du Preeze, who is the Company Secretary in the Applicant companies, the Applicants reiterate their arguments outlined in their opposition, and further argue, that the Respondents have not been prejudiced by the instant process or at all, because they verily had every opportunity to be heard, process having been served as by law required. The Applicants also dispute the alleged contention that the award was 're-written' and argue through their affidavit that the Applicants advocates of record took all steps within the Applicant's rights to have the award enforced. 3.33 The Applicants, through their affidavit reiterate their prayer that this Court dismiss the Respondent's Appeal. Respondent's Reply 3.34 The averments of the Respondent's Head of Arguments and Submissions in Reply of 16th January 2023, are similar to what is contained in their appeal, save for the following: -J18- 3.35 The Respondents, emphasize that when it comes to the registration and enforcement of the award, the High Court Rules should have been followed. The Respondents, further argue that their position in Ground Two of their appeal, is that the Order purportedly registering the Award on appeal, is improper due to the lack of compliance with Rule 1 7 of the Arbitration Rules, making the Order and any process thereafter defective. 3.36 The Respondents, argue that the amendments on appeal to the Award alone point to injustice resulting in the enforcement of the same being highly prejudicial against them. The Respondents also argue that the Court consider the Applicants' heads of arguments as an admission of the fact that the latter knew of the Respondent's whereabouts as they proceeded to argue that knowledge of the same was immaterial. 3.37 The Respondents reiterate their prayer to grant them the reliefs sought as well as costs. 4.0 HEARING 4.1 At the Hearing of 4 t h May 2023, held in chambers, Advocates for all parties stated they would rely on the evidence, skeleton and oral arguments on record and · as well augmented with oral submissions. 4.2 Counsel for the Applicants, emphasized, that where parties have submitted to an arbitral process, the High Court Rules or the High Court Act do not largely apply as The Arbitration Act No. -J19- 19 of 2000, and the Rules thereunder, are the primary pieces of legislation in this respect. It is the Applicants' contention that there is no requirement under the Act and under its Rules requiring obtaining leave of Court before proceeding to registration. 4.3 In response to the Respondents averment that the Court exceeded its jurisdiction by granting orders, directives and reliefs that were not granted by the Arbitral Tribunal in South Africa, the Applicant contended that the Respondent in these proceedings, did not exhibit where the Court has .exceeded its jurisdiction and granted orders not given by the Arbitral Tribunal. The Respondent, further argued, that in the registered orders that have been challenged, there was nothing exhibited that sought or seeks to vary or go outside the ambit of the Final Arbitration Award which was given in Cape Town on the 12th day of December 2018. 4.4 Counsel for the Applicants, concluded his oral submission by stating that the Court below was on firm ground when it ruled that the registration process and all the processes that the Applicants undertook, were in agreement with the rules under arbitration and with the rules of the High Court, where those rules were called in to complement the rules of Arbitration. 4.5 Counsel for the Respondents, submitted viva voce at the hearing, that. The Respondents' simple contention is that the Applicants were required to obtain leave ex-parte to issue process that would be served outside the Jurisdiction. The Respondent's -J20- Counsel, also stated that the evidence or prejudice suffered by the Respondents was highlighted in the Respondents Affidavit in support of appeal from paragraphs 8 - 12, as well as the general argument that that they have been deprived of the opportunity to apply to set aside the registration of the Arbitral Award. 4.6 Counsel for the Respondents, highlighting the Respondents Affidavit in Reply, at paragraphs 11 - 14, submitted that the highlighted paragraphs clearly demonstrated the excess jurisdiction was applied by the Hon. Deputy Registrar. 4.7 Counsel for the Applicant, concluded by emphasising that the Respondents do not have any office in Zambia, and Standard Chartered Nominees, who the applicants referred to in their written arguments, are not the Respondent's representatives 5.0 JUDGMENT 5.1 I have read and carefully considered the evidence, skeleton and oral arguments made by counsel for both parties. This Court has jurisdiction to hear the Applicant's appeal from the Ruling of the Hon. Deputy Registrar. 5.2 The First Ground of appeal in the matter touches on Civil Procedure, as it is contended that no leave of Court was sought prior to commencement of issuance of process for service outside the jurisdiction. -J21- 5.3 There are different modes of commencement of actions in the High Court. Examples of such modes are, by writ of summons, originating summons, originating notice of motion and petition. 