FORMER Post Newspaper editor-in-chief Fred M’membe has withdrawn the motion before the Constitutional Court in which he asked it to interpret or review costs awarded to judge Nkonde, the State and Post Newspapers Limited (in liquidation).
Dr M’membe, through his lawyer Nchima Nchito, told court that his intention to withdraw the application was for him to comply with the court’s directions that a party seeking to reopen the Court’s judgment ought to seek leave of the court.
In this matter, Dr M’membe was ordered to pay costs to High Court judge Sunday Nkonde, the State and the liquidators of The Post after Constitutional Court judge Martin Musaluke dismissed his petition in a matter where he was challenging the Kitwe High Court’s decision to quash the Judicial Complaint Commission’s (JCC) ruling that found judge Sunday Nkonde with a prima facie case for professional misconduct.
Dr M’membe, who cited the Attorney General, sought a declaration that the proceedings under cause 2017/HK/771 before the Kitwe High Court were a nullity on account of want of jurisdiction and that the consent judgment entered in that case to liquidate his newspaper without his consent was null and void.
However, the Constitutional Court dismissed the case for lack of merit and condemned him to costs, but Dr M’membe filed a motion asking the Constitutional Court to interpret or review its order.
He said judge Nkonde had already demanded costs from him and the liquidator of his company, Lewis Mosho, had placed a caveat on his house as a result of the costs order.
According to an affidavit in opposition to the notice of motion for interpretation or review of costs order, Attorney General Likando Kalaluka indicated that that the Constitutional Court was functus officio regarding the judgment of December 11, 2018.
He submitted that it was indisputable that judgments of the Constitutional Court were final.
Kalaluka said Dr M’membe, in his motion to review costs, wanted to persuade the court to overturn its final decision by reviewing the merits upon which the costs were awarded.
He argued that Dr M’membe also wanted to convince the court that his petition raised novel issues in which costs were not ordinarily awarded.
When the matter came up for hearing before three judges of the Constitutional Court headed by justice Annie Sitali, Nchito made an application to abandon the motion.
Nchito said the application was based on the court’s guidance that where a party seeks to reopen the final judgment of the court, that party must make a formal application to seek leave to reopen the judgment.
“We seek the Court’s discretion to allow us abandon the motion application so that we can comply with the Court’s guidance by seeking leave to reopen the judgment. We ask that this court should order each party to bear own costs,”Nchito said.
In reply, lawyer representing judge Sunday Nkonde, Jonas Zimba, told the court that the discontinuance of the motion for withdrawal and reliance placed in the case of Steven Katuka raised a question of jurisdiction on whether the court could entertain an application for withdrawal.
“The court has no jurisdiction to entertain the application for withdrawal in a matter where it has no jurisdiction as the only solution available is to dismiss the application for want of jurisdiction,” Zimba said.
“The motion is incompetent before court. I seek this court to move in the direction that the finding of the petition is competently before court and should be dismissed with costs”.
Supplementing Zimba’s argument, the state said the court had no jurisdiction to entertain the application by Dr M’membe and the matter should be dismissed.
In response, Nchito said it was unfortunate that the respondents believe that a party that comes to court and realises that it has wrongly come to court is not entitled to withdraw the case.
“There is nothing special with this matter. Why should a party who realises it made a mistake should not be allowed to withdraw the motion and restrategise? We humbly seek that the court allows the motion and should not award costs against it,” said Nchito.
In its ruling, the court granted Dr M’membe’s application for withdrawal.
Judge Martin Musaluke ruled that a party was at liberty to withdraw a matter at any stage before judgment.
Justice Musaluke made no orders to costs.