The Honorable Mr. Justice Edward Musona of the High Court of Zambia at the Commercial Registry has dismissed a court action by Konkola Copper Mines (in liquidation) against provisional liquidator Milingo Lungu saying the matter was not competently before him. The Honorable Mr. Justice E.L. Musona ruled that the matters raised by the plaintiff, KCM, could be resolved in the matter already pending in another court of law.
Through a writ of Summons of the 29th of July 2022, KCM, asked the court to declare illegal the remuneration agreement and addendum to the remuneration agreement as null and void along with the sum of $59,336,903.
Other reliefs sought included that Lungu, who is the First Defendant, renders an account of all the money belonging to the plaintiff which came into his hands in his capacity as provisional liquidator; and an order that Lungu turns over to the plaintiff any money he may have found in the account at the time he took over as provisional liquidator.
Alternatively, KCM asked the court to order that Mr. Lungu reimburses a sum of $53,872,952 being remuneration collected in excess of the amounts prescribed by the CIA and CIA (Corporate Insolvency Act) regulations.
On the 27th of September 2022, Mr. Lungu filed a Notice of Motion for the determination of preliminary questions on points of law. Specifically, Mr. Lungu wanted the court to guide on whether the matter was before a competent court; whether the plaintiff was the competent party to commence the proceedings; and whether the plaintiff could commence fresh proceedings in respect of matters that were already before another court of law.
Three months later, on the 11th of November 2022, KCM filed summons for an order for leave to amend pleadings and for variations of orders for directions in accordance with the provisions of the law. At a status conference held on 16th November 2022, both parties agreed that preliminary issues are dealt with first and matters of variation later.
After hearing the argument presented from both parties, the Honorable Mr. Justice Musona dismissed the KCM claims saying every one of the plaintiff’s matters can be dealt with by the court where a similar matter is pending resolution. On the notice of motion filed by Mr. Lungu, the court agreed with the arguments of the First Defendant.
KCM (in liquidation) was represented by Mr. G. Mbezhi and Mr. C. Sianondo of Messrs Malambo and Co, and Mr. Yosa of Messrs Musa Dhudia and Co. Mr. Lungu, the First Defendant was represented by Mr. A. Tembo of Messrs Tembo Ngulube and Associates and with Mr. J. Zimba of Messrs Makebi Zulu Advocates.
The Second Defendant, Lungu Simwanza and Co. was represented by Lusenga Mulongoti Advocates.