Finsbury Investments Limited v Ital Terrazo Limited and 2 Ors (Appeal No. 176/2016) [2017] ZMSC 313 (10 March 2017)

IN THE SUPREME COU':RT OF ZAMJBIA SCZ/8/159/2016 HOLDEN AT NDOLA (Civil . Jurisdiction} BETWEEN: Appeal No. 176/2016 FINSBURY INVESTMENTS LIMITED APPELLANT AND ITAL TERRAZO LIMITED (In 'Receivership) FIRST RESPONDENT ANTONIO VENTRIGLIA SECOND RESPONDENT MANUELA VENTRIGLIA THIRD RESPONDENT Cor,am Wood, Malila and Mutuna JJS On 7th March 2017 and on 10th March 2017 For the Appellant For the Respondents Mr . . J. Sangwa SC of Messrs Simeza Sangwa and Associates and Mr. D. Chakoleka of Messrs Mulenga Mundashi Kasonde Legal Practitioner-s Mr. S. Mambwe of Messrs Mambwe Siwila Lisimba Advocates and Mr. C. Sianondo of Messrs Ma!ambo and Company JUDGM E NT . Mutuna JS, delivered the judgment of the court. Cases referred to: .l) Re-Ga.rage Door Associates Ltd (1984) lALL ER 434 ( J) P.292 2) RJN2 Limited(! 977) 3 ALL ER 110-1 3) Asic v Active Sugar Pay Limited (No.2) (20}3) FCA 231 4) Re New Cap re-insurance Corporation Holdings Ltd (7 999) 32 ACSR 231 SJ Gianpietro Milanese and others v Paolo Marandola and others appeal No.133of2011 6) The Commissioners for Her Majesty's Revenue and Customs v Rochdale Drinks Distributors (2011) EWCA civ 116 7) Olive v Litchfield Trading Co. PTY Limited and another (2015) NTSC 8) Re Highfield Commodities (1984) 3 ALL RR 201 Other works refe:rred to: l} Companies Act, Cap 388 2) Mason, Ryan and French on Company Law, 17th edn., Blackstone Press Limited 3) Palmers Company Law, 24th edn, vol 1 4) Companies (Winding up) Rules, 2004, Statutory Instrument No. 86 of 2004 5) l:Jlack's Law Dictionary by Bryan A. Gamer, Thomson West, USA, eighth edition 6) Mc Pherson's Law of Company Liquidation, by Andrew R. Keay, 2001, Sweet and Maxwell, London This appeal is a reaction to a ruling delivered by the Learned I-Iigh Court Judge dismissing the Appellants application for the appointment of a provisional liquidator, pending the determination of a petition to wind up Zambezi Portland Cement Lirnited (the company). It represents one of many fiery disputes the parties have before this and J3 P.293 other courts regarding the shareholding, rnanagement and control of the company. The basis upon ·which the Learned High Court ~Judge dismissed the application is that the Appellant had not established that it had standing because there is a dispute raging in respect of ownership of the shares in the company. In arriving at this finding, she took jud icial notice of the action before Chashi J (as he then was) under cause number 2008/HPC/0366, in which the Appellant's claim to 58.33% shares in the company is disputed and directed that once that dispute is determined and it is found that the Appellant is a shareholder in the company, it will then have the necessary standing to apply: to wind up the company; and, for the appointment of a provisional liquidator. The Learned High Court Judge placed reliance on the cases of R e-Garag e . Door A ssocia tes Ltd 1 and RJN2 L imited2 • The background to the appeal is that on 22nd May, 2015, the Appellant filed a petition to wind up the company pursuant to section 272 of the Companies Act which was supported by an affidavit verifying facts. Prior to the J4 P.294 commencement of the action, the Appellant and First Respondent entered into an agreement which culminated into the establishment of the company. The company then borrowed certain amounts of money frorn the PT A Bank for the establi_shment of a cement processing plant. These moneys were guaranteed by the Appellant and First Respondent. Subsequently, a dispute arose which prompted the Appellant to file the petition and application for appointment of the provisional liquidator. After the petition was filed, the Appellant applied ex parte for the appointment of a provisional liquidator pursuant to section 280 of the Companies Act, as read with Rule 8 of the Companies (Winding-up) Rules, 2004. This application was filed on 19th February 2016 along with an affidavit in support sworn by one Rajan Mahtani and skeleton arguments. The application was anchored on the ground that it is essential that the company's business and undertaking be maintained and protected from jeopardy, pending the hearing of the petition, so that its J.'i P.295 valuable goodwill and assets are preserved and the possible sale of the undertaking as a whole is not prejudiced. The Respondents opposed the application by way of an affidavit in opposition sworn by the Second Respondent and skeleton arguments. In doing· so, it denied the contentions by the Appellant and refuted tl1.e claim that the Appellant is a shareholder in the company. The Appellant contended in the evidence presented in the court below that the Second and Third Respondents were mismanaging the affairs of the company by dissipating its assets, as such, there 1s a threat that it would be a shell by the tirne the petition for winding-up is heard and determined. On the other