Sat, 21 Jan 2017 12:56:58 +0000
By CHIKUMBI KATEBE
LUSAKA High Court Justice Sunday Nkonde has dismissed an application by Investrust Bank to join as respondent in the winding up of the Post Newspaper in liquidation.
This is in a matter in which High Court Justice Nkonde placed the newspaper company in liquidation following an application by five former employees to wind up its operations owing to the huge debt the Post owed.
This was in an application sworn by one of the petitioners for the winding up of the Post, Abel Mbozi, in the non-joinder of a party to proceedings pursuant to Order 14 Rule 5 of the High Court rules.
Mr Mbozi argued that all those owed by The Post have already lodged their claims with the liquidators and that as far as they were concerned, there was only one liquidator as appointed by the High Court, in Lewis Mosho of Lewis Nathan Advocates.
He contested that Investrust also lodged their claim of K7 952 015-79 but went ahead and appointed a Receiver in the name of Kaonga Musonda when there was already a liquidator.
The petitioners opposed that the intended 2nd respondent was not a proper party to join proceedings, and hence called for the application to be dismissed.
And Justice Nkonde in his ruling explained that even if he was wrong in ordering non-joinder for Investrust Bank based on the petitioners’ arguments, it was within the High Court’s jurisdiction as part of its case management of proceedings as justice dictates.
“Even if I was to be wrong in ordering non-joinder of the intended 2nd respondent on the basis of the petitioners’ application, I am still of the view that it is within the court’s jurisdiction as part of its case management – for the same reasons I have given – to order non-joinder of a party to the proceedings as the interest if justice dictate.
“I also do not find any prejudice to be occasioned to the intended 2nd respondent on account of the non-joinder sought. In a nutshell, I order non-joinder of the intended 2nd respondent to these proceedings as 2nd respondent,” he said.
He explained that by lodging in a claim of the said amount, Investrust expressed interest of the affairs of the liquidator, thereby necessitating the non-joinder.
The Judge explained that in winding up the court has the responsibility to ensure that the interests of all creditors were addressed and that the bank must support the petition in view of the circumstances.
He said the order of appointing the provisional liquidator also granted him the authority to take custody of all assets of the Post Newspapers, and that an order for non-joinder was also within the discretionary powers of the court, but that it depended on the particular circumstances made available before the court.
He said it was not in contention that the court had such powers as to order non-joinder of a party in a winding up petition, but that such powers were rarely exercised in a matter as the one before court.
A winding up petition against the Post Newspapers was lodged into the High Court on November 1, 2016, and that on the same day, a provisional liquidator in Lewis Mosho was appointed to take control and custody of all the assets of the newspaper company.
But Investrust Bank lodged a claim of K7 952 015-79 and appointed a receiver in the name of Mr Musonda, in relation to a debenture between the bank and the newspaper company on 29th September, 2014.