Charity Masambo Katanga v the People (HPEF/07/2024) [2025] ZMHC 41 (30 June 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE ECONOMIC AND FINANCIAL CRIMES REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN HPEF / 07 / 2024 CHARITY MASAMBO KATANGA APPELLANT AND THE PEOPLE RESPONDENT Before the Honourable Justices S. M. Wanjelani, P. K. Yangailo and A. Malata-Ononuju, on this 30th day of June, 2025. For the Appellant: For the Respondent: M. Batakathi, with I. Simbeye, Messrs Malisa & Partners. J. C. Mulenga, Deputy Chief State Advocate, w ith M. Chipaiua, Senior State Advocate, National Prosecu tion Authority. JUDGMENT Wanjelani, S. M., J., delivered the Judgment of the Court. Cases referred to: 1. Joseph Chanda v The People, Appeal No. 21 of 2020; 2 . Regina Chifunda Chiluba v The People, HPA/ 15/ 2 009; 3. The People v Champako Joseph (2010) ZR Vol 1; 4. Mwewa Murano v The People (201 0) ZR 242 Vol. J; 5. Jonas Amon Banda v Dickson Machiya Tembo (2 008) Z. R 204 Vol ]· J 6. Ministry of Home Affairs, The Attorney General v l ee Habasonda (on his own behalf and on behalf of SACCORD) (2 007) ZR 207; 7. Savenda v Stanbic Bank (Z) Limited, SCZ Selected Judgment No. IO of2018; 8. The People V Austin Liato, SCZ Appeal No.291 of 2014; 9. Attorney General v Hui King-Hong 1995 1 HKCLR 227; 10. The People v Njapau (1967) ZR 95; 11. Earnest Percival Maxhunt v the Queen (1974) HKLA 111 12. L., C.y Otro, Fallos 45793 (2017); 13. Omma Daniel Carreiras (citation not provided by Counsel); 14. Stanely Mambo Amuti v Kenya Anti-Corruption Commission Civil Appeal No. 184 of 2018,· 15. Kederi Lal v State of M. P. and Others, NJANU Supreme Court/ 0343/ 2015; 16. The People v The Principal Resident Magistrate, Ex-parte Faustin Kabwe and Aaron Chungu (2009) ZR 1 70; 17. Assets Recovery Agency Vs Peter Oluwafemi Olawon Civil Suit No. E002 of 2022; 18. Asset Recovery Agency v Lillian Wanja Muthoni Tl A Sahara Consultants & 5 Others [2020] eKLR Application 5 8; and 19. Elvis Haatila and Anor v The Director of Public Prosecutions (Appeal No: 73/ 2023). Legislation and other material referred to: 1. The Forfeiture of Proceeds of Crime Act No. 19 of20 10 of the Laws of Zambia; 2 . Evidence Act Chapter 43 of the Laws of Zambia; a nd 3 . Dornbierer, A., 2021 . illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth. Basel: Basel Institute on Governance. Available at: illicitenrichment. base lgo vernance. org. 1.0 INTRODUCTION J2 ... 1.1 This is a Judgment in respect of an Appeal from the decisions of the Subordinate Court delivered in a Judgment on 19th February, 2024, and a Ruling dated 28th June, 2024, respectively. In addition t u the Notices of Appeal, the Appellant filed Heads of Arguments on 13th January, 2025. 1.2 The Respondent contested the Appeal by filing Heads of Arguments on 25th February, 2025. 2.0 BACKGROUND 2 .1 Charity Masambo Katanga, the Appellant herein, was charged and convicted by the Subordinate Court on One Count of possession of property reasonably suspected of b eing proceeds of crime contrary to Section 71(1) of the Forfeiture of Proceeds of Crime Act (the FPOCA). 2.2 The Particulars of the Offence were that the Appellant, on dates unknown but between 1st January, 2017, and 6 th June, 2022, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown did possess Ten (10) Higer Buses with Motor Vehicle Registration Numbers: BAF 5118 ZM, BAF 5 119 ZM, BAG 8558 ZM , BAG 559 ZM , BAG 8733ZM, BAJ 2476 ZM, BAJ 2590 ZM, BAJ 2919 ZM , BAV 2913 ZM ancl BAL 9126ZM respectively, all together valued at K26,282,770.00, property reasonably suspected of being p roceeds of crime. J3 '\ 2.3 The Appellant was convicted and sentence d to Three years simple imprisonment and is currently on Bail pending Appeal. 2.4 Further, upon applica tion by the Pros ecution, the Subordina t e Court ordered tha t the 10 Higer buses and the money h eld in the Sta nbic Account b elon ging to Chibek a Express Limite d b e forfeited to t he State. 2 .5 Dissatisfied wit h t h e Lower Court's Judgment and the Forfeiture Order, the Appella nt h as a pp ealed against h er Conviction and the Forfeiture Order. 3 .0 GROUNDS OF APPEAL 3. 1 The Appellant filed several Grounds of Appeal against the Judgmen t and the Forfeiture Order. Following a n Application for t h e Two Appeals t o be h eard and determined together , the Grounds of Appeal were combined a nd reflected in the Ap p ellan t's Heads of Arguments as follows: Ground 1: The Learned Magistrar:e erred in law and fact when he found that there was reasonable suspicion that the 10 buses tn possession of the Appellant were proceeds of crime against the weight of the evid ence. Ground 2: The Learned Magistrate erred in law and fact when he put the Accused on her Defence instead of acquitting her at "No cuse to answer" stage. J4 Ground 3: The Learned Trial Magistrate erred when he rejected the evidence of the Manager for not being signed. Ground 4: The Learned trial Magistrate erred when he discounted the evidence of Mr Phiri because there were no Records to show that Mr Phiri did lend the Accused money. Ground 5: The Learned Magistrate erred in law and fact when he forfeited t he Appellant's captioned properties to the State without any evidence that the properties were connected to any serious offence; Ground 6: The Learned Honourable Magistrate erred in law and fact when he decided to forfeit the Appellant's properties despite the Appellant not being convicted of a serious offence; Ground 7: The Learned Honourable Magistrate erred in law and fact when h e declined to analyse or the review evidence and the provisions of the Forf eiture of Proceeds of Crime Act No.19 of 2 010 premised en which the Application before him was m a de and the applicability of the law to the facts, before making the Forfeiture Order; Ground 8: The Learned Trial Mag ist rate erred in law and fact when he failed to exclude the JS income which was clearly traceable to the Appellant's accounts and paid d irectly to Higer Buses Limited for the purchase of t he buses; Ground 9: The Learned Magistrate e rred when he glossed over the Appellant's undisputed evidence that the Appellant bought the f irst buses from Higer Bus Zambia Limited from her legitimately earned income from employment with the Zambia Police Service; and Ground 10: The Learned Magistrat e erred in law and facts when he ordered fo rfeiture of the Appellant's properties without evidence that the properties were tainted or proceeds of crime. 4.0 THE PARTIES' HEADS OF ARGUMENTS 4 . 1 Under the First Grou nd , the Ap pellant s Llbm itted th at at trial, the St a t e brou ght exoner ating evid ence t o the effect tha t the Appellant worked for Zambia Police since 199 6 and w as promoted to various ranks up t o the rank of Deputy Ins p ector Gen eral of Police. It was averr ed th at the Appellant earned over ZMW 7 ,18 0,000 .00 , from various em oluments paid b y the Governmen t a s th e Appellant's employer b etween 201 7 and 2 0 2 0 , alone. 4 .2 It was submitted tha t prior to buying t h e in ttial two buses , the Ap p ellant was paid Pen s ion in t h e s u m s of ZMW 1,000 ,000.00 in 20 13, a nd in 2 01 5, s h e was paid gratuity in the sum of ZMW 893,000.00, in a ddition t o h er monthly J6 salaries and other earnings. It was a verred that, the Appellant earned over ZMW 2,000,000 .00 prior to purchasing the first pair of buses which required her to pay only about ZMW 900,000.00. 4.3 The Appellant averred that her uncontroverted testimony was that together with her husband who wa s also in Police Service and in the senior ranks, saved money to start a business. It was also stated that she engaged her uncle Mr. Nelson Phiri, a contractor who owns a company and is into milling and construction companies, t o lend her some money so that they could venture into tran s port business. 4.4 The Appellant submitted that she gave sworn evidence and explained that the buses were bought from Higer Bus Zambia Limited with the initial capital raised through savings from her earnings from the Government as her employer. It was averred that at the point s he was getting the first two buses she had the capacity to pay 50% deposit for 4 buses, but she opted to only get 2 bu ses for purposes of establishing the viability of the busi11Lss. She also added that most payments to Higer Bus La mbia Limited were made in cash. 4.5 The Appellant further submitted that she had offered to pay in 6 months instalments but after n egotiations, she was allowed to pay for the buses in ins talments over a period of 12 months. The Appellant averred that premised on the foregoing evidence, the Court below erred in law J7 and in fact when it sustained suspicion, which it deemed reasonable, that the subject buses were proceeds of crime. 4.6 It was also contended that the crime which for the Appellant was charged, tried and convicted, was based on suspicion that the Appellant could b ave reasonably committed a crime but that no actual or predicate offence was proved. Furthermore, that the standard for proving and/ or disapproving the offence is on the balance of probabilities and that the Trial Court was dealing with circumstantial evidence . 