Henry Mulenga Ngosa Kapoko v The People (Appeal No. 117,118,119/2021) [2023] ZMCA 368 (22 December 2023)

I . IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 117,118,119/2021 HOLDEN AT LUSAKA Criminal Jurisdiction) BETWEEN: HENRY MULENGA NGOSA KAPOKO APPELLANT I AND THE PEOPLE RESPONDENT CORAM: Makungu, Sichinga and Muzenga, JJA On 22nd April 2022 and 22nd December 2023 For the Appellant: Mr. M. Cheelo, MAK Partners and Mr. C. Simukonda, Kangombe and Associates For the Respondent: Mrs. M. C. Mwansa, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT MUZENGA, JA delivered the Judgment of the Court. Cases referred to: 1. Simango v. The People (1974) ZR 198 (SC) 2. Kosamu and Another v. The People (1982) ZR 29 (SC) 3. Chiyokoma v. The People (1973) ZR 37 {CA) 4. Able Banda v. The People (1996) ZR 105 I I I I J2 5. John Nyambe Lubinda v. The People (1988 - 1989) ZR 110 (SC) 6. Masonga v. The People - SCZ Judgment No. 24 of 2009 7. Zambia Consolidated Copper Mines Limited and James Matale - SCZ Judgment No. 9 of 1996 8. Emmanuel Phiri and Others v. The People (1978) ZR 79 9. Wilson Chamoto v. The People (1980) ZR 20 10. Noah Tembo and 2 Others v. The People - CAZ Appeal No. 93, 94, 95 of 2022 11. The People v. Jerry Chisonge (1977) ZR 375 12. Isaac Njovu v. The People (2018) Vol. 1 ZR 572 Legislation referred to: 1. Penal Code, Chapter 87 of the Laws of Zambia. 2. Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 3. Subordinate Courts Act, Chapter 28 of the Laws of Zambia. 4. Prohibition And Prevention of Money Laundering, Act No. 14 of 2001. 5. Judicial Code of Conduct, Act No. 13 of 1999. 6. Anti-Corruption Commission Act No. 42 of 1996. 7. Zambia Tender Board Act, Chapter 394 of the Laws of Zambia. 8. Public Finance Act No. 15 of 2004. 1.0 INTRODUCTION 1.1 The appellant was jointly tried with others and convicted by Principal Resident Magistrate E. Zulu at the Subordinate Court of the First Class at Lusaka on 69 counts. The offences encompassed theft by public I servant contrary to Sections 272 and 277 of the Penal Code, Chapter 87 of the Laws of Zambia, money laundering contrary to J3 Section 7 of the Prohibition and Prevention of Money Laundering, Act No. 14 of 2001 of the Laws of Zambia and failing to account for possession of property reasonably suspected to have been unlawfully obtained contrary to Section 319 (a) of the Penal Code, Chapter 87 of the Laws of Zambia. 1.2 He was later sentenced to 9 years for theft by public servant and 9 years for money laundering to run consecutively making a total of 18 years by Honourable E. Zulu in his new capacity as Principal Resident Magistrate. Unhappy with the decision of the trial court, the appellant appealed to the High Court. A panel of three judges was constituted to hear the appeal. The High Court acquitted the appellants on the offence of failing to account for possession of property reasonably suspected to have been unlawfully obtained and the sentences were ordered to run concurrently thus reducing the sentence to 9 years. Further, two of the appellants in the High Court were acquitted. 1.3 Unhappy with the decision of the High Court, the appellant has appealed to this Court on 48 grounds of appeal. It is worth noting that the 2nd and 3rd appellants herein were released on amnesty. I I I I I I I I I I I I I I I I I J4 1.4 The particulars of the offence in counts 1, 3, 5, 7 and 9, for Theft by Public Servant contrary to Sections 272 and 277 of the Penal Code, Chapter 87 of the Laws of Zambia alleged that in count 1 Henry Mulenga Ngosa Kapoko, Evaristo Musaba, Vincent Luhana, Zukas Musonda Kaoma and Nobert Peleti, between p t October, 2007 and 13th December, 2007, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being persons employed in the Public Service namely Ministry of Health as Acting Chief Human Resource Development Officer, Chief Accountant, Acting Senior Accountant, Acting Principal Accountant and Assistant Director Administration respectively, jointly and whilst acting together with Naomi Gladys Musopelo Chawinga and other persons unknown, did steal K432,022,336.00 cash, the property of the Government of the Republic of Zambia which came into your possession by virtue of your employment. 1.5 The particulars of the offence in count 3 alleged that Henry Mulenga Ngosa Kapoko, Zukas Musonda Kaoma and Dr. Chrispin Sichone between 1st December 2007 and 7th January, 2008, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being JS persons employed in the Public Service namely Ministry of Health as Acting Chief Human Resource Development Officer, Acting Principal Accountant, Director of Health Policy respectively, jointly and whilst acting together with Naomi Gladys Musopelo Chawinga and other persons unknown did steal K557,785,800.00 cash, the property of the Government of the Republic of Zambia which came into your possession by virtue of your employment. 1.6 The particulars of offence in count 5 alleged that Henry Mulenga Ngosa Kapoko, Vincent Luhana, Zukas Musonda Kaoma, Nobert Peleti on 1st February, 2008 and 3rd April, 2008, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being persons employed in the Public Service namely Ministry of Health as Acting Chief Human Resource Development Officer, Acting Senior Accountant, Acting Principal Accountant, Assistant Director of Administration respectively, jointly and whilst acting together with Naomi Gladys Musopelo Chawinga and other persons unknown, did steal K947,224,200.00 cash, the property of the Government of the Republic of Zambia which came into your possession by virtue of your employment. I I I I I I I I I I J6 1. 7 The particulars of offence in count 7 alleged that Henry Mulenga Ngosa Kapoko, Vincent Luhana, Zukas Musonda Kaoma, Dr. Chrispin Sichone and Essau Moses Banda, between 1st April, 2008 and 30th April, 2008, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being persons employed in the Public Service namely Ministry of Health as Acting Chief Human Resource Development Officer, Acting Senior Accountant, Acting Principal Accountant, Assistant Director of Administration, and Assistant Internal Auditor respectively, jointly and whilst acting together with Naomi Gladys Musopelo Chawinga and other persons unknown did steal K886,317,500.00 cash, the property of the Government of the Republic of Zambia which came into your possession by virtue of your employment. 1.8 The particulars of offence in count 9 alleged that Henry Mulenga Ngosa Kapoko, Vincent Luhana, Zukas Musonda Kaoma, Dr. Chrispin Sichone and Essau Moses Banda, between 1st April, 2008 and 19th May, 2008, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, being persons employed in the Public Service namely Ministry of Health as Acting Chief Human Resource Development I I I I I I I I I J7 Officer, Acting Senior Accountant, Acting Principal Accountant, Director of Health Policy and Assistant Internal Auditor respectively, jointly and whilst acting together with Naomi Gladys Musopelo Chawinga and Masuzyo Kuma Chawinga and other persons unknown, did steal K732,350,000.00 cash, the property of the Government of the Republic of Zambia which came into your possession by virtue of your employment. 1.9 The particulars of the offence in counts 12, 14, 16, 18 and 20, for Theft contrary to Section 272 of the Penal Code, alleged that in count 12 Henry Mulenga Ngosa Kapoko, Naomi Gladys Musopelo Chawinga and Masuzyo Kuma Chawinga, between 1st July, 2008 and 15th August, 2008, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with Zukas Musonda Kaoma, Dr. Chrispin Sichone and other persons unknown did steal K947,870,000.00 the property of the Government of the Republic of Zambia. 1.10 The particulars of offence in count 14 alleged that Naomi Gladys Musopelo Chawinga, Masuzyo Kuma Chawinga and Henry Mulenga Ngosa Kapoko between 1st August, 2008 and 20th September, 2008 at I I I I I I I I JB Lusaka in the Lusaka District of the Lusaki3 Province of the Republic of Zambia, jointly and whilst acting together with Evaristo Musaba, Vincent Luhana, Nobert Peleti, Roy Maswenyeho and others unknown, did steal K4,550,000 .00 cash, from the Ministry of Health the property of the Government of the Republic of Zambia. 1.11 The particulars of offence in count 16 alleged that Henry Mulenga Ngosa Kapoko, Naomi Gladys Musopelo Chawinga and Masuzyo Kuma Chawinga, between ist April, 2008 and 31 st October, 2008 at Lusaka in the Lusaka District of the Republic of Zambia, jointly and whilst acting together with Zukas Musonda Kaoma, Dr. Chrispin Sichone, Roy Maswenyeho, Justin Jisper Phiri, Luke Macheke and other persons unknown, did steal K618,068,850.00 ·cash, the property of the Government of the Republic of Zambia. 1.12 The particulars of offence in count 18 alleged that Henry Mulenga Ngosa Kapoko, Naomi Gladys Musopelo Chawinga and Masuzyo Kuma Chawinga, between 1st November, 2008 and 1st December, 2008 at Lusaka in the Lusaka District of the Republic of Zambia, jointly and whilst acting together with Evaristo Musaba, Vincent Luhana, Zukas Musonda Kaoma, Nobert Peleti and other persons unknown, did steal I I I J9 K59,925,150 .00 cash, the property of the Government of the Republic of Zambia. 1.13 The particulars of offence in count 20 alleged that Henry Mulenga Ngosa Kapoko, Naomi Gladys Musopelo Chawinga and Masuzyo Kuma Chawinga, between 1st May, 2008 and 30th June, 2008 at Lusaka in the Lusaka District of the Republic of Zambia, jointly and whilst acting together with Evaristo Musaba, Vincent Luhana, Zukas Musonda Kaoma, Nobert Peleti, Dr. Chrispine Sichone and other persons unknown did steal K629,029,800.00 cash, the property of the Government of the Republic of Zambia. 1.14 The particulars of the offence in counts 21, 22, 23, 24, 25, 26, 27, 28, 29 30, 31, 32, 33, and 45 to 58 for Money Laundering contrary to Section 7 of the Prohibition and Prevention of Money Laundering, Act No. 14 of 2001 of the Laws of Zambia, alleged that in count 21 Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with Naomi Gladys Musopelo Chawinga and other persons unknown, did engage directly or indirectly in business I I I I I I I I JlO transactions that involve K6,840,547,636.00 money acquired from an illegal activity whereby the said money was concealed or disguised through Algonquin account Number 0070844009 and used part of it to purchase a motor vehicle, namely Mercedes Benz C200 (CLS 500) Reg. No. BHL 1, property acquired from an illegal activity or proceeds of crime. 1.15 The particulars of offence in count 22 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00 money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Mitsubishi Challenger Reg. No. ABL 6832, property acquired from an illegal activity or proceeds of crime. 1.16 The particulars of offence in count 23 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 3pt December, 2008 at Lusaka in the Lusaka District of the Lusaka I I I I I Jll Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00 money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Toyota Lexus Reg. No. ABL 2336, property acquired from an illegal activity or proceeds of crime. 1.17 The particulars of offence in count 24 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between p t October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00 money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Toyota Lexus Motor Vehicle Registration Number ABG 7400 and/or Toyota Lexus Motor Vehicle Registration Number ABL 2336, property acquired from an illegal activity or proceeds of crime. I I I I J12 1.18 The particulars of offence in count 25 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00 money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Toyota Sprinter Reg. No. ABK 3222, property acquired from an illegal activity or proceeds of crime. 1.19 The particulars of offence in count 26 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00 money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Mazda Drifter J13 (BR804316) Metallic Silver, property acquired from an illegal activity or proceeds of crime. 1.20 The particulars of offence in count 27 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Diahatsu Truck (White) Reg. No. ABM 406, property acquired from an illegal activity or proceeds of crime. 1.21 The particulars of offence in count 28 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between ist October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed I I I I I Jl4 or disguised by purchasing a motor vehicle, namely Nissan Truck UDI 95 Reg . No. ABM 8764, property acquired from an illegal activity or proceeds of crime. 1.22 The particulars of offence in count 29 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 3pt December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Toyota Hiace Reg. No. ABP 9276, property acquired from an illegal activity or proceeds of crime. 1.23 The particulars of offence in count 30 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between p t October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired I I I I I I I JlS from an illegal activity whereby part of the said money was concealed or disguised by acquiring property namely Stand Number 7791 situated in Woodlands Extension, Lusaka, property acquired from an illegal activity or proceeds of crime. 1.24 The particulars of offence in count 31 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by acquiring property namely Stand Number 3775 situated in Olympia, Lusaka, property acquired from an illegal activity or proceeds of crime. 1.25 The particulars of offence in count 32 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in I I I I J16 business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by acquiring property namely Stand Number 13949 situated in Roma Township, Lusaka, property acquired from an illegal activity or proceeds of crime. 1.26 The particulars of offence in count 33 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by acquiring property namely Subdivision B of Property Number L/3325/ M situated in Ibex Hill, Lusaka, property developed using funds from an illegal activity or proceeds of crime. 1.27 The particulars of offence in count 45 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together I I I I I I I I I J17 with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby the said money was concealed or disguised by acquiring property namely Subdivision B of Property Number L/ 3325/ M situated in Ibex Hill, Lusaka, property developed using funds from an illegal activity or proceeds of crime. 1.28 The particulars of offence in count 46 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between p t October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by depositing it into Kahekam Limited Kwacha Account Number 0064136140010 held at Finance Bank Zambia Limited Longacres Branch, property acquired from an illegal activity or proceeds of crime. 1.29 The particulars of offence in count 47 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and I J18 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by depositing it into Kahekam United States Dollars Account Number 0064136140021 held at Finance Bank Zambia Limited Longacres Branch, property acquired from an illegal activity or proceeds of crime. 1.30 The particulars of offence in count 48 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by depositing it into Hesaka Enterprises Account Number 00600811133019 held at Finance Bank Zambia Limited Longacres Branch, property acquired from an illegal activity or proceeds of crime. J19 1.31 The particulars of offence in count 49 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636 .00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by depositing it into Best Home Lodge Limited Account Number 006417357002 held at Finance Bank Zambia Limited Longacres Branch, property acquired from an illegal activity or proceeds of crime. 1.32 The particulars of offence in count 50 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by making payments to Total Zambia Limited I I I , I I I I J20 for purchase of petroleum products and lubricants for running Kabulonga Total Filling Station situated at On the Run in Kabulonga pursuant to the Marketing License Agreement that you entered into with Total Zambia Limited on 13th March 2008, property acquired from an illegal activity or proceeds of crime. 1.33 The particulars of offence in count 51 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing building materials from Handyman's Paradise Limited, property acquired from an illegal activity or proceeds of crime. 1.34 The particulars of offence in count 52 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together J21 with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Mazda Drifter Motor Vehicle Registration Number ABM 3234, property acquired from an illegal activity or proceeds of crime. 1.35 The particulars of offence in count 53 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Toyota Land Cruiser Motor Vehicle Registration Number ABM 9655, property acquired from an illegal activity or proceeds of crime. 1.36 The particulars of offence in count 54 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka I I I J22 Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely Toyota Land Cruiser Motor Vehicle Registration Number ABR 3536, property acquired from an illegal activity or proceeds of crime. 1.37 The particulars offence in count 55 alleged that Henry Mulenga Ngosa I I I I Kapoko, on dates unknown but between ist October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely BMW XS 2006 Model Motor Vehicle Registration Number ABR 36, property acquired from an illegal activity or proceeds of crime. 1.38 The particulars of offence in count 56 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and I I I 31st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involved K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by purchasing a motor vehicle, namely an Unregistered Mercedes Benz CLS 500 2007 Model bearing Chassis Number WDD2193752A060669 and Engine Number 11396730727771 Metallic Silver in colour, property acquired from an illegal activity or proceeds of crime. 1.39 The particulars of offence in count 57 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 3pt December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by developing a property namely Stand Number 13949 I I I I J24 situated in Roma Township, Lusaka, property developed using funds from an illegal activity or proceeds of crime. 1.40 The particulars of offence in count 58 alleged that Henry Mulenga Ngosa Kapoko, on dates unknown but between 1st October, 2007 and 31 st December, 2008 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did engage directly or indirectly in business transactions that involve K6,840,547,636.00, money acquired from an illegal activity whereby part of the said money was concealed or disguised by developing a property namely Property Number 13947 situated in Roma Township, Lusaka, trading as Best Home Lodge, property developed using money from an illegal activity or proceeds of crime. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was secured by the evidence of 56 prosecution witnesses. PW1 was Gloria Ngoma a procurement specialist from Zambia Public Procurement Authority (hereinafter referred to as "ZPPA"). In her evidence, she started by giving a detailed account of the procurement procedure. J25 2.2 The gist of her evidence in this matter was that on 23rd June 2009 she was approached by officers from Zambia Police and the Anti-Corruption Commission. They went there to seek her professional advice on procurement procedures pertaining to 17 documents together with attachments that they had in their possession from the Ministry of Health. 2.3 She explained that the documents involved cash payments relating to workshops for secretaries, office orderlies and messengers with payment vouchers ranging from K200,000.00 to K900,000.00 (rebased). All the procurements pertained to the Ministry of Health. 2.4 According to her the various trainings or workshops which were provided in 2008 fell under the category called services. Thus, they ought to have followed the procurement procedures set down in the Zambia National Tender Board (ZNTB) Act Cap 394 of the Laws of Zambia because all the procurements exceeded KS0,000.00 (rebased). That the said procurements further required to be approved or authorised by the procurement committee because they exceeded the set threshold. I I I I I I I J26 2.5 Additionally, she observed that they had no requests from the user department, input from the procurement unit or authority from the procurement committee. She further did not see the contract or the I local purchase order (LPO) for the said procurements. In addition, she did not see any documents to prove that the services were actually undertaken. 2.6 She additionally said that under the Ministerial Tender Committee (hereinafter referred to as "MTC") a record of every meeting must be kept and submitted to ZPPA as well by procurement committees. 