THE Supreme Court has thrown out an application for an injunction filed by Finsbury Investments to block the Lusaka High Court judgment that recognised Antonio Ventriglia and Manuela Ventriglia as the only shareholders of Zambia Portland Cement (ZPC).
And Lusaka High Court Judge Sunday Nkonde granted Zambezi Portland Cement shareholders Antonio Ventriglia and Manuela Ventriglia leave to commence contempt of court proceedings against Finsbury Investment.
“Upon reading the affidavit in support deposed to by Antonio Ventriglia filed herein; it is hereby ordered that the leave be and hereby granted to the Plaintiffs to issue Contempt proceedings against the Defendant, Finsbury Investments Limited, its servants, agents, directors, managers and whomsoever for issuing an advertisement in the Zambia Daily Mail edition of the 25th of May 2018 whose effect is to undermine the judgment of the 18th May 2018 delivered by this Court which effectively recognized the Plaintiffs as the only true shareholders in Zambezi Portland Cement Limited,” read Lusaka High Court Order signed by Justice Nkonde dated 28th May, 2018.
On 22nd May, 2018, Finsbury through its lawyer John Sangwa, made an ex-parte application for an injunction in the Court of Appeal seeking to restrain Antonio Ventriglia and Manuela Ventriglia whether by themselves, their servants or agents or whosoever from acting, taking any action or holding themselves out as shareholders of Zambia Portland Cement Limited, transferring or causing to be transferred or in any way dealing with the K580, 000, 000.00 shares of Zambia Portland Cement Limited, which until the judgment of 21st May 2018, were registered in the name of the Appellant; procuring Zambia Portland Cement limited to increase and allot any shares or whosoever deal with the current share capital of Zambia Portland Cement Limited of K1 billion divided into K1, 000, 000. 00 shares of K1. 00 each; and calling or causing to be called any meeting of the members or Directors of Zambia Portland Cement Limited.
Appearing before Justice C. K. Makungu, Sangwa submitted that he sought an appointment with the trial Judge on 19th May, 2018 but that Justice Nkonde was not available as he was reportedly involved in a road traffic accident.
Justice Makungu, however, heard that Justice Nkonde communicated to Sangwa through his Marshal that he would be available on Monday 21st May, 2018.
Sangwa informed the Court that on 21st May, 2018 an ex-parte application for a stay of execution was filed together with a Certificate of Urgency but that the Judge made it inter-parte and gave a return date of 24th May, 2018 at 10:30 hours despite of the Certificate of Urgency.
He submitted that on 22nd May, 2018 the Appellant withdrew the application for stay on the grounds that the trial Judge refused to see him on Saturday 19th May, 2018 for no good reason. Sangwa further submitted that the trial Judge lied that he was attending a workshop and that he was involved in a road traffic accident adding that the Judge’s absence from his chambers was deliberate and intended to frustrate the application for a stay of execution and to undermine the appeal.
Sangwa’s affidavit further showed that the delivery of the judgment was postponed several times until 18th May, 2018 adding that the Appellant had no reason to believe that an application for an injunction pending appeal would be urgently and fairly treated by the Judge of the High court and hence this application made directly to this court.
But Antonio Ventriglia and Manuela Ventriglia through their lawyer Sakwiba Sikota filed an affidavit in support of the Notice to Raise Preliminary Issues.
Sikota argued that the Appellant made no application for an injunction to the lower court adding that the Appellant did not advance any valid reason for not placing such an application before the High Court first.
Sikota argued that the Supreme Court should make a finding that indeed there were special circumstances as alleged by the Appellants before entertaining the application for an injunction, entitling the Appellant to apply for an injunction directly to the Court of Appeal.
Sikota demanded that sufficient evidence should be placed before the Supreme Court by the Appellant to prove the serious allegations made against the trial Judge.
“The Appellant is merely speculating that the Judge was biased and that he was not involved in an accident at the weekend. Further that his intention was to frustrate the appeal and the application for a stay of execution,” submitted Sikota.
He also submitted that the Appellant’s application was an improper course of action as it opens the door for any party to make serious allegations against a Judge which cannot be proved for the purpose of ensuring that the Judge does not hear and determine a matter.
Sikota further submitted that the Appellant took the position that the trial Judge gave far off date for the hearing of the application for a stay of execution and yet they created a worse situation by withdrawing the application and instead making an application before this court which was given a later date than given by the trial Judge.
“Therefore, there no basis upon which a finding could be made that the trial Judge was biased. I pray that the application for an injunction be dismissed with costs,” prayed Sikota.
Delivering his ruling, Justice Makungu stated: “I find that the allegation of bias is unfounded because the Judge had exercised his discretion not to hear the matter ex-part and to set an early date for both parties to be heard but he was not given a chance to hear the application. There is insufficient evidence before me to prove that the Judge lied about the workshop and the accident. The Rules of natural justice apply even to Judges. However, this is not the right forum for the trial Judge to be heard on serious allegations levelled against him. I am not convinced that the trial Judge was bent on frustrating the application for a stay of execution and the appeal because the Judge gave an early hearing date indicating that he was willing to hear both parties as soon as possible. The Judge acted judiciously when he decided to hear the application inter-parte according to Order 59/13/19 of the White Book.
