Baoquan Huang AND Baoming Huang AND Dalian Tiancheng Mineral Resources (Pvt) LTD V Zhiquang GAO AND Guibiao Zhang AND Anesu Kondo AND THE Registrar OF Companies N.O AND Minerals Marketing Corporation OF Zimbabwe (MMCZ) AND THE Commissioner General Zimbabwe Republic Police

### Preamble
1
HH 495-22
HC 6026/21
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BAOQUAN HUANG

and

BAOMING HUANG

and

DALIAN TIANCHENG MINERAL RESOURCES (PVT) LTD

Versus

ZHIQUANG GAO

and

GUIBIAO ZHANG

and

ANESU KONDO

and

THE REGISTRAR OF COMPANIES N.O

and

MINERALS MARKETING CORPORATION OF ZIMBABWE (MMCZ)

and

THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE

HIGH COURT OF ZIMBABWE

NDLOVU J

HARARE, 31 May and 20 July 2022

COURT APPLICATION FOR CONSOLIDATION

Mr Tobana and Mr Marwa for the applicants

Ms Rusinahama, Mr Chimhofu and Ms Y. Yu for the 1st & 2nd Respondents

No appearances for 3rd – 6th Respondents

NDLOVU J  This is a court application in which the Applicants are seeking an order that the following matters: HC 2480/20, HC 2942/20, HC 3004/21, HC 2896/21 and HC 2875/20 be consolidated. That application besides exciting a counter-application has since been concluded by consent and resulted in the consolidation of matters HC 2480/20 and HC 2942/20, as the other matters have fallen by the way-side for one reason or another. Zhiqiang Gao and GUIBIAO ZHANG have sought the consolidation of HC 2480/20, HC 2942/20 and HC 4303/21 in a counter application and that counter application is opposed.

NATURE OF THE MATTERS

ZHIQIANG GAO In HC 2480/20 is seeking that he be declared 66% shareholder in DALIAN TIACHENG MINERAL RESOURCES PRIVATE LIMITED. (“the Company”).

In HC 2942/20 – BAOQUAN HUANG and BAOMING HUANG are seeking a cancellation of an amendment of the company’s CR 14 by ZHIQIANG GAO and GUIBIAO ZHANG

In HC 4303/21 – the company and ZHIQIANG GAO applied for and were granted an interim order against BAOQUAN HUANG in the following terms, and that provisional order is extant.

“INTERIM RELIEF GRANTED

That pending determination of this matter, the Applicants are granted the following relief:-

Respondent be and is hereby ordered not to dissipate the 1st Applicant’s assets namely transformer, mining equipment and trucks.

Leave be and is hereby granted to 2nd Applicant to enlist the services of guards and to install them at the 1st applicant’s mine generally known as Gudubu 1,2 and 3 with registration numbers 40855BM and 40856 to ensure the safety of the assets of 1st Applicant pending determination of this matter.

Respondent be and is hereby ordered not to prevent 2nd Applicant from accessing the 1st Applicant’s mine for purposes of enforcing this order.”

The final order sought in HC 4303/21 is:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The provisional order be and is hereby confirmed.

The Respondent be and is hereby ordered permanently not to transfer any of the 1st Applicant’s assets, equipment and not to interfere in any manner whatsoever with any of 1st Applicant’s property.

Respondent pays costs of suit on an attorney-client scale.”

Clearly there is a Boardroom combat between ZHIQIANG GAO and GUIBIAO ZHANG on one hand, BAOQUAN HUANG and BAOMING HUANG on the other over the shareholding and directorship of the company hence the consolidation of HC 2480/20 and HC 2942/20.

CONSOLIDATION OF MATTERS

Consolidation of applications is not provided for in the High Court Rules, 2021. Consolidation of applications has therefore been done over years by way of practice and borrowing from the consolidation of actions provisions in the Rules of this court, which provide as follows in R 34;

“34. Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon

The said actions shall proceed as one action

……………………..

The court may make any order which it considers fit with regard to the further procedure ……..”

From the Rule it is clear that for an application for the consolidation of matters to succeed, it must appear to the court convenient to do so. The overriding factor therefore in such an application is that of convenience. A court may consolidate matters where the cases sought to be consolidated involve:

The same parties.

The issues to be determined are common or are related.

The cases are pending in one court.

The parties have causes of action that can be joined in a single action.

Consolidation must be ordered unless it is difficult to effect. The onus is on the party moving for consolidation to justify such a cause of action. The Applicant must show that the interests of justice demand that a joint trial be held. Ultimately the court must exercise its discretion to grant or refuse the application.

African Holdings (Pvt) Ltd & others v Kashangura & Another HH 357/18.

