Judge Mweemba breached constitution in Finance Bank case, Sangwa tells CJ

Lusaka lawyer John Sangwa has charged that High Court judge William Mweemba breached the Constitution in the Finance Bank case occasioning the defendant serious financial losses and incalculable damage to its reputation as a financial institution.

This is contained in a letter dated September 20, 2019 where Sangwa, of Messrs Simeza Sangwa and Associates, wrote to Chief Justice Irene Mambilima on a subject titled “The Need for Judges and Judicial Officers to Uphold Article 18(10) of the Constitution” in reference to the case of Dimitrios Monokandilos & Another v Finance Bank Zambia Limited.

In the letter, Sangwa noted that the Sheriff of Zambia, in the company of others, executed the writ of fierifacias without prior notice.

The Sheriff of Zambia last week pounced on Atlas Mara branch, which previously operated as Finance Bank before the merger with BancABC.

“Mr Justice W. S. Mweemba breached this provision of the Constitution in relation to Finance Bank Zambia Limited (hereinafter referred to as “the Defendant”) in the captioned matter, thereby occasioning the Defendant serious financial losses and incalculable damage to its reputation and standing as a financial institution. In this case Judgment was delivered by Mr Justice Mweemba on 28 th March 2018, an appeal was immediately lodged with the Court of Appeal on 4th April 2018 and an ex parte order staying execution of the Judgment pending appeal was granted on the same day. The said application was heard inter-partes on 7th May 2018 and the Judge indicated that the ruling would be delivered on a date to be communicated to the parties. Although the Defendant, a financial institution, was willing to pay the judgment debt, the Defendant’s Advocates advised against it on the ground that the Plaintiff is a foreigner with no assets in Zambia and had previously been deported from Zambia. Therefore, in the event of the Judgment being reversed by the Court of Appeal, there would be no prospects of recovering the money,” read the letter.

“Despite, as alluded to above, the matter being adjourned on the premise that the parties would be advised on the date when the Ruling would be delivered, this did not happen. No such communication was received from the Court. Events unravelled in the early morning of Wednesday 18 th September 2019, when the Sheriff of Zambia in the company of the judgment creditor, a police officer and a few hired hands, stormed the Defendant’s premises located at Atlas Mara House, First Floor, Corner of Church Road and Nasser Road, Lusaka to execute the writ of fierifacias. It turned out that the Ruling refusing the stay of execution of the Judgment pending appeal is dated 16th September 2019, the Plaintiffs filed the writ of fieri facias on 17th September 2019. Our copy of the Ruling was only placed in the pigeonhole on 18th September 2019, after we followed up on the matter with the Judge’s Marshall20 th September 2019.”

He stated that all proceedings needed to be held in the presence of both parties.

“Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public. According to Article 18(10) of the Constitution, all proceedings before Court, including the delivery of the decisions of the Court, must be held in public in the presence of both parties. The converse is that the proceedings, which include the delivery or the announcement of the decisions of the Court can be held in Chambers and only with the agreement of the parties and the Court. Placing judgments of the Courts in pigeonholes with or without the knowledge of the parties, especially after one year and four months since the inter-partes hearing of the application for stay of execution of the Judgment pending appeal, does not meet the requirements of Article 18(10) of the Constitution. Furthermore, the Judge and the parties cannot agree to any settlement or arrangement, which is not consistent with the Constitution or the law,” Sangwa’s letter read.

“My Lady, compliance with Article 18(10) of the Constitution would have prevented the harm that the Defendant in this case has suffered. Such breaches of the Constitution place financial institutions, sensitive institutions and prominent individuals whose reputation is the lifeblood of their very existence under the risk of succumbing to the dictates of unscrupulous litigants whose only intention is to damage their reputation. Invariably the damage to the reputation cannot be quantified and even if it can, the architects of the damage are invariably unable to atone for such damage in monetary terms.”

He stated that while there is no legal recourse against judge Mweemba for breach of Article 18(10) of the Constitution, there ought to be some administrative action, which must be taken to redress or atone for the breach of the law.

“The Judgment of the Supreme Court in the case of Savenda Management Service v Stanbic Bank Zambia Limited (Appeal No. 37/2017 Selected Judgment No. 10 of 2018) was prompted by unfounded and baseless accusations of corruption against the Judges of the Supreme Court who decided an earlier case between the same parties. Unfortunately, such judgments will not be enough to ameliorate the standing of the Judiciary or immunize it from such allegations. A lot more needs to be done,” stated Sangwa.

“Article 122 (1) of the Constitution guarantees the Judiciary functional independence thereby providing Judges and Judicial Officers (hereinafter collectively referred to as “Judges”) immunity from suit in the event of breaches of the law in the discharge of their judicial functions. However, that immunity is not a licence for Judges to conduct themselves as they please. It is enjoyed on the premise that they are independent, impartial, and subject only to the Constitution and the law in the exercise of the judicial authority. When there is departure from this ideal, Judges stop to dispense justice but start to occasion injustice to the people who appear before them.”




Natasha Sakala

About Natasha Sakala

Natasha Sakala draws inspiration from people who stand up for what is right. She is very versatile and likes to bring out issues as they are.

Email: natasha [at] diggers [dot] news

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