IN THE COURT OF APPEAL OF ZAMBIA Appeal No.

221/2020
HOLDEN AT LUSAKA
(Civil Jurisdiction)

BETWEEN:

AXIZ (PTY) LIMITED APPELLANT

AND

CLOUDTECH ZAMBIA LIMITED 1st RESPONDENT

RAVIKIRAN VIJAY SALVI 2nd RESPONDENT

CORAM: Chashi, Sichinga and Banda-Bobo, JJA

On the 27th day of August, 2021 and 3rd December, 2021.

For the Appellant: Ms. M. Kapotwe of Messrs Mesdames Theotis

Mutemi Legal Practitioners

For the Respondents: Mr. L. Mtonga of Messrs Philsong & Partners

Legal Practitioners

JUDGMENT

BANDA-BOBO, JA, delivered the Judgment of the Court

Cases referred to:
1. Steak Ranch Limited v Steak Ranches International BV (2011 /HP/0183)
Unreported
2. Chansa Chipili and Powerflex (z) Limited v Wellingtone Kanshimike and
Wilson Kalumba (2012) ZR 483
3. Spiliada Maritime Corporation v Consulex Limited “The Spiliada” (1986) 3 ALL
ER Page 625
4. Fehmarn (1958) 1 WLR 159
5. Mournt Albert Borough Council v Australia ETC Assurance Society Limited
A.C 224
6. Friday Mwamba v Sylvester Nthenge and Two Others SCZ Judgment No.5 of
2013
7. Kalusha Bwalya v Chadore Properties and Ian Chamunora Nyalugwe
Haruperi SCZ Appeal No. 222/2013
8. Colgate Pamolive Zambia Inc v Abel Shemu Chuka and 10 Others (SCZ
Judgment No. 11 of 2005 - SCZ (Appeal No. 181 of 2005)
9. Donohue v Armco Inc and Others [2000] 1 Lloyd's Rep. 579

10. Godfrey Miyanda v. The High Court (1984) Z.R. 62

Legislation referred to:

1. The Constitution of Zambia (Amendment) Act No.2 of 2016

2. Order 11 Rule 1(4) of the High Court Rules, Chapter 27 of the Laws of
Zambia

Other Works referred to:

1. Dicey & Morris (1980), The Conflict of Laws, 10th Edition

2. Cheshire and Northis Private International Law at page 238

1.0. INTRODUCTION
1.1. This is an appeal against the whole Ruling of Honorable Justice,

E.L. Musona, where he found that the agreement entered into

by the parties expressly stated that it would be governed by

South African law and precluded Zambian courts from trying

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 the suit. The judge thus dismissed the Plaintiffs action for lack

of jurisdiction.

2.0. BACKGROUND

2.1. The brief background to this matter is that it arose from a

dispute regarding an agreement between the Plaintiff and the

1st Defendant wherein the Plaintiff appointed the 1st Defendant

as reseller of its computer equipment and products. The

agreement also incorporated a deed of surety that bound the 2nd

Defendant as surety and co-principal debtor together with the

1st Defendant as regards the 2nd Defendant’s obligations under

the agreement. Unfortunately, the 1st Defendant failed to

discharge its obligation to pay the price of the goods supplied to

it. Aggrieved by the Defendant’s action, the Plaintiff commenced

an action by way of writ of summons and statement of claim

and endorsed with the following claims:

1. Payment of the sum of USD160,718.78 being sums due

and owing to the Plaintiff for the supply of various

computer equipment under the reseller agreement;

2. Interest on the aforesaid sum at the rate of 10% per

annum tempore morae to date of the writ;

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 3. Interest at the London Inter Bank Offered Rate (LIBOR)

from date of writ to date of payment;

4. Costs of and occasioned by this action; and

5. Any other reliefs that the Court deems fit.

2.2. However, before the matter could be heard substantively, the

Defendants filed summons with a supporting affidavit for the

matter to be dismissed for want of jurisdiction pursuant to

Order 11 Rule 1(4) of the High Court Rules. It was argued that

the parties had agreed that the re-seller agreement which was

the subject of the dispute, would be governed by South African

Law, and that this therefore affected the Zambian Court’s

jurisdiction to preside over the matter.

