ALFRED A. K. NDHLOVU
Plot No. 594, Gardenia Avenue, Avondale,
4th January, 2012
The Hon. Secretary,
Law Association of Zambia
c.c. Chief Justice
Minister of Justice
I write to draw your attention to the unprofessional and criminal conduct of Mr. Mutembo Nchito who failed to disclose vital information about his gross professional misconduct, amounting to a criminal act that should disqualify him from practicing law and certainly from holding the constitutional public office of Director of Public Prosecutions (DPP).
The facts of the matter are that on or about January 2011, Mr. Mutembo Nchito settled an order that was false and fraudulent, contrary to Section 354 of the Penal Code of the Laws of Zambia., namely that with a prior and deliberate intention to mislead the court, he procured for the signature of Supreme Court Judge, Justice Gregory S. Phiri, a fraudulent order.
The law is very clear on such conduct and I quote: “Any person who, by means of any false and fraudulent representations as to the nature, contents or operation of a document, procures another to sign or execute the document, is guilty of an offence of the same kind and is liable to the same punishment, as if he had forged the document.” [Section 354 of the Penal Code – procuring execution of documents by false pretences].
When Judge Phiri discovered the misrepresentation, he reversed the order and reprimanded Mr. Mutembo Nchito for misleading the Court in a manner that amounted to contempt of Court.
Judge Phiri blamed Mr. Nchito for “deceitful and cunning” conduct in the manner he sneaked in two extraneous paragraphs which went beyond what the Court considered, and whose effect was to disadvantage the other party fraudulently.
The information of this “conviction” was withheld from the Parliamentary Select Committee that considered the ratification of Mr. Nchito for appointment as DPP.
Mr. Mutembo Nchito’s conduct displays a very serious flaw in his character. He is deceitful and unreliable. His conduct was criminal and indeed the Judge would have sent him to prison for fraud under Section 354 of the Penal Code of the Laws of Zambia. The Judge chose to reprimand him not as a show of leniency, but to expedite the long delays in proceedings but this does not lessen the offence.
Mr. Mutembo Nchito’s flaw in character goes to the very essence and requirement for integrity and honesty as prerequisites for appointment to the position of DPP. His display of deceitfulness is not consistent with the character of a person expected to hold such a high office in our Criminal Justice System.
It is imperative; therefore, that action should be taken to discipline Mr. Nchito for this misconduct, which should automatically disqualify him from the office of DPP in line with rule 32 (1) and (2) of the Legal Practitioners Rules, 2002 as backed by the Legal Practitioners Act, Cap 30 of the Laws of Zambia.
Mr. Nchito also lacks one qualification dictated by the Constitution of Zambia: Article 56 (2) “A person shall not be qualified to be appointed to the office of Director of Public Prosecutions unless he is qualified for appointment as Judge of the High Court with experience biased towards criminal law.”
This appointment will greatly undermine the Criminal Justice System with far-reaching consequences in this country. Laws, ethics, rules and regulations do not go to sleep or get suspended when government changes.
As a citizen and lawyer, Mr. Nchito is entitled to be employed elsewhere instead of the constitutional public office of the Director of Public Prosecutions.
I expect you to deal with this matter fairly, professionally and with the larger interest of the Republic of Zambia at heart.
Alfred A. K. Ndhlovu
BELOW IS WHAT HAPPENED IN COURT:
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA
AL SHAMS MATERIALS COMPANY LIMITED 1ST Applicant
FIRST MERCHANT BANK ZAMBIA LIMITED 1ST Respondent
BEFORE THE HON. MR. JUSTICE G. S. PHIRI SITTING AT LUSAKA THIS 27TH DAY OF JULY, 2011.
