CHINHOYI MUNICIPALITY V MANGWANA & PARTNERS & ANOR 2016 (2) ZLR 42 (H)

Flynote

Arbitration: " arbitrator " jurisdiction " issue of jurisdiction raised by party C " need for arbitrator to rule on issue before proceeding with matter

Headnote

A dispute between the parties was subject to an arbitration clause in the contract. An arbitrator was nominated by a third party. The applicant did not indicate its attitude to the appointment and when the hearing was convened, the applicant's counsel raised the preliminary issue of the arbitrator's jurisdiction. The hearing was postponed, and when it was re-convened for oral argument, the applicant applied for a postponement due to the unavailability of its preferred counsel. The arbitrator ruled that the proceedings should continue, and the appellant and its representatives withdrew. The first respondent remained in attendance with the arbitrator and the matter was heard on the merits. No ruling was given on the issue of jurisdiction. The applicant sought an order setting aside the arbitral proceedings.

Held, there would be nothing wrong with the arbitrator proceeding to determine the merits of a matter in the absence of a party which has chosen to deliberately not take part in a properly constituted tribunal. However, even in the absence of the applicant whose representatives had excused themselves, the arbitrator was required to rule that he had dismissed the challenge to his jurisdiction before proceeding further with the matter. The preliminary point raised by the applicant on jurisdiction was not just a technical issue. It was a plea whose determination would decide whether the proceedings should continue or be terminated or aborted for want of jurisdiction on the part of the arbitrator. The applicant did not withdraw the point in limine and the arbitrator remained seized with it. He should have made a ruling on the point. He was empowered to do so by art 16 of the First Schedule to the Arbitration Act.