COSMAS Musumali has petitioned Chief Justice Irene Mambilima to investigate and discipline Lusaka High Court judge Sunday Nkonde for allegedly swindling government.
Dr Musumali, who is an economist and Socialist Party leader, contends that judge Nkonde illegally withdrew K2.5 million from a frozen bank account in October, money belonging to the State.
Judge Nkonde is accused of having appointed himself lawyer to represent Tedworth Properties Incorporation and raised a controversial K2.5 million bill for unexplained legal services.
Without disclosing his client’s details, judge Nkonde, as a lawyer, obtained a court order allowing him to transfer K2.5 million from the Tedworth Properties account into another account belonging to a law firm associated to him.
But the State froze the said account following an appeal to the Supreme Court in the ownership case of Tedworth Properties.
After being appointed judge, justice Nkonde last October managed to take out the said amount, claiming it as legal fees.
The Supreme Court recently overturned the High Court’s decision over the ownership of Tedworth Properties and ordered State forfeiture of the property and its rental income.
In the letter below, Dr Musumali has petitioned the Chief Justice to institute investigations into how judge Nkonde obtained money which should have been surrendered to the State and to explain who hired him.
Dr. Cosmas Musheke Musumali
2434/M off Leopards Hill Road
24th January, 2017
Hon Madam Justice Ireen Mambilima,
Chief Justice of the Republic Of Zambia,
Dear Madame Chief Justice,
TEDWORTH PROPERTIES INC.
It was heartening to learn that the Supreme Court decided that the ‘Tedworth Properties’ rightfully belong the people of Zambia. This is a monumental decision in the fight against corruption which every well-meaning Zambian must support.
Unfortunately one of the disturbing collateral effects of the Supreme Court’s Tedworth decision is that it has exposed one of your Judges for having acted less than honourably in relation to Tedworth Properties.
I have followed the Tedworth case but the conduct of Mr Justice Sunday Nkonde has caused me a lot of concern and deserves inquiry.
I have become aware that in or around October 2016 Justice Nkonde while being a Judge of the High Court and while abusing the Judicial System by suppressing the truth collected K2.5 Million or K 2.5 Billion (unrebased) from the rental income of Tedworth Properties claiming that it was his fees for having represented the owners of Tedworth Properties Inc.
As I show below, there is good reason to believe that the basis for the collection of the money was fraudulent and dishonest from the outset.
It is interesting that Mr Justice Nkonde only appeared on the record in this matter claiming to represent the undisclosed owners of Tedworth Properties Inc after the High Court had handed down its judgement, which has now been overturned by the Supreme Court. Although this raises the question: what work did Justice Nkonde do to get 2.5 Million Kwacha, that is not the main issue. What is concerning is the way Justice Nkonde as a Judge proceeded to get K2.5 Million in circumstances that reveal fraud and deceit requiring explanation from him since the money he has taken is public funds.
Justice Nkonde claimed to be acting on behalf of the owners of Tedworth Properties Inc , a company allegedly based in Panama, South America. Even as he appeared in court claiming to be representing the Panamanian owners, the media was clear that he was trying to get the property for the late former President Fredrick Chiluba who illegaly used the name of a Panamanian shell company to conceal ill-gotten property. In this , the media appear to have been vindicated by what transpired in the Supreme Court where claims were now ostensibly being made for Dr Chiluba. For his part, Dr Chiluba never claimed those properties while he lived. In fact his agents in Access Financial Services Ltd, in particular Mr. Faustin Kabwe, told the authorities that those were properties held on behalf of the State Intelligence Services. This is documented in Court records.
Returning to Justice Nkonde, after Dr Chiluba passed away, the Judge undertook a series of actions that amount to fraud and deception on our court system which ended with him unlawfully collecting 2.5 million Kwacha, from the rental income of Tedworth Properties, in or around October 2016 after he had become a Judge.
Justice Nkonde had earlier retained a Law firm, Okware and Company, to Tax his alleged bill of K2.5 Billion unrebased for services allegedly rendered to the owners of Tedworth. They went on to tax the bill and obtain a Certificate of Taxation for K2.5billion. Armed with this certificate, they got a Garnishee Order against the rental income that Bank of Zambia were managing in the name of Tedworth on behalf of the Anti-corruption Commision. This is money Justice Nkonde managed to get in October 2016 after he assumed the office of Judge of the High Court of Zambia.
What is the nature of this fraud? Before Judge Nkonde could claim any money from Tedworth Properties for acting for the owners of Tedworth, he had to be retained by Tedworth. Justice Nkonde claimed to be acting for the owners of Tedworth who never appeared in court. The question then is: who retained him? Who gave him instructions to act for Tedworth. Who in Tedworth was he talking to , to receive instructions?
As alluded to above, after Dr Chiluba’s demise there is now a suggestion that those who claimed to be acting for Tedworth Properties Inc were in fact acting for Dr Chiluba.
As for Justice Nkonde , he may well claim to have obtained the money complained of herein , through a legitimate and arm’s length Court process called taxing a bill of costs and has obtained proper Court orders. That process and the court orders were obtained by fraud and deception – a deliberate suppression of the truth.
There are still a number of disturbing questions that Justice Nkonde needs to answer.
Who did he send the K2.5 billion bill to before he went to Tax his bill in court? Could it be Dr Chiluba? Dr Chiluba had passed away. Which owner of Tedworth then was Justice Nkonde dealing with for his bill of costs.
What about the Taxation before our courts: What did he say about where he sent his bill for work done for the supposed owners of Tedworth? Who did he serve those taxation documents on , since Dr Chiluba was deceased?
Justice Nkonde knew or ought to have known that there was no one from the so called owners of Tedworth Properties Inc who, allegedly instructed him, who was going to defend the Taxation and proceeded to collect the K2.5 billion bill on the back of a contrived undefended Taxation.
The questions still remain – who instructed him and to who did he send the bill? How did he end up in taxation? Who did he serve the Taxation documents on? What about the certificate of Taxation, who did he serve it on before proceeding to garnishee the rental income of Tedworth after Dr Chiluba’s demise?
Was he trying to defraud the estate of Dr Chiluba assuming the estate was entitled to that money.
Now that the Supreme Court has found that Tedworth Properties and consequently the rental income from the same was rightly forfeited to the State, Justice Nkonde could not then garnishee State funds to pay him for work allegedly done for a client he has not disclosed. In any event he collected the money wrongly by pretending to have sent a bill to a client who failed or refused to pay. The simple question remains where did he send the bill?
Madam Chief Justice this is a fraud committed by a man who occupies a high judicial office.
This was an ex-parte taxation of costs billed to a non- existent client targeting State funds held under the forfeited Tedworth.
I demand that Judge Nkonde pay back the money he got and that his conduct be investigated.
I further demand that Justice Nkonde be held to account for this fraud.
Dr. Cosmas Musheke Musumali
CC: Anti-Corruption Commission, Lusaka
Law Association of Zambia
Mr Justice Sunday Nkonde SC
Messrs Simeza Sangwa & Associates
The Judge in Charge – Commercial Court
Transparency International Zambia