Mosho cannot use The Post’s name in his appeal, M’membe tells Supreme Court
By Mwaka Ndawa
FORMER editor-in-chief of The Post Fred M’membe says Lewis Mosho cannot use the name of the company to challenge a judgement that is clearly serving the interests of Post Newspapers Limited because the Supre Court judgement has condemned his role as liquidator of the newspaper company.
Dr M’membe said purported lawyers Messrs Makebi Zulu advocates and Linus E Eyaa of Post Newspapers Limited had no authority to bring an action to set aside the judgement in the name of and on behalf of the company.
This was in a matter where Dr M’membe and The 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 judgement declaring the company insolvent, as it was obtained by fraud.
However, Mosho who was startled by the order of the Supreme Court compelling him to account for the assets belonging to Post Newspapers Limited, asked the court to cancel its decision to nullify the liquidation process of the company.
He claimed that his acts as liquidator of the company were valid, notwithstanding any defect or irregularity affecting the validity of winding up The Post or his appointment as its liquidator.
Mosho said during the subsistence of the liquidation of the company, he sold some of its assets as liquidator to third parties as bona fide purchasers for value.
Mosho lamented that the judgement of the Supreme 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,’’ contended Mosho.
But in an affidavit in support of notice of motion to raise preliminary issue, Dr M’membe wants the court to determine whether Mosho is able to act for Post Newspapers Limited as he is purporting to do, in an action that was brought by a director and shareholder suing in the name of the company by exercising his residual power.
“Whether Messrs Lewis Nathan Advocates, Makebi Zulu advocates and Linus E. Eyaa and partners purportedly appointed by Mr Mosho to act for The Post Newspapers Limited are lawfully able to file an application to set aside the judgement dated February 17, 2022 in the name of and supposedly on behalf of The Post Newspaper Limited on instruction of Lewis Mosho when the action was brought by a director and shareholder in the name of the second appellant which has its own advocates in the name of Nchito and Nchito who this court found to be proper advocates for the second appellant for the purpose of this action,” Dr M’membe submitted. “Whether Lewis Mosho can take out a motion in this cause in the name of and supposedly on behalf of the second appellant.”
According to a notice of motion to raise preliminary issue on a point of law, Dr M’membe said the Supreme Court in its judgement dated February 17, 2022 held that directors of a company in liquidation maintain residual powers that allow them to litigate in the name of and on behalf of the company, especially where the litigation relates to wrongs done to the company by the liquidator.
He said the court’s judgement clearly stated that the consent order that appointed Mosho as liquidator of The Post was set aside and effectively all his actions were invalidated.
Dr M’membe argued that the purported appointment of the three law firms to represent The Post Newspapers Limited was null and void as Mosho did not have the authority to act on behalf of the company in the matter.
“It is curious as to what basis and with whose authority the firms of Lewis Nathan Advocates, Makebi Zulu Advocates and Linus E. Eyaa and Partners are purporting to be acting for The Post Newspapers Limited,” said Dr M’membe. “We make this application in order to ascertain whether Mr Mosho should be permitted to use his position as liquidator to shield himself through his own firm from the consequences of his hazardous and illegal conduct as liquidator.”