Director of Public Prosecutions v Esther Nyawa Tembo Lungu (2023/HPEF/23) [2024] ZMHC 148 (27 September 2024)

IN THE HIGH COURT FOR ZAMBIA 2023 /HPEF / 23 CRIMES REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 31 OF THE FORFEITURE OF PROCEEDS OF CRIME ACT NUMBER 19 OF 2010. IN THE MATTER OF: SECTION 71 OF THE FORFEITURE OF PROCEEDS OF CRIME ACT NUMBER 19 OF 2010. BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT AND IN RE PROPERTY: PROPERTY NO. 9334/ 1, 9334/2, 9334/3 AND 9334/4, CONTAINING 15 DOUBLE STOREY FLATS, IN STATE LODGE. ESTHER NYAWA TEMBO LUNGU INTERESTED PARTY BEFORE THE HONOURABLE JUSTICES P. K. YANGAILO, I. M. MABBOLOBBOLO AND S. V. SILOKA, IN CHAMBERS, ON THE 27TH DAY OF SEPTEMBER, 2024. For the Applicant: Mrs. M . Kapambwe-Chitundu, Mrs. R. Malibata-Jackson & Mr. D. Mukelelabo - National Prosecution Authority. Jl I Page F or the Interested Party: Mrs. D . Findlay & Mr. C. Changano - . . D. Findlay & Associates; and M r. M . Zulu & M r . J. Zim ba - Make bi Zulu Advocates. JUDGMENT P . K . YANGAILO, J. , DELIVERED THE JUDGMENT OF THIS COURT. CASES REFERRED TO: 1. 2. 3. 4. 5. 6. 7. 8. 9. Simon Prophet v The National Director of Public Prosecutions, Case CCT 56/ 05; DPP v Jessie Bwalya Kapyelata Tapalu 2018/ HP/ 1888; Director of Public Prosecution and ZMK 157,040, US$ 23,007.14, ZMK 50,000.00 and ZMK82,333.83 held in different Bank Accounts, 2019/ HP/ 1784; Director of Asset Recovery Agency v Green (2205) EWHC 3168; National Crime Agency v Baker and Others (2020) EWHC 822; The People v Austin Chisangu Lia to Supreme Court - Appeal Number 291I2014; Sithole v Zambia State Lotteries Board (1975) Z. R. 106; Commerce International SA v Akindele (2000) EWCA 502; DPP v Jessie Bwalya Kapyelata Tapalu; 10. Stanley Amuti v Kenya ACC MISC 5 OF 2016 (formerly civil suit No. 448 of 2008) (0. SJ; 11. Assets Recovery Agency v Peter Oluwafem Olaiwon - Civil Suit No. E002 of 2022; 12. Kalandanya and Others v The Attorney and Others (2023) ZMHC 5; 13. Phiri and Others v The People (1973) Z. R. 4 7; 14. Nachanga Transport v Director of Public Prosecutions (CAZ App eal No 2 52 of 2020); 15. Queensland Bacon v Rees (1966) 115 CLR 266; 16. Sydney Mwansa v The People -Appeal No. 276 of2021; 17. Assets Recovery Agency Director v Szepletowsk & Others (2007) EWCA Civ 766; 18. Green v Director of Assets Recovery (2005) EWHC 3168; 19. The Director of Public Prosecution and Dhiraj Dhumputha - 2 020/ HP/ 1287; and 20. Abel Banda v The People (1986) Z. R. 105. LEGISLATION REFERRED TO: 1. The Forfeiture of Proceeds of Crime Act Number 1 9 of 2010 of the Laws of Zambia; J 2 I Page 2. The High Court of Zambia, Chapter 27, Volume 3 of the Laws of Zambia; 3 . The Prohibition and Prevention of Money Laundering (Amendment) Act No. 44 of 201 0; 4. The Income Tax Act, Chapter 323 of the Laws of Zambia; 5. The Constitution of Zambia, Chapter 1 of the Laws of Zambia; 6. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia; 7. The Evidence Act, Chapter 43 of the Laws of Zambia; 8. The Property Transfer Tax Act, Chapter 340 of the Laws of Zambia; 9. The Evidence (Bankers Books) Act Chapter 44, Volume 4 of the Laws of Zambia; 10. The Electronic Communications and Transactions Act No. 5 of 2022; and 11. The Rules of the Supreme Court, 1999 Edition, London Sweet & Maxwell. OTHER WORKS REFERRED TO: 1. Phipson on Evidence, Seventeenth Edition, (Thomson Reuters (Legal) Limited, 2 01 0; and 2. Journal of Money Laundering, Volume 8, Issue 2, pages 104 to 114. 1. INTRODUCTION 1.1 This is a Judgment 1n respect of the Applicant's Originating Notice of Motion for Non-Conviction Based Order of Tainted Property, filed on 13th June, 2023, pursuant to Sections 29, 31 and 71 of The Forfeiture of Proceeds of Crime Act1. 2. BACKGROUND 2 .1 The Applicant , the Director of Public Prosecutions ("DPP"), filed herein an Originating Notice of Motion, on 13 th June, 2023, seeking a Non-Conviction Based Forfeiture Order of tainted property, in respect of Property No. 9334/ 1, 9334 /2, 9334 / 3 and 9334/ 4 , containing 15 double storey flats, in State Lodge. The Applicant a lleges that these properties are reasonably suspected to be proceed of crime and therefore, tainted and liable for forfeiture to the State. J 3 I Page . . 2 .2 The Interested Party, Esther Nyawa Tembo Lungu, has shown interest in the said Properties, which she alleges that she legitimately obtained, and therefore, not liable to forfeiture to the State. 2 .3 It is against this backdrop that the Applicant launched this Suit. 3. AFFIDAVIT EVIDENCE 3.1 The Applicant's Application is supported by an Affidavit. The Interested Party, has opposed the Application and filed herein an Affidavit in Opposition. 3 .2 Applicant's Affidavit in Support 3.2.1 The Applicant's Affidavit in Support, filed herein on 13th June, 2023, is deposed to by Emmanuel Khondowe, a Senior Investigations Officer, in the employ of Drug Enforcement Commission ("DEC"), working under the Anti-Money Laundering Investigations Unit ("AMLIU"). 3 .2.2 The Affidavit revealed that "DEC" received information in May, 2022, from a reliable source, to the effect that there was real property which was acquired between the years 2013 to 2021, belonging to a politically exposed person and their associates, that was reasonably suspected to be proceeds of crime. The properties were situated at Plot No. 9334/1 , 9334/2, 9334 / 3 J4 I Page . . and 9334 / 4 ("Subject Properties"), 1n State Lodge area. 3 .2.3 Upon receipt of the said information, the DEC constituted a team of investigators, who instituted investigations in the matter and the Deponent was assigned to lead investigations in the matter. The Deponent conducted a search at the Lands and Deeds Registry, which revealed that the Subject Properties are registered in the names of Esther Nyawa Tembo Lungu . A copy of an extract of the Register marked "EKl" was produced. 3.2.4 The investigation at the Lands and Deeds Registry further revealed the following, in the names of the Interested Party: - a) Certificate of Title No. for CHONG/ LN 9334/ 1 is CT- 10654, registered on 1st July, 2015; (b) Certificate of Title No. for CHONG/ LN 9334/2 is CT- 10655, registered on 1st July, 2015; (c) Certificate of Title No. for CHONG/ LN 9334/ 3 is CT- 10651, registered on 31 st July, 2015; and d) Certificate of Title No. for CHONG/ LN 9334/ 4 is CT- 10652, registered on 31 st July, 2015. 3 .2 .5 A copy of the Register marked "EK3" was produced. J S I Page 3.2 .6 The Deponent wrote to the Ministry of Infrastructure, Housing and Urban Development r equesting for the estimated cost of construction of the 15 blocks of double storey flats at the Subject Properties. 3 .2.7 In response to this request, a Report was issued from the technocrats at Ministry of Infrastru cture, Housing and Urban Development, which revealed that the estimated cost for the construction of 15 double story flats and other associated works on the Subject Properties, as at November , 2 0 22, wa s K41 ,586,1 10.66. A copy of the priced Bill of Quantities marked "EK4" wa s produced. 3.2.8 The Dep on ent interviewed and r ecorded a Statement from Micky Kaisi, a Quantity Surveyor from the Ministry of Infrastructure, Housing and Urban Developmen t, who explained that using the average United States Dollar rate of USD 1 to K9.49 from 2015 , b eing the p eriod b etween which the structures were constructed, the cost was interpolated to K24,256,4 34.55 . A copy of the Statement of Micky Kaisi marked "EKS" was produced. 3.2.9 Upon receiving the Priced Bill of Quantities Report, the Deponent decided to investigate the financial capacity of th e Inter ested Party in J6 I Page r, relation to the Subject Properties acquired and the investigations revealed that, she holds an account with Zambia National Commercial Bank ("ZANA CO"). 3.2.10 The Deponent recorded a Statement from Mr. Brian Muleya Mutakwa, the Branch Manager at ZANA CO, who stated that the Interested Party holds Account No. 03284100131 with ZANACO and that she opened the said Account on 27th March, 1995, as sole signatory. 3 .2 .11 Mr. Brian Muleya Mutakwa revealed that the said Bank Account had 65 debit entries worth K2,511, 117.09 and 79 credit entries with a gross total of a bout K 3 , 104,487.14, as credit and debit turn over b etween 1st January, 2012 and 16th August, 2022. A copy of the Statement of Brian Muleya Mutakwa marked "EK6" was produced. 3.2.12 Mr. Mutakwa further revealed that both credit and debit turnover consisted of inter account transfers of K500,000.00, dated 4 th May, 2022, thereby increasing turnover on both ends with no fresh inflows. 3.2. 13 The Deponent recorded a Statement from Choolwe Chiyala, a Banker at First National Bank ("FNB"), in relation to the Esther Lungu Foundation Trust Kwacha Account No. and Dollar Account No. J7 I Page 62569585808 domiciled at FNB. The Statement revealed that the Kwacha Account was opened on 3rd November, 2015, as a Public Sector Account, that the Interested Party was Chairperson and one of the signatories for the said Kwacha Account. 3.2.14 It was further revealed that there was a total debit entry worth about Kl4,054,098.27 between 3 rd November, 2015 and 31 st August, 2022 , which were mainly Bank Charges, Salaries and Project Funding among other expenses. 3 .2 .15 Choolwe Chiyala further revealed that there was a total credit entry worth a gross total of about Kl 9,459,606.86 and that in this amount, there were placements of about K3,000,000.00 and USD20,356.70 into fixed deposit accounts, which did not in any way benefit the Interested Party in her personal capacity. 3.2.16 It was further revealed that the USD Account was once held at FNB in 2015 and was closed on 1st August, 2018. At the closing date, there was a credit balance of USD55,115.57. 3.2.17 The Deponent seized the Subject Properties as they were reasonably suspected to be proceeds of crime. He stated that he had been advised and believes the same to be true and correct that the Subject Properties are tainted properties and JB I Page liable for forfeiture to the State. Copies of the Notice of Seizure marked "EKlO" were produced . 3.2.18 During the investigations, the Deponent discovered that the Interested Party had no other income generating activities known to h im. He conducted an analysis of the Interested Party's known income and known expenditure for the period 1st August, 2012, to 16th August, 2022, which revealed an income of K3, 104,487. 14 against an expenditure of K2,511,117 .09, with variation of K593,370 .05 . 3.2.19 After the analysis, he did a comparison of the known income of K3 , 104,487. 14 against the Subject Properties with the 15 double storey flats valued at K24,256,434.55, which showed a variation of K2 l , 151,947.41 above her known income. 3.2.20 He further stated that the offence in Section 71 of The Forfeiture of Proceeds of Crime Act1 is a serious offence. 3.3 Interested Party's Affidavit in Opposition 3.3.1 The Affidavit in Opposition, filed herein on 13th July, 2023, is deposed to by Esther Nyawa Tembo Lungu, the Interested Party, who averred, inter alia, that she is the duly registered J g I Page . . proprietor of the Subject Properties and has beneficial interest in them. Copies of the Certificates of Title relating to the Subject Properties, marked "ENTLl", "ENTL2", "ENTL3" and "ENTL4" were produced. 3.3.2 The Deponent strongly disputed being involved in any alleged serious offence or foreign serious offence and categorically denied that the Subject Properties are either wholly or partly derived or realised directly or indirectly by either herself or any other person from the commission of a serious offence or a foreign serious offence. She further denied that the Subject Properties are wholly or partly acquired from proceeds of a serious offence or foreign serious offence. 3.3.3 The Deponent asserted that on 26 th July, 2022, at 10:30 hours, when she was summoned to appear before the DEC, she was interviewed in relation to the Subject Properties by Mr . Emmanuel Khondowe whom she informed that the Subject Properties were acquired by way of direct lease from the Commissioner of Lands. Copies of the Letters of Offer marked "ENTLS", "ENTL6" ' produced. "ENTL 7" and "ENTLS" were 3.3.4 She avowed that the fact that the Subject Properties were acquired by way of direct lease J lO I Page was known to Mr. Khondowe but that this fact has b een deliberately excluded from the contents of the Affidavit in Support of the said Notice of Motion, which she is advised by h er Advocates is material non-disclosure of information 1n relation to the Subject Properties sought to be forfeited to the State. 3.3.5 She deposed that Mr. Khondowe has disclosed that he conducted an analysis in rela tion to her income and exp enditure and then r endered an opinion with regards the alleged variation from his speculative analysis, a s he is not an expert witness nor a qualified Auditor nor an Accountant or has any other Financial Accounting background or expertise, to gather financial information, analyse the said financial information and make conclusions, d eductions or indeed render opinion as to her income or exp enditure or variation thereof in the absence of such qualifications and in the absence of proper financial audit. 3 .3.6 The Deponent averred that it is a well-known fact tha t she was the First Lady of the Republic of Zambia as she is married to the former President of the Republic of Zambia, Mr. Edgar Chagwa Lungu, and that prior to becoming the First Lady as aforesaid, she worked for the Zambia Council Jll I P age for the Blind and Handicapped; the Christian Council of Zambia; under the United National High Commissioner for Refugees ("UNHCR") for Refu gee Counselling Services; the Legal Services Cooperation; Lisulo and Company; Toplis and Harding Insurance Loss Adjusters; and Independent Insurance Loss Adjusters. 3.3.7 The Interested Party stated that upon retirement from formal employment, she was involved in Non-Governmental Organisations, which enabled her to travel internationally to exhibit and sell Zambian products, in liaison with the Zambia Development Agency ("ZDA"), where she r ealised some finances . Further to the foregoing, as First Lady of the Republic of Zambia, she earned allowances from both local and foreign travel. 3.3.8 She asserted that she personally informed Mr. Khondowe of the forestated source of income that she had acquired both during the said period and the period prior to the said investigations, which he had deliberately omitted from the contents of the Affidavit in Support of the Application. 3.3.9 The Deponent affirmed that the Subject Properties, despite being registered in her name, are in fact matrimonial properties developed by J12 I Page her husband, which information was also conveyed to the Investigation Officer. 