Director of Public Prosecutions v Nathan Mbaya and Ors (APP. NO. SP 44/2024) [2024] ZMCA 263 (7 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA APP. NO. SP 44/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: L1ir ~,1J \~ - -J// THE DIRECTOR OF PUBLIC PROSECUTIONS L -~APPLICANT AND NATHAN MBAYA WUXINREN 1 ST RESPONDENT 2ND RESPONDENT KELSHA INVESTMENT LIMITED 3RD RESPONDENT Coram: Chashi, Makungu, and Sichinga, JJA On 1 August and 7 October, 2024 For the Applicant: Ms. M. K. Chitundu - Deputy Chief State Advocate Ms. V. Nsingo - Senior State Advocate Mr. D. Mukelelabo - State Advocate Ms. M. Luhanga - State Advocate For the Respondent: Mr. M . Libakeni and Ms. M. M. Chabala of Messrs Muya and Company RULING Sichinga JA, delivered th e Rulin g of the Cou rt. Cases referred to: 1. Bidvest Food Zambia Limited, Chipkins Bakery Supplies (PTY) Limited and Bidvest Group Limited v CAA Import and Export Limited SCZ Appeal N. 57 of2017 2. K. V. Wheels and Construction Limited v Investrust Bank PLC SCZ/8/29/2021 3 . Savenda Management Services Limited v Stanbic Bank (Z) Limited SCZ Selected Judgment No. 10 of 2018. Legislation referred to: 1. The Court of Appeal A ct, No. 7 of 2016 of the Laws of Zambia. 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1.0 Introduction 1.1 Before us is a Notice of Motion for leave to appeal against a judgment of this Court dated 11 June 2024 (hereinafter referred to as 'our judgment') . 1.2 The applicant moved the Court pursuant to Section 13 of the Court of Appeal Act and Order X Rule 2 (1) of the Court of Appeal Rules by motion filed on 24 June 2024. 2.0 Background 2 .1 The matter came before us as an appeal against a Non Conviction Based (NCB) asset forfeiture order issued by the lower court. The respondents (Nathan Mbaya, Wu Xinren, and Kelsha Investments Ltd), who were the appellants in the appeal, involved in currency exchange activities at the Kasumbalesa border and had large sums of money seized by the Drug Enforcement Commission. The respondents contested the forfeiture, arguing that the lower court erred 1n admitting warn and caution statements without determining their voluntarin ess and that there was no sufficient link between the seized funds and the alleged illegal activities. 2.2 We found merit in two of the three grounds of appeal filed before us. In this regard, we found merit in the respondents' argument on the admission of warn and caution statements. We held that the lower court's reliance on these statements, which were obtained under criminal investigations, was improper 1n the context of civil proceedings. The appeal succeeded on the basis that the prosecution failed to prove, on a balance of probabilities, that the money was tainted property or offended the provisions of the law. We set aside the judgment of the lower court in this respect and held that each party should bear their own costs. 3 .0 The intended appeal to the Supreme Court 3.1 The applicant was not satisfied with our judgment and now intends to appeal to the Supreme Court, subject to our leave to appeal, hence this motion before us. The following are the intended grounds of appeal: 1. The Learned Judges of the Court of Appeal erred in law by misrepresenting section 33 of the Forfeiture of Proceeds of Crime Act (FPOCA), incorrectly imposing a burden on the Applicant to prove criminal conduct on a balance of probabilities, rather than requiring proof of property derived from suspected criminal conduct; 2. The Learned Judges of the Court of Appeal erred in law by improperly applying the legal principle of individual culpability, as evidenced by its reliance on Appellant number 1 's confession and warn and caution statements to exonerate Appellants number 2 and 3, who did not provide any confession statements or sign any warn and caution statements. This error contravened established legal standards requiring each defendant's culpability to be determined based on their own actions and evidence presented; 3 . The Learned Judges of the Court of Appeal misinterpreted section 33(2)(b) of the Forfeiture of Proceeds of Crime Act (FPOCA), Number 19 of 2010 erroneously excluding evidence obtained during criminal investigations from being admissible in civil proceedings, contrary to the section's explicit language; 4. The Learned Judges of the Court of Appeal extended the scope of section 33(2)(b) of the FPOCA beyond its intended application, incorrectly applying it to investigations which generated evidence for forfeiture proceedings; 5. The Learned Judges of the Court of Appeal failed to recognize that only evidence rules exclusive to criminal proceedings are inapplicable in forfeiture proceedings under section 33 of FPOCA, resulting in the incorrect exclusion of relevant evidence; 6 . The Learned Judges of the Court of Appeal conflated distinct legal concepts, mistakenly equating ''proceeds of crime" with "instrumentalities of crime", and consequently deemed evidence of suspected criminal sources irrelevant, contrary to established legal principles; 7. The Court below erred in law by not adequately addressing the presentation of fake receipts by B and C, which corroborated the illegality of the transactions. The Court erred in law and facts when it held that the property was not tainted as per section 2 and 29 of the Forfeiture of Proceeds of Crime Act (FPOCA) and that the Appellant did not demonstrate that the money offended the provision of the law cited; 8. The Court erred in law and fact when it restricted itself to the provision of section 29 of the Forfeiture of Proceeds of Crime Act (FPOCAJ and held that it does not define the circumstances under which an application can be made for forfeiture and ignored the circumstances provided under section 71 of the said Act which have been proved by evidence of the Appellant; 9. The Court erred in law and fact when it held that Article 54 of the UNCAC reinforced the Appellant's response and ignored what is provided by section 31(4) of the Forfeiture of Proceeds of Crime Act (FPOCA); 10. The Court erred in law and facts when it ignored the provision of section 31(2)(a) and (b)(i) and (ii) of the Forfeiture of Proceeds of Crime Act (FPOCA) and held that the respondent did not demonstrate that the money offended the provision of the law cited; and 11 . The Court erred in law and facts when it did not consider the provision of Section 33(2J(a) and (b) of the Forfeiture of Proceeds of Crime Act (FPOCA) to accept in evidence the interested parties' confession made in the warn and caution statement which was recorded in the presence of their legal Counsel. 