hand the Respondents denied the allegations by the Appellant and questioned the legitimacy of the petition for winding-up. When the ex parte application for the appointment of the provisional liquidated' was presented to the Learned I-Iigh Court Judge, she made it an inter partes application and gave a return day for hearing. On the return day, the Appellant relied on the affidavit evidence and heads of J5 P.296 argument. In doing so, it argued that the appointment of a provisional liquidator is governed by section 280 of the C@mpa.niires AcCif: and Rule 8 ( .1) of the CovnJ001nies (Hlindi ng up) lR.ules, 2004. The former states as follows: "(1) The court may appoint the official receiver or any other person to be liquidator provisionally at any time after the presentation of a winding-up petition and before the rnaking of a winding up order. (2) The Provisional liquidator shall have and rnay exerclse all the functions and powers of a liquidator subject to such limitations and restrictions as may be prescribed, or as the court specifies in the order". -While the latter states as follows: 11Where a petition for the winding-up of a company has been presented to a court a creditor/ petitioner contributory or a company may make an application ex parte supported by an affidavit stating sufficient grounds for the appointment of a Provisional Liquidator". J7 P.297 The Appellant explained the foregoing provisions to mean that the primary criteria for the court to consider in determining whether to appoint a provisional liquidator is the existence of sufficient grounds to warrant such appointment. It made referer1ce to the holding in the case of A SIC v /!:Active S u.p er Pay Limited (lV@o 2)3 quoting from the case of R e New Cap R einsu:ranrce CoF~pora tion Jlold ings Lim ited4 as follows: '½s was said in l?e JVfc Lennan Jioldings Pty Ltd and affirmed by the court of appeal in Constatimidis, the power to appoint a Provisional Liquidator is by no means lirnited, the grounds on z,uhich a Provisional Liquidator may be appointed are infinite, and all that really has to be shown is that there is a bona fide application constituting sufficient ground for the making of the order". The Appellant went on to quote from the texts, Mayson, F rench a n d Ryan o n Company Law and JPralraers Co m1oa ny L aw. These texts set out· the purpose for appointing a provisional liquidator as being to take charge of the company's affairs, maintain the status quo J8 P.298 and prevent one of the parties having an undue advantage over the other, pending the court's decision on the petition. In addition to highlighting the foregoing principle ] the Appellant argued that the court n1ust also consider th e following: whether there is a valid and duly authorized winding up application; the degree of urgency and t he balance of convenience; whether public interest dictates that a provisional liquidator be appointed such as where there is need for an independent examination of the state of the accounts of the corporation by someone other than the directors; and whether the affairs of the company have been carried out casually and without due regard to legal requirements so as to leave the court with no confidence that the cornpanyrs affairs would be properly conducted bearing in mind the interests of shareholders. The Appellant argued that it has satisfied all the tests set out in the preceding paragraph because the facts surrounding the matter show that the winding-up petition is premised on a deadlock reached by the shareholder s regarding the membership and management of the company; which deadlock has raged on in the courts J9 P.299 without r esolution for seve n years; a nd, that the company is at risk of being left a shell. In response to the Appellant's arguments, the Respondents initially argued that the application was misconceived b ecause the c ompany s ought to be wound up was not a party to the proceedings. They sought solace in our decision in the case of Gianpietro lVlilanese and others v Paolo .iMfro1raruiola a n d others6 where we h eld, inter alia, as follows: "As we have already said) the application for appointrnent of a provisional liquidator was made w ithin the application to wind up the company while the application Jor joinder was filed five m onths later on 23rd July 2013. Undoubtedly at the time the ex p arte order appointing the p rovisional liquidator was granted on 26th February 2013) the comp any was not party to the proceedings . . . Even when prompted by the court as to whether the application could ride on the proceedings when the cornpany was not a p arty) Mr. Haimbe did not make or refer to the application for joind er". JlO P.300 It was the Respondents ' position that as a consequence of the aforesaid finding we upheld the decision of the court belovv refusing to confirm the appointrnent of a provisional liquidator on the ground that the company sought to be wound up was not a party to the proceedings. The Respondents