The staying of the consent order granted against Kingphar Company Zambia Limited, which placed the firm on liquidation and appointed Lusaka lawyer Lewis Mosho as its business rescue administrator, is necessary and timely.
Consent judgments are increasingly being abused. And top on the list of the main abusers of consent orders is Mosho. In second position is the Attorney General.
It is difficult to understand how the Zambian judiciary has for such a long time tolerated these abuses.
Mosho has, in ways that cannot be said to be fair and just, ‘eliminated’ the other parties from the disputes and entered into consent judgments with ‘himself’.
His common approach is to gain control of the company, remove the shareholders and directors and then enter into consent judgment with himself.
If Mosho is stopped from doing so, his schemes will be curtailed.
But if the decree was obtained by means of fraud or given by mistake, it may be set aside by a court. Errors of law or of inferences from the facts may invalidate it completely.
Typically, a consent decree dispenses with the necessity of having proof in court, since by definition the defendant agrees to the order. Thus, the use of a consent decree is not an admission of liability.
Likewise, the consent decree prevents a finding of facts, so the decree cannot be pleaded as res adjudicata.