For the 1st Applicant In Person
For the 1st Respondent
1. Mr. M. Nchito
2. Ms. J. Ndovi
Of Messrs MNB Legal Practitioners
For the 2nd Respondent Mr. M. Lukwasa
There is on record, an application filed by the Applicants for an order for the examination of the Bank of Zambia as Judgment debtor on its assets and means in relation to the final Judgment in favor of the Applicants in this case. There is also on record a Notice of Intention to raise a preliminary issue on a question of law pursuant to Order 14A of the Rules of the Supreme Court (1999 edition). The latter application was filed by Learned Counsel for the first Respondent. The operative part of the notice reads as follows:
“Whether the High Court had jurisdiction to entertain the application regard being had to the Supreme Court decision of Jes Mining Company Limited, Eric Routledge, Arthur Ndhlovu, Peter M. Kangombe (3rd and 4th Applicants as joint receivers of Jes Mining Company Limited) and Boscia Limited SCZ/8/249/2008 and the order of 28th January, 2010 by which this Court granted the 1st and 2nd Respondents leave to:
1. Appeal the ex-parte Order dismissing the Respondents’ appeal to the Supreme Court.
2. Appeal the condition requiring the payment into Court of the Judgment sum in the Order for leave to appeal granted on the 28th October, 2009.
3. Leave to file the appeal out of time.”
Both sides filed written arguments in relation to the matters in issue. During the hearing it transpired to the Court and to Counsel for both parties that the entire record involved in this case became an issue because of numerous post-Judgment applications and subsequent Rulings. For that reason, it was agreed by the parties to take a re-look at the record and reconcile the entries with the Court record after which they would go back to the Court with a record that clearly defined what the agreed issues are at this stage and what the disagreed issues are in relation to the present application by the Judgment creditor to examine the Judgment debtor. After the aforesaid exercise was done by the parties, it remained clear that the record was still in a mess as to certain documents which the parties pointed out during the hearing.
This record is a very voluminous record because it relates to a Judgment passed by this Court on the 12th of October, 1999, which was upheld by the Supreme Court on the 2nd of November, 2000 in Appeal No. 33 of 2000. Since then, there have been many applications and Rulings preceding the present application.
The Ruling of this Court dated 29th October, 2009, gives a clear background. This is at page R9 up to page R11 thereof:
“ It is clear in this case that both sides acknowledge that the Court, on judicious grounds, has discretion, conditionally or unconditionally, to stay or not to stay an order and, indeed to grant leave or not to grant leave to appeal to the Supreme Court. What the parties do not agree about are the peculiar circumstances of this case; in particular, that there is an order, outstanding for more than nine years, against the Judgment Debtor to pay the sums due into Court. As pointed out, that order was not appealed against and nothing was done to either stay it or vacate it. In these circumstances, I would not agree that the order of 2000 is irrelevant to the present applications for the simple reason that the order itself is part of the proceedings and the Court cannot properly exercise its discretion without taking it into account. Further, in my understanding, the Bank of Zambia has a higher duty to demonstrate that it will not abuse its immunity provision by completely ignoring a Court Order without making any provision for the Judgment creditor. To this extent, the Judgment creditor’s concerns are very justified.
Having considered all the aspects, and in fairness to all parties, I will allow the leave sought for the appeal to the Supreme Court against the Ruling of this Court delivered on the 24th of July, 2009 as well as the stay sought; but on condition that the order of this Court issued on 5th June, 2000 against the Judgment Debtor to pay the monies due into Court be first complied with because it is still valid and overdue.
The final Judgments in the main Cause and the Ruling of 24th July, 2009 provide sufficient formula for the parties to settle on the quantum of the monies due and payable into Court. I accordingly grant the Orders sought by the Judgment Debtor on condition set. Costs shall be for the Judgment Creditors.
The afore-stated text of the Ruling of 29th October, 2009, gives a very clear background of the current position, namely, that there is an outstanding Court Order dated 5th June, 2000 against the Judgment debtor to pay the money due into Court which had never been complied with by the Judgment debtor. That Ruling granted the Judgment debtor leave to appeal to the Supreme Court against the earlier Ruling of this Court of 24th July, 2009, which Ruling was made in compliance with the guidelines provided by the Supreme Court under Cause No. SCZ/8/54/2008 dated 20th May, 2008. A relook at the record since the last Ruling shows that Learned Counsel for the first Applicant on the 23rd of November, 2009 made an ex-parte application to dismiss action for want of prosecution. This application was purportedly made under Order 25/L/3 of the Supreme Court Rules; White Book (1999 edition).
