POST Newspapers Limited has applied for an order to stay proceedings in the case where DBZ has sued it, JCN Holdings Limited and Mutembo Nchito in relation to the defunct Zambian Airways.
And Nchima Nchito, the lawyer representing Post Newspapers Limited and JCN Holdings Limited, has observed and brought to the attention of the Minister of Justice, Sebastian Zulu, worrisome inconsistencies within the Judiciary regarding the circumstances in which High Court judge Albert Wood was made to recuse himself from the case.
Meanwhile, Nchito says attempts within the Judiciary to cover up the political undertones and possible misconduct around the Development Bank of Zambia (DBZ) case, and another involving Dr Rajan Mahtani's Finsbury Investments Limited, constitute sufficient ground for an urgent formal inquiry.
In an affidavit sworn by Post Newspapers Limited managing director and editor-in-chief Fred M'membe, judge Nigel Mutuna has been requested to stay proceedings in the matter while investigations are ongoing into the circumstances in which the case was transferred from judge Wood to him.
M'membe stated that rendering judgment before the issue of judge Wood's recusal is resolved would cause the defendants to suffer prejudice.
"That in the premises it would be prejudicial to the Defendants for the court to render its judgment whilst investigations into how this matter was allocated to this honourable court are ongoing," M'membe stated.
And in a letter to Zulu dated March 26, 2012, Nchito wondered why the transfer of the matter had not been conducted in a manner consistent with the law.
He stated that responses by senior members of the Judiciary to the various complaints that had been raised around the DBZ and Finsbury cases were not only frightening but also indicative of a grave problem in the judicial system which, if left unchecked, threatened the very peace and stability of the country.
"From the brief you (Zulu) gave, it now appears that there is a serious disagreement in the Judiciary on what actually transpired and how the files in issue moved from judge Wood to judge Mutuna (the DBZ matter) and judge Flavia Chishimba (the Finsbury matter)," Nchito observed.
"Judge Kajimanga states that he received information from judge Musonda sometime in July last year to the effect that when he (Judge Musonda) was Judge in Charge there was a complaint from one of the parties in the case of Finsbury Investments Limited Vs Antonio Ventriglia and Manuel Sebastian Ventriglia to the effect that Judge Wood was a close friend to Mr. Fred M'membe, who was, in turn, said to be close to Dr. Mahtani, the proprietor of Finsbury Investments. Neither the identity of the complainant nor the form in which this purported complaint was made to Judge Musonda is disclosed."
Nchito stated that from the Minister's brief, it would appear that judge Musonda's position was that when he was Judge in Charge, he received complaints to the effect that judge Wood had previously represented Dr Mahtani when he was in private practice.
"This is the information Judge Musonda says he passed on to Judge Kajimanga. It is important to note that Judge Musonda does not talk about the alleged close friendship between Judge Wood and Mr M'membe, which relationship Judge Kajimanga states was brought to his attention by the same Judge Musonda!" Nchito pointed out.
"Further, it is critical to note that Judge Kajimanga says that Judge Musonda told him about the complaint in July. Judge Musonda says that he received the complaint in his office. The question that begs an answer is, in which office? From 29th July to 3rd August, or thereabouts, when the movement of files was happening, Judge Musonda had long since ceased being Judge in Charge. In what capacity was he receiving complaints and giving directions to Judge Kajimanga to speak to Judge Wood?"
He further noted that contrary to judge Kajimanga's claim that he and judge Wood met and agreed in his (judge Kajimanga's) chambers that judge Wood should recuse himself, the latter's memorandum stated that that he received a telephone call from judge Kajimanga, "who INSTRUCTED him (Wood J) to recuse himself on the ground that the defendants (The Ventriglias) were losing their applications and that he (Wood J) was perceived as being a member of the Opposition Party, the Patriotic Front (PF)."
"Judge Wood also told the Chief Justice that Judge Kajimanga, the Judge in Charge, instructed him to recuse himself from cause No. 2009/HPC/322; Development Bank of Zambia Vs JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito. Judge Wood was instructed to recuse himself because, according to Judge Kajimanga, one of the parties was a friend to Judge Wood and that he (Judge Wood) was delaying the matter," Nchito stated.
