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ConCourt stays taxation proceedings in M’membe, Post liquidation case

THE Constitutional Court has stayed taxation proceedings by Industrial Relations Court Judge Sunday Nkonde against former Post Newspaper proprietor Fred M’membe.

Constitutional Court registrar Dorcas Malama has stayed the taxation proceedings pending determination of Dr M’membe’s application before the court to interpret and review the costs order of the judgment of December 11, 2018 where he was condemned to costs.

This was in a matter where M’membe was challenging the Kitwe High Court’s decision to quash the Judicial Complaint Commission’s ruling, which found judge Nkonde, who presided over the liquidation case 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 under cause number 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, the court dismissed his petition saying he was not a party to the proceedings and awarded costs to the respondents.

Judge Nkonde applied for bill of costs out of time claiming that the delay was owing to Dr M’membe’s failure to respond to his request for costs.

At trial, judge Nkonde prayed that his application be granted and that Dr M’membe be condemned to costs.

He said that on December 11, 2018, the court awarded costs in his favour and subsequently on January 11, he demanded for payment from Dr M’membe by a letter to his advocates but there was no response from the petitioner which caused the delay in filing the notice of appointment to tax costs.

“Failure to file the notice of taxation within the prescribed period of three months was on account of the belief that the costs would be paid by the petitioner without the need for taxation proceedings,” said judge Nkonde.

“No prejudice will be occasioned on the petitioner by allowing the first respondent’s application as the petitioner will have an opportunity to file their list of objections to be heard on taxation.”

However, Dr M’membe argued that Order 13 Rule (2) of the Constitutional Court Rules of 2016 states that taxation proceedings for costs shall be commenced within three months of judgment or such time as may be allowed by the taxing officer.

“Judgment awarding costs was delivered in December 2018 and the application for leave was made eight months after judgment was delivered. The delay in filing the application is inordinate and should not be allowed,” Dr M’membe submitted.

“The taxation proceedings should either be dismissed or stayed until determination of the applications pending before court.”

In his response, judge Nkonde argued that Dr M’membe’s argument that his delay in filing the application was inordinate was not tenable as he did not respond to his request for payment of costs.

He further insisted that the court had jurisdiction to grant the application sought as the delay was caused by the inaction by the petitioner.

In her ruling, the Constitutional Court registrar said the order for costs that was subject of the application pending before court was the same one, which was the basis of the taxation proceedings.

In the proceedings before Constitutional Court judge Martin Musaluke, Dr M’membe sought an interpretation or review of costs awarded to the State and the Post Newspapers Limited (in liquidation).

The Socialist Party leader made an application that the execution of the judgment be stayed pending determination of his application.

He also sought an order to reverse the winding up of the Post Newspaper limited.

According to an affidavit in support of ex-parte summons for stay of execution of judgment pending interpretation and review of costs, M’membe stated that the respondents had applied for bill of costs out of time and that the said application would prejudice his request for review or interpretation of the costs order.

“This honourable court entered judgment against the petitioner on December 2018 and awarded the respondents costs. I applied for a review and interpretation of the costs order in the judgment on 26 August 2019. The first respondent has applied for leave to bill of costs out of time,” he said.

“My application for review and interpretation will be rendered nugatory and a mere academic exercise if the judgment of this court is not stayed pending hearing and determination of the said application.”

Dr M’membe has since withdrawn his application to stay execution of judgment dated December 11, 2018 where he was condemned to costs, following an opposition by Attorney General Likando Kalaluka that the applicant was misconfigured and improperly before court.

However, the Constitutional Court Registrar ruled that she was unable to rule on judge Nkonde’s application.

“I am unable to determine and rule on the application for leave to file notice for taxation out of time at this stage,” said Registrar Malama.

“Consequently, I order that the taxation proceedings be and are hereby stayed pending the outcome of the petitioner’s application before the court to interpret and review the costs order of the judgment of 11 December 2018. I make no order to costs.”

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