About The Post Newspaper Judgement.
By Sean Tembo
PeP President
Lusaka – 17th February, 2022.
1. I have always argued that a court judgement is supposed to put finality to a matter, and not open up the matter to more litigation. I mean that’s the reason why litigants go to court in the first place. So that the court can pronounce who is right and who is wrong, and then proceed to punish the wrong party and reward the party who is right.
2. However, over time in Zambia, l have come across several court judgements and rulings which sound like a draw. 50-50. Both parties walk out of court feeling confused on what the court meant in the judgement or ruling. You even ask opposing counsel on what their understanding of the judgement is.
3. Unfortunately the Post Newspaper judgement that was delivered today by the Supreme Court is one such example. On one hand, the Court ruled that the actions of the Liquidator, prior to and post the liquidation, carry no legal effect. This means that in the eyes of the law, the liquidation never took place. Given this finding of the court, one would expect that the relief which the court would give the Appellants is to try and restore them to their original position before the commencement of the liquidation. And since the liquidation did infact take place and the assets of the Company were disposed of, the only sure way in which the Appellants can be restored to their original position is by way of monetary compensation to be undertaken by the respondents.
4. However, instead of awarding damages to the Appellants as a way of making them whole again, the court decided to order that the liquidation should re-commence in the High Court under a different judge, and the Liquidator should be joined to such a fresh matter. This part of the judgement defeats logic. How can a liquidation which already took place re-commence all over again? By definition, a liquidation is a process of converting the illiquid assets of an insolvent company into liquid assets, for distribution among the various claimants based on a specified formula. Of course am saying this in my capacity as a PACRA certified Insolvency Practitioner.
5. But if the liquidation already took place, then how can it be restarted? How do you undo a liquidation? How can the Liquidator start looking for the various people who bought the assets of The Post Newspapers Limited, start refunding them and collect those assets. In what condition are those assets in? How would the Liquidator start crawling back the distributions of liquidation proceeds that he might have disbursed to various claimants? How practical is that?
6. It is my humble submission that the Supreme Court has misdirected itself in its judgement on this matter. Instead of giving Fred M’membe justice, the Court has left him hanging high and dry. If the court really wanted to give the Appellants justice, it should have ordered their compensation by the respondents. But the court has instead chosen to deliver a judgement that lacks practicality. A judgement that is incapable of rendering justice to the injured parties. A misplaced judgement. What a sad day indeed.
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