3.3. 10 She avowed that that the valuations of the Subject Properties were unila teral and were carried out to ascertain and compute an intentionally inflated colossal value, which she disputed in any event. 3.3.11 The Deponent affirmed that a ll this information, having been m a de available to Mr. Khondowe, was information that ought to have b een disclosed and made known to the Court, which she verily believes was deliberately excluded in an attempt to mislead the Court so as to support Mr. Khondowe's unfounded allegations th at the Subject Properties are either proceeds of crim e or tainted properties. 3 .3. 12 The Deponent asserted that the Applicant has failed to state or give particulars of the alleged serious offen ce or foreign serious offence or unlawful activity either a ssociated with her or any of the Subject Properties listed in the Application h er ein . 3.3.13 She stated that the Applicant has not only failed to state the n a ture of the alleged serious offence, foreign s erious offence or unlawful activity but also failed to exhibit any cogent evidence of any such alleged serious offence or foreign serious J13 I Page offence, or alleged unlawful activity, or evidence to link the properties sought to be forfeited to the State to the commission of such serious offence, foreign serious offence or unlawful activity. 3.3.14 It was asserted that that Mr. Khondowe has failed to demonstrate with sufficient evidence, that the Subject Properties in issue are either tainted properties or proceeds of crime or any evidence upon which the Court can reasonably infer that the Subject Properties are either tainted properties or proceeds of crime. 3.3.15 The Deponent stated that she had been advised by her Advocates and verily believes that it is her constitutionally guaranteed right to be presumed innocent until proven guilty and that these proceedings breached this right by attributing guilt with no prior conviction associated with the Subject Properties. She asserted that due regard must be given to the said constitutional rights as guaranteed under the Constitution to acquire property so that her constitutional right to a fair trial is equally respected. 3 .4 Applicant's Affidavit in Reply 3.4. 1 The Applicant responded to the Interested Party's Affidavit in Opposition by filing herein an Affidavit in Reply on 9 th August, 2023, which is deposed to by Emmanuel Khondowe. The J14 I P age Deponent averred, inter alia, that despite the cited Subject Properties' numbers being incorrect, it is not in dispute that the alleged tainted Subject Properties, subject of this Application, are registered 1n the name of the Interested Party. 3.4.2 The Deponent reiterated that the Subject Properties are reasonably suspected to be proceeds of crime and stated that the offence of being in possession of property reasonably suspected to be proceeds of crime is a serious offence. 3.4.3 It was averred that despite a person not being charged with the offence, an application can be made against the property as it is the property that is in contravention of the law. He averred further that he had been informed by Counsel that the offence of being in possession of property suspected to be proceeds of crime is not predicated on proof of the commission of a serious or foreign serious offence. 3.4.4 The Deponent deposed that, the Subject Properties are proceeds of crime because an analysis of the Interested Party's income reveals that she lacks capacity to possess the Subject Properties. JlS I Page . . 3.4.5 The Deponent stated that it was not in dispute that the Subject Properties were acquired by direct lease from the Commissioner of Lands as the said information was already deposed to. He stated further that the information regarding the plots of land was not withheld as it was stated and exhibited as "EK2" of the Affidavit in Support of the Notice of Motion. 3.4.6 The Deponent also stated that he conducted an analysis in relation to the Interested Party's known income and known expenditure for the p eriod 1s t August, 2012, to 16th August, 2022, and thereafter, rendered an opinion based on the findings thereto, which analysis was not speculative as it was based on factual figures, which he found and exhibited. 3.4.7 The Deponent affirmed that he 1s a qualified Financial Investigator and Analyst of over 10 years standing and experience and that the conclusions he arrived at were in consultation with the Bank Manager and Accountants in the firms he interfaced with in investigating this matter. 3.4.8 He asserted that he investigated the Interested Party's possible sources of income and discovered that she did not have income to enable her undertake development of the real J16 I Page estate which are the subject of interest in this Matter. 3.4.9 The Deponent tendered that he extended his investigations to all sources of income, which the Interested Party may have generated locally and abroad, which investigations led h im to Zambia Revenue Authority ("ZRA"), to ascertain if there was any registered income under the Interested Party's name or Non-Governmental Organisations ("NGO") and he found that there were no registered tax returns either in the name of the Interested Party, NGO or any entity associated with her. Further, that there were no other known income streams linked to the Interested Party both locally and abroad as per Taxpayer information. A copy of the relevant Taxpayer information marked "EKl" was produced. 3.4.10 The Deponent affirmed that the Esther Lungu Foundation Trust is only registered for Pay as You Earn . A copy of the ZRA Pay as You Earn Report marked "EK2" was produced. 3.4.11 The Deponent averred that the Interested Party has not shown any proof of any income streams, payment or finances accruing to her, which she alleges to have earned to enable her develop real estate, which is the subject of these proceedings. J17 I P age . . He further averred that he conducted investigations, which revealed that the Interested Party did not accrue allowances for her trips abroad and that she has not exhibited proof of payment of the said allowances to support her allegation. 3.4.12 The Deponent asserted that the Interested Party contradicted her earlier assertions 1n the Affidavit in Opposition as to her capacity to develop the subject real estate and further that the Interested Party has not exhibited any proof that her husband developed the alleged tainted Subject Properties. 3.4. 13 The Deponent further asserted that the burden of proof rests with the Interested Party to provide clear and verifiable evidence on the origin of the funds used for the construction of the Subject Properties. He stated that it is the duty and responsibility of the Interested Party to convince the Court with substantial evidence demonstrating the lawful source of the funds used for construction of the Subject Properties. 3.4.14 It was also asserted that the Interested Party h as not exhibited the movement of money from h er husband to her account or to the contractor's account to substantiate her claim that he built the Subject Properties. He stated that there was J18 I Page . . need for the Interested Party to demonstrate to the Court how and where her husband obtained money to develop the subject real estate. 3.4.15 The Deponent avowed that the valuations were done by an independent Government institution, which has the mandate to value properties and the computed price was not inflated but the value evaluated at cost amounted to K24,256,434.55. He stated that the actual Market Value of the Subject Properties as per the Department of Valuation and Property Management 1s K66, 100,000.00 (Sixty-Six Million One Hundred Thousand Kwacha) . A copy of the Property Valuation Report marked "EK3" was produced. 3.4.16 The Deponent asserted that the findings of his investigations are not unfounded as they are based on facts , which he personally established during investigations and that he did not in any way mislead the Court. 3.4.17 It was further asserted that being in possession of property suspected to be proceeds of crime is a serious offence and the particulars of the same were stated in the Affidavit and Skeleton Arguments filed in support of the Notice of Motion. J19 I P age . . 3.4.18 The Deponent also asserted that the proceedings are not against th e Interested Party but the property and therefore, th e issues of her being presumed innocent do not arise in the nature of these proceedings and as such, none of her constitutional rights have been breached as alleged. It was stated that there is no need for a prior conviction against the Interested Party for the property in issue to be declared tainted property. 4 . SUBMISSIONS 4 . 1 Both Parties filed herein Skeleton Arguments to augment their Affidavit evidence. 4.2 Applicant's Skeleton Arguments 4.2.1 By the Applicant's Skeleton Arguments filed on 13th June, 2023, the Applicant's Counsel cited OrderXXX, Rules 15 and 17 of The High Court Rules2 and Sections 29 and 31 of The Forfeiture of Proceeds of Crime Act1 and submitted that the Applicant approach es the Court by way of a Notice of Motion for a Non Conviction Based Forfeiture. 4.2.2 Counsel submitted that Non-Conviction Based Forfeiture also known as Civil Forfeiture provides a unique remedy used as a measure to combat organised crime. It rests on the legal J20 I Page fiction that the property and not the owner has contravened the law. 4.2.3 It was further submitted that it does not r equir e a conviction or even a criminal charge against the owner and that this kind of forfeitur e 1s 1n th eory seen as remedial and not punitive. The decision in the case of Simon Prophet v The National Director of Public Prosecutions1 was cited a s follows: - "Ci vil forfeiture provides a unique remedy used as a measure to combat organized crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner. This kind of forfeiture is in theory seen as remedial and not punitive. The general approach to forfeiture once the threshold of establishing that the property is an instrumentality of an offence has been met is to embark upon a proportionality enquiry weighing the severity of the interference with individual rights to property against the extent to which the property was used for the purposes of the commission of the offence, bearing in mind the nature of the offence. The POCA is an important tool to achieve the goal of reducing organised crime. Its legislative objectives are set out in its Preamble which observes that; (a) criminal activities present a J 21 I Page danger to public order and safety and economic stability and have the potential to inflict social damage; and (b) South African common law and statutory law fail to keep pace with international measures aimed at dealing effectively with such activities. Its scheme seeks to ensure that no person convicted of an offence benefit from the fruits of that or any related offence, and to ensure that property that is used as an instrumentality of an offence is forfeited." 4.2.4 Counsel submitted that a Non-Conviction Based Forfeitur e is meant to demonstrate that crime does not pay, to incapacitate cr iminal moguls, so that the property with which they allegedly committed th e crim e is taken away from them and by so doing to protect the public from criminal magnates. It was fu rther subm itted that Non-Conviction Based Forfeiture 1s constitution al. In fortifying this submission, Counsel called in aid the case of DPP v Jessie Bwalya Kapyelata Tapalu2 , which states that Non-Conviction Based Forfeiture 1s constitutional. Cou nsel fu rther cited Section 31 (4) of The Forfeiture of Proceeds of Crime Act1 , which provides that: - "The validity of an order under subsection (1) is not affected by the outcome of the Criminal Proceedings, or an investigation with a view to JZZ I Page institute such proceedings in respect of an offence with which the property concerned is in some way associated." 4 .2.5 Counsel also cited the case of Director of Public Prosecution and ZMK157,040.00, US$ 23,007.14, ZMKS0,000.00 and ZMK82,333.83 held in different Bank Accounts3, where this Court h eld th at: - "A non-conviction-based forfeiture provides an effective avenue for confiscation in situations where it is not possible to obtain a criminal conviction, whether the defendant is dead, unknown, missing or immune from prosecution, or in cases where the statute of limitations prevents prosecution." 4.2.6 Counsel submitted that the Affidavit of Emmanuel Khon dowe shows that the Su bject Properties are p roceeds of crime and that the possession of the said properties off ends the provisions of Section 71 of The Forfeiture of Proceeds of Crime Act1 . 4 .2.7 Counsel cited the definition of 'proceed of crime' as provided by The Prohibition and Prevention of Money Laundering (Amendment) Act3 and The Forfeiture of Proceeds of Crime Act1 and submitted that the Affidavit in Support of the Application shows that the amoun t of money spent on the con struction of the 15 double storey J23 I Page flats is higher than the money that the Interested Party had in her account. 4.2.8 It was further submitted that in as much as the Interested Party was a signatory to the Esther Lungu Foundation, there was evidence that the money in the account was used for Bank Charges, Salaries and Project Funding among other expenses and did not in any way benefit the Interested Party in her personal capacity. 4.2.9 Counsel contended that the Interested Party did not give any reasonable explanation of where she got the money that enabled her to construct the Subject Properties and that therefore, the Subject Properties are proceeds of crime. 4.2.10 Counsel argued that the Interested Party has not paid any taxes and she has further deliberately misrepresented the true state of her affairs to the tax authorities, to reduce her tax liability, which notwithstanding is a criminal offence. He further argued that such dishonest tax reporting is described among other acts as an act of tax evas10n. 4.2 . 11 Counsel submitted that The Income Tax Act4 outlines the penalty for fraudulent returns, as a form of tax evasion under Section 102 ( 1) in the following terms: - J24 I Page "Any person who w i lfully with intent to evade or to assist another person to evade tax, shall be guilty of an offence and on conviction shall be liable to a fine not exceeding three hundred thousand penalty units or to imprisonment for a term not exceeding three years, or to both." 4.2 .12 Based on the foregoing, it was submitted that tax evasion is also a serious offence. Counsel cited Section 31 (1) of The Forfeiture of Proceeds of Crime Act1, which provides as follows: - "Su bject t o su bsect ion (2), where a Public Prosecutor applies to the Court for an Order unde r this Section and the Court is satisfied on a balance of probabilit ies that the property is tai nt ed prope rty, t he Court may order t hat the property, or such of the property as is spe cified by the Court in the Order be fortified to the State. " 4 .2.13 Based on the foregoing prov1s10n, it was contended that on a balance of probabilities from the evidence set out, it can clearly be seen that the Subject Properties in question are proceeds of crime. 