By Sean Tembo – PeP President
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, I 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 yesterday 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.
Ba Sean, you know everything, most of these judgements we are seeing overturned were politically influenced. Only the supreme court completely settles a judgement unless you fail to appeal. Why are you saddened? Are you afraid of M’membe, who had to wait for the change of government to receive a fair judgement, celebrate with him. Maybe you are one of those who bought some assets, return them, Cheap is expensive.
#1 Egghead -Then the same must apply to the mining license for the lower Zambezi.
I think Sean is overthinking the supreme court judgement, it is clear now that this case is going back to high court for the claimants and the parties involved to start the process of claiming what belongs to them and proceed to recover. Of course properties are already gone but the govt and liquidator employed by the govt will be liable to repay back whatever the proceeds were and taking into account what the post owed the state.
Sean Tembo’s impulsive nature has got the best of him once again. He doesn’t know what he’s talking about. The Supreme Court is absolutely right because the judge ignored Fred M’membe’s applications. The law allows any shareholder and director to raise issues with the liquidation. By ignoring Fred M’membe, any process that continued despite his pleadings was null and void. It’s that simple but not simple enough for everyone to get it. The court couldn’t order any compensation because no one asked it to pronounce itself on that and it was not M’membe’s plea.
I’ve read the judgement twice. The Supreme Court has effectively said that the days of wheeling and dealing in courts of law are over. Perhaps we will know why judg Sunday Nkonde ignored the applications that Fred M’membe made before court. Lewis Mosho knew that there was a shareholder who had been ignored by the court and that this shareholder had appealed. Yet Mosho chose not to apply to join the appeal. Why? Mosho knew that it was illegal to proceed with the liquidation if a shareholder’s application is not heard by the court. Why did he do that? These are some of the questions Mosho will hv to answer under oath in the High Court.
The Supreme Court judgements are well-thought, unlike what we see in the ConCourt. The point Sean has missed is that the Supreme Court couldn’t make a conclusive judgement as there were missing ingredients. That’s the reason it has ordered for Mosho to be joined to the cause as the liquidator so that he’s also heard. The reason the matter has been referred back to the High Court is that the Supreme Court isn’t a trial court. The only times that it has sat to try matters are in the case of Presidential Election Petitions. This case might finally end up in that Court again should there be an appeal after the High Court has done with it. Don’t mislead us
Are posthumous judgements misplaced!? Queer?
Freed membe will do well to track Moshos assets in SA , UK and dubai………
Mosho was a PF gun for hire. Mmembe will pursue him to the last ngwee!
We are now waiting for the illegal hounding out of Mutembo Nchito as DPP, were Mosho paid the fees for Newton Nguni to make those scurrilous accusations. The Chongwe magistrate must also be made to account.
Dear Sean, you are off track….the liquidator doesn’t need to go ‘looking’ for those who bought assets as they bought those assets in good faith…he will have to on order of the court render an account of all assets he seized, liabilities and proceeds from all and any sells he did…..his books maybe subjected to audit….what you may discover is apart from liquidator fees, the liquidator might have converted some of those assets to his personal use then the world will turn….and indeed if you re-read the ruling you will note that for some strange reason the judge who presided over this matter neglected to hear any applications by the Post and when the ‘liquidator’ took over he appointed his law firm as lawyers for the liquidee and ceased to pursue any applications made by the…
The Supreme Court’s judgement may seem to be a mere academic exercise for now but at least it has set a precedence for resolving similar cases in the future.
These are the things that Sean Tembo should be concentrating on. Not attacking government all the time, you profit nothing by doing that, except inviting many people to hate you. A leader should have a sense of justice, not malice and mudslinging.
A country full of lawyers and home study law students. The drinking hole is never boring. I love it!!!!
Sean, Sean, Sean! Why mwana wa amama do you have to comment on EVERYTHING even when you do not have the wherewithal to do so? Haven’t you heard of a man being acquitted AFTER he has already been hanged? When something is illegal, it is illegal regardless of the circumstances. What is more irreversible than death? But you are talking about just a liquidation! You could argue that the Ministers should not have been asked to pay back the money because they had already received and ‘eaten it.’
Really laughable…this is the problem with being a briefcase party you have no advisers you just rush to your laptop and start typing or like Tayali to Face -book live.
They just want to find out where Mosho took the Post assets. Mosho finds himself in a very unenviable position. Run Mosho, run. Find some place under a stone where you can hide.
I hope Mr membe uses all his intellect to take Mosho and his handerlers to the cleaners and back………
The lungu regime destroyed a lot of legitimate people who they perceived as against them………..
That is the testament of the resilience of HH…………..
The man was left standing after facing the fire of the whole GRZ and their hired guns……….
Any lesser man would have folded under the illegality of lungus moves……..
Lungu was a mastermind president at illegality and operating in gray areas………..
He is simply a dirty thug……..
The weekend has started. I am on my way to my playground in kafue. 10 car convoy. If you know me and support pf feel free to mingle with me. Any upnd hater will be dealt with. I am not in mood for f00lish things.
Awee Ba Sean batwaleni ku Chipatala.
It’s amazing the great length Sean Tembo goes to, just to look intellectual, but ends up looking as damn and stupid as Emmanuel Mwamba. Maybe it’s the koswe and kolwe they’re eating dementing them like this because such cognitive decline doesn’t arise from nowhere!!
That ka defeated dictator, ka Eddie Lungu must be feeling horrible! I hope they attach the assets her stole during his reign to recover losses… his immunity needs to be removed too, thieves shouldn’t be allowed to hide behind a statue of law
So mmembe can now sue the ZRA for compensation? And why should the employees pay Mmembe’s fees as ruled by this lame court?
I came to read comments
There was a mistrial in the High Court because Sunday Nkonde did not allow cross-examination of witnesses. Where do u do that where the facts are in dispute? Lewis Mosho knew that as shareholder and director, Fred M’membe had appealed. Why didn’t Mosho apply to court to oppose M’membe’s appeal? Was it because he knew that M’membe would lose?