Mutembo Nchito
Mutembo Nchinto

KONKOLA Copper Mines provisional liquidator Milingo Lungu has objected to the appointment of Messers Nchito and Nchito by Vedanta Resources and KCM board chairman Srinivasan Venkatakrishnan of London as their legal representatives.
Lungu in an affidavit in support of motion to raise preliminary issues states that he objects because Nchito and Nchito were representing Barclays Bank in a matter where it had sued KCM claiming a sum of US$2,998,720.34.

“On February 26, 2019, Messrs Nchito and Nchito caused to be issued a writ of summons on behalf of Barclay’s Bank PLC against KCM as a respondent under cause number 2019/HPC/0069. Under the said cause number 2019/HPC/0069, Barclays is claiming bargain at KCM, amongst others payment of US$2,998,720.34,” he  stated.
Lungu also stated that “by the respondents’ Articles of Association, neither the chairman nor any director of the respondent has the power to appoint a lawyer for and on behalf of the respondent (KCM) without a board resolution.”

Lungu in his skeleton arguments contended that entertaining the mining firm’s board chairman’s motion would amount to entertaining a person that had circumvented or ignored the framework provided by the law within which he might be accorded an opportunity of being heard by the court.

“Consequently, the respondent will pray for the dismissal of the motion by the chairman for being incompetent on account of the absence of the appropriate notice having been filed or given, in any case,” Lungu stated.

And lawyers retained by Lungu stated that the mining firm was seeking a determination on whether Messrs Nchito and Nchito were not conflicted and thereby precluded from acting as advocates of the respondent.

The provisional liquidator is also seeking the court’s determination on whether a sole director and chairman of the board of directors of a company in liquidation had residual powers to instruct an advocate to represent a company where a provisional liquidator had been appointed.

On June 6, Messrs Nchito and Nchito filed a notice to raise preliminary issue on a point of law on behalf of Vedanta.

Nchito & Nchito want the court to determine whether Messrs Ellis and Company, Messrs Makebi Zulu Advocates, Messrs Andrew Musukwa and Co and Messrs DH Kemp and Co who were appointed by Lungu could appear on behalf of KCM to support or oppose the appointment of the provisional liquidator and the winding up petition.

Vedanta is also seeking a determination on whether a confirmation of the provisional liquidation could be done without KCM and or its directors being heard through lawyers of their choice.

Meanwhile, ZCCM-IH had amended its petition and affidavit verifying the winding up petition.

ZCCM-IH acting chief executive officer Mabvuto Chipata has among other things, stated that KCM has been managed and administered in a manner detrimental to the interest of the petitioner.

Chipata stated that for the past 15 years, KCM had only declared dividends in five years of the 15 years, amounting to US$67.105 million.

He stated that the said KCM had failed to pay ZCCM-IH US$10,305.000 being ZCCM-IH’s portion of dividends despite it being cleared in 2018.

Chipata contended that KCM had for the past seven years operated at a loss amounting to a cumulative sum of US$1.2623 billion.

High Court judge Annessie Banda-Bobo has since reserved ruling on Vedanta’s application to join the matter to June 20.

Meanwhile, Vedanta informed stakeholders that the motion for KCM (acting through its Directors) to appear in the matter, represented by Nchito & Nchito Attorneys, was set down for a hearing on 20 June 2019, subject to change if the date of the ruling on the joinder hearing was postponed.

“Vedanta maintains that ZCCM has chosen a route which seeks to exclude Vedanta, by having a Provisional Liquidator appointed ex-parte. The applications by Vedanta and KCM (through its directors) are to allow Vedanta (as KCM’s majority shareholder) and KCM to appear and make representations at any hearing in the winding-up proceedings, including in relation to the confirmation of the appointment of the Provisional Liquidator and the hearing of the winding-up petition,” reads a statement on its Facebook page.

“A date has not yet been set for the hearing in relation to the confirmation of the appointment of the Provisional Liquidator. Vedanta does not consider that there are just and equitable grounds to wind-up KCM and will defend all attempts to do so.”

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