2.7 After carrying out her investigations, she discovered that the minutes for the procurements listed on the documents were not in their registry and so she concluded that they did not submit them to ZNTB. It was further discovered that there was a period when the Ministry of Health had stopped submitting minutes to ZPPA. 2.8 She further said that under certain instances the ZNTB Act allowed procurements beyond the threshold of KS0,000.00 (rebased) to proceed via a special formal tender. However, it was obligatory for the procurement unit to justify this course of action. I I ' J27 2.9 When cross-examined in relation to the appellant, she said that she did not write to the Ministry of Health but only spoke to the Permanent Secretary at the time. She agreed that she did not have evidence to illustrate that training or workshops at the Ministry of Health should have passed through the MTC. In spite of that, she asserted that all procurements were subject to the ZPPA Act. 2.10 When referred to documents dated 24th April 2009 relating to payments of fees for undergraduate and postgraduate students in the sum of K540,000.00 (rebased) and K832,000.00 (rebased), she was of the considered view that with those amounts, this procurement ought to have passed through the MTC. According to her, she could not figure out if they did so or who authorised the payments. 2.11 When shown a document dated 25th April 2007 containing the sum of K285,284.00 (rebased) from Inter Health Technology Limited, she said that she could not figure out what it was all about. 2.12 In relation to a document dated 2nd May 2007 also from Inter Health Technology Limited containing the sum of Kl,300,000.00 (rebased) pertaining to the evacuation of patients, she explained that such I I I I I I I I I I procurements were not subject to approval by the MTC because they are urgent. 2.13 Furthermore, concerning a letter dated 14th April 2008 from Algonquin Management Consultants, addressed to the Permanent Secretary for Ministry of Health pertaining to workshops, her observation was that there had been a workshop for a period of two weeks in March. It was her evidence that the Director of Human Resources was recommending that the said consultants coordinate another workshop for secretaries, office orderlies and cleaners. In her view, she did not recognize this as a need. 2.14 Additionally, she noted that Algonquin Management Consultants had suggested course contents for the workshops. However, her position was that the said content could not be regarded as specifications under the ZPPA Act. She added that as a rule, it is the user department that has been given the task to generate specifications to address the identified needs. She further asserted that the Ministry of Health was obligated to comply with the ZNTB Act. 2.15 PW2 was Friday Mumba and he was a Senior Procurement Officer at the Ministry of Health at that time. His relevance to this case was that I I I I I I I I I I J29 he was the secretary to the Ministerial Tender Committee at the material time. His evidence on the some of the documents pertaining to the procurement process at the Ministry of Health was to a very large extent similar to that of PW1. 2.16 His evidence was that on 20th July 2009, he was approached by officers from the Anti-Corruption Commission who questioned him about seven payment vouchers and minutes that they had. In answering their queries, he substantiated the evidence of PW1 that the payment vouchers were not supported by the requisite documents and the procurement procedure was not followed. 2.17 He further elaborated that the absence of supporting documents meant that the payments did not go through MTC for approval as required because they all were above KS0,000.00 (rebased). He also said that the procurements, which exceeded the threshold of KS00,000.00 (rebased), ought to have been subjected to the open tendering process. It was further his evidence that in the minutes the issues concerning the payments and Algonquin Management Consultants did not arise at any point. I I I I I J30 2.18 He added that he attended other meetings in 2007 and 2008 in which the issue of Algonquin Management Consultants did not come up. That even in the 8th and 13th meetings that he did not attend he saw the various agendas and the said company was not a subject of discussion. He however did not have copies of the minutes for those meeting to buttress his evidence. 2.19 Under cross -examination he maintained that he was the secretary to the MTC between 2007 and 2008. He agreed that the Anti-Corruption Commission had warned and cautioned him over the purchase of conference facilities and accommodation at Best Home Lodge and had confiscated title deeds to his house. He however denied that he was a suspect witness. 2.20 With regard to the various minutes for the MTC meetings he said that he was not aware how they were obtained by the ACC. When cross examined on the responsibilities of the Human Resource Development Officer pursuant to Cabinet Handbook on Procedures and Guidelines for Human Resource Development in the Public Service, he said that the officers were responsible for preparing programs and developing the training policy. I I I I I J31 2.21 When cross-examined on the letter from Algonquin, he noted that the company was seeking business from Ministry of Health and that at that time the appellant was Chief Human Resource Development Officer. That he was however not a member of the MTC. He further said that he could not interpret the instruction to make logical arrangements to mean procure. 2.22 He additionally said that from the documents on record, he did not see letters from the Director of Human Resource and Administration addressed to the Permanent Secretary, asking for authority to procure. He said that he could not confirm whether or not the procurements in question were authorised because they did not pass through the MTC. 2.23 PW3 was Mr. Louis Mwase a Senior Procurement Officer at Ministry of Health. His evidence was similar to that of PW2 regarding the agenda of the 8th MTC meeting in 2008. He was aware of this information because he had acted as secretary to the MTC when PW2 was unavailable. He however could not produce the minutes for that meeting because his laptop had crashed thereafter. 2.24 Charity Miti Longwe a Purchasing and Supplies Assistant at the Ministry of Health was PW4. Her evidence was that she was tasked by PW2 to I I I J32 be Secretary to the MTC for the 13th meeting because he was unavailable. She also repeated the evidence of PW2 that Algonquin Management Consultants was not on the agenda and was not discussed at any point in that meeting. She however did not have a copy of the minutes because her laptop developed a fault after that. 2.25 Under cross-examination, she said that from the time that she was employed under Ministry of Health she had never come across any minutes in which training had been discussed by the MTC. She reiterated that her laptop developed a fault after the meeting. 2.26 Muka Mudubeko the Assistant Manager - Tellers and Staff Ledgers at Bank of Zambia testified as PWS. His evidence was to the effect that on 23 rd July, he had a meeting with officers from ACC pertaining to a transaction that took place on 5th June 2008 a sum of K928,246,600.00 (unrebased) which was transferred from the Ministry of Health account into the Ministry of Health mirror account held at First Alliance Bank. 2.27 He noted that the letter containing the instructions and the backing sheets were signed by the authorised signatories as indicated in the mandate file. He explained that a mandate file is a document which informs the bank the people that have been duly appointed as bank I I I I I I J33 signatories by the ministry ln a particular financial year. (Based on that document the appellant was not a bank signatory and thus he could not have issued the instructions pertaining to this transaction) . 2.28 It was his evidence that from the backing sheet one of the beneficiaries was Algonquin Management Consultants to whom sums of K216,268.00 (rebased) and K629,029.80 (rebased). 2.29 When cross-examined he maintained that from all the documents the transaction abovementioned was genuine. 2.30 James Nkhondowe, the Operations Manager at First Alliance Bank gave evidence as PW6. The gist of his evidence was that on 22nd May 2009, he gave officers from the Anti-Corruption Commission a bank statement relating to the Ministry of Health Mirror Account for the period between pt June 2008 and 31st August 2008. He additionally gave them files and copies of some Electronic Funds Transfer Advice (EFTAs), which were payable to Algonquin Management Consultants. He also gave them a cheque that was payable to the same company in the sum of K16,000.00 (rebased). 2.31 It was his further testimony that on 5th June 2008, they paid the sums of K216,268 .00 (rebased) and K628,028 .00 (rebased) made to their I I I I I I J34 account held at First Alliance Bank Kamwala Branch, upon satisfaction that the instructions were genuinely issued based on the mandate file. (Equally, for this transaction the appellant was not one of the signatories). 2.32 Hilda Chitema, a Banker at First Alliance Bank Lusaka Main Branch was PW7. The gist of her testimony was that on 15th January 2019, she was interviewed by an officer from ACC regarding the documents and transactions aforementioned by PW6. She gave a narration regarding the same, which was similar to that of PW6. 2.33 Paul Mwila, a Banker at Inda-Zambia Bank Lusaka Main Branch testified as PW8. His evidence was to the effect that on 11th May 2009, he was approached by two officers from ACC who requested bank statements for the period January 2007 to May 2009. This was in relation to an account held by the Ministry of Health. He told the trial court that what was of interest to them was a transaction in which funds were transferred from the said Ministry of Health account to Algonquin Management Consultants Account situated at the Finance Bank Kamwala Branch. I I I I J35 2.34 After a while, following a request from the said officers PWS gave them original copies of the numerous documents relating to that transaction. 2.35 When cross-examined with regard to the Appellant he said that he did not know the person who took the documents to the bank as he was in Kitwe at the time that the transaction was made. 2.36 He, however, agreed that the sums of KS0,500.00 (rebased) and K577,788.80 (rebased) were paid to Algonquin Management Consultants and not the appellant. He confirmed that the payments related to food, tuition fees and accommodation for participants at a seminar. 2.37 Additionally, he averred that several other payments had been made to Algonquin Management Consultants. It was his opinion that the bank processed the payments because it was satisfied with the documents that were presented to it. 2.38 PW9 was Martin Kunda, the Branch Manager at Inda-Zambia Bank Chawama Branch. He testified that he was interviewed by certain officers over some payments that were made by the bank sometime in 2009. He recounted that of particular interest were payments that were made from the Ministry of Health Basket Account to Algonquin I I I I I I J36 Management Consultants after receipt of instructions from the duly authorised signatories. 2.39 That on 13th December 2007 and 7th February 2008, Algonquin Management Consultants was paid the sums of K80,000.00 and K577,785.80 (rebased) respectively, to their account held at First Alliance Bank Kamwala Branch. It was his evidence that prior to processing those payments, the bank asked Ministry of Health to issue written instructions because at that time cheque transactions could not exceed Kl00,000.00 (rebased). He added that on 28th November 2007, Ministry of Health gave them the written instructions as requested which were signed by signatories authorised to do so. 2.40 That following further instructions they paid Algonquin Management Consultants the sums of K886,317.50 (rebased) on 9th April 2008 and K732,350.00 (rebased) on 2nd May 2008. He also said that the documents received by the bank proved the validity of the payments that were made to the above said beneficiary. 2.41 It was additionally his evidence that on 25th July 2008, they were further instructed by the authorised signatories, to transfer from the I I I I I I I I I I I I I I I I I I I J37 basket account to Algonquin Management Consultants the sum of K947,724.00 (rebased). That following an additional instruction, they transferred to the same beneficiary the sum of K497,550.00 (rebased) on 2nd September 2008. Furthermore, on 14th October 2008 and 17th November 2008, they transferred the sums of K618,680 .00 (rebased) and K592,925.15 (rebased) respectively. 2.42 In cross-examination, he said that the bank honoured the instructions based on the mandate file from Ministry of Health. It was thus his opinion that the transactions could not be categorised as theft. According to him, the signatures were authentic and they did not receive any report or complaint of forgery. 2.43 PWl0 was Judith Nakazwe Mwaba the Branch Administrator at First National Bank. Her evidence in relation to this case was that, whilst she was working as Branch Manager at Finance Bank, she was approached sometime in November 2007, by one of the Directors of Algonquin Management Consultants. 2.44 That the said Director requested that her account which had been closed due to her failure to pay bank charges be re-activated. It was PW10's evidence that the Director told her that she was in a position 13 8 to pay the charges because she had been awarded a contract by Ministry of Health to manage its workshops. Subsequently, PW10 gave instructions that the Director's account be opened and it was opened in under the name of Algonquin Management Consultants. Soon thereafter credited with the sum of about K432,000.00 (rebased). According to PW10, all the transactions which were made to that account were treated as suspicious and the incident was reported to the person who handled such matters. That at some point the Director withdrew large sums of money in cash on the basis that she was making payments for the workshop. She was not cross-examined. 2.45 PW11 was Eness Mwape Nsefu, the Branch Manager at Finance Bank Kamwala Branch. She testified that sometime in 2007, she was served with a search warrant by anti-money laundering officers. The officers wanted bank statements for the period between 1st January 2007 and May 2009, for the account held by Algonquin Management Consultants. With regard to this account, she gave evidence which was similar to that of PW10 to the effect that after the account was re opened the transactions therein were suspicious. She added that most of the payments were from the Ministry of Health. I I I I I I I I I I I I I I I I I J39 2.46 When cross-examined in relation to the appellant she said that despite being suspicious she did not have proof of money laundering. 2.47 PW12 was Nathan Kalunga Mwewa an Assistant Accountant at the Ministry of Health. His evidence was that on 14th February 2008 he received five payment vouchers from the appellant who also requested him to prepare cheques and EFTAs for transfer of funds. After PW12 noted that the documents had been audited, he proceeded to prepare the documents as instructed together with backing sheets. It was his evidence that at that time the appellant was working for the Ministry of Local Government and Housing. 2.48 It was additionally his evidence that the vouchers that he received from the appellant related to imprest for training and the money was supposed to be paid out to institutions. After a while, the appellant gave him a call to inform him that the documents he had worked on were ready and that they should meet at the bank. 2.49 That from the documents, Algonquin Management Consultants was one of the payees in the sum of K595,925.15 (rebased). 2.50 When cross-examined in relation to the appellant he said that he did not know the exact date when the appellant left Ministry of Health and J40 officially handed over the office. He further did not know what his substantive position was at the Ministry of Health. He only knew that the appellant was in charge of training and that he was not one of the signatories. 2.51 He additionally was not aware if the appellant was part of the Ministerial Tender Committee and attended their meetings. When cross-examined with regard to the documents, he said that that they were checked, authorised and passed for payment by various accounting officers. He said additionally that it was not illegal for the appellant to take documents to him so that he could work on them. 2.52 Under re-examination, he maintained that at the time when the appellant gave him documents to work on, the appellant was no longer with the Ministry of Health. He also reiterated that he only saw the said documents after they had been audited. 2.53 Dastan Mwansa testified as PW13. His evidence was that he worked as a cashier at the Ministry of Health sometime in 2008. He narrated that he was interviewed by officers from the Anti-Corruption Commission regarding two payment vouchers, two EFTAs and two I I I I I I I I I J41 backing sheets. That one of the payments had an attachment which was a commitment requisition and it was signed by the appellant. 2.54 It was his evidence that the appellant took to him some of the documents so that he could process them for payment. He recalled that one of the documents had the words mirror account written on it. He testified further that when the appellant took the documents, he waited for them because the matter was urgent. He said that despite complaining about the appellant's standing by to wait for the documents, the appellant continued to wait for the documents until PW13 passed them for payment. 2.55 Thereafter, the documents were returned to PW13 and the account name was changed from mirror account to expanded basket account. After seeing the changes PW13 made an enquiry and was advised that they proceed to pay from the expanded basket account because it had not been cancelled out on the documents. 2.56 Additionally, when examining some of the records before the court he explained that there was a time when he received instructions to take a backing sheet to the Bank of Zambia for submission because one of the payees thereon was an employee of the Ministry of Health. I I I I I I I I I I I I J42 2.57 That he later received a call from the appellant who told him that he had the backing sheet so he took it to PW13 who was already in a queue at the Bank of Zambia . Thereafter the documents were taken to First Alliance Bank. 2.58 On the same day, PW13 received a cheque from the appellant which was issued in his name and he was informed that the cheque was relating to payments for a workshop for accounts and auditors. That one of the coordinators listed to be paid was the appellant. After making payments to the participants, the workshop was supposed to be conducted immediately by the appellant. However, according to PW13, the workshop was not conducted until he subsequently left the Ministry of Health. 2.59 It was additionally his evidence that it was the appellant who had applied for the imprest that he had cashed. According to him, he did not see the file on which the said application was made. That at the time when he cashed the money and handed it over to the appellant, the appellant had already moved to the Ministry of Local Government and Housing. I I I I I I I I I I I I I I I I I I J43 2.60 When cross-examined in relation to the appellant he said that the sum total of the money which he paid out did not appear on any indictment. He further said that he did not see anything wrong with the payment vouchers and that was why he proceeded to pass them for payment. 2.61 He additionally stated that the sum of K732,350.00 (rebased) which is recorded under count 9 was passed by him for payment for purposes of a workshop. He said that it was not irregular that the appellant took the payment vouchers to him because other officers used to do it. He added that he proceeded to pass the documents because everything was satisfactory. 2.62 Vincent Machila the Chief Investigations Officer at the Anti-Corruption Commission (ACC) testified as was PW14. His testimony was that on 23rd February, 2009 ACC received a complaint that the appellant possessed property which was disproportionate to both his past and present emoluments. That the allegation was that he acquired it via corruption, fraud and theft. 2.63 After receiving the said complaint PWl 4 instituted investigations in which they initially conducted a search at the appellant's home in Woodlands. During that search, they found various documents in the J44 appellant's bedroom which were tendered into court as evidence. It was additionally his evidence that during the search, the appellant stole a cheque which they had found and tore it into pieces which he hid in the meal bin and behind the stove. That it was a Finance Bank cheque, undated and written in favour of Gladys Chawinga drawn on Algonquin Management Consultants. They also seized the numerous motor vehicles which belonged to the appellant. 2.64 Under cross-examination, he said that they seized the appellant's properties following allegations that they were disproportionate to his past and present official emoluments. It was alleged that they were acquired by means of money laundering at the Ministry of Health, fraud and corruption. Through his investigations, he concluded that the appellant and his colleagues stole money from the Ministry of Health through Algonquin Management Consultants. 2.65 With regards to counts 1, 2, 3, 5 and 6, he said that although money was purportedly paid out for training, his investigations revealed that the said money was stolen. In relation to counts 7 and 8, he said that the money was siphoned from the Ministry of Health. I I I I I I I I I J45 2.66 Furthermore, he said that under counts 11, 12, 13, 14, 15, and 16, 17, 18, 19 and 20 there was no evidence which showed that the money listed in those counts ended up in the appellant's account. 