LUSAKA lawyer Lewis Mosho has asked the Supreme Court to set aside the judgement in which it ruled that his actions prior to and post the purported liquidation of the Post Newspapers Limited, are of no legal effect whatsoever.
Mosho has argued that the court went ahead to make a number of pronouncements and orders against him as Liquidator of the Post Newspapers Limited without affording him an opportunity to be heard.
He adds that the third parties who bought Post assets from him were also not heard by the Supreme Court before making a decision affecting them, further arguing that his acts as the Liquidator are valid notwithstanding any defect or irregularity affecting the validity of winding up or his appointment.
On February 17, the Supreme Court ruled that the liquidation of the Post Newspaper Limited was conducted in a wrongful manner, further ordering that the winding-up proceedings should be re-opened before a different High Court judge, with liquidator Lewis Mosho joined to the matter so that he can bear personal liability of his actions.
Supreme Court judges consisting; Chief Justice Mumba Malila, justices Albert Wood and Jones Chinyama described the liquidation of the Post Newspaper Limited in the manner undertaken by Mosho as a faux.
The court further observed that presiding judge Sunday Nkonde acted in an unjudicial way by shutting the doors of justice in the face of the appellants (Dr Fred M’membe and the Post Newspapers Limited (in liquidation).
However, Mosho has now asked the Supreme Court to set aside the said judgement on grounds that the action for and on behalf of the Post Newspapers Limited (in liquidation) was commenced without his authority as the liquidator or a derivative order and as such the Post Newspaper was a party to the action without due authority.
He has further argued that neither the liquidator nor the Post Newspapers Limited was heard in the appeal as Dr M’membe proceeded to purportedly act for and on behalf of the Post Newspapers Limited without authorisation.
Meanwhile, Mosho’s law firm Lewis Nathan Advocates and Makebi Zulu Advocates have been appointed to act as co-advocates for Post Newspapers Limited (in liquidation).
“Take notice that Lewis Nathan Advocates and Makebi Zulu Advocates, Lusaka, have with immediate effect been appointed to act as co-advocates for the second appellant herein (Post Newspapers),” read the notice of appointment as co-advocates filed by the two law firms in the Supreme Court.
According to an affidavit in support of notice of motion to set aside the judgement dated February 17, filed into court, Wednesday, Mosho stated that the said judgement only came to his knowledge after it was circulated on social media.
He argued that there has not been any order of the court on record or known to him which allowed Dr M’membe to bring a derivative claim by way of appeal before the Supreme Court, adding that a court order was necessary to allow a member or a shareholder in a company to continue a derivative claim by way of appeal.
Mosho lamented that he should have been heard by the court before any pronouncements were made in relation to him.
“A perusal of this Honourable Court’s judgement also shows that there are a number of pronouncements and orders that were made against myself as liquidator of the second appellant without being afforded an opportunity to be heard in the appeal before court. I am advised by my advocates and verily believe the same to be true that in the interest of justice a person has a right to be heard and ought to be heard before any pronouncements are made in relation to him. I am of the minded view that if I were given an opportunity to make representation before this Honourable Court before the judgement was passed, a number of issues would have been raised which issues I believe would have greatly helped the court,” he stated.
“During the subsistence of the liquidation of the second appellant, I proceeded as liquidator to sell some of the assets of the second appellant to third parties as bona fide purchasers for value. I am advised by my advocates and verily believe the same to be true that the judgement of this Honourable Court affects inter alia the rights of the third parties who bought assets from or who were paid by the liquidator relying on the strength of the Court Order granting the liquidator power to deal with the assets of the second appellant. I am aware that these third parties who bought properties from myself as the liquidator on the strength of the court order were not heard by this Honourable Court before making a decision affecting them. I am further advised by my advocates and verily believe the same to be true that the acts of the liquidator are valid notwithstanding any defect or irregularity affecting the validity of winding up or his appointment.”
Mosho stated that the Supreme Court’s judgement had the effect of setting aside the consent judgement entered by the parties under case No.2016/HPC/0518 on an application by Dr M’membe who is a non-party to the proceedings and the said consent judgement.
He, therefore, urged the court to set aside the judgement.
“I am advised by my advocates and verily believe the same to be true that the Supreme Court and the Constitutional Court rank equivalently and that no one decision of either the Supreme Court or the Constitutional Court can overrule the decision of the other. I am furthermore advised by my advocates and verily believe the same to be true that under these circumstances I can apply to this Honourable Court to set aside the judgement dated 17th February 2022. No prejudice will be occasioned to any of the parties in this matter but ultimately the interests of justice will be served if this application is granted,” stated Mosho.