Anti-Corruption Commission v Bowman Chilosha Lusambo (HPEF/02/2022) [2023] ZMHC 98 (21 April 2023)

n A-C-C IN THE HIGH COURT FOR ZAMBIA AT THE ECONOMIC AND FINANCIAL CRIMES DIVISION HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) HPEF/02/2022 BETWEEN: ANTI-CORRUPTION COMMISSION APPELLANT AND BOWMAN CHILOSHA LUSAMBO RESPONDENT BEFORE THE HONOURABLE JUSTICES P. K. YANGAILO, S. WANJELANI AND K. MULIFE. APPEARANCES: FOR THE APPELLANT: MR. E. MBEWE MRS. S. KALALUKA MUKOMBWE ANTI-CORRUPTION COMMISSION\ FOR THE RESPONDENT: MR N. L. BOTHA MESSRS. MAKEBI ZULU ADVOCATES MULIFE K., DELIVERED THE JUDGEMENT OF THE COURT. JUDGMENT CASES REFERRED TO: 1. Anti-Corruption ~ Commission v Corporation Limited [2008] ZMSC S. Barnnet Development 2. Al-Medenni v Mars UK Ltd (205) EWCA Civ 1041. 3. Giardenello v United States 78 S. Ct. 1245 (1958). Potipher Tembo v Tasila Lungu, Ram Auerbach v Alex Kafwata 2021/CCZ/0040. - NFC Mining Plc v Techpro Zambia Limited (2009) ZR 236 Access Bank (Zambia) Limited v Group Five Business Park Joint Venture (Suing as a Firm) (2016) SCZ 52 Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Standard Chartered Bank Zambia PLC v Wisdom Chanda and Another (2016) ZMSC 244. Alex Ndingiswayo Jere (suing as Administrator of the estate of Courtson Jere) Edward KangwaMumbi, SCZ, Appeal No. 171/2015. 10. 11. Major Isaac Masonga v The People, SCZ No. 24 of 2009. Shell & B. P Zambia Limited v Conidaris and Others (11) and Ghani v Jones (1975) Z. R. 174 (SC). 12. George Peter Mwanza and Melvin Beene v Attorney General 2019 ZMSC 33. 13. Regina v Secretary of State for Home Affairs ex-parte Adam (2005) UKHL 66. 14. 15. Roman Buchman v Attorney General (15), Antonio Ventriglia Manuela Ventriglia v Easten and Southern African Trade and Development Bank, SCZ Judgement No.16 of 1994. 16. Mususu Kalenga Building Limited, Winnie Kalenga v Richmans Money Lenders Enterprises, SCZ Judgment No.4 of 1999. 17. Zambia Revenue Authority v Hitech Trading Company Limited (200) Z. R. 17. 18. 19. Nkhata v the Attorney General (1966) Z. R 124. Attorney General v Achiume (1983) Z. R. 1. STATUTES REFERRED TO: 1. 2. Constitution of Zambia, Chapter 1 of the Laws of Zambia Interpretation and General Provisions Act, Chapter 2 Laws of Zambia. of the Subordinate Court Civil Jurisdiction Rules, Subordinate Courts Act, Chapter 28 of the Laws of Zambia. Criminal Procedure Code, Chapter 88 of the Laws of Zambia. . Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia . Anti-Corruption Act No. 3 of 2012. 1.0. INTRODUCTION 1.1. This is a Judgement on Appeal against the Ruling of the Magistrate of the First Class delivered on 19t May, 2022 setting aside the Warrant of Seizure obtained by the Appellant. 2.0. BACKGROUND Ja 2.1, The background to the issues is as follows: on 13t April 2022, Mr. Siwakwi Christopher, an Investigations Officer in the Anti-Corruption Commission (ACC), swore an Affidavit before the Lower Court in which he sought a Warrant of Seizure to enable him seize properties known as F/609/E/44/B/3; F/609/E/44/B/8 and F/609/E/44/B/9, belonging to the Respondent. 2.2. This was against the background that the Officer was suspecting that the said properties had been derived or acquired from corrupt practices. The Warrant was issued pursuant to section 58(1) of the Anti-Corruption Act No. 3 of 2012 (hereinafter referred to as the ‘Anti- Corruption Act’). The provision states as follows: “58. (1) Where in the course of an investigation into an offence under this Act, an officer has reasonable grounds to suspect that any movable or immovable property is derived or acquired from corrupt practices, is the subject matter of an offence or is evidence relating to an offence, the officer shall, with a warrant, seize the property. (2) An officer who seizes any property pursuant to subsection (1) shall prepare and of all the movable or immovable sign a property seized under that subsection and of the places in which the property is found. list (3) An officer shall serve a copy of the list referred to in subsection (2) on the owner of the property or on the person from whom the property was seized, not later than thirty days from the date of seizure. (4) For the purpose of this section, “property” means real or personal property of any description, and includes money and any interest in the real or personal property”. 