David Mubanga and Ors v Infinity Mining Limited (2023/HPC/0103) [2024] ZMHC 223 (27 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2023/HPC/0103 BETWEEN: DAVID MUBANGA TEMSON SICHONE PETER MUKONDYA AND HIGH COL ~T OF ZAMBIA JlJDtC1AkV COMt ,ERC•A~ DtVISt01 ...'F1 ST PLAINTIFF '~*I OND PLAINTIFF ,A Zfl§ 2 7 JUN 202~ <.:tjt RD PLAINTIFF l REGISTRY INFINITY MINING LIMITE P 0. BO~ ~006? LlJSA ---ENDANT Before the Honourable Mr Justice K. Chenda on 27th June 2024 For the Plaintiffs : Ms J. R. Mutemi, Ms. C. Chisengalumbwe & Mrs T. Mvula-Ka.manga of Theotis Mutemi Legal Practitioners For the Defendant: Mrs S. F. Dia.mini & Mr A. Chuni of Equitas Legal Practitioners • ------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------- JUDGMENT Primary legislation referred to: 1. Th e Companies Act, No. 10 of 20 17 2 . The High Court Act, Cap. 2 7 of the Laws of Zambia 3. The Corp orate Insolven cy Act, No. 9 of 2017 Rules of Court: 1. The High Cou rt Rules, created under Cap. 27 of the Laws of Zambia Case law: l. Hitech Logistics Ltd. v Ugondo Italian Style Ltd. - App eal 92 of 2020 2. ZRA v Hitech Trading Co. Ltd. (2000) ZR 17 at p .2 1 3. John Paul Mwila Kasengele & Ors v ZANACO (2000) ZR72 4. Afrope Zambia Limited v Anthony Chate & Ors - Appeal No. 160/2013 at p. J l 6 Authoritative texts: 1. John Hatchard with O'Brien Kaaba, (2022) , Principles of the Law of Evidence in Zambia, Cape Town: Juta and Company (Pty) Ltd, p.106 at para. 1 2. Katherine Reece Thomas et.al., (2007) 2 n d Edition, The Law and Practice of Shareholders' Agreements, London: Butterworths, p.64 at para. 4.42 3. Derek French et.al (2009) 26th Edition, Mason, French & Ryan on Company Law, Oxford: Oxford University Press at p.80-81 INTRODUCTION AND BACKGROUND • 1.1 The Plaintiffs are minority shareholders in the Defendant company, operating in the extractive industry for gold in Rufunsa area. 1.2 Aggrieved by the alleged management of the Defendant's affairs (by the majority shareholders) to their exclusion and alleged deprivation of shareholder benefits, the Plaintiffs took out this action by writ of summons and statement of claim, amended on 9 th August 2023 seeking: (i) an order compelling the Defendant to convene a meeting of the company and to submit audited financial statements of the company; (ii) an order that the Plaintiffs be paid their share of dividends for the years 2021 , 2022 and 2023, if the said dividends are declared after submission of audited financial reports into Court; J2 , • • (iii) an order for the Defendant to provide an account for all production on site from September 2020 to July 2023 as well as all income received by the Defendant during the aforementioned period; (iv) payment of the sum of K24,000,000 m respect of unpaid monthly allowances pursuant to the shareholders agreement; (v) an order of injunction restraining the Defendant company whether by themselves , servants or agents or othetwise howsoever, from mining, processing and selling gold as well as from disposing of company assets or equipment until full determination of the matter; (vi) costs of and incidental to this action; and (vii) any further or other relief that the Court deem fit. 1.3 In its amended defence of 28 th August 2023, the Defendant refuted any wrongdoing and averred that its affairs have been duly managed by the correct tier which is the board of directors that includes the First Plaintiff. The Defendant has also averred that its business is in the formative stages and that no significant gold mining has taken place to overcome the set-up expenses and declare a dividend for the Plaintiffs and the majority shareholders. 1.4 The pleadings closed with the Plaintiffs reply of 18th September 2023 in which the allegations of wrong doing were reiterated. J3 COMMON GROUND AND ISSUES FROM PLEADINGS 2 .1 It is common cause from the pleadings that the Plaintiffs are minority shareholders of the Defendant, which is an entity in the gold mining sub-sector. 2.2 It is also common cause that the Plaintiffs have at some point received some monetary and material benefits from the Defendant. • 2.3 However, the pleadings show serious controversy on how the affairs of the Defendant have been managed; what the governing I• agreement was between the Plaintiffs, their fellow shareholders and the Defendant; and what the Plaintiffs' entitlements are from the Defendant. 