By Mwaka Ndawa
ALARMED by the order of the Supreme Court compelling him to account for the assets belonging to Post Newspapers Limited, lawyer Lewis Mosho wants the court to cancel its decision to nullify the liquidation process of the company.
Post Newspapers Limited was the publisher of The Post.
The startled Mosho has charged that his “crafty” acts as liquidator of the newspaper company are valid notwithstanding any defect or irregularity affecting the validity of winding up The Post or his appointment as its liquidator.
He said during the subsistence of the liquidation of Post Newspapers Limited, he sold some of the assets belonging to the company as liquidator to third parties as bona fide purchasers for value.
Mosho lamented that the judgment of the court affected the rights of third parties who bought assets from the liquidator and those who were paid by him relying on the strength of the “illegal” court order granting the liquidator power to deal with the assets of The Post.
“I am aware that third parties who bought properties from myself as liquidator on the strength of the court order were not heard by this court before making a decision affecting them,” he contended.
On February 17, 2022 the Supreme Court held that the liquidation of The Post in the manner it was done was not genuine.
Chief justice Mumba Malila and two other judges held that High Court judge Sunday Nkonde relinquished his supervisory responsibility when he allowed Mosho as the provisional liquidator and five former employees of Post Newspapers Limited, including the Zambia Revenue Authority, to enter into a consent order declaring the company insolvent.
The court ordered that the winding up proceedings of the newspaper company be reopened before the High Court and should be presided over by a different judge.
The chief justice said the actions of Mosho and the purported liquidation of The Post were of no legal effect and that liquidation of Post Newspapers Limited in the manner it was undertaken by Mosho was a faux (fake).
“Mosho may have concluded with the liquidation and seemingly fallen off the picture. Furthermore, he was not a party to the winding up petition. This however, matters not for purposes of rendering an account for accountability under the relevant law. For this reason, we are entirely within our power to order him to be joined to the winding up proceedings,” said justice Malila. “We refer the matter to the High Court before a different judge to reopen the liquidation proceedings with a view to ensuring compliance with the relevant legal provisions. The action shall be between the original parties as they were when the petition was filed. For the purposes of receiving all necessary reports from the liquidator and considering his possible personal liability, we order joinder of the liquidator.”
The Court directed that Mosho shall appear as a third party to the proceedings in the High Court.
This was in a matter where former Post Newspaper editor-in-chief Fred M’membe and Post Newspapers Limited (in liquidation) appealed the decision by the High Court and Court of Appeal to deny him an opportunity to challenge the consent judgment declaring the company insolvent as it was obtained by fraud.
However, Mosho has opposed the decision of the Supreme Court to condemn him over the liquidation of The Post.
According to an affidavit in support of notice of motion to set aside the judgment, Mosho said on January 10, 2018 by consent entered into, it was agreed that The Post Newspapers Limited be wound up and that he be confirmed as the liquidator of the newspaper company.
He stated that on February 17, 2022 the Supreme Court rendered judgment and nullified the liquidation process and he only learnt of it through social media.
Mosho said Dr M’membe commenced an action before the High Court, the Court of Appeal, and before the Supreme Court on behalf of Post Newspapers Limited without his approval as the provisional liquidator of the company.
“At no point did I as liquidator grant any person instructions to bring this matter on behalf of The Post Newspapers Limited by way of appeal to the Court of Appeal or even by way of appeal to this court,” he said.
Mosho claimed that Dr M’membe did not seek permission to derivatively continue the action on behalf of his newspaper company neither has there been any order of the court on record allowing him to bring a derivative claim by way of appeal before court.
“A court order is necessary to allow a member and a shareholder in a company to continue a derivative claim by way of appeal,” Mosho said.
He claimed that the Supreme Court made several pronouncements against him as the liquidator of The Post without being given an opportunity to be heard on appeal before court.
“If I were given an opportunity to make representation before this court before the judgment was passed, a number of issues would have been raised, which issues would have greatly helped the court,” Mosho said. “The judgment of this court has the effect of setting aside the consent judgment entered by the parties under cause no.2016/HPC/0518 on application by Dr M’membe who is a non-party to the proceedings and consent judgement.”
Mosho said the Constitutional Court under cause no.2018/CCZ/001 refused to set aside the consent order declaring the company insolvent.
He said the Supreme Court and the Constitutional Court were equal in ranking and no decision of either the Supreme Court or the Constitutional Court could overrule the decision of the other.
“Under these circumstances, I can apply to this court to set aside the judgment dated February 17, 2022. No prejudice will be occasioned to any of the parties in this matter but ultimately the interest of justice will be served if this application is granted,” said Mosho.
According to skeleton arguments in support of the motion to set aside the judgment filed by Makebi Zulu Advocates and Lewis Nathan Advocates on behalf of The Post, they argue that the matter was improperly brought before court and the court had no powers to hear the appeal.
“This Court (Supreme) ought to have joined or at least afforded an opportunity to the liquidator and third parties who were likely to be affected before this court proceeded to render its judgment which adversely affected them,” said the lawyers.
“The actions of Dr M’membe are an abuse of court process. The actions of Dr M’membe have the effect of creating jurisprudential crisis as the decision of this court on setting aside of a consent order clearly contradicts the position taken by the Constitutional Court.”
They further prayed that the judgment be set aside.