Yousuf Badat v Chansa Kapijimpanga and Kelly Davis Kapijimpanga (2020/HPC/0451) [2024] ZMHC 109 (27 February 2024)

• IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY COMMERCIAL DIVISION HOLDEN AT LUSAKA (Commercial Jurisdiction. 1)1!1. IC OF l;\r., cOURTOFZA; Jl!'11CIARY BETWEEN: YOUSUF BADAT AND 2 7 F£B 2024 IMERCIA~ k~<.,. ' eox soos1 1." 2020/HPC/0451 PLAINTIFF CHANSA KAPIJIMPANGA KELLY DAVIS KAPIJIMPANGA 16 T DEFENDANT 2ND DEFENDANT Before the Hon. Mr. Justice Bonaventure C Mbewe in Open Court Marshal I ,. Research Advocate : Esther Nguni Mwiche Ntinda- Ndhlovu For the Plaintiff \ or the Defendant lvlr. C Salati of Messrs. Mulen.ga Mundashi, Legal Practitioners Mr. G Phiri with Ms, N Phiri of Messrs. PNP Advocates JUDGMENT CASES REFERRED TO: 1. Cooks v Deeks (1916) UKPC 1 O; 2. Re Smith & Fawcett Limited (1942) Ch 304; J1 3. Extrasure Travel Insurance I,imited v Scattergood (2003) BCLC 598 (ChD); 4. Item Software (UK) Limited v Fassihi (2205) 2 BCLC 91; 5. Parke v Daily News Limited (1962) Ch 927; 6. Regentcrest Pie v Cohen (2001) 2 BCLC 80; 7. British Midland Tool Limited v Midland International Tooling Limited (2003) 2 BCLC 523; 8. John Paul Mwila Kasengele & Others u Zambia National Commercial Bank Limited SCZ Judgment No. 11 of 2000; 9. Gluckstein v Barnes ( 1900) AC 240; 10. Regal (Hastings) Limited v Gulliver (1942) 1 All ER 378 (HL); 11. Gwembe Valley Development Company Limited v Koshy (2004) 1 BCLC 131 (CA); 12. Scottish Co-operative iVholesale Society Limited v Meyer (1959) ACT 324; 13. Re Saul D Harrison & Sons Plc (1995) 1 BCLC 14; 14. Re Legal Costs Negotiators Umited ( 1999) BCC 54 7; 15. Hope v International Financial Society (1876) 4 ChD 327: 16. Redpath Industries Ltd v Cisco (The) 1993 CanLII 3025 (F CA); 17. Johnson v Gore \Vood & Company (2000) UKHL 65; 18. Kitwe Supemiarket Limited V Southern Africa Trade Limited 2007/HK/243; 19. In Re Patrick & Lyon Limited (1935) Ch 786; LEGISLATION AND OTHER AUTHORITIES REFERRED TO: 1. Order 14, Rule 5 of the High Court Rules, Chapter 27 of the Laws of Zambia; J2 2. Section 13 of the High Court Act Chapter 27 of the Laws of Zambia; 3. Companies Act No. l O of 2017; 4. The Company Disqualification Act 1986; 5. Halsbury's Laws oJEngland, Jrrl Edition Vol. 6 at page 63; INTRODUCTION AND BACKGROUND [ 1 J r wish to apologize to the parties for the delayed delivery of this Judgmcnt which was due to a large workload. The action herein was commenced by way of Writ of Summons on 8 11• June, 2020, by the Plaintiff one Yousuf Badat against the Respondents, Chansa Kapijimpanga as 1st Defendant and one Kelly Davies Kapijimpanga as 2 nd Defendant. 121 This Judgment is thus delivered on the above action brought by the Plaintiff herein who seeks from the Defendants, in the main, an account of all monies received from the Company's clients, disclosure of the entire employee list, customer list and contracts with accompanying details therefor and account of and surrender of all assets of the Company known as Seal Six Squad Services in the course of the Defendants' discharge of the office of director of the Company. The Plaintiff also seeks damages and removal of the 1 st and 2ml Defendants from the office of director of the Company for breaching their duties under the Companies Act. [31 The Writ seeks the following rcliefs endorsed therein; J3 1. An Order pursuant to Section 86(1}(b) of the Companies Act No. 10 of 2017 of the Laws of Zambia and all other applicable laws, for the Defendants to account for all amounts received from clients of the Company and disclose to the Plaintiff; the entire employee list, customer list and contracts and agreed monthly amounts charged with clients; u. An Order pursuant to Section 86(l}(b){2) of the Companies Act No. 10 of 2017 of the Laws of Zambia and all other applicable laws, for the Defendants to account for and return/ surrender the Company's assets which includes inter alia the Company's Motor Vehicles being BAL75 Toyota Allion and Toyota Corolla BAK 9908ZM wherever they may exist and the Company security guard uniforms the Company has in reserve; m. An injunction pursuant to Section 330 of the Companies Act No. 10 of 2017 all relevant laws, restraining the Defendants from: a) Acting as Directors of the Company including and not limited to continuing to collect monies due to the Company from the Cotnpany's clients/ customers known and unknown wherever they may be; b) Collecting monies and assets from Customers/ Clients of the Company c) lvfaking use of and continuing to dissipate the Company assets pa1ticularly the Company's motor vehicles being BAL 75 Toyota Allion and Toyota Corolla BAK 9908 to the detriment of the Company. )4 w. An inquiry as to damages or at the Plaintiffs option an account of sums due and payment of all sums found due taking such inquiry or account and interest on the amounts found to be due to the Company; v. An Order removing the 1st and 2 11d Defendants from holding the office of director for breach of their duties specified in Section 105 and 106 (a) and (b) of the Companies Act No. 10 of 2017 of the Laws of Zambia and all other relevant laws. vi. Interest on the same vii. Costs vm. Any other relief the Cou1t shall deem fit. 14] The Defendants entered appearance and filed a defence on 19th June, 2020. IS] On the 101h of June, 2020, I granted the Plaintiff an injunction restraining the Respondents from inter alia acting as Directors of the Company and collecting monies from customers/ clients of the Company and also ordering them to surrender Company assets. Contempt proceedings for breach of the said injunction have been going on side by side with this action. Plaintiff's Case 16] The Plaintiff's Statement of Claim filed on 8 th June, 2020, is quite voluminous detailing all the breaches the Plaintiff alleges against the Defendants. The Plaintiff avers that the parties contracted by Memorandum of Understanding, for the Plaintiff to acquire 40% shareholding in the Company in JS return for a shareholder loan of US$27, 000. The Company incorporated as a limited liability Company on 19th May, 2019. [7] The Company commenced operations circa August, 2019, and purchased two motor vehicles, a Toyota Corolla and Toyota Allion for operations. The parties agreed that the Company would maintain a bank account at Standard Chartered Bank; that new clients would be taken on by creating contracts for proper administration and financial management. That the 1 st Defendant provided a list of running contracts numbering 12 and listed in a schedule in Paragraph 10. 18] The Plaintiff avers that between January - March, 2020, he held various meetings with the Defendants to discuss concerns he had over lack of transparency and accountability in relation to lack of information on the number of clients recruited, amounts collected by the Defendants from clients and other requests for information which had not been provided. 