Anti Corruption Commission v Lusambo (HP 2 of 2022) [2022] ZMHC 12 (30 August 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE ECONOMIC AND FINANCIAL CRIMES COURT HOLD AT LUSAKA (CRIMINAL J URISDICTION) HPEF /02/2022 BETWEEN: ANTI-CORRUPTION COMMISSION VS BOWMAN CHILOSHA LUSAMBO REPUBLIC OF HIGH COURT OF ZAMBIA ECONOMIC & FIN ANCIAL CRIMEG DIMIBKON ofa 30 AuG 2022 Mot REGISTRY 1 P. O. BOX 50067, LUSAKAPEIILANT RESPONDENT BEFORE: Hon. Mr. Justice Kenneth Mulife Hon. Mrs. Justice P. K. Yangailo Hon. Mrs. Justice S. Wanjelani ON 30% August 2022 For the Appellant: For the Respondent: Mr. Mr. E. Mbewe - Anti Corruption Commission Zulu Makebi Messrs Botha - N. Advocates RULING MULIFE, J. DELIVERED THE RULING OF THE COURT LEGISLATION REFERRED TO: 1. Subordinate Court Act, Chapter 28 of the Laws of Zambia. R1 j 92. Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia. 3. Anti-Corruption Act No. 3 of 2012. 1.0. INTRODUCTION 1.1. . This is a Ruling on the Issues which were raised on 14 July, 2022, by the Parties in this matter. The Issues were raised during a preliminary meeting that was convened by this Court, to prepare ground for hearing of the Appeal against a Ruling dated 19th May, 2022, of the Lower Court delivered at the Lusaka Magistrate Court Complex. The Appeal is by the Anti-Corruption Commission (hereinafter referred to as the ‘ACC’ and the Issues are as follows: (i) | Whether these proceedings are Criminal or Civil; and, (ii) | Whether or not this Court can determine the ACC’s application for its intended appeal to be heard out of time, without having to hear the parties. 2.0. BACKGROUND 2.1 The background to the Issues is as follows: on 13% April 2022, Mr. Siwakwi Christopher, an Investigations Officer in the ACC, swore an Affidavit before the Lower Court in which he sought a Warrant of Seizure to enable him seize specified real properties belonging to the Respondent. This is against the background that the Officer is suspecting that the said properties have been derived or acquired from corrupt practices. R2 jf / of the Anti- The Warrant was issued pursuant to section 58 Corruption Act No. 3 of 2012 (hereinafter referred to as ‘Act No. 3 of 2012’). The provision states as follows: (1) (1) Where in the course of an “58. 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, witha warrant, seize the property. (2) An officer who seizes any property pursuant to subsection (1) shall prepare and list of all the movable or immovable sign a property seized under that subsection and of the places in which the property is found. (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”. R3 2.2 On 2274 April 2022, the Respondent filed before the Lower Court, an Exparte Summons for an Order to set aside the said Warrant, on grounds stated in the Affidavit in Support of the Summons to the effect that the Warrant of Seizure was not accompanied by an Originating Summons as prescribed by Section 86 of Act No.3 of 2012. The provision states as follows: “Except where otherwise specifically provided for, all applications under this Act shall be commenced by way of Originating Summons”. 9.3 the Warrant was Further, that the said Warrant and the Affidavit on whose the issued, basis Subordinate Court as prescribed by Order V, Rule 11 of the Subordinate Court Civil Jurisdiction Rules, Chapter 28 of the Laws of Zambia. The provision states as follows: were filed into not “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.” 2.4 Inits disputed Ruling, the Lower Court set aside the Warrant of Seizure. Dissatisfied with the Ruling, the ACC expressed its desire to appeal through the following efforts: Firstly, by filing a Notice of Appeal supported by an Affidavit, pursuant to Section 324 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia (Hereinafter referred to the ‘CPC’. And secondly, after the Lower Court declined to act on the same and directed R4 that they instead file an Exparte Summons, by filing an Exparte Summons for Leave to Appeal out of Time supported by an Affidavit. 2.5 The Record of Appeal discloses that there was a subsequent set aside the said Exparte Summons by the Respondent, to Summons for Leave to Appeal out of Time, for irregularity. The Grounds verifying the irregularity are set out in the Affidavit in Support thereof. For reasons that shall become obvious in the due course, we shall not recite the Grounds. Suffice to state that both Summonses do not appear to have been heard by the Lower Court. 2.6 On 11 August 2022, we invited parties to address us on their viewpoint concerning the Issue whether or not the subject proceedings are criminal or Civil. This is against the obvious background that they are the litigants in the matter. They advanced opposing viewpoints. 2.7. On behalf of the ACC, Mr. E. Mbewe is of the view that the proceedings are criminal for the following reasons: that the impugned Ruling of the Magistrate designates the proceedings as criminal, a position which prompted the ACC to anchor its Appeal in the criminal jurisdiction variously pursuant to Sections 321A and 324 of Cap. 88, as outlined above. * — = R5 9.8 for On the Mr. Legal Advocate contrary, the Botha, Respondent is of the view that the proceedings are civil for the following reasons: that the originating process namely, the Affidavit in Support of the subject Warrant of Seizure indicates that the matter was taken out in the civil jurisdiction of the Lower Court. The said Affidavit appears at page 10 of the Record of Appeal. That similarly, the following documents indicate that the proceedings in issue are civil: ‘Affidavit in Opposition of the Affidavit in Support of Exparte Summons for an Order to Set Aside Warrant of Seizure’, the Applicant’s List of Authorities and of the Skeleton Arguments (appearing at pages 86 and 90 Record of Appeal). Further, that Parties to denoted by titles in the action are civil proceedings namely, Applicant and Respondent. 