2.3. On 22nd April, 2022, the Respondent filed before the Lower Court, an Exparte Summons for an Order to set aside the said Warrant, on grounds that the Warrant of Seizure was not accompanied by an Originating Summons as prescribed by Section 86 of the Anti- Corruption Act. The provision states as follows: “Except where otherwise specifically provided for, all applications under this Act shall be commenced by way of Originating Summons”. 2.4. Further, that the said Warrant and the Affidavit on whose basis the Warrant was issued, were not filed into the Subordinate Court as prescribed by Order V, Rule 11 of the Subordinate Court Civil Jurisdiction Rules, Subordinate Courts Act, Chapter 28 of the Laws of Zambia (hereinafter referred to the ‘Subordinate Court Civil Jurisdiction Rules’). The provision states as follows: as “where an affidavit is used in court for any purpose, the original shall be filed in the court, and the original and an office copy shall alone be recognised for any purpose in the court.” In its disputed Ruling, the Lower Court set aside the Warrant of Seizure. 2.5. 3.0. RESPONDENT’S AVEREMENTS IN THE COURT BELOW 3.1. In the Affidavit in Support of Ex-parte Summons to Set Aside the Warrant of Seizure for Irregularity sworn by the Respondent, it was deposed as follows: that the Director General of the Appellant had authorized investigations regarding the Respondent in relation to the properties known as F/609/E/44/B/3, F/609/E/44/B/8 and F/609/E/44/B/9 situate in Chamba Valley which were suspected to have been acquired from proceeds of crime; that on 13% April, 2022, the Respondent took out a Warrant of Seizure and a supporting Affidavit, without Originating Summons to seize the said properties without regard to the provisions of Section 86 of the Anti- Corruption Commission Act. 3.2, It was deposed further that the Warrant of Seizure and the accompanying Affidavit marked exhibit “BCL 1” were not duly filed into Court as they were not bearing the Court Stamps and this was procedurally improper. 3.3. This was the Respondent’s Affidavit evidence in total. 4.0. APPELLANT’S AVERMENTS IN THE COURT BELOW 4.1. In the Affidavit in Opposition of the Affidavit In Support of Ex parte Summons for an Order to Set Aside the Warrant of Seizure for Irregularity sworn by Christopher Siwakwi, it was deposed as follows: that there is no requirement in Section 86 of the Anti-Corruption Commission Act for the Appellant or its officers to apply for a Warrant of Seizure through Originating Summons; that the Warrant of Seizure and the Affidavit in Support thereof was sworn and obtained before a Resident Magistrate at Lusaka as shown by the date stamps on the said documents collectively marked as exhibit “BCL 17 and that there is no law that requires the Appellant or any Law enforcement agency to file the stated court process in order to obtain a warrant. 4.2. 1t was deposed further that a Warrant of Seizure is not a prayer or relief that the Appellant need to apply for through a Court process that needs to be filed at the Court registry. 4.3. This is the totality of the Appellant’s Affidavit Evidence. 5.0. DECISION OF THE LOWER COURT 5.1. The Lower Court set aside the Warrant of Seizure based on the following grounds: i. That the affidavit accompanying the Warrant of Seizure was unfiled thereby offending Order V, Rule ] 11 of the Subordinate Court Civil Jurisdiction Rules; i. That the document that was signed by the Court as a Warrant of Seizure is defective in material particular as it is not directing any law enforcement officer to seize the property in queston and effectively cannot serve the purpose of a warrant; and, i. That a Warrant of Seizure cannot be applied for, on a property where there is already a Restriction Notice as the two documents have the same effect. 6.0. GROUNDS OF APPEAL 6.1. Dissatisfied with the Ruling of the Lower Court, the Appellant launched the subject appeal based on the grounds reproduced below: L. That the Court below fell into error by holding that both the Warrant of Seizure and a Restriction Notice issued under the Anti-Corruption Act No. 3 of 2012 of the Laws of Zambia have the same effect; ii. That the Court below erred in law by holding that the Warrant of Seizure was irregularly issued as an Affidavit in Support was not filed in Court as required by law when there is no legal requirement for a Warrant to be Supported by an Affidavit under Zambian Law; iii. That the Court misdirected itself in Law by having recourse to the Subordinate Court Civil Jurisdiction Rules when Warrants for purposes of criminal investigations are governed by the Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia. And, iv. That the Court bellow erred in Law when it pronounced itself on the particulars of the Warrant of Seizure when the Respondent had moved the Court on two specific grounds for setting aside the Warrant of Seizure, which specific grounds, did not challenge the Warrant for being defective in a material particular. 