19] The Plaintiff investigated the operations and discovered various clients as having been contracted and having made a number of payments for services into the Defendants FNB account and cash. Among the clients are Daily Nation Limited and Accams Lodge. This caused him to ask his lawyers to write demand letters and also request for an extra-ordinary general meeting of the Company to be held. JG 110] The Plaintiff subsequently commenced this action and makes the claims summarized in the endorsement on the writ. Defendant's Case 111] The Defendants defence filed on 191h June, 2020, admits that the plaintiff acquired 40°/c, shareholding in the Company for US$27, 000. That the vehicles purchased belong to the Company and are used for security operations. [12] The Defendants deny that there was any agreement for the Plaintiff to assist with financial management or other matters. That the Plaintiff is not involved in the operations of the Company. That despite the shareholders agreeing to open an account at Standard Chartered Bank, it was not part of the agreement that the Company would undertake financial business operations through the said Bank. 113) The Defendants aver that the meetings held, canvassed the tendency by the Plaintiff to refuse the withdrawal of funds for operations. That they were forced to arrange alternative payment means to receive funds from clients. That the Plaintiff started visiting clients in the Company of policemen to harass and solicit information. {14] That Daily Nation Limited was engaged on a verbal basis pending a written contract and funds collected therefrom were ploughed back into operations, which the Plaintiff is aware of. They provided the Plaintiff with documents on receipts and expenditure. They deny availing fraudulent invoices to the clients. )7 [151 The Defendants allege that in October, 2019, they discovered that the Plaintiff was not banking the money they availed him and that he asked them to collect cash and not cheques and not deposit the funds collected so that they could evade tax. [161 That the money from Asmara Hotel was used for salaries and Company expenses. That money from Accams Lodge was correctly invoiced on Company invoices. [ 171 The Defendants deny stealing money from the Company as they have not been convicted. That no notice was issued in accordance with the Company's articles. The Defendants deny breaching their duties as directors. TRIAL Plaintiff's Case [18) The Plaintiff's First Witness PWl was Mr. Yousuf Badat, a businessman. His witness statement filed into Court on 28th January, 2021, and the Plaintiffs bundle of documents were admitted into Court as part of the Plaintiff's evidence. [191 PWl's witness statement largely consists similar testimony as that in the statement of claim and I will not repeat the same. [20] In Cross Examination, by Miss Phiri, the Witness testified that he lent money to the Company and not the Defendants. He agreed that the money which he lent the Company was used to purchase vehicles and uniforms and was used for its intended purpose. That he invested because it was a viable JS business. That he expected to get his return from the Company which he had invested in. That the Defendants informed him which clients they were servicing. He would have invested in of the business evenif itdid not have clients. 1211 He admitted that he did not bring any clients to the Company. He wanted the money with or without a contract and that it is not true that he could not accept any money paid by a client who did not have a contract as he considered it to be haram. 1221 He stated that the contracts of Asmara Hotel and Accams Lodge were known to him. The money collected from Asmara Hotel was not deposited to the account in full. That the accountant was employed mutually. The witness agreed that the accountant used to receipt the money received from the business and he had not brought any bank statements to show the deposits that were paid and given to the accountant. The witness confirmed that the Defendants were working on a day to day basis regarding the operations of the Company. The witness confirmed that they used to be paid salaries on a verbal agreement for the work they used to do for the Company. [231 The witness stated that the Defendants would attend to some matters regarding the Company. The ·witness said that the 2°<1 Defendant, Mr. Kelly Davies Kapijimpanga was not allowed to receive payments through his own account. That he was not aware of any payment received through the 2nd )9 Defendants account before the Standard Chartered Account was opened. [241 He does not know that Sseal 6 was in business as a sole trader before it was incorporated. He said that at the time the Company was incorporated the Company did not have an account. He informed the Court that Page No. 61 and 81 are documents of a meeting of shareholders and directors of Seal 6 that was called that the Defendants did riot attend. [25) The witness told the Court that he served the Defendants with notices of the meeting but they refused to accept. Page No. 61 is the letter of service on the Defendants. He confirmed that there was breakdown of communication between him and the Defendants. [26) The witness refused that he was the custodian of the money which the Company used. He said that the accountant used to deposit the money when it was given to him by the Defendants. The accountant who was hired for the business is the same accountant who works at the Plaintiffs Homebase properties (a business owned by the Plaintiff). He works for both Seal 6 and his Company. [271 The witness said that the money that was deposited with accountant was always released for payment of salaries to the Company through the 1 •t Defendant, though he did not have any proof of any such money being released to the l•t Defendant for the operations of the Company. no {28] One of the differences he had with the Defendants was because he wanted to recoup the money he had invested in the business. [29] In re - examination, the witness was asked that Accams was not known to him and that the Asmara account was not collected. He said that he recalled the contract was for 10 guards employed for Asmara hotel whereas the money that was coming through the accountant was just for 8 guards. [30) The 1st Defendant used to collect the money from clients and take the money to the accountant who in turn used to draft a salaries schedule and release the guard salaries through the 1 •1 Defendant to pay the guards. Mr. Titus Chansa is the name of the accountant and he no contract as it was a temporary arrangement until they set up an office. Defendant's Case 1311 The Defendants called one witness Mr. Kelly Davies Kapijimpanga, Co - founder, shareholder and director in Seal Six Protective Se1vices. His witness statement filed into Court on 28th January, 2021, and the Defendant's bundle of documents were admitted into Court as part of the Defendant's evidence. [32] In Cross Examination by Mr. Salati, the witness stated that he is the Company Secretary of Seal 6 and he is familiar with his company secretarial duties which include the writing of minutes for Company meetings. He said that the Company never held meetings of the Company. He was referred to page Jll 81 and 83 of the Plaintiff's bundle of documents showing that there was a meeting convened on June 4 2019. He was asked to confirm that his name appears there as indicated as Company Secretary under item 3. The witness testified that there was no meeting held as the documents were just delivered for them to sign. [331 That he is aware that there is a fiduciary duty on him to act in the best interests of the Company which duty includes an obligation to act honestly in his role as Company Secretary in addition to the duties as spelt out under the Companies Act No. 10 of 2017. That he did not know that by signing confirming minutes or resolutions for a meeting that did not take place he was acting dishonestly as a Company Secretary. He maintained that he was acting honestly because he read the documents before he signed and that all the other partners had signed. They had agreed on this documentation in order for them to continue with the Company. [341 The shareholders and directors agreed to the opening of the bank account in August, 2019. The signatories of this acocunt were Chansa Kapijimpanga and