then explained the effect of section 280 of the Companies Act that the use of the word "may" in the s ection connotes that the powers vested in the court to order the appointment of a provisional liquidator are discretionary. As such, the court must apply the usual principles relating to the exercise of discretionary powers including reasonable justification for sucb appointment. The Respondents drew the courts attention to rule 8(1) of the Companies (Winding-up) Rules and the case of ASIC v Solomon3 in which Tamberlin J held as follows, by way of setting out the principles that govern the appointment of a provisional liquidator: "The court should consider the degree of urgency~ the need established by the applicant) creditor and the balance of convenie nce. The power is a broad one and J 1 :l P.301. circurnstances t»ill vary greatly. Cornrriercial affairs a.re infinitely complex and uarious and £t is inapp ropriate to limit the pouJer by restricting its ex erc ise to fixed categories or cla s s es of cZ:rcurnsta n ce s of fczct". Further, th8.t the court n1ust h ave regard to the tes t laid down by the Co urt of Ap p e al in . E ngla n d in the c a se of The Commissioners for Her .lVIajesty's . Revenue and Customs v Rochdale Drinks Distributo rs Limited6 . This decision: reaffirms the ser iou s n ess of the appointment of a provisional liquid ator in relation t o the affairs of 'the comp any which n1ay be terrninal; the need for t he court to give the decision the most anxious consideration; a n d n e e d for the court to consider wheth er there is a good prima J acie case for the gr a nt of a winding-up order. The Appellant also relied on the C8.se of Olive v Litchf"ield Trading Coo Pty Limited and. another7 which 1n effect r est ates the principles in the c a se of The Commissioners for Her Majesty's Revenue and Cu stoms v Rochdale Drinks Distr ibutors L imited.6 . The Respondents conc luded tl1at the Appellant ha,s not s a tisfied the test for the grant of an order for appointment J12 P.302 of a provisional liquidator because the P etit ion is not properly presented and n either is it likely to succeed. Further, that the dispute between the Appellant and Respondents is not one that ·warrants the dissolution of the company; and that the allegation of depletion of a ssets by the Respondents was a lso untenable in view of the total asset value of the company. The Learned High Court Judge considered the foregoing evidenc e and arguments and referred to the provis ions of section 280 of t he Companies Act and rule 8(1) of the Companies (Winding-up) . Rules, 2004. She then found that the issue for deterrnination was whether the Appellant had shown sufficient grounds to warrant the grant of the order for appointment of provisional liquidator? In considering this . issue, s he made reference to the arguments by counse l and summarized the r elevant principles and considerations for the grant of a n order of appointment of a provisional liquidator. These she s tated thus: 1) Whether the Applicant has establishe d a p rirna facie case fo r the winding-up of the company)· J:U P.303 2) vVhether the Applicant has established a prirna facie case that he/ she or it has the necessary standing to bring the application to wind-up; and 3) Whether the assets of the company will be dissipated in the interirn, period between the filing of the application to UJind-up and the winding-up order being made. She went on to state that a court has wide and complete discretion in such matters and that the grounds upon which an appointment of a provisional liquidator may be made are infinite. Further, that since it is obvious that such an appointment is an intrusion .into the affairs of a company, there must be good reason for granting the order of appointment and preserving the statl.1s quo pending the deterrnination of the winding-up petition. The Learned High Court Judge made reference to the holding in the case of Re 1-JUghfiled Cornu1(Q.odities8 which explains how the courfs discretion in such matters should be exercised. She considered the three tests she had identified by first determining whether the winding-up petition was n1isconceived in view of the fact that the company is not a party to the action. This, she did by considering our J14 P.304 decision in the case of Gianpietro Milanese and found that the decision refusing to grant the order of appointment of a provjsional liquidator in that case was based on the fact that the application was made by way of summons supported ~y an affidavit in an existing rnatter commenced by writ in which the cornpany was not a party. On that basis, she found that the facts in this case and in the Gianp'ietro .lv.lilanese case are distinguishable and the decision does not, therefore, aid the Respondents 1 case. She went on to find that, 111 any event, in this case the company is mentioned in the heading of the originating process and as such the petition is n ot rnisconceived. The Learned High