7.0. SUBMISSIONS BEFORE THIS COURT 7.1. The Appellant filed its written Submissions into Court on the 14t of September, 2022, whereas the Respondent filed his on 10t% February, 2023. The Appellant then filed its Submissions in Reply on 23+ February, 2023. 7.2. Concerning Ground One of Appeal, it was submitted that there is a distinction between the effects of a Warrant of Seizure and a Restriction Notice under the Anti- Corruption Act in the sense that a Warrant of Seizure empowers an authorised officer to take temporal custody of the seized property whereas a Notice of Seizure only grants control rights to the Director-General while the affected person remains in custody of the property. In support of this argument, Counsel cited the case of Anti- Corruption Commission v Barnnet Development Corporation Limited (1). 7.3. Further, that it is for this reason that the two documents are provided for in separate provisions of the Anti- Corruption Act. Thus, whereas the Warrant of Seizure is provided for under Section 58, the Restriction Notice is provided for under Section 60 of the Act. 7.4. We were accordingly urged to uphold Ground One of Appeal. 7.5. Concerning Ground Two of Appeal, it was submitted that according to Section 58 read with Section 2 of the Anti-Corruption Act, the law that governs the Warrant the Criminal Procedure Code, of Seizure in issue, Chapter 88 of the Laws of Zambia (hereinafter referred to shall not as the ‘CPC). For avoidance of repetition, is I the provisions recite Corruption Act. However, Section 2 of the Act provides of Section of the Anti- as follows: “the offences under this Act shall be inquired in into, accordance with the Criminal Procedure Code otherwise dealt tried with and and any other written law”. 7.6. That although there is no provision that specifically provides for Warrants of Seizure in the CPC, Section 118 of the Act is applicable because it provides for search warrants which are a kindred of a warrant of seizure. 7.7. It was submitted that according to the foregoing provisions, there is no requirement for a Warrant of Seizure to be supported by an Affidavit. That by Section 118 of the CPC, the only requirement is for the officer seeking the warrant to swear or make a complaint on oath to a Magistrate, justifying the issuance of a Warrant of Seizure by the Court. That in the present case, this requirement was satisfied because the Officer made a complaint on oath to a magistrate as shown on page 10 of the Record of Appeal. 7.8. We were urged to uphold Ground Two of Appeal. 7.9. Turning to Ground Three of Appeal, it was submitted that the Lower Court erred when it sought recourse to the Civil Jurisdiction Rules of the Subordinate Court Act, as the applicable law is the CPC because the Warrant was taken out in the criminal jurisdiction of the Court. Counsel submitted that Section 19 of the Subordinate Courts Act guides that the Subordinate Court should resort to the CPC or any other law, when exercising its criminal jurisdiction. J14 7. 10. Concem'mg Ground Four of Appeal, it was submitted that the Lower Court wrongly pronounced itself on the particulars of the Warrant of Seizure, which issue, was outside the grounds contained in the Ex parte Summons to set aside the Warrant in issue. 7.11.1t was also submitted that the Lower Court asked itself and resolved questions which were not part of the application that moved the court, namely whether a Wwarrant of seizure can be set aside for not being directive and whether it can be issued where there is a restriction notice. Counsel relied on the guidance of the English Court of Appeal, in the case of Al-Medenni v Mars UK Ltd (2), that in the adversarial system, the Judge can only adjudicate upon the issues raised by the parties. 7. 12. Turn‘mg to the Respondent, it was first submitted that the present Appeal should be dismissed because it is not anchored on a substantive criminal cause. 7.13. Concern'1ng Ground One of Appeal, it was submitted that the Court below was on firm ground by holding that the Restriction Notice and the Warrant of Seizure have the same effect. It was submitted that the purpose of the two is to stop the owner of the property from transferring, converting, disposing of or moving property or temporarily assuming custody or control of the property based on an Order of Court or Notice by the Director General. 