4 .7 The Appellant averred that she met the requirements of the statutory defence contained in Subsection (2) of Section 71 of the FPOCA on the totality of the evidence placed before the trial Court by showing l h at there were no reasonable grounds for suspicion that th e buses were derived from unlawful activity. 4.8 It was submitted that the Appellant was convicted for allegedly failing to connect the money earned from her employment to the buses , which amounted to convicting her for an offence she was not charged with. 4.9 The Appellant also submitted that the Trial Court misdirected itself by assessing the Appellanl's explanation evidence using a wrong and unjustifiably h · gher standard than the correct lower standard entrenched in principles governing the treatment of explanation given by an Accused Person faced with circumstantial evidence. In J8 support of this assertion reference was m a de to various cases including that of Joseph Chanda v The People11I. It was con tended that had the trial Court weighed the explanation by the Appellant based on the entrenched legal principles, it should have accepted the explanation and acquitted the Appellant. 4.10 The Appellant averred that PW15, the Arresting Officer did not investigate her earnings prior to 201 7 and that as such he did not know how much the Appellmu made before 2017. It was argued that therefore, devoid of any evidence to the contrary as to the income generated from the business of public transport, if the Court below weighed the evidence of the Appellant and Albert Chibesa, DW2, the Court below could have accepted the explanation as possibly true. 4.11 In Ground Two, the Appellant submitted t h a t based on the evidence of the State alone it was clear t o t~·1 e Court below that the Appellant had earned enough rnoney from the Government itself as her employer, to buy even more than two buses at the very start of the business. It was stated that it was also clear that the buses which the Arresting Officer reasonably suspected of being p roceeds of crime were in fact bought from Higer Bus Zambia Limited and paid for in instalments. 4.12 The Appellant averred that this coupled with the porous investigations into the Appellant's earning~ prior to 2017, J9 as well as the Appellant's income from the public transport business, created the impression that susp icion was not reasonable. It was averred that the Pros ecution knew the source of the buses a nd th e Appella nt's so~trces of incom e . Reliance was placed on the case of Regina Chifunda Chiluba v The People121 where the Court referred to a number of superior Courts' decisions regarding assessment of Prosecution evidence a dduced b efore Court. 4 . 13 It was vied that similarly, in the pres ent case, the Prosecution evidence showed the Appellant had adequate earnings sufficient to secure the purcha se of four buses, with a 50% deposit paid up front th L·n.:by effectively dispelling any suspicion previously held b) the Arresting Officer. It was argued that therefore, the Court should have stopped the case at the stage of "No Case to Answer" . In support of the above assertions, we were referred to the cases of The People v Kombe Joseph Champako131 and that of Mwewa Murono v The People14 l, where the principle to acquit at this stage is mandatory if the facts do not support the case. 4.14 It was submitted that there was overwh t:Lning evidence that the buses were n ot stolen but purcha sed on lease from Higer Bus Zambia Limited and that th e lower Court misdirected itself when it failed to take into account income that was generated from the buses that the Appellant had acquired initially as a legitimate income JlO source that could have led her to purchase additional buses. It was argued that PWl 5, the Arresting Officer confirmed that the business which the Appellant was involved in was a cash-based business and also confirmed that the amount of money which had b een generated by the buses from the time they were bo ught was not investigated or ascertained by Law Enforcern ent Agency. 4.15 Under Ground Three, the Appellant subrn itted that in rejecting the evidence of DW3 for not being signed which was not broken in cross examination, the Learned Trial Magistrate did not base his rejection on any principle of the law of evidence. It was stated that the Court should also have considered the fact that the Prosecution did not bring any evidence on income generated by the buses against which the evidence of DW3 could h ave been challenged as the Arresting Officer testified 1.hat he did not investigate the income being made by the Appellant through the transport business. 4.16 It was argued that the basis on which business documents can be admitted into evidence are outlined in Section 4 of the Evidence Act which states that: "4. (1) In any criminal proceedings where direct oral evidence of a fact would be admissible, any statement contained in a docume11 t and tending to establish that fact shall, on p r oduction of the J11 document, be admissible as evidence of that fact if- (a)the document is, or forms part of a Record relating to any trade or business or profession and compiled, in the course of that trade or business or profession, fro m information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal k nowledge of the matter dealt with in the information they supply; ... " 4.17 The Appellant stated that the books produced by DW3, Albert Bwalya, were properly before the Court because he was the one who prepared them as part of the Record relating to the course of trade with respect to the transport business involving the subject ten buses. It was submitted that there was therefore no legal principle or basis for the Trial Magistrate to h ave rejected the cashb ooks on account that they were not signed by DW3 or p ersons receiving the money. The case of Jonas Amon Banda v Dickson Machiya Tembol51 was adverted to for this assertion wherein it was held that it is a duty of the Court to construe records of businessmen even in their crude and summary fashion without being too astute or subtle in finding d efects . J12 4.18 It was further vied that the cashbooks from the business and presented as evidence in the Court below was admitted without a ny objection from the State a nd that these showed income derived from runnin g of those buses over the period 2018-2021. In the alternative, it was stated that the Appellant was not charged with explaining how she paid for the buses and according to the statutory defence to the offence she was only required to distance the property in the Charge Sheet from the crime on a balance of probabilities. 4 . 19 With respect to Ground Four, the Appellan t submitted that the entire evidence of DW2 and DW3 should be assessed on the principle of being an explanation of circumstantial evidence as explained in the case of Joseph Chanda v The People'11. 4.20 In relation to Ground Five, the Appellant averred that the Learned Magistrate erred in law and in fact when he forfeited the Appellant's captioned properties to the State without any evidence that the properties were connected to any serious offence. 4.21 It was submitted that the application for Conviction-Based Forfeiture was premised on Sections 4 a n d 10 of the FPOCA. It was argued that the plain and or dinary reading of the Section means that an application can only be made if the Appellant was convicted of a serious offence and that it follows that a conviction alone cannot b e the basis for J13 applying and/ or making a Forfeiture Order. It was argued that in any case, the Interested Party never faced any offence or trial let alone a conviction related to the money that the State sought to be forfeited . 4.22 The Appellant vied that from the definition of "proceeds of crime", the Prosecution did not prove any s erious offence nor serious foreign offence a nd as such the subject buses are not liable to be forfeited to the State. It was argued that by virtue of Subsection (3) of Section 71 of the FPOCA, the offence under Subsection ( 1) is not predicate on proof of the commission of a serious offence or foreign serious offence, yet Conviction-Based Forfeiture Orders are predicated on proof of commission of a serious offence and that for the property to be deemed p roceeds of crime, it must be connected to a serious offence . 4.23 It was also submitted that Section 7 1(3) does not completely discharge the Prosecution fr01n proving any offence at all and that the correct reading is that it merely relieves the Prosecution from proving serious offence or foreign serious offences. It was stated that it is clear from the FPOCA that serious offence and foreign serious offence are not the only offences as there is also "relevant offence" as defined in relation to tainted property. 