Court Judge then considered the issue whether sufficient grounds had been advanced, that is, had the Appellant made out a good prima facie case for winding-up. She began by reminding herself that at that stage she was not called upon to d etern1ine the m erits or demerits of the main matter but rather to make a cursory p erusal of the process; and assessing whether a good prima facie case had been revealed in the petition, that is to say, a consideration of the chances of success by the Appellant P.305 and whether it has the necessa1y stan ding. She considered this ground initially based on the argument by the Respondents that the petition was likely to fail because there is an application pending before another court for the disn1issal of the petition. This arg~n1en t was quickly dismissed and she proceeded to consider the evidence in the petition which she found revealed that: there is a dispute by the parties in relation to the shareholding in the company, which dispute is pending before another court; and that there is an impasse in the manner in which the affairs of the company are being run, that is to say, the shareholders are unable to work together. She then noted that the Respondents had not filed an answer to the petition and went on to find that the acrimony between the shareholders had a long history as was evident from the matter b efore Chashi J (as he then was) under cause number 2008/HPC/0366. In doing so, she concluded that the Appellant had established a prirna facie case that the winding-up petition is likely to succeed. The Learned High Court J udge then opined that notwithstanding her finding of a pri.mafacie case, she still J15 P.306 required to consider whether the Appellant had established that it has the necessary standing to bring the application for winding-up of the company. In considering this issue she began by stating that a contributory may apply to court for a winding-up order. She took judicial . notice of the dispute between the Appellant and Respondents in respect of the shareholding in the company under cause number 2008/HPC/0366. She then found that where a contributory has filed a petition and there is a dispute u1 terms of his ownership of shares in the company, such contributory does not have the necessary standing to present the petition and any other attendant application. In making the said finding, the Learned High Court Judge relied on the cases of RJN2 Limited and Re Garage Door Associates, She concluded that there is need for the parties to initially have their dispute under cause number 2008/HPC/0366 determined. According to her, if it is found that the Appellant is a shareholder in the company, then it will have the necessary standing to apply to wind up the company. She ended by reiterating that her findings did not mean that the application lacked merit nor that the J17 P.307 Appellant is not a shareholder. She accordingly dismissed the application. The Appellant 1s riled and agitated by the decision of the Learned I-Hgh Court Judge, prompting it to return to this court, once again, for redemption by way of this appeal launched on one ground that the court below misdirected itself on facts and a point of law by: holding that the appellant had no standing to apply for the appointment of a provisional liquidator for the cornpany; and by refusing to appoint a provisional liquidator for the company. Prior to the hearing of the appeal the parties filed heads of argument which they relied upon. They supplemented those heads of argument with viva voce argument. The arguments advanced by Mr. J. Sangvva SC wer e twofold that: the Appellant had provided sufficient material and evidence before the court below for it to find that the Appellant is a shareholder in the company and, as such, has sufficient standing to commence the petition for the winding-up of the company; and, that the Appellant had J18 P .308 satisfied the test warranting the appointment of the provisional liq11idator. In articulating the first aspect of his arguments, Mr. J. Sangwa SC contended that the Learned High Court Judge misdirected herself by relying ori the English cases of RJN2 Limited and . R e Garag e Do({)Jr Associates because the issue before her was different from the issue in the two English cases. The case before her, it was argued, concerned the appointment of a provisional liquidator in accordance with section 280 of the Co m_panies Act whilst the issue in the two English cases was the lawfulness of the petition to wind-up the company presented by contributories pursuant to section 221 of the Corn._panies Act, 1948 (English Act). Further, the final results in the two cases are cornpletely different and do not support the conclusion reached by the court below. The Appellant explained that a petition for winding-up under the . Eng .lish A ct is brought to court by way of section 221(1) whilst in Zambia it is by way of section 271 of the Cornpanies A ct. That there is no provision under the