5.4 In the case of Newplast Industries Limited v Commissioner of Lands and Another (9), the Supreme Court held that the mode of commencement of an action is determined or provided for under a relevant statute. This was reaffirmed by its holding in the case of Roadmi.x Limited and Another v Furncraft Enterprises Limited SCZ Judgment No. 41 of 2014 when it held that; "We accordingly affirm our decision in the case of New Plast Industries Limited v The Commissioner of Lands and the Attorney General; that the mode of commencement of an action is generally provided by the relevant statute and not the relief sought." 5.5 Therefore, a good example of a statute other than the High Court Act providing for mode of commencement of an action is under the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia, which provides that one commences an action by way of originating notice of motion to obtain certain relief under that Act. 5. 6 In the case in casu an application for registration and enforcement of an arbitral award, according to the Arbitration (Court Proceedings) Rules of 2001, Rule 16, must be brought by Ex-parte Originating Summons, when the Rules provides: -J22- "An application for the registration and enforcement of an award shall be made by ex parte originating summons to the register of the High Court. (2) An application for the registration and enforcement of an award shall be supported by an affidavit- (a) exhibiting the duty authenticated original award or a duly certified copy thereof;" .... 5.7. Section 10 of the High Court Act, provides that the Jurisdiction vested in the High Court as regards practice and procedure, shall be exercised in the manner provided by the High Court Act the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, the Matrimonial Causes Act of 2007, or any written law or by such rules, orders or directions of the Court .. . in substantial conformity with the Supreme Court Practice Rules 1999 White Book. The section reads: "The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, or by any other written law, or by such rules, order or directions of the Court as may be made under this Act, or the said Code, or such written law, and in default thereof in substantial -J23- conformity with the law and practice for the time being observed in England in the High Court of Justice." 5.8. The High Court provides that in application of practice and procedure within the Court, the High Court Act or any other laws apply and where there is a lacuna the rules of practice in England as prescribed under Section 10 apply. The case of Isaac Lungu v Mbewe Kalikeka (10) reiterated the position that, were there is a lacuna in our procedure we resort to English practice and procedure. The reading of Section 10 of the High Court Act is such that, all laws as applicable in the High Court supplement each other, except where there is an obvious inconsistency or contradiction with one another, the prevailing law will be that which is specifically applicable, in this case the Arbitration Act. 5.9. The rules of practice and procedure, as regards commencement or any other procedure, cannot be ignored and will apply to any matter that is being dealt with in this Court. Therefore, where there 1s a prescribed mode of commencement, in this case, being ex-parte originating summons, the same has to be properly issued out of this Court as per requisite practice and procedure of this Court. 5.10. Rule 19 of the Arbitration (Court Proceedings) Rules 2001 states: -J24- "(1) The applicant shall file in court a written notice of the registration of the award and serve it on the other parties- (a) in the case of a party within the jurisdiction, by personal service as in the case of a writ of summons, unless some other mode of service is ordered; or (b) in the case of a party outside the jurisdiction, in accordance with the rules applicable to the service of a writ of summons out of the jurisdiction." 5.11. Furthermore, the High Court Act and the Arbitration Act, which both recognize the High Court Registrar and a Judge of the High Court (Section 2), supplement each other and in this case do not contain any inconsistencies in interpretation. 5.12. This therefore means that rules of practice and procedure as regards the issuance of process in relation to the enforcement of recognition of awards cannot be overlooked. 5.13. The Arbitration Act also speaks of foreign awards in rule 16 stating: "(iii) if the award is a foreign award, that at the date of the application the award can be enforced by execution in the country in which it was made; and -J25- (vi) that the award is valid and binding on the parties and has not been set aside or suspended in Zambia or in the country in which, or under the law of which, it was made." 5.14. The Arbitration Act recognizes the jurisdiction of Zambian Courts in enforcement and registration of arbitral awards. The Act, under rule 36 also provides the following in relation to Zambian arbitrations, that; 1) Service out of the jurisdiction of any originating summons or an order made on such summons, may be effected with the leave of the Court if the arbitration to which the summons or order relate is governed by the Law of Zambia or has been, is being, or is to be held in Zambia. 