4.0 Arguments in support of the motion 4.1 In support of the motion, th e applicant filed an affidavit togeth er with th e motion, sworn by one Victor Ch oongo, a state advocate in th e em ploy of th e applicant. Th e gis t of h is affidavit is th at th e intended app eal is gr ounded in a n ovel area of th e law, and that there are compelling and persuasive reasons that warrant the Supreme Court's consideration. 4.2 The applicant's record of motion also contains skeleton arguments, which we shall refer to in our considerations, if need be. 5.0 Arguments opposing the motion 5.1 The respondents opposed the motion by way of affidavit filed on 31 July 2024. It is deposed to by one Mahape Libakeni, counsel for the respondents. The gist of his affidavit is that the intended appeal does not raise any novel precepts of law. The respondents equally filed skeleton arguments dated 30 July 2024. For brevity, we shall refer to the arguments in our considerations, should need arise. 6.0 The applicant's arguments in reply 6.1 On 8 August 2024, the applicant filed his affidavit in reply and skeleton arguments. The affidavit is sworn by the said Victor Choongo. The gist of his affidavit is that the intended appeal raises points of law of significant public interest and importance. 7 .0 Our considerations 7 .1 We have intently considered the intended grounds of appeal. In addition, we have considered the affidavits in support and opposition to the motion. The essence of the applicant's affidavit is that the intended appeal raises points of law that are of significant public interest and importance. That it is grounded in a novel area of the law; and, that it has strong prospects of success. On t h e oth er hand, the gist of the respondents' affid avit is th at th e intended ap peal does not raise any poin ts of law that are of significant p u blic interest and im portance. That the intended grounds of appeal revolve around settled precepts of law and do not raise anythin g n ovel. Furth er, that the in ten ded a ppeal h as little prosp ects of s u ccess. 7 .2 We have equally carefu lly considered the skeleton arguments subm itted by both parties in our determination of th e m otion. 7 .3 Section 13(3) of the Court of Appeal Act provides as follows: (3) The Court may grant leave to appeal where it considers (a) (b) (c) that- the appeal raises a point of law of public importance; the appeal would have a reasonable prospect of success; or (d) there is some other compelling reason for the appeal to be heard. 7.4 The Su p r eme Court h as set out the th reshold that must be met before leave to appeal can be granted under Section 13 of the Court of Appeal Act in the cases of Bidvest Food Zambia Limited, Chipkins Bakery Supplies (PTY) Limited and Bidvest Group Limited v CAA Import and Export Limited1 , K. V. Wheels and Construction Limited v Investrust Bank PLC2 , and Savenda Management Services Limited v Stanbic Bank (Z) Limited3 • 7.5 In our judgment we intimated on page J35 that while non con viction-based asset confiscation may be an effective tool for asset recovery in intricate corruption, money laundering and drug trafficking cases, it remained a highly technical area in which fundamental rights must not be sacrificed at th e altar of exp ediency. This appeal h as both constitutional and procedural implications. Therefore, we are of th e view that this is an a ppropriate case in which the apex Court should pronounce itself on, as its significance extends beyond the bounds of this matter bearing on the broader public interest. We are fortified by the Supreme Court's guidance in the Bidvest case where it stated that: "Points of law of public importance can, in our view, be harnessed more easily in appeals where it is demonstrably for the public or general good of the polity for the Supreme Court, as the final court, to review the legality of extraordinary questions and new legal provisions informing actions by public authorities, or where a significant part of the public stands to be informed and guided by the court's interpretation, so that in that sense there is a public interest in the outcome of an appeal. Such an appeal is more likely to raise a point of law of public importance. We perceive, for example, that much of public law litigation seeking interpretation and future administration of statutory provisions relating to the protection of fundamental rights {under the present Bill of Rights). .. do generate public interest questions in a way that would readily render the points of law they give rise to, ones of public importance fit for determination by this court. Granting leave to appeal in such circumstances is a desideratum." 7 .6 We take the view that this matter raises points of law of public importance deserving of the apex court's considerations. 8.0 Conclusion 8.1 For the reasons we have stated, the applicant's motion for leave to appeal to the Supreme Court is allowed. Each party shall bear its own costs. COURT OF APPEAL JUDGE ~ C. K. Makungu D. L. C COURT OF APPEAL JUDGE COURT OF APP UDGE 9