Under the circumstances, it was unreasonable to withdraw the application for a stay of execution. There was no need for the Appellant to depart from the norm manner of protecting the judgment pending appeal i.e. by applying for a stay of execution to the lower court which application if refused could be renewed in the Court of Appeal. In any event, Counsel for the Appellant should have made an application in the lower court for the Judge to recuse himself if the Appellant genuinely believed that he was biased. In conclusion, I find that there are no special circumstances which make it impossible or impracticable to apply to the court below for a stay of execution or an injunction. The application is therefore improperly before me and cannot be entertained. The application for an injunction pending appeal is thereby dismissed with costs which may be taxed in default of agreement.”
Justice Nkonde’s judgment that recognised Antonio Ventriglia and Manuela Ventriglia as the only shareholders of Zambia Portland Cement (ZPC) follows a counterclaim filed by the Ventriglias in Lusaka High Court against Lusaka businessman Rajan Mahtani’s Finsbury Investment, seeking a declaration that they were the only shareholders in Zambezi Portland Cement Limited, that they have lawfully rescinded the agreement to transfer 58 per cent of the shareholding in the company (ZPC) to Finsbury Investment for reasons of fraud; alternatively an order for the rescission of the agreement for fraud, an order that changes to the Membership Register to be rectified and the filling of the Companies Registry reflecting Finsbury Investments and Ital Terrazo limited as shareholders be expunged from the Companies Registry and that in the alternative, payment of the sum of K500, 000, 000. (Unrebased) and US$60, 000, 000 being the value of the shares agreed to be transferred to the defendant.
The Plaintiffs submitted that up to and including the 12th December, 2006, they were the only shareholders of Zambezi Portland Cement with Antonio and Manuela holding 830, 000, 000 and 170, 000, 000 of the 1, 000, 000, 000 authorised shares respectively.
The Plaintiffs also submitted that in or about 2006, by an oral agreement, they agreed to sell to the defendant, who agreed to purchase half of their shareholding at par value then of K500, 000, 000 (unrebased).
“Further, it was an implied term of the oral Agreement that the said shares would be transferred to the defendant only upon payment of the full value of the shares. However, the defendant failed or neglected to pay for the said shares,” submitted the Plaintiffs. “In spite of the defendant knowing it had not yet paid for the shares aforesaid, the defendant fraudulently procured its Company Secretaries, Professional Services Limited (who are a subsidiary company of the defendant) to alter the register of members and filed with the Registrar of Patents and Companies Registration Agency (PACRA) Returns indicating the defendant was a member and shareholder in the Zambia Portland Cement limited.”
Testifying before the Court PACRA Inspector of Companies manger Lameck Mwenya said the Defendant through Professional Services Limited caused photocopies of the documents to be lodged with PACRA in February, 2007 which he said were mere copies of o original documents contrary to practice and requirement and that despite a reminder to file original documents, they failed or neglected to lodge the originals with the Registrar and also in spite of numerous requests for the original Share Transfer Certificates being requested from Professional Services Limited, the Company Secretaries for Zambezi Portland Cement Limited never lodged the Certificates with the Registrar.
Mwenya further testified that the ‘purported’ share transfers from the Plaintiffs to the Defendant and Ital Terrazo Limited can only become effective upon the production of the original Shares Transfer Certificates.
In defence, Finsbury called one witness Mahtan, its executive chairman, who testified that sometime in November 2004, he was contacted by Antonio with a business proposal which involved construction of a cement plant.
Mahtan told the Court that Antonio wanted his help to finance or to source finances for the project. According to Mahtan, Antonio wanted him to participate in the project and run it as a joint venture with each party holding Shares.
Mahtan testified that as at 15th April 2005, Ital Terrazo Limited held 4, 999, 999 of the 5, 000, 000 subscribed Shares in ZPC adding that Antonio held 1 Share.
He further told the Court that between November 2006 and February 2007 a series of meeting were held between Antonio and himself which culminated in the signing of the Shareholder’s Agreement of 26th February 2007 alleging that it was discussed and agreed that Finsbury should take up its Shares in ZPC and regularize its status as a Shareholder.
Delivering judgment on May 18, 2018, Justice Nkonde ruled that the transfer of the plaintiffs’ shareholding to the defendant in ZPC was improperly done.
“All in all, I am satisfied that to the extent outlined, the plaintiffs have proved their case on a balance of probabilities to warrant the first declaratory Order sought and it is so declared that the Plaintiffs are the only Shareholders in Zambezi Portland Cement Limited,” read Justice Nkonde’s judgment in part. “I further Order that changes made to the Membership Register be rectified and the filing of the Companies Registry reflecting the defendants and Ital Terrazo as Shareholders be expunged from the Companies Registry.”