2.9 Mr. Botha further submitted that the Court that should hear the present application to appeal out of time, is the Lower Court and not this Court because the documents at pages 25 - 42 of the Record of Appeal (Exparte Summons for Leave to Appeal Out of Time) indicate that the Application was taken out in the Lower said application has not yet been Court. Further, that the determined by the Lower Court. 2.10 In reply, Mr. Mbewe submitted as follows: that although the documents mentioned by Mr. Botha denote that the matter was taken out of the civil jurisdiction of the Lower Court, there is no civil Cause Number allocated to the matter. That parties only R6 of the Cause Number through the subject Ruling became aware of the Lower Court; that the ACC took out the Exparte Summons for Leave to Appeal out of Time (appearing from pages 25 - 31 of the Record of Appeal) only because it was wrongly directed to do so by the Lower Court. However, the said Summons was never heard by the Lower Court. Instead, the Court transmitted this Court. Therefore, there is no the Record of Appeal to application pending before the Lower Court. 3,0. CONSIDERATION AND DETERMINATION 3.1. We have considered the foregoing arguments and the documents that we have been referred to in the Record of Appeal. 3.2. Indeed, whereas some of the documents in the Record of Appeal indicate that the matter was taken out of the civil jurisdiction of the Lower Court, other documents indicate that the matter was taken out of the criminal as jurisdiction highlighted already, the Ruling in issue indicates that the Lower Court was exercising criminal jurisdiction when it presided over the matter. particular, Court. and the In of 3.3. The Ruling also indicates that the party dissatisfied with the Ruling was informed of its right of appeal. And, in view of the envisaged appeal, the dissatisfied party is R7 the principal governing obviously the ACC. Further, by section 321A (1) of the criminal legislation CPC, proceedings in Zambia, the ACC should have filed its Appeal within fourteen days of the Ruling, namely on or before 1st June 2022. However, the Notice of Appeal was filed into Court on 8 June 2022. This was seven days out of time. 3.4 That notwithstanding, a dissatisfied party is empowered to file an application to appeal out of time in the High Court and the procedure for filing the application, is provided for in Section 324 of the CPC in the following terms: three under section “324, (1) Where the period has expired within hundred and which, twenty-two, an appeal shall be entered, an appellant may nevertheless make application be in the prescribed form for his appeal to in support of any such heard and shall application enter an appeal, and the form of application shall be attached to the notice of or notice appeal when that the transmitted appellate court. is filed below court with and the to In any case where an appellate court (2) refuses an application made under subsection the appeal entered in support of the (1), application shall be deemed never to have been entered”. R8 3.5 And, by the Proviso to Section 322 of the CPC, the High Court has discretion to hear an Ap peal that has been filed out of time. The Proviso states as follows: may at its “provided that the appellate court of which discretion hear an appeal in respect an application has been made in accordance with the provisions of section three hundred and twenty-four”. 3.6 Reverting to our consideration, 4 determination of whether the proceedings are civil or criminal is, in our view, not guided cesses or any other by the captions on the originating pro y the document on the Record of Appeal. Rather, it is guided b law pursuant to which the matter was commenced and in the present case, such law is Section 58(1) of Act No. 3 being the Provision pursuant to which the Warrant of Seizure, which triggered these proceedings, was issued. And, our understanding of the provision is that it envisages criminal and not civil proceedings. We are of this view because the facilitate provision suspected offence under Part III of Act No. 3 of 2012 namely, the of the properties which are whether or Warrant of Seizure, were derived from corrupt practices. investigations of 2012, intended subject into not to is a 3.7 Our view is fortified by the position that Section 58 of Act No. 3 of 2012 is read with section 2 of the same Act. Section 2 of the Act prescribes that RQ “All offences under this Act shall be enquired in otherwise into, accordance with the Criminal Procedure Code and any other written law”. dealt tried with and 3.8 3.9 follows Act’s Preamble), it Considering that the Criminal Procedure Code governs the conduct of criminal investigations and trials (as evident from that the investigations for are subject Warrant of Seizure was obtained, the which the 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. In the view we have taken, an appeal against the disputed Ruling of the Learned Magistrate should be guided by the CPC. And, since it was made out of time, it should be guided by Section 324 of the CPC. With this background, the Notice of Appeal was correctly addressed to this Court as the record discloses. We thus have jurisdiction to entertain the Appeal and we are of the strong view that the Proviso to Section 322 Appellant’s determine to of its Appeal to be heard out of time, without Application for having to hear the parties. the CPC empowers us the 3.10 The above position thus provides guidance on the second parties. We accordingly invoke our issue discretion pursuant to the Proviso to Section 322 of the CPC to hear the Appeal out of time. raised by the R10 4 CONCLUSION 4.4 We find that there was a misdirection by the Lower Court file an Exparte Summons when it directed the Appellant to for Leave to Appeal out of Time. Thus, the summons as well as the Respondent’s summons to set it aside are of no effect. DELIVERED AND SIGNED AT LUSAKA THIS 30™ DAY OF AUGUST 2022 HON. MR. JUSTICE K. MULIFE HIGH COURT JUDGE HON. MRS. JUSTICE P. YANGAILO HIGH COURT JUDGE HON. MRS. JUSTICE S. WANJELANI HIGH COURT JUDGE sircoun tera [ofa 30 aus 2022 Hii | ECONOMIC & FINANCIAL CRIMES DISION RT OF ZAMB REGISTRY 1 P. O. BOX 50067, LUSAKA R11