By NATION REPORTER
MUTEMBO Nchito and Nchima Nchito have been referred to the disciplinary committee of Law Association of Zambia for professional misconduct.
This is in the way they handled the Ultimate Insurance case in which they were representing three directors facing 15 counts of forgery, uttering false documents, obtaining goods by false pretense, and theft of US$41, 980.45 from Ultimate Insurance.
Magistrate Alice Walusiku in her judgement said the defense team which included the Nchito brothers had a duo duty that they have to their client and to the court.
Magistrate Walusiku referred to Lord Denning in a case of Rondel versus Worsley were he said that the lawyers have the duty to the court which is paramount.
According Lord Denning lawyers must see that their clients, if ordered the relevant documents, even those that are fatal to his case.
“He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of. It is a code of honor. If he breaks it, he is offending against the rules of the profession and is subject to his discipline. “Read Denning statement in part.
Magistrate Walusuku said that the defence team was however forum shopping even when they knew that it is an abuse of court process.
“The defence team is well aware that forum shopping is an abuse of court process but they went ahead and practiced the same and have also shown the propensity that they will still do more forum shopping even if the accused were to be in custody.
“The defence have not shown wiliness to have this case expedited this is a proper case to be referred to the disciplinary committee for further investigations into the conduct of the defence team for possible professional misconduct, “she said.
On July 23, 2020 Ndola High Court Judge Yvonne Chembe quashed the application an application for Judicial Review to stay proceedings in a matter on grounds that the applicants did not fulfill procedures.
Lusaka Resident Magistrate Alice Walusiku referred Mr. Nchima Nchito SC, Mr. Mutembo Nchito SC and Mr. Chisuwo Hamwela defence lawyers for a criminal matter before her court, to the Disciplinary Committee of the Law Association of Zambia to investigate their acts of professional misconduct.
Magistrate Walusiku in her ruling delivered on 25th September 2020 stated that the defence was accused of gross abuse of the court process and Forum Shopping.
The lawyers are accused of engaging in activities that abused the court process to wilfully and deliberately delay a criminal trial legitimately before the Lusaka Magistrate Court.
She said by the conduct of the defence,the matter has been delayed since 25th July 2019 when it commenced.
She said the defence made frivolous applications to the High Court twice, and the cases were both dismissed with rulings that the claims that their clients would not receive a fair trial were unfounded and that the criminal matter, was legitimately before the Court and therefore could not be stopped.
Despite the two dismissals by the High Court,the Nchitos frantically attempted to make another similar application in the Livingstone High Court on matters that were ruled and settled by the Lusaka High Courts.
The defence also attempted to obtain a stay of proceedings in the same Livingstone High Court.
She stated that the criminal case under her Court was properly before her and that the Court was the sole forum to adjudicate all issues involved and all interested parties had an obligation to bring them and that forum shopping was a clear and unacceptable abuse of the judicial process.
Meanwhile, the defence lawyers are also accused of tendering forged documents to court.
This is in the matter in which Tobias Milambo, Richard Lubemba and Nachi Musonda are appearing before the Lusaka Magistrate Court for fraud.
The trio are accused of amending shareholding records of Ultimate Insurance Company at the Patents and Companies Registration Agency (PACRA).
Previous owners: Klein Syampingo, Justin Phiri and Maybin Silavwe sold the company to Lusaka businessman and his spouse, Mr. Chanda Katotobwe.
The trio allegedly changed the records while the new owners were put abroad.
Regarding the forged documents delivered in Lusaka Magistrate Court by Mr. Nchima Nchito SC, Magistrate Walusiku established that the accused persons lied that they had or were exposed to Covid-19.
The court established that the documents to support the claim that the accused persons, Nachima Musonda, had contracted Covid-19 and tendered in Court by Mr. Nchima Nchito were dismissed as forgeries by authorities from Centre for Infectious Disease Research in Zambia (CIDRZ) and Levy Mwanawasa Hospital.
…as LAZ awaits Nchito complaint
THE Law Association of Zambia (LAZ) claims it has not received any complaint from the Lusaka Magistrate Court regarding Nchima Nchito’s alleged professional misconduct despite the complaint being recorded in a court ruling.
Last week Resident Magistrate Alice Walusiku reported Mr Nchito to LAZ through her ruling for presenting forged documents of his clients that they missed court sessions because they were exposed to Covid 19.
Mr Nchito is representing three Marshlands directors who are facing 15 counts of forgery, obtaining money by false pretences and uttering false documents.
The Magistrate Court found that the medical documents presented in relation to claims that they had been exposed to Covid 19 were forged.