2) Service out of jurisdiction of an originating summons for leave to register and enforce an award may be effected with the leave of the Court whether or not the arbitration is governed by the law of Zambia. Service of originating summons Service of affidavit in opposition Additional affidavits Service out of Jurisdiction. 3) An application for the grant of leave under this Rule shall be supported by an affidavit stating the grounds on which the application is made, and -J26- stating in what place or country the person to be served is, or probably maybe found; and leave shall not be granted unless the Court considers that the case is a proper one for service out of the jurisdiction under this rule". Order 10 _Rule 16 of the High Court Rules provides that; "An application for leave to issue for service out of the jurisdiction a writ of summons, originating summons, or originating notice of motion or a concurrent writ of summons, originating summons or originating notice of motion may be made ex-parte to the Court or a Judge on deposit of the writ, summons or notice with the Registrar together with an affidavit in support of such application." 5.15. Therefore, where arbitration proceedings are intended to be commenced and undertaken in Zambia, any originating process intended to be issued as against a party who resides or conducts business outside the jurisdiction, leave of Court must be first sought and then process issued. This was made clear in the Leopold Walford (Zambia) Limited v Unifreight case (1). 5.16. The current matter, 1s one dealing with registration proceedings which were commenced and undertaken outside Zambia and the award therefore, is sought to be registered in Zambia under Rule 19 of the Arbitration (Court Proceedings Rules). The Rule sets out the steps as follows; -J27- 1. Firstly, the applicant shall file in Court, a written notice of the registration of the award. 11. Secondly, the Rule requires the party filling the notice of registration to serve the same on the other parties. 111. The Rule is very clear of how the notice shall be served depending on where the party/ parties to be served is / are, when it provides; a. within the jurisdiction, by personal service in the same way that a writ of summons would be served, unless some other mode of service 1s ordered; or b. outside the jurisdiction, in accordance with the rules applicable to the service of a writ of summons out of the jurisdiction. 5.17. Therefore, it is clear that the award has to first be filed and only then can notice thereof be served. Where service is out of jurisdiction, the provisions of Rule 19 regarding service out of jurisdiction then kick in at this time at which point an application for substituted service can be made. I do not find that there is any requirement for obtaining leave of Court to serve the originating summons for registration of ar bitral award before an award is filed. The Rules under the Act are very clear that an arbitral award shall be registered on ex parte application. -J28- 5.18. In the case in Casu, even though the two Respondents operate outside the jurisdiction, it is not necessary that prior to the issuance of originating process to register the arbitral award, the issuing party should resort to the High Court Rules under Order 10 when the Arbitration Rules of 2001, contain a provision and are very clear on the matter of the service outside jurisdiction as argued by the Applicants. Rule 19 of the 2001 Rules is instructive on this point. The First Ground of appeal therefore fails. 5.19. On the Second Ground, whilst the Arbitral Award itself is final and binding upon the parties, subject to Section 20 (2) & 3 of the Arbitration Act the same is still enforceable. I am of the firm position that a party can still apply to set aside an arbitral award even after the 90 day period upon demonstrating sufficient cause why it did not so apply within the 90 day period. 5.20. The same was stated by the Honorable Mr. Justice Nigel Mutuna in the distinguishable case of Cash Crusaders Franchising (Pty) Limited v Shakers and Movers Zambia Limited, (9), wherein he stated; "By virtue of the said section an award is rendered enforceable except that an aggrieved patty can apply to have it set aside. The complimentary role the courts play means that the courts merely assist the Arbitral process to be effective because since it is manned by private citizens and not the state, there are no systems -J29- put in place to make it effective such as those available to the Courts. It is inter alia in a form of providing a forum for registering awards and setting side awards. The registration of an award by the Court is for the purpose of giving it an official seal for enforcement purposes and not for the purposes of bringing it into the realms of a Judgment and therefore subject to the dictates of the Court." 5.21. It can thus be gleaned from this case that the Honourable Judge advanced the argument that Courts play an assistive role which is to register the award and aid its enforcement. The Court in that matter dealt with the Court granting an extension of time to the Respondent to apply to set aside the award issued. 