7.14. We were urged to dismiss Ground One of Appeal. 7.15. Regarding Ground Two of Appeal, it was submitted that Section 58 of the Anti-Corruption Commission Act requires a Warrant of Seizure to be accompanied by an Affidavit. Further, that by Section 118 of the CPC, before a warrant of seizure or a search warrant can issue, the officer seeking the warrant should prove on oath before the Magistrate that reasonable grounds for issuance of the same exist and that proof of this aspect is only possible through an affidavit. 7.16.1t was also submitted that the purpose of the evidence on oath is to establish whether grounds exist on which a Warrant should be granted. Counsel relied on the following statement of Mr Justice Harlan, in the American case of Giardenello v United States (3): to the support whether probable determine “The purpose of the Complaint...is to enable the appropriate magistrate, here a commissioner, cause to required The Commissioner the persuasiveness of the facts a complaining officer to show probable cause. He should the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.” a warrant exists. himself on must judge question without accept relied for not by 7.17. We were urged to dismiss Ground Two of Appeal. 7.18. In relation to Ground three of Appeal, it was submitted that principles governing affidavits are the same whether in a civil or criminal matter. That therefore, Order V, Rule 11 of the Subordinate Court Civil Jurisdiction Rules which the Appellant claim is not applicable to the present case in view of the proceedings being criminal, is on the contrary applicable. That the stated provision prescribes for the filing of an Affidavit before a warrant can issue. That therefore, the Appellant’s failure to file an affidavit before obtaining the impugned Warrant of Seizure, is a fatal. The cases of Potipher Tembo v Tasila Lungu, Ram Auerbach v Alex Kafwata (4), NFC Mining Plc v Techpro Zambia Limited (5) and Access Bank (Zambia) Limited v Group Five Business Park Joint Venture (Suing as a Firm) (6) were cited to posit that courts frown upon parties flouting procedure. 7.19. We were urged to dismiss Ground Three of Appeal. 7.20. With regards to Ground Four of Appeal, it was submitted that the lower court was on firm ground and duty bound to deal with every issue raised in the application to set aside. The case of Wilson Masauso Zulu v Avondale Housing Project Limited (7) was cited in support of this position. 7.21. I1t was submitted that the Court below was on firm ground when it considered issues pertaining to the contents of the Warrant though not raised in the Summons to set aside the stated Warrant as doing so entail adjudicating on all issues in dispute. 7.22. Counsel cited the case of Standard Chartered Bank Zambia PLC v Wisdom Chanda and Another (8) to posit that parties must apply to cure defects in their respective pleadings as in the absence of an application to cure, the court is not entitled to ignore the defect. That even after learning about the defects in the impugned Warrant, the Appellants never took steps to amend and now want to cure it through this appeal. 7.23. We were urged to dismiss Ground Four of Appeal. 7.24. Counsel for the Respondent then raised three (3) issues, namely whether a party can be punished without being heard and an adverse Order made against him; the effect of an illegal and/or irregular Warrant of Seizure on the Respondent’s Rights and whether or not the Appellant’s officer trespassed on the Respondent’s properties in issue. 7.25.0n the first issue it was submitted that the impugned Warrant having suggested that the properties in issue belong to and/or are registered in the names of Mr. Washington Mwenya Zulu, the said Mr. Zulu should have been given an opportunity to be heard. That proceeding to seize the property without giving Mr. Zulu an opportunity to be heard is condemning him unheard, an act which is contrary to Article 18 of the Constitution of Zambia, Chapter 1 of the Laws of Zambia and the principle of audi alteram partem. 