Maravi

What is their problem?

What is their problem?
By The Post
Tue 08 May 2012, 14:01 CAT

So far, we have complained about our mistreatment by the Judiciary and
held back.

We have always wanted to allow the due process of the law to take its
course. That is not to say that we have no arguments to defend ourselves,
no evidence to demonstrate the criminality that has gone on in the
Judiciary against us. We have all this.

We have the means and the capacity to defend ourselves from unwarranted
and malicious attacks. We have endured the worst forms of slanderous and
libelous campaigns against us. And we have had the misfortune of sharing
this with President Michael Sata when he was in the opposition.

Unfortunately, those attacks were from the same people who are trying to
malign us today. Radio and television programmes were initiated with the
support and connivance of some of these fellows for no other reason other
than to vilify us and Michael. They failed to achieve their objective.

Michael won the election which they thought he would never win because of
the many lies they had told about him and about us. They are at it again
today. What they can't stand is Michael's electoral victory against them.
What they cannot stomach is the support Michael and his government are
receiving from the great majority of our people and indeed from us.

They want the people to turn against Michael. They are every day dreaming of
schemes to achieve this. They want us to turn against Michael and his
government and embrace them. For what? They are choking with envy. They
have swallowed their defeat and their mouths are bitter.

This is so because defeat is not bitter unless you swallow it and they have swallowed it. Their bitterness is making them fail to see even straight facts,
simple facts. Their hatred for us and Michael has turned them blind to a
point where they are not able to reckon with the facts and they have
become very forgetful.

They have the right to be in the opposition. But they will not achieve
much as opposition if they anchor their political practices on lies, envy
and hatred.

We have never asked anyone for help so that we escape being accountable.
We are responsible for everything that we say or do. And this applies to
the businesses we run. If we do something wrong, we deserve to be
punished, to be made accountable like everybody else. This has always been
our position.

This is what we said when Rupiah Banda and his friends were
after us. We never ran away or asked for mercy from them. We simply told
them to investigate, arrest and prosecute us if they thought we had done
anything wrong. This is the same approach we hold today. We will never ask
Michael or anyone to protect us from being made accountable for our deeds.

And this is our position in this case that hyenas, jackals and all sorts
of scoundrels are trying to use to lift themselves out of political
oblivion. The sequence of events over this issue is well known. Our first
complaint about the injustice that was going on against us was to the
Chief Justice. When he failed to address our complaint, and knowing what
we knew, we decided to complain to the Minister of Justice.

And after the
Minister of Justice, on his own, found out what was going on, he
recommended to the President the setting up of a tribunal. And this is
where we are today. And here below we publish our ] correspondence to this
effect:


OUR REFERENCE: J/7/MUT/jn

10th January 2012

His Lordship the Chief Justice
Supreme Court of Zambia
Supreme Court Building
Lusaka

My Lord,
LETTER OF COMPLAINT: DEVELOPMENT BANK OF ZAMBIA AND JCN HOLDINGS LIMITED,
POST NEWSPAPERS LIMITED, MUTEMBO NCHITO CAUSE NO.2009/HPC/O322
We refer to the matter captioned and advise that we act for the Defendants
JCN Holdings Limited, Post Newspapers Limited and Mutembo Nchito, kindly
therefore, note our interest.

Our complaint in relation to this matter relates to the manner that the
matter was moved from being heard by Judge A. M. Wood to Judge N. K.
Mutuna.

My Lord, hearing of Cause No. 2009/HPC/0322 commenced in July 2011 before
Judge Wood. At the last hearing the Plaintiff called all of its witnesses
and the Judge adjourned the matter to 29 August 2011 for the conclusion of
cross examination of the Plaintiff's last witness.

On 25 August 2011 the parties were summoned to appear before Judge Mutuna
who stated that Judge Wood had recused himself from hearing the matter and
that he (Judge Mutuna) would hear the matter de novo.

Section 6 of the Judicial Code of Conduct Act No. 13 of 1999 stipulates
specific instances when a judge or judicial officer is disqualified from
adjudicating on a matter and may recuse himself from hearing the matter.
The instances include cases where the officer has a personal bias or
prejudice concerning a party or a party's legal practitioner or personal
knowledge of the facts concerning the proceedings. Whereas Section 6 of
the Act deals with the circumstances that give rise to/or justify recusal,
Section 7 of the Act deals with the procedure that follows after a
judicial officer realizes that he is disqualified from hearing a matter.