2.4 The Plaintiffs complain that the majority shareholders have hijacked • the Defendant company and effectively excluded the Plaintiffs from participation in its affairs including lack of meetings and audited accounts; that the Defendant has not been accountable for its activities and income generated. J4 • 2.5 The Plaintiffs also complain that the Defendant has not honoured its agreement to pay th e Plaintiffs monthly dues of K300,000 each; that the Defendant has disposed of some of its equipment without their involvement; and that the Defendant has under declared its earnings from gold mining. 2.6 The Defendant on the other hand has cross averred that its gold mining business has not yet reached viability to the extent of even declaring a dividend; that it is still grappling with the start up liabilities . exceeding USDSmillion and that its small scale exploration licence has been cancelled and there is no mining activity taking place; that the Plaintiffs have misunderstood their role as shareholders in the Defendant which has instead been duly managed by the directors who include the First Plaintiff; that the equipment allegedly sold was on finance lease and returned to the owners; and that the Defendant has not breached any agreement to remun erate the Plaintiffs but instead only gave the Plaintiffs K600,000 and motor vehicles as a form of an advance drawing against future dividends. JS 2. 7 I convened a scheduling conference on 6 th April 2023 (on the basis as the pleadings then stood) and engaged Counsel in a Bar-Bench consultation. It bore fruit in terms of the core issues for interrogation being distilled as: i) what is the relationship between the Plaintiffs and the Defendant and what governed it; ii) do the Plaintiffs have any accrued but unfulfilled rights in relation to the Defendant arising from that relationship; and • I iii) are the Plaintiffs entitled to any relief from the Defendant following the determination of issues i) and ii) . • 2.8 They later found embodiment in an order for directions of even date and th ey remained relevan t notwithstanding the subsequent amend men ts to the pleadings. 2.9 After fulfillment of all preparatory steps the matter was set down for trial. SUMMARY OF EVIDENCE 3.1 Trial took place on 11 th and 14th March 2024, during which the Plaintiffs called 3 witnesses who inclu ded each Plaintiff. The Defendant for its part did not call any witnesses. A summary of the evidence appears as follows . J6 -· .. ' . 3.2 The Third Plaintiff, Mr Peter Munkondya (PWl), testified in chief through a witness statement of 19th September 2023 supported by the Plaintiffs' bundle and supplementary bundle. 3.3 He stated that he was a mining engineer and holder of 1 % of the shares in the Defendant alongside the 4.5% each held by the other Plain tiffs. • 3.4 Mr Munkondya testified that the First and Second Plaintiffs had a company called Huanbao Enterprises Limited (HEL) for licensed gold mining. 3. 5 It was his testimony that in exchange for merging the business of HEL with the Defendant and allowing the Defendant to exploit HEL's gold tenements, the Plaintiffs were given shareholding in the Defendant and were to have representation in the operations of the Defendant and there were to be production reporting systems. 3.6 Mr Munkondya stated that it was agreed that the First Plaintiff would be a director in addition to being a shareholder while he (Mr Munkondya) would be employed as a salaried mining engineer. The First and Second Plain tiffs were to receive an allowance of K3 00, 000 per month to be doubled to K600,000 from January 2022. J7 3. 7 It was his evidence that he devised various reporting tools to be used by the Defendant for its gold mining and processing activities and he produced them in the supplementary bundle. 3.8 Mr Munkondya stated that gold production began to take place daily at the Defendant's Makeni plant and on the HEL Rufunsa site under license No. 22769. He was based at the later site for 6 months before being redeployed to Lusaka and later terminated as an employee . 