2.3. The Judge in his Ruling on the above, determined that there

was a sole issue that had to be determined, this being whether

the case before him should be determined in Zambia on the

basis of convenience despite the fact that the agreement in

issue was governed by South African Law. He determined that

the fact that the agreement expressly stated that it would be

governed by South African Law, meant that it precluded the

Court and Zambian Courts from trying the suit.

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3.0 The Appeal

3.1 Aggrieved with the Court’s Ruling, the Plaintiff has now

appealed against the whole Ruling on the following grounds:

(1) . The learned puisne Judge erred in law and in fact when he

held that by citing the case of Fehmarn as well as raising

the principle of forum non conveniens, the Appellant

conceded that the Court lacks jurisdiction, contrary to the

holding in the case in Steak Ranch Limited v Steak

Ranches International BV1.

(2) . The learned puisne judge erred in law and fact when he

held that the case of Fehmarn is distinguishable from this

matter in that it did not involve perishable goods, when

the legal principle was the same;

(3) . The learned puisne judge erred in law when he ousted the

inherent jurisdiction of the Zambian High Court, by

making a finding that the fact that the agreement

expressly stated that it would be governed by South

African law, precludes this Court and Zambian Courts

from trying the suit, contrary to the holding in the case of

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 Chansa Chipili and Powerflex (Z) Limited v Wellingtone

Kanshimike and Wilson Kalumba2

4.0 Arguments in Support

4.1 Counsel indicated that he would argue grounds one and two

together, while ground three would be argued separately, but

first.

4.2 The argument in ground three was that the Court should not

have ousted the inherent jurisdiction of the Zambian High

Court contrary to the holding in the case of Chansa Chipili and

Powerflex (Z) Limited v Wellingtone Kanshimike and Wilson

Kalumba2. Counsel’s argument was that the Zambian courts

have the requisite jurisdiction to try this matter, despite the

agreement expressly stating that it would be governed by South

African law.

4.3 Ms. Kapotwe counsel for the Appellant argued that the

interpretation of the holding in the case of Chansa Chipili and

Powerflex (Z) Limited v Wellingtone Kanshimike and Wilson

Kalumba2 was that the governing law of a contract, is different

from that of the applicable law. Therefore, the South African

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applicable law in this matter was different from the governing

law of the contract and that this should not oust the jurisdiction

of the High court. She further submitted that an agreement

between parties could not oust the inherent jurisdiction of the

Zambian High Court whose jurisdiction was both constitutional

and statutory. In support of her argument she referred to Article

134 of the Constitution of Zambia (Amendment) Act, No.2 of

2016. She argued that based on the above, the court below had

inherent and unlimited jurisdiction in all matters, and had

jurisdiction to deal with the triable issues raised in the

Appellant’s pleadings including the South African applicable

law clause. She submitted that this position was confirmed in

the cases of Steak Ranch Limited v Steak Ranches

International BV1 and Chansa Chipili and Powerflex (Z)

Limited v Wellingtone Kanshimike and Wilson Kalumba2.

She further submitted that the learned Judge in the court below

misdirected himself in dismissing the action for lack of

jurisdiction as the governing law of a contract is a different legal

issue from that of the applicable law of the Reseller Agreement

which is an issue that should be resolved at trial. Additionally,

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 she argued that in accordance with the extract from Cheshire

and North's Private International Law at page 238, the court

below did have the discretion to disregard the express foreign

jurisdiction clause.

4.4 In arguing grounds one and two it was submitted that in

bringing up the argument of “'forum non conveniens” the

Appellant was not conceding that the Zambian courts lacked

jurisdiction on this matter. That the argument was advanced

not as a consensus that the court lacked jurisdiction but rather,

to give the court some factors to take into consideration in

determining where the matter should be tried. It was counsel’s

further contention that the courts have a discretion to look at

the convenience of each case and decide on a balance of

convenience where the matter should be tried. In support of the

foregoing, reliance was placed on the Chansa Chipili2 case,

once again.

4.5 Counsel argued that the 1st Respondent is registered and

operates in Zambia, and that the 2nd Respondent resides in

Zambia. Counsel argued that as a result of the foregoing the

Appellant was fortified by the holding in the Fehmarn4 case by

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 stating that the agreement has a close connection to Zambia

and should therefore be tried in this jurisdiction, as the more

convenient forum

4.6 She argued that the Supreme court in the Chansa Chipili2 case

did not distinguish the- case before it with the Fehmarn4 case

or consider whether the goods were perishable or not. It is on

these premises that the Appellant contends that the court below

fell into grave error when it proceeded to make this distinction,

as the legal principles involved in both cases remained the

same.