4.24 It is submitted that for a Conviction-Based Forfeiture Order to be made the conviction must D L' for a serious offence, and that the subject property qualifies to be J14 proceeds of cnme or tainted property . The Appellant averred that she was not convicted of a s erio u s offence and that by virtue of Section 10(1) of the FPOCA, a mere conviction cannot be the basis for making a Forfeiture Order, as the Prosecution must demon strate to the satisfaction of the Court that the property is tainted within the definition of the law 4.25 It was argued that the above entails connecting the property to a specific crime to deduce a taint. The Appellant alluded to the provisions of Sec tio n 10(4) of the FPOCA relating to the interests of third Parties . It was averred that from the evidence on Record, Four White Books of the subject buses show that Higer Bus Zambia Limited has interest in these buses sought to be forfeited while the Appellant invested money earned from her employment and the forfeiture would cause hardship to her. 4.26 In Ground Six, the Appellant argued tha t the penalty prescribed by law under Section 71(1)(a) for the offence under Section 71(1) of the FPOCA only h a s m aximum sentence 'of 5 years and no minimum mandatory sentence of imprisonment. The Appellant referred to Section 16 of the Criminal Procedure Code ("the CPC") and the Fifth Schedule to advance a position that any s entence imposed by law which has no minimum mandatory sentence can be suspended. It was submitted that the offence under JlS Section 71(1) of the FPOCA having no m1n1mum mandatory sentence, can be suspended and therefore falls outside the scope of a serious offence. 4 .27 Under Ground Seven, the Appellant a ve rred that the Learned Honourable Magistrate erred in law and in fact when he declined to analyse or review the evidence and the provision of the FPOCA on which the Application before him was made and the applicability of law to the facts, before making the Forfeiture Order 4.28 It was submitted that the Magistrate premised the forfeiture of the 10 Higer Buses on "absurdity" which is not provided for under that law pursuant to which the application was made. In addition, it was averred that the Magistrate ignored the b inding guida n ce in the cases of Ministry of Home Affairs, the Attorney General v Lee Habasonda (on his own behalf and on behalf of SACCORD)l61, and Savenda v Stanbic Bank (Z) Limitedl7 1 to the effect that Rulings must clearly outline the legal grounds. 4.29 In Ground Eight, it was submitted that the Trial Magistrate erred in law and fact when h e failed to exclude the income which was clearly traceable t o Lhe Appella nt's Accounts and p aid directly to Higer Buse .; Limite d for the purchase of the buses. It was argued that the Prosecution demonstrated that the Appellant earned sufficient money to buy the first two buses and that she w as credit worthy J16 to purchase even four more buses by paying 50% deposit to Higer Bus Zambia Limited. It was stated that the Trial Court acknowledged that two payments were made to Higer Bus Zambia Limited through bank transfers being ZMW 1,600,000.00 from the Appellant's Account and ZMW 1,760,000.00. 4.30 It was averred that the Record also shows that PW9 testified that a sum of ZMW 100,000.00 was transferred to Higer Bus Zambia Limited on 22 nd Janu ary , 2021, from the Account jointly owned by the Appellant and her husband Chola Katanga. It was submitted that the Trial Court's issue was lack of trace for the money which, when it came to forfeiting the buses, the Court should have made provisions for Appellant to recover the money which was clearly traceable to Bank Accounts and that making cash payments was not a crime in Zambia. 4.31 In support of Grounds Nine and Ten, Counsel for the Appellant submitted that the Prosecutic n identified the buses as the suspe cted proceeds of crim e but presented evidence in Court showing that the buses were purchased from Higer Bus Zambia Limited, indicatin g the sources were known. It was argued that it has been shown that the Arresting Officer's suspicion regarding the source of the money was unreasonable and that h e disregarded other sources of income known to him hef ore the arrest and subsequent charges. J17 4.32 It was averred that the totality of the evidence presented by the Respondent and the Appellant, shows that there is no ground for believing that the property referred to in the Charge Sheet was derived from an unlawful activity as the source of the business is known. 4.33 The Appellant further argued that there is no evidence presented indicating that the buses were connected to any serious offence. The Court was urged to acquit the Appellant and to discharge the Forfeiture Order made by the Lower Court. 4.34 The Respondent also filed Heads of Arguments supporting Conviction, arguing that the Prosecutio n did prove the case in the Court below to the requisite s tm1dard. 4.35 In response to Ground One, it was averred that the Trial Court was on firm ground in holding that there was reasonable suspicion that the 10 buses owned by the Appellant were proceeds of crime as envisaged by Section 71 of the FPOCA and in the case of The People V Austin Liato181 . It was submitted that sufficient evidence of the specific and articulable facts that made the suspicion envisioned under Section 71 of the FPO ~A reasonable was led at the trial of the Appellant and established by showing that: z. the money for the acquisition of the buses did not come from the Appellant's earnings; J18 u. the payments for the buses were not traced to any Accounts the Appellant was linked to; and m. the source of the funds used to buy the buses could not satisfactorily be explained. 4.36 Further, it was submitted that the key artic ulable fact that made the suspicion reasonable was tha t the value of assets possessed by the Appellant ~.1as manifestly disproportionate to her legitimate income or known sources of income. It was averred that the Record of Proceedings reveals that between 1st Janua ry, 2017, and 6th June, 2022, there was a significant increase in the Appellant's wealth or assets which could n ot be reasonably explained by her income. 4.37 The Respondent referred to the auth ors of fllicit Enrichment: A Guide to Laws Targeting unexplained Wealth and the case of the Attorney General v R ni King-Hong(9 l wherein they state that it is outlined that in order for the State to establish that a person's standard of living is above that commensurate with their income, they must show that the standard of living m aintained by the accused could not reasonably, in all circumstances, have been afforded out of his total official emoluments during that period. 4.38 The Respondent submitted that PWl 5 stated in his testimony tha t on 1s t January, 20 17, the (J pening Balance on the Appellant's Account was K558,553 .34, and as at J19 31 st December, 2017, the cumulative total in the Appellant's Account was K598,587 .56 as reflected on Pages 89 and 91 of the Record of Appeal re spectively. 4.39 It was contended that PW 15's undisputed testimony was to the effect that he examined the Appellant's expenses vis a-vis her income in the period charged a nd made the following observations: 1. that in 2017, she paid US $429 ,200.00, for the buses against her known income of K410 ,000.00 , in th e same period , translating to an expenditure of K3.9 million; 11. in 2018, the total expenditure paid on the buses was US $ 273,000.00, against an income of slightly above K342,000.00 ., showing a difference of K2. 9 million between income and expenditure; 111. In 2019, there was an expenditure of US$ 583 ,000.00, against an inccrne amount of slightly ove r K35 1,000.00. TL~ differenc e 1n income and expenditure was over K8.9 million; 1v. In 2020 , the Appellant's annual earnings were K356,000 .00, against an expenditure of US$ 360,000.00 (KS.5 million); v. Between 201 7 to 2019, there was no transfer of funds from the Appellant's personal Account to J20 Higer Bus Li Zambia Limited, the Vendor of the buses. 4.40 It was stated that the same trend was observed on the Account jointly held by the Appellant a nd her husband and in the Chibeka Express Account. FuEher that during the interview the Appellant failed to expla in the sources of her income. 4.41 The Respondent vied that PW15 stated that the expenditure for the above stated p eriod raised a reasonable suspicion to trigger an engagement with the Appellant for her to explain where the extra income was coming from. In addition, it was stated 1.hat PW15 had stated that he checked to s ee if the Ap pellant had any running loans, but she had none. 4.42 The Resp·ondent submitted that PW15 a verred that most of the Appellant's gratuity started coming in towards the end of 2018 and that immediately it was credited, the Appellant would make transfer to NAPSA towards the acquisition of the two NAPSA flats. 4.43 In responding to the Appellant's submis sion that the Prosecution had led evidence exonerating her by her employment Record and that she had earned K7, 180,000.00, in various employment en1oluments paid by the Government from 2017 to 202 0 alone, the Respondent argued that the evidence of the Case Officer revealed that the income received by the Appellant was J21 also accompanied by substantial expenditures, such as the purchase of the two NAPSA flats at a total cost of Kl, 150,000.00, as well as the cost towards the construction of her house in Makeni St. Bonaventure at a cost of Kl ,400,000.00. 