Mosho files notice of motion over Post liquidation
Prominent Lusaka lawyer and Post Newspaper Limited liquidator Lewis Mosho has filed a notice of motion to set aside a Supreme Court judgement that established the liquidation of the newspaper as illegal.
Last Thursday, the Supreme Court bench comprising of Chief Justice Mumba Malila, Jones Chinyama and Albert Wood found the manner in which the liquidator Mosho of Lewis Nathan Advocates liquidated the Post Newspaper Limited was laced with countless anomalies and rendered the process illegal.
This in effect meant the matter has now been allocated to a different Judge at the High Court to restart the liquidation proceedings all over again.
In his pleadings, Mosho has filed a motion to set aside the judgement because the action for and on behalf of the Post Newspapers Limited was commenced without his authority and or a derivative order and as such, the Post Newspaper was a party to the action without due authority.
Mosho has averred that neither he nor Post Newspapers Limited was heard in the appeal as Post Managing Director and Editor in Chief Dr Fred M’membe proceeded to purportedly act for Post Newspapers Limited without authorisation.
In the matter, five ex Post employees being Abel Mbozi, Andrew Chiwenda, Roy Habaalu, Bonaventure Bwalya, Mwendabai Mweene and the Zambia Revenue Authority had applied to court that the Post Newspaper Limited be wound up because it had no capacity to pay its creditors.
Mosho says in his filing that the Supreme Court judgement affects rights of third parties who were not heard prior to the court passing its judgment and may be adversely affected by the said judgment as there was no room for appeal against the said judgment of the court.
“Had the Supreme Court been alerted that the question of the consent judgment was already decided in the Constitutional Court in the case of Dr Fred M’membe v Sunday Bwalya Nkonde, SC, The Attorney General and The Post Newspapers Limited (in liquidation) under cause no. 2018/CCZ/001, it may have arrived at a different conclusion,” Mosho stated.
Mosho cites Section 289 (3) (a) of the Companies Act Cap 388 of the Laws of Zambia (repealed) which clearly provides that where a company is under liquidation, it is the liquidator of the company that has power either to bring or defend an action or other legal proceedings in the name and on behalf of the Company.
He submitted that the record would show that at no point did he grant any person instructions or authority to bring this matter on behalf of Post Newspapers either in the High Court or by way of appeal to the Court of Appeal or Supreme Court.
He submitted that Dr M’membe’s appeal was improperly before the Supreme Court and as such, the court had no jurisdiction to hear this appeal in the first place further submitting that Dr M’membe’s action was a clear abuse of court process.
” Dr M’membe’s a ctions was a party to the matter in the Constitutional Court and was bound to the decision of the court.
The actions of the 1st appellant have the effect of creating jurisprudential crisis as the decision of this honourable court on the setting aside of the consent order clearly contradicts the position taken by the Constitutional Court,” Mosho stated.
He further that submitted that the court should exercise its jurisdiction to set aside the judgment and justice be served.
Mosho has since appointed Lewis Nathan Advocates and Makebi Zulu Advocates to represent Post Newspapers Limited in this case.
The five employees alleged that The Post had failed to pay them salaries and emoluments amounting to K815,000 while ZRA claimed that the newspaper company had failed to discharge its tax obligations.
Mosho was appointed as Provisional Liquidator by Lusaka High Court judge Sunday Nkonde in 2016.
Dr. M’membe challenged the manner in which Mosho liquidated the Post Newspaper Limited.
CREDIT MWEBANTU