4.7 It was Counsel’s further contention that the affidavit in support

of the Respondent’s application to dismiss the matter for want

of jurisdiction, appearing on pages 31 to 41 of the Record of

Appeal did not demonstrate that the commencement of this

action in the High Court for Zambia would be inconvenient, and

that an alternative convenient forum existed. Furthermore, that

the Respondents did not show how they would be prejudiced, if

this matter were to be tried in Zambia. It was Counsel’s

contention that the Respondents failed to discharge the onus

placed upon them as espoused in the Steak Ranch1 case, that

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 one must demonstrate that there is an alternative forum which

is more convenient. Counsel argued that when the argument of

forum non conveniens was raised in the Steak Ranch1 case, the

court did not consider the same to be an admission that the

court had no jurisdiction but that in the holding, the court held

inter alia that the applicable law was merely one of the elements

to be considered.

4.8 In conclusion, Counsel contended that the principle

determining factor of where this case is to be tried, was not the

choice of law the parties have made, but rather that the

applicable law is merely one of the elements to be considered

and it was their prayer that this Court reverses the decision of

the learned trial judge in the court below and allow the matter

to be remitted back for trial and prayed for costs of and

occasioned by this Appeal.

5 Arguments in Opposition

5.1 The Respondents in their heads of argument and in response to

ground three, submitted that the learned trial Judge was on

firm ground when he held that the fact that the Agreement

expressly stated that South African Law would govern the

j io
 contract meant that it precluded Zambian courts from

determining the matter. Counsel for the Respondents’ argued

that the doctrine of sanctity of contracts demands that once a

contract is freely and voluntarily entered into, it should be held

sacred and it should be enforced by the courts of law. In support

of the foregoing principle, Counsel drew the court’s attention to

the cases of Friday Mwamba v Sylvester Nthenge and Two

Others6, Mournt Albert Borough Council v Australia ETC

Assurance Society Limited5, Kalusha Bwalya v Chadore

Properties and Ian Chamunora Nyalugwe7 and Colgate

Palmolive Zambia Inc v Abel Shemu Chuka and 10 Others8.

It was Counsel’s contention that the parties had consciously

reduced their agreement into writing and contracted that it

would be governed by South African Law. His argument was

that it was evident from the agreement that the law the parties

wished to be governed by was unambiguously set out in the said

contract and should therefore be enforced by the Courts.

5.2 Counsel argued that the applicable law in a contract in dispute

is an issue termed by the legal community as “conflict of laws”.

He went on to submit that in a conflict of laws case, a court

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 must determine which law applies to the particular contract in

dispute. He argued that this in essence governs the agreement

and that in casu, the applicable law was tied to jurisdiction. He

further argued that the parties understood that the implication

of the agreement to which they appended their signatures

stripped the Zambian courts of jurisdiction to try this matter.

Therefore, Counsel argued, that, this court should give effect to

the contents of the agreement and uphold the decision of the

lower court.

5.3 Counsel vehemently argued that the settlement of the legal

question on jurisdiction is based on circumstances and the

evidence available. He argued that in the present case the

Respondents had produced sufficient evidence, namely, clause

1.1.2.2 which ousts the jurisdiction of the Zambian courts as

contracted by the parties. As regards the Appellant’s argument

that the High Court has unlimited and original jurisdiction to

hear and determine any proceedings by virtue of its unlimited

and original jurisdiction, he contended that this did not amount

to international jurisdiction and cannot therefore clothe the

Zambian courts with the jurisdiction to administer South

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African law. Counsel submitted that it was critical to

distinguish the present case from that of Chansa Chipili2 cited

by the Appellant. He contended that the present case was totally

different from the facts in the Chansa Chipili2 case, because

the parties to the appeal were not privy to the agreement as they

were not the parties that signed the Californian agreement,

whereas the Appellant and the 1st Respondent herein were privy

to the agreement that ousts the jurisdiction of the Zambian

courts. Further, that in the Steak Ranch1 case the reasons the

court held in the manner they did was because the wording of

the clause left an option open for application of Zambian law.