4.44 Additionally, the Respondent averred that PW15 stated that by the time the Appellant's gratuity s tarted coming in towards the end of 2018, five buses h rn.! already been acquired. It was added that the evidence shows the Appellant's personal emoluments from h er employer were paid through her personal Account and tha t prior to 2021 , no funds were utilized for the purchase of the buses from those Accounts . 4.45 In further submissions, the Respondent stated that the Appellant contradicted herself with regard to the amounts she borrowe d from h er uncle Mr. Nels on Phiri, as at page 143 of the Record of Appeal, she stated thEtt she borrowed K470,000.00 in 2017 to top up her deposi. L for the first two buses, while at page 153, line 16, she sta ted that she got K450,000.00. In respect of the money allegedly borrowed in 2018, she stated at page 115 that she borrowed Kl ,300,000.00, while at Page 153 she claims to have borrowed Kl,400,000.00 . 4.46 In response to the Appellant's submission that there was no direct evidence connecting her to a n y c n m e n either was there evidence to prove actual crime u r any predicate J22 offence, the Respondent submitted that Se ction 71(3) of the FPOCA dispenses with the need to p rove a predicate offence for purposes of satisfying the requirements under Section 71(1) and relied on the case of The People V Austin Liato181 for this proposition. 4.47 In Ground Two, wherein the Appellant a s serts that she should have been acquitted at "No Case t o Answer" stage, as the State's evidence showed that she had earned sufficient resources from her employer alone to buy her even more than two buses prior to 2017 1 the Respondent submitted that the evidence from PW l 5 alone shows substantial expenditures towards othl:'!r projects. In addition, the Respondent averred that, the three Bank Statements produced show a lot of debits on the Accounts prior to 2021, but none of those debits were applied towards the purchase of the buses. 4.48 The Respondent argued that as succinctly put by the Court below, the source of the funds used to buy the buses could not satisfactorily be established or lin ked to any of the Appellant's known income. 4.49 The Respondent submitted that at "No Case to Answer", the Respondent needed only to establish aprimafacie case as alluded to in the case of The People v Champako Joseph131 . It was argued that the Respondent met the threshold upon which the Appellant was p roperly found with a "Case to Answer" and that even if sh e had offered J23 no explanation, the Trial Magistrate would have still convicted her. We were referred to the case of The People v Njapau1101 to further fortify this assertion. 4. 50 Grounds Three and Four were argued t ogether and the Respondent stated that the Trial Magistra te properly dealt with the documenta ry evidence presented oy the Appellant through DW3, her Manager. It was averred that the Trial Court admitted the handwritten books (DP5-DP10) that DW3 purported to be Records of the income from the buses in accordance with the provisions of the Evidence Act, as this Witness was the sole author and custodian of the books. 4.51 The Respondent submitted that the tr ial Court in evaluating all the relevant evidence an l circumstances around DPS to DPlO found it difficult to accept their authenticity and correctly rejected the eviden ce therein. It was contended that it was a misapprehension of the law under the Evidence Act to aver that the Court should have simply accepted the evidence in DPS to DPlO because they were business documents when Sec tion 5 of the Evidence Act provides otherwise. 4 .52 Further, with regard to what is required for a targeted person's explanation to be deemed satis factory, we were referred to the ca se of Earnest Percival lVIaxhunt v The Queenl 11 l , which outlined that the explan a tion must show that the established difference between the person's J24 standard of living and their official emolu 1n ents was paid for by the targeted person with funds t hat were not proceeds of crime. 4.53 The Respondent submitted that in casu., the Appellant sought to explain the disproportion in h er wealth by claiming that she had borrowed cash from her uncle in 2017 and 2018, as well as having made sufficient wealth from her bus business, which accounted for the buses acquired after the two initia l buses. It w:..ts argued that these claims can only be deemed s atisfactory if substantiated through credible evidence. 4.54 The Respondent referred to the case of L., C.y Otro' 121, where the defendants' claim that the difference in income and wealth was actually through the receip t of donations from family members was rejected on the basis that no documentation was provided to evidence this . Reference was also rnade to the case of Omma Daniel Carreiras( 131, where the defendant's claim that h e had received additional income from lives tock farming ,va s rejected on the basis that the income was not documented. 4.55 Further, the Respondent referred to the Kenyan case of Stanely Mombo Amuti v Kenya Anti-Corruption Commission' 141 where the Respondent's claim that a cash deposit into his Bank Account was from a deceased Sudanese national was deemed unsatisfa ctory on the basis that the Respondent could not prove the nature of J25 the professional service rendered, nor the duration of the work done, and did not tender any evidence of a Fee Note r elated to the work. Additionally, we were r eferred to the Indian case of Kederi Lal v State of M. P . and Othersl 15l, where the Supreme Court of India held that an alleged disproportion between the Defendant's t otal value of wealth and his sources of income had been justified by reference to gifts, inheritances and loans that he claimed to have received from friends and family. 4.56 It was submitted that there was no evidence to substantiate the Appellant's assertion that she borrowed money from her uncle. It was also stated th at there is no credible evidence to authenticate the entries in the cash books nor were the entries signed for by the person(s) purportedly cashing in or the person(s) receiving the cash. 4 .57 The Respondent added that in the case of The People V Austin Liato18l it was acknowledged that Section 71(2) of the FPOCA places an obligation on any p ers on who wishes to seek refuge under its umbrella to prove certain facts. 4 .58 With respect to Ground Five, the Respond ent averred that the provision of the law under which t h e Appellant was convicted carries a maximum sentence of 3 years which by definition in Section 2 of the FPOCA is ._t :::;erious offence and thus the buses and money in the Account were correctly forfeited to the State by the Trial Court. The Respondent reiterated that a conviction u nder the Section J26 in issue is not predicated by proof of an offen ce as p er provision in Section 71(3) of the FPOCA. 4.59 It was contended that the fact that the Appellant was found guilty of possessing the buses reasonably suspected of being proceeds of crime contrary to S ection 71 of the FPOCA m eans that they are tainted property within the m eanin g of the FPOCA and therefore rign Lly liable to be forfeited. We were referred to the case of The People V Austin Liatol8 l. 4.60 In relation to Ground Six, the Respondent s ubmitted that the Learned Trial Magistrate did not err in law and in fact when he decided to forfeit the buses on the basis that the Appellant was convicted for possession of suspected proceeds of crime contrary to Section 71 ( 1) of the FPOCA which is a serious offence. 4.61 Under Grounds Seven, Eight, Nine, and Ten, the Respondent averred that the Learned Tria l Magistrate did not make the Forfeiture Order on t he b asis of an "absurdity'' as misapprehended by the Appellant as it was premised on the evidence which was on the Record before him. It was argued that an objective and s ober review of the Magistrate's Ruling leading to the Forfeiture Order, shows that it made sufficient reference to the facts on the Record and the relevant law. 4.62 The Respondent vied that t he issues f-'•' t·taining to the manner in which the buses were paid for was canvased at J27 length during the main trial, including th a t the Appellant possessed the buses which are suspected proceeds of crime, without applying any of her legitim a te income towards their purchase. 4.63 Further , the Respondent submitted that t hey supported the Trial Magistrate's decision to discount and ignore issues where it had already made findings of fact during the main trial leading to the conviction and the Forfeiture Order. 5.0 THE HEARING 5.1 When the Appeal came up for hearin g, th e resp ective Counsel r elied on their filed Heads of ArgLun ents and the Proceedings. They augmented their subm issions which were essentially a rehash of their Heads of Arguments and we find it unnecessary to r eproduce them here, suffice to state that we have taken them into account. 6 .0 CONSIDERATION AND DECISION OF THE COURT 6.1 We have considered the Notices of Appeal, the respective Heads of Arguments , the oral au gmentation by respective Counsel as well as the impugned Judgme1· t from the Court below. We intend t o proceed by determin ing Ground Two first, then Grounds Three, Four, Five, Six, Nine, One and Ten together as they are interrelated, thereafter Ground Seven and conclude with Ground Eight. 