Yousuf Badat. The account was to be used to deposit money for the Company. Referred to page 21 of the Plaintiffs bundle, he confirmed that this is the account in which the financial business of the Company was to be undertaken. He said that several payments would go into his personal account after this this account was opened. He could not estimate the amounts that were paid in total into his account. J12 1351 The witness was referred to paragraph 11 of the Plaintifrs statement of claim appearing in the Plaintiffs bundle of pleadings of 9 th February, 2021, and asked if there were any meetings to discuss the items listed there. Witness said that they were not on talking tcnns with the Plaintiff at this time. 136] The Company had invoices receipts and quotations. He and his brother designed the invoices while printing was done by a man called John brought by Mr. Badat. Page 26 of the Plaintiffs bundle of documents a tax invoice is issued to Daily Nation for services supplied by Seal 6. That Page 37 & 38 of the Plaintiff's bundle of documents is that what the invoices and receipts would normally appear as. The invoices on page 36 and 37 were produced by Chansa Kapijimpanga and were used time and time again. That the Plaintiff agreed to this and is the one who gave them the money to purchase plain invoices. That the Daily Nation refused to pay money on plain invoices and would only accept to pay invoices with Seal 6 logo. He was referred to page 31 & 32 and said that the money on these invoices was paid into his personal FNB account. [37] The witness was referred to page 57 of the Plaintiff's bundle of documents which he read out par 1 - 3. The letter is a response to the letter from his lawyers dated 18th May, 2020. " .... the sum of K21, 500.00 .... Is yet to be settled .... Releasing funds to cover accumulated Company expenses ... reflected in the acocunts ..... salaries for the workers" Jl3 The witness informed the Court that Chansa Kapijimpanga did the expending of salaries to the workers. He agreed that there was no evidence before Court to show that this money was used to pay the workers and not used by him or Mr Chansa Kapijimpanga. 138] The witness read out page 16 paragraph 19 of the Plaintiff's bundle of pleadings; " ... paid in two installments of K21, 500 and K2 1, 200 because the plaintiff had continued to refuse to sign ... " He was referred to par 22 of his witness statement " ... best interest... welfare of its stajfto receive payment from ... apply the funds .... Staff salaries .... " [391 Page 40 of Defendant's bundle of documents is cheque from Hatfield Properties Limited dated 2 nd October, 2019, which showed the witness received payment in his bank account at FNB. He informed the Court that he applied the finds received to settling outstanding liabilities being expenses for the day to day running, fuel costs and salaries. He did not have evidence relating to how funds were applied towards salaries but there are other expenditure receipts. l40l The witness admitted that according to page 40 he received K12,000 in his account. According to paragraph 19 of the defence which appears on page 16 he received K21, 500 and K2 l, 200 into his bank account. According to page 57 of the Plaintiffs bundle of documents at paragraph 1.0 he received another K21, 500 out of the bill of K52, 400 from the Daily Jl4 Nation. He clarified that the twenty one thousand as it is put, was not one installment as these were different instalments. At page 40 of the Plaintiff's bundle of documents is an electronic transfer and according to that document he received Kl 1, 450 on 29th February, in his account. That the next page on that doc um en t shows that he received I( 11, 550. That page 41 is a sum of K330, money sent his bank account on 10th March, 2020. The witness admitted that based on the amounts confirmed in Court, he received a sum of Kl 11, 530 over a period of time. [41 I The witness went through pages 43 et seq of the Defendants' bundle of documents. The witness admitted that from the evidence before this Court of how the Defendants spent the money, a calculation of the evidence provided in the bundles, the total amount expended is K45, 862.00 based on the documents exhibited from page 43 - 58 of the Defendants' bundle of documents. [42] The witness explained that after his calculations, the amount expended came to K88, 530.00. He was asked that subtracting the amount exhibited before Court of K45, 862 there is an amount of K42, 668 still not accounted for and asked where this money was. The witness testified that amount was expended in workers' salaries in the due course over a period of three months paying 8 workers K42, 668.00. The highest paid worker was getting a salary of Kl,200.00. JlS 143] The witness was asked that Kl, 200 multiplied by 10 employees gives K36,000. That when one subtracts the K36,000.00 from the K42, 668.00 there was still an unexplained figure of K6,668.00. He was asked where that money is to which he stated that the money was deposited at Homebase hardware with Mr. Chansa the accountant 144] The witness said he did not have the evidence of the payments that were made to the guards before Court. The Court and both Counsel went through the process of verifying the amount received into the witnesses' FNB account which totalled Kl 17, 230.00. Kl 17, 230.00 - K45, 862.00 gave balance of K71, 368.00. That deducting the K36,000.00 which the witness claimed was used for employees from the K71,368.000 the balance is K35, 368.00. When the sum of K6, 668.00 is subtracted from the K35, 368.00 if leaves balance of K28,700.00 allegedly left with Mr. Chansa the accountant. [451 Miss Phiri re - examined the witness. SUBMISSIONS Plaintiffs Submissions 146] The Plaintiff sets out a summary of the evidence and claims he is making. He states that his claims arise out of the Defendants breach of Section 138 of the Companies Act No. 10 of 2017, which provides that; Jl6 • "A shareholder may commence an action against the Company or director for- a) breach of a duty owed by the Company or a director to the shareholder; or b) an illegal act done by the Company or director." The Plaintiff argues that the above section allows the Plaintiff to commence an action against a director such as the Defendants who breach their duties. [471 The breaches are outlined to be the admission by the Defendants to receiving funds for the Company and their failure to deposit Company funds in the Standard Chartered Bank account. Also admitting to depositing Company funds into an FNB account. 148l The Plaintiff cites Section 107 (2) of the Companies Act, which precludes a director from obtaining either secretly or without approval of the Company, for himself any property or business advantage. It is argued that the section bars directors from conflicts of interest and relies on the case of Cooks v Deeks (1), a Canadian privy Council decision which held that the directors procured and held the contract the appropriated to themselves was a benefit based on the constructive trust for the Company. [491 The Plaintiff argues that the Defendants arc in breach of their duty to exercise their powers in good faith under Section 105 of the Companies Act, which Provides that; Subject to this Act, a director shall- )17 • (a) take necessary measures to prevent, reduce and manage any attendant risks to the business of the Company; (b) not cause, allow or agree for the business of the Company to be conducted in a manner that is likely to create a substantial risk of serious loss to a member or creditor of the Company; and I when exercising powers or performing duties of a director- (i) act in good faith and in the best interests of the Company; and (ii) exercise the degree of care, diligence and skill that may reasonably be expected of a person carrying out the functions of a director. It is posited that the Defendants breached their duty under Section IOS(a) in the manner they excluded the Plaintiff from management and mismanaged the Company funds by not remitting the same to the Company. 