According to Section 7 where a judicial officer is disqualified from
hearing a matter, at the commencement of the proceedings, or after
consideration of the matter, the judicial officer is required to disclose
his disqualification to the litigants. After making the disclosure, the
judicial officer then has a duty to request the parties and their legal
representatives to consider, in his absence, whether or not to waive the
disqualification.

Under sub section 2 of Section 7 of the Act, the litigants are by law
given the option to agree to waive the disqualification where the judicial
officer has disclosed an interest in the matter other than personal bias
or prejudice concerning a party to the proceedings. Subsection 3 of
Section 7 then provides that a disclosure or an agreement as the case may
be, made under subsection (2) shall form part of the record of
proceedings.

In the present matter, we do not know how the Judge recused himself, or if
he in fact recused himself because the record is silent. The recusal was
communicated to the litigants on 25 August 2011 after the matter had
already been transferred or reallocated to Judge Mutuna. Again, the
record is not clear what transpired. Was it transfer or was it a
re-allocation? Depending on what it was specific legal question arise in
any event as we shall show later.

The procedure that was adopted has caused alarm to the Defendants in this
matter. If indeed the Judge recused himself at such a late hour, then the
requirement that the reason(s) for such recusal be made known is critical,
as not only is it untypical for a Judge to recuse himself midstream, but
we have also not come across a judicial precedent that acts a guide in
dealing with how to respond to this situation.

With regard to Judge Mutuna's decision to hear the matter de novo, Part VI
of the High Court Act confers power on a High Court Judge to, by way of an
Order transfer a matter to another High Court Judge as long as the Judge
to whom the matter is being transferred consents to such transfer. The
decisions of both the transferring Judge and the receiving Judge form part
of the court record and the power to transfer a matter is exercisable with
or without application from the litigants.

Section 23 and 26 of the High Court Act govern the actual transfer.
Section 23 vests the court with power to transfer a matter. Section 26
goes on to provide that every order of transfer made under Part VI of the
Act shall operate as a stay of proceedings before the court or Judge from
whom the proceedings are to be transferred. The proceedings in every such
cause or matter, and an attested copy of all entries in the books of the
court from which the transfer is made shall, where necessary, be
transmitted to the court or Judge to whom the same shall be transferred,
and such cause or matter shall be continued, heard and determined by such
court or Judge. Clearly the Act anticipates that the matter shall be
continued from where it was left off, heard and determined and not
re-opened or re-heard.

As stated before, it should be noted that Section 6 of the Judicial Code
of Conduct Act No. 13 of 1999 provides for the circumstances under which a
Judge may recuse himself. Section 7 of the Act deals with the procedure
that governs what should happen after a judge discovers/establishes that
he is disqualified from hearing a matter, that is to, disclose the
disqualification to the parties and offer them an option to waive the
disqualification. Where the parties opt to waive the disqualification, the
matter should proceed before the same judge. In any event, the decision of
both the judge and the litigants, at every stage after establishing that a
judge is disqualified from hearing a matter are by law required to form
part of the court record.

Where the litigants do not or cannot waive the disqualification, Section
22, 23 and 26 of Cap 27 is set in motion and it stipulates the procedure
that governs the actual transfer of a civil matter for hearing to another
Judge. Section 26 is also clear about what should happen after the matter
is so transferred. The hearing of the matter is supposed to continue from
where the transferring judge left off.

My Lord, in view of the aforestated, the manner in which the recusal and
transfer or re-allocation of the cause was handled contravened Sections 6
and 7 of Act No. 13 of 1999 as the litigants were neither made aware of
the recusal and the reasons thereof. The recusal and the Judge's reasons
for recusal have not formed part of the court record and the litigants
have not been given the opportunity to waive the Judge's
disqualification. The option to waive the disqualification is conferred on
the parties by the Act as a matter of right.

Secondly, the decision of Judge Mutuna to hear the matter de novo
contravenes Part VI of Cap 27 and in particular Section 26 of the Act as
the Section couches the continued hearing of the matter by a Judge to whom
it is transferred in mandatory terms. Therefore, there is no room to
exercise the discretion to re-hear the matter where the transferring judge
kept notes of the proceedings as is the case in this matter.

Further and in aggravation of the situation, the decision by Judge Mutuna
to hear the matter de novo is likely to prejudice the Defendants case as
the inconsistencies in the Plaintiff's case were laid bare during
cross-examination. Hearing the matter de novo will have the effect of
giving the Plaintiff's a second bite at the cherry to the detriment of the
Defendants'.

