Stay away from Post matter, M’bao tells judge Nkonde
By Michael Kasonde
REVEREND Richard M’bao says it is shameful and appalling that judge Sunday Nkonde is grossly misconducting himself and making malicious decisions in The Post liquidation case and the judiciary is just watching.
Rev M’bao, the chairperson of the Pastors Forum for Eastern and Southern Africa, said judge Nkonde should immediately recuse himself from the Post liquidation case and allow natural justice to prevail because he was certainly not in a position to handle the case with sobriety and fairness.
Dr Fred M’membe, a journalist, has written to the Judicial Complaints Commission about the misconduct of judge Nkonde, stating that in spite of not having been eligible to hear The Post liquidation matter, the presiding judge had also committed a number of grave due process and procedural aberrations in the current case before him, proving his animus and bad faith towards The Post.
Commenting on the letter, Rev M’bao said judge Nkonde was setting a bad precedence for Zambia’s judicial system because it was clear that he was using the case to hit back, settle personal scores or fix people behind The Post over historical differences or misunderstandings.
“It is not possible for judge Nkonde to preside over this case with sobriety, devoid of emotions. He shouldn’t have been on this case in the first place. Many things have been damaged in the process. Legal procedures as demanded by law have been blatantly ignored while giving leverage to the provisional liquidator to do anything he wants with contempt. This was a well-orchestrated move by those that want to eliminate that critical media. Those at the helm of Zambia’s judiciary, let them appeal to their conscience, judge Nkonde must step aside on moral grounds and allow justice and fair hearing of the case to prevail,” Rev M’bao said.
He said posterity would harshly judge everybody involved in the malicious handling of The Post liquidation case because from the onset, any right thinking member of the public would tell that the matter was being adjudicated unfairly.
Rev M’bao said those handling the case at the Judicial Complaints Commission must bear in mind the lives of thousands of Post workers and their families who were now languishing on the streets because of nothing but personal aggrandizement among those involved.
“Let them appeal to their conscience and do the right thing. This case will go down history as one of the most embarrassing cases for Zambia. How can a viable company with a monthly turnover of K14 million in a poor economy like Zambia be forced into liquidation? It’s total madness! It’s more like forcefully taking a man to the mortuary and forcing him to die because you hate him. Whatever happened to The Post does not make sense and those in charge must be able to look at this case fairly without getting personal,” said Rev M’bao.
In his letter, Dr M’membe catalogued the several actions that he said were basis to have judge Nkonde removed from the Post case.
“Justice Nkonde approved a provisional liquidation and appointed a provisional liquidator ex-parte in a matter where the petitioners did not provide the mandatory statutory debt demand notice, that is required by law before a winding up petition can be filed,” Dr M’membe stated.
“Judge Nkonde Mr [Lewis] Mosho, the provisional liquidator he has appointed to then appoint his firm, Messrs Lewis Nathan Advocates (himself) and Messrs Palan & George Advocates to replace Messrs Nchito & Nchito in representing Post Newspapers Limited in challenging the liquidation. How can lawyers appointed by the provisional liquidator represent a company in company in challenging the same provisional liquidator? Not surprisingly, the syndicate of Mr Mosho and his fronts have withdrawn the company’s challenge to the liquidation with the tacit approval of the judge.”
He further stated: “In another ex-parte move, justice Nkonde has granted leave to commence contempt proceedings against Messrs Nchito & Nchito for allegedly acting for Post Newspapers Limited and halted hearing of all the applications challenging the appointment of Mr Mosho as provisional liquidator when as can be seen below, he is hearing other applications made by Mr Mosho and his syndicate of lawyers, including his own firm. The judge casting the proverbial nelsonian eye has allowed Mr Mosho to represent The Post in an action where Mr Mosho is being challenged by The Post. How is this conceivable at law? Judge Nkonde has to date not granted or heard any applications made by lawyers not affiliated to the provisional liquidator Mr Mosho and yet almost every application by the parties affiliated to Mr Mosho have been heard and in most cases granted orders ex-parte. Judge Nkonde, having been made aware that Mr Lewis Mosho is barred from appointment as a liquidator and therefore not a fit and proper person to be provisional liquidator because he was removed from the office of receiver in Platinum Gold Equity and Others V Development Bank of Zambia 2015/HPC/0097 has refused and or neglected to deal with the said disqualification. Judge Nkonde has allowed Zambia Revenue Authority to be added as a petitioner before him when the question of liability between Post Newspapers Limited and Zambia Revenue Authority is still pending before the Tax Appeals Tribunal, where a stay has been granted which matter was brought to his attention. Mr Mosho tried to force Investrust to join his quest to liquidate Post Newspapers Limited. The bank prudently chose to appoint a receiver to protect assets of Post Newspapers Limited and to ensure it recovers its debt in an orderly fashion. To show how far he is willing to go to aid Mr Mosho’s crusade, judge Nkonde has granted a stay of the appointment of a receiver when the receiver is not party to the action before judge Nkonde and the receivership was not made by an order of court. How can judge Nkonde stay a private decision of a bank? An injunction, where necessary, would be understandable. Unless under the judicial review where judicial review is tenable, a stay cannot be obtained on a decision other than that of a court. That said, are the proceedings before judge Nkonde in the form of judicial review? Judge Nkonde has no jurisdiction to grant such an order. Judge Nkonde has made this decision whilst being aware of the decision in Livingstone Motor Assemblies Limited (in receivership) V Indeco Estates Development Company Limited and Four Others – 2013 ZR1 in which the Supreme Court held that where there is a liquidator and a receiver appointed, the assets of the company in question are the receiver’s to deal with.”
Dr M’membe stated that Post Newspapers Limited was and remains a viable business capable of paying all its legitimate creditors.
“When the business is running, it averages K14 million in monthly turnover. The above facts show clearly that judge Nkonde is deliberately misconducting himself and humbly request that he be dealt with,” stated Dr M’membe.
“…As an advocate in private practice, Mr Justice Nkonde brought an action against Post Newspapers allegedly on behalf of Finance Bank just before the 2011 general elections. The action which related to Zambian Airways had hallmarks of being politically motivated. What is worrying about justice Nkonde’s conduct in that matter is that I now have it on good authority that when he commenced the action against The Post, he was acting without instructions from Finance Bank. That action appeared calculated to destroy The Post and lead to its liquidation as part of a political scheme to silence critical media.”