noteworthy because MT was, on the face of it, a successful party in MISCA 651/2003. And in MISCA 649/2003, although nominally unsuccessful,
it had lost because of the affidavit of Mr. Mpuisang supporting the Council. So clearly, by the time the Notice of Appeal was drafted,
Mr. Mpuisang and MT had changed sides.
We must examine the judgment of the court a quo to determine
what the perceived situation was at that stage. It becomes evident
that Mr. Mpuisang's change of heart had occurred before the
hearing because at page 3 of the judgment the learned Chief
Justice, in a passage that has unfortunately become garbled in the
record, but which is clear enough in its meaning, is recorded as
saying the following -
"At the hearing and in a dramatic way counsel for the 3rd respondent (Horizon), sworn his affidavit in Misca 649, against whom Mr. Mpuisang had brought the said Mr. Mpuisang into court and
applied that he be heard in evidence in order that he may contradict the contents of his own and explain how he had been induced
to make it by an officer of the council. That application was opposed on behalf of the council and I held that no oral evidence of Mr. Mpuisang was to be heard unless this court ruled that these applications cannot be resolved without
his and or other evidence" (my emphasis)
The learned Chief Justice then went on to consider the evidence on the record. He came to the conclusion, as a matter of law, in case
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MISCA 651/2003, that Horizon had no locus standi to apply under the Arbitration Act for the enforcement of the award.
In regard to MISCA 649/2003 (the Council's application to have the award declared a nullity) he held that Horizon, not being a party
to the arbitration proceedings, did not have locus standi to appear as a defendant (I think this should be "respondent") to oppose the application to revoke the award. He went on
to say that
"Even though there is a dispute as to the position of Mr. Mpuisang, it is a fact that before this court in the application of
the Council Misca No. 649/2003 Mpuisang Transport, the other party to the arbitration, has not entered opposition to the application
of the Council. It seems to me therefore that the application is unopposed. ..."
Accordingly he proceeded to make the orders set out in paragraph 3 above, without reverting to the application that Mr. Mpuisang be
heard.
It seems to me with respect that this very compartmentalized approach to the matter has led the court a quo to overlook two vitally
important questions -
(a)
What if Mr. Mpuisang's retraction is true?
(b)
What are the probabilities that it is true?
7
9.
If what Mr. Mpuisang now says (or, more correctly, what he apparently wants to say) is true, then the arbitration proceedings are
entirely valid and binding, and the attempt to set them aside is founded on a lie, and is at least mala fide and at worst fraudulent, given the suggestion that Mr. Mpuisang will say that he was threatened by the Council that if he allowed
the arbitration to go ahead he would never get another contract from the Council.
10.
As to the probabilities, the stance adopted by MT and Mr. Mpuisang in his affidavit denying the authority of Horizon to proceed in
the name of MT, is very difficult to understand. If Horizon carried out the work (and we have the authority of the arbitrator to
say that it did) then it was entitled to be paid for it. Technically it did not have a contractual right to claim direct from the
Council. The right to take the dispute to arbitration lay with MT. What more natural than that MT should allow Horizon to proceed
in its name to arbitration? And what more odd than that Mr. Mpuisang should deny it?
11.
By the same token, the suggestion that Mr. Mpuisang now wishes to recant, and his alleged explanation as to the pressure put on him
by the Council, makes a great deal of sense. I will not say it has the ring of truth because I should not prejudge the matter.
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But it is certainly a logical and plausible explanation for his initial improbable averments and his subsequent withdrawal of those
averments.
It seems to me that if His Lordship below had realized the danger that he might be giving a judgment induced by fraud, and that the
only way to avoid that danger was to hear the evidence of Mr. Mpuisang, he would not have hesitated to allow the hearing of that
evidence before coming to a decision.
Learned counsel has placed before us a great deal of authority on a number of points of law. But I am not convinced that any of these
points arise for decision at the present stage. The first and most important priority is that Mr. Mpuisang must be heard. If his
"conversion on the road to Demascus" is accepted as a genuine recantation of an earlier improbable and untruthful assertion,
and if the reasons for the earlier untruthfulness are accepted, the court will have difficulty in granting any relief to the Council.
If there is a technical legal problem about Horizon's application to make the award an order of court, the court will no doubt look
sympathetically on an application to join MT in that application. I note in passing that section 20 of the Arbitration Act, Cap 06:01,
is
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far more loosely worded than the equivalent South African or Zimbabwean sections.
14. In the result I make the following order -
1.
The appeal is allowed with costs, including the costs of two counsel.
2.
The orders of the court a quo in cases MISCA 649/03 and 651/03 are set aside.
3.
The matter is referred back to the court a quo for further hearing.
4.
The court is directed to hear the evidence of Mr. Mpuisang, the Chief Executive Officer of the second appellant in both cases, and
such other evidence in support or rebuttal of that evidence as the parties may wish to call, and to come to a conclusion afresh in
the light of all the evidence.
DELIVERED IN OPEN COURT AT LOBATSE ON 27 JANUARY 2006.
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