Given that the problems in this matter touch on very well respected
judicial officers, we have thought it prudent to seek your guidance on how
it should be handled as there is no judicial precedent that we can find
that deals with how a matter such as this one, where a Judge recuses
himself midstream, ought to be dealt with when transferred or re allocated
as the case may be for hearing before another Judge.

The defendants would like to know exactly how this file moved and how the
recusal transfers or re-allocations were done and by whom and for what
reason because this information which should ordinarily be on the record
is not there.
We remain
Yours faithfully
Nchito and Nchito
Nchima Nchito


REPUBLIC OF ZAMBIA
Supreme Court
P.O Box 50067
Lusaka

DCJ/8
17th February, 2012
Mr. Nchima Nchito
Nchito and Nchito Advocates
5th Floor, Godfrey House
Longolongo Road
P.O Box 34207
Lusaka
Dear Mr. N. Nchito
RE: LETTER OF COMPLAINT: DEVELOPMENT BANK OF ZAMBIA AND JCN HOLDINGS, POST
NEWSPAPERS LIMITED, MUTEMBO NCHITO - CAUSE NO.2009/HP/0322
I refer to your letter reference no.J/Z/MUT/JN, dated 10th January, 2012,
but only received on 10th February 2012 and I also refer to your letter
reference J/7/MUT/snk, dated 15th February 2012 received on the same day,
both letters addressed to the Hon. Chief Justice, on the above subject.

The Hon. Chief Justice has referred both letters to me to respond to them.
Upon receipt of the first letter, investigations were instituted into your
complaint. The investigations have revealed that the Hon. Deputy Judge In
Charge retrieved the record in the above case from the Hon Mr Justice A.M
Wood; who had been dealing with the matter. On the 4th of August, 2011,
the Deputy Judge In Charge of the Commercial List re-allocated the record
to the Hon Mr Justice N.K Mutuna.

The current position in the matter is that the Hon Justice N.K Mutuna has
since commenced trial de novo. But a perusal of the record does not show
why the Hon Mr Justice A.M Wood recused himself or why the record was
retrieved or withdrawn from him.

However, since the Hon Mr Justice A.M Wood did not record reasons for his
recusal, if at all he recused himself; and since the Deputy Judge In
Charge of the Commercial List re-allocated the case record to the Hon Mr
Justice N.K Mutuna; and since the case hearing before the Hon Mr Justice
N.K Mutuna has already commenced de novo, there can be no administrative
intervention in the matter.

Yours sincerely,
DK Chirwa
Acting Deputy Chief Justice
CC: The Hon Chief Justice
CC: Mr Justice N.K Mutuna


Our Reference: J/7/MUT/nn/gkm

22nd February 2012

Honourable S. S. Zulu SC, MP
Minister of Justice,
Fairley Road, Ridgeway,
Lusaka.

Dear Sir,
INTERFERENCE WITH AND WITHIN THE JUDICIARY-DEVELOPMENT BANK OF ZAMBIA VS
JCN HOLDINGS, POST NEWSPAPERS LIMITED AND MUTEMBO NCHITO: 2009/HPC/0322
We represent the Defendants in the captioned matter and write to bring to
your attention the shocking circumstances surrounding the manner in which
some members of the Judiciary have conducted themselves in regard to the
said matter.

Our clients were sued by the Development Bank of Zambia (DBZ) in relation
to the defunct Zambian Airways. The suit came on the back of very public
threats from Mr R. B. Banda, then President of the Republic of Zambia. You
may recall that towards the end of 2008, two rallies were organised at
State House at which the head of state then, vilified and denounced Post
News Papers Limited ("the Second Defendant") it's editor Mr Fred M'membe
and Mr Mutembo Nchito ("the Third Defendant")accusing them of all manner
of crimes which were ultimately not proven. The President then promised
that the Defendants would be destroyed. The DBZ suit was born in that
politically charged environment. In those circumstances, you will
doubtless appreciate that the Defendants had good reason to wonder if they
would receive a fair trial in light of the rhetoric.

Be that as it may the Defendants embarked upon the task of defending
themselves.

The matter was allocated to Honourable Mr Justice Albert Mark Wood. Trial
commenced in July 2011, and the matter thereupon progressed swiftly. On
the days set aside for the trial the court sat from 08.00hrs to 17.00hrs
non-stop except for a short break at 14.00hrs. At the end of that time the
Plaintiffs called all their witnesses and indicated that they would close
their case after conclusion of cross examination of their last witness.
The Judge then adjourned the case to 29thAugust 2011 for cross examination
of the last witness for the Plaintiff.