Companies . Act similar to section 221 of the Eng lish A ct P.309 which states as follows: "221 { 1) An application to the court for winding-up of a company shall be by petition presented, subject to the provisions of this section, either by the company or by any creditors (including any contingent or prospective 9reditor or .creditors), contributory or contributories) or by all or any of these parties together or separately: Provided that - (a) A contributory shall not be entitled to present a winding up petition unless (i) Either the nu.m.ber of members is reduced, in. case of a private company) below two} or, in the case of any other company) below (ii) The shares zn respect of which he lS a contributory) or some of thern) either were originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months before the commencernent of the winding JiO P.310 (iv) up) or have devolved on hirn through the death of a former holder)· and (b) A winding up petition shall not, if the ground of the petition is default in delivering the statutory report to the registrar or in holding the statutory meeting be presented by any person except a shareholder, not before the expiration of fourteen days after the last day on which the meeting ought to have been held". On the other hand, section 271 of the Companies Act states as follows; 11271 subject to this section> a company may be wound up by the court on the petition o J - (a) The company (b) Any creditor) or prospective creditor) of the company; (c) A rnember; (d) Any person who ,:s a personal representat,:ve of a deceased member; (e) The trustee in bankruptcy of a bankrupt rnember)· J21 P.311 · (f) Any liqufrialor of the company appointed in a voluntary liquidation)· or (g) The Registrar 2) In the case of a public company or a private company limited by shares) a member shall not be entitled to present a winding-up petition unless his shares) or some of them- (a) Were originally allotted to him (b) Have been held by him) and registered in his name for at least six months)· or (c) Have devolved on him by operation of law 3) The court shall not hear a winding-up petition presented by a contingent or prospective creditor until- a) Such security for costs has been given as the court thinks reasonable)· and b) A prima f acie case for winding-up has been established to the satisfaction of the court 4) Where a company is being wound-up voluntarily) the court shall not make a winding-up order unless it is satisfied that the voluntary winding-up cannot be P.3 12 5) continued with due resp e ct to the interests of the ,, ere 1,tors or mern ers . d . b The view taken by Mr. J. Sangwa SC was that s ection 271 of the Companies Act is not the same as section 221 of the FJnglish Act and the former .(!ct has no provision re lating to contributories and n either 1s the word contributory defined. Further, the appJ.ications made in the two English cases that the Learned High Court Judge relied upon were applications made by contributories who under section 212 of the English Act are liable, in the event of a company being wound-up, to contribute to the asse ts of the compa ny. It is for t his reason, it was argued) that contributories have a right to petition for winding-up of a company under the English .i!ct, whilst under section 271 of the Companies Act the list of persons eligible to petition for the winding-up of a company does not include contributories. Counsel proceeded to address us on the finding by the Learne d }Iigh Court Judge that there is a dispute raging between the parties under cause number 2008/HPC/366 as to whether the Appellant is a shareholder in the J23 P.313 company. It was contended that the fact, in and of itself, that the Appellant is registered as a member of the company at PACRA and holds share certificates 1s sufficient to prove its mernbership to the company. Further, that this is in line with the _provisions of section 55 of the <Conm_panies ,Act which sets out t he effect of a register of members. In concluding arguments, the Appellant urged us to allow the appeal. The arguments advanced by Mr. C. Sianondo, counsel for the Respondent, can best be summarized as follows: the Learned High Court Judge was on firm ground when she refused to grant the order sought in view of the fact that the merits of the substantive matter of the winding-up petition are blernished by the action before . Nkonde J which is a dispute in the shareholding; the issue of appointment of a provisional liquidator, as the authorities reveal, 1s a most serious matter in view of its consequences. The court's discretion rnust therefore, be exercised sparingly; that in our earlier decision under appeal No.141 of 2015, in which the parties are the same and emanating from a J24 P.314 ruling under cause nurnber 2008/IIPC/366 we confirmed an injunction by the lower court restraining the Appellant and others frorn holding out as shareholders in the company; that this justifies the finding of the court below