DBZ case fast tracking riles legal fraternity

Mon, 11 Feb 2013 08:52:05 +0000

The fast tracked Supreme Court appeal by defunct Zambian Airways directors who are contesting a High Court judgment  that found them culpable of obtaining K14 billion from the Development Bank of Zambia (DBZ) by fraudulent misrepresentation is expected to be heard tomorrow but no reasons have been given for the decision to fast track the case.
The case involves Mutembo Nchito ,director of public prosecutions, Fred M’membe owner of Post Newspaper and Nchima Nchito.
The government had originally intended to withdraw the case from court but Lusaka lawyer Vincent Malambo who won the case on behalf of DBZ refused to withdraw.
He was subsequently removed on government instructions to be replaced by Buta Gondwe who has since opposed attempts by Zambian Voice, an independent non-governmental organization from defending the claim.
To the surprise of many legal observers, the appeal has overtaken the judicial Tribunal proceedings which arose from a decision by President Sata to suspend three judges and appoint a tribunal after the trio complained against the judges.
It is not clear what position the DBZ has taken regarding the appeal of K14 billion which has doubled to K30 billion inclusive of interest.
The company directors Director of Public Prosecution (DPP) Mutembo Nchito, Nchima Nchito and owner of Post Newspapers Fred M’membe appeared in court last Thursday.
The trio complained about the procedures that resulted in a ruling by Judge Nigel Mutuna who found Mutembo Nchito liable for criminal prosecution for the fraudulent misrepresentation for the K14 billion which has now mushroomed to more than K30 billion inclusive of interest.
The trio last week appeared before a bench comprising Justices Florence Mumba, Florence Lengalenga and Muyunda Wankie who adjourned the matter to February 12 when the right panel will have been constituted.
Meanwhile there is still no word when the Supreme Court will deliver a verdict on the appeal of Attorney General Mumba Malila who opposed the granting of Judicial Review against the three Judges that were suspended by President Sata.
The three Supreme Court Judges are Phillip Musonda and High Court Judges Nigel Mutuna and Charles Kajimanga.
The ruling stopped proceeding of the tribunal appointed by President Sata and chaired by Malawian Judge Lovemore Chikopa. The tribunal was to investigate the alleged misconduct of the three judges.
However in their application for Judicial Review the judges allege that the action taken by the president to appoint a tribunal to investigate a Puisne Judge regarding a judgment delivered in a civil case when an appeal was pending in the Supreme Court was unreasonable.
They also contended that President Sata erred in law and unsurped the statutory powers of the Judicial Complaints Authority and those of the Chief Justice when he purported to assert the role of an investigator on complaints against the judges who were judicial officers because that was the preserve of the Judicial Complaints Authority.
“His Excellency also erred in Law and unsurped  the constitutional  functions of the Supreme Court when he appointed a tribunal to investigate them when the appeal in the said case was effectively subjudice,” the lawyers said.
They said the decision to appoint the tribunal to investigate the applicants and suspending them respectively was premised on improper motive and characterized by political consideration and actual bias without proper investigations but anchored on unsubstantiated reports by people enjoying particular relationships with the president. And Judge Kajimanga, in his affidavit stated that he received his suspension letter on April 30 without indicating reasons and yet during a Press Conference on the same day, the president made public allegations that he interfered with the retrieving of alleged cases from their fellow Judge Albert Wood and misbahved jointly with Justice Phillip Musonda and acted icompetently.