150] The submissions argue that the principle that directors are bound to exercise their powers bone fide in what they consider, and not another person or Court would consider, is in the best interests of the Company was laid down in the case of Re Smith & Fawcett Limited (2). That though the test is subjective, the absence of a reasonable ground for Jl8 • • believing that a director is acting 1n the interests of the Company may be the basis for finding lack of good faith. This was emphasised in the case of Extrasure Travel Insurance Limited v Scattergood (3). That the duty on the Defendants was to act in what they subjectively in good faith, considered to be in the best interests of the Company. That being aware they were issuing documents that did not have the Company logo amounts to conduct aimed to ensuring funds were not transmitted to the Company. That also not remitting funds from different clients is conduct which can also be seen as not acting in the best interests of the Company. 151) The Plaintiff quotes section 106 (a) and (b) of the Companies Act A director shall- (a) exercise that director's power- i. in accordance with this Act and act within the articles; and ii. for the purpose for which the power is conferred; (b) promote the success of the Company; The Plaintiff argues that the Defendants had a duty to promote the success of the Company, which duty requires the directors to act in a way that they honestly and reasonably believe is in the best interest of the Company. • 152] The Plaintiff argues that the Companies Act docs not give a definition for "success" or how directors can promote the success of a Company. That in Item Software (UK) Limited v Fassihi (4) and Parke v Daily News Limited (5), Parker J, in Regentcrest Plc v Cohen (6) "The duty imposed on directors to act bona ftde in the interest of the Company is a subjective one. The question is not weather, viewed objectively by the Court, the particular act or omission which is challenged was in the interests of the Company; still less is the question whether the Court, had it been in the position of the director at the relevant time, might have acted differently. Rather, the question is whether the directors honestly believed that his act or omission was in the interests of the Company. The issue is as to the director's state of mind. No doubt, where it is clear that the act or omission under challenge resulted in substantial detriment to the Company, the director will have a harder task persuading the Co\ll't that he honestly believed it to be in the Company's interest, but that does not detract from the subjective nature of the test." 1531 The Plaintiff also relies on the case of British Midland Tool Limited v Midland International Tooling Limited (7), which held that a director's duty to pas so as to promote the best interests of his Company includes the duty to inform the Company of any activity, actual, commenced or threatened, J20 which damages those interests. The Plaintiff argues that the Defendants abrogated their duty to promote the success of the Company. 1541 The Plaintiff argues that the Defendants breached their under 86. (1) of the Companies Act, which provides that; "Subject to this Act, the business ofa Company shall be managed by, or under the direction or supervision of, a board of directors who may- (a) pay all expenses incurred in promoting and forming the Company; and (b) exercise all such powers of the Company as are not, by this Act or the articles. required to be exercised by the members. 155] The Plaintiff relies on John Paul Mwila Kasengele & Others v Zambia National Commercial Bank Limited (8), where the Supreme Court guided that shareholders as beneficial owners of the Company, directors arc subject to their control and report to them with rc~pcct to the management of the Company. That the Defendanls were duty bound to account for their actions as directors, which makes the Plaintiff entitled to bring this action to make the Defendants reveal information pertinent to management of the Company. 156] The Plaintiff argues that having demonstrated that the Defendants committed a breach of their duty, Section 120 of the Companies Act, provides for the remedy for any loss suffered and account for any profit made, when it provides that; "( 1) Where a director of a Company willfutly commits a breach of any duty or responsibility specified in this Act, the director - a) is liable to compensate the Company for any loss the Company suffers as a result of the breach b) may be removed from the board of directors in accordance with this Act, and c) is liable to account to the Company for any profit made as a result of the breach." {57] The Plaintiff cites Section 122 (a) of the Companies Act which imposes personal liability on an officer where it is found that a decision made by that officer is not valid by virtue of the actions taken. That in Gluckstein v Barnes (9), the House of Lords stated that where a breach has been committed by several directors, it would be appropriate to proceed against all of the defaulting directors instead of just proceeding against one. The Plaintiff states that there is no evidence on record of any payment of salaries as alleged by the 1 st and 2nd Defendants. [581 The Plaintiff seeks an inquiry as to damages or account of sums due to the Company to be conducted arising from the Defendants' breach of their duties. The Plaintiff cites the case of Regal (Hastings) Limited v Gulliver (10), wherein directors of a Company provided share capital for acquisition )22 of a subsidiary when the Company Regal could not find sufficient resources. The directors subsequently made a profit from the sale of shares in the subsidiary. The Court held that a director is obliged to account to the Company for any unauthorized profits made by him by virtue of his office as director. Per Lord Russell; "I am of the opinion that the directors standing in a fiduciary relationship to Regal in regard to the exercise of their powers as directors, and having obtained these shares by reason of the fact that they were directors of Regal, and in the course of the execution of that office, are accountable for the profits which they have made out of them .... the rule of equity which insists on those, who by use of fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether profit would or should otherwise have gone to the plaintiff (the Company), or whether the profiteer (the directors) was under a duty to obtain the source of the profit for the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having in the stated circumstances been made." It is argued that the directors were in a situation of conflict between their duty to account to the Company for their profit J23 and their personal interests in retaining it. That they could have relieved themselves of the liability to account by obtaining the informed consent of the Company. Relating the above to this action it is posited that the directors did not provide a full list of clients from who they obtained funds which they also did not account to the Company. They breached their fiduciary duty by not depositing funds in the Company account at Standard Chartered. [591 That in the Regal (Hastings) Limited v Gulliver case above, it was held that the directors would still be liable for breach of duty and account for secret or unauthorized profits made at the expense of the Company. The case of Gwembe Valley Development Company Limited v Koshy (11), is cited where there was a joint venture formed in Zambia with the aim to develop a cotton and wheat farm of 2, 500 hectares at Sinazongwe on the shores of Lake Kariba in the Southern province. A group of investors funded the project with each taking proportionate representation on the board of the Company. However, the venture failed and there was a claim against the managing director who breached his fiduciary duty of good faith by acting with deceit and dishonesty. The Court ordered the director guilty of breach of a fiduciary duty to account for all profits made by him. The order included profits made indirectly through increase in the value of shares in the Company, which itself received profits as well as profits that were made by the director directly. J24 The Plaintiff states that I.he evidence shows that the Defendants received K12, 500 for security services from Hatfield Properties as per page 73 of the Plaintiff's bundle and further that Humphrey Properties Ltd and Makebi Zulu were customers not disclosed to the Company. [601 The Plaintiff prays for an order removing the 1 st and 2 nd Defendants from holding the oflicc of director for breach of their duties. The Plaintiff places reliance on Section 120 (1) (c) of the Companies Act. The Plaintiff argues that the provision is clear and he has demonstrated how the Defendants breached their dulics. 161] The Plaintiff argues that there was oppressive conduct by the 1 st and 2 nd Defendant against t.he Plaintiff, which conduct is prejudicial against him and needs to be remedied. The Plaintiff relies on Section 134(1) of the Companies Act. which provides that; "The Court may, on the application of a member, make an order, in accordance with subsection (3), if it is satisfied that- a) the affairs of the Company are being conducted, or the powers of the directors are being exercised, in manner that is oppressive; b) an act or omission, or proposed act or omission, by or on behalf of the Company has been done or is threatened, which was or is likely to be oppressive; or J25 c) a resolution of the members, or any class of them. has been passed or is proposed which was or is likely to be oppressive." Section 134 (9) of the Act, defines oppressive as; a) Unfairly prejudicial to, or unfairly discriminatory against, a members or members of a Company; or b) Contrary to the interest of the members as a whole." 1621 The case of Scottish Co-operative Wholesale Society Limited v Meyer (12), is cited as st. Hting that the oppression remedy would only be available where the conduct of the majority was burdensome, harsh and wrongful. That further in Re Saul D Harrison & Sons Pie ( 13), the Court held that; "The words "unfairly prejudicial" a.re general words and they should be applied flexibly to meet the circumstances of the particular case. The conduct must be both prejudicial in the sense of causing harm to the relevant interest and also unfairly so; conduct may be unfair without being prejudicial or prejudicial without being unfair, and it is not sufficient if the conduct satisfied one of these tests." 163] The Plaintiff cites Re Legal Costs Negotiators Limited (14), where it was held that as a minimum remedy when oppressive conduct is shown, the Court will do all it can to remedy the misconduct and oppression suffered to prevent J26 the conduct occurring again. That Section 134 (2) (b) of the Companies Act gives the Court wide powers to regulate the affairs of the Company and put right matters complained off. 164] The Plaintiff lastly seeks an injunction against the 1 st and 2nd Defendants pursuant to Section 330 of the Companies Act, and is allowed by the Section to apply for an injunction against a director to restrain his from engaging in conduct that contravenes the articles of association or the Companies Act. The Plaintiff relies on the case of Hope v International Financial Society (15), where the Court held that a shareholder of a Company can institute legal proceedings to restrain a director from performing an act or declare that act invalid if it is contrary to the Companies Act or any other legislation. Defendant's Submissions in Opposition 165] The Defendants' submissions filed on 201h September, 2020, say that Plaintiff alleges that he lent the Company ZMW358, 500 and that he accuses the Defendants of not banking the money surrendered to them for banking. The payments include from the Daily Nation Limited among other clients who made payments which were not properly receipted or banked. The Defendants aver that th e Plaintiff was aware of the payments including Accam's LC>dge as this money and from Asmara hotel was surrendered to the Company's accountant. They aver that he refused to accept payment J2'l from Daily Nation in the absence of a contract as it was "haram". 166] The Defendants argue that the issu es in dispute relate to general and fiduciary duties or responsibilities of directors. The issue for determination is whether the allegations of the Plaintiff on a balance of proba bility prove that the Defendants violated their duties as directors. The Defendants posit that the money from Daily Nation and other monies were all spent on Company business. That the Court is asked to determine whether there was non-disclosure of the Company clicntele by the Defendants and whether the Defendants benefited from this situation if any this sub the submission argues that the standard of proof has noL been established to require the Court to remove the Defendants as directors. !671 The Defendants argue that they have adequately accounted for all the funds they received on p ages 59 to 63 of their bundle of documents and further expenses as set out at pages 43 to 58 of the same bundle. 168] The Defendants rely on the Ca nadian Federal Court of Appeal case of Redpath Industries Limited v Cisco (16), which held that it is well established that a party who suffers damages as a result of a breach of contract has a duty to mitigate those damages, that is to say, that the wrongdoer cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the injured party from this case it is argued that the Plaintiff is aware of how the loan was used including other monies )28 collected by the Defendants and there is no basis why the Defendants should account to the Plaintiff. l69j The Defendants challenge the Plaintiff's reliance on sections 105 and 106A and B of the Companies Act #10 of 2017. It is argued that the Courts discretionary powers are limited to preventing a person from being appointed as a director in any Company. It is argued lhat the law does not grant the Court discretionary rice license to remove a person already serving as director section 93 of the Companies Act #10 of 2017 is quoted when it provides as follows; "93 (1) the Court may on the application of accompany, a creditor of the Company or the Registrar, prevent a person from being appointed as director in any Company for a period not exceeding five years, for committing an offence or breaching any of the duties of a director specified in this act." The Court's order is clearly intended lo prevent directors who have previously grossly misconducted themselves from subsequently being appointed to serve as directors in other companies. 