that _the appellant had no standing. We were urged to dismiss the appeal. In reply 1\/Ir. ,J. Sangwa SC urged us to reverse our decision in appeal number 141 of 2015 because it contravenes the provisions of section 55 of the Co mpanies Act. He also argued thatJ in any event, since the judgment was delivered after the Appellant had filed the petition for winding-up, it did not affect the Appellant's capacity as a shareholder to lodge the petition and continue with its prosecution. We are indebted to counsel for the indust ry and thoroughness in the preparation and presentation of the arguments before us. These arguments have been taken into consideration along with the record and supplementary record of appeal in arriving at the decision in the latter part of this judgment J25 P.315 1'hc one ground of appeal that falls for determination questions the holding by the Learned IIigh Court Judge that the Appellant has no standing in relation to the application for appointment of a provisional liquidator and her refusal to ord~r the appointment of the said provisional liquidator. It is clear from the record of appeal that counsel for the parties articulated the principles relating to the appointment of a provisional liquidator very well both in this court and the court below. Reference was made to the provisions of section 280 of the Co rnpanies A ct and Rule 8( 1) of the Co mpanies (i!Vinding◄up) R ules which set out the test to be considered by a court. This test, which was ernbraced by the Learned High Court Judge, is that the Applicant must show sufficient grounds or cause to warrant the appointment. Further, the English case law relied upon by counsel (which we are persuaded b y ) reveals that such sufficient grounds or cause are infinite and are purely in the discretion of the court which is in keeping with Rule 8(2) 1) of the Cornpanies (Vlflirnd i ng-up) R ules. The grounds include an applicant demonstrating, prima J26 facie, that a case has been established for the winding-up of the company. In other words, the prospects of success of the winding-up petition are high. \1/hile, the exercise of the court's discretion must be vvith caution in view of the effect that the appointment of a provisional liquida.tor has on the conduct of the affairs of the company. Having applied the test we have set out in the preceding paragraph, the Learned High Court Judge found that the Appellant had established a prima facie case for the winding-up of the company. She based her finding on the fact that there is a disp11te raging in the company between the parties as shareholders, which has resulted in what she termed, "a deadlock in the manner in which the affairs of the company are being managed". The facts as presented both in support and opposition of the application for the appointment of a provisional liquidator, do indeed reveal that there is a dispute by the parties in the management of the affairs of the company. This, as the Respondents have argued, was also revealed to us in an earlier appeal number 141 of 2015. We cannot, therefore, fault the Learned High Court Judge for arriving J27 P.317 a.t that decision. The bone of cont~ntion however, Jics in the fact that, she ·went ahead and applied a second test of determining whether the Appella nt had established a pn:ma facie case that it has t he necessary standing to bring the application for winding-up. She referred to this test as the "cardinal consideration" which we understand to mean the 'fundamental" or 1primary 11 consideration. Her conclusion was that the Appellant bad not satisfied the latter test because it had not proved to her satisfaction that it is a shareholder in the company. Once again she based her finding on the dispute between the parties with respect to the shareholding in the company and relied upon the cases of RJN2 Limited and . Re-Garage Door Associates. This has, of course, vexed the Appellant whose contention is that the circumstance in this case are different from the circumstances in those two cases and the courf s equating the Appellant to a contributory was a misdirection. It has also been argued that there was sufficient evidence presented to the court to prove that the Appellant is a shareholder in the company. J28 P.318 We have h a d opportunity to revisit t he two English cases of RJJV2 Limited and . Re G (OJ.rage D oor _Associates in the ligh t of the Learne d High Court Judge 1s findings and forceful argument by Mr. J . Sangwa S C. In the case of RJ1V2 Limited the Petitioner was allocated sha res by way of a n allotment signed by a director of the company. At the time of the allotment she did not pay for the said shares and no s hare certifica te was issued to her. When the comp a ny was incorporate d it was agreed that the Petitioner would not be allotted a n y sha res but w as nontheless al.lotted shares erroneously. Subsequently, the Petitioner file d a pet ition t o wind-up t he con1pany on the grounds tha t one of the shareholde rs