3.9 It was his evidence that during his time on site, production was at a minimum of 1 7kg of burnt gold per month and that based on information he gathered including from the Defendant's former general manager, a Mr Patel, the Defendant's production for the period 2020-2023 is estimated at 1,352kg of gold valued at about USD73,008,000, translating into a net estimated revenue of USD6 l ,648,462 . 3.10 Mr Munkondya also testified that the said revenue was not accounted for by the Defendant to the Plaintiffs nor was the disposal of company equipment worth about USD 1,665,000. • • JS 3. 11 He echoed the other complaints of the First and Second Plaintiffs in their testimonies in chief including that much of the issues complained of were documented in WhatsApp communications exchanged. 3.12 When cross examined by Mrs Diamini, Mr Munkondya testified that he had worked for the Defendant as a mining engineer and his • duties were: 3 .12. 1 merging the Defendant and HEL; 3 . 12.2 developing reporting procedures for the Defendant; 3.12.3 developing the Defendant's modus operandi for production; 3 .12.4 implementing the reporting procedures and modus operandi; and 3 .12. 5 being on the mining site at Rufunsa. 3.13 He testified that he was still a shareholder in the Defendant company and that the shareholders referred to in paragraph 41 of his witness statement are Ibrahim Yousuf and his son. 3.14 Mr Munkondya testified that he knew Nyendwa Mulonda who worked as a site accountant for the Defendant. 3. 15 He denied being present when Mr Mulonda made a presentation. J9 3.16 It was his evidence that he was no longer the Defendant's mining engineer, having been excused from site in July 2021. 3.17 Mr Munkondya was also cross examined by Mr Chuni during which he testified that the Defendant has been selling off earth moving equipment and excavators. 3.18 He testified that he prepared the list of sold equipment appearing at p.578 of the Plaintiffs' supplementary bundle, based on equipment which went missing from the site. • 3 . 19 Mr Munkondya insisted that the equipment sold includes that depicted from p.558 - 593 of the Plaintiffs' supplementary bundle, which pictures however needed an explanation to substantiate the allegation of sale. 3.20 When re-examined by Ms Mutemi, Mr Munkondya clarified that the equipment at p.592 of the Plaintiffs' supplementary bundle h ad the Defendant 's logo on it and was moved from site to Lusaka. He confronted the custodian who confirmed that he was selling on behalf of the Defendant together with a dozer that was advertised on site. JlO 3 .21 Mr Munkondya also explained that the document at p.578 was also prepared based on documents such as the one at p ~602 of the Plaintiffs' supplementary bundle. 3.22 The document at p.602 is an example of a sale of equipment to a businessman who he confronted and was shown the document as a receipt from the Defendant. • 3.23 Mr Munkondya said that out of the initial 60 wet mills on site, 45 went missing as if the plant was being decommis3ioned. 3.24 The Second Plaintiff, Mr Temson Sichone (PW2), testified in chief on the basis of a witness statement of 19th September 2023, supported by the Plaintiffs' bundle and of the supplementary bundle. 3 .25 Mr Sichone stated that he was also a shareholder of the Defendant and that together with the Plaintiffs they held 10% of the ' . ! ' shareholding. 3.26 He echoed the testimony in chief of Mr Mubanga and added that the Plaintiffs and the Defendant agreed that the Plaintiffs would be entitled to 10% of the proceeds of the gold mining of the Defendant. Jll 3.27 He also complained that the arrangement between the Plaintiffs and the Defendant only worked well for the first 6 months until the majority shareholders who were the other two directors of the Defendant (besides the First Plaintiff) began to sideline the Plaintiffs. He complained that they even removed the Third Plaintiff from the mining site on 30th April 2021 . • 3.28 Mr Sichone complained that the Defendant has not been transparent about the gold mined and processed in Rufunsa under license no. 22769, nor has it honoured the payments due to him. 3 .29 He totalled the monies due to him in the same sum as the First Plaintiff and for the same period. 