That the High court held that the agreement had its closest

connection to Zambia based on that particular opening,

whereas in the present case, the clause did not leave room for

the applicability of Zambian law. Counsel submitted that the

applicable law in the present case was not ambiguous and that

it could not be one of the things to be resolved at trial as argued

by the Appellant and that the issue of governing law was simply

a matter of semantics and could not be a separate legal issue to

be raised late in the day.

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5.4 In response to grounds one and two, Counsel for the

Respondent agreed with the Ruling of the court where the

learned trial Judge held that the Appellant had conceded that

the court lacked jurisdiction when it urged the court to consider

the matter on a convenience basis by citing the case of

Fehmarn4 and that the said case dealt with perishable goods

whereas the present case did not.

5.5 Counsel was of the view that, if the Appellant believed that

Zambian courts have the jurisdiction to determine this matter,

it would not be in a position to argue the principle of forum non

conveniens. He submitted that the Appellant in its endeavour to

establish that the agreement has its closest connection to

Zambia, indirectly agreed with the Respondents that the

Zambian courts have no jurisdiction in this matter.

5.6 Counsel disagreed with the Appellants argument that the issue

of forum non conveniens was raised merely for the court to

consider some factors in determining the fact that the matter

should be determined in Zambia and stating that the same does

not hold water. He echoed the words of the learned trial judge

that "the principle cannot be said to apply to the converse; that a

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 court that lacks jurisdiction can assume jurisdiction for the

convenience of the litigants and Witnesses”. He argued that the

issue of forum non conveniens should not arise unless this court

decides to overlook the provisions of the Constitution and clothe

the Zambian courts with the jurisdiction to apply South African

law. He argued that in casu, the case had a substantial

connection to South African law because the Appellant was a

business incorporated in South Africa and the parties agreed to

be governed by South African law.

5.7 As regards the cases of the Spiliada Maritime3 and Fehmarn4,

Counsel submitted that the court considered an alternative

forum because the necessary jurisdiction existed to warrant the

doctrine of forum non conveniens as a result of the

circumstances that surrounded the two cases. Counsel further

contended that the onus to demonstrate that an alternative

forum exists which is more convenient for this Court could not

have reasonably been placed on the Respondents when the

court below lacked the jurisdiction to hear such a matter.

5.8 He submitted that the parties did not intend for Zambian law to

apply, or indeed use Zambian courts to deal with any dispute

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 that arose, and the need to discharge the evidential burden to

establish a more convenient forum did not arise whatsoever.

The Respondent prayed that all grounds be dismissed for lack

of merit with costs to the Respondents.

5.9 Arguments in Reply

5.10 In reply to ground three, Counsel for the Appellant argued that

the Respondents' argument that, the contract the parties

entered into ought to be governed by South African Law and

that the courts must uphold this wish, including the wish that

the applicable law in this case is tied to jurisdiction was

unwarranted and misconceived. This was because the

Respondents misunderstood the issues in contention. She

argued that the dispute was not centered on which law was

applicable because this was explicit in the agreement and that

guidance was given in the cases of Steak Ranch Limited v

Steak Ranches International BV1 and from Dicey & Morris

(1980), The Conflict of Laws 10th Edition. That Counsel’s

argument was that the court should not assume jurisdiction

because the agreement was not made in Zambia nor was it

made by or through an agent trading or residing in Zambia and

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 neither was it by its terms or by implication governed by

Zambian law.

5.11 It was Counsel’s contention that the applicable law of the

agreement ought to be viewed separately from the issue of

jurisdiction of the court below. She contended that the fact that

the parties agreed on South African law as the applicable law

did not in itself mean that South African courts had jurisdiction

to determine the matter. She went on to argue that in fact the

applicable law clause appearing on page 38 of the Record of

Appeal showed that the parties did not state which courts of law

would have jurisdiction to determine the matter. Thus, it was

her contention that the law governing an agreement was a

different legal issue from that of jurisdiction. To buttress her

position, she reverted to the case of Chansa Chipili and

Powerflex (Z) Limited v Wellingtone Kanshimike and Wilson

Kalumba2 where the supreme court held that:

“what must be understood in this appeal is that the

governing law of a contract, where that is spelt out, is

a different legal issue from that of jurisdiction....”

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5.12 Counsel contented that an agreement between parties could

not oust the inherent jurisdiction of the Zambian High Court,

whose jurisdiction was both Constitutional and statutory.

