High Court tosses out DBZ application

Lusaka High Court

THE Lusaka High Court has dismissed an application by the Development Bank of Zambia (DBZ) to join Mine Air Services Limited and three others to court proceedings involving the recovery of a K14 million loan. The parties sued in the matter are JCN Holdings Limited, the Post Newspapers, and suspended Director of Public Prosecutions, Mutembo Nchito. The DBZ applied to join Zambian Airways, Lusaka lawyer Nchima Nchito, and the Post Newspapers editor-in-chief Fred M’membe to the matter. Judge Justine Chashi, however, allowed DBZ to amend its writ of summons and substitution of statement of claim. Mr Justice Chashi also granted DBZ leave to file relevant additional witness statements and supplementary bundle of documents, but that it had to take into account the refusal to add more defendants. He ordered DBZ to do this within 30 days, from December 14, 2015. The DBZ did not cite Mine Air Services Limited, Zambian Airways, Fred M’membe and Nchima Nchito when it sued in 2009, but later this year, it applied to have the four joined to the proceedings as first, second, seventh and sixth defendants. The DBZ stated that this was to avoid multiplicity of actions and to bring all parties to have the matter determined without the delay, inconvenience and expenses of separate actions and trials. It also sought to expunge the statements of two witnesses and the due diligence report, and to lift the corporate veil. The defendants objected to the application indicating that DBZ could not want to add the four as respondents and want to amend its writ of summons and statement of claim more than six years after the case commenced. The entire course of action accrued on or before January 13, this year, when DBZ wrote to JCN and the Post Newspapers demanding that they buy back equity after the suspension of operations of Zambian Airways Limited . The defendants argued that DBZ could not amend its originating process to encompass matters which were now statute barred and could not be sustained. They said the application should be dismissed because the bank had not shown any special or peculiar circumstances to warrant the amendment. In his ruling on Monday, this week, Mr Justice Chashi said it was not a proper case for joining Nchima Nchito and M’membe as defendants to the cause as the plaintiff had not put across a strong and convincing case as to why they should be joined apart from attempting to piece the corporate veil. He said the action against Mines Air Services Limited and Zambian Airways should have been brought within the limitation period of six years, which in this case had expired. The matter comes up on February 10, 2016 for hearing.