3 .30 Mr Sichone was cross examined by Mr Chuni during which he testified that the shareholders' agreement spoken of in paragraph 17 of the statement of claim and 19 of the witness statement was verbal between him, the First Plaintiff, Third Plaintiff and the Defendant Company. 3.31 He testified that the shareholders' agreement hag po other terms besides payment of allowances to the Plaintiffs. Jl2 3 .32 Mr Sichone testified that there was no documentary evidence on Court record that the Defendant had made some payments to him and he insisted that the Defendant owed him the monies stated in paragraph 19 of his witness statement. 3.33 He insisted that as stated in paragraph 13 of his witness statement, the accounts prepared by the Defendant were deliberately tailored to show the Defendant as loss making but he could not point out any docurr1ent in the Plaintiffs bundle to prove it. • 3.34 Mr Sichone maintained that as stated in paragraph 14 of his witness statement, he rejected the report which was prepared by the Defendant without his involvement. He however conceded that he was not an accountant or director of the Defendant but simply a shareholder. ' 3.35 Mr Sichone was not re-examined. 3.36 The First Plaintiff, David Mubanga (PW3), embodied his testimony in chief in a witness statement dated 19th September 2023, and supported by the Plaintiffs' bundle of 18th May 2023 and supplementary bundle of 19t h September 2023. J1 3 3.37 It was his evidence that he was the holder of 270 shares in the Defendant representing 4 . 5% of the shareholding. He stated that he was also a director alongside two others, Mr Ibrahim Ismail Yousuf and Mr Mohammed Ameen Yousuf. 3 .38 Mr Mubanga stated that the Plaintiffs and the Defendant had a series of verbal agreements with the other shareholders and the Defendant under which the Defendant was required to: 3.38.1 provide weekly production reports for the gold mining via an instant messaging platform (WhatsApp); 3 .38.2 pay the Plaintiffs K300,000 per month, to be later scaled up to K600,000 as of January 2022. 3.3·9 He stated that he had produced transcripts of messages with the Defendant's C. E. O to show much of what he complained of. 3 .40 It was his evidence that the Defendant only provided reports for one month (January to February 2021). He also complained that the Defendant defaulted on paying him the monthly allowance and only paid him 1 a total of K600,000 in January 2022, KlS0,000 in January 2021 and also USD60,000 which left the following as owed • • to him: 3.40.1 Kl,200,000 for 2021; J14 3.40.2 KS,052,000 for 2022; and 3 .40.3 K4,800,000 for 2023. 3. 41 He complained that the Defendant excluded the Plaintiffs from participation in its affairs . Also, that the other two directors excluded him from management of the Defendant's affairs. • 3.42 Mr Mubanga stated that the Defendant did not have any meetings of its corporate tiers (board or shareholders) and that an AGM was only held after commencement of this suit and a directive from PACRA. Also that the Defendant did not avail any production reports and audited financial statements from which the Plaintiffs could assess the profits and their entitlement to a dividend. 3 .43 Mr Mubanga was cross examined by Mr Chuni during which he testified that he is still a director of the Defendant. • 3 .44 He reiterated that the allegation in paragraph 17 of the statement of claim that there was an oral shareholders' agreement with the Defendant was true . JlS 3.45 Mr Mubanga also agreed that the said agreement referred to in paragraph 1 7 of the statement of claim was the one also referred to in paragraph 10 of his witness statement as being entered to at inception of the merger. 3.46 Mr Mubanga was not re-examined and the Plaintiffs closed their case after dispensing with the calling of a fourth witness. • 3.47 The Defendant did not call any witness to testify nor present any do cum en ta:ry eviden ce. SUBMISSIONS FROM THE BAR 4.1 After conclusion of trial, the Plaintiffs tendered their final submissions on 3 rd April 2024 whilst the Defendant did so on 17th April 2024. The Plaintiff tendered secondary submissions on 30th April 2024. 