Counsel contended that there was a difference between the

validity of the contract in question and the jurisdiction of the

court. Additionally, that the Court in the Chipili case2 stated

that the governing law of a contract where it is spelt out, is a

different legal issue from that of jurisdiction. She argued that

the Respondents were misguided in their assertion that the

issue of privity of a contract was the deciding factor on the issue

of jurisdiction. She further argued that in the Chipili case2 the

court found that the court below had jurisdiction and remitted

the action for trial by the learned trial judge, despite the

Californian foreign jurisdiction clause. Therefore, she argued

that, the court below did have the jurisdiction to try this matter.

5.13 As regards the Steak Ranch case1 Counsel argued that the

Respondents’ Counsel had alleged that the wording of the

foreign clause in the aforstated case left an option open for the

application of Zambian law and that, the agreement had its

closest connection to Zambia, based on that particular opening.

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 It was Counsel’s contention that the Respondents were

attempting to mislead this Court, and that a proper reading of

this case revealed that the court itself stated that the applicable

law was merely one of the elements to be considered in

determining the forum for trial.

5.14 In reviewing the case of Steak Ranch1 against the Respondents

arguments, Counsel contended that the Supreme Court in the

aforementioned case did not reverse the finding of the court

below and that the applicable law was merely one of the

elements to be considered in determining the forum for trial.

She argued that the Respondents argument that this was the

sole determining factor was unwarranted. Secondly that, the

finding of the case as stated, supported her argument that the

applicable law of a contract is to be contrasted with the

jurisdiction of a court. Thirdly, that the Zambian courts are

clothed with the requisite jurisdiction to apply foreign laws.

5.15 In reply to grounds one and two, Counsel’s contention was that,

the applicable law is not the only determining factor in choosing

the forum and that the courts have a discretion to look at the

convenience of each case and decide where the matter should

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 be tried as held in the cases of Steak Ranch1, Chansa Chipili2

and Fehmarn4. Further, she impugned the Respondent’s

arguments that they had no evidential burden to discharge in

their failing to show the court below that an alternative forum

exists. To buttress the foregoing, Counsel cited the case of

Spiliada Maritime Corporation v Consulex Limited “The

Spiliada”3.

5.16 She further argued that the High Court in the case of Steak

Ranch1 held that the presumption is that the court in which

the action is commenced has jurisdiction unless the party

challenging jurisdiction can prove otherwise. Further that one

must demonstrate that the forum in which an action has been

commenced is not convenient and that an alternative

convenient forum exists. Counsel argued that in the present

case the Respondents failed to discharge the burden that an

alternative convenient forum existed, whereas the Appellant has

demonstrated that the 1st Respondent is registered and operates

in Zambia, and the 2nd Respondent resides in Zambia. That

therefore, the agreement has a close connection to Zambia and

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 should therefore be tried in this jurisdiction, as the more

convenient forum.

5.17 Counsel refuted the Respondents’ argument that the case of

Spiliada3 was distinguishable from the present case because it

involved an arbitration clause. She submitted that this case was

referred to by the courts in both Steak Ranch1 and Chansa

Chipili2 case and that in making their determination that, in

dealing with agreements with foreign law clauses, settlement of

the legal question on jurisdiction is based on several factors and

that those cases did not distinguish the Spiliada3 case on the

ground that it referred to an arbitration clause. She contended

that what one can deduce from the said cases was that the

courts, despite the foreign applicable law or jurisdiction

clauses, found that they had jurisdiction to try a matter based

on the evidence before them. Finally, Counsel re-emphasized

her argument that the Supreme court in the case of Chansa

Chipili2 did not distinguish the Fehmarn4 case or consider

whether the goods were perishable or not. She implored this

court to disregard the Respondents argument that the case was

distinguishable.

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5.18 In conclusion Counsel submitted that the applicable law clause

in the present case was not in itself decisive on the legal

question of jurisdiction and that the court below erred in law

and fact when it did not consider other factors and evidence

brought before it regarding jurisdiction.

6 Hearing

6.2 Counsel for the Appellant Ms. Kapotwe applied to augment the

Appellant’s heads of argument and reply and corrected a few

typographical errors. Counsel relied on the heads of argument

filed on 18th December, 2020 and mainly recited and amplified

the contents of the aforementioned arguments. She added

briefly that, there were no reasons advanced by the

Respondents to show in what circumstances a trial court was

limited in hearing the matter before it. She argued that the

Respondents did not show how they would fail to obtain justice

in this jurisdiction. She contended that the court therefore erred

when it dismissed the whole matter. She prayed that the appeal

be dismissed with costs.

