The Constitutional Court has dismissed Dr Fred M’membe’s petition with costs, in which he was challenging the Kitwe High Court’s decision to quash the Judicial Complaints Commission’s ruling which found High Court judge Sunday Nkonde with a prima facie case for professional misconduct.
The court ruled that the petition was improperly before them.
In this matter, Dr M’membe, petitioner, cited judge Nkonde as first respondent and the Attorney General as second respondent.
On February 10, last year, Dr M’membe lodged a complaint before the Judicial Complaints Commission in which he alleged misconduct in the matter Judge Nkonde, as a presiding judge handled the matter between the ‘Post Newspaper Limited and Andrew Chimwenda and others.
The Commission proceeded to consider the evidence before it and by a ruling dated November 10, 2017 found that a prima facie case of misconduct had been established against Judge Nkonde.
On November 20, 2017, Judge Nkonde took out an action before the Kitwe High Court against the Attorney General, in which he challenged the decision of the Commission in finding him with a prima facie case of misconduct.
The matter was subsequently settled by the parties on December 5, 2017 through a consent judgement which granted an order of certiorari against the decision of the Commission.
Following the entry of the consent judgement, Dr M’membe brought an action before the Constitutional Court, challenging the jurisdiction of the Kitwe High Court which heard and determined Judge Nkonde and the Attorney General’s action.
He wanted the court to declare that the High Court did not have jurisdiction to hear and determine a matter relating to the exercise of Constitutional power by JCC.
Dr M’membe was further seeking a declaration that the proceedings and orders made in cause 2017/HK/771 were a nullity on account of jurisdiction and that all actions taken on account of the proceedings in the case, including the consent judgement, were null and void.
However, on March 27, 2018, the Attorney General filed an application to dismiss Dr M’membe’s case, arguing that the petitioner could not purport to set aside a consent judgment to which he was not a party.
Judge Nkonde adopted the State’s submissions.
He further stated that in essence, Dr M’membe was trying to use the proceedings to achieve an aim of declaring the liquidation of Post Newspapers Limited a nullity as he would be saying that the judge had no jurisdiction to perform his functions even to the point of signing off the consent order, which led to the liquidation of the Post Newspapers Limited.
And delivering the judgement on behalf of judges Annie Sitali and Enock Mulembe, Tuesday, Judge Martin Musaluke said Dr M’membe’s petition was improperly before the court and therefore dismissed it with costs to the Attorney General and judge Nkonde.
He said while the court agreed that judge Nkonde’s action in moving the High Court at Kitwe mentioned some constitutional provisions, their view was that the reliefs sought could not allow the High Court to venture into any constitutional interpretation.
Judge Musaluke said 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,” he said.
And Judge Musaluke said it was settled law that a consent judgement did not bind non parties to it, adding that any party that wished to challenge a consent judgement had to follow prescribed rules of procedure.
He further said the Constitutional Court agreed with the Attorney General’s position that Dr M’membe having not being a party to the matter before the Kitwe High Court, could not now purport to challenge a consent judgement.
Judge Musaluke said the proper procedure would have been for Dr M’membe to have applied for leave to join the proceedings before the Kitwe High Court and thereafter, by a fresh action, challenge the consent judgement.
“The perusal of the court record under cause no 2017/HK/771 point to the fact that the petitioner made no attempt to join the proceedings before the Kitwe High Court even post consent judgement but instead rushed to seek redress before the Constitutional Court. 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 judgement to which he was not a party without following the recognised rules of procedure,” he said.
Judge Musaluke said although Dr M’membe had argued that his petition did not seek to set aside the consent judgement, the effect of his action in an event that it was successful would result in setting aside of the consent judgement under 2017/HK/771.
He, therefore, dismissed the petition saying it was improperly before them.
“In view of the foregoing and on the totality of the evidence before us, 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,” ruled judge Musaluke.