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Judge Nkonde asks ConCourt to dismiss M’membe’s application to review costs order

JUDGE Sunday Nkonde has opposed an application by former Post Newspaper proprietor Fred M’membe to the Constitutional Court to interpret or review costs awarded to the judge, the State and Post Newspapers Limited (in liquidation).

Judge Nkonde has asked the court to dismiss Dr M’membe’s application with costs as there was no need for interpretation or review of costs because the matter was already determined.

“Costs are at the discretion of the court. The case has already been determined and the issue of costs has already been properly dealt with hence there being no need for interpretation or review, this application be dismissed with costs,” judge Nkonde said.

In this matter, the former editor-in-chief of The Post had challenged the Kitwe High Court’s decision to quash the Judicial Complaint Commission’s (JCC) ruling, which found judge Nkonde, then at the High Court, 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 in 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.

He was seeking 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, Dr 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 submitted.

But according to skeleton arguments in opposition to the petitioner’s notice of motion to interpret or review the court’s order for costs sworn by judge Nkonde’s lawyer Jonas Zimba, the respondent said the reliefs sought by Dr M’membe do not indicate the interpretation of the court’s jurisdiction and Constitutional powers of the Judicial Complaints’ Commission, under Article 144 of the Constitution, which provides the procedure for removal of a constitutionally appointed judge as alleged by the petitioner in his notice of motion for interpretation and or review of the costs order.

“It is shocking that the petitioner seeks to interpret and 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,” Zimba said.

“The petitioner was seeking costs from the respondent but now that he has been condemned in costs he has raised an issue that the matter was Constitutional hence costs should not have been awarded to the first respondent when he himself was claiming them.”

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