2.67 Concerning the motor vehicles, he said that even though some of them were not registered in the appellant's name, his investigations revealed that the appellant was the benefactor. 2.68 Ngala Mateyo Wengo an Investigations Officer at ACC testified as PW15. He was part of the investigations team that was headed by PW14 at the appellant's home in Woodlands. This evidence was to a larger extent similar to that of PW14. 2.69 PW16 was Mary Mabumbazi and her evidence was that sometime in 2004 she was approached by her niece Naomi Chawinga who asked her if she could be included as a signatory to a company that she intended to incorporate. PW16 agreed and they later went to Finance Bank to complete that process. 2.70 She testified that after a few months, Mrs. Chawinga took some cheques to her for signing. She noted that the cheques were blank. Later Mrs Chawinga invited her to attend a workshop at Suwilanji Gardens for two days. Afterwards, Mrs. Chawinga relieved her of her I I I I I I I I I I I J46 duties as a signatory and this ended her involvement with Algonquin Management Consultants. 2. 71 PWl 7 was one of the investigation officers who conducted a search at the appellant's home in Woodlands. His evidence was a recount of the evidence of PW14 and PW15. 2.72 Masuzyo Khuma Chawinga testified as PW18. He was formerly one of the accused persons in the trial court and his evidence was that his mother incorporated a company called Algonquin Management Consultants and he was offered a position as a director and shareholder. 2. 73 After the said incorporation they were contracted to conduct a workshop, but he could not recall the name of the particular Ministry. It was his evidence that he attended a number of workshops sponsored by the Ministry of Health in 2008 and that they were held at Cross Roads and Suwilanji Gardens. He added that one of the workshops was conducted in Siavonga but he was not in attendance. He said that the workshops were conducted for drivers, office orderlies and cleaners. J47 2.74 He furthermore said that he was one of the signatories to the Algonquin Management Consultants account and that he would sign blank cheques. It was his further evidence that he used to cash the cheques which were issued in his name and give the money to his mother. 2. 75 Under cross-examination, he said that Algonquin Management Consultants organized workshops which were paid for by the Ministry of Health and the workshops were in fact conducted. 2.76 Naomi Gladys Musopela Chawinga testified as PW19. She was formerly charged and arrested in connection with these offences and her evidence was that after incorporating Algonquin Management Consultants, she wrote several letters to the Ministry of Health and many other institutions soliciting for businesses to organize workshops for the training of secretaries, office orderlies, top management staff, middle management staff, auditors and accountants. 2. 77 It was her further testimony that sometime in 2007 she received a call from the appellant who told her that her request for a workshop for auditors and accountants had been approved by the Ministry of Health. He therefore requested her bank details so that a bank transfer could I I I I I J48 be done and she gladly provided the details. Additionally, she recounted that the appellant later on informed her that her bank account had been closed and so when she went to the bank she was inter a/ia advised to deposit a minimum of the sum of K400.00 (rebased). 2. 78 It was her evidence that she informed the appellant that she did not have money and the appellant lent her a sum of KS00.00 (rebased). PW19 then carried out the entire process of having her account re opened whilst in the company of the appellant. 2.79 In the first week of December 2007, the appellant phoned to inform her that money had been transferred into the account for Algonquin Management Consultants. He additionally told her that the workshop would be held the following day thus they had to go to the bank on that same day to cash the money. 2.80 When they went to the bank the appellant advised her to withdraw a sum of K250,000.00 (rebased) . However, as there was no letter from the Ministry of Health indicating that they were conducting a workshop the bank refused to honour her instruction to withdraw the money. I I I I I I J49 PW19 informed the appellant about it and the appellant went to the Ministry of Health to get the letter that the bank had requested. 2.81 After PW19 presented the letter to the bank, she was then allowed to withdraw a sum of K250,000.00 (rebased). Thereafter, the appellant informed PW19 that he had just received instructions from the Permanent Secretary to the Ministry of Health to get the money from PW19 so that the money could be used for other purposes. She then asked the appellant to sign somewhere in order to evidence his receipt of the money, the appellant told her that he was unable to do that because he was in a hurry. 2.82 It was also her evidence that the appellant later called her to inform her that the permanent secretary wanted the remainder of the money. Consequently, PW19 withdrew a sum of Kl00,000.00 (rebased) and handed it over to the appellant, who did not sign anywhere to acknowledge receipt of the money. 2.83 She further testified that during the same month, Algonquin Management Consultants received a sum of K577,585.80 (rebased) and the appellant again informed her that the Permanent Secretary wanted the money so that he could use it for other works. She I I I I I I I JSO expressed her displeasure of not being able to conduct both workshops after incurring costs in preparation for the same. It was her evidence that the appellant assured her that she would conduct a workshop soon. After that, she withdrew and gave all the money to the appellant. 2.84 PW19 further told the court that sometime in February 2008, the appellant informed her to send someone to collect a cheque in the sum of K80,000.00 (rebased) for a workshop for drivers. She organized and conducted a workshop for a total of 77 participants from the Ministry of Health at Cross Roads in Olympia Extension. 2.85 In addition, she told the trial court that while she was organizing the named workshop, the appellant called to inform her that a sum of K947,224.20 (rebased) had been transferred to the Algonquin Management Consultants account for an auditing and accounting workshop. I 2.86 It was her further testimony that on 13th March 2008, the appellant phoned her and requested that they meet at the Finance Bank Kamwala Branch. When they met, the appellant told her that he had been instructed by the Permanent Secretary to retrieve the money I I I I I I JSl from her so that it could be used for ifinsonso at the Ministry of Health. She withdrew a sum of K200,000.00 (rebased) and gave it to the appellant. The following day the appellant called her again and requested that they meet at the bank where she withdrew a sum of K200,000.00 (rebased) and gave it to him. A week later the appellant phoned to tell her that he needed more money in order to finish the work and she gave him a sum of K250,000.00 (rebased). She added that the appellant did not sign anywhere on all those occasions. 2.87 Additionally, it was her evidence that on 9th April 2008, the appellant gave her a call and informed her that the Ministry of Health had transferred a sum of K886,317.50 (rebased) into the Algonquin Management Consultants Account. The following day she met the appellant at the Finance Bank and he told her that he had not finished working on the assignment he had been given and so the Permanent Secretary was on his neck. Thus, PW19 withdrew a sum of K200,000.00 (rebased) on 11th and 12th April 2008 and gave it to the appellant. She further told the court that the following week, she withdrew and gave him the same amount of money. He however did not sign to acknowledge receipt of the money. I I I I I J52 2.88 She further told the court that on 2nd May 2008, the appellant phoned to inform her that a sum of K732,350.00 (rebased) had been transferred to the Algonquin Management Consultants account. The following day on a Saturday she went to the bank and was only allowed to withdraw a sum of Kl00,000 .00 (rebased) which she gave to the appellant. The following week she withdrew the balance of that money in various amounts and gave it to the appellant. 2.89 Furthermore, she testified that on 5th June 2008, she received another call from the appellant who told her that she was going to conduct a workshop for Office Assistants the following day at Suwilanji Gardens and that in July she would conduct another workshop for Secretaries at Manchichi Bay in Siavonga. The appellant further informed her that the Ministry of Health had transferred sums of K216,268.00 (rebased) and K629,029.80 (rebased) into the Algonquin Management Consultants account via two cheques for the respective workshops. It was her evidence that the following day whilst the workshop was going on, she went to the bank and withdrew a sum of K200,000 .00 (rebased) from the above mentioned sum of K632,029.80 (rebased) and gave it to the appellant. On the same day in the afternoon she J53 withdrew a sum of KlS0,000.00 (rebased) and gave it to the appellant so that he could pay the participants their allowances. She subsequently gave him more money and only remained with the money which was meant to be paid to Algonquin Management Consultants. 2. 90 According to her the workshops at Suwilanji Gardens were held in two segments. Thereafter, on 28th July 2008 the appellant phoned to inform her that the Ministry of Health had transferred a sum of K947,000.00 (rebased) and that the said money was inclusive of allowances. The appellant instructed her to give him a sum of K800,000 .00 (rebased) so that the balance could be used to conduct the workshop for Office Assistants. She told the trial court that the appellant also informed her that he had been transferred to the Ministry of Local Government and Housing. PW19 did as she was instructed and gave that amount to the appellant. 2.91 PW19 additionally explained that on 2nd September 2008, the appellant called her and advised her to write a letter to the Ministry of Health to solicit for Workshops for Accounts and Auditing Department. She testified that he further advised her to put dates for September, I I I I October and November and give the letters to him. A~er giving him the letter the appellant informed her that the Ministry of Health had transferred a sum K497,550.00 (rebased) to the Algonquin Management Consultants account for the Accounts and Auditing Workshop. The following day she met the appellant at the bank and gave him a sum of K200,000.00 (rebased). Later on, she gave him another sum of K197,000.00 (rebased). 2.92 She additionally said that on 14th October 2008, the appellant called her and told her that the Ministry of Health had transferred a sum of K618,068.80 (rebased) to the Algonquin Management Consultants account. The appellant accompanied her to the bank and she gave him a sum of K400,000.00 (rebased) from the said amount so that he could use it to complete works relating to the ifinsonso. 2. 93 She averred that on 18th November 2008, she received a call from the appellant who informed her that the Ministry of Health had transferred a sum of K592,925.15 (rebased) to the Algonquin Management Consultants account. From that amount, she withdrew a sum of K350,000 .00 (rebased) and gave it to the appellant. Subsequently, she withdrew different amounts and gave the entire money to the I I I I I I I I I I I I I I I JSS appellant. According to her, she became discouraged because of the failed workshops and became reluctant to deal with the appellant. Consequently, sometime in June and July 2008, she gave the appellant a sum of K200,000.00 (rebased) on two different dates. 2. 94 She further told the trial court that sometime in November 2008 she received a call from Zambia Police and ACC who summoned her for an interview regarding the payments mentioned above. 2.95 Under cross-examination, she said that Algonquin Management Consultants conducted business with the Ministry of Health between 2002 and 2007 when her elder sister was employed there as a Chief Human Resource Officer. She told the court that she did not enter into a contract with the Ministry of Health but only wrote letters requesting business. She said that it was often the appellant who informed her when her applications were successful. 2.96 With regard to her elder sister mentioned above, she agreed that she was one of the consultants for Algonquin Management Consultants at a workshop for the Ministry of Health. She further agreed that there was nothing ominous about the appellant calling her as he was merely doing his job. I I I I I J56 2. 97 In relation to counts 1, 2, 3 and 4 she stated that the period included the action plan for 2007 when her sister was in charge of training. She said that the Algonquin Management Consultants conducted 3 workshops and the groups were split because the workshops were conducted over the weekend. 2.98 Additionally, she averred that the company did not conduct any workshops for Accounts and Auditing in 2008. They only trained Drivers, Office Orderlies, Cleaners and Secretaries. She reiterated that shortly after depositing the sum of K400 .00 (rebased) from the appellant to enable her to re-open her account, she received a sum of K432,022.336 (rebased) and subsequently withdrew large sums of money. She maintained that it was the appellant who provided the letter indicating that Algonquin Management Consultants was conducting a workshop sponsored by the Ministry of Health. 2. 99 She conceded that she never complained to any of the appellant's bosses that the workshops were cancelled. With regard to the withdrawals made by her children, her evidence was that they gave the money to her and she handed it over to the appellant. It was also her evidence that in the process of the transaction which occurred on J57 31 st December, 2007 the appellant told her to use some of the money in the Algonquin Management Consultants account for her family's shopping because more money would be deposited. 2.l00Mirriam Mbumba, PW19's granddaughter gave evidence as PW20. The gist of her evidence was that she escorted PWl 9 when she went to Matero to give money to an officer from Ministry of Health. She did not know how much the money was but could only recall that it was in a bag and she could not identify the recipient of the money. 2.101 Under cross-examination, she said that she did not know the contents of the bag and maintained that she could not identify the person who received the bag. She said that all she was told was that there was money in the bag. 2.102PW21 was Gabriel Chulu a Security Guard deployed at Finance Bank Kamwala Branch. The gist of his evidence was that on an unknown date, he followed instructions to allow the car which came with PW19 into the bank premises as she had come to collect money. He did not see the driver of the motor vehicle. He was not cross-examined. 2.103Gift Longa Kawale, a senior accountant at the Ministry of Health at the material time testified as PW22. His evidence was that he was a I I I I I I I I I I I I I I I I J58 cashier at the Ministry of Health and was placed on forced leave due to certain investigations. He testified that he prepared numerous EFT As, cheques and backing sheets between the Ministry of Health and Algonquin Management Consultants. It was his evidence that the appellant brought to him payment vouchers together with some supporting documents. That the amount was in the sum of K618,068.00 (rebased), and K850.00 (rebased). After he finished working on the documents he gave them to the appellant so that he could take them for signing. He testified that the appellant returned two hours later with the documents after they were signed and he gave them back to PW22 who then took them to the bank. He also remembered processing a payment in the sum of K947,274.00 (rebased) which was paid on 25th July 2008, his evidence that the appellant gave him several other documents so that he could work on them. He recalled that at some point he gave the appellant a sum of K213,140.00 (rebased) as he was one of the facilitators for a workshop in Siavonga. 2.104As one of the holders of the receipt books for the Ministry of Health, he refuted the assertion that the Ministry of Health received money JS9 from Algonquin Management Consultants at any point between 1st January and 31st December 2008. He said that there were guidelines on how to retire imprest and he did not know who had retired imprest for the money which was cashed out in his name. 2.105In cross-examination, he revealed that he had been warned and cautioned by the ACC for the unretired imprest in the sum of K2.8 billion (rebased). Thus he was considered to be a suspect for allegedly not retiring that money. He said that the documents that he processed for payment had all the supporting documents and had endorsements which gave him authority to proceed. 2.106 PW23 was Leonard Nkole Kalinde, the Assistant Bank Secretary in charge of litigation at the Bank of Zambia. He testified that in October 2008 he purchased Plot No. 13949 in the Roma Extension at the price of K120,000.00 (rebased) from Rosemary Mwanje Kays Malama. Later on, he sold the said plot to the appellant at the value of K200,000.00 (rebased). A~er the appellant paid him an initial deposit of Kl00,000.00 (rebased) he proceeded to prepare a contract of sale and it was agreed that title of the property would be transferred to him I I I I I I I I I I J60 upon completion of payment. He told the court that at the time the plot was bare and only had a slab on it. 2.107It was his evidence that the sale was not completed because PW23 realised that the property was tainted with fraud as it had two title deeds in relation to it in the name of Rosemary Malama. He recounted that whilst he was pursuing that matter he discovered that the appellant had started developing the property. Under cross examination, he said that at the time when he was taken to view the plot, it only had a slab for a normal standard house. He said that the lady he bought the plot from told him that it belonged to her. He told the court that at the time when he was testifying he had not yet transferred title to the appellant because the issues surrounding the property had not yet been resolved. It was his view that the property did not belong to the appellant. 2.108Gracewell Mwale testified as PW24. He gave evidence that the appellant bought House No. 25 Manda Hill Road from him at the value of K900,000.00 (rebased) between April and May 2008. The appellant first paid him a deposit of Kl00,000.00 (rebased) and it was agreed that the balance would be paid instalments. Thereafter, the appellant I I I I I I I I I I I I I J6 1 on different dates transferred into his account at Stanbic Bank the sums of K300,000.00 (rebased) and K180,000.00 (rebased). He told the trial court that owing to a misunderstanding between him and his wife, his wife placed a caveat on the property. 2.109 He testified that in light of the said misunderstanding the appellant deposited a sum of K180,000 .00 (rebased) into his wife's ZANACO account and she removed the caveat. Thereafter, title of the property was transferred to the appellant. 2.110 He additionally narrated that he was arrested and released on bail in relation to this transaction. The appellant met him and his wife at their home and told them that if they are contacted by the ACC they should say that the appellant bought the property at K600,000.00 (rebased). In response, PW24 told the appellant that he would tell them the truth because the appellant did not give him reasons for saying anything to the contrary. 2.111 In cross-examination, he said that he was not the one who wrote the sum of KS00,000.00 (rebased) on the State's Consent to Assign. According to him at the time that he signed the document, it was blank. J62 He agreed having seen a Deed of Assignment but could not remember the amount that was indicated on it. 2.112He furthermore said that he did not bring any evidence to substantiate his claim that the appellant deposited money into his wife's account. He denied being in possession of any receipt or a document that the appellant had signed. He recapped that he transferred ownership of the property to the appellant after he finished paying the consideration of the property. 2.113 PW25 was Kondwani Mkandawire-Ngoma, the Acting Human Resource Development Officer at the Ministry of Health. Her testimony was that sometime in March 2008 she was in charge of the imprest for a workshop for Drivers which was held at Cross Roads. She said that the facilitators were from Algonquin Management Consultants and that a cheque in the sum of K67,000.00 (rebased) was issued in her name for logistics and the payment of the drivers who attended the workshop. 2.114It was her evidence that the workshop was held in two phases and the drivers signed a schedule after being paid. Thereafter, she was an imprest holder of the workshop which was conducted for Office I I I I I I I I J63 Orderlies in June 2008. Therefore, a cheque in the sum of K98,700.00 (rebased) was issued in her name and the workshop was held at Suwilanji Gardens. The facilitator of the workshop was Algonquin Management Consultants. She further testified that in the said money she paid out-of-pocket allowances and refunds for transport. The workshop was also held in two phases and she used the money for its logistics. After that, she proceeded to retire imprest. 