The failure by government to pursue the matter in which defunct Zambian Airways owes the Development Bank of Zambia (DBZ) K14 billion has forced Zambian Voice executive director Chilufya Tayali to apply to join in the proceedings.
In his affidavit Mr Tayali has said the failure by the Attorney General Mumba Malila to protect public interest and the attempt by Minister of Finance Alexander Chikwanda to discontinue the case as well as the suspension of a Supreme Court Judge along with two High Court Judges over the same matter has compelled Mr Tayali to join the case.
Director of Public Prosecutions (DPP) Mutembo Nchito, his business partner Fred M’membe and Nchima Nchito are resisting to pay the K14 billion Development Band of Zambia loan which according to Judge Nigel Mutuna was obtained by fraudulent misrepresentation.
“My Lord, in exercising discretion whether or not to order joinder of the intending intervenor, the court ought to take judicial notice that at the behest of the Minister of Finance Alexander Chikwanda and the Solicitor General ordered to discontinue previous proceedings. Previous counsel Vincent Malambo had instructions withdrawn from him when he opposed moves to discontinue a matter that was awaiting judgment,” Mr Yayali said.
He argued that following the judgment in the case, two High Court Judges, Nigel Mutuna and Charles Kajimanga and Supreme Court Judge Philip Musonda were suspended and that a Tribunal led by Malawian Judge Lovemore Chikopa was constituted to investigate their alleged misconduct.
Mr Tayali in his skeleton arguments in support of notice of motion for non-joinder said he had decided to join the case after coming across correspondence suggesting that DBZ at the behest of the Minister of Finance Alexander Chikwanda and Attorney General Mumba Malila ordered to discontinue the case against Mr Nchito, his brother and Mr M’membe.
Mr Tayali said he was compelled to seek to join in the protection of public money after realizing that the Attorney General had deliberately failed to join the action to safeguard public interest. “My Lord, this application is brought partly pursuant to the provisions of Order 14 rule 5(1) of the High Court Rules, chapter 27 of the laws of Zambia which provide that if it shall appear to the court or judge, at or before the hearing of the suit, that all the persons who may be entitled to claim some share of interest in, the subject matter of the law suit or who may be likely affected by the result, have not been made parties, the court or judge may adjourn the hearing of the suit to a future day to be fixed by the court or judge and shall direct that such persons shall be made plaintiff or defendants in the suit as the case may be,” Mr Tayali said.
Mr Tayali said in his skeleton arguments that any person who ought to have been joined as a party or whose presence before the court was necessary to ensure that all matters in dispute were effectively and completely determined and adjudicated upon should be allowed to join in the matter
“This honourable court is thus urged to exercise its discretion in favour of the intending intervener and order to that the same should join these proceedings having demonstrated its locus standi in this public interest,” Mr Tayali argued.But Mr Nchito, his brother Nchima and Mr M’membe have objected to Mr Tayali application to join in the matter and have argued that the Zambia Voice chief in his application as an intending intervener was behaving like a middlesome private Attorney General.