This Order relates to contumelious default in compliance with a peremptory Order of the Court or conduct amounting to an abuse of the process of the Court. This Order describes a peremptory Order as one which makes clear to the other party, either from its terms or other circumstances in which it was made, that exact compliance with no further argument, is required by the Court within a stated time. The conditional leave to appeal, in my view, amounted to such peremptory Order.
As I have already said, the leave to appeal granted was on condition that the long outstanding Order of 5th June, 2000 must first be complied with. That position is without argument, and when I signed the Order settled in relation to that application, I had this full position in my mind. A relook at the wording of the Order shows that the wording of that Order could have ignited the confusion leading to a number of errors on record.
On the 8th of December, 2009, Learned Counsel for the first Respondent filed an ex-party application for leave to appeal pursuant to Section 24(1) (e) of the Supreme Court Act, Cap 25. An affidavit of Mundia Salufu in support of that application referred to the ex-parte Order signed by this Court on 23rd November, 2009. Neither the Respondent’s ex-parte Summons nor the affidavit of Mundia Salufu referred to any other Ruling or Order other than that of 23rd November, 2009. I granted that application. However, a relook at the Order which was settled by Counsel for the first Respondent, which Order was tendered to me, and I signed, shows that this Order contains matters far beyond what was applied for; heard and allowed by this Court. The ex-parte Order reads as follows:
“Upon hearing Counsel for the applicant and upon reading the Affidavits filed herein it is hereby ordered,
1. That Leave to appeal the ex-parte Order Dismissing the Respondents’ appeal to the Supreme Court be and is hereby granted.
2. That Leave to Appeal the condition requiring the payment into Court of the Judgment sum in the Order for Leave to Appeal granted on 29th October, 2009 be hereby granted.
3. Consequently Leave to file the Appeal Out of Time be and is hereby granted.
Dated at Lusaka this 28th day of January, 2010.”
There was no application for leave to appeal the condition requiring the payment into Court of the Judgment sum; and that condition is contained in the Order of this Court dated 5th June, 2000 which has never been appealed. The effect of Counsel’s sharp sneaking in Leave to Appeal which was never granted on an Order that has existed for over nine years, is that the Respondents have not only falsely succeeded in delaying their obligation to pay the Judgment debt into Court but also failed to meet their indebtedness as Judgment debtors to the Applicants as Judgment creditors.
The sneaking in of paragraphs 2 and 3 in the Order of 28th January, 2010 was without doubt a result of sharp practice deliberately meant to mislead the Court in achieving what could not have normally been achieved; namely to file an appeal against an Order that has existed for over nine years. There was no application before this Court filed by MNB Legal practitioners or any one else for leave to file the appeal against the Order of 5th June, 2000 out of time. I could not, by any stretch of imagination, have allowed an application for leave to file the appeal out of time because in two or so previous Rulings I had already indicated that there was no appeal against the order of 5th June, 2000 under which then Bank of Zambia was obliged to pay the Judgment sum into Court. I have consistently said that that Order was still valid. In both the final Judgment of the Supreme Court dated 2nd November, 2000 and in the Ruling of the Supreme Court dated 20th May, 2008, it was clearly stated that there was no appeal against the Order to pay the Judgment sum into Court. The ex-parte Order drawn by Counsel for the Respondent on the 23rd November, 2009 was, therefore, a clear misrepresentation of the facts at hand and was provided in such a way that it should mislead this Court. It is clear that Counsel took advantage of the bulky record in this otherwise finalized case to mislead the Court. This explains the excitement shown in the subsequent issues and arguments after the Order of 23rd November, 2009 was assigned in error. This appears to explain why some documents on the record of proceedings are not exactly the same as the documents the parties have, which fact led to consent that the record of proceedings be properly constituted before the present application and preliminary issue can be determined.
The Order signed on 23rd November at the instance of Messrs Sharpe and Howard was an ex-parte Order; and so was the Order of 28th January, 2010 signed at the instance of Messrs MNB Legal Practitioners. The difference is that the Order of 23rd November 2009 contains an error in paragraph 3 where it says: “the action to appeal to the Supreme Court…” Instead of “the conditional leave to appeal to the Supreme Court…” On the other hand, the Order of 28th January, 2010, at the instance of Messrs MNB Legal Practitioners contained a complete misrepresentation and a common mistake in the circumstances of this case.
