THE High Court has granted Bindura Nickel Corporation (BNC) leave to issue summons outside the country against one of its majority shareholders and an executive director who are accused of having swindled the mining company over US$65 000 through a well-orchestrated fraudulent scam.
The order was recently issued by Justice Erica Ndewere against Yat Hoi Ning, cited as BNC’s majority shareholder, believed to be based in Hong Kong and its executive director, Yim Chiu Kwan who is believed to be based in Canada.
“The applicant (Bindura Nickel Corporation) be and is hereby granted leave to serve summons on the first respondent (Yat Hoi Ning) through a registered bailiff in Hong Kong (and) the applicant be and is hereby granted leave to serve summons on the second respondent (Yim Chiu Kwan) through a professional process server in Canada,” Justice Ndewere said in an order issued on September 29, 2020.
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.
BNC is a subsidiary of Zimnick Limited, operated and majority-owned by Mwana Africa plc, an African multi-national mining company based in Johannesburg, South Africa, whose local operating subsidiary is Trojan Nickel Mine Limited.
Through its lawyers, MawereSibanda Commercial Lawyers, the mining giant had filed a court application at the High Court seeking leave to issue summons against the two men who apparently are not living in the country but in Hong Kong and Canada respectively.
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 for the purchasing of some bags for the 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 fraudulently misrepresented to the applicant (Bindura Nickel Corporation) 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 Limited 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 Limited. 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,” she said.