In a strange twist that forms the nub of the problem with this case, we
received a notice of hearing requiring that we appear before Honourable Mr
Justice Mutuna on 25 August 2011 for the matter that was due to come
before Judge Wood on 29 August 2011. We were, naturally, taken aback by
this turn of events but we obliged - we appeared before Justice Mutuna in
chambers on 25 August 2011. The Judge informed the parties through their
counsel that Judge Wood had recused himself and that he (Judge Mutuna) was
taking over the matter. He also announced that he would hear the matter de
novo.

As can be expected we were alarmed. We tried to probe Judge Mutuna to
understand why Judge Wood had recused himself so late in the matter. Why
did the Judge not tell us himself in a matter that had gone so far? The
Judge admonished that if we had any issue to raise we should make an
application.

We then raised several questions of law on the way the matter was being
handled. We pointed out that a matter could not move from one judge to
another without the provisions of sections 22, 23 and 26 of the High Court
Act, Chapter 27 of the Laws of Zambia which prescribes the procedure for
transferring causes between or amongst Judges being followed. Section 22
provides as follows;

"The provisions of this Part as to the transfer of causes and matters
shall apply to criminal causes only so far as the same are not
inconsistent with the provisions of the Criminal Procedure Code relating
to the transfer of such causes."

Section 23 makes provision for the transfer of matters between Judges of
the High Court and reads as follows;

"(1) Any cause or matter may, at any time or at any stage thereof, and
either with or without the application of any of the parties thereto, be
transferred from one Judge to another Judge by an order of the Judge
before whom the cause or matter has come or been set down:
Provided that no such transfer shall be made without the consent of the
Judge to whom it is proposed to transfer such cause or matter..."

The thrust of these sections, while empowering Judges to transfer matters
as is necessary requires the transfer to be done via an order on the
record. In other words the transferring Judge makes an order moving the
record to another court. It is also a requirement of the Law that the
Judge to whom the matter is transferred consents. We pointed out to Judge
Mutuna that none of this appeared to have been done and wondered why this
was so.

Section 26 of the High Court Act prescribes that when a matter is so
transferred the whole record shall be transmitted to the transferee court
in full. That court shall continue to hear and determine the matter. The
transferee court is not empowered to re-hear the matter but to continue
it, hear and determine. The Section reads as follows;

"Every order of transfer made under this Part shall operate as a stay of
proceedings before the court or Judge from which or from whom the
proceedings are to be transferred in any cause or matter to which such
order is applicable, and the process and proceedings in every such cause
or matter, and an attested copy of all entries in the books of the court
from which transfer is made shall, where necessary, be transmitted to the
court or Judge to which or to whom the same shall be transferred, and such
cause or matter shall be continued, heard and determined by such court or
Judge."

Having pointed out these flaws to Judge Mutuna, he ruled that sections 22,
23 and 26 of the High Court Act did not apply to civil matters but applied
only to criminal matters. This in our opinion is simply wrong. A casual
reading of the provisions shows that section 22 limits the application of
these provisions in criminal matters by making them subject to the
Criminal Procedure Code. Nowhere in these sections, particularly Section
22, is there exclusion to their applicability in civil matters.

We were horrified that no reason was given for the recusal of a Judge who
had heard and almost concluded hearing the case. In response to this
concern Judge Mutuna ruled that the transfer was done "administratively"
as the Judge was entitled to recuse himself without giving any reason to
the parties in terms of the Judicial (Code of Conduct) Act No. 13 of
1999. We then reviewed the Act that the Judge had referred to. What the
Judge said is not what the Act No. 13 of 1999 provides.

Section 6 of the said Act stipulates instances when a Judge or Judicial
Officer may recuse himself from hearing a matter. It provides as
follows;

"(1) Notwithstanding Section seven, a judicial officer shall not
adjudicate on or take part in any consideration or discussion of any
matter in which the officer or the officers spouse has any personal, legal
or pecuniary interest whether directly or indirectly.