4.2 The submissions were well researched and of immense use, for which I . am grateful to Counsel. Owing to the peculiar circumstances of the case, I propose to dispense with a copiou s reproduction of their content. J16 ANALYSIS AND FINDINGS 5. 1 I have closely studied the material on record, evidence and submissions and after a careful consideration, my decision is as set out below. The contention of the relationship between Plaintiffs and Defendant and what governed it 5.2 The learned auth ors of Principles of the Law of Evidence in Zambia(1l, armed with jurispruden ce from the Court of Appeal (Hitech Logistics Ltd. v Ugondo Italian Style Ltd.( 1)), give a useful discu ssion on the discourse of burden of proof: "In civil cases the general rule is that 'they who assert must prove'. In most cases the legal burden of proof lies on the plaintiff although in some situations, both parties may assume the legal burden on an issue(s). This recognizes that civil cases do not involve a criminal conviction nor punishment. In Hitech Logistics Limited v Ugondo Italian Style Limited, Chishimba JA referred to the placing of the burden of proof as follows: ·· ·-~· The legal burden of proof as to any fact in issue in a civil case lies upon the party who affirmatively asserts that fact in issue and to whose claim or defence proof of the fact in issue is essential .... If the plaintiff fails to prove any essential element of his claim, the defendant will be entitled to judgment. The position of the defendant is somewhat different. Since the plaintiff affirmatively asserts his claim, the plaintiff bears the burden of proving the claim and the defendant assumes no legal burden of proof b y ·m erely denying the claim. However, if the defendant asserts a defence which goes beyond a mere denial (sometimes J17 • • ref erred to as an affirmative defence} the defendant must assume the legal burden of proving such de.fence. An affinnative defence is most easily recognised by the fact that it raises facts in issue which do not form part of the plaintiff's claim." (Emphasis added) 5 .3 I now proceed to examine the evidence. • • 5.4 It is uncontroverted in this case that the Plaintiffs were shareholders of the Defendant company and that the First Plaintiff was a lso a director. 5. 5 The Plaintiffs have alleged that they entered into an oral shareholders agreement with the Defendant to receive monthly payments , which the Defendant has failed to fulfil. 5.6 The First Plaintiff in particular testified that the shareholders ' agreement was entered into at the point of merger; .of the business of HEL and the Defendant. 5.7 The learned authors of The Law and Practice of Shareholders' Agreements(2 l, recognise that a company can indeed be party to a shareholders' agreement with some or all of its shareholders. They also give the following exposition on form of <3- shareholders' agreement to which the company is a party: J18 • • • "The company as a party to the agreement 4.42 A company can be a party to an agreement between some or all of its sh!l~eholders. The .. complications that led to severance of parts of the agreement in the Russell case can be avoided by not making the company a party to any shareholders) agreement, but where the parties want the company to be joined then clearly, as shown above, there a re many procedural covenants which will not directly constitute a fetter on the company's statutory powers. The company can be made a party to a shareholders' agreement provided: • any obligation placed on the ro111:pany is clear, appropriate and permissible (i.e does not fetter the company in the exercise of its power); and a severance clause is included in case any provisions invalid." covenants (Emphasis added) are or 5 .8 Since the said authority stipulates that a shareholder s ' agreement which has the company as a party: 5.8.1 has to have a severance and separability clause; and 5.8.2 that any obligation cast on the company must be inter alia phrased with clarity, it follows that the form of such a shareholders' agreement must necessarily be in writing. Jl9 • • • 5.9 Consequently, on account of defect in form (oral instead of written), this Court cannot uphold the shareholders' agreement alleged by the Plaintiffs to have been made with the Defendant. 