7.26. To demonstrate that title is conclusive evidence of ownership of land, Counsel cited Section 33 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia and the case of Alex Ndingiswayo Jere (suing as Administrator of the estate of Courtson Jere) Edward Kangwa Mumbi, SCZ, Appeal No. 171/2015(9) 7.27. Concerning the second issue, it was submitted that the Seizure of the Respondent’s property abrogates the Respondent’s presumption of innocence until proven guilty as enshrined in Article 18 of the Constitution and his right to property enshrined in Article 16 of the same Constitution. Reference was also made to the case of Major Isaac Masonga v The People (10) to buttress this point. 7.28. With regard to the third issue, it was submitted that the Appellant having seized the properties in issue without a valid Warrant of Seizure, trespassed on the Respondent’s property. The cases of Shell & B. P Zambia Limited v Conidaris and Others (11) and Ghani v Jones (12), were cited to define the concept of trespass to land. 7.29.1t was also submitted that depriving the Respondent shelter constitutes inhuman and degrading treatment, in abrogation of Article 15 of the Constitution of Zambia. Reliance was placed on the cases of George Peter Mwanza and Melvin Beene v Attorney General (13) and Regina v Secretary of State for Home Affairs ex- parte Adam (14). 7.30. In the Submissions in Reply, Counsel for the Appellant recited his earlier submissions. With regard to the three issues that were raised by the Respondent namely whether a party can be punished without being heard, the effect of an illegal and/or irregular Warrant of Seizure on the Respondent’s Rights and whether the Appellant’s officers trespassed on the Respondent’s Property, it was submitted that these issues were not raised in the Lower Court and the same cannot be entertained by this Court. In support of this argument, Counsel cited the cases of Roman Buchman v Attorney General (15), Antonio Ventriglia Manuela Ventriglia v Easten and Southern African Trade and Development Bank (16) and Mususu Kalenga Building Limited, Winnie Kalenga v Richmans Money Lenders Enterprises (17). 7.31. These are the submissions in toto. 8.0. CONSIDERATION AND DECISION OF THIS COURT. 8.1. We have considered the impugned Ruling, the Grounds of Appeal, the Record of Appeal as well as the written Submissions by Counsel from both sides, for which we are greatly indebted. Henceforth, we set out our determination. 8.2. As a starting point, the Respondent has argued that this Appeal must be dismissed because it is not anchored on a subsisting criminal cause that was filed in the Subordinate Court. It is not in dispute that there was no criminal cause in the Lower Court relating to the present Appeal. Certainly, this is because there were no criminal proceedings which had yet been instituted before that court as the Warrant of Seizure which triggered this . Appeal, was solely obtained for purposes of facilitating investigations in accordance with Sections 2 and 58(1) of the Anti-Corruption Act. That said, we have found that this Appeal is in no way anchored on criminal proceedings before the lower court. Rather, it is anchored on proceedings which were commenced by the Respondent when impugning the Warrant of Seizure in issue and with the ultimate purpose of having it discharged. For this reason, we are of the firm view that this Appeal is properly before this Court. 8.3. Turning to the Grounds of appeal, we shall handle them seriatim. Ground One of Appeal is assailing the Lower Court’s finding that the Warrant of Seizure and a Restriction Notice issued under the Anti-Corruption Act have the same effect. Opposing views have been fronted by Counsel on both sides. The Appellant, is of the view that a Warrant of Seizure and a Restriction Notice do not have the same effect in the sense that whereas the latter only restricts the dealing, transfer or disposal of the restricted property, the former stretches further to grant temporal occupation of the seized property. On the other hand, Counsel for the Respondent is of the view that the two documents have the same effect of preventing the dealing, transfer or disposal of the subject property. 8.4. The Record of Proceedings, at page 102, disclose that the Lower Court made a finding of fact that a Restriction Notice was placed on the properties in issue prior to the placement of the subject Warrant of Seizure. The Court made this finding based on submissions by Counsel for the Respondent which were not challenged by Counsel for the Appellant. 8.5. We have found no evidence upon which the Lower Court made the finding other than Counsel’s submissions. The case of Zambia Revenue Authority v Hitech Trading Company Limited (17) is quite instructive in that it was held that arguments and submissions at the Bar, spirited as they may be, cannot be a substitute for sworn evidence. 