6.2 It is common cau se that the Appellant was charged a nd convicted of the Offence of b eing in posse ssion of property J28 reasonably suspected of being proceeds of crime under Section 71 (1) of the FPOCA. The Prosecution subsequently made an application for and was granted a Forfeiture Order with respect to the 10 Higer Buses valued at ZMW 26,282,770.00, as well as the rnon ey from the transportation business under Chibeka Express Limited. 6.3 Section 71 of the FPOCA pursuant to which the Appellant was convicted provides as follows: "( 1) A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Zambia any m o ney, or other property, that may reasonably be suspected of being proceeds of crime commits a n offence and is liable upon conviction to- (a) if the offender is a n a t ural person, imprisonment for a period n ot exceeding five years; or (b) if the offender is a body corporate, a fine not exceeding seven hund red thousand penalty units." 6.4 A reading of the law above shows that in order to prove the guilt of an Accused Person, the Prosecution m ust prove the following ingre dients: 1. the Accused Person has rece ived, possesses, conceals, disposes or brings in to Zambia money or other property; and J29 11. the money or property mus t reasonably be suspected of being a proceed of crime. 6.5 As regards who bears the burden of proof, the Supreme Court in the case of The People v Austin Liato181 stated as follows: "It is obvious to us that it is t he Prosecution which must harbour the reason a ble suspicion and which must prove it." 6.6 The standa rd of proof for the subj ect offe n ce is stipulated in Section 78 of the FPOCA as follows: "Save as otherwise provided in t his Act, any question of fact to be decided by the Court in proceedings under this Act is to be decided on the balance of probabilities." 6.7 In the facts of this Appeal, it is not in dispute that the Appellant is in possession of the 10 buses. What is in contention is whether there was reasonab l · suspicion that the said 10 buses a r e r e asonably su speck cl to b e proceeds of crime. We shall get back to wh at is reason a ble suspicion in the latter part of this Judgment 6.8 In the first Ground for determination which is Ground Two, the Appellant has contend ed that the Learned Magistrate erred in law and fact when h e put her on h er Defence instea d of acquitting h er at "No Case to Answer" stage. J30 6 .9 The Record shows tha t a fter th e clos e of the Prosecution case and submissions by t h e r espective Counsel, the Appellant was found with a "Case to An swer". We n ote that the Criminal Procedure Co de in Section 206 provides guida n ce to th e Courts in this resp ect as follows: "If, at the close of the evidence i n s upport of the charge, it appears to the court that a case is not made out against the Accused person sufficiently to require him to make a defence, the court shall dismiss the case, and shallforthwith acquit him." 6 .10 In a ddition , in the often cited case of The People v Njapau110l, the Supreme Court guided th e l: "A submission of no case to answer may properly be upheld if an essential element of the alleged offence has not been proved, or when the prosecution evidence has been so d iscredited by cross-examination, or is s o manifestly unreliable, that no reasonable tribunal could safely convict on it". 6 . 11 Fur ther, in the case of Th e People v The Principal Resident Magistrate, Ex parte Faus t i n Kabwe and Aaron Chungu116l it was s tated , inter a lia , th at: "3. There is no requirement under S ection 206 of the Criminal Procedure Code that the Court must give reasons for acquitting an accused person; J31 that it must merely appear to the Court. The converse, therefore, must also be true that where the Court finds an accused with a case to answer, it must merely appear to t he Court that a case has been made out against the accused. 4. A finding of a case to answer is based on the Court's feeling or impression, and appearance of the evidence. Above all, the fin d ing of a prima facie case is not a final verdict." 6.12 In casu and as alluded to under Paragraph 6 .4 herein, the Prosecution was required to prove possession of property and that the property was reasonably suspected to be proceeds of crime. 6 . 13 In support of the articulable facts and fa ctual basis to establish the reasonable suspicion, the Prosecution called 15 Witnesses. PW15, the Arresting Officer stated that his investigation of the Appellant 's legitim :tLC and known sources of income , including through examining h er Accounts with various Ba nks, her investments and checking her earnings by way of salaries, allowances and other payments for the period of 4 to 5 yea rs, could not explain or account for the value and amou n t of buses she acquired. 6.14 PW15 averred that consequently, reas onable susp1c10n was raised in him to form an opinion tha t th e buses could reasonably b e suspected of being p rocet:d:, of crime and J32 this suspicion was reinforced by the fact t hat the money paid for purchase of the buses did not come from any of the Appellant's Accounts or to which she ~1ad control of. 6 . 15 The Prosecution evidence as given by PW 15 is reflected in Paragraphs 4.37 to 4.44 herein. In a nutshell, the summary of the Prosecution evidence at the close of its case was that the money for the acquisition of the buses did not come from the Appellant's earn ings; that the payments for the buses were not traced to any Accounts the Appellant was linked to; and that the source of the funds used to buy the buses could not satisfactorily be explained. 6.16 We have also reviewed the Prosecution evidence on the Record as at that point, and we find that the Appellant was in possession of the 10 buses subject of this Matter and taking into account all the evidence and exhibits produced, there was, prima facies evidence to form reasonable suspicion that the property could be proceeds of crime. 6.17 We therefore find that the Trial Magistr :_tLe was on firm ground when he put the Accused on h e! defence as a perusal of the Learned Trial Magistrate's Ruling dated 28th June, 2024, shows that he considered the relevant principles of law and guidance in the c it ed authorities under Paragraphs 6.9 to 6.11 herein, before reaching the determination to put the then Accused on her Defence. We J33 therefore find no merit in Ground Two of this Appea l and dismiss it. 6.18 We now turn to Grounds Three, Four, Five, Six, One and Nine, which are intertwined and shall be d etermined holistica lly. After b eing found with a Case to Answer, the Appellant r aised the statut ory defence provided under Section 71(2) of the FPOCA which reads as fo llows: " (2) It is a defence under this Section, if a person satisfies the Court that the p erson has no reasonable grounds for suspecting that the property referred to in the charge w as derived or realized, directly or indirectly, from any unlawful activity." 6.19 At this point, the burden shifted to the Appellant to prove to the satisfaction of the Court , that she h , t:--1 no r easonable grounds for suspecting that the property i"e le rred to in the Charge was d erived or realized, directly or in directly, from any unlawful activity. The Appellant wa s required to satisfy the Court th at the property in question was acquired through legitimate means by offering eviden ce to support her explanation. 6.20 In this regard, we take cognizance of the proof required as stated in the Keny an case of Assets Recovery Agency Vs Peter Oluwafemi Olawonl 17l that: "... the Respondent must demonstr·a t e and justify that those funds, asset(s) or propert:y in question J34 are legitima te and were not a c qu ired through proceeds of crime ... He is also exp ected to provide evidence to support the explanation. He or she has to in rebuttal offer satisfactory exp lanation and evidence that is solid, honest and beyond peradventure, beyond gues swork or misinformation. The evidence ought to be clear, logical, consistent, believable and convincing. The Respondent has to in his respons e be clearly honest; and should neither be es cap ist, evasive, scapegoating nor misleading .. . " 6 .21 The Appellant in her Defence referred to h er work history which is on Record, including that of h er h u sband a s well as h a ving borrowed money from h er u n cle and the subse quent income generate d from t h e transport business. She also called DW3, employed a s Manager for the buses who testified tha t from th e two buses acquired in 2017, th ey went to t en buses and t h a t th ese gen er a ted gen erous sums of mon ey from t h e t ran sport a tion of p a ssen gers from various routes a s p er th e cash book s h e produced. 6 .22 Ther e is no contesta tion about the App ella n t's and h er husba nd's employm ent Record and that they d id receive various p aym ents in form of salaries , gr atuity, and other p en s ion b en efits . It is a lso not in dispute tha t the J35 Prosecution's investigation on the Appellant's earnings was centred around the period 2015 to 2022 . 6.23 A review of the evidence shows that the p ayment towards the purchase of the buses in 2017, 201 8. 