5 .10 According to the renowned textbook of Mason, French & Ryan on Company Law(3 ), articles of a company constitute a contract between the company and its shareholder s and between the shareholders inter se (between themselves) . 5 .11 It follows that notwithstanding the rejection of the alleged sh areholders' agreement, the articles of the Defendant are applicable as part of the governance of the relationship between the Plaintiffs and Defendant. 5.12 Another fall back (on the terms of the relationship) is the Companies Act( 1), which shall be covered when dealing with the next contention below . The contention of whether the Plaintiffs have any accrued but unfulfilled rights in relation to the Defendant, arising from that relationship 5.13 The Companies Act provides: J20 , • • 5.13.1 a company is obliged to hold an annual general meeting ("AGM") and shareholders are entitled to receive notice of, attend and participate in the AGM (see ss.57 and 62(1)(a)); 5.13.2 part of the business that shareholders are entitled to participate in at an AGM is consideration and approval of financial statements of the company; and consideration of the auditor's report; declaration of dividends (see s.58); and 5.13.3 where a dividend is declared, shareholders are entitled to a share thereof (see ss.141(2)(b), 158(1) and 159) . 5.14 In the case before Court, there is no evidence of the Defendant having any annual financial statements nor any auditor's reports. 5.15 There is no record of an AGM being held after incorporation of the Defendant but before commencement of suit. 5 .16 There is no evidence that the shareholders were actually allowed by the Defendant to participate in its affairs as prescribed by the aforesaid provisions of the Companies Act . 5.17 All of this lends credence to the Plaintiffs' gnevance that the business of the Defendant has been carried out without accountability and to their exclusion in its affairs . J21 5.1 8 Thus I find that, on a balance of probabilities, the Plaintiffs have been wrongfully deprived of their right to participate in the affairs of the Defendant. 5.19 I further find that (through no fault of the Plaintiffs who have been excluded from the Defendant's affairs) , the evidence is insufficient to make a finding that there were dividends payable to the Plaintiffs arising from the Defendant's business earnings . The contention of whether the Plaintiffs are entitled to relie f from the Defendant 5.20 The unchallenged evidence of the Third Plaintiff, based on his first hand experience on site, is that the Defendant was actively mining and processing gold . Also that it was selling it for huge profit. 5.21 Given the complete absence of evidence from the Defendant to back up its allegations as pleaded (and argued) of being a loss making start-up, I find on a balance of probabilities that the lack of accountability and lack of involvement of the Plaintiffs in the relevant part of the Defendant's affairs confirms that there was something to hide. • • J22 • • 5.22 I am also fortified by the aforestated authority of Principles of the Law of Evidence in Zambial1) which required the Defendant to prove its affirmative defence. Also by the decision of the Supreme Court in ZRA v Hitech Tradi ng Co. Ltd.(2 ), which establishes that arguments and submissions from the Bar (no matter how spirited) are no substitute for sworn evidence. 5.23 Accordingly, it would be fair and just to subject the Defendant to a audit process to establish whether infact there was a benefit such as a dividend which ought to have been declared for the shareholders inclusive of the Plaintiffs (for the years 2021,2022 and 2023). 5.24 It would also serve the interests of justice for the Defendant to be disincentivised from neglecting to call for shareholders' meetings and generally involving the shareholder tier (where practicable) to sanction major activities / decisions of the director ship. 5. 