8.6. In accordance with the Supreme Court of Zambia’s decision in the case of Nkhata v the Attorney General (18) and Attorney General v Achiume (19), this Court can reverse a finding of fact made by the Lower Court is not supported by evidence, or the inter alia where it trial court accepted evidence by reason of a misdirection or there was a misapprehension of the facts. We therefore have no hesitation in reversing this finding on grounds that evidence from the Bar is inadmissible. 8.7. Even assuming that evidence regarding the existence ofa Restriction Notice was properly before the Lower Court, a we would still have no Restriction Notice and a Warrant of Seizure have different hesitation in finding that effects as submitted by the Appellant. Regarding a Restriction Notice, Section (1) of the Anti- Corruption Act states as follows: “60 (1) The Director-General may, by written a person who is the subject of an notice to investigation in respect of an offence alleged or suspected to have been committed under this or against whom a prosecution for an Act, offence has been instituted, direct that such person shall not dispose of, or otherwise deal with, any property specified in such notice without the consent of the Director-General.” 8.8. Further, according to the guidance of the Supreme Court of Zambia in the case of Anti-Corruption Commission v Barnnet Development Corporation Limited (supra), once property has become a subject of a Restriction Notice, the same cannot be dealt with, transferred or disposed of without the consent of the Director General of the Anti-Corruption Commission. 8.9. In relation to a Warranty of Seizure, Section 58 (1) of the Anti-Corruption Act, provides as follows: «58. (1) Where in the course of an investigation into an offence under this Act, an officer has reasonable grounds to suspect that any movable or immovable property is derived or acquired from corrupt practices, is the subject matter of an offence or is evidence relating to an offence, the officer the property.” with a warrant, seize shall, 8.10. The effect of a Seizure is expressed in Section 3 of the Anti-Corruption Act, as follows: “seizure” means temporarily prohibiting the transfer, conversion, disposition or movement of or temporarily assuming the any property custody or control of property on the basis of an order issued by a court or a notice by the Director-General” 8.11. What is clear from the above provisions of the law is that both a Restriction Notice and a Warrant of Seizure are intended to protect the interest of the State in a property reasonably suspected to be acquired from corrupt practices. However, what differs is the degree of protection. While both the Restriction Notice and a Warrant of Seizure restrict or prohibit the dealing, disposal, conversion or movement of the subject property, a Warrant of Seizure goes a step further by granting the State, temporal custody or control of the subject property. 8.12. Emanating from the foregoing, our view is that while a Restriction Notice and a Warrant of Seizure serve the same purpose of protecting the State’s interest in properties suspected to be acquired or derived from corrupt practices, they have a different degree of protection. Thus, a Restriction Notice cannot be issued on a property subject of a Warrant of Seizure as all the functions of the Notice of Seizure can be achieved through a Warrant of Seizure. On the other hand, a Warrant of Seizure can still be issued on a property that is subject of a Restriction Notice in order to have temporal custody or control of the subject property, 8.13. which is not possible through a Restriction Notice. the Legislature Further, documents to serve the same purpose, it could not have intended had two the provided for them in separate provisions. Based on the foregoing, we find merit _in-en... Ground 8.14. One of Appeal. 8.15. Turning to Ground Two of Appeal, it is impugning the decision of the Lower court to set aside the Warrant of Seizure in issue on grounds that the Affidavit in support thereof was not filed into court. Again, the Parties have advanced conflicting views. According to Counsel for the Appellant, there is no requirement for a Warrant of Seizure to be accompanied by an Affidavit. That what is required, is proof on oath before a Magistrate that reasonable grounds for issuance of the Warrant, exists. On the contrary, Counsel for the Respondent submits that by Section 118 of the CPC and Order V, Rule 11 of the Subordinate Court Civil Jurisdiction Rules, an affidavit must be filed into court before a Warrant of Seizure can issue. 