2.llSAdditionally, she gave evidence that she was the imprest holder for the workshop which took place at Manchinchi Bay in Siavonga. A cheque in the sum of K44,000.00 (rebased) was issued in her name and she proceeded to pay 19 participants. It was her evidence that she was instructed by her boss Mr. Stanley Musonda to pay people who did not attend the workshop. After making other payments she retired imprest. She said that she never applied for the various imprest mentioned and was merely instructed to collect the cheques from the Accounts Office as they were issued in her name. The workshop was facilitated by Algonquin Management Consultants. 2.116Under cross-examination she said that she was aware of the Human Resource Development Committee and its composition. She added I I I I I I I J64 I that she was aware of the importance of the committee as it is responsible for the training of employees in the Ministry of Health. With regard to the Ministerial Tender Committee, she said that the said committee was in charge of procurement together with the Human Resource Development Committee. She maintained that she retired all the imprest in which she was a holder and also that the participants of workshops at Cross Roads and Suwilanji Gardens were divided into two groups. 2.117 In addition, she only recalled attending other workshops at Mumana, Garden House Hotel and Capital Hotel. She agreed having paid those who had not attended the workshop for sincere reasons. She said that despite not being charged for unretired imprest she was on forced leave from May 2009. 2.118PW26 was Benson Tembo the Mortgage Manager at Finance Building Society. He testified that sometime in 2005 the late Enock Kabwe was granted a loan in the sum of K184,000.00 (rebased) for the purchase of a house in Woodlands. Thereafter, the Finance Building Society registered a mortgage on the property. I I I I I J65 2.119 He narrated that in 2007 he received correspondence that Enock Kabwe was deceased from his joint administrators who also expressed interest in the property and undertook to settle the balance of K171,000.00 (rebased). Owing to the fact that Mrs. Kabwe was unable to remit the monthly instalments to liquidate the loan she informed him that she had found a buyer for the property so that she could fully settle the loan. She availed him with a copy of the contract of sale in which Mary Mwaba was the purchaser. The consideration of the property was in the sum of K310,000.00 (rebased). 2.120In February 2008 Stella Kabwe paid a sum of K41,000.00 (rebased) towards the liquidation of the loan and thereafter she made four various cash payments. Upon settlement of the outstanding amount the property was accordingly discharged and the title deeds were given to Stella Kabwe. 2.121 Under cross-examination in relation to the property in count 33 he said that the documents related to House No. 7791 Lusaka. He added that after the property was discharged Stella Kabwe sold the property to Mary Mwaba at the sum of K310,000.00 (rebased). I I I I I I I I I I J66 2.122 PW27 was Stella Kabwe and her evidence was that she knew the appellant through his Manager at Best Home Lodge when she was contracted to make curtains and beddings sometime in 2007. Around that time she was looking for a buyer for her late husband's property in Woodlands. In the process, Mary Mwamba Sampa expressed interest in the property and was shown the property. After that, she went to PW27's house in the company of the appellant and other people for negotiations. She informed them that the property was encumbered and the appellant offered to liquidate the outstanding balance in instalments. It was her evidence that the appellant paid her a sum of K139,000.00 (rebased) which he had in his possession and after that, they signed a contract of sale. A month later the appellant phoned her and they met in town where he gave her a sum of K40,000.00 (rebased) for the liquidation of the mortgage. After making a payment at Finance Building Society she gave the receipt to the appellant. After that, the appellant gave her a sum of K30,000.00 (rebased) and KS,000 .00 (rebased) respectively for the same purpose. She narrated that the appellant finally gave her a sum of K96,000.00 (rebased) and she settled the outstanding balance of the mortgage. I I I I I I I I I I I I I I I J67 Thereafter, the property was discharged and she was given the title deeds which she surrendered to the appellant. 2.123In cross-examination, she said that when she met Mary Mwamba she did not tell her that she was married and thus she assumed that the appellant was merely a part of her family. She denied knowing the source of the appellant's money and said that she assumed that he was a businessman. In relation to the fact that the appellant accompanied her to the Finance Building Society she said that he did so because he wanted to ensure that she paid the money to the institution. She stated that after she got the title deed she handed over all the documents to the appellant who told her that he would take care of everything else after that. 2.124PW28 was Kasamba Mwamba Mwale and her evidence was that her husband sold their house situate at Manda Hill Road Olympia Park to the appellant. She narrated that she was unhappy with the sale and other factors surrounding it, thus she placed a caveat on the property. As a result of that, the appellant deposited a total of K300,000.00 (rebased) into her account. After that, her husband also transferred a sum of K180,000.00 (rebased) into her account. J68 2.125She told the court that after being released from detention the appellant paid her a visit at her place of work and asked her to tell law enforcement officers that he purchased their property at a sum of K600,000.00 (rebased). 2.126Under cross-examination she said that she did not sign any contract of sale with the appellant and admitted that she did not produce any contract or caveat that she placed on the property. According to her evidence the house was sold at K900,000.00 (rebased) but she did not have any bank statement to buttress that assertion. She denied being present when her husband received the money from the appellant. 2.127PW29 was Francis Kabuswe Kabula a driver at the Ministry of Health under the Malaria Control Centre. His testimony was that he participated in a workshop for drivers that was sponsored by the Ministry of Health sometime in March 2008 at Cross Roads. He however did not know who facilitated the workshop. He added that he attended the workshop for two days and was paid an allowance of K280.00 (rebased). I I I I I I I I J69 2.128In cross-examination, he said that the Ministry of Health paid for his lodging and food at Cross Roads. He maintained that he was additionally paid an out-of-pocket allowance. 2.129 PW30 was Michael Saka la a Teller at First National Bank. Prior to that, he was employed as a Teller at Finance Bank Kamwala Branch. He gave evidence that Algonquin Management Consultants had a corporate account at the said Kamwala Branch which was operated by PW18 and PW19. 2.130The gist of his evidence was that sometime in October 2008, PW19 withdrew a huge amount of money and he was one of the people who helped her to carry it to a black posh car which was parked inside the premises of the bank. He identified a cheque before the tria l court in the sum of K400,000.00 (rebased) as the one which was issued on that day in the name of PW18. 2.131In cross-examination, he admitted knowing PW19 and that she told him that she intended to withdraw a sum of K400,000.00 (rebased). The cheque was issued in the name of Masuzyo Chawinga even though she was the one who presented it. He admitted that on that day she I I I I I I I I J70 did not mention having been accompanied by a person from the Ministry of Health. He denied having gone to the car. 2.132 He said that he was summoned by ACC to identify the said vehicle which was used to collect the money and that he managed to identify the vehicle which was similar to the one which was used to collect the money. 2.133 PW31 was Oliven Chiyezhye a Typist at the Ministry of Health. Her evidence was that she was one of the Secretaries who attended a workshop in Siavonga at Manchinchi Bay. They were about 25 or 30 altogether and the workshop lasted for four days. She testified that the participants were paid an out-of-pocket allowance at a sum of K146,000.00 (rebased) per night. It was her further evidence that, she was made to sign a fresh acquittal sheet because she was told that the initial one was lost. However, when she was summoned for interviews at ACC she was shown both acquittal sheets and they had similar amounts. According to her recollection another workshop was held by the Ministry of Health in the same year at Fairmount Hotel in Livingstone but she did not attend it and did not know of anyone else who did. I I I I I I I I I J71 2.134In cross-examination, she said that she had been in employment at the Ministry of Health since 1995 and she was aware that training fell under the Human Resource Department. She averred that she knew PW19 and she never saw her at any of the workshops. She agreed that she attended a workshop at Mumana and that she had heard of the workshop which was conducted at Suwilanji Gardens. She inter alia said that the allowances in Siavonga were paid by PW25 and the appellant was not present. She denied having heard of Algonquin Management Consultants or that they were in charge of the workshop. 2.135PW32 was Graham Mwanata a Mechanic or Driver at the Ministry of Health. His evidence was similar to that of PW29 save that the workshop was for 3 days and he was paid an allowance of K540 .00 (rebased) which was signed for by his friend because he was at a funeral at the time when the money was paid out. 2.136Under cross-examination, he denied having attended any workshop at the Vehicle Service Centre or being aware that the Ministry Health conducted workshops there. He maintained having only attended a workshop at Cross Roads. I I I I I I I I I I I J72 2.137Godwin Kasonde an Office Assistant at Ministry of Health testified as PW33. His evidence was that he attended a workshop at Suwilanji Gardens for a period of 3 days and was paid an out-of-pocket allowance in the sum of K420.00 (rebased) and K100.00 (rebased) for transport. He denied having attended any other workshop after that. 2.138Under cross-examination, he was able to identify some of the other participants on the photograph that he was shown. 2.139 PW34 was Eunice Njobvu, also an Office Assistant at the Ministry of Health. Her evidence was similar to that of PW33, save that she attended another workshop in Siavonga which was organised by her department and was also attended by other ministries. It was her evidence that she attended another workshop but could not recall where it was conducted from. 2.1401n cross-examination, she said that she did not know the number of groups or participants that went to Suwilanji Gardens. According to her the most senior officer at that workshop was PW25. 2.141 PW35 was Namata Kalaluka, the Chief Accountant at the Ministry of Health. In her testimony, she said that in 2009 she was tasked to assist officers from the Anti-Corruption Commission to access I I I I I I I I J73 numerous documents that they had requested. She pointed out that she was tasked to avail them with payment vouchers regarding Algonquin Management Consultants, Kahekam and Royal College. 2.142She narrated that she only gave the officers 7 of the 13 payment vouchers that they were looking for in relation to Algonquin Management Consultants. It was her evidence that the Ministry of Health paid to suppliers of good and services via cheques and EFTAs. In the event that the goods or services were not supplied, the supplier was required to make a refund in the same manner and the Ministry of Health would acknowledge receipt. She said that as Chief Accountant she never came across any data relating to refunds from Algonquin Management Consultants. Additionally, it was her evidence that the Ministry of Health rarely gave business to suppliers that solicited or suggested goods or services that they provided. According to her, it is usually the Ministry which sent enquiries to service providers. 2.143 Under cross-examination, it was her evidence that ACC wanted documents relating to Royal College of Business, Kahekam, Best Home I I I I I I J74 Lodge, Algonquin Management Consultants, ESU Nursing School and MATAMOSE Medical Equipment and Pharmaceutical Limited . 2.144She denied being aware of the fact that at the time when ACC requested the documents they were not at the Ministry of Health premises. She stated that since she was new in that position she did not have knowledge about the nature of the documentation or where they were stored at the Ministry of Health. According to her at the time when ACC presented a warrant of access, matters had not yet been handed over to her. She maintained that the Ministry of Health rarely received solicitations to procure goods and services. She agreed that the Human Resource Development Committee was in charge of issues relating to training. She admitted that the said committee was different from the Ministerial Tender Committee. It was her evidence that the Human Resource Development Committee approved certain thresholds without referring the matter to the Ministerial Tender Committee and only referred matters to the Ministerial Tender Committee which involved accommodation and food. 2.145With regard to the appellant, she said that all she knew was that he was the Chief Human Resource Officer at that time. I I I I I I J75 2.146 PW36 was Lazarous Chimphonda an Investigation Officer from Anti Corruption Commission and was part of the investigation team in this matter. He testified that on 23rd June 2009, in the company of other officers and the appellant went to the appellant's office at Ministry of Local Government and Housing. The purpose of the visit was to retrieve documents from the appellant's office. He pointed out that the document which caught his attention was an invoice which was issued to the appellant by JP Kahneiro in the sum of USD35,000.00 for a Mercedes Benz. The other document was a clearance form CE 20 from ZRA. He explained that the details on a payment voucher issued to Algonquin Management Consultants Limited relating to workshops for Office Orderlies and Cleaners also caught his attention. He explained that he was unable to comprehend the large number of participants on the list. He further explained that the information on the letter of invitation and the voucher was different. 2.147It was his evidence that his investigations revealed that the said workshop was never conducted even though a payment voucher in the sum of K886.317 (rebased), and KS00.00 dated 7th April 2008 was I I I I I I J76 issued to Algonquin Management Consultants. According to him, his investigations revealed that the payments were fraudulent. 2.148It was further his evidence that he came across an undated payment voucher in the sum of K732,350.00 (rebased) and it was attached to a letter from Algonquin Management Consultants. The same regarded a Workshop for Office Orderlies, Messengers and Cleaners. In addition, he said that the letter from Algonquin Management Consultants was futuristic in nature and yet it was soliciting for a workshop which had purportedly already taken place. According to his investigations the workshop had never been held and thus the transaction was yet again fraudulent. Furthermore, it was his evidence that through his additional investigations he discovered that payment vouchers which were issued to Algonquin Management Consultants in the sums of K216,068.00 (rebased), K497,550.00 (rebased) and K618,068.00 (rebased) were fraudulent because the workshops were not held. 2.149 Under cross-examination, it was his evidence that the time when he investigated this case, his credentials assisted him in arriving at the conclusions that he recounted. He denied having personally visited the I I I I I I I I I I J77 lodges and hotels were the workshops were allegedly held. He averred that he found it odd that the appellant used to take documents to auditors. He stated that some documents were found at the appellant's home and that he was informed that the appellant was using his personal file to process information. It was his evidence that the payments mentioned above were not processed in the appellant's bank account but in that of Algonquin Management Consultants through Finance Bank in Kamwala. 2.150PW37 was Liywali Mukelebai, the Inspector of Companies at PACRA. His evidence was that he received instructions from ACC to avai l them with information relating to Kahekam Limited, Kansa Investment Limited, Best Home Lodge Limited, Algonquin Management Consultants Limited, ESU School of Nursing, Rojo Trading Imports and Exports Limited, Champa Family Bus Services, Hensaka Enterprises Limited and CAN Investrust Limited. 2.151 Under cross-examination, he gave evidence that he had worked there for a period of 4 years. Therefore, he explained how a change of Directors is effected in a company. He stated that the information he I I I I J78 availed in this case showed that there had been no change of Directors since 2009. 2.152PW38 was Dr. Simon Kamwendo Miti, the Permanent Secretary Ministry of Health between 2007 and 2009. As Permanent Secretary, he was in charge of Management and Administration as well as the Controlling Officer. His evidence was that sometime in June 2009 he was summoned by the Anti-Corruption Commission so that he could assist them with their investigations relating to this case. It was his evidence that he remembered that he received the letters from Algonquin Management Consultants soliciting for business. He signed and endorsed "FYA" on exhibits "P1(a), (b), (c),""P59(a) and (b)" and "P27(a)" so that his subordinates could act on them and give him feedback. However, he never received any feedback. He told the court that he was not aware that these payments were made. He narrated that the amounts in issue were above KS0,000.00 (rebased), an amount above his threshold, and he had no authority to approve the same. According to PW38 his endorsements on the said documents were not authority to make payments. At the time he endorsed on the said record, there were no other endorsements. I I I I I I I I J79 2.153When referred to "Pl{a)," PW38 identified the signatures of AS, Elias Mwila and the appellant as being among the people who signed and endorsed the said document. The endorsement by the appellant read, "/CA please pay from EB as per attached Budget." Attached to "P1(a)" is a list of names entitled "List of Office Assistants." The other list attached thereto is entitled "List of Secretaries." 2.154He further stated that the same signatures also appear on exhibit "P1(b )," against the endorsements thereon. The appellant's signature appears against the endorsement "/CA pay as per attached budget." Elias Mwila's signature appears against the endorsement which reads "CHRDO/CA kindly deal," and is dated 7th February, 2008. AS's signature is appended against the endorsement, "Enala process as at X" and there is an arrow that points to the Permanent Secretary's initials and endorsement on "P1(b)." The date of the endorsement is indicated as 7th April, 2008. It was his evidence that his endorsement on "P1{b )" merely referred the document to the Director so that she could indicate to him what action was proposed to be undertaken in relation to the document. The proposed action was to be based on the action plan which was I I I I J80 approved the previous year. He said that he neither saw nor received a response from the Director - Human Resource and Administration. PW38 only saw the said endorsement again when he was summoned by the Anti-Corruption Commission. 2.155Testifying on "P1( c)," he stated that the endorsement thereon appears to have been made by the appellant and only states "/CA." The said endorsement was not there at the time PW38 endorsed it. On "P27(a)," he noted a number of endorsements namely "/CA," and another endorsement indicating "CA please process as per attached budget for the programs." The said endorsement appears to have been written by the appellant. The writings were not on the document at the time PW38 endorsed on the document. 2.155On "P59(a)," PW38 noted that the following endorsements were not there at the time he endorsed the document. That is, the endorsements dated 15th November, 2007 indicating "A/CHRDO" and a signature that appears to be that of Mrs. Kapihya the Director - Human Resource and Administration; the endorsement which reads "CA please pay as per the attached Budget" written by the appellant; the endorsement dated 25th November, 2007 which reads I I I I I J81 "SA (Exp) FYA" and with what appears to be A4's signature; the endorsement dated 27th November, 2007 indicating "ACC 7," and signed by AS. 2.157Testifying on the backing sheets, it was his evidence that his signature on the backing sheet was insignificant because as a Controlling Officer, he was not a Bank or cheque signatory. When asked about the significance of a backing sheet, he stated that it is used to move money from the Bank of Zambia to Commercial Banks. Such money is moved by the Bank and cheque signatories, and not the Controlling Officer. 