5.22. Rule 17 of the Arbitration Rules, which speaks on the r egistration and enforcement of arbitral awards, provides that: "(1) An order giving leave to register an award shall be drawn up by or on behalf of the judgment creditor and the order shall not be required to be served on the judgment debtor. (2) An order referred to in sub rule ( 1) shall state a period, not exceeding ninety days from the date of receipt of the award by the applicant, within which an application may be made to set aside the registration -J30- and shall contain a notification that execution of the award will not issue until expiration of that period." 5.23. I am of the opinion that though the above clause is couched in mandatory terms, the omission by the Applicants is not fatal to the Order granting leave for registration itself. The defect is in the form of the drawn-up Order. I opine that this defect is curable and leave can be granted by this Court to re issue the said Order giving notification of the registration of the Award, with the correct wording included. 5 .24. The above is mandatory and a requirement under the law and the order advertised in the Times of Zambia on the 30th of November 2020, and the Compass Media of Cayman Islands on the 14th of January 2021, does not state the period within which such arbitral award may be set aside. 5.25. In relation to Ground Two, I do not see how the Respondents have been deprived of the opportunity to set aside the Arbitral Award's registration, by the non-specification of the time period on the summons. I note that Rule 17( 1) of the Arbitration Rules provides that the Order shall not be required to be served on the judgment debtor. I opine that is the nature of ex-parte applications in the matter in casu, the applicants have demonstrated to me that they went out of their way to serve the Order through advertisement at the last known address. -J31- The Order having come to the Respondent's notice, the Respondent is not precluded from applying to set aside the registration or to take any other step thereon upon satisfying the Court of their bona.fide. This is evidenced by the current applications. Ground Two therefore fails. 5.26. In relation to Ground Three: The Hon. Registrar is said to have gone beyond his duty, as this Court is a body that aids arbitration proceedings, when he issued an order dated 14th November, 2019. The law on arbitration matters does not allow this Court to alter, interpret or change an arbitral award in any way. This is the sole preserve of the arbitral tribunal and the parties to the arbitration are supposed to go back to the arbitral tribunal for such matters. 1. The wording of the Hon. Registrar's Order of 14th November, 2019, in my view clearly seeks to interpret or clarify the arbitral award, when it states; "2. That the Share Register of Shoprite Holdings Limited at LUSE be amended accordingly to show the shares held by the 1st and 2 nd Respondents have been reversed and vested in Shoprite Holdings Limited." It goes beyond the powers vested in this Court. 5.27. For the reasons above, this Ground Succeeds. 5.28.ln relation to Ground Four, the same is closely tied to Ground One and has been adequately canvassed and determined -J32- above. Rules of Court require that personal service of Court originating process and subsequent documents be effected on a litigant, and in the event the same is not possible, Rule 19 of the 2001 Rules, allows for substituted service. In the matter in casu, the Applicants duly obtained leave and served process by substituted service in accordance with the Arbitration Rules 2001, which serve was good service in spite of the order being served being defective by reason of omission of the 90 day period. This Ground fails. 5.29. In relation to Ground Five, the Hon. Registrar was duty bound to ensure that he was satisfied that process was served on the Respondents in accordance with the rules of Court. Evidence of service usually takes the form of an affidavit of service which may or may not exhibit copies of the letter of service or advertisement cuttings. Beyond that, there is no rule that requires the Court to always demand or be provided evidence of service at each and every step of a matter. This Ground also fails. CONCLUSION 5.30. In conclusion, only one (1) out of five (5) of the grounds of appeal is successful, i.e., Ground Three succeeds. The appeal therefore partially succeeds on the above one (1) ground only. -J33- 5.31. In respect of Ground Three (3) the successful ground; 2. I hereby set aside the Order of the Hon. Registrar dated 14th November, 2019 in part which states; "2. That the Share Register of Shoprite Holdings Limited at LUSE be amended accordingly to show the shares held by the 1st and 2 nd Respondents have been reversed and vested in Shoprite Holdings Limited." 3. I hereby set aside the whole of the Order of the Hon. Registrar dated 26th August, 2021. 5.32. Leave to appeal is granted. 5.33. I make no order as to costs. Delivered at Lusaka this 30th day of August, 2023. -- Bonaventure. C HIGH COURT Mb JUDICIARY C•F ZAMBIA ~ - ew~ IGH COURT • Commercial Division 3 O AU~~~~ ]~ -J34-