8.16. It is not in dispute that a Seizure of property can only be effected using a Warrant issued pursuant to Section 58 (1) of the Anti-Corruption Act. The question that arises is what amounts to a ‘warrant’ as envisaged in Section 58 of the Anti-Corruption Act? The said provision does not state the meaning of a warrant. However, the definition of the term ‘seizure’ according to Section 3 of the Act, guides in terms of what amounts to a ‘warrant’ for purposes of a seizure of property. According to that provision, a ‘warrant’ in the context of a seizure is either an Order issued by a Court or a Notice issued by the Director-General. 8.17. Thus, the ‘warrant’ referred to in Section 58 of the Anti-Corruption Act, for purposes of a seizure, is not an ordinary warrant. It can be an ‘Order of Court’, like any other warrant or a ‘Notice’ issued by the Director - General. Where a ‘warrant’ involved is an ‘Order of J29 Court’, the requirements of obtaining a warrant set out in the CPC, apply. This is against the backdrop that Section 2 of the Anti-Corruption Act prescribe that the Act must be read with the CPC relating to investigations into criminal allegations and criminal proceedings arising from the Act. 8.18. That said, Section of the CPC becomes appropriate, though dealing with search warrants, because a search warrant is kindred to a warrant of seizure both being warrants. It will thus not be outrageous, in the absence of express procedure, to adopt the procedure governing search warrants, to warrants of seizure. We accordingly shall proceed on this basis. 8.19. Thus, by section 118 of the CPC, the requirement for a warrant to issue is for an applicant to prove on oath, that the grounds for issuance of the same, exist. Counsel for the Appellant contends that there is a complaint on oath on pPage of the Record of Proceedings, which justify the issuance of a Warrant of Seizure. Counsel for the Respondent on the other hand contend that the oath should be in form of an affidavit. 8.20. We have carefully addressed our minds to Section 118 of the CPC and the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia. We have also perused through the complaint on oath which we were referred to on page of the Record of Proceedings. 8.21. We have noted that both Section 118 of the CPC and the Interpretation and General Provisions Act which we were referred to, do not provide the prescribed Form in which the oath should be made to a Magistrate for purposes of a warrant. We do not find any provision that the Oath before a Magistrate must be in form of an affidavit. We therefore do agree not with the submissions by Counsel for the Respondent that an oath, for purposes of a warrant, can only be made through an affidavit. Further, we wish to guide that the Proceedings being criminal, the Learned Magistrate was rendered functus 8.22, officio relative to the Warrant of Seizure in issue. He had no power to review the order as he purportedly did when he reversed the Warrant. This is in view of the position that subordinate courts enjoy reversionary when only powers conferred by Order XXXVIII of the Subordinate Court exercising jurisdiction civil as Civil Jurisdiction Rules. 8.23. We therefore find merit in Ground Two of Appeal. 8.24. Turning to Ground Three of Appeal, the Appellant is seeking to assail the Lower Court’s decision to apply the It has a Warrant of Seizure. Civil Procedure Rules to been submitted on behalf of the Applicant, that the Lower Court misdirected itself by having recourse to the Subordinate Court (Civil Jurisdiction) Rules which are not applicable to warrants. Counsel for the Respondent rules the submitted that has hand, other the on Applicable to Affidavits are the same whether in a criminal matter or civil matter. 