4.2 .14 Counsel argued that the offence of being in possession of property suspected to be proceeds of crime is a serious offence as it attracts a sentence of twelve months or more when found guilty. J 25 I Page 4 .2.15 It was contended that the Applicant has established on a balance of probabilities that the Su bject Properties are proceed s of crime, and that the Affidavit and the exhibits have placed sufficient evidence to satisfy the Court that the Subject Properties are proceeds of crime. 4.3 Interested Party's Skeleton Arguments 4 .3 . 1 By the Interested Party's Skeleton Arguments filed on 13th July, 2023, learned Counsel for the Interested Party submitted that Section 29 of The Forfeiture of Proceeds of Crime Act1 provides that a Public Prosecutor may apply to a Court for an Order forfeiting to the State any property that is tainted property. 4 .3.2 It was submitted that the Applicant has relied upon Section 71 of The Forfeiture of Proceeds of Crime Act1 , which makes reference to possess10n of proceeds of crime as being an offence, which is not predicated on proof of the commission of a ser ious offence or a foreign serious offence. Counsel also cited Section 30 (b) of The Forfeiture of Proceeds of Crime Act1 , which provides for the Interested Party who claims interest in the property to appear and produce evidence at the hearing, and Section 2 of The Forfeiture of Proceeds of Crime Act1 , which provides a definition of tainted property. J26 I Page 4.3 .3 Based on the foregoing, it was submitted that in order for the Public Prosecutor to succeed on a claim for Non-Conviction Based Forfeiture, the Applicant must establish that the specific property was or is connected to a specific offence, or that the specific property is or was obtained through one or more activities of criminal nature. 4.3.4 It was further submitted that the definitions of "proceeds of crime" and "tainted property'' expressly allude to the commission of an unlawful activity as a pre-requisite to classifying property obtained therefrom as either tainted property or proceeds of crime. 4.3.5 Furthermore, it was submitted that the Affidavit in Support of the Application does not state the nature of the serious offence or the foreign serious offence, and that the Affidavit does not adduce any evidence as to the Applicant but has merely relied upon assumptions, conclusions and opinions tendered into Court by the Deponent of the Affidavit, who is unqualified, and not competent to render such opinions or conduct analysis of the income and expenditure of the Interested Party. 4.3.6 Counsel also submitted that the Application is based upon the opinion of the Deponent that the Subject Properties are allegedly proceeds of J 27 I P age cnme. It was contended that it was not enough for the Applicant to merely allege that due to unexplained wealth or alleged variation of income against the alleged value of the property, it must therefore be inferred that the Subject Property was derived from unspecified criminal activity. 4.3.7 Counsel argued that it is widely held that there must be evidence of the type of criminality relied upon and then evidence as to the connection between the criminality and the property concerned. In fortifying her argument, Counsel cited the case of Director of Asset Recovery Agency v Green4, where the Court held that it is necessary for the Claimant to set out with sufficient particularity the type of criminality relied upon to enable the Court to adjudicate on it. The Court further held that it is not sufficient for the claimant to establish that the Respondent had unexplained income, from which fact alone it could be inferred that the property in question was derived from unspecified criminal activity. 4.3.8 Counsel stated that in subsequent decisions, the Court of Appeal elaborated that although it is not necessary for the Claimant to prove that a specific offence was committed on a specific day by a specific individual, it is, nevertheless, J28 I Page necessary for the Claimant to establish that criminal conduct of a particular kind or kinds has been committed and that the property in question can be traced to the commission of the activity. 4.3.9 Counsel referred to the case of National Crime Agency v Baker and Others5 in support of the submission that in a plethora of a uthorities where the Courts have been tasked to deal with Non-Conviction Based Orders, the Courts have made it clear that assumptions and conclusions by law enforcement agencies are not permissible, there must be sufficient evidence to establish criminal conduct and trace the commission of the offence to the property. 4.3.10 Counsel turned to the issue of who bears the burden of proof and whether the Applicant has discharged the burden of proof and established that the Subject Property is tainted property or proceeds of crime. On this issue, Counsel submitted that the burden of proof rests on the Applicant as it is he who alleges that must prove. 4.3.11 In support of the foregoing submission, Counsel cited Section 34 of The Forfeiture of Proceeds of Crime Act1 , which provides as follows: - "The Applicant in any proceedings under this Act bears the onus of proving the matters J29 I Page necessary to establish the grounds for making the order applied for." 4.3.12 It was contended that in view of the foregoing, the burden cannot be shifted to the Interested Party, as it would be unconstitutional and a violation of the Interested Party's fundamental due process right to be presumed innocent until proven guilty, as guaranteed by Article 18 (2) (a) of The Constitution5 . 4.3.13 Counsel also cited the case of The People v Austin Chisangu Liatci5, where the Supreme Court reiterated that it is the Prosecution which harbours the reasonable suspicion and which must prove it. Counsel asserted that though the proceedings being civil in nature require that the applied standard of proof be the ordinary standard on a balance of probabilities, as the allegations of wrong doing are of serious nature, the Applicant, in order to succeed, is required to adduce stronger evidence to prove the serious allegations. 4.3.14 Counsel called 1n aid the case of Sithole v Zambia State Lotteries BoarcP where the Court held that where there are senous allegations, the standard of proof is greater than a simple balance of probabilities, in support of the submission that the evidence adduced in J 30 I Page support of a senous allegation must meet the requirements and satisfy the standards enunciated in the S ithole v Zambia State Lotteries BoarcP case. Counsel added that where the standard is not met by way of evidence required to prove allegations of fraud , the party alleging fraud will not successfully discharge the burden of proving fraudulent conduct. 4.3.15 Counsel submitted that applying the foregoing to the circumstances, it is evident that the Applicant has failed to adduce any evidence of criminal conduct or any evidence of a senous offence or a foreign serious offence. 4.3.16 Further, it was submitted that there 1s no evidence that the Subject Properties are in fact traced to or connected to, in any way, to the alleged serious offence or foreign serious offence. Counsel argued that, therefore, the Applicant has failed to discharge the burden of proof and failed to meet the requisite standard required where such serious allegations are levied against the property and more particularly as required by the Act under which the Applicant herein now seeks a Forfeiture Order. 4.3.17 On whether the Applicant 1s entitled to the Application, Counsel contended that the Applicant has not sufficiently demonstrated that J 31 I P age there is a specified serious offence or evidence to show a link or connection between the unspecified serious offence to the Subject Properties. 4.3.18 Counsel reiterated that the Applicant failed to disclose material information provided to the Deponent by the Interested Party in relation to the Subject Properties, that would aid the issues now before the Court even in the Interested Party's favour. The case of Bank of Credit and Commerce International SA v Akindele8 was cited in support of the foregoing. 4.3.19 Counsel further emphasised that it is important that the Applicant herein discloses to the Court all such information that will be required for the Court to arrive at a just and fair decision, failing which, the Application before this Court is incompetent and should accordingly be dismissed as it does not meet the threshold of fair litigation and good faith. 4.3.20 Counsel stated that the Interested Party has demonstrated that she has an interest in the Subject Properties and has provided reasonable explanation as to how the Subject Properties were acquired, such that she has discharged any burden placed to demonstrate the interest in the said Subject Properties. J32 I P age 4.3.21 Counsel prayed that the Application be declined as it does not meet the requisite threshold to establish the nature of the serious offence, unlawful activity or that there was indeed a link or connection between the said serious offence or unlawful activity and the Subject Properties sought be forfeited. 4.4 Applicant's Skeleton Arguments in Reply 4.4.1 The Applicant filed herein Skeleton Arguments in Reply, on 9 th August, 2023, in which it was submitted that the Affidavit in Reply shows that the Subject Properties in issue are tainted properties. 4.4.2 It was submitted that Emmanuel Khondowe was the right Deponent to swear the Affidavit in Support of the Notice of Motion as he deposed to facts and circumstances within his own personal knowledge and information, which he believes to be true. In fortifying this submission, Counsel cited Order V, Rule 16 of The High Court Rules2 , which stipulates that: - "Every Affidavit shall contain only a statement of facts and circumstances which the witness deposes, either of his own personal knowledge or from information which he believes to be true." J33 I Page 4.4.3 Based on the foregoing, it was submitted that it is an Investigating Officer who, in practice, has been recognised to be the right person to depose to an Affidavit in the prosecution of cases of Non Conviction Based Forfeiture. Counsel added that this is so because Non-Conviction Based Forfeiture Applications are in their unique nature Chamber Applications mostly resolved on Affidavit Evidence, thus the deposed Affidavit Evidence is based on the knowledge that an Investigator possesses or acquires from personally investigating a matter. 4.4.4 It was contended that in casu, no other person would be better placed to attest to the facts of the case than the Investigator, Emmanuel Khondowe, who is a Senior Investigation Officer in the employ of the DEC. 4.4.5 It was argued that it would be both a misapprehension of the law and grave fallacy to argue that everyone else other than the Investigator who personally investigated the case should have sworn the Affidavit to Support the Notice of Motion. 4.4.6 Counsel contended that contrary to the argument made by the Interested Party, Mr. Emmanuel Khondowe is a Senior Investigations Officer with vast experience and training in J34 I P age financial investigations and analysis. That he is, therefore, competent to give an analysis of facts and evidence of the case he investigated as is the case at hand. It was submitted that he is a qualified Financial Investigations Officer of over ten years standing and experience, hence, he rightly made his conclusions and opinion to reasonably suspect that the aforementioned Subject Properties are proceeds of crime after he scrutinised the documents that were before him. It was further submitted that the Deponent arrived at the analysis he did in respect of the tainted Properties after extensively interfacing and consulting with the Bank Manager and Accountants as shown by exhibits "EK6" and "EKS", respectively. 4.4.7 It was contended that the Deponent as an Investigating Officer was on firm ground 1n checking and looking into the Interested Party's Bank Accounts, known income and making an analysis that the cost of constructing the Subject Properties is higher than the Interested Party's income. To support the contention, Counsel cited the case of The People v Austin LiatcP, where it was stated that: - "The prosecution's case was complete when PW6 (dealing Officer from DEC) stated that he checked the Respondent's personal and J35 I P age business accounts, and looked into the sources of the Respondents income from the lodges ... circumstances, raised suspicion as did also the modest income of the Respondent f r om his salary and business act ivities. In the absence of any satisfactory explanation to the contrary, the only inference that could be made was that the money was sourced from illegal activities." 4.4.8 Counsel submitted that the disparity in the perceived value of the mentioned suspected tainted property and the verified income of the concerned individual gives rise to a reasonable susp1c10n that the aforementioned Subject Properties might be derived from criminal activities. Counsel cited the definition of a "Serious Offence" as defined by Section 2 of The Forfeiture of Proceeds of Crime Act1 and submitted that the possession of the Subject Properties by the Interested Party, surpassing her income, constitutes a Serious Offence. 4.4.9 On the allegation that the Applicant has withheld vital information from the Court, it was submitted that the Applicant herein has not withheld any material information in this matter. Counsel contended that there is no concrete evidence presented by the Interested Party to support her claim of receiving payments or allowances. It was submitted that the J 36 I P age Investigations Officer diligently conducted inquiries into the alleged sources of income claimed by the Interested Party, both locally and abroad, but no such sources were found linked to her personal income. 4.4.10 Counsel added that had the Interested Party received legitimate income to enable her construct the flats on the Subject Properties, whose cost of construction was K24,256,434.55 and market value of K66, 100,000.00, the legitimate sources of income would reflect as such, but in this case, they do not, which in itself taints the Subject Properties. 