dbz

Fred M’membe of the Post Newspaper and the Nchito brothers have advanced technicalities to oppose an application by the Development Bank of Zambia to consolidate its case in the recovery of K14million they borrowed through defunct Zambian Airways.

They claim that the DBZ application by writ of summons and statement of claim were defective because:

-the demand was statute barred
-The original loan agreement was not effectual
-Piercing the corporate veil was unprocedural

Central to their opposition is the argument that the application and therefore demand is time barred because it comes six years after the circumstances that brought about the claim.

They therefore feel that the DBZ application to introduce more defendants, expunge evidence, remove corporate veil and making fundamental changes to the case were time barred.

They have also argued that vital elements of the agreement that were a pre-requisite to the agreement, regarding the buy back of shares were not fulfilled thereby invalidating the entire loan agreement.

They have therefore opposed the amendment of the writ of summons and statement of claim which would among other things make M’membe, Nchima Nchito and former DPP Mutembo Nchito personally liable for the loan by virtue of their directorship of Zambian Airways.

They have argued that the corporate veil should not be lifted because the procedure used was “starling” and that it was time barred.

They are arguing that a clause in the facility agreement, exonerates them from the debt, because at the time the loan was being negotiated the buyback facility in Clause 7 had not been full filled.

“The plaintiffs were advised that the contract would not be effectual unless the conditions precedent specified under clause 7 of the facility agreement were fulfilled or settled; this has has been the Defendants’ defence all along and this defence is fortified by the due diligence report.” They have argued in the affidavit in opposition.

“It is trite that even before the question of lifting the corporate veil arises, there must first liability on the part of the company. In this case however, the cause of action relating to the debt that the plaintiff against Mines Air Service Limited is statute barred. Without that liability on the part of Mine Air Services, there cab be no question of the proposed 3rd to 7th Defendant paying the proposed 1st Defendant’s debt.”

They have further said that “The plaintiff(DBZ) is now attempting to change its cause of action and expunge evidence which exonerates the Defendant. This is not only unlawful; it smacks of conspiracy to defeat the course of justice.”

The trio have refused any attempts to prove they were liable and required to honour the terms and conditions of the K14 billion loan they acquired for the operationalization of Zambian Airways.

In a defendants skeleton argument in opposition to the plaintiff’s application to add parties and for leave to re-amended statement of claim filed before the Lusaka High Court, the trio alleged that the law of limitation restricted such action as addition of new evidence after the expiration of six years from date on which the cause of action accrued.

Nchito said the excepted portion of the statute of Limitation premised on a simple contract that it could not be brought to court if six years had elapsed since the commencement of such a matter.

They argued that by way of summons to, inter alia, join Mine Air Services Limited, Zambian Airways Limited, Fred M’membe and Nchima Nchito, SC filed on July 31, 2015, more six years after the plaintiff commenced the action, the plaintiff wanted to amend its Writ and Statement of Claim by adding new claims.

“Is it 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 is by virtue of the British Acts Extension Act, Chapter 10, and Volume 2 of the Laws of Zambia. The Limitation Act in Section 2 provides in part, thus’

“ ‘2(1) the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say: (a) Action founded on simple contract or tort,” the affidavit explained.

“In this case, any alleged breaches of contract or tortious acts on the part of the intended defendants could not have been committed after January 13, 2009 and therefore any actions against the said intended defendants could not be brought to court after January 13, 2015,” Mr Nchito added.

They have also questioned the legality of an action of amending a Writ and Statement of Claim by adding causes of action, which could affect the existing defendants when such causes were state barred.

The defendants have also advised against plans to expunge documents from an earlier submission which they suspected could be for the purpose of finding them liable notwithstanding existing evidence.

They explained that the legal due diligence to be expunged was part of sworn evidence submitted by then company secretary Andrew Musukwa, that exonerated the defendants and the plaintiff’s attempt should not be allowed, adding …”that the Legal Due Diligence is one of the documents which exonerate the Defendants and the Plaintiff’s attempt to expunge the said document not be allowed”.

