ConCourt dismisses Dr M’membe’s petition with costs

By Staff Reporter

THE Constitutional Court has dismissed the case in which Dr Fred  M’membe was challenging the Kitwe High Court’s decision to quash the Judicial Complaint Commission ruling in which High Court judge Sunday Nkonde was found with a prima facie case for professional misconduct in the manner in which he handled the Post Newspapers Limited liquidation.

Delivering judgment on behalf of judge Annie Sitali and Enock Mulembe, judge Musaluke dismissed Dr M’membe’s petition with costs for being improperly before the Constitutional Court.

In the petition that Dr M’membe filed in the ConCourt, he sued judge Nkonde and the Attorney General and wanted the court to declare that the Kitwe High Court’s decision to quash the Judicial Complaint Commission (JCC) ruling, that found the judge with a prima facie case for professional misconduct after the judge and the Attorney General entered a consent agreement was a nullity.

The petitioner was further seeking a declaration that the Kitwe High Court proceedings in cause number 2017/HK/771 were a nullity on account of want of jurisdiction and further that all actions that were taken out were null and void.

But the Attorney General applied that Dr M’membe’s petition be dismissed with costs, saying he was not a party to the consent order and could therefore, not purport to set it aside.

Judge Nkonde agreed and adopted the submissions by the Attorney General, adding that Dr M’membe in essence was trying to use the proceedings to achieve an aim of declaring the liquidation of Post Newspapers Limited a nullity because he was arguing that the judge had no jurisdiction to perform his functions even to the point of signing off the consent judgment which led to the liquidation of the Post Newspapers Limited.

However, the Concourt said Dr M’membe’s petition was improperly before court and dismissed it with costs to the respondents.

Judge Musaluke added that while the court agreed that judge Nkonde’s action in moving the Kitwe High Court mentioned some constitutional provisions, they were of the view that the reliefs he sought could not allow the High Court to venture into any constitutional interpretation, adding that the basis of the suit before the Kitwe High Court was to set aside the decision of the JCC on the basis that the rules of natural justice were not complied with.

“As such, we find that the High Court at Kitwe was competently clothed with jurisdiction to hear and determine the first respondents action. It is settled law that a consent judgement does not bind non parties to it. Any party that wishes to challenge a consent judgment has to follow prescribed rules of procedure,” judge Musaluke said.

He added that the court agreed with the Attorney General’s submission that Dr M’membe having not being a party to the matter before the Kitwe High Court could not now purport to challenge the consent judgment that was entered.

The judge said proper procedure would have been for Dr M’membe to have applied for leave to join the proceedings at Kitwe and thereafter, by a fresh action, challenge the consent judgment but that the perusal of the court record under cause no 2017/HK/771 points to the fact that Dr M’membe made no attempt to join the Kitwe High Court proceedings even post consent judgment but instead rushed to seek redress before the Concourt.

“The routes taken by the petitioner by way of lodging a petition before this court was incongruous and inapt. The petitioner cannot set aside the consent judgment to which he was not a party without following the recognised rules of procedure,” judge Musaluke said.

On Dr M’membe’s arguments that his petition did not seek to set aside the consent judgment, judge Musaluke said the effect of the petition in an event that it was successful would result in setting aside of the consent judgment under 2017/HK/771.

“Since that is the end that the petitioner wishes to achieve, we guide that the rules for setting aside the consent judgment ought to strictly apply. On the totality of evidence before court, we find that the second respondent’s application to dismiss the petition has merit and succeeds. The petition is improperly before this court and we dismiss it with costs to the respondents,” said judge Musaluke.