4.4.11 Counsel reiterated that the Interested Party has not presented sufficient evidence in her Affidavit regarding how her husband contributed to the development of the aforementioned Subject Properties. Counsel contended that unless the Interested Party provides a clear and verifiable account of the source of funds utilised in the property development, the Court was urged to find on a balance of probability that the Subject Properties were developed with the funds obtained through questionable means and are therefore, tainted and are also proceeds of crime. 4.4.12 It was submitted that the valuation of the Subject Properties was conducted by an J 37 I P age independent Government institution, mandated by Zambian law, to assess property values and that therefore, the computed value represents the accurate and unbiased evaluation without any inflation. 4.4.13 Counsel submitted that there is no evidence to suggest deliberate exclusion of the information by the Deponent in the Affidavit with the intention of misleading this Honourable Court to support the allegations that the mentioned Subject Properties are proceeds of crime or tainted, as alleged. Counsel cited Section 71 (3) of The Forfeiture of Proceeds of Crime Act1 , which states that the offence under Subsection (1) is not predicated on proof of the commission of a serious offence or foreign serious offence. 4.4.14 Further, Counsel cited the case of The People v Austin Chisangu Liatc/5, where the Court addressed the question of whether a predicate offence must be established before securing a conviction for possession of property suspected to be proceeds of crime under Section 71 (1) of The Forfeiture of Proceeds of Crime Act1. The determination of the Court in that case was as follows: - J 38 I P age "To secure a conviction under Section 71(1) of The Forfeiture of Proceeds of Crime Act no predicate offence needs to be proved." 4.4.15 Counsel also cited Section 31 (4) of The Forfeiture of Proceeds of Crime Act1 and submitted that it is not a requirement in a Non Conviction Based Forfeiture Application for an individual to be first charged with an offence in order to establish that the property is tainted. Counsel contended that Non-Conviction Based Forfeiture proceedings do not require a criminal charge or a conviction against the owner. 4.4 .1 6 In fortifying the foregoing contentions, Counsel cited the case of Simon Prophet v The National Director of Public Prosecutions1 , where the Court stated the following: - "Civil forfeiture provides a unique remedy used as a measure to combat organised crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner. This kind of forfeiture is in theory seen as remedial and not punitive. The general approach to forfeiture once the threshold of establishing that the property is an instrumentality enquiry - weighing the severity of the interference with individual rights for the purposes of the J39 I P age commission of the offence, bearing in mind the nature of the offence. " 4.4.17 Counsel also cited the case of DPP v Jessie Bwalya Kapyelata Tapalu9 where it was held that Non-Conviction Based Applications are very much constitutional. Counsel argued that the burden of proof in Non-Conviction Based Forfeiture matters is not fixed or constant but rather flexible and subject to change depending on the circumstances of the case. 4.4.18 It was submitted that in Non-Conviction Based Forfeiture, the burden of proof may vary or shift b etween the parties involved, and it is not always as straightforward as in traditional criminal cases. Counsel further submitted that in Non Conviction Based Forfeiture, the focus is on the property itself, and the burden of proof may not solely rest on the Prosecution. She added that, instead, it may also require the Interested Party or the owner of the property to provide evidence or explanation to show that the property is not tainted or derived from criminal activities. 4.4.19 In fortifying her submission, Counsel placed r eliance on the case of The People v Austin Chi sangu Liata6, where the Supreme Court established that: - J 40 I Page "Section 71 (2) of the FPOCA does not impose any obligation on the accused person to prove any ingredient of the offence under Section 71 (1) of the Act, but it does afford the accused an opportunit y to explain the absence of reasonable grounds for the suspicion that the property he was found in possession of under Section 71( 1) were proceeds of crime." 4.4 .20 Counsel contended that it is the responsibility of the Interested Party to demon strate th at the Subject Properties are not tainted or proceeds of crime and that she must p rovide concrete evidence sh owing the legitimate sour ces of fu nds used for the construction of the Subject Properties. To support this contention, Counsel cited the Kenyan case of Stanley Amuti v Kenya Acc10 , where it was stated that: - "In civil proceedings when any fact is especially within the knowledge of any party to those proceedings the burden of proving or disproving that fact is upon him." 4.4.21 It was Counsel's contention that the onus 1n these civil proceedings has shifted to the Interested Party, as demonstrated in the case of Assets Recovery Agency v Peter Oluwafem Olaiwon11. It was her further contention that the Interested Party at this point needs to demonstrate that the Subject Properties are not J 41 I P age . . tainted and were built using legitimate funds from legitimate sources. 4.4.22 Counsel also contended that even with the Interested Party's husband helping her, she would not have had the capacity to develop the flats in issue. She stated that information upon which this conclusion was drawn is in the public domain and that the Interested Party needs to explain with actual documentary proof that she is not making a false allegation. 4.4.23 Additionally, Counsel contended that it 1s of utmost importance that the Interested Party shows the movement of money from her husband's Accounts to her own or to the Accounts of the contractors involved in building the Subject Properties, as this is essential to establish a verifiable financial link between her husband, the former President, and the development of the Subject Properties. 4.4.24 It was submitted that the Deponent, Emmanuel Khondowe, exhibited Tax Returns from ZRA, for both the Interested Party and her foundation, which are exhibited as "EK2" and that these Returns are conspicuously silent on any significant transfers of such magnitude. 4.4.25 It was Counsel's argument that the absence of such financial records raises serious doubts J42 I P age . . about the Interested Party's claim regarding the legitimate funding of the Subject Properties, and further strengthens the State's contention that the Subject Properties are tainted and ought to be considered proceeds of crime. 4.4.26 Counsel urged the Court to consider the significance of the missing financial evidence in the Interested Party's case. Counsel further requested the Court's diligence in evaluating the evidence presented because the veracity of the Interested Party's claims relies heavily on her ability to provide a transparent and documented financial trail for the development of the Subject Properties. 4.4.27 Counsel prayed that this Court finds that the cited Subject Properties are tainted properties and Order that the same be forfeited to the State. 5. THE HEARING 5 .1 At the hearing of the Application, Counsel for the Applicant relied on the Originating Notice of Motion, the Affidavit in Support and Skeleton Arguments filed herein. She further relied on the Affidavit in Reply to the Affidavit in Opposition filed by the Interested Party and Skeleton Arguments in Reply. Counsel augmented the Applicant's written submissions by briefly r eiterating the contents of the Applicant's Skeleton J43 I P age Arguments, which need not be repeated as they are on the Record. 5 .2 In assisting this Court to arnve at Justice, two Witnesses were called to come and produce, and speak to the Bank Statements referred to in the Applicant's Affidavit in Support of the Application. 5.3 Evidence of PWl 5.3. 1 PWl was Choolwe Chiyala, a Relationship Manager at FNB, who testified, inter alia, that he joined FNB on 1st December, 2015, and holds a Bachelor of Business Administration Degree obtained from the Copperbelt University. 5 .3 .2 As a Relationship Manager, his duties include managing customers, account facilitating, fund raising on behalf of customers through FNB 's Credit Department and providing support to customers, with respect to query and resolutions, if there is any dispute with the account. He stated that he is the person between the customer and the Bank. 5.3.3 PWl asserted that in September 2022, DEC, through the Anti-Money-Laundering Unit, served FNB with Warrants to inspect the Accounts 1n the name of Esther Lungu Foundation Trust. The Warrants were served J44 I P age through FNB's Compliance Department, which in turn assigned the task to him. 5 .3.4 In March of 2023, he met with the Officers from DEC who wanted to have sight of the Bank Statement in the name of Esther Lungu Foundation Trust for the period between 1st January, 2015, to the month end of August, 2022. PWl indicated to the Officers that the Account of interest was opened on 3 rd November, 2015. 5 .3.5 PWl proceeded to generate the requested Bank Statements during his normal working hours. He stated that the process of Bank Statement generation is password protected and that there are two layers, being, logging on the server using his credentials which are his employee number and the password. This then takes him to the second layer, where he needs to authorise the access to the server through a prompt that comes through his FNB Application. 5.3.6 PWl stated that it is not all FNB employees that have access to this server. The password used is refreshed every 30 days, and the Bank operates under strict rules and guidance of not showing passwords and credentials even to one's supervisors and fellow managers. J45 I P age 5.3.7 PWl stated that through that process, he generated the Statements and availed them to - · the Officer of DEC. He explained to the DEC Officers how to read the transactions on the Statements. The Statements were perused, and the debits and credits were identified. PWl stated that he did not identify any payments from the Account to the Interested Party. 5.3 .8 PWl avowed that the debits and credits for that period were summed up. The debits came to Kl4 million for the period and the credits came up to Kl 9 million for the period. 5.3 .9 PWl testified that upon receipt of the Summon from this Court on 22 n d April, 2024, he generated the Bank Statements, which he brought to the Court. He stated that he could share his employee number but that a second layer of authentication was required and that was linked to him in the system. 5.3.10 PWl affirmed that for anybody else to generate those Statements using his employee number, they would need to get his password and have access to his application, which has its own password as well. He stated that the Bank took those steps to ensure the safe guarding of such sensitive information. He went on to add that the system is cloud based. J46 I P age 5.3.11 PWl identified the Bank Statement before Court marked "1D 1" and produced into evidence as "P l". 5.3 .12 When cross examined, PWl testified that he worked for FNB for 9 years and the Esther Lungu Foundation Trust was on the portfolios for the last 2 years. He stated that he had access to all the Esther Lungu Foundation Trust Accounts in the custody of the Bank, including the mandate files and the opening documents, as they are part of the file. He further stated that he could bring the documents if required. 5.3.13 PWl avowed that there were three sign atories on the Account, with two panels. On panel A, there is Mrs. Esther Lungu and on Panel B, there is Mr. Geoffrey Banda and Ms. Mildred Gift Sumbwe. He stated that as it is a joint signing, and the standing arrangement is that Panel A and anyone from panel B is required to sign. 5.3.14 PWl asserted that the Account is a Public Sector Account, given the nature of the services of the Account Holder. He stated that the documents filed at the time of opening the Account were the documents from The Registrar of Societies and that the founding document is the Application to the Registrar. PWl furth er stated that h e is able to avail that document and that the other J47 I P age documents relate to individuals responsible for running the Trust. 5.3 .15 PWl affirmed that the Esther Lungu Foundation Trust has a Kwacha Account and a Fixed Deposit Account. He stated that he had brought the transaction Account, which is the operating Account, but had not brought anything relating to the Fixed Deposit Account. He further stated that he was not familiar with the Dollar Account nor the Fixed Deposit Account. 5.3.16 PWl attested that it was not his decision to bring the Kwacha Account to Court and that the decision to bring it was driven by the initial investigation in which the Kwacha Account was of interest. He stated that the inquiry was on all the accounts from 2015 to 2022. 5 .3.17 PWl testified that he could recall making a Statement. He stated that the US Dollar Account is not in existence anymore and that it held money before it was closed. He further stated that the Kwacha and Fixed Deposit Accounts held money. 5.3.18 PWl avowed that the amount(s) of K14 million and Kl 9 million are an understatement if the Fixed Deposit Account is considered. He stated that there were no irregular or suspicious J48 I P age transactions on the Kwacha Account, Dollar Account or Fixed Deposit Account. 5 .3.19 It was PWl's testimony that there are several beneficiaries who were getting money from the Account such as Mildred who was getting her salary there. He stated that he would not agree that there are missing transactions on the Bank Statements but that the Statement only has three months, 31 st October to November 2016, and 30th July, 2022, to 31 st August, 2022. 5 .3.20 He asserted that the Statements pick two months and some days and that Statements for the other years have not been presented. 5.3.21 PWl attested that the Officer from DEC, Emmanuel Khondowe, guided him to bring the Statements and agreed that the Court does not have the benefit of the other Statements. He conceded that one cannot draw any conclusions from the Statements that have been shown, but that he would be in a position to bring the other Statements, if required. 5.3.22 PWl conceded that he had not brought all the Accounts for the Esther Lungu Foundation Trust. He stated that it was upon Emmanuel Khondowe's guidance that he did not bring the US Dollar Statement and Fixed Deposit J49 I Page Statement, as they were only interested in the Zambian K wacha Account. 