2 5 In this regard, the parties would do well to heed the guidance of the Supreme Court in John Paul Mwila Kasengele & Ors v ZANACO 3 l that shareholders (as beneficial owners) of a company have overriding authority over the company's affairs, even over the wishes of the board of directors. , .. , . J23 • • CONCLUSION AND ORDERS Plaintiffs' claim (i) in amended writ and statement of claim 6.1 This relief has been abandoned by th e Plain tiffs according to para. 1.0 of their secondary s u bmissions filed 30th April 2024 . Plaintiffs' claims (ii) and (iii) 6 .2 The Defendant is ordered to convene a general meeting within 90 days from date hereof (or at any later date as may be agr eed upon in writing between the Plaintiffs and Defendant) at which the Defendant must present to the shareholders for consideration: 6.2. 1 audited financial statements for the years 202 1, 2022 and 2023 (the "statements"); and 6.2.2 business activity, production and sales reports for the period September 2020 to July 2023 in relation to the operations of the Defendant (at all its sites), to in clude p r ovision of an upto date asset register and an account of proceeds of any assets sold (t h e "internal reports"). 6.3 As part of the deliberations over t h e statements and internal reports, the general meeting should also consider any resultant directions to the board of directors over dividen ds. • • J24 Plaintiffs' claim (iv) 6.4 Since the alleged shareholders' agreement has not been upheld by this Court, the Plaintiffs are not entitled to payment of K24,000,000 which was rooted on the agreement. Plaintiffs' claim (v) 6 .5 This relief was interlocutory and dealt with by ruling of 22nd • February 2023 . Plaintiff's claim (vii) • 6.6 This claim is for any other relief that the Court may deem fit. The circumstances and findings herein require this Court to invoke the provisions of s. 13 of the High Court Act( 1) to order as I hereby do that - 6.6. 1 if the Plaintiffs are not satisfied with the veracity of the statements and internal reports, then the Plaintiffs and the Defe ndant should agree on an independent expert to conduct a forensic audit into the business activities of the Defendant from September 2020 to July 2023 (the "forensic audit"), the outcome of which should be a written report (the "forensic audit report"); 6.6.2 the cost of the forensic audit shall b~ borne by the Defendant a nd (if paid by Plaintiffs for convenience) r ecover a ble as an actionable debt due from the Defenda nt to the Plaintiffs ; J25 6.6.3 within 30 days of receipt of the forensic audit report, the Defendant should convene a general meeting whose business shall be in the like manner as that alluded to for the statements and internal reports; 6.6.4 should the aforesaid processes of generating and tabling the statements and internal reports (or forensic audit report, as the case may be) be frustrated by the acts or omissions of the Defendant, then the Plaintiffs will be at liberty to move this Court for appropriate post judgment relief, costs of which shall be borne by the Defendant; 6.6.5 the post judgment relief may include an inquiry as to whether the veil of incorporation has been misused by any person[ s] to frustrate the purpose of the orders herein; and 6.6.6 in addition, if the Defendant continues to exclude the Plaintiffs from participation in its affairs as permitted by the articles and Companies Act( 1), it shall constitute a cause of action for possible winding-up~ .pf tqe Defendant under the Just and equitable' ground in s.57(1)(g) of the Corporate Insolvency Act(3 ), albeit based on circumstances to be interrogated in any such secondary I I litigation. Plaintiff's claim (vi) 6. 7 This claim relates to costs of this litigation, which are a matter of ., (./ discretion for the Court in terms of Order 40 Rule 6 of the High Court Rules( 1). J26 6.8 As for the guidance in the exercise of that discretion, I heed the Supreme Court's judgment in A/rope Zambia Limited v Anthony Chate & Ors(4 ) , where Wood, JS aptly stated: "It is a settled principle of law that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted costs." 6,9 In the case at hand, the Plaintiffs have somewh at succeeded against the Defendp.nt and there is nothing in their conduct or in the nature of the case that militates against them recouping their costs. The Defendant shall thus bear the Plaintiffs' costs, to be taxed in default of agreement. Dated at Lusaka this ----------------- u{N of-------- - ------------------ 2024 K. CHENDA Judge of the High Court J27 • •