(2) A judicial officer shall not adjudicate or take part in any
consideration or discussion of any proceedings in which the officer's
impartiality might be reasonably questioned on grounds that -

(a) the officer has a personal bias or prejudice concerning a party or a
party's legal practitioner or personal knowledge of the facts concerning
the proceedings;

(b) the officer served as a legal practitioner in the matter;
(c) a legal practitioner with whom the officer previously practices law or
served is handling the matter;
(d) the officer has been a material witness concerning the matter or a
party to the proceedings;

(e) the officer individually or as a trustee, or the officer's spouse,
parent or child or any other member of the officers family has a pecuniary
interest in the subject matter or has any other interest that could
substantially affect the proceedings; or
(f) a person related to the officer or the spouse of the officer
i) is a party to the proceeding or an officer, director or trustee of a
party;

ii) is acting as a legal practitioner in the proceedings;
iii) has any interest that could interfere with a fair trial or hearing; or
iv) is to the officers knowledge likely to be a material witness in the
proceeding."

Section 7 requires the Judge to disclose the reason he may have to recuse
himself to the parties on the record. The parties may then waive the
disqualification on the record. It provides as follows;

"(1) A judicial officer disqualified under section six shall at the
commencement of the proceedings or consideration of the matter, disclose
the officers disqualification and shall request the parties or the parties
legal representatives to consider, in the absence of the officer, whether
or not to waive the disqualification.

(2) Where the judicial officer has disclosed an interest other than
personal bias or prejudice concerning a party to the proceedings, the
parties and the legal representatives' may agree that the officer
adjudicates the matter.

(3) A disclosure or an agreement made under subsection (2) shall form part
of the record of the proceedings in which it is made."
After Judge Mutuna's ruling we sought leave to appeal since we took the
view that the positions that he was defending were simply not supported by
the law. The judge declined leave.

What we later discovered horrified us further.
After the hearing before Judge Mutuna on 25 August 2011 we carried out a
search on the record. What we suspected was confirmed. There was nothing
on the record to show that Judge Wood had recused himself. The record was
silent. How then did the record come to Judge Mutuna and why? If Judge
Wood had recused himself as alleged, why did he? What had arisen? Who
complained? Indeed how did Judge Mutuna accept to take over a matter where
there was no record of why it was moving to him? What was he told, what
was his briefing? Any one accepting such a record would want to know why
the previous judge is no longer hearing the case.

At this point we began to receive very disturbing information. We learnt
to our utter shock and disbelief that Judge Wood was strong armed into
giving up the DBZ case as well as another case involving Dr Mathani due to
political pressure exerted through other members of the Judiciary. We
learnt that it was felt that Judge Wood was not moving quick enough to
deal with The Post and Dr Mathani in a manner that would satisfy the
government of the day. There was interference in the judicial process!
These facts, we have on good authority and will prove when it becomes
necessary.

After much reflection we decided to deal with the matter by writing to the
Chief Justice to seek answers to some of the very troubling questions that
this whole matter was throwing up.

Specifically, we wished to know how this matter moved from Judge Wood to
Judge Mutuna. Why was this done?

In the meantime the matter came up for hearing before Judge Mutuna. The
writer of this letter, who is now counsel seized with its conduct for the
first and second Defendants' was before Judge Hamaundu prosecuting an
election petition. In terms of the current standing instructions
petitions are supposed to be given preference to all other matters. We
sent an associate to have the matter adjourned as the said counsel was
before another court which happens to be senior to Judge Mutuna's. The
Judge refused to adjourn the case notwithstanding that lead counsel was
prosecuting a petition. He re-opened the case and accepted the evidence
of the first witness Mr Andrew Musukwa and demanded that the writer
appear the next day to cross examine him de novo.

On the next day I appeared and still sought an adjournment. This time it
was granted. Notwithstanding the adjournment Mr Mutembo Nchito SC who is
the third Defendant asked that we see the Judge in chambers. The Judge was
most resistant to this request. Mr Nchito reminded the Judge that he felt
that as counsel we have a duty to deal with court discreetly in matters
where we so judged and we should be given the benefit of the doubt. The
Judge finally agreed. When we got to his chambers he refused to allow Mr
Fred M'membe from the Post who was taking over from Mr Sam Mujuda who had
been appearing with us on behalf of The Post on the basis that although Mr
M'membe was counsel he was not on the record! Mr M'membe duly left.

At the meeting in chambers attended by Mr. V.B Malambo SC, and his
assistant Miss M. Kalyabantu, Myself and Mr Mutembo Nchito SC, we advised
the Judge that we thought it proper to inform him that we had written to
the Chief Justice to complain about the handling of the captioned suit.
His response was to ask us what made us think he did not know about the
complaint. We explained as best as we could that we thought He ought to
hear it from us. We further informed him that we now had information that
there was third party interference in the way that the matter moved from
Judge Wood. We advised that the matter should not proceed until the issues
surrounding it where resolved. He insisted that the matter was properly
before him and he would proceed regardless. This attitude is unfortunate
but not unusual.