5.3.23 PWl affirmed that his Statement speaks to more than one Account and that therefore, the DEC were not only interested in the Kwacha Account. He conceded that his Statement revealed that he provided the Bank Statements of the additional Bank Accounts to the DEC Officers. 5.3.24 PWl avowed that he did not have evidence that there are proceeds of crime in the Accounts or that the funds in these Accounts are from unlawful activities or that the funds are in relation to serious offences. He stated that he had no evidence of any of the Subject Properties in question or that the funds were used for the Subject Properties. 5.3 .25 PWl conceded that he could not testify as to the financial capacity of Mrs. Lungu. He stated that when the Accounts were opened, he was not the one managing the Accounts at the time. He further stated that according to the records, Madam Esther Nyawa Lungu is a good client. 5.3.26 PWl affirmed that he could not tell of any suspicious transactions on the Statements that he had brought. 5 .4 Evidence of PW2 JSO I Page 5.4. 1 PW2 was Brian Muleya Mutakwa, a Banker , who testified, inter alia, that he has been a · • Banker for the past 8 years and has a Diploma in Accountancy. 5.4.2 PW2 testified that he is currently employed at ZANACO Bank as a Manager. His role involves ensuring the service operations and service activities are being conducted smoothly according to procedure. 5.4.3 Regarding this case, PW2 asserted that on 15th August, 2022 , he received a Warrant and an Affidavit, as Bank Manager, from the DEC, in which they were doing a search on the Account for Madam Esther Nyawa Tembo, Account No. 0302834100131. Later , on 16th March , 2023 , Officers from DEC Anti-Money -Laundering Unit ("AMLU"), visited the branch in relation to the said Account. They r equ ested that he avails them a Statement of Account on this Account for th e p eriod 1st January, 2012, to 16 th August, 2022. 5.4.4 PW2 proceeded to the Bank's computer system using his personal log in cred entials, which are his p ersonal user ID and personal password, to access the Bank's computer system. 5.4.5 PW2 stated that th e Bank's computer system is maintained and serviced by the Bank's J Sl I P age . . Information Technology office based at the Head Office. It is routinely serviced after every two weeks and sometimes even more frequently, depending on the needs. 5.4 .6 PW2 logged in and generated the Statements, which he availed to the DEC Officers. The Statements had 1n summary 65 debit transactions and 70 credit transactions. The debit transactions amounted to K2.5 million and the credit transactions amounted to K3. lmillion. PWl proceeded to generate and print the said Statements by going to the printer and logging in his password on the printer. 5.4.7 PW2 identified the Bank Statements marked " 1D2", which were admitted into evidence as "P2". 5.4 .8 When cross examined, PW2 testified that he brought the documents on the understanding that, that is the document the DEC requested for the Bank to produce. He stated that there was no Court document that specifically stated which documents to produce and that he elected to bring the documents. 5 .4. 9 PW2 stated that the Account was opened in 1995, but that he did not bring the mandate opening form as it was not one of the documents that the Officers from DEC requested to look at. J52 I Page . . He further stated that the mandate, amongst many other documents, would tell when the Account was opened. 5.4. 10 PW2 asserted that the Bank Charges are not indicated on the Statement and that there are no transactions indicated on the document from 2012 to 2014. He stated that he had not brought any other document that indicates these transactions. 5.4.11 PW2 affirmed that exhibit "EK6" attached to the Affidavit of 13th June, 2023, is the Statement that he gave to the DEC and that he was telling the truth in the Statement when he said that there were no transactions on 4 th May 2021. He conceded that according to the table of the summary of transactions that he gave, there were two transactions on 4 th May, 2021 . He stated that th e two transactions are not in the document P2 produced before Court. 5.4.12 PW2 affirmed that the entry of the sum of K500,000 .00 was the closure of the Account for Esther Lungu under Account Number 0302834600281. He conceded that the closed Account is different from the one he had produced before Court as P2. 5.4.13 It was PW2's testimony that he was in no position to tell if there were any other Accounts J 53 I P age reported to the Financial Intelligence Centre or any authority. He conceded that if there were any other Accounts, they would be part of the Bank Record . He further conceded that it would not be correct to state that he had the complete set of documents relating to this Account. 5 . 4. 14 PW2 avowed that he was aware that this Country is both a cash and bank driven economy. He conceded that it was correct that a Bank Statement cannot reflect how much a person has. PW2 stated that the Bank Director had not reported to any authority with respect to the Account. 5.4.15 This marked the end of the two Witness' testimonies 5.5 The Interested Party relied on her Affidavit 1n Opposition, filed on 13th July, 2023, and her written Submissions opposing the Notice of Motion, based on the hearings that had transpired to address the evidence of the Witnesses that had testified and produced documents. 6. FINAL SUBMISSIONS 6. 1 In view of the evidence adduced by the Witnesses from the Banks and upon request by the Interested Party, the Court granted the Parties leave to file additional written Submissions. J54 I P age 6.2 Interested Party's additional Submissions 6.2.1 By the Interested Party's additional Submissions, the Interested Party gave a brief account of the documents exhibited by the Applicant, which the Interested Party objected to and pointed out that in relation to the documents exhibited in the Affidavit in Reply, the Record showed that the objection raised would be dealt with by the Court in the main matter in the Judgment. 6.2.2 Counsel set out the issues for determination as follows: - 1. Whether the Applicant has demonstrated that the properties in question are tainted properties. 2. Who bears the burden of proof and whether it has been discharged successfully. 3. The provisions of Section 31 (2) of the FPOCA and the Interested Party's interest. 6.2.3 On what she identified as the first issue to be determined, Counsel submitted that in civil matters, the burden of proof is on the Party who asserts the affirmative of the issue and ref erred to the learned authors of Phipson on Evidence1 , in support of the foregoing submission. Counsel argued that it is the Applicant who bears the JSS I P age burden of proving that the Subject Properties are tainted and should be forfeited. She placed reliance on the provisions of Section 34 of The Forfeiture of Proceeds of Crime Act 1 , that specifies that it is the Applicant in any proceedings under the Act that bears the onus of proving the matters necessary to establish the grounds for making the Order applied for. 6.2.4 Counsel contended that the Applicant has failed to discharge the onus of proving the matters necessary to establish the grounds for making the Order sought. She reiterated that it is imperative upon the Applicant to demonstrate with sufficient evidence that the Subject Properties are reasonably suspected to be tainted property. 6.2.5 On the issue of the evidence relied upon by the Applicant in relation to the allegation that the Subject Properties are tainted, Counsel referred to a Printout from the Lands and Deeds Register, which demonstrates that the Subject Properties are registered in the name of the Interested Party. It was contended that the Subject Properties were offered to the Interested Party by way of direct lease, which evidence validates that procedure was followed in acquiring the Subject JS6 I P age Properties and that it is a fact that it was done legitimately and lawfully. 6 .2.6 Counsel submitted that the Certificates of Title issued in the name of the Interested Party are conclusive as of date of issue th at the Interested Party is the registered proprietor and that no action for possession or other action for recovery of any land subject to a Certificate of Title shall lie or be sustained against the registered proprietor except as outlined in Section 34 of The Lands and Deeds Registry Act6 . 6.2 .7 Counsel asserted that the Applicant has adduced a copy of a document titled Priced Bill of Quantities, marked as exhibit "EK4", in the Affidavit in Support, which document allegedly estimates the cost of construction of the Subject Properties as K41 ,586,110.66 . Counsel reiterated that the Applicant did not produce the original of the said Priced Bill of Quantities or call the maker of the said Priced Bill of Quantities to produce the said document and testify in Court and as such, the document contravenes the provisions of Section 3 of The Evidence Act7 , and is inadmissible. 6.2.8 Counsel submitted that the Applicant further relied upon the testimony of two Bank Officials, who produced certain Bank Statements. She J 57 I Page . : stated that PW 1, Mr. Choolwe Chiyala, from FNB, testified pursuant to Summons issued by the Applicant following the Ruling of this Honourable Court dated 11 th March, 2023. 6.2 .9 Counsel submitted that in cross examination, it was established that PW 1 was only summoned to testify and the Summons issued did not direct the Witness to bring any documents to Court. Despite, objections on this issue, the Court proceeded to allow PW 1 to testify and produced "Pl" being the Bank Statement for Account Number 62569585759, a Zambian Kwacha Account 1n the name of Esther Lungu Foundation Trust. 6.2.10 Counsel submitted that it is the Applicant's contention, as per Affidavit in Support, that the Deponent, an Officer from the DEC, who was leading the investigation, who upon interviewing and Recording Statements from the said PWl and PW2 made up his mind that the Subject Properties were proceeds of crime and issued a Seizure Notice. 6.2.11 Counsel cited the case of Kalandanya and Others v The Attorney and Others12 and stated that in that case the Court highlighted that the party that must harbour the reasonable belief is the 'authorised officer', the Deponent in the J 58 I P age circumstances herein, and it is for that person who harbours the reasonable belief to prove that there are reasonable grounds for the belief that the Subject Properties are proceeds of crime. She stated that it is the Applicant who should show evidence to support the reasonable belief that the Subject Properties are acquired or derived from proceeds of crime. 6.2.12 Counsel urged the Court to note, that as per testimony of both PWl and PW2, the Deponent (authorized officer) was not availed with all the relevant information and a vital amount of information relating to other Bank Accounts, other transactions, other Bank balances were not made available to the said Deponent. 6.2.13 It was submitted that based on the testimony of PWl and PW2, confirming that Bank Statements for the other Accounts were not made available, and those that were made available did not have all the transactions, and particularly the fact that PW2 did not tell the truth in his Statement to the Deponent, it was submitted that there was insufficient factual basis to discharge the burden placed upon the Applicant to show reasonable ground for its suspicion. 6.2.14 The case of The People v Austin Liatd5 was cited in support of the submission that there J59 I P age must be factual basis which makes the suspicion reasonable. Counsel submitted that the evidence upon which the Applicant seeks to establish the financial means of the Interested Party consists of the Bank Statement from ZANACO Bank and FNB and the two Statements taken by the Bank officials. 6 .2.15 Counsel r eiterated that the said Statements have proved to be untruthful, as per testimony of PW2; and incomplete, as per testimony of both PWl and PW2. It was submitted that therefore, it cannot be concluded that there was satisfactory factual basis upon which the reasonable suspicion that the Interested Party did not have the financial means to develop the Subject Properties, was based upon . 6 .2 .1 6 Counsel submitted that if the Court is of the view that the Priced Bill of Quantities and Valuation Report are admissible into evidence, despite the sound objection, Counsel urged the Court to note that both documents specify that the said values are Estimated Costs as per exhibit "EKl" in the Affidavit in Support and a considered Opinion as per exhibit "EK3" in the Affidavit in Reply. It is submitted that, therefore, the values are not factual but are merely an estimate and an opinion. J 60 I Page 6.2.17 Counsel argued that the Applicant intends to compel the Court to draw a conclusion or inference that is not based on facts or factual evidence, but on assumptions, estimates and opinions in determining this issue. 6.2.18 Counsel contended that as per the case of The People v Austin Liata6, the question that would arise in any determination by the tribunal, is whether there is (i) any evidence to support the finding; (ii) whether the conclusions are conclusions based on fact; (iii) whether there was proper direction in law. It was therefore submitted that the Court cannot be asked to speculate or fill in the gaps in the evidence where there is insufficient evidence as per the case of Phiri v The People13 . 6. 2. 19 Counsel urged the Court to equally find that it is not the Interested Party to prove its innocence. She argued that it is not the intention of The Forfeiture of Proceeds of Crime Act1 to shift the burden of proof where the Applicant has failed to establish the initial requirement that there was factual basis upon which the reasonable suspicion was based and that the properties are therefore tainted. 6 .2.20 It was contended that there is no provision of the law that places an obligation on the Interested J61 I P age Party to disprove the allegation that the Subject Properties are beyond her financial capacity, where the Applicant has failed to adduce cogent evidence to that effect. 6.2.21 It was argued that the burden remains with the Applicant in demonstrating the factual basis for the Application, and where there is none, that burden does not shift onto the Interested Party to disprove the allegations by adducing evidence to the contrary. 6.2.22 It was contended that it is only where the Applicant satisfies the provisions of Section 34 of The Forfeiture of Proceeds of Crime Act1, that the burden then shifts to the Interested Party to show cause and disprove the allegations. 