8.25. We begin by first addressing the issue of the rules that are applicable to a Warrant of Seizure. In our Ruling dated 30%™ August 2022, we guided that these proceedings are criminal in nature and that this Appeal should be guided by the provisions of the CPC. Our decision was guided by Sections 2 and 58 of the Anti- Corruption Act. We guided further as follows: investigations “Considering that the Criminal Procedure Code governs the conduct of investigations and trials (as evident from the preamble), it follows that subject for the Warrant of Seizure was obtained, are criminal. It also logically follows that the proceedings leading to the issuance of the said Warrant were taken out in the criminal jurisdiction of the Lower Court.” which the 8.26. In view of the above, the Rules applicable to Warrants are those provided for in the CPC as guided already. Thus, reference to Order V, Rule 11 of the Subordinate Court (Civil Jurisdiction) Rules which require the filing of an affidavit before it can be used in Court was a misdirection, especially that the matter was still at an investigations stage and no criminal proceedings had been commenced. 8.27. We also find merit in this Ground of Appeal 8.28. Turning to Ground Four of Appeal, the Appellant is challenging the decision of the Lower Court pronouncing itself on the particulars of the Warrant of Seizure, which was not one of the issues that were raised in the Ex parte Summons. It was submitted by the Appellant that the Court should have restricted itself to the issues that were were which Summons, parte Ex the in raised Respondent The resolved. exhaustively Counsel submitted that the court was entitled to deal with every issue raised in the application to set aside. through his 8.29 Paragraphs 3 and of page of the Record of Proceedings disclose that Counsel for the Appellant objected to the suggestion by Counsel for the Respondent that the Warrant of Seizure in issue is defective in form. This was on grounds that the suggestion was not raised in the Exparte Summons to set aside the Warrant of Seizure in issue. Rather, that Counsel for the Respondent was endeavouring to sneak in the suggestion through submissions. That therefore, the suggestio n was improperly before court. 8.30. Further, the Record of Proceedings disclose that the lower Court proceeded to rule that the Warrant of Seizure was defective in material particular without ruling on the Appellant’s objection that the issue was not properly before court. 8.31. We are of the view that the Lower Court erred in proceeding to determine the issue without first making & ruling on the objection. We are of this view because a a condition precedent to ruling on determining the contents of the Warrant of Seizure. We accordingly set aside the lower court’s findings relating to objection is the the form of the Warrant of Seizure in issue. 8.32. Even assuming that the issue was properly before the Lower Court, we would still find merit in the Appellant’s arguments because although not directive, it cannot be disputed that based on its title, the warrant in issue is a Warrant of seizure and therefore a directive as the term warrant ordinarily signifies Further, Section 58 (1) of the Anti-Corruption Act pursuant directive, a » . , by b ant to t which it was issued, the warr ant i in i 1ssue is i ntended t (o] facilitate the seizure of the property named therein. The foregoing renders the omission of a directive to seize the property in issue, inconsequential. Respondent in 8.33. With regard to the three (3) issue that were raised by the its submissions, we note that they were the Lower Court. Thus, they cannot be of Roman not raised in cases the in guided as appeal on raised Ventriglia Antonio Attorney General, Buchman v Manuela Ventriglia v Easten and Southern African Trade and Development Bank and Mususu Kalenga Building Limited, Winnie Kalenga v Richmans Money We Appellant. the Enterprises, cited Lenders by accordingly find the issues to be improperly before this Court and are for this reason, dismissed. 8.34. In any event, the three issues allege a violation of fundamental rights and freedoms as enshrined under Part III of the Constitution of Zambia. Where g person is alleging a violation of their fundamental rights d an freedoms, the mode of redress is not by of submissions as appear to be s uggested by Cow nsel for way the Res ond Pondent, Rather, the mode of seeking redress is 8.35. prescribed namely by way of a Petition. Based on the foregoing, we accordingly dismiss the three i issues, 9.0. CONCLUSION 9.1. In view of the foregoing, all the four Grounds of Appeal have succeeded. For the reason outlined in the Judgment, we further dismiss the Respondent’s argument that the subject Appeal must be set aside because it is not anchored on a subsisting criminal cause. We also dismiss the above three issues raised by the Respondent through his submissions. 9.2. Leave to appeal is hereby granted SIGNED AND DELIVERED AT LUSAKA THIS 215T DAY OF APRIL, 2023. HIGH COURT JUDGE sesscecscaneas HIGH COURT JU?)GE