JCN Holdings, Post Newspaper Limited and suspended Director of Public Prosecution(DPP) Mutembo Nchito have raised preliminary issues in which they want the court to determine whether it is lawful to join parties to an action by amending pleadings in such a manner that the effect is to commence actions on issues that are statute barred.
This was after three companies applied for a joinder in a matter in which the Development Bank of Zambia (DBZ) has sued JCN Holdings, Post Newspapers Limited and Mutembo Nchito over a K14 million debt. Mine Air Services and two other companies asked Lusaka High Court judge Justin Chashi to allow them to be joined as defendants in the matter.
The Lusaka High Court has reserved ruling on preliminary issues raised by Post Newspaper, JCN Holdings and Mr Nchito, in the ZMK 14 billion Kwacha debt case. Mr Justice Chashi has since set September 23 2015 as a date for hearing of the application.
The matter which came up today was held in chambers where DBZ and the defendants argued on a preliminary issue which has been raised by the defendants.
According to the notice of intentions to raise preliminary issue filed by Messrs Nchito & Nchito the defendants want the court to determine whether it is lawful to amend a writ and statement of claim by adding new claims which have passed the statutory limitation period.
They further want to find out from the court whether there is property in a witness and whether it is lawful to seek to expunge a witness statement.
JCN Holdings, Post Newspaper Limited and Mr Nchito additionally want to find out whether there is legal basis for expunging the legal due diligence report when it was supplied by DBZ.
They further want the court to determine whether it is lawful to seek to piece the corporate veil when its cause of action against the alleged principal debtor is statute barred.
In 2012, the Lusaka High Court ordered Post Newspaper and JCN Holdings to pay DBZ ZMK 14 billion Kwacha debt.
Dissatisfied with the verdict Post Newspaper and JCN Holdings appealed to the Supreme Court.
But in 2013 the Supreme Court sent back the matter to the High Court.
The Highest Court of Appeal ruled that there was irregularity in the manner the 14 million Kwacha debt case was transferred from Judge Albert Wood to Judge Nigel Mutuna.
Borrowing almost always brings problems.
case law on piercing the veil is well documented. This is a shift on the part of JNC Holdings their initial position was that the debtor as a distinct personality who must be tried as such…now on statute of limitations, if a narrow view is taken of the principle then JNC would be on solid grounds but in this case nay. DBZ have been actively pursuing the matter and as such the principle does not apply the fraud that accompanied the actions of Nchito and Membe stares in the face of the court and the preliminary issues should be dismissed. The due diligence report should not be expunged as it was one that apparently paved the way for the 12b to be syphoned however it will bring misery to many once the contents are tabled. This is very like the case Mutembo persecuted the former chief spy…