Lusaka ~ Tue, 02 Feb 2021
By Brightwell Chabusha
Lusaka High Court judge Winnie Mwenda has dismissed a case in which Vedanta Resources
Holdings Limited and two others sued Konkola Copper Mine (KCM) and its provisional liquidator, Milingo Lungu over the decision to restructure the mine.
In her ruling, judge Mwenda also discharged the ex-parte order of injunction dated January 18, 2021 which restrained Lungu from undertaking any reorganisation of KCM or from transferring, disposing or selling it’s assets.
She said she had discretion to set aside the
initial ex-parte order for leave to commence the proceedings, having heard all the sides and effect of the same would be such that no leave
to commence the proceedings would stand granted and any further steps taken by Vedanta purporting to commence the proceedings would be a
In this case, Vedanta Resources Holdings Limited, Vedanta Resources Holding Limited, Vedanta Resources (Jersey II) Limited and Vedanta Resources Limited were challenging Lungu’s proposed decision to reorganise KCM.
Judge Mwenda on January 18, 2021 granted Vedanta leave.
But Lungu asked the court to revisit its decision of
granting leave to the plaintiffs to commence an action against KCM.
However, the plaintiffs raised preliminary issues for the consideration of the court on whether the
court having granted leave to commence action against KCM in liquidation and the plaintiffs having proceeded to commence such an action, had
jurisdiction to revisit or reopen the order granting leave to commence an action against KCM.
The plaintiffs also asked the court whether the principle of functus officio was applicable to the court in respect of the order to grant leave to commence an action against KCM.
But judge Mwenda in her ruling established that a wrong process was used by the plaintiffs to apply for leave to commence proceedings against KCM , a company in provisional liquidation.
She also found that the application for leave was
improperly before court and that the court had no jurisdiction to entertain it.
“An application for leave to commence an action against a company in liquidation is disposed of in chambers and according to Order 6, Rule
1(3) of the High Court Rules, must be commenced by originating summons. Therefore, since there was no action subsisting before court at the
time before the application for leave was made, the application should have been made by way of originating summons and not ordinary summons
which are for use in interlocutory application,” judge Mwenda said.
She also said the irregularity in the mode of commencement of proceedings could not be cured by amendment because the proceedings
were a nullity.
Judge Mwenda stated that since the jurisdictional issue was incurable and the court has no jurisdiction to grant the ex-parte order of leave to the plaintiffs, the order was a nullity.
She said the notice of motion by Vedanta has no legs to stand on.
“I accordingly dismiss it. I set aside the ex-parte order granting leave to the plaintiffs to commence action against 1st defendant and dismiss the matter before this court. The ex-parte order of injunction dated January 18, 2021 is according discharged forthwith,” she said.
Judge Mwenda awarded costs to the defendants to be agreed or taxed in default and declined Vedanta leave to appeal.