2.158On cheque payments, it was his evidence that same are prepared by Accounting Officers and not the Permanent Secretary as such he could not state whether or not a cheque could be honoured if it does not have a franking stamp. He did not know whether the EFf As that moved the said money had franking stamps. A franking stamp is affixed at Accounts but it represents authority of the Permanent Secretary. On who can move the money from the Bank, he maintained that only the signatories could do so. 2.159When referred to "P6(a) and (b)," letters to the Governor of the Bank of Zambia, and a document relating to the Mirror Account respectively, I I I I I I J82 it was his evidence that "P6(b)" had six payees including Algonquin Management Consultants. He further indicated that there was something that looked like a franking machine on "P6(b)," and "P6(a)." 2.160Testifying on training, he stated that the Department of Human Resource would know whether the seminar took place. He further stated that the money on "Pl(a), (b), (c)," "P27(a)" and "P59(a)" was not paid to the appellant, A2 or A9. It was stated that Algonquin Management Consultants should avail receipts to the relevant Public Officer who gave them the money. He did not know what happened to the money or if the appellant, A2, and A9 stole the money by signing certain documents relating to Algonquin Management Consultants Limited for workshops or seminars. 2.161 He said that the Human Resource Department was responsible for procuring training services in the Ministry of Health. After this piece of evidence, he explained the procedure of how the said services are procured and the composition of the Human Resource Development Committee. I I I I J83 2.162When referred to certain exhibits relating to Algonquin Management Consultants, he said that his endorsements on the documents to the Director Human Resource and Di rector Planning and Policy, were not authorisations to pay. He stated that thereafter, it was up to the User Departments and Procurement Committee to follow the laid down procedures and give him feedback on the action plan they intended to take. According to him, he did not get any feedback from the Directors after the reference. On one of the exhibits he testified that the signature against the endorsement "CA please process as per attached budget" appeared to be for the appellant. It was his evidence that the appellant's endorsements were not on the documents at the time when he put his there. 2.163 Under cross-examination, it was his evidence that a sub-warrant holder can move money at the Ministry of Health. He inter alia said that when the budget was approved and appropriated by Parliament, the Human Resource Development Committee was acting within its mandate. With regard to the payment vouchers, he said that he was unable to ascertain whether they related to payments for imprest. I I I I I I I I J84 2.164Additionally, he denied having seen the EFTAs which were used to move money in this case to Algonquin Management Consultants. He averred that the Public Officer responsible was supposed to follow up with Algonquin Management Consultants to ensure that the money was retired. He denied knowing if the workshops actually took place. His position was that it was the responsibility of the Human Resource Department for that and thus were in a position to know if they took place. 2.165He agreed that the money indicated on the payment vouchers was not paid to the appellant but to Algonquin Management Consultants and that in this case, it was the sub-warrant holder who gave the money to Algonquin Management Consultants. He denied knowing if the appellant had stolen the money. 2.166In re-examination, he said that if any action had taken place on the documents where he endorsed "FYA," he could have received a report. He, however, could not recollect whether or not he made a follow up. Consequently, in the absence of those reports he could not knowledgeably say that the appellant did not steal the funds. I I I I I I J85 2.167With regard to the money that was paid to Algonquin Management Consultants he averred that the government had a duty to account for that money. Thus, the Directorate of Human Resource needed to follow up and account for the funds that were paid out. 2.168PW39 was Margret Namonga Banda-Kapihya, the former Director of Human Resources and Administration at the Ministry of Health. Her Directorate was divided into two sections namely: the Administrative Section, and the Human Resource Management and Development Section. 2.169The appellant held a position in the departments under her. The appellant was the Chief Human Resource Development Officer until 2008 when he was replaced by Mr. Fred Mwila. The appellant's responsibility as Chief Human Resource Development Officer at the Ministry of Health included undertaking training needs, analysis, interpreting government training policy and guidelines, and processing study leave among others. 2.170 PW39 stated that during the interviews at the Anti-Corruption Commission she was referred to several documents which were in batches. The first batch contained letters from Algonquin Management I I I I I I I I J86 Consultants dated February, 2008, and addressed to the Permanent Secretary at the Ministry of Health. The letters were copied and captioned, "Office Orderlies, Messengers, and Cleaners Workshop." The letters were accompanied by payment vouchers with a total amount of K947,224.20 (rebased), the payee was Algonquin Management Consultants. The description of payment was "Office Orderlies and Messengers Workshop, HRA Practitioners and Others." 2.171On the second batch was a letter from Algonquin Management Consultants dated April, 2008 addressed to the Permanent Secretary at the Ministry of Health. The letter was captioned "Office Orderlies, Messengers and Cleaners Workshop." Attached to the said letters are payment voucher in the sum of K732,000.00 (rebased) and the payee was Algonquin Management Consultants and the amount was K732,000.00 (rebased). 2.172The third batch contained a letter from Algonquin Management Consultants dated October, 2007 addressed to the Permanent Secretary at the Ministry of Health. It was captioned "The Executive Secretaries Seminars." Also included in that batch was a letter to I I I I I I I I I J87 the Bank Manager at Inda-Zambia Bank requesting about K432,000.00 (rebased) plus to be transferred to Algonquin Management Consultants for the Executives and Management Secretaries Seminars. 2. l 73The fourth batch contained, a letter addressed to the Permanent Secretary at the Ministry of Health dated November 2008 from Algonquin Management Consultants. The letter was captioned, "Auditing, Accounting and Fraud Seminar." On the same batch was a payment voucher in the sum of K592,000.00 (rebased) to Algonquin Management Consultants. 2.174The next batch included among other documents, letters dated April, 2008 from Algonquin Management Consultants to the Permanent Secretary at the Ministry of Health. The letter is captioned, "The Executive and Management Secretary Seminar." Attached to the said letter is a payment voucher with the sum of K886,000.00 (rebased) plus payable to Algonquin Management Consultants. 2.175The next batch contained letters dated April, 2008 addressed to the Permanent Secretary in the Ministry of Health from Algonquin Management Consultants. The letters had endorsements from relevant officers. Attached to the letter was a payment voucher whose I I I I I I I I I I I I I I J88 details include Ministry of Health, the Department was Human Resource and Administration, the payee was Algonquin Management Consultants and the amount was about K618,000.00 (rebased). 2.176When referred to "P1(a)," she identified a number of endorsements and stated that two of the endorsements were written by the appellant. She denied making any endorsement of the said document. She also observed that the letter marked "P1(a)" related to Office Orderlies, Messengers and Cleaners Workshop. The narration on the payment voucher on description of payment includes the Human Resource Practitioners and Management Secretaries Seminar. 2.177On "P1(b)," she noted a number of endorsements made by PW38 and the appellant among others. She said that there was no input on that document from her office as Director - Human Resource and Administration. There was however input from the Assistant Director - Human Resource Management Division Mr. Elias Mwila. She further noted the discrepancy on who was to be trained, in that the letter from Algonquin Management Consultants indicated that the training was for Executive and Management Secretaries' Seminar while the description of payment on the payment voucher indicates that the payment was J89 for participation fees in respect of Secretaries, Orderlies, Cleaners and Messengers' Workshop. She further observed that there was no authority from the Permanent Secretary to undertake the said activity. 2.178Testifying on "P1{c)," she noted an endorsement from the Office of the Permanent Secretary to the Director Human Resource and Administration/ Chief Accountant namely "FYA." She indicated that she did not know anything about this transaction. 2.179On "P1{f)," PW39 stated that the document had endorsements from the Permanent Secretary, the Assistant Director - Human Resource Management Division Mr. Elias Mwila, and the appellant. The appellant's endorsement to the Senior Human Resource Development Officer Mr. Stanley Musonda read; "please deal accordingly." 2.180Testifying on her endorsement on "P1{f)," it was her evidence that the workshop that she was referring to was the one that was conducted for drivers in March. A report was submitted to that effect by the Human Resource Development Unit. However, she did not know where the report was at the time of her testimony. It was her evidence that the endorsement was not the authority to pay money to I I I I I I I I I I I I I I I J90 Algonquin Management Consultants for a workshop. She maintained that no authority was given for holding such a workshop. 2.181 On "P27(a)," she noted the endorsement on the letter from Algonquin Management Consultants to the Permanent Secretary relating to the Auditing, Accounts, and Frauds Seminar which reads: "Director - Planning and Policy /Chief Accountant - FYA," the said endorsement had the Permanent Secretary's signature appended to it, and a stamp dated 10th November, 2008. She also noted an instruction from the appellant to the Chief Accountant which read as follows: "please process as per the attached budget." The said document was not endorsed by the Director - Policy and Planning, or the Chief Accountant. 2.182Testifying on "PS9," she stated that her endorsement was merely to ask that a needs assessment be done to confirm whether there was need to conduct the workshop. She also noted the endorsements made by the Permanent Secretary and the appellant to the Chief Accountant to pay as per attached budget. Her expectation when she referred the said document to her subordinates was that they would conduct a needs assessment, and then make recommendations so that J91 in turn she could advise the Permanent Secretary accordingly. Her endorsement was therefore not authority to pay Algonquin Management Consultants the amount indicated on the payment voucher because she had no such authority. She said that the proposed expenditure needed to be cleared with the Controlling Officer. PW 39 further testified that as a Sub-Warrant holder, she was allowed to expend within the budget for the respective department. Her threshold was up to Kl0,000.00 (rebased) in line with the Zambia Public Procurement Authority. Notwithstanding this, she always sought authority from the Office of the Permanent Secretary to spend any amount within Kl0,000.00 (rebased). It was her evidence that she never authorised any payments to Algonquin Management Consultants for any service or training . 2.183In sum, PW39's evidence was to the effect that the payments in issue were irregular in that the person who was issuing the payment instructions to the Chief Accountant to pay namely - Henry Mulenga Ngosa Kapoko (the appellant) did not have authority to issue such instructions. PW39 also explained that the endorsements on the said documents used to pass through a process of internal consultation in I I I I I I I I I I I J92 order to establish, whether there was a need for Secretaries, Office Orderlies, and Cleaners to be trained. She could not recall seeing any memorandum from the Office of the Assistant Director - Human Resource Management Division confirming the need to conduct Workshops for Secretaries, Office Orderlies, and Cleaners. She could also not recall seeking authority from the Permanent Secretary at the Ministry of Health for the said workshop to be undertaken. 2.184On the Workshop for the Secretaries, she stated that she could not recall the Secretaries attending a Workshop organised by Algonquin Management Consultants. 2.185She further testified that the Ministry had long-term and short-term trainings. The trainings presented by Algonquin Management Consultants fell under the short-term training category, that is, training for 30 days or more but not more than 60 days. 2.186She further stated that the appellant left the Ministry of Health in May, 2008 on transfer to the Ministry of Local Government and Housing and Mr. Frederick Mwila took over his position in the same month. 2.187Under cross-examination by Mr. Bwalya on behalf of the appellant, A2, A4 and A9, it was her evidence that without the authority of the I I I I I J93 Permanent Secretary who is also the Controlling Officer at the Ministry of Health, no public funds could move. 2.188When asked whether the appellant, A2 or A9 could commit the Department of Human Resource and Administration to expenditure, she answered in the negative. PW39 further testified that she was not - authorised by the Permanent Secretary to commit the Department to the expenditures in issue. That all documents except "Pl( d)" did not have Commitment Requisition attached to them as such she would not know who committed the department to these expenditures. She maintained that the endorsement on the within documents was not authority to pay. As for "Pl(d)" which had a Commitment Requisition that was prepared by S. Musonda, and endorsed by the appellant, she did not know on whose authority the said payment was made. 2.189 PW40 was Henry Chewe Kasembe, a Chief Planner at the Ministry of Health in 2009. His core function was to coordinate budgeting and planning for the entire Ministry. He would also prepare documents that provided technical guidance to all the units at the Ministry of Health. I I I I I I I J94 2.190Testifying on the Action Plans marked "P73{a) and {b)," specifically on the training, he stated that he could not see any budget line that expressly provides for training for Secretaries, Messengers, Cleaners, and Office Orderlies. He noted a number of activities relating to the training of Accounting Unit Staff which does not fall under the Human Resource and Administration . 2.191 On the procedure followed by his unit in terms of planning for short term training, he said that the procedure was two-fold . The first procedure relates to an instance where they have the internal capacity to train. In such an instance, they would write to the Permanent Secretary for authority to procure venue, pay Daily Subsistence Allowance (DSA), and procurement of stationery and other necessities. Once the same is approved, they conduct the training themselves. 2.192The second procedure relates to instances where the training relates to special skills for which they have no expertise and would need to engage a consultant. In such a scenario, they would write to the Permanent Secretary seeking authority to engage the services of a consultant. Once the request is approved, the same is channelled to the Procurement Unit to do the rest. I I I I I I J95 2.193 During cross-examination, PW40 stated that his department used to coordinate the planning of the Expanded Basket. The money on that Account comes from the government and the donors. 2.194PW41 was Mwima Jeffry Chisala, a Banker at Barclays Bank Zambia. His evidence was that the Anti-Corruption Commission summoned the bank to produce mandate files, twelve (12) cheques, and Bank Statements relating to Rojo Trading Bank Account. He identified the said documents by the signatories and indentures. The signatures were for Mr. Robert Kalimi and Ruth Chilufya. The account number was 1169161. The payees on the cheques were Robert Kalimi, Mwamba Kasamba, Best Home Lodge and Hensaka Enterprises. 2.195When referred to "P74," he stated that Rojo Trading applied to open an account. The proprietors of Rojo Trading were Robert Kalimi and Ruth Chilufya who are also the signatories to the account. The partners in the company are listed as Robert Kalimi and Joseph Chanda. 2.196On "P75," his evidence was that it was a Bank Statement for the period 5th January, 2007 to 5th December, 2008. The statement I I I I I I J96 contains details of the debt and credit transactions on the said Bank Account. It also reflects the balances on the account. 2.197 He noted an RTGS transfer from the Ministry of Health to the said account in the sum of K374,344.00 (rebased). Prior to the transfer, the account had a negative balance of K131,514.98 (rebased). He also noted an RTGS transfer from Ministry of Health to the subject account in the sum of K374,344.00 (rebased) made on 19th June, 2008. Prior to that transfer there was a balance of K320,356.06 (rebased). There were various payments paid out as indicated on "P75" and "P76(a) to (I)." 2.198The following cheques were issued by Rojo Trading. On "P76(k)" is a cheque dated 19th June, 2008 issued by Rojo Trading to Hensaka Enterprises in the sum of K99,000.00 (rebased). On "P76(a)" the amount is a cheque dated 19th June, 2008 in the sum of K80,000.00 (rebased) and the payee is the Best Home Lodge. On "P76( c)" the amount is K16,000 .00 (rebased) the payee is Hensaka Enterprises and the date is 16th May, 2008. "P76 (e)" is a cheque payment to Kahekam Limited in the sum of K19,000.00 (rebased). The cheque is dated is dated 19th June, 2008. On "P76(b)" the payee is Best Home I I I I I I I I I I J97 Lodge, the date is 16th May, 2008 and the amount is K60,000.00 (rebased). 2.199In cross-examination he stated that according to the Bank Statement, there was no payment from Algonquin Management Consultants to Rojo Trading. According to the statement, there were no transfers from Henry Kapoko, Zukas Kaoma, Mr. Musaba, Mr. Luhana, Roy Mawenyeho and Mr. Esau Banda to Rojo Trading. "P76{a)" was paid to Kahekam . PW41 did not know that the appellant was a director at Kahekam, Hensaka and Best Home Lodge. 2.200 PW42 was Paul Wasamunyu Mwikisa, who testified that he had sold a subdivision of his plot in Ibex Hill to the appellant at the price of K70,000.00 (rebased). The same was to be paid as follows: KS0,000.00 (rebased) upon execution of the contract and the K20,000.00 (rebased) later. Both amounts were paid to him in cash. The appellant was later issued with a certificate of title for the said land. The contract was marked "P77." 2.201 PW43 was Michael Chisengele, a Seminar Registrar at the Ministry of Lands. He testified that in February, 2013 the Assistant Chief Registrar of Lands Ms Juliana Chilombo assigned him to assist some officers from I I I I I I I I I J98 Anti-Corruption Commission with the Lands Register printout for five properties namely; Lusaka 3775, Lusaka 7791, Lusaka 13947, Lusaka 13949 and Lot 3325/M. He printed out the register for the said properties. 2.202When referred to "P78(a)" he stated that the first title holder was Mwale Gracewell who got it in the year 1997. In 2008 the property was assigned to the appellant, who is the current title holder. With regards to "P78(b)" relating to Property No. Lusaka/13947, PW43 stated that the first title holder was Miyanda Monica who acquired the title in 1995. In 2004, the said property was repossessed by use of a certificate of re-entry. The property was re-allocated to Mwanza Luke Special, the current registered owner. 2.203On "P78(c)" relating to Property No. Lusaka/13949, the said property was allocated to Nyirenda Sandress Landilani in 1993. In 1996 the said property was assigned to Malama Rosemary Kays Mwange, the current registered owner. 2.204On "P78(d)," he stated that Lot 3325/M was offered to Mwikisa Paul Wasamungu in 1987, who was still the registered owner as at the date of PW43's testimony. I I I I I I I I I I I I I I I I J99 2.205On "P78(e)" his evidence was that the same was first issued to National Housing Authority in 1975. The property was later leased to Lewila Denia in 1981. In 2005 Lewila Denia assigned the property to Kabwe Enock. In 2008 there was a registered probate in the names of Kabwe Stella Mweye who by Deed of Assent assigned the said property to Mwamba in 2008. The said Ms Mwamba was the title holder as at date of PW43's testimony. 2.206 PW44 was Ikalo Ng'andu Mweemba the Chief Accountant at Handyman's Paradise. His evidence was that in 2009 he was visited by the officers from the Anti-Corruption Commission who were carrying out investigations on one of Handyman's Paradise customers. The customer under investigation was a group of companies namely; Best Home Lodge, Hensaka and Kahekam. The officers from Anti Corruption Commission wanted to find out about the companies transactions with Handyman's Paradise. They requested a full account of how Handyman's Paradise transacted with the said companies. PW44 gave them a printout of the customer statement containing details of the transactions as requested. JlOO 2.207When referred to "P79," he stated that the account owners as indicated on the statement were Hensaka Enterprises, Best Home Lodge and Kahekam. The statement covers the period 2008 to April, 2009. That total amount for the transactions was K767,912.199 (rebased). Out of the said amount the said customer made a payment of K592,239 .80 (rebased) leaving a balance of Kl 75,672.399 (rebased). The said amount was still outstanding as at PW44's testimony. 