170] The Defendants argue that a director who is disqualified as a director, continues to serve even after such disqualification in Zambia citing UK legislation called the Company Disqualification Act 1986. That the exercise of commercial mis-management is insufficient to justify disqualification including where "unfit" conduct complained of is carried out other than in the director's capacity a s a director such as in an individual capacity, re moval as director would be unjustified. 171 I The Defendants conclude by positing that the Plaintiff is using the Court to resolve issues that. the parties themselves should find solutions to such as by convening periodic meetings of the Company which is not happening due to collapse of communication amongst shareholders. It 1s submitted that the Plaintiff's applica tion lacks merit. PlaintiWs Submissions in Reply 172] The Plaintiff's submissions m re ply were filed on 22 nd September, 2021. They do repeat certain arguments already canvassed in the submissions in s upport of the Plaintiff's case. In addition, it is argued that the Plaintiff has the right to participate in the management of the Company and as shareholder to receive an ::iccount of the manner in which the directors are managing the Company. That he also can bring a claim such as this as a sharehold er where the actions of the directors constitute a breach or the law under section 138 Companies Act No. 10 of 201 7. !73] The Plaintiff argues that the Dcfcnd ;1nts are captured in the definition of director in the Act and should be held personally liable for the obligations and liabi lity arising from their decisions. That they should compen~ate the Company for the money they cannot account to the Company. (741 That Section 86 (1) (b) of the Com panies Act provides for duties of directors in managing a Com pany for the members. J30 That Lord Bingham held the followin g in the case of Johnson v Gore Wood & Company ( 17); " ... where a Company suffers loss caused by a breach of duty to it, and a share holder suffers a loss separate and distinct from that suffered by the Company caused by a breach of duty independently owed to the shareholder, eac h may sue to recover the loss caused to it by breac h of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed t o that other." [75) The Plaintiff posits that he has suffered personal loss and is thus allowed to sue scpurat.<: from the Company so long he can establish that the Company's conduct constituted a breach of a legal duty owed to h iin personally and such breach caused him loss. The Plainti ff details breach of the agreement by the shareholders. JUDGMENT [76] The action herein stems from a d esire by the Plaintiff to enforce his rights as a shareholder and director of Seal Six Squad Services Limited against his fellow shareholders and directors, the Defendants, to hold them to account for breaches committed in the discharge of their office and to have them removed from the office of director of the Company for their alleged breaches of the dut.ics as directors under the Companies Act. I find that this Court has the jurisdiction to determine this action. [771 The issues as I see them are; J31 i. Whether the Defendants breached their duty as directors of the Company. ii. Whether the Defendants arc required to account to the Company for their breach es to the Company and or the Plaintiff. m. Whether the Plaintiff or the Company is entitled to damages from the Defenda nts as a result of the breaches by the Defendants. iv. Whether the Court should remove the Defendants from holding the office of di rector in the Company for breach of their duties as dfr<'ctors under Section 105 and 106 (a) and (bl of the Co mpanies Act. (781 J have heard the oral evidence or l hc witnesses, read the documentary evidence and reviewed very carefully the written submissions submitted to the Court in arriving at my decision herein. I thank Counsd o n both sides for their spirited arguments and well research ed submissions. 179] My understanding of the case, is thal lhc Plaintiff was invited to invest in Seal Six and given 40% shareholding therein as well as being made a director. The Defendants each held 30'¼, of the shareholding. Following his capital injection in to the Company, the Plaintiff and Defendants appear to have agreed that the 1st Defendant would manage the operational risk whilst the Plaintiff would assist in the financial management of the business. Further, the parties agreed that the Company would use Standard Chartered Bank, Northend Branch to which account the Plaintiff was a signatory. The J32 Plaintiff became disaffected with th e manner 1n which the Company was being run and sough t to get some level of information, transparency and accountability on the client contracts and amounts collected th en;from, which it appears was not forthcoming. It was also not well received by the Defendants leading to a total breakdown of communication. 180] The Plaintiff started finding out of client contracts and payments, including the issuance of what he calls fraudulent non-tax invoices by the Defenda nt s, which were never disclosed to him in his duties of finan cial management. The Defendants did not attend an Extrao rdi nary General Meeting of the Company called for 29th May, 2 020, at the Plaintiffs request, leading him to commence this action and obtain an injunction to stop them from dealing with clients and assets of the Company. 1811 The Defendants on their part, deny the allegations by the Plaintiff and argue that there was n o agreement that the Company would conduct its financial business operations with Standard Chartered Bank and accuse the Plaintiff of refusing to sign for withdrawal of funds for business operations. The Defendants have their reasons for not entering into written contracts with some clients and arranging alternative payment methods with clients. They claim the Plaintiff knew or the clients n ot disclosed to him. [821 The Companies Act No. 10 of 2017, gives a shareholder the right of action against directors who breach their duties of J33 directors or commit illegal acts 111 Section 138, when it provides that; ""A shareholder may commence an action against the Company or director fo r- a) breach of a duty owed by the Company or a director to the shareholder; or b) an illegal act done by t h e Company or director." The law therefore recogni?.:cs that directors are not above the law and should be held to accoun t. for their actions, hence allowing shareholders who appoint them and, on whose behalf, they act, to be empowered with the right to proceed against them. (83] Section 86 (1) (b) of the Companies Act provides for duties of directors in managing a compuny for the members, when it provides that; (1) Subject to this Act, the bu siness of a Company shall be managed by , or under the direction or supervision of, a board of d irectors who may- a) pay all expenses incurred in promoting and forming the Company, and b) exercise all such powers of the Company as are not, by this Act or articles, required to be exercised by members." It is argued that the Plaintiff as s hnrcholder has a right to demand that the 1 st and 2°d Dcfcnclt1n ts account for the manner, they manage the Company. l~cliancc is placed on the case of John Paul Mwila Kascn gclc v Zambia National Commercial Bank (8), where the S u preme Court guided that shareholders as beneficial owners of the company, Directors are subject to their control and repor t to them with respect to the management of the Company. That Lord Bingham held the following in the case of J ohnson v Gore Wood & Company ( 17); " ... where a Company suffers loss caused by a breach of duty to it, and a sha reholder suffers a loss separate and distinct fro m that suffered by the Company caused by a