To add to our bewilderment we received a reply from Mr Justice Dennis
Chirwa writing as directed by the Chief Justice. Justice Chirwa informed
us that the case was "retrieved" by the Deputy Judge in charge. He also
wrote that there is nothing on the record to show that Judge Wood recused
himself if he did. He stated that the Deputy Judge in Charge allocated the
matter to Judge Mutuna. Justice Chirwa then concluded that since Judge
Mutuna had started hearing the matter de novo nothing could be done
administratively. We attach for your information copies of our letter to
the Chief Justice and the reply from Judge Chirwa. This begs the obvious
question; why is it suddenly impossible to administratively deal with the
matter when the initial transfer from Judge Wood was purportedly done
administratively after he had gone even further in hearing it than Judge
Mutuna has?

Honourable Minister, there is something fundamentally wrong in this matter
which may necessitate an inquiry. The interference that has gone on, on
this file, is symptomatic of the abuse that appears to be endemic in the
Judiciary.

Let the judiciary answer the simple questions; who strong armed Judge Wood
into surrendering this file and why? Indeed why did the Deputy Judge in
Charge retrieve the case? Who complained and to whom? Why is Judge Mutuna
so intent on proceeding to hear a matter where the parties are raising
such serious questions?

We have attempted to seek our remedy for these interferences in the matter
against our clients from the Judiciary but this has clearly failed. This
has prompted our letter to you. We note, however, that there is a bigger
issue here. We can no longer continue to tiptoe round the serious issues
which plague our Judiciary. This is perhaps an opportunity to begin to
right some of these wrongs. We should, therefore, be grateful for your
kind intervention.
We remain,
Yours faithfully
Nchito & Nchito
Nchima Nchito

Nchito & Nchito
cc: The Honourable Chief Justice,
Honourable Judge D. Chirwa,
Attorney General,
Honourable Judge Philip Musonda,
Honourable Judge C. Kajimanga,
Honourable Judge A. M. Wood,
Honourable Judge N. K. Mutuna,
The President, Law Association of Zambia,
The President, Transparency International,
Messrs Malambo and Company
The Managing Director, The Post,
Mr Mutembo Nchito SC


Our Ref:J/51/NCH/nn/gkm

26th March, 2012

Hon Sebastian S. Zulu SC, MP
Minister of Justice,
Fairley Road
Ridgeway,
Lusaka.
Dear Sir,
MEETING ON THE COMPLAINTS REGARDING POSSIBLE JUDICIAL MISCONDUCT: DBZ VS
JCN HOLDINGS LIMITED, POST NEWSPAPERS LIMITED AND MUTEMBO NCHITO: RE
FINSBURY INVESTMENTS VS ANTONIO VENTRIGLIA AND MANUEL SEBASTIAN VENTRIGLIA
Thank you for convening a meeting at your office on March 14, 2012, to
discuss the complaints raised by ourselves and messrs Simeza Sangwa and
Associates regarding the removal of matters from Mr. Justice Mark Albert
Wood in circumstances that have raised grave concern.

We applaud you for making the Attorney General and the Solicitor General
available for the said meeting. This, we are certain, demonstrated the
importance that you attach to our complaint and its ramifications to the
Zambian justice system.

Sir, we were gratified by the open minded manner of your interaction with
us when you met us. We have no doubt that the resolution of our complaint
will be done in the same spirit.

From the brief that you gave us in the meeting, it is clear that there is
a very grave problem in the Judiciary, which if left unchecked threatens
the very peace and stability of our country. If the public lose confidence
in the ability of our courts to dispense justice freely and fairly, then
we may find that some potential litigants decide to take the Law in their
own hands. This is undesirable.

Before we delve into our main reactions to the matters you brought to our
attention in the meeting, we wish to note at the outset that it frightens
us that senior members of the judiciary seem, by their responses to the
various complaints that have been raised around the subject matters,
entirely oblivious of the import of the actions they have taken against a
sitting Judge who had conduct of matters that, unfortunately had some
political undertones. To our minds, they fail to appreciate that judicial
independence means that no one, not even a fellow Judge, a chief justice,
a judge in charge; no one, should interfere in the due conduct of a matter
by a judge to whom that conduct falls. Sir, are our judges not aware that
there is a process set by law for recusal where the circumstances demand
it?

Sir from the brief you gave, it now appears that there is serious
disagreement in the Judiciary on what actually transpired and how the
files in issue moved from Judge Wood to Judge Mutuna (the DBZ matter) and
Judge Chishimba (the Finsbury matter).