2.208 His further evidence was that as Handyman's Paradise generally deals in building materials, the materials collected by the companies would be building materials. 2.209 During cross-examination he stated that the account transactions with the customer began in 2008. There was an invoice that was given to the customer dated 2005 traded with Handyman's Paradise in the year 2005. The transactions indicated on the statement were conducted with companies and not individuals. 2.210 PW45 was Maddy Kalembe Thole, a banker at Stanbic Bank. She was at the material time a team leader in customer service, in charge of the Inquiries Department and the Cash Department. Her evidence was I I I I I I I JlOl that officers from the Anti-Corruption Commission went to the bank to conduct a search on Gracewell Mwale's account. They also asked for the mandate files and bank statement on which they intended to check if three transactions which were of interest to them had been conducted on the account. PW45 availed the said documents to the officers. 2.211 PW45 stated that the documents contained in "PBO(a) to (d)," were used to open account number 012031926701 for Gracewell Mwale at Stanbic Bank Main Branch. 2.212She further stated that "P81" is a bank statement for Gracewell Mwale's account no. 012103926701 at Stanbic Bank's Main Branch. The transactions the officers were interested in were in the sums of K300,000.00 (rebased), K90,000.00 (rebased) and K90,500.00 (rebased). The said amounts were traced on that account. It was observed that K300,000 .00 (rebased) was deposited in the account on 14th April, 2008. The details pertaining to the said transaction were Henry Kapoko-Hensaka Enterprises. The electronic transfer does not indicate the origin of the transfer. I I I I I I I J102 2.213That the sums of K90,500.00 (rebased) and K90,000.00 (rebased) were both cheque deposits credited to that account on 8th September, 2008 on cheque numbers 000144 and 000145 respectively. 2.214PW46 was Luka Special Mwanza, a sales representative at the appellant's outdoors who testified that Plot 13947 also known as Best Home Lodge belongs to the appellant although the title deed is in his name. The said plot once belonged to PW46 who later sold it to the appellant at the price of K60,000.00 (rebased). The appellant paid a down payment of K30,000.00 (rebased). The balance was paid in instalments. After selling the said property to the appellant, he did not own anything on that plot. It was only the title that was in his name. 2.215PW47 was Wendy Mulala Chilembo, the Bank Manager at Finance Bank Longacres Branch. She testified that a warrant was served on the bank in 2009 requiring the bank to provide information on certain accounts associated with the appellant. The documents required were bank statements, cheques, deposit slips, transfer requests, copies of account opening forms, mandate files, specimen signature cards and other relevant documents such as reference letters and documents from PACRA for Kahekam, Best Home Lodge, Hensaka and the I I I I I I I I I I I I J103 appellant's personal account. The bank statements were printed out and handed over to the officers from the Anti-Corruption Commission. 2.216 She further testified that the mandate files, marked "P83(a)" relate to Kahekam. The signatories on both accounts are Henry Kapoko and Mwila Kalikeka. "P83(b)" is the mandate file for Best Home Lodge, the signatory is Henry Kapoko. "P83( c)" relates to Hensaka Enterprises, it had two signatories, one for Henry Kapoko but she could not see the other signatory. 2.217 P84 was a local money transfer form and the applicant was Henry Kapoko-Hensaka Enterprises. The beneficiary is Gracewell Mwale. The money was transferred to account number 034192701 at Stanbic Bank in the sum of K300,000.00 (rebased) . 2.218"P82(b)" was the bank statement for Hensaka Enterprises. The money on "P84" was to be drawn from Hensaka Enterprises. The account number on "P84" is the same as the one on "P82(b)." It was her evidence that on page 6 of "P82(b)," there was an entry dated 14th April 2008 indicating that there was a transfer to G. Mwale of Stanbic Bank in the sum of K300,000.00 (rebased). J104 2.219PW48 was Ms. Rachael Zyambo, an Accountant at the Ministry of Finance-IFMIS Project. Her testimony concentrated on the procedures relating to accounting in government. She stated that payments are initiated from the Requisitioning Department which raises a request for any goods or services that are required. The request is then sent to the Head of Department for authority to process the request. Depending on the authority of the Head of Department, the Head of Department may either approve the request or forward the request to the Controlling Officer. 2.220Once the requests are approved, they are sent to the Procurement Department. The officers in procurement would then look for three quotations. The quotations would then be analysed. After the said analysis, a Local Purchase Order (LPO) would be raised. Depending on the .threshold the local purchase order may either be authorised by the Head of Department or the Controlling Officer. If the amount is beyond the threshold of the Controlling officer then the request will be forwarded to the Ministerial Tender Committee. Once the LPO is authorised, it is given to the vendor or supplier. The supplier is then I I I I I I I I I JlOS expected to supply the goods or provide a service to the requesting department. 2.221 Once the goods are provided, proof of the supply will be required and is often established by providing a goods received note. Once that is done the Accounting Department will initiate the processing of the payment voucher. The officer in the Accounts Department completes the payment voucher and will sign to confirm what he has compiled. Another officer will check the details of the payment voucher. 2.222In checking the said payment voucher, the officer will look for accuracy of the payment voucher and he will confirm if there are supporting documents to support the payment voucher. The officer will look out for the following documents; approvals on the requests, goods received note, a local purchase order, quotations and where applicable, requests from the vendor. After the payment is checked, it is passed on another officer to pass the payment. The officer passing payment also checks to confirm if there are supporting documents and also confirm the availability of funds. 2.223The last officer to endorse on the voucher is the Authorising Officer, who is a Senior Officer in the Accounts Department such a Senior I I I I I I I I I J106 Accountant, Principal Accountant or Chief Accountant. Once the payment voucher is authorised, it is taken to the Audit Section for verification. Once verified, a cheque is raised for payment to the supplier. 2.224 She stated that the authorisation by a Senior Accounting Officer is the last authority in the hierarchy. Once that officer approves, confirms the payment, it can be paid to the vendor. The next checks are done by the authorised signatories drawn from the Accounting Staff and Administrative Staff. The said signatories are expected to check the details of the cheque as stipulated in the Financial Regulations. She went on to state that the same procedure would apply if the supply of goods and services was initiated by the vendor. The same procedure would apply for a workshop service. That the only difference that exists relates to the proof of delivery. In terms of goods supplied, proof of delivery is done through a goods delivery note while proof of provision of service is not done through a goods delivery note. 2.225It was her further evidence that where a supplier of goods or services solicits for business from a government entity, there is need to obtain confirmation from the User Department that the program that has been I I I I I I I I I I J107 proposed is within the work plan and the budget. The User Department would then provide detail on that aspect. That payment of goods or service could only be made prior to the receipt of goods and services if there was a provision to that effect in the contract. Such an advance payment would usually be a percentage of the total contract price. 2.226Her further evidence was that purchase prices that are above the threshold of the Controlling Officer would require the approval of the Ministerial Tender Committee. However, if the payments are for outstanding goods for which authority was already sought and granted the previous year, then the procurement process would be dispensed with at the ti me of such payment. 2.2270n cross-examination, she stated that the documents marked "Pl(a) (b ), and ( c)" were prepared, checked, and passed for payment by different officers. They were stamped showing that that the voucher was authorised. 2.228She further stated that Commitment Requisition, is a tool used to record government commitments. That the documents marked "P1(a) (b) (c) and (e)" ought to have been accompanied by I I I Commitment Requisitions. She only saw a Commitment Requisition on "Pl." In the absence of a Commitment Requisition, it would be difficult to know whether the Permanent Secretary committed funds. 2.229That according to Chapter 8.8.9 of the Accounting Guide marked "ZK28," the documents "P1(a) (b) (c) and (f)" ought to have file numbers and folio numbers but the payment vouchers in issue only indicate the file number. "Pl( d)" has neither file number nor folio number. 2.230 PW49 was Webster Mapulanga, a car dealer who gave evidence regarding the offences that the second appellant stood charged with. 2.231 PWS0 was Nelly Phiri, a Revenue Collector at the Ministry of Health. Her substantive position was that of an Office Assistant/ Accounts Records at the Ministry of Health whose duties included filing vouchers. She gave evidence of how sometime in May or June, 2009 AS requested her to pull out some vouchers which were with the External Auditors who were conducting audits at the Ministry of Health. AS escorted her and they retrieved the said vouchers. 2.232PW51 was Mervin Chipompwe, a Broker at Guardian Insurance. He testified that some officers from Anti-Corruption Commission visited I I I I I I I I I I I I I I J109 their offices to investigate certain cover notes that were purportedly issued by Goldman Insurance. The officers produced two certificates of motor vehicle cover notes for the same motor vehicle. One certificate had details for Cavmont Capital Insurance which is now called Diamond General Insurance. The other cover note was from Zambia State Insurance Corporation. He identified one cover note with the names B. Mkize and stated that the date stamp on that cover note did not belong to Goldman Insurance. The cover note was only written Toyota. The said cover note purportedly belonged to Cavmont Merchant Insurance. As for the cover note from Zambia State Insurance Corporation, it was his evidence that it was issued by Goldman Insurance. 2.233As regards the cover notes marked "PSS(a)," he testified that the same was not issued by Goldman Insurance. The serial numbers indicated on "PSS" was different from the serial range of the cover notes issued by Goldman Insurance and also the date stamp was never owned or used by Goldman Insurance. 2.234As for "PSS(b)" it was his evidence that the said cover note was issued by Goldman Insurance and they had copies of the same on their JllO records marked "PSS{ c)." The original copy of the cover note was issued to the cover note holder. 2.235 He further testified that the vehicle that was insured was a Toyota Quantum Engine number 2TR 8998444 and chassis number JTFC x 22P-706000675, registration number KSL 1325. The said cover note expired on 4th October, 2008. He further said that he did not know the person named Mr. Mkize. 2.236 PW52 was Samuel Mwansa Kataya, a Senior Inspector at Zambia Revenue Authority. His evidence was that he was in 2009 summoned by the Anti-Corruption Commission and asked to produce some Customs Import Documents and Tax Status of some companies that were listed in a letter addressed to the Commissioner General of the Zambia Revenue Authority dated 20th May, 2009. The companies included Hensaka Enterprises Limited, Kahekam, Max Hieve and Algonquin Management Consultants. The request related to import documents and Tax clearance. PW52's office dealt with the tax status. 2.237On Hensaka Enterprises, he testified that the said company was registered for Income Tax, PAYE and VAT with Zambia Revenue Authority. However, the said company had never submitted any tax I I I I I I I I I I I I I I I I Jlll returns in relation to the above registered heads and the company never paid any taxes in that regard. 2.238On Kahekam, he testified that the company was registered for Income I Tax, PAYE and VAT. However, the company never made any returns or tax payments for Income Tax and PAYE. That it had however, made some returns on VAT and had a tax liability of K190,546.00. 2.239As regards Best Home Lodge, he testified that the company was registered for Income Tax, PAYE and VAT. However, the company never submitted any Tax Returns or made any Tax Payments. 2.240On Max -Hieve, his evidence was that it was registered for Income Tax, PAYE and VAT but it never subm itted Tax Returns nor made any Tax Payments. 2.241 On Algonquin Management Consultants, it was his evidence that the company was not registered for all taxes. 2.242 He further stated that the above information was given to the Anti Corruption Commission through a letter dated 4th June, 2009 which was written by the then Commissioner General of the Zambia Revenue Authority Dr. Criticals Mwansa. I I I J112 2.243 PW53 was Detective Chief Inspector Thomas Phiri, a Forensic Handwriting Expert based at the Zambia Police Headquarters. He testified that he was handed a number of documents which had a number of disputed signatures and writings. The documents include letters from Algonquin Management Consultants addressed to the Permanent Secretary Ministry of Health, ten backing sheets from the Ministry of Health, seven vouchers from the Ministry of Health that had disputed signatures, one handwritten receipt bearing a disputed signature, one internal memorandum addressed to Assistant Director Human Resource and Administrat ion bearing disputed signature, one requisition form bearing a disputed writing, eight Electronic Funds Transfer Advice bearing the disputed signature, request for random specimen samples and some cheques. The specimen sample signatures were obtained from Masuzyo Chawinga, Gladys Naomi Chawinga, Mary Mabumba, Enala Matuti Phiri, Henry Kapoko, Nobert Peleti, Dr. Chrispine Sichone, Christopher Bwalya, Roy Maswenyeho, Vincent Luhana, Zukas Kaoma Musonda and Evaristo Musaba. 2.244The purpose of collecting the specimen samples was to ascertain whether any of the above-mentioned suspects could have written the I I I I I I J113 disputed writings or could have signed the disputed signatures on all the documents mentioned above. 2.245PW53 examined the said signatures and specimen (documents) visually and under video spectrum comparators. After examining the said documents, he photographed and printed these documents and compiled sixteen comparison charts for demonstration. 2.246When referred to "P14(a), (b), P36, P16(b), P15(a) to (h), P13(a), (b) (c), (e), (f), (g), P9(a), (b), P1(a) (b) (c) (e) (f), P31, P26, P11{a) and P15{i)" it was his evidence that "P14(a) and (b )" were cheques from Indo-Zambia Bank. "P36" and "P16(b )" were letters of money transfer addressed to the Manager at Inda-Zambia Bank. "P15(a) to (j)" backing sheets. "P13(a) to (g)" as the EFTAs that were sent to him for examination. The payee on the said EFTAs is Algonquin Management Consultants. 2.247That "Pl(a) to (f)" and "P27(a)" were payment vouchers from the Ministry of Health. The payee on the said vouchers is Algonquin Management Consultants. The documents marked "P26" were 8 cheques, although he recalled examining 9 cheques from Finance Bank. One of the cheques was torn and it was the torn cheque that I I I J114 was missing from the bunch referred to him in court. The cheque number for the torn cheque was 000070. He had made a copy of the said cheque which he identified in court. 2.248 He went on to testify that he had examined the above documents and compared them with the disputed ones. After examining them, he made a report which is accompanied by a chart and compiled a photographic album. At the end of the examination, he came to the conclusion that the above-named people were the ones who signed or wrote on the said documents. 2.249PW54 was Fred Mwila, the former Chief Human Resource Officer at the Ministry of Health. He took over that position from the appellant in May, 2008 even though there was no proper handover. 2.250He testified that he knew Algonquin Management Consultants, as a training firm that conducted training for different ministries. He recalled that Algonquin Management Consultants conducted training for Office Orderlies and Secretaries. He further stated that as Chief Human Resource Development Officer he had no role in giving instructions for payment for those trainings. I I I I I I JllS 2.251 During cross-examination he stated that while a Human Resource Officer can commit funds, he has no authority to approve payments. The Permanent Secretary has the final authority to approve payments. 2.252PW55 was Patrick Banda, a businessman. He was at the material time the proprietor of Pa ZED Enterprises which deals in steel and building materials. 2.253 He testified that sometime in August, 2008 the appellant started procuring the building materials from him . The initial transactions were on cash basis but later the appellant got some building materials on credit. The appellant paid for the said materials on three cheques issued from different company accounts. A K4,600.00 (rebased) was drawn from Best Home Lodge, another K4,600.00 (rebased) from Hensaka Enterprises and K4,600.00 (rebased) from Kahekam. 2.254 The appellant also made a huge purchase of steel amounting to K124,000.00 (rebased). The material was meant for the construction of a double-storey building: He further procured a few steel products and square bars. The appellant took long to pay for the said materials. In April, 2008, PWSS prepared a statement on the appellant's account amounting to about K150,000.00 (rebased) which the appellant agreed I I I I I I Jl16 to pay in instalments. The appellant issued a cheque for the sum of K30,000 .00 (rebased) drawn by Best Home Lodge towards the balance but it bounced. Later, PW55 learned that the appellant had been arrested. PW55 stated that the appellant still owes him K150,000.00 (rebased). 2.255 PW56 was Oscar Chipoka, an Investigations Officer at the Anti Corruption Commission and the Arresting Officer herein. He testified that he received a complaint to the effect that the appellant was in possession of property that was disproportionate to his known sources of income. The said property was allegedly acquired due to the appellant's involvement in corruption and fraud at the Ministry of Health. Some of the companies that were allegedly used in the said frauds include Kehekam Limited, Best Home Lodge Limited, and Hensaka Enterprises. The appellant was also alleged to have been depositing huge sums of money into the Best Home Lodge, Kahekam Limited, and Hensaka Enterprises, and the said Accounts were held at Finance Bank Longacres Branch. The appellant was alleged to have procured high-value vehicles, including Hummer, several Toyota Lexus cars, Ford Rangers, and tipper trucks. The appellant was also alleged I I I I I I I I I I I I I I J117 to have constructed an Executive Lodge in Roma Township, which the accused was running under the name and style of Best Home Lodge. Furthermore, the appellant was alleged to be constructing another lodge in Roma Township, a house in Ibex Hill, and he had bought a house in Woodlands Extension and another house in Olympia Park. The appellant was also alleged to be running the Total Filling Station situated at Kabulonga. 