breach of duty independently owed to the shareholder, each may sue to recover the loss caused to it by bre ach of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed to that other." I take due note that the Com pan ic s Act, No. 10 of 2017. Section 105 of the Companies Act, sets out some of the general duties of a director of a Cornp:-1ny, among which is the duty to exercise rcasona bk skill ,md care and ensure that the business of the Company in which he is a director, is not conducted in a manner that cau ses substantial risk to its creditors. [841 Section 106 (a) and (b) of the Con1panies Act, cannot be clearer in spelling out a d irector's d t tlics when it provides that; A director shall- (a) exercise that director's powcr n s i. in accordance with this Act and act within the articles; and ii. for the purpose for which the power is conferred; (b) promote the success of t he Company; (85} The Plaintiff has put up quite fo r ceful arguments and authorities in support of its ca se, that the 1 st and 2"'' Defendants breached their <lut.ic8 ;i~ directors. It is clear to me that the director of a company mu i--1: at all times in the execution of his duties as director; 1. act within his powers as co nfe r red by the articles and the Act. 11. Use the power conferred for l h e purpose it is conferred, 111. exercise the duty of a rcaso n ,1ble skill and care. iv. ensure that the business or the Company in which he is a director is not conduct<'rl in a manner that causes substantial risk to its crcdito:·s. v. act in the best interests of the Company; and v1. promote the succes8 of the Co rnpany. [86) I look at Kitwe Supermarket Lilnitcd V Southern Africa Trade Limited (18), a case dc:1l i11g with lifting of the corporate veil, where the directors of a debtor Company disposed of the assets of the Com pany in a manner designed to circumvent the Company's oh ligalion to settle a sum of money arising from a contract fo r tl1c supply of wines and spirits. The Court in this case, fot1ncl that the directors acted dishonestly when they did not notify l'/\CRA of the change of J36 registered office, which prevented Ilic Plaintiff from serving process on the Defendant Comp;rny and satisfying its judgment. This clearly suggests lo me that dishonestly of directors should be interprctc;cl on the fa cts of the case. 187j Halsbury's Laws of England , 3 r d E«iition Vol. 6 at page 63, specifies an officer's duty l o account lo ! h e directors, when it reads; "Every officer must, when required hy the directors, make out and deliver to them, or lo any persons appointed by them, an account in writing 11 11 d <' r his hand of all moneys received by him on behalf of 1h r: Company, stating how, and to whom, and f or what 1>1 trpose, such moneys have been disposed of, together w ith vouchers and receipts. He must also pay to th.<~ directors,., .. , all moneys which appear to be oiuing from him 11 pon the balance of such accounts." 1881 The Companies Act at docs oblige di rectors to promote the success of the Company in Section 1 05. It has been argued that there is no definition for w l1a t th is means. 1 draw a parallel to Section 175 of the Corpo rate Insolvency Act No. 9 of 2017, dealing with lifting of the corporate veil which contains the words "defraud" and "l'raudulent purpose" in relation to a director's conduc t. wh ich was ably interpreted in the case of, In Re Patrick & Lyon Limited (19), at page 790 as; "the words "defraud" and "fraudulent purpose", where they appear in the section in question, are words which connote actual dishonesty involving, according to current n otions o f fair trading among commercial men, real moral blame ." !891 The Companies Act when tal k ing or d ircclor's duties uses the words "bona fide»; "in the best interests of the Company"; "promote the success of the Com pany", all of which in my opinion relate to the probity of t h,.· directors and obliging them to exercise their best judgement and good faith for the Company's sake in their conch 1ct iind d ealings as relate to the Company. I believe that I ca n safely conclude and borrow from the case of In Re Patrick & Lyon Limited (19), that these are all "words which co nnote actual dishonesty involvin accordin to c u rrent no tions of fair trading among commercial men, re al m. Qral blame." 1901 The evidence before me is mf111ifcstly c k ar that the manner " 1 De fen da n t chose to conduct the affairs of the Company was pretty cavalier and totally out of in which the 1st and 2 1 line with the Plaintiff's approach which was methodically, orderly, systems and acco1 111 tability d riven as a proper corporate entity should be r un. The Defendants have not really disputed the breaches they ,)re nccused of as there is documentary evidence to back the l'l,,1in tiff's allegations and claims and they do admit receivi ng monies form clients and not depositing it in the dc:sig n;it.cd Company Bank Account. The Plaintiff alleges that he lent the Com pany ZMW358, 500 but claims only ZMW l l 1, 51 0 which he wants the Defendants to account for f\S it was never banked in the J38 Company account. The Defen da nts a llege using the funds on Company operations. Making ;1 n account is setting out details of what was received , who from, when, and what it was spent on, when and whe re poss ible with backing documentation. 1911 The evidence at trial showcc-1 th,tt I.he ,trnount received into the DW2's FNB account lotakd Kl 17, '.230.00. The receipts for payments show that K45, 86?..00 wns accounted as spent on operations leaving a ba lance of K l l, 368.00. The witness alleges that K36,000.00 was used for 10 employee salaries over a period of three moths wh ich still left an outstanding amount which he alleges Lhul w,ts gi\'cn to Mr. Chansa the accountant. l92l The Companies Act is a \ ·c 1 .v corn prch ensive guide book for those charged with ru nning limited liability and public companies and spells out th e requ irements to be followed in running a Company legally. The highest standards of corporate governance arc required oi a ll corporate entities and the people charged with I.he respon sibility of running them as per Section 8 6 o f the Companies Act. Corporate governance has two asp ects ( I.) ii s hould facilitate the development of value-creating c11tcrpri~cs; (2.) while at the same time providing for l.ra n:-;pHrcncy a nd accountability of how the business is ru n ror th e s h ,trcholders and other stakeholders. This is the iss1tc at sl,1kc- h erein . • 193] Running a corporate entity rq;is tcrcd under the Companies Act is far removed from ru1111111g ,t "111hcmba" as the rights, )3!) duties and responsibilities of I h ose rt1nning a Company, are spelt out in the Act all in ;i b id 1.0 sec. th e gold standard to be followed to ensure accoun ta b ility, trnnsparency and diligence of the directors in their du ties 10 the Company and shareholders. Witlful, negligent or reckless breach of the duties and responsibilities ca r ri<::, ci vil and criminal sanction. Holding the office of direc lor in a Cornpa ny is not just about receiving allowances for ;il lcnding l>oard meetings or the same looking good on onc·s c 11 rric11 !11m uitae. It requires the highest standards of tra n sp:ircncv H11d accountability for decisions and conduct. [941 The evidence herein s pcnlo; for itsc-lf. DWl, does admit receiving Company funds in liis p<:riional account held with FNB at a time when a Com p,tny a ccot1nt had been opened at Standard Chartered Bank . I le stfilcs that the Defendants used these funds to meet Corn pany operations. 