Wed, 14 Dec 2016 11:02:09 +0000
FRED M’membe says there is no contempt on non-compliance to a liquidator’s demands because Lewis Mosho is not a court.
This is in response to a contempt application filed by the Post Newspapers Provisional Liquidator against Mr M’membe, Nchito and Nchito Advocates and general manager Rowena Zulu before the Lusaka High Court.
Mr M’membe’s lawyer Nchima Nchito told Mr Justice Sunday Nkonde that there was no court order to the surrender of assets to the liquidator, hence no obligation under the law to demand for contempt.
He said there was no penal notice on the court order of appointment of a Provisional Liquidator to direct the consequences of the failure to obey him.
Mr Nchito said the court was therefore bound to follow commission applicable before committal, because it could not commit to prison the contemnor in a case where there was no penal notice.
He charged that the court had no discretion and was therefore bound, and that on committal proceedings, Mr M’membe contended that Order 45 (2) provided that there must be an order directing a party to do an act or retrain from doing an act whether the party was a corporate.
But Mr Mosho has maintained that the action by Mr M’membe and his team of denying him access to company assets was tantamount to disregarding a court order as his authority was drawn from a court order.
He said the alleged contemnors failed to comply with an order of the Provisional Liquidator, hence causing a hindrance to the smooth management of the winding up process as directed by the court.
He charged that Mr M’membe and his lawyers (Nchito and Nchito Advocates) were still in possession and concealing assets of the Pot Newspaper in Liquidation in total disregard of the High Court order appointing him as the Provisional Liquidator.
“That the 1st and 3rd alleged contemnors are still in possession of and are still concealing the assets of the respondent (Post) which are not in the possession of the 6th petitioner (Zambia Revenue Authority-ZRA).
“That the alleged contemnors have ignored and have not respondent to any of my directives to hand over the concealed assets of the respondent in their possession and have simply ignored as if there is no order of court,” he submitted.
This was in his reply to Mr M’membe’s response in opposition to the application for commencement of contempt proceedings against M’membe, Nchito and Nchito Advocates and Rowena Zulu over the non-compliance to the order to surrender a catalogue of assets belonging to the Post Newspapers in Liquidation for the purpose of winding up.
Mr Mosho has upheld that he terminated the services of the Nchito brothers as advocates for the Post Newspaper, and that he remained the legitimate owner of the newspaper by the powers given him by court and not the purported receiver.
“That I am further advised by counsel that the appointment of the purported receiver contravenes and offends the order of court which appointed the Provisional Liquidator and vested all the assets in the said liquidator.
“That I am advised by counsel that the order of court appointing Provisional Liquidator herein is still subsiding with all its force and should not be disobeyed,” he said.
Meanwhile, the court has ordered that the motion of contempt proceedings be heard and concluded in order to deliver the full ruling on the matter.
This was after Mr Nchito insisted that the court deliver ruling on the preliminary issue to dismiss the contempt application for being wrongly before court.
But Post in liquidation lawyers Palan and George argued that there was no provision for hybrid application that it could not be corrected at this late stage and so must be dismissed.
And Mr Justice Nkonde yesterday undertook a scene visit to the location where the 11 Post Newspaper trucks and one trailer were discovered at a private premises of Transit Freight Coordinators Ltd in Shimabala area in Chilanga.
The court adjourned to today at 1430.
