THE Kabwe High Court has ruled that the appointment of Lusaka lawyer Lewis Mosho as business rescue administrator for Kingphar Company Zambia Limited was irregular and has been declared null and void.
On April 21, 2020, Kabwe High Court judge Isaac Kamwendo granted Mosho and others a consent order to place Kingphar on liquidation under two different causes, Nos. 2020/HB/15 and 2020/HPC /165.
But in a recent judgment, justice Kelvin Limbani has set aside the consent order on account of illegality and irregularity.
He has also set aside the proceedings consolidated under cause number 2020/HB/15 for illegality.
This is in a matter where Bumu General Trading FZE sued Younjun Zhuang, Wang Quinhai and Kingphar Company Zambia Limited for alleged fraud in consolidated cases 2020/HB/15 and 2020/HPC/165.
The plaintiffs were claiming an order to set aside the consent order on account of illegality and irregularity.
They sought a declaration order that the business rescue administrator appointed under the consent order was irregularly appointed and the same was void ab initio.
In law, void ab initio means that the matter is treated as not valid from the beginning; as though it was never there.
They further sought an order to set aside the proceedings consolidated under cause No. 2020/HB/15 for illegality.
Judge Limbani in his judgement said when fraud is alleged as a ground for the setting aside of a consent judgment the onus is on the party alleging to prove that their case is greater than a simple balance of probabilities.
He said the allocation of two cases with the same cause number clearly shows deception for the purposed illegal or unethical gain at the expense of another party.
“It is an act of trickery, sharp practice and cheating deliberately meant to obtain an unauthorised benefit or advantage by suppressing the truth through unethical means,” judge Limbani said.
He said the evidence before court shows that the cause of action filed by the plaintiff was allocated cause number 2020/HB/015 and any other action bearing the same cause number is deemed to be or have been irregular and illegally filed ab initio.
Justice limbani said the irregular and illegally filed process under cause No.2020/HB/15 was fraudulently done.
“It is sadly noted that at the centre of the unethical, deceitful and sharp practice associated with the irregular and illegal commencing of a second cause of action under cause No.2020/HB/15, coupled with clear issues of conflict of interest, appears to be some members of our noble legal profession. Such should not be the case and calls for serious introspection and remedial measures,” said judge Limbani.