195] Can the Defendants' actions be s;tid lo have been done in what they subjectively in good fH i I h t"on side red to be in the best interests of the Com pany. T h a1 is : h ey were aware they were issuing documents that did no! have the Company logo and banking Company fu nd s in a pcr~;on al account and in some instances not tra nsm itti ng fun ds to the approved Company account including no l disclosing some clients. amounts to conduct ai111cd to cn,,t iring funds were not transmitted to the Company. I o pine I hnt all this conduct is not acting bona fide in th e; h<'sl. in teres t~ uf the Company as no evidence was laid befo re Court to explain how the MO Company's interests were going 10 be furthered apart from saying that their fellow d ire ctor , Mr. Badat was not releasing money for operations and Lhcy had to find a workaround to pay salaries inter alia. In the s a m e breath they do admit that the accountant Mr. Chans a w a s p aying staff salaries. I echo Parker J, in Regentcrest Pie v Cohen's (6) dicta. The issue is the lack of fu ll accountability for the funds received and how they we re s pcn t a s the evidence on the stand shows that only part. or :h e fu nds s pent were receipted and accounted for. Compa ny fu nd s a rc separate and distinct from personal funds and the re is 1.1 11 ohligation to render a full account as stated by Halsb u ry's Laws f.ibovc. [961 Among the reliefs sought is the request for an order of the Court removing the l•L a nd 2•"1 l)cfench1n ts from the office of director of the Company for l);-cach of their duties specified in Section 105 and 106 (a) a n cl (b) of the Companies Act No. 10 of 2017, in accordance- wi th Section 120 of the Companies Act, which provides for the remedy for any loss suffered and account for a ny p ro f"it made for breach of duty or the law, when it provides 1l1 a l ; "(l) Where a director o f a Company willfully commits a breach of any dut y or responsibility specified in this Act, the director - a) is liable to c o m p ensate the Company for any loss the Compan y snffcrs _as a result of the breach b) may be remove<:f from t h e board of directors in accordance with this Act, and c) is liable to account t o t he Company for any profit made as a rC$Ul! o f the breach." 197] It has been argued in opposil ion by the Defendants that this Court does not have the power to remove a person from the office of director and the only power vested in the Court is the power to order a disqualification from ever holding the office of director in another Com pD nv. 198) The law on this point speaks f•>r i tself and I am satisfied that the 1•1 and 2"<1 Defendant hrc;1ch n l t heir duties as directors and officers of the Company by t h ei r actions and are liable to removal from the office o f director o f the Company by the Court in exercise of the p owc!· vest.eel in it by Section 129 (1) (b), in addition to the other 1-c-rncclies provided therein. The Section users the word "Willfu lly", which to me denotes intent, negligence or recklcs~1;css which a ll point to actions which are in the director's control. In the current case, all the breaches outlined by the Plainti ff wer e willfully committed by the 1st and 2 nd defendan ts [99] The Plaintiff has argued thi1t he hHs stlifcred personal loss long he can establish and is thus allowed to sue sl'par,1Lc from the Company so l h,, L constituted a breach of H lcgnl d u ly owed to him personally the Company's conduct and such breach caused 111111 loi;s. Whereas I agree that Section 138 (1) as re ad with S e ction 120 (1) of the Companies Act, give h im ;1 righ t to commence this action • and sue separate from the Compan y. I l"in d that the Plaintiff may have indeed suffered los!-i rrom H delayed repayment of his shareholder loan owing 10 lhc man ner the Company finds were not accounted for. Th is los!-i is not, in my opinion attributable to the Compa ny h ut I.he individuals he has sued. His loan was made to the Con1 pa n v which has the obligation to pay it back in due counic fron1 the p rofits. I find that by holding the Directors liable for th e breach of their duties to the Company, this will rccoinpcnsc t he Plaintiff by the Defendants making good t li(' 1non ics not accounted for Vlrith interest and damages whic h wi ll put the Company in a better position to repay his loan. 1100\The Plaintiff has submi tl<'d that lie did suffer oppressive conduct from the Defendrn1l:s wit hin meani ng of Section 134 (ll and (9) of the Companie s Act. which fact has come out clearly in the evidence before ('1 ,u rt . The Defendants inter alia between them hold 60<¾, or I Ji c s hares of the Company and already ignored a notice of an c x1.r,1 ordin Hry general meeting and would out vote h im d i an y general meeting. It is important that the Court :1l lows Lh(' Con1pany affairs to be conducted in a serene, !;,1fc a nd progr<'ssive manner and environment. I agree with the l'la inl.ill's s u bmission that this Court does have the power u n der Sectio n 134, to put things right for the Company to fun c tion normally. 1101\ Upon a close and careful consickralion of the evidence led and the law on the matt.er, I ,.1m klL in no doubt that the Plaintiff has proved his case nn ,.1 l>HL-i nce of probabilities and M3 ' • is entitled to the relief elm mcd ;igains t the 1 st and 2 n d Defendants. po2p hereby order that: i. The 1st and 2nd Defenda n ts Lo rend er a written account for ALL amounts received fn im cl ients or the Company and disclose by filing the sa me in to the Court; the entire employee list, custon1cr lis t and contracts and agreed monthly amounts charged with c lic:nl.s within the next 14 days; ii. The 1st and 2nd Defendants are O rdered to account for and return/surrender the Co r,1 pan_v's assets which includes inter alia the Company's Mo1 or Veh icles being BAL75 Toyota Allion and Toyou, Corol li1 BA I< 9908ZM wherever they may exist and the Cmnpany security guard uniforms the Company has in reserve , ,·ii hi n t.he next forty-eight hours at the Plaintiffs ./\d vocatcs ' Chambers as requested by the Plaintiff; iii. Damages due to the Cornpn11y '1 S H result of the l•' and 2 n d Defendant's breach of thei r d l1 ly to account for sums collected for and on behalf of the Com pany which shall be found not to have been accountC'd for sh all be assessed by the Hon. Registrar of th is Court : 1v. The 1st and 2ml Defenclm11s arc he reby forthwith removed from holding the office of d irector for breach of their duties specified in Section 105 and 106 (a) and (bl of the Companies Act No. 10 o f 2017 o f t h e Laws of Zambia. • • They shall not qualify to hold t h,, o!Tic-c of director of Seal Six Squad Services Limited for n period of twelve months; v. The Injunction granted o n 10 1• Jun e, 2029, is hereby continued for a period <)r 12 ,nonth s. For clarity the injunction prevents the l '" and 2"cl Defendants from not only acting as Directon ; o! the Cornp;i ny but also holding themselves out as direc tors for tile pcdod of 12 months or doing anything that sha ll l>c dccinl'rl lo be to the detriment of the Company; vi. Interest on all amoun t:;; found due and owing to the Company shall be paid al the J udgmc nt Act rate; vu. Costs of and incidental lo this ,1ction 1,1 rc for the Plaintiff, to be taxed in default or c1greement, viii. Leave to appeal is hereby i!,rantcd. Delivered at Lusaka this 27th day of Fcbnrnry, 2024 ♦♦♦♦♦♦♦♦♦♦♦♦♦♦ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • ..... • • ♦ . . . . . . . . . . . . . . . . . . JUOtCIARY OFFLqhi1,ti1.9:i'i':"--- c HIGH COURT IA Bonaven u rc C . Mbewc HIGH COURT JUD GB '~ , ~5'.'!'_merclalO/~IJion :•L I. 7 "=~ -~ l~ ]~ I JUDGE P.o. aox 50-061 ---..... _____ • UISAKA ' f j --