was managing the c ompany to the petitioner 1s det riment and that of the other sha reholders. Prior to the hea ring of the petition a p relim ina ry issue was rais e d as to whether an allottee of shares who was not entered in the r egister of members has locus standi to present a petition. This is the que stion that fell for determination by the court and on whose h olding the Learned High Cou rt Judge based her d ecision. J7.9 P.319 On the other hand, the case of Re Garage Door Associa..tes Limited concerned an application for winding up presented by a contributory for the deterrnination, among other things, of a dispute concerning the ownership of shares in a company under the English Act. The court held that the deterrr1ination of a dispute concerning shares cannot of itself constitute sufficient groun d to petition the winding-up of a company unless there is an alternative claim. To the extent that the applications that were before the courts in the two cases demonstrated that the cases did not discuss the instances where an order for appointment of provisional liquidator may be rnade but rather detern1ined locus standi of an allottee of shares in commencing a petition for winding-up and whether a dispute over shares in a company is sufficient ground upon which to present a petition, they were not relevant to the determination of the issue before the court below. We are also in agreement with the argument advanced by counsel for the Appellant that the two English cases deal with presentation of petitions under English Act, and no P .320 English CfPulfO,]p<O!..nie:s Act 1980 which is different from section 271 of the Companies Aclt. The distinction, as counsel argued, includes the fact that whereas under section 221 of the English A ct)) there is provision for a petition to be presented by a contributory, there is no such provision under section 271 of the Companies Act. Counsel went as far as arguing that the \. Vord contributory has no place in our section 271 or indeed the Com.panies Act. Whilst it is true that section 271 of the Companies Act which sets out the category of persons and entities who can petition the winding-up of the cornpany does not mention a contributory, the Companies (Winding-up) Rules under Rule 8(1) do refer to the word 11contributory" and indeed lists a contributory as one of the persons eligible to petition for the dissolution of a company. Further, there is reference to the word "contribution" in sections 262, 265(2L 266(1) and (2) and 268( 1) in the Cornpanies Act which introduces the concept of a contributory in the Com_panies Act. To give but one J31 P.321 exarnple, section 262 of the ComJ:tranies Act states as follows: 11For the purposes of this part, a reference to a member of a company includes, unless the context otherwise requLresj a reference to a person claiming or alleged to be liable to contribute to the assets of the cornpany in winding-up, for purposes of a.ny proceedings for determining, and of all proceedings prior to the final determination of, the persons who are so liable (including the presentation of a tuinding-up petitionF'. (The underlining is ours for emphasis only). The foregoing provision and other provisions that make r eference to the vvord contribute, clearly indicate that the concept of a contributory is not alien to the Companies Act. We, therefore, do not accept the argument by counsel for the Appellant that the word contributory has no place in the Comp,01.nies Act and the Learned High Court Judge did not, to this extent, misdirect herself when she relied on authorities which referred to contributories. It is also our position that she did not misdirect herself when she P.322 refer red to the Appellant as a contributory in view of the definition ascribed to the word by the iearned author Andrew R . Keay in the text Iv.le Pherson's . La:iv of Compan.y Liquidation. Andrew R. Keay states at pages 515 to 516 a s follo·ws: "Cons idered in isolation) the definition in section 79 of a contributory as every person liable to contribute to the assets of a company in the event of its b eing wound UJ/1 is sornewhat misleading: for it seems to suggest that persons are contributories if - and only if - they are) on winding up, actually bound to make payments into the funds of the company. But if this were the true criterion it would mean that a debtor to the company was) while a fully paid up shareholder was not, a contributory. Infact, the position is precis e ly the reuerse: a holder of fully paid up shares is regarded as a contributory, and this was settled by law at an early date. Nor has there ever been any doubt about the position of a mere debtor of the company: P.323 "I-le is bound to pay money, which moneys when paid) will he part of the assets of the company, and in that sense he is liable to contribute to the assets) but that does not make hirn a contributory _ within the meaning of the Act''. In short, the lau; recognizes a definite distinction