Lusaka ~ Wed, 6 Jan 2021

By Brightwell Chabusha

The Court of Appeal has declined to order the discharge of Milingo Lungu as Konkola Copper Mines (KCM) provisional liquidator.

Court of Appeal judge President Fulgency Chisanga in her ruling said as a single judge, she did not seem to have powers to include the proposed order to discharge Lungu under the rule invoked by the parties.

The Court of Appeal had stayed the liquidation proceedings in a case in which ZCCM-IH had asked the Lusaka High Court to wind up Konkola Copper Mine (KCM) for among other allegations, evading tax and for being insolvent.

The Court of Appeal said the proceedings should be halted to allow parties in the matter to proceed to arbitration.

Vedanta, as a Contributor, however, asked the Court to refer the case to arbitration but High Court judge Annesie Banda Bobo on August 7, 2019 declined to do so, saying the case was not arbitrable.

But the Court of Appeal granted the application on November 20, 2020.

Following the granting of the application staying the winding up petition, Vedanta, through its lawyer Mulenga Mundashi, applied that Lungu be removed as provisional liquidator.

But judge Chisanga said in the High Court, the issue of discharge of the liquidator was not canvassed.

“Judge Bobo was merely called upon to stay the winding up proceedings and refer the matter to arbitration. The appeal against her refusal was equally silent on the fate of the provisional liquidator,” she said. “Following the hearing of the appeal, the judgment of the court was delivered. The fate of the provisional was not addressed. This is due to the position that the court does not address issues not included in the memorandum of appeal, and or not address by the concerned parties in the arguments. It is not permissible.”

Judge Chisanga said the prayer that the provisional liquidator be discharged was brought up at the hearing, the respondents having not had prior notice of the same, and consequently, did not address it.

“In saying this, I am in no wise suggesting that the single judge has jurisdiction to address an issue that was properly before court but was not addressed in the judgment. Far from it. My remarks are intended to bring home the requirement that a party desires an issue to be addressed on appeal and notify the other party through the applicable procedures, thereby affording them an opportunity to respond. Even the court is enjoined to hear both sides should it be inclined to decide an appeal on an issue not raised in the grounds of appeal,” judge Chisanga said. “It is contended that the stay of proceedings automatically meant the discharge of the provisional liquidator. This argument does not sit well on the procedure to draw up the order by the single judge. The applicable rule does not confer power on the single judge to interpret the judgment or its effect. It merely allows them to reduce what the court said into an order.”

Judge Chisanga said that being the case, she could not order the discharge of the provisional liquidator “as I do not seem to have power to include the proposed order as a single judge, under the rule invoked by the parties. I direct that the order relating to the discharge of the provisional liquidator be removed from the settles order. I will thereafter append my signature to the order.”

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