2019 and part of 2020, amounting to USD 1,496,600.00, a s reflected in Wu Ming (PW13)'s evidence on Pages 76 to 78 of the Record of Appeal were made by cash. For part of 2020 and 2021, several bank transfers were made to Higer Bus Zambia Limited from the Chibeka Express Account h eld at Stanbic Bank, amounting to about K3,515,200.00 , as reflected in the Record of Appeal on Pages 27 to 29. 6 .24 We also find as a matter of fa ct that there is only one bank transfer made by the Appellant from her pc·rsonal account to Higer Bus Zambia Limited 1n the sum of ZMWl,600,000.00, on 15th December, 202 1, which she had testified was following one of the buses being involved in an accident and resulting in an insurance pay out in the sum of ZMWl,900,000.00. There is also one Bank transfer from the Joint Account with her husband on 27th May, 2021, worth Kl00,000.00 . She also stated that she had borrowed money from her uncle in 20 17 and 2018 worth K470,000.00, and Kl ,400,000.00 , respectively. 6.25 The Appellant then adverted to the case of Regina Chiluba v The People12l to contend that she ha d offered an explanation pointing to her and her husband's earnings, the money from her uncle as well as proceeds from the J36 buses and thus there was no basis for the suspicion that the property was proceeds of a crime as she had pointed to legitimate sources. 6.26 In light of the foregoing, we note that the cash books produced by DW3, Albert Bwalya, in r elation to the transportation business were rejected by d ie Lower Court. The Trial Court rejected the cashboo 1<:-; evidence as afterthoughts stating that: " ... they were mere narration of dates, from one destination to another, the Bus Registration Numbers, the driver's name, the a mount raised, number of passengers etc. not signed for or acknowledged to either the person purportedly handling the cash or the person receiving the cas ... h ,, 6 .27 However, the Appellant h as argued that 1h e Prosecution did not object to the said cashbooks and ic was not for the Court to do so. Counsel for the Appellant further alluded to Section 4 of the Evidence Act and cit ed the case of Jonas Amon Banda v Dickson Machiya Te mbol51 for the position that it is a duty of the Court to construe Records of businessmen even in their crude and s ummary fashion without being too astute or subtle in finding defects. 6 .28 In rebutting this , the Pr osecution referred l Section 5 of the Evidence Act which provides for Lh weight to be attached to statements admitted pursu an t to the Act, J37 taking into account the circumstances 1·1 om which any inference can r eason ably b e drawn as t o the accuracy or otherwise of the statement. 6 .29 We have also had occasion to peruse the s aid cashbooks and agree with the observations of the Trial Court as to what is depicted therein. We have further had occasion to look at the case of Jonas Amon Banda v Dickson Machiya Tembo151 and do n ote that in that c a se, the crude receipts and other documents in the dispu te were signed by both Parties to the transactions unlike her ein where t h e person who purportedly handed over t h e cashing or received the cash did not sign in the cashb ook . 6.30 We further note that in some of those cash books, there is a signature of a Director who merely wrote "checked" on some pages, for instance in "PD 10" and for January, 2 022, this was done on 6 th February, 2 0 22 . Further there were no receipts to prove the authenticity of the cashing as written in the book s produced by DW3. 6.31 We therefore find no merit in Ground Thrc-t~ ~md agree with the Learned Trial Magistrate's decision in n ot considering the cashbooks as proof of th e earnings as they did not meet the principle stated 1n Jonas Amon Banda v Dickson Machiya Tembol51 and also taking into account the provisions of Section 5( 1) of the Evidence Act which states: J38 "In estimating the weight, if any, to be attached to a statement admissible as evidence by virtue of this Act, regard shall be h a d to all the circumstances from which any 'i nference can reasonably be drawn as to t he accuracy or otherwise of the statement, and in particular to the question whether or not t he person who supplied the information contained or recorded in the statement did so contemporaneously with the occurrence or existence of t he facts stated, and to the question whether or n ot that person, or any person concerned with mak ing or keeping the record containing the state ,ne nt, had any incentive to conceal or misrepres ellt the facts. " 6.32 In the present case, t h e cashbooks lack ed such contemporaneity and bore n o s a feguard s a gainst misrepresenta tion. As such, they could n ot b e r elied upon to esta blish the alleged earnings . 6.33 This is e qually th e fa t e of Ground Fou r as there are n o Records or documenta tion to suppor t the alleged b orrowin g of t h e m on ey by th e Ap pella n t from h er uncle. DW4 , m erely produced Bank Statements ;u relation to th e Company own ed by DW2 but there w a :_. no con nection b et ween any tran saction therein with t h e Appella n t . This lack of corr obora tive evid en ce fa lls short of the standard set in the p ersuasive Indian Suprem e Court case of J39 Kederi Lal v State of M. P. and Others( 151 , where the Appellant was acquitted. The Court in that case stated: " ... every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also s upported by contemporaneous documents and intimations to the Government ... these amounts are well reflected in the Income Tax Retu,-ns filed by the appellant." 6.34 As can be seen from the above citation, the Court found in favour of the Appellant because every financial transaction was backed by direct witness testimony, con temporaneous records, notifications to relevant authorities, and entries in income tax returns. In contrast, the Appellant in the present case failed to produce any such cre dible, verifiable evidence to support the claim of a loan, thereby rendering the argument in this Ground untenable. 6.35 With respect to Grounds One and Nine, the Appellant challenged the finding of reasonable suspicion that the buses were proceeds of crime against the weight of the evidence. The Prosecution evidence h as already been alluded to under Paragr a phs 4. 37 to 4.44 and 4.46 h erein while the Appella nt's evidence h as b een stated under Paragraphs 4 . 1 to 4.5, 4.10 a nd 4 .14 to th e effect that she bought the buses from the ea rnings from lt,~r em p loyment, her husband's emoluments, borrowing fn .. r.1 her uncle and J40 the transportation business as the in itial two buses generated generous income which was u s...:::d to purchase the other buses. She added that having p ointed to the legitimate sources of income, there was no basis for the suspicion as alluded to in the Regina Chilubal2 l case. 6.36 We have considered the opposing arguments and the Record. What is key is to ascertain whether there were reasonable grounds for suspecting that the properties could be proceeds of crime or were realized directly or indirectly from unlawful activity. In this regard, the Supreme Court in the already cited case of The People V Liato18l clarified that "reasonable s1 LSpicion " under Section 71(1) of the FPOCA is not m ere conjecture or subjective inference. Rather, it must be grounded 1n articulable facts, a factual basis that distinguishes it from baseless speculation. The Court emphasised: "We are, for our part, perfectly s atisfied that reasonable suspicion as used in section 71 (1) of the Forfeiture of Proceeds of Crime Act, is mere conjecture or surmise, shy of actLa l proof that a state of affairs exist s. Such susp cion must be based on articulable facts ...... What however, calls for proof under section 71 (1) of the Act is 'reasonable suspicion'. This neces sarily entails that the suspicion ought to be based on some J41 factual basis which removes the subjectivity implicit in ordinary 'suspicion." 6.37 We have perused the Regina Chilubal21 case and note that in that matter evidence was adduced pointing to the fact that the Appella nt, Regina Chiluba, used 1.0 receive money from the former and now la te Republica11 President, Dr. Chiluba. There was a document prepared by the Appellant in that matter for tax purposes and in that document the Appellant was declaring that she had r eceived from Dr. Chiluba, over a period of time, US$ 352,000 . There was a witness who had dealt with the Appellant's declaration from the Zambia Revenue Authority who told Court that the Appellant prepared the declaration form in the presence of Dr. Chiluba. There was also another witness, the First Secretary at the Zambia n High Con1mission in London, who testified that Dr. Chiluba iiisLru c ted him to deliver to the Appellant, 1n London, a sum of US$45 ,000.00, which amount t he witness s aid he actually delivered. Flowing from the a bove, the Suprem e Court held that the moment evidence was adduced p ointing to Dr. Chiluba as being the source of the money which could not be accounted for by the Appellant's busin es ses, then the suspicion that the Appellant h ad stole u or unlawfully obtained the extra money was effectively : t I rioved. 