March 23, 2017
EEP want Judge Sunday Nkonde removed from Post liquidation case
The Economic and Equity Party (EEP) has written to Chief Justice Irene Mambilima , urging her to intervene in the case of The Post newspaper by appointing another judge other than Justice Nkonde as he is perceived to be biased in the way he has handled the case so far.
Party leader Chilufya Tayali states that the EEP does not agree with how Judge Nkonde ordered for the liquidation of the Post, on the petition of 5 workers who alleged that, the company was owing them, without hearing the other side.
Tayali says in the letter that Judge Nkonde went further to appoint Mosho as provisional liquidator, again, without giving chance to the Company to make a submission.
He accuses Judge Nkonde of being on a mission to finish what he had started in 2011 under former President Rupiah Banda.
He hopes Justice Mambilima will come in to redress the matter, explaining that doing so would ensure that the case follows the rule of natural justice which stipulates that everyone has a right to a fair hearing.
Meanwhile, Tayali has asked all Post workers who would want to see justice in this matter to be part of a Whatsapp group he has created.
Below is the letter as sent to the Chief Justice this morning:
The Chief Justice of the Republic of Zambia
Supreme Court Building, Longacres
LUSAKA
22nd March 2017
Your Ladyship,
RE: PERCEIVED BIAS, DEFEATING NATURAL JUSTICE IN THE CASE OF THE POST BEFORE JUSTICE SUNDAY NKONDE
The above matter refers.
Economic and Equity Party (EEP) is a registered political party that espouses to form a credible government and restore human dignity by creating opportunities and a just society.
Your Ladyship, the undersigned has great respect for your impeccable leadership and objectivity in a number of instances and it is with this confidence that we sort of writing to you on the perceived bias in the cases of The Post Newspaper Limited before Justice Nkonde.
We feel that, the continuous handling of the case as mentioned above, is defeating rules of natural justice which stipulates that everyone has a right to a fair hearing (audi alteram partem, or “hear the other side”).
Your Ladyship, it is in the public domain and we are on firm knowledge that back in 2011, Justice Nkonde’ attempted to render The Post Newspapers Limited insolvent in a very hostile litigation just before the general elections.
Justice Nkonde purported to have been engaged by Finance Bank, however, a perusal of court documents and inquiries have revealed that, Mr. Nkonde, SC, as he then was, did not have any instructions to sue on behalf of Finance Bank. In this regard, it seems to suggest that Justice Sunday Nkonde could have had other motives other than the pursuit of justice.
With this background, we find it odd that Justice Nkonde has gone ahead to handle the cases of the same company he once wanted to closed down through what seems to be a frivolous litigation.
Your Ladyship, we are in disbelief by the perceived bias in the case currently before Justice Nkonde relating to The Post Newspaper, because, a perusal of court records shows that a Petition to wind up the Post was filed on 1st November and shockingly on the same day Justice Nkonde appointed Mr. Lewis Mosho as Provisional Liquidator of Post Newspapers Limited Ex-Parte under cause number 2016/HPC/0518.
We have sought legal advice and have been advised that Judge Nkonde appointed Mr. Mosho as Provisional Liquidator Ex-parte in a matter where the petitioners did not comply with the Statutory 21 day Notice period which by law is required before a Winding Up Petition can be filed. The said notice period was never communicated to the Post Newspaper’s Directors and shareholders.
Your Ladyship, it has also occurred to our bewilderment that Mr. Mosho has in recent times been removed from the office of Receiver. This happened in the case of Platinum Gold Equity Limited, Kitwe Development Limited and Optima Business Consultants Limited and Development Bank of Zambia in cause 2015 in 2015/HPC/0097 and by an Order of Court, Mr. Mosho was removed as Receiver of the said private companies due to some misgivings in the matter.
It is a fact that the office of receiver is one of high integrity and trust, but, from our point of view Mr. Mosho seems to be failing below the bar.