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15 COMMENTS

  1. Just be “responsible and patriotic” in your reporting and abracadabra…….a nolle prosequi awaits you!

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    • The plaintiff(DBZ) is now attempting to change its cause of action and expunge evidence which exonerates the Defendant. This is not only unlawful; it smacks of conspiracy to defeat the course of justice.

      This is a political case started by RB. It can’t go anywhere.

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  2. I feel a nolle Prosequi coming on……..! Oh dear Zambia….is it something in our water that causes our Society Leaders to be so low in personal integrity??

    Please….nolle Prosequi my ba.ckside!

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  3. Too much terminology.

    There are two simple things here.

    Did they borrow the money? Answer: yes
    Are they supposed to pay back?: Answer: Yes
    Whose money?: DBZ on behalf of the people of Zambia.

    To me the rest of the things are academic. They borrowed and are supposed to pay back, full stop.

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    • @Tutu. “Too much terminology…..”. That shows laziness! As they say, “The devil’s in the details”! If you want to find them guilty, you have to go thru the “Too much terminology”. Otherwise you are just going around a maze.

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  4. Fred Mmembe has opposing the PF government because of this clandestine transactions which he wants to run away from. To start with this guy has a case pending in the high court regarding payment to ZRA and now another one on DBZ. Currently he is opposing anything it being good or bad WHAT Edgar Lungu does and he thinks the Zambian people are behind him tufyakwa . Remember that the Zambian people now know the motive of Mmembe and his cartel. They wanted to bring a government that can shield them against wrong doings.

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    • @Chanda.
      What is so special about this specific DBZ loan? If the people who liable, let them pay. But let us not bend the law in order to find people we do not like (like the so called ‘cartel’) guilty. Let us follow the law to the letter. Why do you want to ‘expunge’ or remove documents that exonerate the people you are prosecuting, if you are so sure you are right?
      This Zambian Airways/DBZ saga started with RB when he announced at a rally that “these people have stolen your $30million and I will get it back for you”! That is why a straight forward prosecution is fatally flawed and has no hope of any success. So, this amendment is “time barred”? Mwabapeza ma lawyer!

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    • @ Chitutuma. Don’t be a simpleton. What does Contract Law say? Or better still as @Bushman Kuzu has stated: “Who carried out the liquidation of Zambian Airways? Let us start from there”!!

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  5. The owe the people of Zambia money. My aunty in Kaoma needs fertilizer. These demonic people of the post and Nchitos need to reimburse our money. I am personally dislike them being mentioned all the time.

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  6. This is purely a mockely of justice.He is talking about forgiveness but busy trying people without following the law.People do not allow Rb and pf to use unconstitunal means to try people,they are setting a very bad precendent that can work against all of us.

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  7. Lol “Statute barred?” no Nchito we know you grasp of the law is shallow or at most flawed. The science of law and indeed the plethora of case law on ‘SB’ is clear, if there is a consistent attempt to follow a matter SB does not arise. But then again both you and your brother flanked ‘Jurisprudence’ because of your warped thinking of what the law should be. On the second point that a condition precedence existed which was ‘share buy back’ before the ‘loan’ could be effected was not fulfilled and thus the agreement is flawed? Mr. SC how then was the ‘loan’ effected into your accounts? As for suggesting Andrew ‘failed’ or ‘neglected’ to undertake ‘legal due diligence’ we can only hold you to strict proof on that allegation and so you can crossed Musukwa if you so wish. On…

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    • I agree. Though I am not a lawyer, SB only applies if the is brought after the expiry of a particular period of time. This matter has been pursued from the crime was committed. SB palibe apa.

      Mwailasha, tipatseni Ndalama.

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  8. This is the problem of getting a law degree as mature age. Mmembe just plagiarized and ukumema this is why they come up with warped arguments.
    This matter cannot be barred because it has been in court since the time of RB. So when did it elapse.
    Mmembe is now naked and is small penis coiled no tomatole utwafota.
    Just pay. Lungu is winning come 2016.
    Abracadabracada time wasting will not do.

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