By Staff Reporter
THE Lusaka High Court has ordered that Antonio Ventriglia and Manuela Ventriglia are the only shareholders of Zambia Portland Cement (ZPC).
This is in a matter in which the Ventriglias filed a counterclaim in Lusaka High Court against Lusaka businessman Rajan Mahtani’s Finsbury Investment, seeking a declaration that they are the only shareholders in Zambezi Portland Cement Limited, that they have lawfully rescinded the agreement to transfer 58 per cent of the shareholding in the company (ZPC) to Finsbury Investment for reasons of fraud; alternatively an order for the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 Sunday 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 exstent outlined, the plaintiffs have proved their case on a balance of probabilities to warrant the first declaratory Order sought and it is so decalred that the Plaintiffs are the only Sghareholders 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.”
The Plaintiffs were represented by Malambo & Company, Central Chambers and Mambwe Siwila & Lisimba Advocates while the Defendant was represented by Mulenga Mundashi Kasonde L egal Practitioners and Simeza Sangwa and Associates.