Judge Kajimanga states that he received information from Judge Musonda
sometime in July last year to the effect that when he (Judge Musonda) was
Judge in Charge there was a complaint from one of the parties in the case
of Finsbury Investments Limited Vs. Antonio Ventriglia and Manuel
Sebastian Ventriglia to the effect that Judge Wood was a close friend to
Mr. Fred M'membe who was, in turn, said to be close to Dr. Mathani, the
proprietor of Finsbury Investments. Neither the identity of the
complainant nor the form in which this purported complaint was made to
Judge Musonda is disclosed.

That notwithstanding, the purported complainant is supposed to have told Judge Musonda that as a result of the close relationship between Judge Wood and Mr. Fred Mmembe, they, whatever their stake in the Finsbury proceedings, would not receive justice. Judge Kajimanga then states that Judge Musonda suggested that he (Kajimanga J) should have a discussion with Judge Wood. Armed with this information, Judge Kajimanga claims that he then met Judge Wood in his (Judge
Kajimanga' s) chambers where he informed him (Judge Wood) of the complaint
relating to Dr Mathani's company's case. According to Judge Kajimanga, he
and Judge Wood decided that Judge Wood should recuse himself.

From your brief, it would appear that Judge Musonda, for his part states
that, when he was Judge in charge, he received complaints to the effect
that Judge Wood had previously represented Dr Mathani when he was in
private practice. This is the information Judge Musonda says he passed on
to Judge Kajimanga. It is important to note that Judge Musonda does not
talk about the alleged close friendship between Judge Wood and Mr.

M'membe, which relationship Judge Kajimanga states was brought to his
attention by the same Judge Musonda! (Judge Kajimanga states that he only
heard about the alleged former lawyer/client relationship between Judge
Wood and Mr. Mathani subsequent to the initial discussion with Judge
Musonda whereas Judge Musonda alleges that the relationship (Wood
J/Mathani) was the crux of the alleged complaint he received and his
initial discussion with Judge Kajimanga)

Further, it is critical to note that Judge Kajimanga says that Judge
Musonda told him about the complaint in July. Judge Musonda says that he
received the complaint in his office. The question that begs an answer is,
in which office? From 29th July to 3rd August, or there about, when the
movement of files was happening, Judge Musonda had long since ceased being
Judge in charge. In what capacity was he receiving complaints and giving
directions to Judge Kajimanga to speak to Judge Wood?

Adding to the confusion, the Chief Justice introduces very embarrassing
contradictions which give the distinct impression that there is a
conspiracy to pervert the course of Justice. Justice Sakala says that
Judge Wood does not dispute his relationship with Mr M'membe as disclosed
in the memoranda of Hon Justices Musonda and Kajimanga. Firstly, Judge
Musonda does not talk about a relationship between Judge Wood and Mr Fred
M'membe. Which memorandum from Judge Musonda is the Chief Justice talking
about? Is the Chief Justice holding back information that might help your
office to deal with this matter?

Secondly, from your brief, it is also very clear that Judge Wood
categorically denied the allegations made against him. Why then is the
Chief Justice making an assertion that is wrong on its face? How can he
say Judge Wood does not deny his relationship with Mr M'membe when Judge
Wood does so in his letter?

To add to the confusion the Chief Justice seems to have misled or
participated in misleading the complaining parties as we shall demonstrate
below.

After the files subject of our complaints were taken away from Judge Wood,
counsel for Finsbury Investments wrote to the Chief Justice on 3
November 2011 raising various concerns. The Chief Justice wrote back on 23
November stating that he had investigated the complaint and ascertained
the circumstances that led Judge Wood to send back the case record for re-
allocation. The Chief Justice stated that, according to Judge Kajimanga,
Judge Wood had recused himself because he was a friend of a friend of one
of the parties! This may sound like a tale we made, but the Chief Justice
wrote in those terms. A copy of that correspondence is enclosed for your
information.

That said, and from the brief you gave us what the Chief Justice should
have disclosed in his later of 23rd November 2011 but did not, was the
fact that he had a memorandum from Judge Wood that gave his (Wood J's)
version of events. Indeed, Judge Wood paints a very different picture. The
Chief Justice knew or at least ought to have known that what Judge Wood
had to say in his memorandum to the Chief Justice was central to the
complaint. There is no doubt that this amounts to concealment of relevant
information from persons who ought to have received it.