6.2.23 Counsel submitted that the Interested Party has categorically stated that the Subject Properties are matrimonial properties and that she is part of a matrimonial unit. It was further contended that there is no provision of the law that requires spouses to either document or declare gifts exchanged between them during the subsistence of the marriage. 6.2.24 Counsel contended that Zambia has 'Gift Tax' and any transfer of gift to immediate family, being spouse or child, are exempt from Property Transfer Tax under The Property Transfer Tax J62 I P age Act8, as such there is no obligation to declare gifts between spouses or formally document such gifts. Counsel urged the Court to consider whether the Applicant had brought forth sufficient evidentiary basis to support grounds for suspicion. 6 .2 .25 In addressing the Court on the issue as to the provisions of Section 31 (2) of The Forfeiture of Proceeds of Crime Act1 and the Interested Party's interest, Counsel submitted that the provisions of Section 31 (1) of The Forfeiture of Proceeds of Crime Act1, takes effect upon (i) the Applicant on a balance of probabilities demonstrating that the properties are tainted; and (ii) the Court being satisfied that the Forfeiture Order of such of the properties specified by the Court is to be made. Counsel submitted that it was the Interested Party's position that the Applicant has failed to demonstrate on a balance of probabilities that the properties are tainted. It was contended that the requirements of Section 31 (2) of The Forfeiture of Proceeds of Crime Act1 , on the Interested Party, as to what has to be adduced to satisfy the Court that the Interested Party has an interest in the properties is limited to satisfying the Court that she has a legitimate interest in the said Subject Properties. J63 I Page 6.2.26 Counsel submitted that where the Applicant has failed to demonstrate that there is reasonable suspicion of a 'serious offence', it is then unreasonable to shift the burden on the Interested Party to show that (i) she did not acquire the interest as a result of any serious offence (which has not been established with the requisite degree of cogency); (ii) that the interest was acquired before the commission of any serious offence (where the serious offence has not been established, the date of commission is equally not established); and (iii) that the Interested Party acquired the interest for fair value after the serious offence occurred (no serious offence having been established or date specified unreasonable to expect the Interested Party to demonstrate this) . 6.2.27 In line with the definition of "interest" as per Section 2 of The Forfeiture of Proceeds of Crime Act1, which provides that interest 1n relation to property means a legal or equitable estate or interest in the property, Counsel submitted that the Interested Party has satisfied that requirement by establishing that she is the legal registered proprietor of the Subject Properties and therefore, she has a legal interest in the Subject Properties. J64 I P age 6.2.28 Counsel cited the case of Nachanga Transport v Director of Public Prosecutions14 where th e Court of Appeal stated that: - "In our view the issue of sufficient interest is the most important issue for consideration. This is because if satisfied, only then can the Court Order that the interest shall not be affected by the forfeiture Order and declare the nature and extent of the i nterest in question." 6.2 .29 Based on the foregoing, Cou nsel submitted that the Interested Party, having established with certainty backed by documentary proof to that effect, h as satisfied the criteria and requirements of Section 31 (2) (a) of The Forfeiture of Proceeds of Crime Act1 of d emon strating to the Court that she h as a legitimate interest in the Subject Properties. 6.2 .30 In conclusion , it was submitted that it cannot be disputed that th e Inter ested Party has satisfied the Court in the cir cumstances herein, tha t she has an interest in the Su bject Properties . Further, it was submitted that n o provision of the law places any further burden on the Interested Party to disprove the unsubstantiated allegations by the Applicant. 6 .2 .3 1 Counsel argued that, therefore, it follows that the burden does not s hift on to the Interested Party J GS I Page to refute the assumptive values attributed to the Subject Properties by the Applicant, instead, the burden remains on the Applicant to bring forth before Court cogent documentary evidence as to the commission of the alleged offence. 6.2.32 Counsel prayed that the Application be dismissed as the Applicant had not satisfied the requirements under The Forfeiture of Proceeds of Crime Act1 and discharged the burden of proving that the Subject Properties are tainted properties. 6.3 Applicant's additional Submissions 6.3.1 By the Applicant's Additional Su bmissions, it was contended, inter alia, that Section 34 of The Forfeiture of Proceeds of Crime Act1 places the onus to prove the case under the provisions of this Act on the Applicant as follows: - "The Applicant in any proceedings under this Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for. " 6.3.2 The Applicant's Counsel further contends that the Applicant has demonstrated with certainty in evidence that the Interested Party has no capacity to acquire and develop the alleged tainted Subject Properties. Counsel asserted that although the Applicant bears the onus of J66 I P age proof in this regard, like in many other Acts, there is an instance when the Act casts the burden of proving certain facts on the Interested Party. 6 .3.3 Counsel cited Section 30 and Section 71 (1) of The Forfeit ure of Proceeds of Crime Act1 and submitted that the prov1s10ns afford the Interested Party an opportunity to explain and produce evidence to help the Court in the final determination of the Application. In the absence of reasonable explanation and production of evidence on the part of the Interested Party, the only reasonable inference to make is that the Subject Properties found in possession of the Interested Party are a proceed of crime. 6.3.4 Counsel submitted that the Constitution recognises the reality of the law shifting the onus onto the Interested Party or accused person to prove facts of evidence. In support of the foregoing submission, Counsel cited Article 18 (12) of The Constitution of Zambia5 where it provides as follows: - "Nothing contained in or done under the aut hority of any law shall be held t o be inconsis t ent or in contravention of paragraph (a) of Clause (2) to the extent that it is s hown that t he law in question imposes upon any J67 I Page person charged with a criminal offence the burden of proving particular facts." 6.3 .5 Counsel further cited the case of The People v Austin Liato6, in which the Supreme Court gave a brief background to the enactment of The Forfeiture of Proceeds of Crime Act laws to the extent of understanding the intention of the Legislature in passing The Forfeiture of Proceeds of Crime Act1. 6.3.6 Counsel submitted that the Applicant appreciates the principle of law that a suspicion that something exists is more than a mere idle wondering whether it exists or not and that as such, 1n this case, the Applicant had demonstrated through Affidavit evidence that the tainted Subject Properties are solely owned by the Interested Party through production 1n evidence of the Land Record exhibit; that the Subject Properties are reasonably suspected to be proceeds of crime after considering the modest legitimate known source of income for the Interested Party through the exhibits Produced marked as "EKl" "EK2" and "EK4"· ' that the estimated cost value of acquiring and ' developing the tainted Subject Properties is beyond the capacity of the Interested Party; and that there are objective indications of unlawful J68 I Page activity in relation to the money used to develop the tainted Subject Properties. 6.3.7 Therefore, it is Counsel's submission that the tainted Subject Properties are liable to be forfeited to the State. 6.3.8 It was further submitted that the summoning and hearing of the two witnesses was in line with the provisions of Section 5 (1) and (2) of The Evidence (Bankers' Books) Act9 and that therefore, the Court correctly summoned and allowed the admission in to evidence of the exhibits marked as "EKl", "EK2" and "EK4". 6.3 .9 Counsel cited Section 9 of The Electronic Communications and Transactions Act1°, which provides for the admissibility and evidential weight of data messages and submitted that the Court complied with the provision when it admitted into evidence "EKl", "EK2" and "EK4". 6.3.10 It was contended that the documents are critical as they touch on matters that are central to this cause, the proving of the Estimated Cost Value of the tainted Subject Properties, and the capacity of the Interested Party, through her legitimate known income, during the period when the tainted Subject Properties were acquired and developed. J69 I P age 6.3.11 Counsel urged the Court to note that the two Bankers and the evidence they brought to this i • Honourable Court were not all but only part of the jigsaw puzzle showing that the Interested Party had no means to own the Subject Properties. It was submitted that there was other evidence, which was brought to the Court in addition to the Banker's evidence, to prove the Applicant's case on the balance of probabilities. 6.3.12 Counsel contended that the Applicant has demonstrated that the Interested Party has no capacity to acquire and develop the tainted Subject Properties, considering her modest legitimate known income. She stated that the absence of any evidential satisfactory explanation by the Interested Party to the contrary raises reasonable suspicion that the source of the money used was illegal activities. 6. 3. 13 Counsel asserted that the term 'reasonable suspicion' was well explained 1n case of Queensland Bacon v Rees15 by Kitto J., where it was stated as follows: - "It is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without 'sufficient evidence' as Chambers Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a J70 I Page . ; reason to consider or look i nt o the possi bi lity of existence. " 6.3.14 Counsel contended that the Applicant has complied with the provisions of The Forfeiture of Proceeds of Crime Act1 by establishing on a balance of probability that the Interested Party has no capacity and that the Subject Properties are reasonably suspected to be proceeds of crime or tainted. 6.3.15 Counsel submitted that the Interested Party has confirmed ownership of the piece of land, on which the tainted Subject Properties have been developed, that she acquired through direct lease from the Ministry of Lands and produced "ENTLS", "ENTL6", "ENTL7" and "ENTLS". 6.3.16 Counsel further submitted that there is no evidence to show that the former President has interest in the Subject Properties. Furthermore, it was submitted that Sect ion 30 of The Forfeiture of Proceeds of Crime Act1 allows any person who has interest in the property to appear in Court and produce evidence at the hearing of the proceedings. 6.3. 17 Counsel contended that the only evidence that the Interested Party has shown 1s that she acquired the Subject Properties as they are registered in h er name but she has not adduced J71 I P age any evidence to show that she is financially capable of constructing the Subject Properties. 6.3.18 It was Counsel's further contention that if indeed the Subject Properties were matrimonial properties as alleged by the Interested Party, her husband would have equally shown interest in the Subject Properties and would have shown how they were constructed. It was argued that, therefore, since only the Interested Party has shown interest in the Subject Properties, she is the sole owner of the Subject Properties and thus the onus shifted on her to produce evidence to demonstrate that she had a legitimate source of income used to develop the alleged tainted properties. 6.3.19 It was submitted that there is no evidence produced by the Interested Party in this matter demonstrating the legitimate source of the money she used to develop the said tainted Subject Properties on a balance of probability. 6.3.20 It was further submitted that this Application is by law determined on Affidavit evidence before the Court and the calling of any witness is a discretion of the Court or Judge hearing the Application. As such, the Court cannot be faulted when it relies on Affidavit evidence and decides to call any witness. J72 I P age 6.3.21 Counsel submitted that this matter 1s determined through Affidavit evidence and therefore, the Court was correct when it declined the un-procedural attempt by the Interested Party to call three witnesses without following the laid down procedure under Order XXX, Rules 20 and 21 of The High Court Rules2 . 6.3.22 Finally, it was submitted that the Applicant has demonstrated with sufficient evidence that the Subject Properties are reasonably suspected to be proceeds of crime in accordance with the definition of proceeds of crime and that therefore, the Applicant has discharged the onus of proving the facts necessary to establish the grounds for making the Order to forfeit the tainted Subject Properties to the State. 7. CONSIDERATION AND DECISION OF THE COURT 7 . 1 We have considered the Application and have perused the various Affidavit evidence and exhibits on Record. We have further considered the various Submissions made by Counsel and the Authorities cited, for which we are grateful to Counsel. 7. 2 This matter is commenced by Originating Notice of Motion and it is an Application for a Non-Conviction Based Forfeiture of tainted property made pursuant to Sec t ions 29, 30, 3 1 and 71 of The Forfe it ure of J73 I Page Proceeds of Crime Act1 . Th e said Sections p r ovide as follows : - "29. A public prosecutor may apply to a court for an order forfeiting to the State all or any property that is tainted property. 30. Where a public prosecutor applies under section twenty-nine for a forfeiture order- (a) the public prosecutor shall give not less than thirty days written notice of the application to any person who is known to have an interest in the tainted property in respect of which the application is being made; (b) any person who claims an interest in the property in respect of which the application is made may appear and produce evidence at the hearing of the application; and (c) the court may, at any time before the final determination of the application, direct the public prosecutor to ... 