6.3 Mr. Mtonga, Counsel for the Respondents relied on the heads of

argument filed into court and briefly augmented his

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 submissions by illustrating the principle of the boiler plate

clause in a contract. He argued that this principle helps to state

where a dispute ought to be heard and that in casu it was

agreed by both parties that if a dispute arose parties would go

to the South African Magistrate court. He argued that in casu

there was no justice to be determined and he prayed for this

matter to be dismissed as the lower court had no jurisdiction to

hear it.

7 Decision of this Court

7.2 We have perused the Record of Appeal and considered the

Ruling of the court below and the submissions filed by learned

Counsel for the parties, including the oral arguments advanced.

As a starting point, it is our view that the learned Judge

misdirected himself when he found that the sole issue for

determination in this matter was whether the case before him

should be determined in Zambia on the basis of conveniens

despite the fact that the agreement in issue was governed by

South African Law. For reasons that will be made clear in the

judgment, our view is that the sole issue for determination is

whether the Zambian Courts have jurisdiction to determine this

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 matter in view of the clause in the agreement which said that

any dispute between the parties would be governed solely by

South African Law.

.3 In this appeal, we will consider the grounds as presented and

argued by the parties for purposes of consistency.

.4 In ground three, the Appellant’s contention is that the court fell

into grave error by making a finding that Zambian Courts do

not have jurisdiction to try the suit because the agreement

expressly stated that it would be governed by South African law.

Counsel for the Respondent, on the other hand, submitted that

the learned trial Judge in the court below was on firm ground

when he held that the fact that the agreement expressly stated

that South African Law would govern the contract meant that

Zambian Courts were precluded from determining the matter.

His argument was that the parties consciously reduced their

agreement into writing and contracted that it be governed by

South African Law, thus implying that the appended signatures

on the agreement meant that the Zambian Courts were stripped

of their jurisdiction.

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7.5 It is trite law that the jurisdiction of a court cannot be ousted

by a foreign jurisdiction clause. In the case of Godfrey Miyanda

v The High Court10, the Supreme Court defined the term

jurisdiction as follows:

“The term jurisdiction" should first be understood. In

one sense, it is the authority which a court has to
decide matters that are litigated before it; in another
sense, it is the authority which a court has to take
cognisance of matters presented in a formal way for
its decision. The limits of authority of each of the
courts in Zambia are stated in the appropriate
legislation. Such limits may relate to the kind and
nature of the actions and matters of which the
particular court has cognisance or to the area over
which the Jurisdiction extends, or both.”

7.6 In the case of Donohue v Armco Inc and Others9, it was held

that:

“The foreign jurisdiction clause does not have the

effect of conferring jurisdiction on the chosen court
but that the court retains a discretion to decline to
exercise that jurisdiction based on an overriding
consideration of forum conveniens.”

And in the case of Chansa Chipili and Powerflex (Z) Limited

v Wellingtone Kanshimike and Wilson Kalumba2 it was

observed:

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 .. that in business transactions, with foreign
Jurisdiction clauses, where business is partly
conducted inforeign countries, settlement of the legal
question on Jurisdiction is based on circumstances
supported by the evidence available. Thus, while
parties may agree on foreign Jurisdiction in an
attempt to oust the jurisdiction of the state or country
where they have business activities such state or
country may rightly claim Jurisdiction depending on
the circumstances in a given case, ”

7.7 Based on the above, we agree with Counsel for the Appellant

that clearly the South African ‘applicable law’ clause in the

contract is different from the governing law of the contract and

does not by any stretch of imagination oust the inherent

jurisdiction of the High Court in Zambia. Further, and as stated

in Steak Ranch Limited v Steak Ranches International BV1,

domestic courts are presumed to have jurisdiction unless the

contrary is proved. Therefore, the learned trial Judge in the

court below misdirected himself in dismissing the action for lack

of jurisdiction as the governing law of a contract is a different

legal issue from that of jurisdiction. We find merit in ground

three.