6.38 However, in casu, t h e Appellant h as n o l p roduced such tangible, contemporaneous evidence in support of her J42 defence. No proof was furnished to show h ow she and her husband could have amassed sufficient funds, beyond the unsubstantiated claimed of ZMW420,000.00 , loan to purchase buses valued at ZMW3,600,000 in 2017. We do take note that the Appellant started working in 1996 and rose through the ranks to the position of Deputy Inspector General of Police, but this alone does not establish lawful acquisition of the assets. 6.39 We are also cognisa nt that emoluments ar~ p aid into Bank Accounts but as alluded to by PW15, on J -: January, 2017, the Opening Balance in the Appellant 's Account was K558,553.34. Br 31 st December 2017, the cumulative amount in the Apcount was K598,587 .56, which does not show a significant change. This was not d isputed, and the Appellant did not provide documentary e vid ence showing the source of the alleged additional funds . Furthermore, the claim of borrowing money from her u n cle only emerged during her Defence , which r aises concer1. s that it may have been an afterthought r a ther than a gc-11uine financial transaction supported by records. 6.40 Whilst the husband's earnings were called into aid as part of the funding for the buses, no documentary proof was produced before Court to show that he a s sisted in the procure1nent of the buses save for the one Bank transfer worth Kl00,000.00, on 27th May, 2021. This figure falls significantly short of the total cost of the bnses. J43 6.41 Based on the facts h erein, we find that the Prosecution's suspicion of illegality was grounded in articulable facts as further reinforced by the Trial Cour t on Page 249 of the Record of Appeal and J 36 of the Judgrr1cnt which were some of the Appellant's responses in cros ~-cxamination as follows: i. There is no transfer of funds to Higer from my account. ii. None of the funds paid to Higer in 2017, 2018 and 2019 went through the Bank. iii. The same can be said of the paym ents in 2020, except for the payment of Kl , 706 million of December, 2021 from Chibe,c~t. Transport (Express). iv. I have not produced anything to s how that the retirement amount I received in 2 014 of Kl.l million was applied to the purchase of buses. v. I have not shown that any payment for the buses came from my salaries. vi. I have not shown the court that a ny payment was made from gratuity". 6.42 Thus, taking into account the above fac. ':., including the evidence by the Appellant, it is our consider ed view that there were reasonable grounds, based on articulable facts and not conjecture, for suspecting that the buses referred to in the Charge Sheet were derived or realized, directly or J44 indirectly, from an unlawful activity. This is further supported by the fact that whilst the Appellant received a payment in 2015 in the sum of ZMW893 ,000.00, into her Bank Account, most of the payments in cluding for the purchase of the first two buses in 201 7 were made by cash and there were no bank transfers or corr esponding cash withdrawals from the Appellant's AcL·ount or her husband 's Bank Accounts to show paymL:::--1 t to Higer Bus Zamia Limited for the buses. 6.43 We also note that in addition to the buses, the Appellant constructed a house worth over Kl ,400,000.00, in Makeni, bought two Flats from NAPSA worth Kl,115,000.00 , and certainly that she had day to day living expenses. 6.44 The tota lity of the evidence that was adduced showed a significant disparity between the Ap1. Jdlant's known earnings from 20 1 7 to 2022 of slightly over K7 million and the cost of the 10 buses which she purchased during the same p eriod worth about ZMW 25,395 , 180.00. The Appellant's fa ilure to provide credible evidence linking legitima te income to the acquisition of the buses falls far short of the standard d emonstrated in the Regina Chilubal2 l cas e, supra. 6 .45 We therefore cannot fault the Trial Court fo r finding that th e Appellant failed to s h ow that sh e leg1Lirn.ately h a d the resources to purchase the said buses. Th e burden was on J45 the Appellant to establish a clear and credible link between her alleged sources of income and the a cquisition of the buses. However, as discussed abovr·, no adequate documentation, such as bank statements, in come records, or loan agreements, was produced to support the assertion that the funds used were lawfully obtained. We adopt the holding in the Kenyan case of Asset Recovery Agency v Lillian Wanja Muthoni t/ a Sahara Co nsultants & 5 Others1 1 s1 wherein it was stated as follows : " ... money and assets are not pluck ed from the air or like fruits f rom the tree. They can be traced to specific sources- salarie .:;;, businesses in which one sells specific items or goods, or provides professional services. There must be books of accounts, stock regis tered, local purchases and delivery notes showing to whom goods are sold, deliveries made and payment receipts showing from whom paym e nts has been received." 6.46 This holding underscores the fundame r• t:..tl requirement that the origin of significant assets m ust be verifiable through proper documentation. The Appellant's failure to present such evidence justifies the inference that the funds used were not from legitimate sources . 6.47 We therefore find no m erit in Grounds One and Nine of the Appeal. J46 6.48 With respect to Ground Ten, on the Appellant 's contention that there was no evidence that the Properties were tainted or proceeds of crime and thus the Magistrate erred by ordering the Forfeiture. Section 2 of the FPOCA defines proceeds of crime and s tates : "proceeds of crime" in relation t o a serious offence or a foreign serious offence, means property or benefit that is- who lly or partly derived or realized from a disposal or other dealing with proceeds of a serious offence or a foreign serious offence." 6.49 Further we note the definition of tainted property as follows: "tainted property" in relation to a serious offence or a foreign serious offence, means- (a) any property used in, or in connect ion with the commission of the offence; (b) property intended to be used in, o r i n connection with, the commission of the offence; o r (c) proceeds of the offence; and when used without reference t o a particular offence means tainted p roperty in :-e lation to a serious offence; and ... " 6.50 We h ave a lrea dy upheld the Trial Magistn tte 's finding that the buses were proceeds of crime b a sed on th e a bsen ce of a credible and lawful explanation for their acquisition, as J47 well as the presence of reasonable suspicion grounded in articulable facts. We note that in 2019 to 2021, some transfers were made from the Chibeka Express Limited Bank Account to Higer Bus Limited and th e money in that Account was from the buses under scrutiny . This entails that the buses purchased from the income generated from the buses whose source is reasonably suspected of being proceeds of crime are also proceeds of crirne and therefore tainted. ' 6. 51 It follows , therefore, that the properties in question meet the statutory definition of both proceeds of crime and tainted property under the FPOCA. The d octrine of "taint" under the law does not require conviction but rather a demonstrable link, direct or indirect, to unlawfully acquired assets. On this basis, we find that the Forfeiture Order was properly made and that Ground Ten is equally bereft of merit. 6.52 The Appella nt argued that by virtue of Section 10, a mere conviction is not enou gh and that the Prusecution must also prove that the property is tainted . The Application for Forfeiture was made pursuant to Section 4 and 10 of the FPOCA. Section 4( 1) is couched as fallows : "Subject to subsection (2), where a person is convicted of a serious offence c on1mitted after the coming into force of this a ct, a public J48 prosecutor may apply to the court f or one or both of the following orders. (a) a forfeiture order against p rop erty that is tainted property in respect of t he offence," While Section 10 (1) and (2) of the FPOCA reads, inter alia, as follows : "(l) Where a public prosecutor a pplies to the court for an order under this part against any property and the court is satisfied that the property is tainted property, the c ourt may order that the property, or such of the p roperty as is specified by the court in the order , be forfeited to the State. (2) In determining whether prop e rty is tainted property the court may infer- (a) where the evidence established that the property was in the person's pos s ession at the time of, or immediately after, the c ommission of the offence of which the person w a s convicted, that the property w a s used in, or ln connection with, the commission of the offen .-:e;" 6 .53 In the m a tter b efore u s, it is not in dis pute tha t the Appella nt wa s convicted for the offence of being in possession of property reasona bly suspected of b eing proceeds of crime which qualifies a s a s erious offence J49 1' under the FPOCA and the definition of tainted property explicitly includes proceeds of an offence. The buses in question were found to have been in the Appellant's possession and acquired without credible explanation as to their lawful origin, thus satisfying the evidentiary threshold under Section 10(2)(a). The r l)rfeiture Order was granted premised on tha t Conviction :tn.d the Court's satisfaction, based on articulable facts, th a t the property was tainted, thus, we see no merit in this argument. 