31(1) Subject to subsection (2), where a public p rosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in t he order, be forfeited to the State. (2) Where a person claiming an interest in property to which an application relates satis fies the court that the person- J74 I P age (a) has an interest in the property; and did not acquire the i nterest in the property as a result of any serious offence carried out by the person and had the interest before any serious offence occurred; (b) or acquired the interest for fair value after the serious offence occurred and did not know or could not reasonably have known at the t i me of the acquisition that the property was tainted property; (c) the court shall order that the interest shall not be affected by the forfeiture order, and the court shall declare the nature and extent of the interest in question." (Our emphasis) 7 .3 As can be seen from the above provisions of law, all that is required of the Public Prosecutor to institute such an Action is sufficient belief that the property is tainted. Thereafter, any person who claims an interest in the property in respect of which the Application is made is required to appear and p r oduce evidence on such interest. It is for that reason that the Interested Party was notified as she may be a person with an interest in the Subject Properties, which are alleged to be tainted property by the Applicant. 7.4 The Interested Party is required to appear before Court and produce evidence of her interest in the Subject Properties and satisfy the Cour t that she has a legitimate interest in the alleged tainted Subject J75 I P age Properties as set out in Section 31 (2) of The Forfeiture of Proceeds of Crime Act1, cited above. 7.5 From the foregoing, it is clear that to determine this Application, we must consider whether the Applicant h er ein has proved that the Subject Properties are tainted on the basis that they are reasonably suspected to b e proceeds of a crime. 7.6 Section 33 (2) (b) of The Forfeiture of Proceeds of Crime Act1 provides as follows on the standard of proof in civil proceedings, such as this one: - "The rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act." 7. 7 Further, Section 34 of The Forfeiture of Proceeds of Crime Act1 p laces the onus on the Applicant to prove the case under the provisions of the Act as follows: - "The applicant in any proceedings under this Act bears the onus of proving matters necessary to establish the grounds for making the order applied for." (Our emphasis} 7 .8 We now turn to consider whether the Applicant h as proved to the required standard that the Subject Properties are tainted properties. In terms of Section 2 of The Forfeiture of Proceeds of Crime Act1, the definition of tainted property is in the following terms: - J76 I Page ""Tainted Property" in relation to a serious offence or foreign serious offence means- (a) any property used in, or in connection with the commission of an offence; (b) property intended to be used in or in connection with, the commission of the offence; or (c) proceeds of the offence; and when used without reference to a particular offence means tainted property in relation to a serious offence. " (Our emphasis) 7. 9 From the foregoing, it is clear th at if the properties are tainted property, it is tainted in relation to a serious offence. A serious offence, according to Section 2 of The Forfeiture of Proceeds of Crime Act1 is one in which the maximum sentence provided by law is death or imprisonment for not less than 12 mon ths. 7.10 We note that the Court of Appeal, in the recent case of Sydney Mwansa v The People16 , stated as follows on what needs to be considered in determining an Application for an Order for Non-Conviction Based Forfeiture of tainted property under The Forfeiture of Proceeds of Crime Act1: - "We hold the view that although non-conviction based forfeiture (civil forfeiture) is not based on a conviction, there is need to clearly identify the offence which the respondent committed or alleged to have committed, and then a clear connection established on the balance of probabilities how the offence (serious offence} is J77 I Page related to the property in issue, i . e ., wholly or partly derived or realised from the commission of the offence; wholly or partly derived or realised from disposal or other dealing with proceeds of crime... The court lost sight of the issue, by focussing on financial capacity. The question the court ought to have answered is whether the property in question was tainted property... Further, there is no evidence, on a balance of probability, connecting any proceeds of crime being used to procure the plot and building of the structures thereon. Therefore, had the trial court properly directed itself, it would have found that the respondent did not establish their case on a balance of probability." (Our emphas is) 7 .11 In our view, the Court of Appeal deter m ined that the financial capacity of a person in p ossession of the alleged tainted property should not be the focus in determining whether t h e subject p r oper ty is tain ted. The Court of App eal furth er highlighted that in order for a Non-Conviction Based Forfeitu re Or d er to be granted, the Applicant needs to clearly demonstrate the following: - 1. Identify the offence that the Interested Party ought to have committed; 2 . A clear connection established on the balance of probabilities (of) how the offence (serious offence) is related to the property in issue; and J78 I P age 3 . Evidence, on a balance of probability, connecting any proceeds of crime being used to p rocure the subject properties. 7. 12 However, in th e leading case of The People v Austin Liato6 , the Supreme Court of Zambia stated as follows r egarding the background to the en actmen t of The Forfeiture of Proceeds of Crime Act1 : - "Forfeiture legislation was prompted in large measure by the desire to circumvent the difficulties encountered in proving and dealing with serious offences such as money laundering and drug trafficking." 7 .13 Further, in the said case of The People v Austin Liato6 , the Su preme Court referred to the writing in the Journal of Money Laundering2 , wh ere Justice Anthony Smellie, QC, Ch ief Justice of th e Cayman Islands, stated as follows: - "The worldwide adoption of laws which enable the confiscation of the proceeds of crime reflects the acknowledged importance of depriving the criminal of his profits. These laws recognize that organized criminals use their proceeds of crime to insulate themselves by the use of intennediaries, from detection and arrest. They acknowledge that the more profitable the crime, the more difficult it becomes for law enforcement to link the criminal to it. The proceeds of crime become the very means by which the bastions of organized crime can be treated and sustained." (Our e mphasis} J79 I Page 7. 14 Furth er, in relation to t h e offence of being in possession of property reasonably susp ected to be proceeds of crime, provided for u nder Section 71 (1) of The Forfeiture of Proceeds of Crime Act1, the Su p r em e Court in the said case of The People v Austin Liato6 emphasised that: - "To prove reasonable suspicion under section 71 (1) of the Act, therefore, the prosecution does not have to show the link between the source of the money or the accused to possible criminal conduct. It is sufficient that possession and reasonable suspicion are proved." (Our emphasis) 7 .15 Furthermore, in the case of Assets Recovery Agency Director v Szepletowsk & Others17 , the case of Green v Director of Assets Recovery18 was cited, in which Sullivan J. , stated as follows: - "In civil proceedings for recovery under Part 5 of the Act the Director need not allege the commission of any specific criminal offence but must set out the matters that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property was obtained. " (Ou r emphasis) 7 .16 Additionally, in the case of The Director of Public Prosecution and Dhiraj Dhumputha19 , th e Court held that: - "Whether or not there is a criminal rosecution or conviction, it does not affect the case of recovery of assets reasonably believed to be proceeds of crime. A J 80 I Page non-conviction, based forfeiture can n.tn parallel with criminal trial." (Our emphasis) 7 . 17 In view of the foregoing authorities, it is ou r view that a Non-Conviction Based Forfeiture proceeding allows the Court to confiscate assets of a criminal n ature, even where no conviction has been obtained in relation to criminal conduct. 7 .18 Based on the foregoing, we are of the h u mble view that the Court of Appeal in the case of Sydney Mwansa v The People16 departed from the settled standards of Non-Conviction Based Forfeiture when it held that for an Applicant to obtain a Non-Conviction Based Forfeiture Order, the Applicant is required to provide a clear connection established on t h e balance of probabilities to how the offence (serious offence) 1s related to the property in issue and provide evidence on a balance of probability, connecting any proceeds of crime being used to procure the subject properties. We are fortified by Section 71 (3) of The Forfeiture of Proceeds of Crime Act1 , which provides as follows: - "The offence under subsection ( 1) is not predicated on proof of the commission of a serious offence or foreign serious offence." 7.19 In our humble view, this requirement for a n exus between the property and a crime, is what ought to b e established in an application for a Conviction Based J 81 I Page For feitu re, which 1s distinguish able from the case 1n casu. 7.20 In the case of Abel Banda v The People20 , the Supreme Court held as follows on the principle of stare decisis: - "The problem before us therefore is that we have made case law, which we have now realised is indefensible. The principle of stare decisis requires that a court should abide by its ratio decidendi in past cases. Put simplistically, in order to have certainty in the law, decisions of courts should be consistent and should not be so readily changeable as to make it at any given time what the law is on a given issue. " (our emphasis) 7 .21 Therefore, based on the principle of stare decisis, we shall follow the guidance laid down by the Supreme Court of Zambia in the leading case of The People v LiatcP and other persuasive authorities cited. 7.22 We now turn to determin e whether the Applicant h as proved on a balance of probabilities that the Subject Properties are tainted . To demonstrate th at the Subject Properties are tainted, th e Applicant alleges that the amount of money spent on the construction of the 15 double storey flats is higher than th e money that the Interested Party had in her Accounts and that on failure by the Interested Party to give sufficient explanation of the source of the money that enabled her to construct the Subject Properties, th e properties are suspected to be proceeds of crime and are therefore, tainted. J 82 I P age 7 .23 To support the allegations that the Subject Properties are reasonably suspected to be proceeds of crime and therefore tainted, the Applicant through the Affidavit in Support of the Application deposed by Emmanuel Khondowe, a Senior Investigations Officer in the employ of the DEC, produced a copy of a Priced Bill of Quantities for the estimated cost of construction of 15 Double Storey Flats and Associated External Works on the Subject Properties, prepared by the Director, Department of Preventive Maintenance Services, in the Ministry of Infrastructure, Housing and Urban Development, marked "EK4". This document indicated that the total cost of construction of the Subject Properties, a s at November, 2022, was K41,586,110.66 . 7.24 Further, by the Affidavit in Reply, the said Deponent asserted that his investigations revealed that there were no other known income streams linked to the Interested Party, both locally and abroad, as per her Tax Payer Identification Number ("TPIN") information. It was asserted that the Esther Lungu Foundation Trust is only registered for Pay As You Earn. It was further deposed that the a ctual market value of the Subject Properties is K66, 100,000.00, as per the Property Valuation Report, issued by the Director at the Department of Valuation and Property Management. 7.25 Copies of the Interested Party's TPIN Number Registration Certificate, ZRA Pay As You Earn Report J83 I Page and a Copy of a Property Valuation Report issued by the Director at the Department of Valuation and Proper ty Management, marked "EKl", "EK2" and "EK3", respectively, were exhibited in the Affidavit in Reply. 7.26 We note however, that at the hearing of this Application and in the additional Submissions, the Interested Party objected to the admission into evidence of exhibits marked "EKl", "EK2" "EK3" , referred to 1n the foregoing paragr aph and "EK4", exhibited 1n the Affidavit in Support of the Application, on the basis that "EKl" and "EK2" are computer generated, and contrary to the provisions of Section 9 (4) of The Electronic Communications and Transactions Act10 , which provides as to how computer generated 'data message' is required to be certified. 7 .27 Further, the basis of the objection to the admission of "EK3" and "EK4" is that the documents have not met the requirements of Section 3 of The Evidence Act7 , which r equires that an original of the document must be produced and the maker called as a witness in the proceedings. 7 .28 In considering this objection, we refer to Order V, Rule 21 of The High Court Rules2 , which provides as follows: - "In every case, and at every stage the reof, any object ion to the reception of evidence by a party affected the reby shall be made at the t ime the evid e nce is offered: J84 I P age Provided that the Court may, in its discretion, on appeal, entertai n any objection to evidence received in a subordinate court, though not objected to at the time it was offered." (Our emphasis) 7.29 Further, Order 2 , Rule l of The Rules of the Supreme Court1 1 provides that: - "An application to set aside for irregularity any proceedings, any step in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity." (Our emphasis) 7 .30 Based on the foregoing provisions, on being served the Affidavit in Reply, which was filed into Court on 9 th August, 2023, and the Inter ested Party becoming aware of the alleged irregularities in the said exhibited documents, she ought to have filed an application to expunge the said documents. Instead, the Interested Party took a fresh step in the proceedings when she filed a Notice to Raise Preliminary Issues on 11 th August, 2023, wherein amongst other issues, she objected to the admission into evidence of documents contained in the Applicant's Affidavit in Support of the Application and did not extend her objection to the impugned Documents in the Applicant's Affidavit in Reply or exhibit "EK4", 1n the Affidavit in Support of the Application. J 85 I Page 7 .31 Therefore, it is our considered view that the Interested Party waived her right to object to the said documents. Consequently, her objection to the admission into evidence of the impugned documents is dismissed. 