Under Order 32 Rule 6 of the Rules of the Supreme Court 1999 edition, the court may set aside an Order made ex-parte. This Rule is supported by paragraph 3 and 4 ofPractice Direction No. 1 of 1993 which provide as follows:
“3. As general practice, all such ex-parte applications and Orders obtained must be followed by the hearing of inter-partes within a reasonable time unless a Judge or Registrar for good cause shown otherwise directs.
4. It will be the duty of the other party who obtained the ea-parte order to issue a Summons or otherwise make provision on the Order for the endorsement of a date for the inter-partes hearing. In default, the other side may issue the Summons.”
In addition to the foregoing, under Order 42 Rule 1 sub rule 27 of the Rules of the Supreme Court (1999 edition), the Court has inherent jurisdiction to alter the record of its order so as to make it conformable with the Order actually pronounced.
The Order of 28th January, 2010, did not and could not conform to the Order actually pronounced in relation to the application that was before me that very day. Judge’s Notes of the 28th January, 2010 as read with the affidavit of Mundia Salufu filed on 8thDecember, 2009 but commissioned on 8th November, 2009 in support of the ex-parte Summons for Leave to Appeal shows the position I have just stated. The Order of 28thJanuary, 2010 contains misrepresentations and was deliberately misleading.
Deliberately misleading the Court is a very serious matter that normally leads to contempt proceedings. I have contemplated the issue of contempt proceedings against Mr. Nchito and Dr. Kalinde, who are Counsel on record in relation to the Order of 28thJanuary, 2010. I will not take that route because this matter has been going round and round in circles without completion long after the Judgments of the Courts. Instead, I have preferred to reprimand Mr. Nchito and Dr. Kalinde for misleading this Court in the manner they did. Senior Lawyers should not use the maze of procedures to abuse the Courts and their own clients for the sake of prolonging unmeritorious litigation after final Judgments. Misleading the Court and presenting draft Orders that do not conform to the Orders actually given is a definite sharp practice that ambushes the Judge sitting at Chambers with full confidence and trust of the Advocate who drafted and presented the Order.
In accordance with the inherent jurisdiction of this Court, I order that the ex-parte Order prepared by Messrs MNB Legal Practitioners and signed by me on the 28th January, 2010, is set aside for being both misleading and a common mistakes; more so, thatPractice Direction No. 1 of 1993 regarding ex-parte applications and Orders was not complied with. Further, for purposes of clarity, the only leave granted by this Court on the 28th January, 2010, was the leave to appeal against the ex-parte Order of 23rdNovember, 2009. I further order an alteration in the third paragraph thereof in so far as it states “the action to appeal” for which I substitute with “the conditional leave to appeal”.
The removal and alteration of the ex-parte post Judgment Orders in the manner I have done is the only true reflection of the actual facts in this case which will reflect an unaltered record of the proceedings, both for the purpose of the current applications presently before me and on appeal, if any. I have made the Orders that I have made in this Ruling under a firm belief that the actual facts in this case remain factual and not twisted in order to deny the Judgment creditor the fruits of his Judgment.
The summary of the actual facts which must never change in any event are as follows:
1. The Judgment of this Court was delivered on the 12th October, 1999 in favor of the Applicants.
2. The Respondent’s appeal to the Supreme Court was dismissed on the 2nd of November, 2000.
3. Since then, the Respondents have not satisfied the Judgment.
4. The Respondents failed to comply with the order of the Court to pay the Judgment sum in preference to other creditors.
5. The Respondents failed to comply with their own undertaking reflected in the Court’s Ruling of 17th March, 2000 to the effect that the money should be paid if the seized Order made by the Drug Enforcement Commission is removed on legal instructions.
6. The Respondents failed to obey or neglected to comply with the order of the Court dated 5th June, 2000 which Order is still valid today as stated in all previous Rulings including the Judgment of the Supreme Court.
7. The Respondents failed to comply with the Ruling of this Court dated 29th October, 2009by not abiding by the condition set therein in connection with an application for Stay and an application for leave to appeal against the Ruling of 24th July, 2009.
