MAKONI
JA:
This
is an appeal against the decision of the High Court upholding an
arbitral award handed down by the third respondent on 10 July 2018 in
terms of which the appellant's claim was dismissed for want of
prosecution and the first respondent's counter claim was granted.
BACKGROUND
FACTS
Prior
to January 2006 the appellant and the first and second respondents
owned mines which are in close proximity situate in the Mutoko and
Mudzi districts. In January 2006, the parties concluded a
shareholder's agreement governing their respective shareholding in
a joint venture company called Quarrying Enterprises (Pvt) Ltd (QE).
As contribution towards their shareholding to QE the parties
contributed inter
alia
mining claims.
Alleging
breach by the first and second respondents of the shareholder's
agreement, the appellant approached the arbitral tribunal seeking an
order declaring the shareholder's agreement of no force or effect,
restitution of its mining claims and moveable assets it contributed
to the joint venture, eviction of the first and second respondents
from the mining claims and payment of damages in the sum of
US$21,693,374.
The
first and second respondents resisted the claim and filed a
counterclaim wherein they alleged that the appellant was in breach of
the shareholders agreement. They sought an award declaring that the
appellant was in breach of the
shareholders agreement and that the
other shareholders were entitled to cancel the agreement and acquire
appellant's shareholding in accordance with the agreement.
In
2015, the parties referred the dispute to arbitration before the
third respondent ('arbitrator'). After various interlocutory
applications and several postponements requested by the appellant,
the arbitrator scheduled the final hearing on 28 May 2018.
At
the commencement of the hearing, the appellant's Managing Director,
Mr Smit, appeared in person and sought a further postponement. He
averred that Mr Samukange,
the appellant's counsel of choice, was unavailable to argue the
matter as he was involved in elections and was not sure when he would
be available. He stated that it was in the interests of justice to
have appellant's legal practitioner of 20 years to represent it in
the matter.
The
first and second respondents opposed the postponement and argued that
the appellant's right to legal representation was not absolute and
proceedings could not be forestalled because of the unavailability of
a particular legal practitioner. Counsel for the first and second
respondents insisted that the respondents had a right to the prompt
resolution of the dispute. He further indicated that the appellant
had ample time to enlist the services of another legal practitioner
but failed to do so.
In
any event, it was submitted, it had been indicated to the appellant
at the last postponement of 2 May 2018 that the respondents would
make an application for the dismissal of the claim for lack of
prosecution. Consequently, the respondents moved for the dismissal of
the appellant's claim for want of prosecution.
The
arbitrator refused the postponement and proceeded with the matter.
On
10 July 2018,
the arbitrator handed
down his award dismissing the appellant's claim for want of
prosecution in terms of Article 25(d) of the UNCITAL Model Law. as
set out in the Arbitration Act [Chapter
7:15]
(Model Law).
This
was upon a finding that the appellant was 'virtually absent' as
Mr Smit, the appellant's representative, was not in a position to
prosecute the appellant's case or defend the counterclaim without
the assistance of a legal practitioner. The arbitrator held that the
appellant's conduct exuded an unwillingness to prosecute its case
as it sought
to forestall the arbitration from October 2017.
After
dismissing the appellant's claim, the arbitrator proceeded to deal
with the respondent's counterclaim and after analysing the evidence
placed before him, he upheld the counterclaim.
In
the result, he declared
that the appellant was in breach of the shareholder's agreement
signed by the parties and that the other parties retained their right
to cancel the agreement and to acquire the appellant's
shareholding.
Dissatisfied
with the award, the appellant approached the court a
quo
in
terms of Article 34(2) of the Model Law to have the arbitral award
set aside.
It
argued that the arbitrator violated its right to be heard by
directing that the hearing proceeds despite the unavailability of
the appellant's legal practitioner of choice. Thus, the appellant
contended, its constitutional right to legal representation by
counsel of choice had been infringed.
It
also stated that by imposing a date of hearing, the respondents
violated its right to a fair, speedy hearing within a reasonable time
before an independent judiciary.
It
further submitted that the arbitrator's finding that its claim was
not prosecuted was contrary to the evidence and amounted to a
misrepresentation of facts in order to frustrate the appellant's
claim.