7 .32 On our analysis of the said Interested Party's TPIN Registration Certificate, ZRA Pay As You Earn Report and a Copy of the Property Valuation Report issued by the Director, Department of Valuation and Property Management exhibited as "EKl" "EK2" and "EK3" ' respectively, we are of the view that the Applicant has ' ' demonstrated that the Interested Party has no registered tax returns in her name, which in our view, is an indication that she does not have any known income streams. 7.33 Further, by the Property Valuation Report issued by the Director, Department of Valuation and Property, the Applicant has proved to the required standard that the market value of the Subject Properties 1s K66, 100,000.00. 7 .34 Additionally, we note that the Deponent interviewed and recorded a Statement from Micky Kaisi, a Quantity Surveyor from the Ministry of Infrastructure, Housing and Urban Development, who explained that using the average United States Dollar rate of USDl to K9.49 from 2015, being the period between which the structures were constructed, the cost was interpolated to K24,256,434.55. J86 I P age 7 .35 We note however, that the foregoing, interpolation of the value of the Subject Properties, using the United States Dollar rate, has been disputed by the Interested Party. We are inclined to agree with the Interested Party that the conversion to dollar should not have come into play given the fact that there is no allegation that the Subject Properties were constructed using dollars. Therefore, we are of the view that this piece of evidence is not relevant to the determination of this Application. 7.36 To also support the Applicant's allegations that the Interested Party's Subject Properties are tainted, there was evidence led by Choolwe Chiyala (PWl), a Relationship Manager at FNB, who produced copies of the Bank Statements relating to the Esther Lungu Foundation Trust Account held at the Bank. He stated that the debit entries came to K14 million and the credits came up to Kl 9 million, for the period. 7 .37 He stated that there were no irregular or suspicious transactions on the Kwacha Account, Dollar Account or Fixed Deposit Account. He further testified that he had no evidence to show that any funds from those Accounts were used to construct the Subject Properties. 7 .38 We note that the Deponent to the Affidavit in Support of the Application asserted that the money in the Esther Lungu Foundation Trust Account held at FNB, did not in any way benefit the Interested Party in her personal capacity. J87 I P age 7.39 Further, by the Statement of Brian Muleya Mutakwa (PW2), exhibited as "EK6" in the Affidavit in Support of the Application, it was asserted that the Interested Party's Bank Account held at ZANACO Bank had a total 65 debit entries worth K2,511,1 l 7.09 and 79 total credit entries worth a gross total of about K3, 104,487.14, as credit and debit turnover between 1st January, 2012 and 16th August, 2022. 7.40 Based on the foregoing, the Applicant contends that the amount of money spent on the construction of the 15 double storey flats, being K41,586 , 110 .66, is higher than the money that the Interested Party had in her Account. It is further contended that the Interested Party did not give a reasonable explanation as to where she got the money to construct the flats on the Subject Properties nor did she provide any justifiable income streams. Therefore, it is alleged that the Interested Party is in possession of property reasonably suspected to be proceeds of crime and that consequently, the properties are tainted. 7.41 In response to the foregoing allegations, the Interested Party contends that she is the legitimate owner of the Subject Properties. She further contends that the Applicant herein has not proved to the required standard the basis of the reasonable suspicion that the Subject Properties are proceeds of crime and are J 88 I Page :. . therefore tainted, to warrant the shifting of the burden of proving the legitimacy of their ownership to her. 7.42 The Interested Party contends that by her Affidavit evidence on Record, she has proved that she is the legitimate owner of the Subject Properties. She stated that the testimonies of PWl, PW2 and the Deponent of the Affidavit in Support of the Application, have not availed all the relevant information relating to other Bank Accounts, transactions and that her other Bank balances were not made available to the Deponent. 7.43 Therefore, it was contended that the Applicant's reasonable susp1c10n was founded upon incomplete Bank Statements and information, and that consequently, there was insufficient factual basis to discharge the burden placed upon the Applicant to show reasonable ground for the suspicion. 7.44 It was further contended that the Applicant has failed to demonstrate that there is reasonable suspicion of a serious offence and that therefore, it was unreasonable to request the Interested Party to justify the legitimacy of her ownership of the Subject Properties. 7.45 In the case of the People v Austin Liato6 , the Supreme Court stated as follows on 'reasonable suspicion': - "It is clear to us from the very definition of 'suspicion' that there is a call to prove what is inconclusive. Suspicion, being a state of mind, is not in itself easy to prove with certainty. In fact, we think it cannot be J89 I Page ::. . proved conclusively and is, in itself to a large extent, subjective. What however, calls for proof under Section 71(1) of the Act is 'reasonable suspicion'. This necessarily entails that the suspicion ought to be based on some factual basis, which removes the subjectivity of implicit in ordinary 'suspicion'. If there are no grounds which make the suspicion reasonable, then such suspicion is mere suspicion or is unreasonable suspicion. It is that factual basis which makes suspicion reasonable, that requires to be established." (Our emphasis) 7.46 Based on the foregoing leading authority, it is clear that for su spicion to be reasonable, the Applicant must provide a factual b asis for t h e su spicion . 7.4 7 On ou r analysis of the Applicant's evidence in support of the allegations, particularly P2, being the Interested Party's ZANACO Account Statem ents and the Statement of Brian Muleya Mutakwa, exhibited as "EK6", in the Affid avit in Support of the Application, containing a summary of the transactions on that Account, we find that there is indeed a discrepancy between t h e entries indicated in h is Statement and those indicated in t h e Bank Statements produced as P2. For instance, the Statement indicates that there were transactions on 4 th May, 2021 and 2 nd August, 2022, on th e Interested Parties' Account. However, a perusal of P2 indica tes that there were no such transactions made on the stated dates. It is therefore our view, that the summary of transactions 1n the Statement of Brian Muleya J 90 I P age Mutakwa, "EK6", contains inaccuracies and therefore, cannot be relied upon in the determination of this Application . 7.48 We note, however, that Brian Mutakwa testified that the Statements in the Interested Party's ZANACO Account that he viewed for the period between 1st January, 2012 to 16 th August, 2022 , had in summary 65 debit transactions and 70 credit transactions. He stated that the debit transactions amounted to K2.5 million and the credit transaction amounted to K3. l million. This testimony was not challenged in cross examination. Therefore, we are of the view that the Applicant has demonstrated that the Interested Party's Account, held at ZANACO Bank, had debit transactions amounting to K2.5 million and credit transactions amounting to K3. l million. 7.49 Regarding Pl , we find that the testimony of PWl revealed that the Esther Lungu Foundation Trust Account held at FNB had no transactions that indicated payment to the Interested Party. We are therefore of the view, that this Account is not relevant to the establishment of the financial capacity of the Interested Party to develop the structures on the Subject Properties. 7. 50 Based on our analysis of the Applicant's evidence in support of this Application, we are of the view that the Applicant has led sufficient evidence to demonstrate the J 91 I Page factual basis of its suspicion t h at th e Su bject Pr op erties are reasonably s u spected to be proceed s of crime as the Ap p licant h as demonstrated t o t his Cou rt that ther e is indeed a sign ificant difference b etween the Inter ested Party's known income of K3, 104,487.14 and the estimated cost of the developm ents on the Su bject Properties, being K41,586,110.00, as at Novemb er , 2022. 7. 51 We note that the offence of being in Possession of Property reasonably suspected to be proceeds of crime is a serious offence as defined under Section 2 of The Forfeiture of Proceeds of Crime Act1, as it provides for a sentence that is more than 12 months. Section 71 (1) of The Forfeiture of Proceeds of Crime Act1 provides for the offence of being in Possession of Property suspected of being proceeds of cnme, as follows: - "A person who, after the commencement of this Act, rece ives, possesses, conceals, disposes of or brings into Zambia any money, or other property, that may reasonably be suspected of being proceeds of crime commits an offence and is liable upon conviction to- (a) if the offender is a natural person, imprisonment for a period not exceeding (i.ve years; (b) or if the offender is a body corporate, a f ine not exceeding seven hundred thousand penalty units. " (Our emphas is) J 92 I P age 7. 52 It must be emphasised here that when a person is suspected to be in Possession of Property reasonably suspected to be p roceeds of crime under Section 71 of The Forfeiture of Proceeds of Crime Act1 , that the focus is on the property and not the person, hence, Section 71 (3) states as follows: - "The offence under subsection (1) is not predicated on proof of commission of a serious offence or foreign serious offence." (Our emphasis) 7 .53 Therefore, it is our considered view that the Applicant has discharged its burden of proving the reasonable basis of the suspicion that the Subject Properties are proceeds of crime. 7 .54 Having found that the Applicant has a reasonable basis for the suspicion, the next and related issue we necessarily ought to interrogate is whether the Interested Party has demonstrated to the Court's satisfaction, that she legitimately acquired interest in the alleged tainted properties. 7. 55 Section 31 (2) of The Forfeiture of Proceeds of Crime Act1 sets out the issues that the Interested Party ought to satisfy the Court that she has legitimate interest in the alleged tainted properties. These are: - a) That the Interested Party did not acquire the property as a result of any serious offence carried out by that person; J93 I Page b) That the Interested Party had the interest before any serious offence occurred; and c) That the Interested Party acquired the interest for fair value after the serious offence occurred and did not know or could not reasonably have known at the time of the acquisition that the property was tainted property. 7.56 It is therefore clear that at this stage, the evidentiary burden of proving the legitimate interest in the Subject Properties, on the balance of probabilities, shifts to the Interested Party. 7.57 To demonstrate that the Interested Party has a legitimate interest in the Subject Properties, she stated in her Affidavit evidence that she was able to afford the developments on the Subject Properties as she is a former First Lady and, in that role, she earned allowances. 7.58 It was asserted that prior to becoming First Lady, she worked for the Zambia Council for the Blind and Handicapped, the Christian Council of Zambia, the United Nations High Commissioner for Refugees, the Legal Services Corporation, Lisulo and Company, Toplis and Harding Insurance Loss Adjusters and Independent Insurance Loss Adjusters. She further asserted that she travelled internationally to exhibit and sell Zambian products in liaison with the Zambia Development Agency where she earned some income. J94 I P age 7 .59 On our analysis of the Interested Party's evidence in support of her legitimate interest in the Subject Properties, we find that she has not provided any evidence of the sums of money she received as allowances as First Lady or any evidence of the sums of money she earned during the course of her employment or during the activities she engaged in after her retirement. 7 .60 While we agree with the Interested Party that there is no law that requires her to declare the gifts she received from her husband, the former President of the Republic of Zambia, our point of departure is that once a person is, on reasonable suspicion, called upon to discharge their evidential burden on the legitimacy of their claim in any property, this must be done with proof to the satisfaction of the Court, which in this case, the Interested Party has failed to do . 7.61 The Interested Party was expected to proffer evidence to support her explanation. The explanation and evidence tendered must be solid, honest, beyond pera dventure, beyond guesswork or misinformation. It must also be clear, logical, consistent, believable and convincing. The required proof in many circumstances, being in the form of pay-slips, bank statements, money transfer records, business records, employment letters, official r ecords, testamentary wills, etc. These requirements of proof J95 I Page :: were set out in the Kenyan case of Assets Recovery Agency v Peter Oluwafemi Olaiwon1 1 . 8 . CONCLUSION 8. 1 Based on the foregoing findings , we are of the view that the Director of Public Prosecutions has successfully made out its case for Non-Conviction Based Forfeiture of tainted property. 8.2 The evidentiary burden that had shifted to the Interested Party was not discharged as required by The Forfeiture of Proceeds of Crime Act1 . 8.3 We accordingly Order that Plot No. 9334/ 1, 9334/2, 9334 / 3 and 9334 / 4, in State Lodge, be forfeited to the State, to be applied as the Director of Public Prosecutions deems fit within the confines of the law. 8.4 The Interested Party is, in consequence, condemned in costs, to be taxed in default of agreement. SIGNED, SEALED AND DELIVERED AT LUSAKA, THIS 27™ DAY OF SEPTEMBER, 2024. HIGH COURT JUDGE I. M. MABBOLOBBOLO HIGH COURT JUDGE J 96 I P age ~ S . V. SILOKA HIGH COURT JUDGE !<t I Ulkll UI 11', 4 811, HI -Ii C,OIJ,<T O'" °'J• i[•1. ,,1sr• EcoN0 ,~ & , 1·1 ,~c, ,,. ~ •.,. ~i r-;-;-· ------~--~ rjL . ~_, _____ __,,} RU:: . .:. TF' . 1 P. O. BOX sor.:,' LUSAKA