"Judge Wood says he did not agree with these allegations but he recused himself."
He stated that Chief Justice Sakala added to the inconsistencies by introducing very embarrassing contradictions which gave the distinct impression that there was a conspiracy to pervert the course of justice.
"Justice Sakala says that Judge Wood does not dispute his relationship with Mr. M'membe as disclosed in the memoranda of Honourable Justices Musonda and Kajimanga. Firstly, Judge Musonda does not talk about a relationship between Judge Wood and Mr Fred M'membe. Which memorandum from Judge Musonda is the Chief Justice talking about?" Nchito wondered.
"Secondly, from your (Zulu) brief, it is also very clear that Judge Wood categorically denied the allegations made against him. Why then is the Chief Justice making an assertion that is wrong on the face of it?"
Nchito observed further that after the files subject of the complaints "were taken away from Judge Wood", counsel for Finsbury Investments wrote to Chief Justice Sakala on November 3, 2011, raising their concerns, but that the Chief Justice seemed to have misled the complaining parties.
"The Chief Justice wrote back on 23 November stating that he had investigated the complaint and ascertained the circumstances that led Judge Wood to send back the case for re-allocation. The Chief Justice stated that according to Judge Kajimanga, Judge Wood had recused himself because he was a friend of a friend of one of the parties," Nchito stated.
"This may sound like a tale we made, but the Chief Justice wrote in those terms. A copy of that correspondence is enclosed for your information."
He noted that what the Chief Justice did not disclose in his letter of November 23 was the fact he had in his possession a memorandum from judge Wood, which contained the latter's version of events.
"Indeed, Judge Wood paints a very different picture. The Chief Justice knew or at least ought to have known that what Judge Wood had to say in his memorandum to the Chief Justice was central to the complaint. There is no doubt that this amounts to concealment of relevant information from persons who ought to have received it," Nchito observed.
Nchito, who wondered why the Judiciary elected "to conceal what judge Wood had to say on countless occasions", stated that people should not be expected to have their matters adjudicated in an environment where judges could be interfered with without consequence.
"As discussed, we hold the considered view that the matters subject of this complaint have raised sufficient ground for formal inquiry before a decision can be made whether or not to request the setting up of a disciplinary tribunal. An inquiry will afford us an opportunity to have our complaints seriously investigated," stated Nchito.
On Monday last week, lawyers representing Post Newspapers Limited and JCN Holdings Limited and Mutembo Nchito, appearing in person, in the DBZ case walked out of judge Mutuna's court after the judge declined to see them in chambers or hear their application for an adjournment.
Nchito, Mutembo and M'membe said they had no choice but to excuse themselves from the proceedings because they were of the view that the judge was not ready to hear them and that he had already made a decision in the matter.
Judge Mutuna then proceeded to hear evidence from DBZ's witnesses, stating that since the defence was not before court, he took it they had opted not to be heard.
"The defendant having abandoned their defence, I will make no order for them to respond to the submissions. Judgment will be delivered on a date to be notified to the parties," said judge Mutuna.
But in his February 22 correspondence to the Minister of Justice, Nchito stated that he was bringing to the minister's attention the shocking circumstances surrounding the manner in which some members of the Judiciary had conducted themselves with regard to the matter.
"Our clients were sued by the Development Bank of Zambia (DBZ) in relation to the defunct Zambian Airways. The suit came on the back of very public threats from Mr. R.B. Banda, then President of the Republic of Zambia," he stated.
Nchito reminded the Minister that towards the end of 2008, two rallies were organised at State House at which former president Rupiah Banda vilified and denounced Post Newspapers, M'membe and Mutembo, accusing them of all manner of crimes which were ultimately not proven.
He stated that the matter was allocated to judge Wood, before whom trial commenced in July 2011, but that when the matter came up for cross-examination of the last witness for the plaintiff, judge Mutuna informed the parties that judge Wood had recused himself, that he (judge Mutuna) was taking over the matter and would hear it afresh.
"We tried to probe Judge Mutuna to understand why Judge Wood had recused himself so late in the matter. Why did the Judge not tell us himself in a matter that had gone so far? The Judge admonished that if we had any issue to raise we should make an application," stated Nchito.
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