In
its opposing papers, the first respondent argued that the
postponement was rightfully denied as the appellant's selection of
a lawyer, who was known to be unavailable, had the effect of delaying
indefinitely the determination of the parties' rights.
It
further contended that the appellant was not left without
representation as it could engage counsel who represented it at the
initial stages.
The
first respondent also indicated that the appellant had ample
opportunity to regularise its affairs as it had been granted several
adjournments prior to the final hearing but failed to do so. The
first respondent was of the view that the appellant was abusing the
arbitration proceedings as evidenced by its numerous unmeritorious
applications in the High Court.
Regarding
the arbitrator upholding its counterclaim, the first respondent
averred that the evidence against the appellants was overwhelming as
it established the unrebutted fact that the appellant was in breach
of the shareholders' agreement.
In
response, the appellant insisted that Mr Samukange
was well versed with the facts and issues surrounding the main case
and would effect proper representation.
Concerning
the counterclaim, the appellant submitted that due to Mr Samukange's
absence, Mr Smit was incapable of addressing the technical arguments
made by the respondent's counsel. However, it was highlighted that
the allegations of breach were refuted by Mr Smit. The appellant also
argued that the postponement sought could not be classified as an
'indefinite delay' and that it occasioned no prejudice to the
respondents.
The
appellant took a further point in its heads of argument that the
arbitrator adopted a wrong procedure in dismissing its claim for want
of prosecution wherein in terms of Article 25(c) he could make an
award on the merits based on the evidence placed before him.
The
court a
quo
dismissed the application.
It
held that the arbitrator properly exercised his discretion in
refusing a postponement, after considering the applicable principles.
The court held that the appellant's right to legal representation
was not absolute. It reiterated that the unsuitability of a date for
a legal practitioner is not good enough reason to seek a postponement
where no reason is advanced as to why other legal practitioners could
not be engaged. It reasoned that the refusal of a postponement was
justified considering the duration of the matter and the legitimate
reasonable needs of the respondents to have the matter resolved
expeditiously
considering
that the arbitrator had allowed another postponement on 2 May 2018 on
similar grounds. The court was of the view that the appellant had
ample time between 2 May 2018 and 28 May 2018 to enlist the services
of other legal practitioners. It found that the appellant's right
to be heard had not been breached because Mr Smit consciously elected
not to participate in the proceedings when it was indicated that
there would be no postponement.
The
court further held that the arbitrator properly invoked Article
25(d). It reasoned that Article 25(c) was inapplicable since the
appellant was duly represented by Mr Smit who had participated in
making an application for postponement although he was 'absent'
for other purposes.
Aggrieved
by that decision, the appellant noted an appeal to this Court on the
following grounds:
“GROUNDS
OF APPEAL
1.
The learned judge erred in finding that the Appellant's
constitutional right to a lawyer of his choice had not been infringed
by the arbitral tribunal and erred in finding that Appellants
insistence on being represented by a legal practitioner of his choice
was unreasonable in the circumstances.
2.
The learned judge erred in finding that the Appellant was obliged to
retain the services of an alternative counsel in the circumstances.
3.
The learned judge misdirected himself in finding that the arbitral
tribunal had not breached Appellants rights in terms of s69(4) of the
Constitution in the circumstances.
4.
The learned judge erred in finding it was reasonable of the arbitral
tribunal to impose a date for the resumption of the hearing on the
Appellant when its legal practitioner of choice had previously
advised the arbitral tribunal it was not available.
5.
The learned judge erred in finding that a postponement of the
arbitration was not merited and reasonable in the circumstances.
6.
The learned judge erred in concluding that the delay in proceedings
was occasioned by Appellants remissness and hence he was not entitled
to a postponement in the circumstances.
7.
The learned judge misdirected himself in finding that the arbitral
tribunal acted properly in proceeding without Appellant's legal
practitioner.
8.
The learned judge misdirected himself in finding that the arbitral
tribunal was correct in proceeding under Article 25(d) of the
Arbitration Act instead of Article 25(c) which required the arbitral
tribunal to consider the matter on the merits.
9.
The learned judge erred in finding that the Appellant was not in
default on the day in question and hence that the arbitral tribunal
was correct in dismissing Appellants claim for want of prosecution.”