ZHIAQIANG GAO AND GUIBIAO ZHANG’S CASE

The counter Applicants have argued that not to consolidate the matters as prayed for will lead to conflicting judgments. They argue that if in the other matter BAOQUAN HUANG is included in the CR14 of the company yet another judge permanently interdicts him in HC 4303/21, the two orders would be incompatible. The applicants have further argued that it is convenient to consolidate the matters because the matters before the court cannot be adequately disposed of if the interdict application is excluded. Should the judgments conflict, it is the court that will be burdened by further litigation between the parties.

It has been the argument of ZHIAQIANG GAO and GUIBIAO ZHANG

that in resolving the issues in the interdict matter, the court must relate to the issues of shareholding and directorship of the company which are issues being dealt with under the consolidated HC 2480/20 and HC 2942/20 matters in respect of BOQUAN HUANG who claims to be deriving power to control the assets of the company   from his alleged shareholding and directorship of the company. In their view no prejudice will visit the HUANG brothers if the matters are consolidated.

BAOQUAN AND BAOMING HUANG’S CASE

The HUANG brothers have counter argued and stated that HC 4303/21 cannot be consolidated with the other 2 matters because the matters deal with different issues, involve different parties, and it is not convenient for the court to do so. They argued that HC 4303/21 has no direct relationship with the other 2 matters. It is part of their argument that the parties in HC 4303/21 are different from those in the other 2 matters in that GUIBIAO ZHANG, and  BAOMING HUANG in particular, are not parties to the proceedings in HC 4303/21. In their view, the counter Applicants have not met the requirements for consolidation.

The HUANG brothers have argued and stated that while HC 2942/20 and HC 2480/20 deal with the control and management of the company, the company and ZHIANG GAO in HC 4303/21 obtained a provisional order in default wherein they were interdicting BAOQUAN HUANG from dissipating the company’s assets. The legal issues therefore in HC 4303/21 are different from those involved in the other 2 matters now consolidated. The facts and the law involved in these matters are simply different in their view, consolidation will actually bring more confusion in the resolution of the matters.

The HUANG brothers have alleged and told the court that the Applicants in HC 4303/21 deliberately served the application in HC 4303/21 at a wrong address in order to side-treck the Respondent therein from defending himself. When the Provisional Order in HC 4303/21 was granted the issue of directorship and shareholding had not been determined. Consolidating these matters therefore will be inconvenient to the HUANG brothers. There is nothing stopping this court to determine HC 4303/21 separately. On prejudice, they argue and say consolidating the matters will cause prejudice to them in that the confirmation or discharge of the provisional order will not be determined in the near future owing to the glaring and common cause disputes of facts resident in HC 2480/20 and HC 2942/20 with the possibility that the matter in the consolidated HC 2942/20 and HC 2480/20 will either be referred to trial or dismissed altogether for the parties to proceed by way of action. Either way, a consolidation will delay the determination of HC 4303/21 and the Applicants therein will continue to enjoy a provisional order they obtained in a sinister way.

RESOLUTION

The first 2 matters (HC 2480/20 and HC 2942/20) which have since been consolidated are seeking declarations by this court as to who are the legitimate shareholders and directors of the company and their respective shareholding. On the other hand HC 4303/21 is waiting at the bus stop of finalisation either by the discharging of the provisional order or confirmation of the same. The common denominator in all this is the company and its assets. HC 4303/21 is an anti-dissipation interdict. I agree with Mr Tabana that what is sought on the return day in HC 4303/21 has nothing to do with the shareholding or directorship in the company. It all has to do with whether or not BAOQUAN HUANG is dissipating the company’s assets. That question does not involve BAOMING HUANG. The legal questions involved are different. If the matters were consolidated the issues in HC 4303/21 will only be parked in the matter waiting to be resolved by default when the issues in HC 2480/20 and HC 2942/20 are resolved. In my view, to consolidate these matters will prejudice those who are not parties to HC 4303/21 and equally those who are parties thereto who may want issues in HC 4303/21 resolved expeditiously. It appears to me that, convenience in the circumstances of these matters is better served by either parking HC 4303/21 awaiting the resolution of the consolidated HC 2480/20 and HC 2942/20 or a disposal of HC 4303/21 before or while the consolidated matter is progressing in its own direction and pace.

For the above reasons I dismiss the counter application and order as follows:

IT IS HEREBY ORDERED THAT:

The application for consolidation of matters HC 2942/20 and HC 2480/20 be and is hereby granted by consent.

The 2 (two) matters are to be re-enrolled as one matter.

The counter application for consolidation of matters HC 2942/20, HC 2480/20 and HC 4303/21 be and is hereby dismissed.

There shall be no order as to costs

Tobana and Marwa legal practitioners, Applicants’ legal practitioners

Rusinahama-Rabvukwa, 1st and 2nd Respondents’ legal practitioners