It has also been brought to our attention that Mr. Mosho is inappropriately tinkling with The Post Newspaper assets which makes us doubt, that he is acting in the interest of justice as a provisional liquidator. The evidence of this can be availed to Your Ladyship should your office need it, if we are given an order to access the properties in question or by your physical inspection.
It has been brought to our attention that Judge Sunday Nkonde, has been notified about the conducts of Mr. Mosho but, strangely, the judge has not done anything to ensure that justice is not only done but seen to be done in this case.
More strangely, a further perusal of Court records at the High Court again shows that on 2nd November, 2016, Messrs Nchito & Nchito were appointed by Post Newspapers Limited to challenge the winding up and the appointment of Mr. Mosho. Messrs Nchito & Nchito promptly applied to set aside the winding up for being ill conceived and applied to stay the appointment of Mr. Mosho as provisional liquidator citing, among other things, the fact that the winding up Petition was premature and Mr. Mosho was not qualified to be liquidator of a company in Zambia for at least the next 3 years. To date, this application has never been heard or given a date of hearing by Judge Sunday Nkonde.
Further, Judge Nkonde then allowed Messrs Lewis Nathan Advocates (Mr Lewis Mosho’s Law Practice) and Messrs Palan & George Advocates, at the instance of Mr. Mosho, to file Notices of Change of Advocates on or about 3rd November, 2016 making them Advocates for the Post Newspapers in place of Messrs Nchito & Nchito in representing the Post Newspapers Limited in challenging the Liquidation. To our factual knowledge, Mr. Mosho remains the principal partner in Messrs. Lewis Nathan Advocates. How then is Mr. Mosho’s firm expected to make such challenge before Judge Sunday Nkonde?
Court records again show that on 3rd November 2016 Judge Sunday Nkonde asked Messrs Nchito & Nchito to file an application to challenge the Notices of Change of Advocates. This again according to court records was filed by Messrs Nchito and Nchito on 4th November, 2016. This Application has to date never been heard by Judge Sunday Nkonde.
Again Nchito and Nchito filed a Notice for and on behalf of Fred Mmembe who is the majority shareholder of the Post Newspaper Limited, to be heard in the Petition under Rule 10 of the Winding Up Rules, 2004. The Notice was filed on 4th November, 2016 together with an application by Mr. M’membe now as an interested party, to stay the appointment of Mr. Mosho as provisional liquidator and set aside the winding up. Again to date this application too has not been heard to our surprise by Judge Sunday Nkonde despite its urgency.
From the Court records and various searches, it is clear that Judge Sunday Nkonde has neither granted nor heard any applications made by lawyers representing the shareholders of the Post Newspapers but has instead heard and determined many applications by the parties in good books with Mr. Mosho; which applications have been severally granted ex-parte including very shockingly over the weekend.
It has also come to our attention that Investrust Bank PLC who have been a secured creditor acting to preserve their interests and the assets of the company appointed a Receiver by way of a deed which has been registered at PACRA. However, and to our shock and dismay, Judge Sunday Nkonde granted a Stay of the Appointment of Receiver when that issue or matter was never before his Court as such appointment was made outside the realms of the formal court process. This is clearly another attempt by the Judge Sunday Nkonde and the Judiciary to illegally place the Post Newspapers Limited under liquidation at all costs. What is even more unprecedented and shocking is that when a fresh action was commenced on 10th February under cause 2017/HPC/0059 as filed by Messrs. Nchito & Nchito seeking to set aside the Order appointing Mr. Mosho as Provisional Liquidator on account of fraud, the said action was on 11th February, 2017 which was a Saturday, stayed by Judge Sunday Nkonde before it could even be allocated.
From the forgoing, we feel, Judge Nkonde is biased and it would better if another judge is appointed to handle this case otherwise public confidence, at least from our point of view, will be eroded and it would be sad that it should happen under your watch.
We thank you most sincerely for your attention and we wish you God’s blessing because the work you do is next to divinity. Without Justice, the people of God will not have freedom.
Yours in national interest,
CHILUFYA TAYALI
PARTY PRESIDENT (0966888936)