SUBMISSIONS
ON APPEAL
Mr
Matinenga,
for the appellant argued that the arbitrator's undue refusal of a
postponement infringed on the appellant's constitutionally
guaranteed right to counsel of choice. He submitted that since a
plausible explanation for the unavailability of the appellant's
counsel of choice was proffered, the arbitrator's denial of
postponement in the circumstances was an infraction of effective
legal representation.
He
also submitted that it was improper for the arbitrator to invoke
Article 25(d) of the Model Law as opposed to 25(c) in disposing
of the appellant's claim.
He
argued that such a technical approach to the matter was unwarranted
as the appellant's claim and defence to the counterclaim, both of
which were before the arbitrator, were not adjudicated on.
He
argued that by resorting to Article 25(d), the arbitrator made an
order akin to a default judgment in arbitration proceedings yet such
an order is the preserve of a proper court of law. Mr Matinenga
contended that where pleadings are closed, Article 25(d) cannot be
employed. The arbitrator is obliged to deal with the merits of the
matter. Accordingly, he argued that s25(d) applies where a defaulting
party has not yet filed documents on the merits of the dispute.
Mr
Matinenga
submitted that had Mr Smit not attended the hearing, Article 25(c)
would have been applicable and the arbitrator would have dealt with
the matter on the papers placed before him. To that end, he argued
that since Mr Smit was present at the hearing but failed to
participate, there was no reason for the arbitrator to be excused
from determining the merits of the matter.
Upon
being asked by the court if a case had been made for the setting
aside of the arbitral award on the grounds that it was contrary to
public policy, Mr Matinenga
stated that the arbitral award was contrary to the public policy of
Zimbabwe in two respects:
(i)
Firstly, in that the arbitrator did not afford the appellant
attendance of its legal practitioners; and
(ii)
secondly that the arbitrator failed to determine the appellant's
claim or the defence to the respondent's counter claim.
ISSUES
FOR DETERMINATION
Although
the appellant has raised several grounds of appeal, its case hinges
on a determination of the following issues:
1.
Whether or not the court a
quo
erred in holding that the arbitrator's refusal of the appellant's
request for a postponement was justified.
2.
Whether or not the court a
quo
erred in finding that the arbitrator properly invoked Article 25(d)
of the Model Law in dealing with the appellant's claim.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether or not the court a
quo
erred in holding that the arbitrator's refusal of the appellant's
request for a postponement was justified
It
is settled law that postponement of a matter is not a right
obtainable on demand but is at the court's indulgence. As such, it
involves an exercise of discretion which discretion
must be exercised judicially. This position was enunciated by this
Court in
Apex
Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd
SC33/15,
where
it was held that:
“An
application for the postponement of a matter which has been set down
for hearing is in the nature of an indulgence sought, the grant of
which is in the discretion of the judge or court before which it is
made. The applicant must therefore show that there is good cause for
the postponement or that there is a likelihood of prejudice if the
court refuses the indulgence being sought.”
In
exercising the discretion to postpone a matter, several factors have
to be considered cumulatively.
In
Persadh
v General Motors SA (Pty) Ltd
2006
(1) SA 455 (SE) para 13, the
court
succinctly
set out the applicable legal principles when a party applies for a
postponement, as follows:
“First,
as that party seeks an indulgence he or she must show good cause for
the interference with his or her opponent's procedural right to
proceed and with the general interest of justice in having the matter
finalised; secondly, the court is entrusted with a discretion
as
to whether to grant or refuse the indulgence; thirdly, a
court should be slow to refuse a postponement where the reasons for
the applicant's inability to proceed has been fully explained, where
it is not a delaying tactic and where justice demands that a party
should have further time for presenting his or her case; fourthly,
the prejudice that the parties may or may not suffer must be
considered; and, fifthly, the usual rule is that the party who is
responsible for the postponement must pay the wasted costs.”
(Emphasis added)
In
casu,
the court a
quo
found that the arbitrator was alive to the salient factors
surrounding the grant or refusal of a postponement and he applied
them judicially.
Having
considered that the appellant's conduct sought to frustrate the
arbitration proceedings by filing several unmeritorious applications,
seeking several postponements, that the appellant failed to indicate
when the arbitration would continue if postponed, why the legal
practitioner of choice was unavailable and why other legal
practitioners who had handled the matter previously could not act for
the appellant, the court a
quo
held that the appellant's insistence on representation by Mr
Samukange
in the circumstances was unreasonable. The court found that the
appellant had ample time to enlist the services of other legal
practitioners.