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7.8 Ms. Kapotwe, Counsel for the Appellant argued grounds one

and two together, contending that the Court below had the

requisite jurisdiction to try this matter. That, when it advanced

the principle of forum non conveniens, the Appellant was merely

attempting to show the Court all the relevant factors to

determine the appropriate forum for this case and not that it

was conceding that the court below lacked jurisdiction. On the

other hand, the Respondent agreed with the Ruling of the

learned High Court Judge that the Appellant conceded that the

court lacked jurisdiction when it urged the court to consider the

matter on a convenience basis by citing the Fehmarn4 case and

that the said case was distinguishable from this matter because

it did not involve perishable goods.

7.9 Our view is that the learned trial judge erred in law and fact

when he held that by citing the case of Fehmarn4 as well as

raising the principle of forum non conveniens, the Appellant

conceded that the court lacked jurisdiction. We therefore agree

with Counsel for the Appellant that the trial Judge fell into grave

error by holding the foregoing. As explained by the Appellant it

is clear that its intention when bringing up the issue of forum

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 non conveniens did not mean they were conceding on the issue

of jurisdiction, but rather were trying to demonstrate that there

were other factors the court could consider when determining

where the matter should be tried.

7.10 In the case of Steak Ranch Limited v Steak Ranches

International BV1, it was observed that enforcement by the

Zambian courts of the choice of foreign clauses cannot be ruled

as imperative; but it should depend on the balance of

convenience, in particular, circumstances and the exigencies of

justice of the law. It is therefore our view and we agree with

Counsel for the Appellant that in this instance, when

highlighting the issue of forum convieniens, the Appellant was

merely trying to convince the trial Judge that the court in

Zambia was the most appropriate to consider the best interest

I and convenience of the parties.

[7.11 Further, it was argued that the learned judge erred in law and

fact when he held that the case of Fehmarn4 is distinguishable

from this matter in that it did not involve perishable goods,

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 when the legal principle was the same. The doctrine of Forum

Non Conveniens is that:

“The doctrine that an appropriate forum even though

competent under the law may divest itself of
jurisdiction if, for the convenience of the litigants and
the witnesses, it appears that the action should
proceed in another forum in which the action might
also have been properly brought in the first place.”

7.12 Simply put and as expounded in the Steak Ranch1 case the

Respondent ought to demonstrate that there is an alternative

forum in which it is more convenient for the matter to be heard.

There must be consideration as to whether there is another

forum which is more appropriate in which the action has the

most real and substantial connection such as convenience or

expense. In our view the judge erred in law and fact by stating

i that the case of Fehmarn4 is distinguishable from this matter

because it did not involve perishable goods. This was indeed a

' fact but not the principle. The principle to be drawn from the

j Fehmarn4 case and on which the Appellants relied, was that

i
| the agreement had a close connection to Zambia. The Appellant

demonstrated that the Respondent companies were both

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 resident in Zambia and therefore they had the closest

connection to Zambia. The legal issue was not perishable goods

but rather the settlement of the question of jurisdiction based

on the circumstances supported by the evidence available.

7.13 In the Spiliada3 case though distinguishable from the present

case, the matter involved the application for a stay or dismissal

of proceedings falling within the proper jurisdiction of the court

which could only be granted on very narrow grounds. Among

the many legal principles in that case, Lord Goff, in his

judgment held amongst other things that:

“Where there is some other forum which is the

appropriate forum for the trial of the action, the
burden resting on the defendant is not just to show
that England is not the natural or appropriate forum
for the trial, but to establish that there is another
available forum which is clearly or distinctly more
appropriate than the English forum.”

7.14 Our view is that the learned trial judge erred in law and fact when

he held that by citing the case of Fehmarn4 as well as raising the

principle of forum non conveniens, the Appellant conceded that

the court lacked jurisdiction. We agree with Counsel for the

j Appellant that the trial Judge fell into grave error by holding the
i
t
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 foregoing. As explained by the Appellant, it is clear that its

intention when bringing up the issue of forum non conveniens did

not mean they were conceding on the issue of jurisdiction but

rather what the Appellant was trying to demonstrate was that

there were other factors the court could consider when

determining where the matter should be tried. The judge failed to

properly evaluate the evidence before him regarding the legal

question on jurisdiction. Both grounds one and two have merit

4

and succeed. %

7.15 All three grounds having succeeded, the net result is that the

matter will be sent back to the Court, for trial before

another Judge. Costs for this application to abide the outcome

in the Lower Court.

1
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J. CHASHI
COURT OF APPEAL JUDGE
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A. M. BANDA-BOBO
COURT OF APPEAL JUDGE

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