In brief, Judge Wood states, in regard to the Finsbury matter, that he
received a telephone call from the Deputy Judge in Charge who INSTRUCTED
him (Wood J) to recuse himself on the grounds that the defendants (The
Ventriglias) were losing their applications and that he (Wood J) was
perceived as being a member of the Opposition Party, the Patriotic Front
(PF). Judge Wood also told the Chief Justice that Judge Kajimanga, the
Deputy Judge in Charge instructed him to recuse himself from cause No.

2009/HPC/322; Development Bank of Zambia Vs JCN Holdings Limited, The
Post Newspapers Limited and Mutembo Nchito. Judge Wood was instructed to
recuse himself because, according to Judge Kajimanga, one of the parties
was a friend to Judge Wood and that he (Wood J) was delaying the matter.
Judge Wood says he did not agree with these allegations but he recused
himself.

When the Chief Justice was responding to the letter of complaint from the
Advocates for Finsbury Investments, he had in his possession Judge Wood's
memorandum which at the very least showed unlawful interference in the
work of a Judge or in the worst case scenario demonstrated a conspiracy to
pervert the course of Justice contrary to section 112(1)(a) of the Penal
Code chapter 87 of the Laws of Zambia. Although he had this information
the Chief Justice chose to suppress it.

In similar fashion, when our firm complained to the chief Justice on 10
February 2012, he (Chief Justice) caused the Acting Deputy Chief Justice,
Honourable Mr. Justice Dennis Chirwa to write to us. Justice Chirwa
stated that an investigation had been done and that the matter complained
about had been reallocated and nothing could be done. Justice Chirwa wrote
that it was not clear why Judge Wood had recused himself, or that he had
in fact done so. This was at a time when the Judiciary had Judge Wood's
incriminating memorandum.

The question that bothers us is this; did the Chief Justice make that memorandum available to Justice Chirwa? When we sent our complaint did the Chief Justice investigate the matter as is contained in the letter of Judge Chirwa? Why didn't judge Chirwa speak to Judge Wood about these matters? (All he says in his letter is that he spoke to Judge Kajimanga). If an investigation was done, surely all this would have come to light. Were there Chinese walls in the manner in which the complaints were being dealt with? Why should the Judiciary choose to conceal what Judge Wood had to say on countless occasions? The questions, Sir, abound.

Honourable Minister, the inconsistencies that are coming from the
Judiciary and the attempts to cover up what actually transpired
demonstrates that the matter requires an inquiry urgently. Our clients
should not be expected to have their matters adjudicated in an environment
where Judges can be interfered with without consequence.

As discussed, we hold the considered view that the two matters subject of
this complaint have raised sufficient ground for formal inquiry before a
decision can be made whether or not to request the setting up of a
disciplinary tribunal. An inquiry will afford us an opportunity to have
our complaints seriously investigated.
Minister, this is our plea.
We remain
Yours faithfully
Nchito & Nchito
Nchima Nchito
cc: Mr. Mumba Malila SC
Attorney General
Ministry of Justice
Fairley Road
Lusaka

cc: Mr. Musa Mwenye SC
Solicitor General.
Ministry of Justice
Fairley Road
Lusaka

Mr. Michael Mundashi SC.
Messrs Mulenga Mundashi & Company
1st Floor, Zimbabwe House
Haile Selassie Avenue, Long acres
P. O. Box 34972
LUSAKA

Mr. Mutembo Nchito SC.
C/O Directorate of Public Prosecutions
Independence Avenue
Lusaka

Mr. John Sangwa,
Messrs Simeza Sangwa & Associates
Suite C, the Coliseum
Bwinjimfumu Road
Rhodespark
LUSAKA


Mr Fred M'membe,
The Post Newspapers
36 Bwinjimfumu Road
Rhodespark
LUSAKA.

Clearly, those who want to attack us are doing so with a lot of lies
thinking that they are doing their friends a favour. But that is far from
the truth. The facts about our case are shameful. Those who today want to
call us names will be embarrassed when the full impact of what has
transpired is finally known. If we started talking about those things,
they are the same people who are going to complain that we are prosecuting
their friends in the media. Now we remain quiet and seek to allow the due
process of the law to take its course, they want to go to town telling
lies about us. This will not do.

We are giving them a friendly warning that if they insist on this course, we will have no choice but to defend ourselves with everything that is at our disposal. We cannot allow people to continually drag our names in the mud when we know that we have done
nothing wrong.

Labels: FRED M'MEMBE, JUDICIARY, THE POST

posted by MrK @ 3:27 AM