The
court a
quo's
reasoning cannot be faulted.
It
was a proper case to deny a postponement as the
reasons for the appellant's inability to proceed had not been fully
explained and postponement had been employed as a delaying tactic.
Over and above that, the
mere fact that a party's counsel of choice is unavailable is not a
good ground
upon which to grant a postponement. This position was laid out in
D'Anos
v Heylon Court (Pty) Ltd
1950
(1) SA 324 C at 335-336,
where the court held that:
“…the
non-availability of counsel cannot be allowed to thwart the bringing
before the court of the matter in issue.
In all but the rarest of cases suitable counsel will be available.
This is not the convenience of counsel; it is the reasonable
convenience of the parties- and by that I mean both parties - and the
requirement of getting through the court's work which must be the
dominant considerations. The availability of counsel is a subsidiary
consideration. A
party's predilection for a particular counsel to take his case can,
in my view, seldom if indeed ever be regarded as a decisive objection
to a date of set down which is in all other respects reasonable and
acceptable to both parties.”
(Emphasis added)
The
parties' interests must be taken into consideration.
In
the present case, the arbitrator further considered
the respondent's interest in respect of its counterclaim which
required speedy determination which could not be delayed further by
the appellant who did not wish to prosecute its case.
That
finding cannot be impeached.
In
any event, it is a salutary principle of law that
there
should be finality in litigation. See
Ndebele
v Ncube
1992
(1) ZLR 288 (S) at 290C – E.
Therefore,
the
arbitrator's refusal of postponement was justifiable. The
appellant failed to show good cause for the grant of the indulgence
it sought. The arbitrator and the court a
quo
cannot be faulted for holding that the appellant had not made a good
case for a further postponement of the hearing.
This
leaves one issue for consideration namely:
2.
Whether or not the court a quo erred in finding that the arbitrator
properly invoked Article 25(d) of the Model Law in dealing with the
appellant's claim
The
appellant contends that the arbitrator and the court a
quo
ought to have found that Article 25(d) of the Model Law was
inapplicable notwithstanding that it was in default. The thrust of
its argument is that where pleadings are closed and all documents are
before the arbitrator, the arbitrator is obliged to make a decision
on the merits notwithstanding any reasons for the default.
Article
25 of the Model Law provides the course an arbitrator can take where
a party is in default as follows:
“ARTICLE
25
Default
of a party
Unless
otherwise agreed by the parties, if, without showing sufficient cause
—
(a)
the claimant fails to communicate his statement of claim in
accordance with article 23(1), the arbitral tribunal shall terminate
the proceedings;
(b)
the respondent fails to communicate his statement of defence in
accordance with article 23(1), the arbitral tribunal shall continue
the proceedings without treating such failure in itself as an
admission of the claimant's allegations;
(c)
any party fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and make
the award on the evidence before it;
(d)
the
claimant fails to prosecute his claim, the arbitral tribunal may make
an award dismissing the claim or give directions, with or without
conditions, for the speedy determination of the claim.”
(Emphasis added)
Subsections
(c) and (d) are apposite to the determination of the present case.
Under
(c) an arbitrator has a discretion to consider the evidence before
him and to render a ruling notwithstanding that a party is in
default. However, under subs (d) the arbitrator may dismiss the
claim or give directions for the speedy determination of the claim
where the claimant fails to prosecute its claim.
Our
Article 25 is worded exactly as Article 25 of the
Arbitration Act 1996 of New Zealand which provides that:
“25
Default of a party
Unless
otherwise agreed by the parties, if, without showing sufficient cause
—
(a)
the claimant fails to communicate the statement of claim in
accordance with article 23(1), the arbitral tribunal shall terminate
the proceedings:
(b)
the respondent fails to communicate the statement of defence in
accordance with article 23(1), the arbitral tribunal shall continue
the proceedings without treating such failure in itself as an
admission of the claimant's allegations:
(c)
any party fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and make
the award on the evidence before it:
(d) the claimant fails to
prosecute the claim, the arbitral tribunal may make an award
dismissing the claim or give directions, with or without conditions,
for the speedy determination of the claim.”