2.256On 26th February, 2009, a full-scale investigation was instituted to look into the above stated allegations pursuant to Section 37 of the Anti Corruption Commission Act No. 42 of 1996. During the course of his investigations, he was handed a pink Ministry of Health subject file number, MH/101/4/ 4, labelled "Workshops and Seminar Logo" which had six documents namely; a letter from M & M Management and Labour Consultants Limited dated 24th April, 2009 signed by MJ Mwaba, four original Ministry of Health payment vouchers dated 11th November, 2008 issued to different payees. The first voucher was in the sum of K247,463.00 (rebased) payable to Enala Matutu Phiri. The second was in the sum of K250,000 .00 (rebased) payable to Catherine Sepa. The third voucher was in the sum of K592,925 .15 (rebased) I I I I I I I I I I J118 payable to Algonquin Management Consultants Limited. Attached to the said voucher was a letter from the Algonquin Management Consultants to the Permanent Secretary Ministry of Health signed by PW19. The last voucher was in the sum of K756,655.90 (rebased) payable to Royal College of Business and Management Limited. Attached to the said voucher was a letter dated 10th November, 2008 from Royal College of Business and Management Limited to the Ministry of Health. PW56 also received other documents for analysis including a certificate of title for Stand No. 7791 in the name of Mary Mwamba Sampa, a letter of sale for the subject property from the appellant to the Managing Director of Apex Business Limited and a valuation report. PW56 also received letters from Total Zambia Limited to the appellant, motor vehicle insurance forms relating to a Toyota Mazda, and Mercedes Benz in which the appellant was the insured and insurance cover for motor vehicle TIZ 314 GP. PW56 also received a house plan for House No. 3325/B/1 Ibex Hill and other documents related to the same property. He also received bank transfer letter dated 28th November, 2007 from the Ministry of Health to the Bank Manager Inda-Zambia Bank for the transfer of K432,022.336 (rebased) I I I I I I I I I Jll9 to Algonquin Management Consultants Account No. 0070844009 held at Finance Bank. He was also handed a torn cheque no. 70 in the sum of K400,000.00 (rebased) drawn on the Algonquin Management Consu ltants at Finance Bank. 2.257Based on the evidence collected by PW56, it was established that the four payment vouchers dated 11th November 2008, which were recovered from the appellant's house in April 2009, were from the Ministry of Health. These vouchers were prepared six months after the appellant had left the Ministry. It was also established that Mr. Frederick Mwila took over from the appellant as Chief Human Resource Development Officer at the Ministry of Health in May 2008. PW56 found it suspicious that the appellant was found in possession of payment vouchers and letters of transfer related to Algonquin Management Consultants, which had business dealings with the Ministry of Health even after he had left the ministry. In addition, the appellant was found in possession of a cheque drawn from the Algonquin Management Consultants Company. 2.258 PW56 further testified that he conducted a bank search into the accounts of Algonquin Management Consultants held at Finance Bank I I I I I J120 Kamwala Branch and found that between February 2007 to November 2007, the account was dormant with a negative balance of K170.00 (rebased). During the period November 2007 to November 2008, there were various credits and withdrawals on the account, with the majority of the credits coming from the Ministry of Health. PW56 noted that 99.79% of the funds on the said Algonquin Management Consultants Account during the period in question came from the Ministry of Health. In terms of credits that were deposited in the account from the Ministry of Health, PW56 identified 13 credits, the majority of which were made in 2008. The total amount of the credits was K?,696,682.43 (rebased). The same amount was reflected on the Ministry of Health payment voucher for Algonquin Management Consultants that was recovered from the appellant's house. PW56 further observed that the payments that were made on the said Algonquin Management Consultants Account from the Ministry of Health would almost immediately be withdrawn in cash form in huge sums. 2.259 PW56 further testified that among the documents he collected from the Ministry of Health, included cancelled cheques, payment vouchers, I J12 1 and minutes from Ministerial Tender Committee meetings and tender minutes from 2007 to 2008. PW56 proceeded to conduct a search on Inda-Zambia Bank Lusaka Branch Account No. 29142009 for the Ministry of Health. He discovered that most of the payments that were debited on the account were credited to Algonquin Management Consultants account. 2.2601n terms of issuing instructions to the bank, two signatories were needed. One on panel "A" and the other on panel "B." PW56's investigations revealed that at the material time AS, A2, A9 and A4 were panel "A" signatories. Panel "B" signatories included A7 and A3. The majority of the instructions relating to Algonquin Management Consultants payments were signed by A2 and A9 on panel "A" and A3 and A7 on panel "B." 2.261 PW56 further conducted a search on the Ministry of Health Account No. 10250008 at First Alliance Bank, Lusaka where he collected mandate files, backing sheets, EFTAs and a cheque made to Algonquin Management Consultants. He noted three payments from the said account namely K216,268.00 (rebased), K629,029.00 (rebased) and J122 K16,250.00 (rebased) were made following instructions signed on panel "A" by A2 or A4 and panel "B" by either A3 or A7. 2.262PW56 interviewed PW1, PW2, PW19, PW35, PW38, PW39 and PWS0 who informed him what has been already stated on record. PW56 collected the following payment vouchers from Ms. Kalaluka (PW35): (rebased) payable ► A payment voucher dated 9th March, 2008, in the amount of K947,294.20 to Algonquin Management Consultants. Attached to the voucher was a February 2008 letter from Algonquin Management Consultants to the Permanent Secretary at the Ministry of Health, along with a list of Office Assistants and Secretaries. The letter was a photocopy. ► A payment voucher dated 9th April, 2008, in the amount to Algonquin the to of K886,317. S0 Management Consultants and addressed Permanent Secretary at the Ministry of Health. (rebased) payable (rebased) payable ► A payment voucher dated 17th April, 2008, in the amount of K732,350.00 to Algonquin Management Consultants. Attached was a copy of a letter from Algonquin Management Consultants addressed to the Permanent Secretary at the Ministry of Health. ► A payment voucher dated 5th May, 2008, in the amount of K216,268.00 to Algonquin Management Consultants. Attached to the voucher was a Commitment Requisition. (rebased) payable I I I I I I I I I I I I I I J123 ► A payment voucher dated 15th August, 2008, in the amount of K16,250.00 (rebased) payable to Algonquin Management Consultants. Attached to the voucher were a Commitment Requisition, a list of participants' names, and a letter from Algonquin Management Consultants dated 10th April, 2008. ► A payment voucher dated 26th August, 2008, in the amount of K497,SSO. OO (rebased) payable to Algonquin Management Consultants. ► A payment voucher dated 10th October, 2008, along with two letters from Algonquin Management Consultants to the Permanent Secretary at the Ministry of Health. 2.263 PW35 informed PW56 that after processing the payments, the payment vouchers, which are created in quadruplicate, are distributed as follows: (i) the first copy is kept on the Box file with the supporting documents at the Accounts Unit. (ii) The second copy is given to the payee. (iii) The third copy is placed on a separate Box file in the Accounts Unit. (iv) The final copy is filed on the subject file used to make the payments. 2.264However, for the payment voucher that he collected from the Ministry of Health, all four copies of the payment vouchers were not separated. J124 2.265 PW56 interviewed PW19 who explained to him how the appellant would use her and other signatories to the Algonquin Management Consultants Account to withdraw the money sent by the Ministry of Health to the Algonquin Management Consultants Account domiciled at Finance Bank Kamwala Branch to give him under the pretext that he was going to return it to the Ministry of Health. 2.266PW19 identified eight cheques, totalling Kl,862,000.00 (rebased), as having been filled in by the appellant. PW56 submitted the eight cheques and one that was recovered from the appellant's home to the handwriting expert for analysis. The handwriting expert confirmed that the cheques were filled in by the appellant and that the signatures were for the authorised signatories for the account. 2.267PW56 also collected other documents for analysis, including payment vouchers, letters, cheques, and receipts dated 11th November, 2008 in the sum of Kl00,000.00 (rebased) signed by the appellant and Dr. Leonard Nkole Kalinde. He also collected handwriting specimens from Enala Matutu Phiri, the appellant, A2, A3, and A4 for submission to the handwriting expert for analysis. The handwriting expert compiled a report identifying the people who signed the various documents. I I I I I I I I I I I I I I I I I J125 2.268Testifying on the payment voucher dated 11th November 2008 in the sum of K586,592.15 (rebased), with instructions to pay as per the attached budget, which was recovered from the appellant's home and endorsed by the appellant. PW56 established that the appellant endorsed the instructions on the document in November, 2008 after he had ceased to be an employee at the Ministry of Health, and yet the officers in Accounts and the cheque signatories still went ahead to effect payments based on those instructions. 2.269Testifying on the workshops, it was PW56's evidence that PW19 informed him that she held workshops in 2008 for Drivers and Office Orderlies. Out of all the money she received between the period November, 2007 and November, 2008 these were the only workshops she conducted, and the rest of the money was given to the appellant so that he could take it back to the Ministry of Health. 2.270 PW56 then collected from the Ministry of Health five Government of the Republic of Zambia cash books for the expanded basket account Bo. 29142009 held at Inda-Zambia Bank. He found that during the period 2007 to 2008, there was no refund from Algonquin Management Consultants to the Ministry of Health. There were no contracts for the I I I I J126 payments, and the payments were not backed by authority. PW56 then delved into the documents to establish the people that necessitated the movement of the money from the Ministry of Health's various bank accounts. 2.271On the payment for K432,022.336 (rebased), it was established that the appellant, A2, A3, A4 and AS necessitated the movement of the money from the various Ministry of Health accounts. The movement of the money started when the appellant issued the instruction to the Chief Accountant, with the following words; "Chief Account, please pay as per the attached budget." When PW56 looked at the organisation structure at the Ministry of Health, he noted that A2, A3 and A4 were senior to the appellant - the person that issued instructions for the said payment. 2.272On the payment of K557,785.80 (rebased) to Algonquin Management Consultants from the Ministry of Health. PW56 established that the people that necessitated the movement of the money without authority were A2 and A7 as evidenced by exhibits "P16(a)" and "P15." The money was for a workshop that never took place and it was not refunded back to the Ministry of Health. He thus suspected the I J127 appellant, A2 and A7 as the people that stole the money. Later, the appellant made huge cash deposits into Kahekam, Best Home Lodge and Hensaka Enterprises accounts that totalled to K420,000 .00 (rebased). 2.273On the payment of K942,224.00 (rebased) for the Executive and Management Secretaries' Seminar as per letter from Algonquin Management Consultants to the Permanent Secretary, PW56 established that the appellant, A4, and AS necessitated the movement of the money which started with an instruction from the appellant to the Chief Accountant to pay as attached budget. PW56 was able to link "P36" and "P59(a)" based on the description for the payment namely; "Executive and Management Secretaries' Seminar." According to PW19, the said workshop did not take place and the money was given to the appellant. 2.274Testifying on the transfer of K886,317.50 (rebased) from the Ministry of Health to Algonquin Management Consultants Account. PW56 observed that two days after the said money was deposited into the Algonquin Management Consultants Account, the appellant made a cash deposit of K130,000.00 (rebased) into the Hensaka Account on I I I I I I J128 April 11, 2008, which coincided with a withdrawal of K200,000.00 (rebased) on the same day consisting of K50,000 notes. Additionally, PW56 noted a cash deposit of USDll,600 [K40,000.00 (rebased)] into the Kahekam Dollar Account on April 19, 2008, and a cash deposit of K50,000.00 (rebased) into the Hensaka Account on April 25, 2008, which brought the total to K350,000.00 (rebased). 2.275 PW56 observed that these deposits coincided with withdrawals made by PW19 from the Algonquin Management Consultants Account. Further that, the denominations of the notes deposited by the appellant matched those of the notes withdrawn from the Algonquin Management Consultants Account. 2.276On the payment of K732,350.00 (rebased), PW56 referred to a number I of exhibits including "Pl( c)," the payment voucher for the said amount, "P13(c)" the EFTA No. 32, and "P15(d)." It was his evidence that the narration on the payment voucher indicates that the payment was for a workshop. Attached to the payment voucher is a letter from Algonquin Management Consultants soliciting business to conduct workshops at Ministry of Health for Office Orderlies, Messengers, and Cleaners. The participation fee per participant was I I I I I I I J129 Kl,550.00 (rebased). The said amount was to cover tuition, workshop materials, stationery, and certificate presentation. The letter indicates that out-of-pocket allowance and transport allowance was to be paid by the sponsoring organisation. The dates and venue of the workshop were to be communicated upon receipt of funds. The letter has several endorsements including an "FYA" from Doctor Simon Miti. The endorsement was to the Director - Human Resource and Administration/Chief Accountant. When interviewed in relation to the said endorsement, Doctor Simon Miti disputed the allegation that he endorsed "/ CA" on that document. 2.277 PW56 stated that after analysing the documents he noted that after dividing the cost per participant into the total figure paid for the said workshop, it gave him a 472.48 as the number of participants that attended the workshop, which was irregular because human beings cannot be in decimal points. He further noted that while the letter purporting to grant authority for the workshop indicated that the dates and venue for the workshop would be communicated, the payment on "Pl( c)" which was raised two days after receipt of the said letter indicated that the payment was for the workshop which was already J130 held. PW56 wondered when the workshop was held given the time constraint. 2.278On "P13(c)," which is the EFTA on which the said K732,350.00 (rebased) was paid, PW56 stated that the EFTA was only signed by A2. The backing sheet was however signed by A2 and A7. When PW56 interviewed the Bank Manager at Inda-Zambia Bank on how a payment was effected on one signature, he was informed that when A9 was phoned by the Bank to inquire on whether the payment was genuine, A9 answered in the affirmative. That is how the payment was effected. 2.279On the payment of K947,274.00 (rebased), PW56 testified that the K947,274.00 (rebased) transferred from the Ministry of Health to the Algonquin Management Consultants Account on 28th July 2008 was withdrawn in cash between 29th July and 15th August 2008, the money was drawn from the Expanded Basket Account No. 294009 for the Ministry of Health held at Inda-Zambia Bank. The movement of the money was necessitated by A2, A7 and the appellant. 2.280PW56 further testified that on 6th February, 2008 as evidenced by P24, a credit of KS0,500.00 (rebased) was made to the Algonquin Management Consultants Account from the Ministry of Health. The I I I I I I I I I I J131 payment was in relation to a workshop organised for drivers in the Ministry of Health in 2008 with the theme "Defensive Driving Workshop" at Cross Roads Lodge. The workshop was facilitated by Algonquin Management Consultants, for a total of 77 participants. The cost per participant was Kl,150 .00 (rebased), and the total cost for the workshop was K88,550.00 (rebased). However, the Ministry paid a total amount of K96,750.00 (rebased) to Algonquin Management Consultants, which was K8,200.00 (rebased) more than what was due. 2.281 PW56's further investigations revealed that there were irregular payments made from the Ministry of Health to Algonquin Management Consultants, which were meant to be used for training workshops for Office Orderlies, Cleaners, and Messengers. The payments issued as evidenced by exhibit "P24" were made twice namely; K947,224.20 (rebased) on 11th March, 2008 and K886,317.50 (rebased) on 7th April, 2008, and in both cases, the cost per participant was Kl,550.00 (rebased). PW56 established that no such training took place and part of the money was withdrawn in cash form and given to the appellant. Among the various officers that necessitated the movement of the money were the appellant, A2, A3, and AS with the payment instruction I I I I I I I I I I I I I I J132 starting with the appellant. PW56 noted that the payment vouchers "Pl( c)" and "P1( d)," were signed by various individuals and were audited by the appellant. The EFTA used for the payment of K886,317.50 (rebased) had two signatures for A2 and A7, whereas the EFTA used for the payment of K947,224.20 (rebased) only had one signature, which was not in line with the mandate file that requires a minimum of two signatories for such payments. PW56 also noted that in the Ministry of Health Action Plan for 2008, there was allocation for training for Office Orderlies, Messengers and Cleaners. 2.282 PW56 also collected a payment voucher in the sum of K164,000.00 (rebased) payable to Suwilanji Gardens, which had several attachments. He also collected a local purchase order issued to Manchinchi Bay Lodge in the sum of K75,680.00 (rebased) together with its attachments marked "P12{a) to {o)" and "P93{a) to {h)" respectively. It was his evidence that the internal memorandum was endorsed by the appellant and A2 instructing the people in accounts to pay. 2.283 PW56 further testified that "93(f)" showed a budget for the workshop at Manchinchi Bay Lodge for forty Secretaries, at the cost of K2,550.45 I I I I I I I I I I J133 (rebased) per participant. The total cost for the said participants was K102,018.00 (rebased). PW56 compared "P93(f)" the said Budget to "Pl{ d)" which is the payment voucher dated 20th May, 2008 on which K216,268.00 (rebased) was paid to Algonquin Management Consultants. He noted the discrepancies in that while the budget indicates that the total payment was K102,018 .00 (rebased), the amount on the said "P1{d)" is K216,268.00 (rebased). Further, Ms. Mkandawire's memo indicated that the money was to be drawn from the Expanded Basket as per the Action Plan and Budget yet the payment voucher indicated that the payment was made from the Mirror Account. 2.284The Commitment Requisition attached to the said payment voucher shows that it was prepared by Mr. Stanley Musonda and authorised by the appellant but Mr. Stanley Musonda denied having prepared the said Commitment Requisition as indicated on "P1(d)." According to Mr. Stanley Musonda's evidence, the appellant prepared the said Commitment Requisition. The Handwriting Expert confirmed that the Commitment Requisition was prepared and authorised by the same person. J134 2.285 PW56 further learned from Mrs. Kapihya - [Director of Human Resource and Administration] - that it was irregular for the same person to prepare and authorise a Commitment Requisition. The appellant was not authorised to sign the Commitment Requisition on behalf of the Director of Human Resource. 2.286He further noted that on the part where the balance of the funds on the account ought to be indicated, the amount indicated on the Commitment Requisition is negative [Kl,727,450.744 (rebased)]. The part that ought to be filled in by the Procurement Department is blank. PW56 wondered why the payment was processed in light of the negative balance indicated on- the Commitment Requisition. PW56 further stated that the said payment voucher was prepared by Thandiwe Matandilinzwe, checked by Brian Chileshe, approved by AS, passed for payment by Danstan Mwansa, and audited by the appellant. PW56 found that the payment voucher herein was taken to both Mr. Danstan Mwansa and the appellant for their respective action by the appellant. PW56 found it strange that the payment for K216,268.00 (rebased) could be processed when what was actually approved by the Permanent Secretary was a K102,018.00 (rebased). I I I I I I I I I J135 2.287It was his evidence, that the said payment was effected by use of EFf A number 21 herein marked "Pl{d)." The same amount is reflected on the Backing Sheet herein marked "P9(a)." The said amount was drawn from the Ministry of Health Mirror Account. The Bank instructions and the Backing Sheet were signed by A3 and A4. The Backing Sheet also has PW38's signature. When interviewed on who moved the said money, the Bank of Zambia, though its officer namely Mr. Muka Madubeko, indicated that the money was moved by A3 and A4 because they were the authorised signatories. The said official indicated further that since PW38 (Dr. Simon Miti) was not a signatory as per the mandate file, therefore his signature on the said Backing Sheet was of no consequence. 2.288 PW56 further testified that the workshop for Secretaries, took place at the Manchichi Bay Lodge in Siavonga from the 4th July, 2008 to the 8th July, 2008. However, out of the forty ( 40) Secretaries who were supposed to attend only nineteen (19) attended. This meant that Algonquin Management Consultants ought to have been paid K48,458.50 (rebased) only at the cost per participant of K2,550.45 (rebased). I I I I I I I I J136 2.289 PW56 opined that since Algonquin Management Consultants was to be paid the sum of K102,0_18.00 (rebased) for forty participants, a payment of K216,268.00 (rebased) meant that Algonquin Management Consultants over paid by K114,250.00 (rebased). However, if one was to consider the amount that ought to have been paid for the nineteen participants that actually attended the workshop then the K216,260.00 (rebased) represents an overpayment of K167,809.45 (rebased). 