Bindura Nickel Corporation (BNC), a mining company based in Mashonaland Central province, lost over US$66 000 through an alleged well-orchestrated fraudulent scam by one of its majority shareholders and executive director.
Through its lawyers, Mawere Sibanda Commercial Lawyers, the mining giant recently filed a court application at the High Court in Harare seeking leave to issue summons against Yat Hoi Ning, its majority shareholder, believed to be based in Hong Kong and its executive director, Yim Chiu Kwan, who is believed to be based in Canada.
According to the court papers gleaned by the Zimbabwe Independent, Ning was a major shareholder in ASA Resource Group Plc, which is an indirect majority shareholder of the BNC. And, in that position Ning is said to have been directing the policy and operational activities of the mining firm in Zimbabwe, whereas his co-respondent in the matter, Kwan was an executive director of the company having been appointed by Ning.
In her founding affidavit, BNC’s company lawyer Abigail Mbuyisa said some time in February 2017 Ning and Kwan allegedly misrepresented to BNC that there was need to purchase some bags for use by the company and that the said bags had already been sourced from a Chinese company called Qiaoyu Limited, which company apparently later turned out to be owned and controlled by the two men.
“The first and second respondents (Yat Hoi Ning and Yim Chiu Kwan) fraudulently misrepresented to the applicant (BNC) that an amount of US$65 559 had to be paid to Qiaoyu Limited, a certain Chinese company for the purchase of bags,” Mbuyisa said.
“Acting on the misrepresentation by the respondents, the applicant made the payment to Qiaoyu Ltd on March 3, 2017. Pursuant to the payment aforesaid, applicant discovered that first and second respondents controlled Qiaoyu Limited and were using it as a conduit to perpetrate the fraud.”
Mbuyisa also said through investigations, her company further discovered that no orders for the bags were ever made and neither was there any delivery of the same to BNC.
“Consequently, due to the fraudulent misrepresentation by the first and second respondents, the applicant was prejudiced in the sum of US$65 559 being the amount it paid for the purchase of the bags to Qiaoyu Ltd. It is the applicant’s intention to institute legal proceedings against the first and second respondents jointly and severally for the recovery of the US$65 559 together with interest thereon at the rate of 5% per annum calculated from the date of summons to the date of payment in full,” Mbuyisa said adding, “The respondents are jointly and severally liable to the applicant … despite demand the first and second respondents have failed and/or neglected to discharge their indebtedness to the applicant.”
According to the Zimbabwean law, and particularly in terms of Order 6 Rule 44(1) of the High Court Rules, 1971, where summons are to be served outside of Zimbabwe, the applicant in the matter must first seek leave from the court and state the matter of service which the court should authorise.
Mbuyisa said because of the law, BNC has now sought to approach the court for leave to issue summons against the two men now based abroad.
“I pray that a registered bailiff in Hong Kong be authorised to serve the summons on first respondent and further that another professional process server in Canada be authorised to serve the summons on the second respondent,” she said.
According to the court papers, Ning’s current address is given as Flat A, 46/F Tower 9, 68 Bel-Air Peak Avenue, Island South, Pokfulam, Hong Kong, whereas Kwan’s current address is given as 190 Harding, Boulevard W, Richmond Hill, Ontario, 14C0J9, Canada. The matter is pending and is yet to be set down for hearing.