Similarly,
the Arbitration Act of Kenya Chapter 49 is couched as follows:
“26.
Default of a party
Unless
otherwise agreed by the parties, if, without showing sufficient cause
—
(a)
the claimant fails to communicate his statement of claim in
accordance with section 24(1), the arbitral tribunal shall terminate
the arbitral proceedings;
(b)
the respondent fails to communicate his statement of defence in
accordance with section 24(1), the arbitral tribunal shall continue
the proceedings without treating such failure in itself as an
admission of the claimant's allegations;
(c)
a party which fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and make
the award on the evidence before it;
(d)
the claimant fails to prosecute his claim, the arbitral tribunal may
make an award dismissing the claim or give directions, with or
without conditions, for the speedy determination of the claim;
(e)…
(f)…
(g)…”
A
point to note is that the UNCITRAL Model Law does not have subs (d)
in its Article 25. It only has subss (a) to (c). Subsection (d) is
one of the few provisions that were expressly added by the Zimbabwean
legislature to the Model Law.
There
is a dearth of case law interpreting Article 25(d) in the stated
jurisdictions. It appears that our courts have also not dealt with
the import of the subsection and the powers bestowed on an arbitrator
therein.
However,
it can be gleaned from the above that subs (d) gives
the arbitrator final and definitive powers in the disposition of a
claimamt's claim for lack of prosecution.
It
is necessary to mention that Article 25 of the Model Law involves the
exercise of a discretion by an arbitrator as to the course of action
to follow in disposing of a claim before him where default has been
established.
That
discretion may be interfered with where the primary
court acts upon a wrong principle, allows extraneous or irrelevant
matters to guide or affect it, mistakes the facts or does not take
into account some relevant consideration. See Barros
v Chimponda
1999
(1) ZLR 58 (S).
These
guidelines ought to be measured against both the arbitrator and court
a
quo's
findings.
The
arbitrator invoked Article 25(d) of the Model Law having found that
the appellant's conduct exhibited an unwillingness to prosecute its
case. The court a
quo
also
reasoned
that subs (c) was inapplicable as the phrase “fails to appear”
did not apply to the appellant which was represented by Mr Smit who
had participated in the proceedings by seeking postponement.
The
question is whether, in the circumstances, the arbitrator was obliged
to determine the merits of the matter.
This
can only be determined by ascertaining the legislative intent in
promulgating the section.
This
Court in Thandikile
Zulu v ZB Financial Holdings (Private) Limited
SC48/18 had this to say;
“The
rules of statutory interpretation dictate that the words of a statute
shall be given their ordinary grammatical meaning unless doing so
leads to an absurdity. In the case of Venter
v Rex 1907
TS 910, INNES CJ said the following at 914-5:
'it
appears to me that the principle we should adopt may be expressed
somewhat in this way: that when to give plain words of a statute
their ordinary meaning would lead to absurdity so glaring that it
could never have been contemplated by the legislature, or where it
could lead to a result contrary to the intention of the legislature,
as shown by the context or by such other consideration as this court
is justified in taking into account, the court may depart from the
ordinary effect of the words to the extent necessary to remove the
absurdity and to give effect to the true intention of the
legislature.'”
This
approach was followed by MCNALLY JA in Chegutu
Municipality v Manyara
1996
(1) ZLR 262 (S) at 264 D-E, where he said:
“There
is no magic about interpretation. Words must be taken in their
context. The grammatical and ordinary sense of the words is to be
adhered to, as Lord Wensleydale said in Grey
v Pearson
(1857) 10 ER 1216 at 1234, 'unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of the
words may be modified as to avoid that absurdity and inconsistency,
but no further'”.
See
also
Zimbabwe
Revenue Authority & Anor v Murowa Diamonds
(Pvt) Ltd SC41/09 at p6.
In
my view the wording employed in Article 25(c) and (d) of the Model
Law is clear and unambiguous. There is no need to resort to tools of
interpretation to get the intention that motivated the enactment of
the provisions.
What
differentiates subs (c) from (d) is the claimant's conduct upon
which the arbitrator's decision to either consider the evidence
before him or to dismiss the claimant's claim respectively is
based.