between, on the one hand, the status of contributory) and on the other, liability to contribute to the assets. The former is virtually synonymous with membership of the company and may, it seems, exist prior to winding-up: whereas the latter, though incidental to that status, is a liability which becomes enforceable, if at all only when the 1.,uinding-up commences". Having clarified the position on what constitutes a contributory, we now return to the issue at hand. The Learned High Court Judge, as we have said, properly identified the issues for consideration in detennining -whether or not to appoint a provisional liquidator. Her findings in this regard have been accepted by the Appellant because they are not the subject of this appeal. What lies at the heart of the appeal is the Learned High Court J34 P .324 Judges 1 finding that the Appellant has no standing in view of the dispute in the matter before Chashi J , under cause number 2008 / HPC/ 366 in which the Appellant's alleged shareholding in the company has been con tested and her refu~al to appoint the provisional liquidator. We have carefully considered the Learned High Court Judges' decision and understand it to be a cautionary measure on her part that it is not safe at this point to grant the order for appointment of a provisional liquidator in view of the challenge raised against the Appellant's status as a shareholder. This was the correct decision to make in view of the evidence presented before her and the judicial notice she took of the dispute under cause number 2008/HPC/366 because the fate of the substantive matter before her,· being the petition for winding--up, is heavily dependent upon the outcome of the matter under cause number 2008/HPC/366. That is to s ay, if under that cause, it is found that the Appellant is not a shareholder, the petition as a whole will collapse on account of want of locus standi by the Appellant. P.32S The sound decision by the Lea rned :High Court Judge , which was pursuant to the discretionary powers vested in her, is enhanced by the frict that it eliminates the real possibility of conflicting decisions fron1 her court and that of Chashi J; and the peril t h at would hav_e befalle n the c ompany, if she a llowed the a pplica tion and later C h a s.hi J, found that the Appellant is not a shareholde r. 'I'hese a re prirna ry con cerns that t his and other courfs guard against. H er decision is e n hanced by the fact that this court 1n appeal numbe r 141 of 2015, confirmed the order of injunction granted aga inst the Appella nt and others frorn, among oth er things, purporting to act a s shareholders in the company. The wording of the order ends by restraining the Appellant and others from " ... taking a ny course of action of any nature whatsoever as s hareholder of ZPC until final determination of the matter ... 11 • This decision, in our considered view, essen t ially p u ts an end to the Appellant and others 1 asserting their rights as shareholders in the compa ny until dispos al of the rnatter in the court b elow. These rights include the Appellant's right to b r ing a petition J3G P.326 for windin g-up of the company 1n its c apacity as a shareholder. In arriving at the decision we have made in the preceding p a ragraph we have considered Mr. J. Sangwa SC's request that we revisit our decision under a ppe a l number 141 of 2015 on the grounds that it contra venes the provisions of s ection 55 of t h e Companies Act. We find the request unacce ptable because if it is a c t e d upon it would underrnine judicial precedent upon which the very foundation of our adjudicative functions are base d. It also begs the question: how many time s wo-c.:i.ld this c ourt revisit its decisions if it entertained s uch applications based primarily on the fact that the precedent sought to be overturned is not in keeping with argurnents advance d by counsel on behalf of his client? Whilst we have in the past revisited our decisions and will, no doubt do so in future, this is not an appropriate case for us to r evisit that particular d e cision. We a re also of the firm view that there was wisdom in the Learne d High Court Judge staying clea r of determining the issue of shareholding in the company because the issue P.327 is before another court. For this reason v-.re have also not deterrnined the issue despite counsel urging us to do so by way of the arguments presented. There was, therefore, no misdirection on the part of the Learned High Court ,Judge. In vie'01 of the findings we have rnade in the preceding paragraphs, the appeal fails and we disrniss it with costs, to be taxed in default of agreement. In doing so, we uphold the ruling of the Learned High Court Judge in its entirety . . .................. ~ ... : .......... . A. M. WOOD SUPREME COURT JUDGE lVl. MALILA~ SC SUPREME COURT JUDGE ,...,,.,,,,,,. / / ,.,.......-----. !,; ' ( . . . . . . . . . .... I· ..... ✓• .•.• ·/ .• ..•• ••••••• · N.~. M)VTUN. A SUPREME ctouR. T JUDGE { \