6 .54 In Ground Six, the Appellant has argued the Forfeiture Order was wrong as she was not convicted of a serious offence. As to what is a serious offence, Section 2 of the FPOCA, provides as follows: "serious offence" means an offence for which the maximum penalty prescribed by la w is death, or imprisonment for not less than t w e lve months." 6.55 This definition is unequivocal. The offen ce of possession of property reasonably suspected to be p r oceeds of crime, under Section 71(1) of the FPOCA, carries a maximum sentence of Five years, and thereby exceeding the stipulated twelve months. This therefor e falls squarely within the statutory definition of a serious offence. 6 .56 Further guidance is provided in the case of Elvis Haatila and Anor v The Director of Public Prosecutions' 19l where the Court of Appe al clearly sta t e d , , s follows: JSO " .... the offence of possession of property reasonably suspected to be procee ds of crime, under Section 71 of the Forfeiture of Proceeds of Crime Act, are serious offences for purposes of classifying property as tainted property ... " 6.57 We note the argument by the Appellant's Counsel that based on Section 16 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia ("CPC") and the Fifth Schedule that any sentence imposed by law which has no minimum mandatory sentence can b e suspended a nd therefore as the Offence under Section 7 1 ( 1 )of the FPOCA has no minimum manda tory senten ce, it can be suspended and therefore falls outside the scope of a serious offence. 6.58 We find this argument to be flawed. The classification of a serious offence under the FPOCA h inges on the maximum sentence prescribed by law, and n ot on whether the sentence is capable of b eing suspended. As such, the argument advanced by the Appellant colL 1. Jses in the face of the clear provisions in the FPOCA wh ich define a serious offence and the guidance of the Court of Appeal in the Haatila and Anor v The Director of Public Prosecutionsl 191 case supra. 6 .59 It was further argued that the Learned Magis trate erred in law and fact when he forfeited the Appellant 's caption ed properties to the State without any evidence that the JSl prop erties were connected t o a ny serious offence. However , this line of reas oning ignores the n a tur e of the offen ce under which th e Appellant was ch arged bein g Section 71(1) of the FPOCA and Subsection (3) th ereof which p rovides as fallows : "The offence under subsectio n. (1) is not predicated on proof of the co1nm ission of a serious offence or foreign serious offence." 6.60 A r eading of the a b ove provision clearly s hows tha t the Pros ecution d oes not h ave to sh ow con nection or proof that th e proper ty is connected to a p articular seriou s offen ce. This was a lluded to by th e Court of App eal in th e already cited case of Haatila and Anor v The Director of Public Prosecutions' 19 l as follows: " ... a person who is charged wit h t he offence of being in possession of property reasonably suspected to be proceeds of crime u nder section 71 ( 1) of the Forfeiture of Proceeds of Crimes Act, can be convicted in the absence of evidence proving the commissi on of a particu lar crime ... " 6.61 Having determined th at th e offence u nder Section 71(1) of the FPOCA mee ts the sta tutory definition of a serious offence, and that no connection t o a s pt·cific predicate offence is r equired fo r a con viction or forL I tre, we find n o merit in Ground Six and it is dismissed. JS2 6.62 With respect to Ground Seven, the AppelJ ant contended that the Learned Honourable Magistrate erred when he declined to analyse or review evidence and the provisions of the FPOCA on which the Application before him was made and the applicability of the law to the facts, before making the Forfeiture Order, we note that the Application was made two days after the Conviction of the Appellant. 6.63 The Appellant argued that the Court was called upon to decide whether a Conviction Based Forfeitu re Order can be made regardless of the nature of the offence for which a person was convicted and whether the Order can only be made if one was convicted of a serious offence and whether the offence under Section 71 of the FPOCA was a serious offence. 6.64 The Respondent countered that the Forfeiture Order was premised on the evidence that was on the Record before him and it was the same Magistrate th at found the Appellant guilty and convicted her o f possession of suspected proceeds of crime. 6.65 We have perused the Trial Court's Ruling appearing on Pages 391 to 395 of the Record of Appeal. It is evident that the Magistrate expressly relied on the evidence already presented during the trial. The Forfeiture Application was not a stand-alone application but was subsequent to the substantive Matter in which the Appellant was convicted of being in possession of property reasona bly suspected to J53 b e proceeds of crime contrary to Section 71(1) of the FPOCA. There was clear r efer en ce to the Record of Proceedings b efore th e Court which led tu the Con viction of the Ap pellant and this can be furth er SL·e n by th e Cou r t stating, inter alia, th a t : "It would therefore be absurd if h aving found that the buses were proceeds of c rime, the same court orders them to be released t o t he Interested Party. The Interested Party has gone at large in dissecting the particular provisions of the Act 19/2010 dealing with forfeiture but all that does not assist her case a s long as the conviction was based or rela ted to t he property t 1.i; s ubject of the current application ... " 6.66 It is ou r considered view that wh at the Appellant seeks is t h a t the Court ought to h ave reh ashed what was already det ermined in the substantive Judgm ent wherein the Cour t stated a t J 37, inter alia, a s follows: "if the source of those funds c ould not be satisfactorily explained, then it ·i s safe to hold the view t hat they w ere proceeds .,f c rime. And if I hold the vie w with regard to the /i rst t wo buses, it will follow that even those buses which were acquired later from what was raised by the first two buses, will also fall into t he category of J54 proceeds of crime because the fu nds used to procure them came from a tainted source." 6 .67 We therefore cannot fault the Trial Court for the manner in which the Ruling was couched as it made clear reference to the Record and its Judgment in the substantive Matter. We find no merit in this Ground of appeal. 6.68 In relation to Ground Eight, it h as been contended that the Trial Court erred wh en it failed to exclude the income which was clearly traceable to the Appellant's accounts and paid directly to Higer Bus Zambia Limited for the purchase of the buses. 6.69 The Record shows that there were two payments that could be connected to the Appellant's Accou nts . This was a Bank transfer from the Joint Account on 27 th May, 2021 as alluded to by PW9. The other amount was Kl,600 ,000 .00 from t h e Appellant's A(xount on 15th December, 202 1. However , the Appellant h a d stated that this money was coming from a n insurance p ayout following an accident with one of the buses and she sought to replace it. 6 .70 While the Kl ,600 ,000.00 transaction was in deed traceable to the Appellant's Bank Account, its origin LS critical to the legal question. The bus that was involved in the accident, and which gave rise to the insurance p nyout, was itself acquired u sin g funds whos e s ource the A 1 > pell ant failed to legitimately explain. As su ch , the in :-;uran ce payout JSS constitutes derivative proceeds of t a inted property. Consequently, the paymen t made fr01:; this amount cannot be regarded as h aving come fi u1n a clean or legitimate source. 6 .71 In essence, the taint attached to the origina l funds used to purchase the bus transfers to the insurance proceeds, thereby maintaining the character of the property as proceeds of crime under the FPOCA. 6.72 Thus, we find that the only money that has a legitimate source and was used in the p ayment to H iger Bus Zambia Limited is only the Kl00 ,0 00 .00, from t h e· Appellant and her husband's Joint Account a s alluded to in Paragraph 6. 40 above. The rest of the funds , including the Kl ,600,000.00, insurance payout, remain t ainted. Thus, Ground Eight succeeds only to this limi ted extent in respect of the Kl00,000.00, and fails in all other respects. 7 .0 CONCLUSION 7 . 1 The net result is that we find no merit in Grounds One , Two , Three , Four, Five, Six, Seven, Nine a1 ,d Ten of Appeal. Ground Eight succeed s on ly to th e limik,; exten t th at a sum of Kl00,000.00, is excluded fro m the Forfeiture Order. 7 .2 Consequently, the Appellant's Appeal fails a nd we uphold the lower Court's Judgment and the For feiture Order which shall exclude the Kl00 ,000.00. As the Appellant J56 has been on Bail pending Appeal, her Sentence starts running today. 7 .3 Leave to Appeal is granted. Delivered at Lusaka this 30th day of June, 2 025. SM .............. ... ~ A. MALATA-ONONUJU J57