It
appears that Article 25(d) is invoked in the extreme situations
where, as in casu, a party is present, is asked to motivate its case
and fails or refuses to do so.
The
party would have consciously made a decision not to participate in
the proceedings.
It
must be borne in mind that that party would be the claimant and hence
the dominus
litis
in the matter.
The
Article gives the arbitrator power to deal with an otherwise
obstructive litigant.
In
casu
the proceedings would have stalled were it not for Article 25(d) of
the Model Law and the applicant would have achieved its intended
desire of having the matter moved forward.
It
has, therefore, the effect of terminating stale or unnecessarily
protracted arbitral proceedings.
On
the other hand Article 25(c) of the Model Law is resorted to where “a
party fails to appear
at a hearing or to produce documents”.
That
is the major distinction between the two provisions.
Its
akin to the procedure in terms of r238 of the High Court Rules 1971
where the court can exercise its discretion to deal with the matter
on the merits.
Accordingly,
Mr Matinenga's
argument that an order by the court under Article 25(d) of the Model
Law is akin to a default judgment which an arbitrator has no power to
make is misplaced. His further contention that a party has better
protection under Article 25(d) is neither here nor there.
If
it was the intention of the legislature to give the same rights to a
party who fails to appear and one who refuses to prosecute its claim
it would have specifically stated so.
More
importantly, the arbitrator in a detailed analysis of the appellant's
conduct, since the commencement of arbitration proceedings, held that
the appellant was unwilling to prosecute its case. He remarked thus:
“Without
any indication from the claimant as to when the arbitration would
continue if postponed; without any good enough reason why the
prefered legal practitioner, Mr Samukange, was unavailable; without a
date as to when he would be available; without any explanation as to
why Mr McGown who handled the matter on the previous occasions was
unable to act for the claimant; without any explanation as to why
Advocate Wood would not appear for the claimant; and in
the face of a long history of obstructive steps by the claimant in
the form of requests for postponement and unmeritorious applications,
I was satisfied that the claimant did not wish to prosecute its
claim.”
(emphasis added)
The
court a
quo
also made some pertinent observation and correctly so, when it
stated:
“Mr
Smit cannot be regarded as having been present for the purpose of
making an application for a postponement but 'absent' for other
purposes.”
I
find no fault in these findings by the arbitrator and court a
quo.
I
can only interfere with the findings where they are grossly
irrational. See Hama
v National Railways of Zimbabwe
1996
(1) ZLR 664 (S). I have not found irrationality in the above
reasoning.
In
any event, a high threshold has been set for setting aside arbitral
awards under Article 34
on the basis that it is contrary to public policy.
An
arbitral award will not be contrary to public policy merely because
the reasoning or conclusions of the arbitrator are wrong in fact or
in law. It is in those instances where:
“…the
reasoning or conclusion in an award goes beyond mere faultiness or
correctness and constitutes a palpable inequity that is so
far-reaching and outrageous in its defiance of logic or acceptable
moral standards that a sensible and fair-minded person would consider
that the conception of justice in Zimbabwe would be intolerably hurt
by the award, then it would be contrary to public policy to uphold
it.
The
same applies where the arbitrator has not applied his mind to the
question or has totally misunderstood the issue, and the resultant
injustice reaches the point mentioned above.” See Zesa
v Maposa
1999 (2) ZLR (S) @ 466E.
In
the present case, the threshold has not been met.
DISPOSITION
I
have come to the conclusion that Article 25(d) of the Model Law was
properly invoked in the circumstances of this case.
A
finding that the appellant failed to prosecute its case empowered the
arbitrator to dismiss the appellant's claim. Consequently, in the
circumstances of this case, the appellant cannot seriously argue that
the arbitrator failed to determine the matter placed before him. The
appellant also has not demonstrated that the arbitrator's refusal
of postponement was grossly unreasonable.
Although
this would have been a proper case to award costs against the
appellant this Court will not make such an order for the reason that
the respondents, being in default, did not motivate a claim for
costs.
In
the result, I make the following order:
The
appeal be and is hereby dismissed.
GUVAVA
JA: I
agree
UCHENA
JA: I
agree
Messrs.
Venturas & Samukange,
appellants'
legal practitioners
Gill,
Godlonton & Gerrans,
1st
respondent's legal practitioners
