VICE-PRESIDENT Kembo Mohadi has won the right to file an $11,7 million lawsuit against Barbara Lunga − executor of the late Zanu PF politburo member Thenjiwe Lesabe’s estate − for allegedly fraudulently double selling and transferring a Beitbridge piece of land without his consent.
BY CHARLES LAITON
Mohadi also wants Lunga’s co-defendant Reginald Dawson, Impact Trust and Executors and Afric Oil Petroleum, sued over the same matter.
The order was granted by High Court judge Justice Helena Charehwa on July 18, 2018, following an application by Mohadi and his co-plaintiffs, Josias John Moyo and Lesabe’s estate.
Mohadi filed the litigation early February, but the executor and her co-defendants later filed an application for exception, arguing that Mohadi’s lawsuit did not disclose a cause of action, and as such must be dismissed.
But after determining on the matter, Justice Charehwa ruled in Mohadi’s favour, saying his lawsuit against the estate executor was in accordance with the law.
“First to fourth defendants (Lunga, Impact Trust and Executors, Dawson, Afric Oil Petroleum), took exception to the plaintiff’s (Mohadi, Moyo and Lesabe’s estate), issued declaration as disclosing no cause of action on the basis that the sales were conducted by first defendant (Lunga) acting in accordance with the law and in her capacity as liquidator of Nerry Investments … in addition first defendant raised a plea in bar that plaintiffs did not have locus standi in judicio to raise legal complaints about any alleged wrongful actions committed against Nerry Investments as they are not the representatives of the company,” Justice Charehwa said.
The judge further said it seemed to her “that the defendants totally misread the summons and declaration and raised an exception and plea in bar which are not sustainable and ought to have been abandoned in the same manner that they abandoned the plea in abatement”.
“In this instance, it is my view that the questions whether a litigant is sufficiently aware of the details of the claim, whether the legal basis of such claim is adequately articulated and whether the relief sought is clear, are reasonably answered, in the premises I find that the exception lacks merit,” she said.
“It is not in dispute that plaintiffs are shareholders of Nerry Investments and are suing as such … the locus standi of shareholders to sue anyone in their capacity as such is well established. It is trite that shareholders of a company, whether in liquidation or not, always have the legal right to sue, by way of a derivative action, anyone in their own names and in their capacity as shareholders … the exception and plea in bar are dismissed with costs.”
In their combined declaration, Mohadi, Moyo and the Lesabe’s estate said they are seeking an order of the court, declaring that the agreement of sale of the land measuring 3,9857 and 2,8243 hectares respectively, entered into by Lunga and Impact Trust and Executors, acting in concert with Dawson and in agreement with council, be declared null and void.
They also said they are seeking payment of $1 700 000 for lost movable properties namely fuel tanks and storage facilities and; “an order cancelling of title deed no…0001464/2014 and 1465/2014 all registered in the name of fourth defendant … and $10 000 000 being loss occasioned to plaintiffs by first to fifth defendant’s fraudulent sale of the business equipment and assets of their company.”
Mohadi and colleagues also argued that had they continued running their fuel depot on the said commercial property without the double and fraudulent sale occasioned by Dawson, they would have realised profits in excess of $10 million.