Lusaka High Court judge Sunday Bwalya Nkonde has told the Constitutional Court that the matter where former Post Newspaper proprietor Dr Fred M’membe is seeking a review or interpretation of costs he was ordered to pay has already been properly dealt with and requires no further analysis or elucidation.
Judge Nkonde has since asked the court to dismiss the application with costs, arguing that it’s shocking that Dr M’membe seeks to interpret or review the order for costs when there is nothing uncertain in the judgment.
In this matter, Dr M’membe was challenging the Kitwe High Court’s decision to quash the Judicial Complaints Commission’s (JCC) ruling, which found judge Nkonde with a prima facie case for professional misconduct.
Dr M’membe had petitioned judge Nkonde and the Attorney General seeking a declaration that the proceedings 2017/HK/771 before the Kitwe High Court (the winding up of the newspaper) were a nullity on account of want of jurisdiction and that the consent judgment entered in that case was null and void.
However, Constitutional Court judge Martin Musaluke dismissed Dr M’membe’s petition for lack of merit and ordered him to pay costs.
But Dr M’membe sought a review or interpretation of the same in the Constitutional Court, to which judge Nkonde has argued that there’s nothing uncertain in the judgment warranting the court to interpret.
In an affidavit in opposition to notice of motion to interpret or review costs order filed on September 6, judge Nkonde’s lawyer Jonas Zimba argued that the judgment of the court was very clear as to who should bear the costs in the matter.
And in the list of authorities and skeleton arguments, Zimba submitted that according to reliefs sought by Dr M’membe, there was none that was concerned with the interpretation of the court’s jurisdiction and constitutional powers of the Judicial Complaints Commission under Articles 144 of the Constitution, which provides the Procedure for the removal of a constitutionally appointed judge as alleged by Dr M’membe in the notice of motion for interpretation and/or review of the costs order filed into court on August 26, 2019.
He further argued that costs were at the discretion of the court and referred the case of Savenda Management Services Vs Stanbic Bank Zambia Limited (SCZ judgment number 10 of 2018) where the court awarded costs to Stanbic even though the case was a novel one, touching on the relationship of the banker and the customer over the money obtained by the customer in this jurisdiction.
“It is shocking that Dr M’membe seeks to interpret or review the order for costs when there is nothing uncertain in the judgment of the court that would warrant the court to interpret as everything in the judgment is self explanatory, including the order for costs as who bears the costs,” stated Zimba.
“In conclusion, this case has already been determined and the issue of costs has already been properly dealt with, hence, there being no need for interpretation and/or review. This application be dismissed with costs.”