Regarding the preliminary issue raised, as already observed, the Orders in issue were ex-parte Orders before this Court and the parties are still before this Court following the Judgment on assessment by the Learned Deputy Registrar dated 13thFebruary, 2008 in a referral by this Court. All the applications have emanated from the Ruling of this Court varying and confirming that assessment. In any event, the Court has inherent jurisdiction to enforce its own Orders, otherwise many successful litigants will be denied justice at the end of a long road to that justice. Further, the preliminary issue raised clearly arises from a misrepresented ex-parte order which I have quashed and set aside. The preliminary issue therefore falls away as having no merit.
With regard to the Applicant’s application for examination of the Judgment debtor, in his written submission, Mr. Nchito invited this Court to postpone that hearing and only deal with the issues raised by the parties relating to the record of proceedings.
Examination of a Judgment debtor is applied for by the Judgment creditor ex-parte and there is no inter-partes hearing that follows. Order 48 rule 1 of the Rules of the Supreme Court (1999 edition) provides as follows:
“1.- (1): where a person has obtained a Judgment or order for the payment by some other person herein referred to as “the judgment debtor” of money, the Court may, on an application made ex-parte by the person entitled to enforce the judgment or order, order the judgment debtor or, if the judgment debtor is a body corporate, an officer thereof, to attend before such master, Registrar or nominated officer as the Court may appoint and be orally examined on the questions:
(a) Whether any and, if so, what debts are owing to the Judgment debtor; and
(b) Whether the Judgment debtor has any, and if so, what other property or amounts of satisfying the judgment or order;
And the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relative to the questions aforesaid at the time and place appointed for the examination…”
It is clear from the afore-stated Order that this Court is not obliged to hear the present application inter-partes.
In this case, there is an outstanding judgment ordered against the Bank of Zambia which is the judgment debtor. That judgment has been final since the year 2000 when the Supreme Court made its decision, on the appeal, known. The question of immunity against enforcement has long been settled in a Ruling of this Court delivered on 29thOctober, 2009. In that Ruling I said the following at page R8 up to page R9:
“I have examined both the affidavit evidence in relation to these two applications and the submissions made by all the parties. I elect to opine on the question of immunity first. There is no dispute about whether or not the Bank of Zambia enjoys immunity against execution of Court Judgments and Orders. I think the issue is really whether that immunity should be applied to the extent suggested by the Judgment Debtors in this case. In my considered view, the immunity provision should not be stretched to also mean immunity from Court Judgments and Orders themselves. The wording of Section 59 of the Bank ofZambia Act in no way suggests any immunity from Court Judgments and Court Orders. What it clearly says is that whilst Court Judgments and Court Orders cannot be enforced by way of execution against the Bank, the Bank itself has statutory obligation to pay successful litigants their dues under those Judgments and Orders. In my understanding, what this provision entails is that the Bank will, of its own, make provision for the payment of Judgment debts arising out of Court Judgments and Orders without having to suffer the indignities of the usual process of enforcement. This is understandable because it is the Central Bank of this country involved and permitting successful litigants to execute against it in the normal way would result in chaos to the economy of this country. The critical point to appreciate, however, is that the immunity law does not permit the Bank of Zambia to ignore Judgments and Orders that make an award.”
The Applicant is a person entitled to enforce a judgment for money against the Bank of Zambia. Since the Bank of Zambia has not shown any willingness or desire to respect the order of the Court dated 5th June, 2000 which order is still in force, I now have no choice but to allow the judgment debtor’s application in this case. I, therefore, order that at the appointed dates and time, the Governor of the Bank of Zambia or the Deputy Governor in charge of debt operations shall attend in person before the Learned Deputy Registrar to be examined as to the assets and means of the Bank of Zambia as the judgment debtor in relation to the judgment and order of Court still pending in this matter. Any issues arising from that examination to be done under Order 48 Rule 1shall be referred back to this Court in accordance with Order 48 Rule 1 paragraph 3.The Order to be settled following this Order shall be served personally on the judgment debtor through the said Governor of the Central Bank or his Deputy Governor in charge of debts. Costs for this application as well as the examination shall be borne by the Respondents.
DATED AT LUSAKA THIS 27TH DAY OF JULY, 2011
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