By Staff Reporter
LUSAKA lawyer Lewis Mosho has applied to be joined to a matter where Dr Fred M’membe has petitioned the Constitutional Court, in the interim seeking an order staying the decision of the High Court at Kitwe that quashed the ruling of the Judicial Complaints Commission (JCC) which found judge Sunday Nkonde with a prima facie case, pending the hearing and determination of the petition.
In his petition, Dr M’membe, a journalist, legal practitioner and shareholder of Post newspapers Limited, who cited judge Nkonde and the Attorney General, stated that he complained against the judge before the JCC for gross misconduct.
Dr M’membe stated that the JCC found judge Nkonde with a case to answer but he obtained a stay in the Kitwe High Court and later the ruling by the JCC was quashed in a consent entered into by the judge and the Attorney General.
According to an affidavit is support of exparte summons for an order for joinder filed in the Constitutional Court today, Mosho who, through a questionable consent judgment signed by judge Nkonde was confirmed liquidator of Post Newspapers Limited, is seeking that the Constitutional Court joins the newspaper to the matter as 3rd respondent.
In the suit filed by Dr M’membe there are only two respondents, namely Abel Mboozi and others, and Zambia Revenue Authority.
“…That I am the Liquidator of the Post Newspapers Limited (in liquidation), the intended 3rd Respondent herein, by virtue of which I have capacity and competence to swear this my Affidavit from information within my personal knowledge and from documents in my possession. That the intended 3rd Respondent was declared…,” stated Mosho.
“That by virtue of the foregoing, the intended 3rd Respondent is an interested party in the suit under Cause 2018/CCZ/001 and is likely to be affected by the result of the action under the afore mentioned cause and should therefore be joined to the action so that it can have an opportunity to oppose or challenge the Petition as well as the application to stay the consent judgment under Cause 2016/HPC/0518 which has been scheduled for hearing inter partes before this Honourable Court on 1st February 2018.”
A week ago, Dr M’membe sued Mboozi and others together with the Zambia Revenue Authority in the High Court, saying the consent order of January 10 that declared the company insolvent and wound up be set aside for being illegal and obtained by fraud.
He also asked the court to stay execution of the consent order which judge Sunday Nkonde signed declaring Post Newspapers Limited insolvent.
On Wednesday, the defendants lawyer Bonaventure Mutale, who was appointed by liquidator Lewis Mosho, filed an application asking the court to dismiss Dr M’membe’s action on a point of law.
He argued that Dr M’membe, who was the remaining plaintiff on record after the liquidator filed a notice of discontinue on the record, did not have sufficient interest in the winding up of the newspaper, whose liabilities exceeded the value of its assets.
Mutale submitted that Dr M’membe was aware of the winding up proceedings of the Post but did not at any time oppose or challenge them.
And another lawyer for the defendants, Kennedy Mambwe, filed an affidavit in support of notice of motion to raise a preliminary issue on point of law.
He stated that the matter before judge Newa and the petition Dr M’membe filed in the Constitutional Court were similar in nature.
In the Constitutional Court, Dr M’membe was seeking a declaration, among others, that the orders made in the High Court at Kitwe quashing the Judicial Complaints Commission ruling that found judge Nkonde with a case to answer, were a nullity on account of want of jurisdiction and that the consent judgment dated January 10 which declared the Post insolvent and wound up was null and void.
Mambwe submitted that since the two matters were similar, the actions were an abuse of the court process in so far as they relate to the stay and setting aside of the consent judgment which judge Nkonde signed.
Judge Sharon Newa has since reserved ruling on the matter to a later date.