2.290PW56 further found that the Ministry of Health paid K44,000.00 (rebased) to Kondwani Mkandawire as imprest to pay out-of-pocket allowances to participants who attended a workshop in Manchichi Bay, Siavonga. Kondwani Mkandawire confirmed receiving the imprest and paying out the allowances from it. However, the K629,029.80 (rebased) given to the appellant by PW19 to pay participants was not used for that purpose and did not go back to the Ministry of Health. PW56 also found that the credits to the Algonquin Management Consultants Account were withdrawn in cash between June 6, 2008, and June 16, 2008. The balance in the account was Kl,814.8611 (rebased) on June 16, 2008. I I I I I I I I I I J137 2.291 PWS6 further found that during that period, the appellant was no longer working at the Ministry of Health, as evidenced by his letter of transfer to the Ministry of Local Government and Housing, a memorandum from the Permanent Secretary informing the appellant of the transfer, and other documents. The appellant's position was filled by Mr. Frederick Mwila in May 2008. PW56 further testified that the appellant altered an instruction on "P93(e)" by adding "/CA" so that it could read as if the Permanent Secretary's instruction was issued to both the Director of Human Resource and the Chief Accountant. 2.292On the payment of K216,268.00 (rebased) and K629,029.80 (rebased) to Algonquin Management Consultants as payment for participation fees for Secretaries and as allowances for participants, PW56 discovered the aforementioned sums of money credited to the Algonquin Management Consultants Account were withdrawn by PW19 and given to the appellant as evidenced by cheques marked "P26." 2.293Two workshops were held for Office Orderlies at Suwilanji Gardens after the K216,268.00 (rebased) was deposited instead of the Secretaries' workshop indicated on the payment, and the Ministry of Health paid K164,246.00 (rebased) to Suwilanji Gardens for the J138 workshops and conference facilities. That imprest in the sum of K98,700.00 (rebased) was paid to Ms. Kondwani Mkandawire on cheque number, 534684 to pay out allowances to the said participants. 2.294Further, the budget indicated that the workshop was for 75 participants, but the records show that only 70 participants attended the workshop. Thus, if the cost per participant was Kl,550.00 (rebased) as indicated on the documents, then the amount due to Algonquin Management Consultants was Kl0S,700 .00 (rebased). When the amount is subtracted from the K216,268.00 (rebased) being the purported total cost, it leaves a difference of K107,768 .00 (rebased). The said difference was enough to cover for the nineteen participants that attended the Secretaries' Workshop at Manchinchi Bay Lodge in Siavonga in July, 2008. The total cost for the said 19 participants was K48,000.00 (rebased). When K48,000.00 (rebased) is subtracted from K107,768.00 (rebased) which was the difference from K216,268.00 (rebased) the difference is K59,000.00 (rebased). 2.295After establishing that the said K216,268.00 (rebased) and the K629,029.80 (rebased) was transferred from the Ministry of Health Account at Inda-Zambia Bank to the Algonquin Management I I I I I I I I I I I I I I I J139 Consultants Account at Finance Bank, on 5th June, 2008, and that two of the cheques which were used to withdraw a total of K41,000.00 (rebased) were filled in by the appellant, PW56 proceeded to conduct a search on the appellant's Companies' Accounts including Kahekam, Enterprises. PW56 also searched the appellant's personal accounts which were held at Finance Bank Longacres Branch. The search revealed that during the said period the payees on the cheques that were drawn on the said accounts included Toyota Zambia Limited, Gracewell Mwale, Mr. Henry Kapoko, Fred Chileshe, Bubala Chulu, Pa Zed Enterprises, Tap Zambia Limited, Chilubula Trading, Silver Line Travel, Handyman's Paradise, Superior Furnishers, Mikalile Trading, Furn King, Furnishing World, and Oriental Quarries. 2.296On the cash deposits, it was his evidence that the same was either signed by the appellant, Fred Chileshe, Bubala Chulu or John Kapoko. He said that he also collected one Local Money Transfer Form dated 14th April, 2008 in the sum of K300,000.00 (rebased) in favour of Gracewell Mwale. The same was drawn on Hensaka Account. 2.297Testifying on each account, PW56 stated that the Best Home Lodge Account was opened in October, 2007 and that the appellant is the J140 sole signatory to the Account. PW56 further noted that there were a number of huge deposits made on the Best Home Lodge Account. The deposits coincided with the period within which PW19 indicated that she was giving the money received from the Ministry of Health to the appellant. 2.298PW56 further stated that the appellant was the sole signatory to the Hensaka Account which was opened in 2004 but only became active between December, 2007 and October, 2008. PW56 noted the large cash deposits that were made into this account during that period. Using "P24" the Bank Statement for Algonquin Management Consultants, PW56 noted the various cash deposit slips and cheques drawn on the various accounts marked "P99" to "P109" and the cheques "P26" and "P82(a), (b) and (e)." 2.299 Further on the sums of K216,268.00 (rebased) and K6,929,029.80 (rebased) that were transferred from the Ministry of Health to Algonquin Management Consultants Account, PW56 noted that "P24" had two withdrawals of K200,000.00 (rebased) each on cheque no. 72 in favour of PW19 but filled in by the appellant. On the same day, the appellant made deposits of KlS,000.00 (rebased) each into the I I I I J141 Kahekam Account and Best Home Lodge Account respectively, and Kl00,000.00 (rebased) Hensaka Account. The withdrawals comprised KS0,000.00 notes, making up the total of K130,000.00 (rebased) deposited into the three accounts. This corroborated PW19's claim that she gave money from the Algonquin Management Consultants Account to the appellant. 2.300 Furthermore, PW56 noted on "P82{ e)" a Bank Statement for Best Home Lodge, that on 27th June 2008, there was a withdrawal of K20,000.00 (rebased) on cheque number 85, in favour of A9. This was after the sum of K732,350.00 (rebased) was paid to Algonquin Management Consultants. The payment was only effected after A9 confirmed to the Bank that the payment was okay. PW56 noted that A2 and A7 worked with the appellant in processing the said payment even after the appellant had already left the ministry. 2.301Additionally, PW56 noted that "P24," shows another cash withdrawal of Kl00,000.00 (rebased) in favour of PW19 on cheque no. 59 on 3rd May, 2008 in K50,000.00 notes. The said withdrawal coincides with the appellant's deposits of K40,000.00 (rebased) made in Hensaka Account in K50,000.00 denominations. PW56 concluded that the said I I I I I I I I J142 deposits corroborated PW19's evidence that after withdrawing K732,350.00 (rebased) from the Algonquin Management Consultants Account, she gave the money to the appellant. 2.302The payment of K497,550.00 (rebased) was transferred to Algonquin Management Consultants on 9th September, 2008 and later withdrawn by cheques ranging from Kl,000.00 (rebased) to K20,000.00 (rebased). PW19 withdrew the said money and gave it to the appellant. Cheque numbers 82 "P26" and 81 "P26" used for withdrawing the money were filled by the appellant as confirmed by the Handwriting Expert. 2.303 PW56 further analysed the Bank Statements for Kahekam, Best Home Lodge and Hensaka and noted according to "P106" that on 5th September, after K397,000.00 (rebased) was withdrawn from the Algonquin Management Consultants Account, the appellant made huge cash deposits into the aforementioned accounts which PW56 linked to the money withdrawn from Algonquin Management Consultants. 2.304On the payment of K618,068.85 (rebased) which was transferred to the Algonquin Management Consultants Account from the Ministry of Health on the 14th of October, 2008, PW56 stated that the said money I I I I I J143 was withdrawn between 14th October, 2008 and 3rd November, 2008 by PW19 and given to the appellant and that the workshop pursuant to which this money was paid to Algonquin Management Consultants never took place. 2.305One of the cheques which was used to withdraw K400, 000, 000.00 from the said amount is cheque No. 114. The cheque was payable to Masuzyo Chawinga and the money was withdrawn on 15th October, 2008. The details on the said cheque were filled in by the appellant. 2.306When he examined the Bank Statements for Kahekam, Best Home Lodge and Hensaka Accounts, he noted on "P106" that on 15th October, 2008 which was the day of the said withdrawal, the appellant deposited a similar amount on the material day in the Best Home Lodge Account. A cash deposit of USD4100 was made to the Kahekam Dollar Account. Using the above stated exchange rate, the said USD4100 translates to K18,593.50 (rebased). The above stated deposits amounted to a total of K418,593.50 (rebased) which was deposited . 2.307In relation to the payment of K592,925.15 (rebased), PW56 testified that the money was credited to the Algonquin Management Consultants Account on 17th November, 2008, as shown by exhibit I I I I I I I I J144 "P24." The money was later withdrawn in cash and given to the appellant between November 18 and December 31, 2008. The workshop for which the money was paid never took place. PW56 discovered that the appellant filled in cheque no. 122, dated 19th November, 2008, which was one of the cheques used to withdraw K350,000.00 (rebased), and that the cheque was in favour of Masuzyo Chawinga. The cheque showed that the amount of K185,000.00 (rebased) was made up of KS0,000 .00 notes, KlS0,000.00 (rebased) made up of K20,000.00 notes, and KlS,000.00 (rebased) made up of Kl0,000.00 notes. 2.308The money was moved on the instruction of the appellant even after he had left the ministry. The people that necessitated the movement of the money were A3, A2, the appellant, A9 and A7. 2.309On this payment, PW56 observed that after computing the amount paid to Algonquin Management Consultants, which was K592,925.15 (rebased), based on the cost of K3,550.00 (rebased) per participant and 162 participants, PW56 discovered that the product of 162 x K6,550.00 (rebased) was K959,172.90 (rebased). Even if Algonquin Management Consultants had conducted the workshop, it would have I I I I I I J145 been overpaid by Kl?,752.25 (rebased). PW56 noted similar miscalculations and overpayments on the attendant budget. 2.310 Further examination of Bank Statements for Best Home Lodge Account, Kahekam Kwacha Account, Kahekam United States Dollar Account, and Hensaka Account revealed that large deposits were made after the money was withdrawn from the Algonquin Management Consultants Account. On November 19, 2008, the same day that K350,000.00 (rebased) was withdrawn, the appellant deposited KS0,000.00 (rebased) cash into the Kahekam Kwacha Account, USD21,505.37 cents into the Kahekam US Dollar Account, and ZMK60,000.00 (rebased) cash into the Best Home Lodge Account. PW56 noted that the cash deposit slip for the KS0,000.00 (rebased) deposited into the Kahekam Kwacha Account indicated that K70,000.00 (rebased) was in K20,000.00 notes and Kl0,000.00 (rebased) was in Kl0,000.00 notes. The cash deposit slip for USD21,505.37 indicated that the appellant actually deposited ZMKl00,000.00 (rebased), which was made up of KS0,000.00 notes only, matching the notes indicated as withdrawn on cheque no. 122. When PW56 added up the deposits made by the appellant on the material day, it came to K240,000.00 (rebased), which I I I I I I I I I I J146 was deposited on the same day that K350,000.00 (rebased) was withdrawn from the Algonquin Management Consultants Account. 2.311 PWS6 further testified that two other payment vouchers were made in the sum of K247,460.00 (rebased) and K250,000.00 (rebased) respectively marked "P27(c)" and "P27(d)." When PW56 summed up the said payments in "P27( c)" and "P27( d)" he noted that the sum of K497,860.00 (rebased) was almost the same figure as the total amount of allowances that were indicated on the budget by AS which formed part of the payment on "P27(a)." These payments were made on the appellant's instruction. 2.312PW56 also noted that four payments amounting to a total of Kl,847,041.05 (rebased) were made on the same day for training on the instructions of the appellant who was no longer an employee at the ministry. On one of the payments, PW56 learned that the EFTA and Backing Sheets marked "PlS(h)" with the payment of K227,800.00 (rebased) were payable to Danstan Mwansa on cheque no. 851. According to Danstan Mwansa, A2 informed him that the appellant would give him a cheque so that he could cash it in. The appellant handed over the cheque to Mwansa and after cashing it, I I I J147 Mwansa took the money back to the Ministry of Health and reported to A2. A2 gave a list of Auditors and Accountants to pay. He paid out about K45,000.00 (rebased) and the difference was given back to the appellant as per instructions from A2 on the pretext that he would pay other workshop participants. The appellant would receive the allowance as the coordinator. The said payment had no authority and PW56 concluded that the money was stolen. After adding the payment to Dantsan Mwansa, PW56 noted that the payments proceeded in that day was over K2,000,000.00 (rebased). PW56 found it strange that A2 would tell Mwansa to handover K180,000.00 (rebased) to the appellant who was no longer an employee at the Ministry of Health. Further, A2, A4, AS, and the appellant all received allowances on the said schedule for a workshop that never took place. 2.313 PW56 observed that these deposits coincided with withdrawals made by PW19 from the Algonquin Management Consultants Account. Further that, the denominations of the notes deposited by the appellant matched those of the notes withdrawn from the Algonquin Management Consultants Account. I I I I I I I I I I I J148 2.314PW56 noted that a total of Kl, 88,483,500.00 was deposited into Kahekam account, K827,250.00 (rebased) was deposited in the Best Home Lodge Account while K162,000.00 (rebased) was deposited into Hensaka Enterprises Account. This brought the total deposits to K3,168,733.50 (rebased) for November, 2008. PW56 noted that the deposits were made during the period when over K6,800,000.00 (rebased) was stolen from the Ministry of Health. 2.315PW56 further testified that PW19 had informed him that during the withdrawal of the K432,022.336 (rebased). The appellant had accompanied her and he was driving a posh Lexus car with registration number ABL 2336. The payment voucher was one of the payment vouchers found at the appellant's home. Further, a Bank Teller at Finance Bank by the name of Michael Sakala confirmed to PW56 that on the material day, he had helped PW19 carry the money that she had withdrawn to a black posh car. This evidence was also supported by the appellant's warn and caution statement "P71(b )" that sometime in 2008 the appellant received a K3,000.00 (rebased) from the appellant which the appellant had removed from the boot of a Lexus car and that there was a lot of money in that boot. J149 2.316PW56's investigations on the three companies namely; Best Home Lodge, Kahekam and Hensaka Enterprises, revealed that; 2.317Hensaka was registered in the year 2000, and had two shareholders namely Ms. Mary Mwamba Sampa, and the appellant. The said Mary Mwamba Sampa is the appellant's wife. The nature of its business is general trading. The appellant is the beneficial owner of the said company. 2.318On Kahekam, PW56 noted that it was registered in March, 2007. The I said company had two Directors namely the appellant, and the late Mr. Henry Kalikeka. The nature of its business is general trading and its registered physical business premise is Plot No. 13947 Roma Township. The appellant is the beneficial owner of Kahekam. On Best Home Lodge, it was his evidence that the company was registered in May, 2007 and had four registered owners namely John Kapoko, Brian Sampa, Thelma Sampa and Barbara Mooyo. The said shareholders were its Directors. The registered nature of business includes Hostels, Motels, Lodges and Bars. The physical place of business is Plot No. 13947 Roma Township. I I I I I I JlSO 2.319PW56 found that Plot No. 13947 where the Best Home Lodge is constructed was purchased by the appellant from Mr. Luka Special Mwanza as bare piece of land; That, John Kapoko is the appellant's brother while Thelma Sampa and Brian Sampa are the appellant's first cousins. At the time of investigations, Thelma Sampa was under the appellant's ward as a dependent. The appellant was the one who was paying her school fees at National Institute of Public Administration (NIPA). Barbara Mooyo was the appellant's employee. She was the Manager at Best Home Lodge. Although the appellant does not appear as a shareholder of Best Home Lodge, he is a beneficial owner and the sole signatory to the company's account. According to a Valuation Report done by OW Zyambo and Associates, the lodge was valued at KS,800,000 .00 (rebased). 2.320PW56 further testified using "P114(a)" and "P114(b)" the Valuation Report by Mike Consultant and OW Zyambo that the value of the lodge had increased significantly. 2.321 PW56 then conducted an analysis of the activities of the Best Home Lodge, Hensaka, and Kahekam Accounts to establish the sources of funds and patterns of deposits made by cash and cheque marked JlS l "P116." He sought to establish whether there was a sudden increase in the value of the transactions during the period the appellant was involved in stealing money from the Ministry of Health through Algonquin Management Consultants. 2.322 PW56 collected the appellant's financial profile for the period 2007 and 2008 to establish if the appellant had the financial capacity to construct the Best Home Lodge from his legitimate sources. Among the documents that PW56 collected for analysis were two pay slips for the appellant marked "P115{a)" and "P155(b)." After analysing the appellant's financial profile, PW56 established that the appellant had not borrowed any loan from a bank to finance the construction of the Best Home Lodge. PW56 came to the conclusion that as the appellant's legitimate sources of income could not have financed the construction of the Best Home Lodge, the money stolen from the Ministry of Health was used in the construction of the lodge. PW56 also noted that the lodge was constructed during the period when K6.8 million (rebased) was stolen from the Ministry of Health by the accused herein. I I J152 2.323Using "P106 to P112, P116, P117 and P56{a) to {c)," PW56 demonstrated the flow of money from the Ministry of Health through Algonquin Management Consultants into the appellant's businesses. 2.324An analysis made on "P106" revealed that the appellant deposited K30,000.00 (rebased) in the Kahekam Account, K20,000.00 (rebased) in the Best Home Lodge Account, and K104,000.00 (rebased) in the Hensaka Account on 31st July 2008 making a total of K154,000.00 (rebased) deposits. The deposits marked "P101{ii)" for Best Home Lodge, "P101{xii)" for Kahekam and "P101(xxviii)" for Hensaka were also made by the appellant. The appellant is the one who delivered the Backing Sheets and EFf As to Gift Kamwale at the bank, this is what made PW56 to link the appellant to the theft of K947,274.00 (rebased). 2.325 From the analysis of "P107," PW56 found that the deposits in the Best Home Lodge Account were mainly made by the appellant and Bubala Chulu, an Accountant employed by the appellant at Best Home Lodge. Bubala Chulu made 48 out of the 65 cash deposits made between October 2007 and February 2009, with the deposits ranging from K310.00 (rebased) to Kl0,000.00 (rebased), totalling to K120,000.00 I I I I J153 (rebased). On the other hand, the appellant made 17 deposits with huge amounts ranging from K12,000.00 (rebased) to KlS0,000.00 (rebased), totalling to K878,400.00 (rebased). PW56 observed that Bubala Chulu's deposits were proceeds from the business operations of Best Home Lodge, while the appellant's deposits were not proceeds of the business transactions at Best Home Lodge. 2.326An analysis of "P111," revealed that all the cash and cheque transactions for the Kahekam United States Dollar Account were made from April 2008 to December 2008. PW56 noted that there were a total of 20 credits into the account, with a total value of USD116,687.00. The majority of the deposits were in cash form, with only three cheque deposits. Most of the deposits were made by the appellant, while a few deposits were made by Fred Chileshe, who was an employee of the appellant at Best Home Lodge. Two of the three cheque deposits came from Chibuluma Mine valued at USD19,000.00, and the third cheque came from Best Home Lodge Account in the sum of USD7000 .00. The total value of the cash deposits in the Kahekam Dollar Account was USD97,687.00. PW56 also noted that although the I I I I I I I I I I J154 money that reflected in the account was in United States Dollars, the actual deposits by the appellant were in Zambian Kwacha. 2.327 PW56 found it unusual that a Corporate Account like Kahekam Dollar Account could have deposits primarily consisting of cash instead of cheques during the period when the money in question was stolen from the Ministry of Health through Algonquin Management Consultants. 2.328On "P112," which is the analysis of the Daily Cash Deposits to the Kahekam Kwacha and Hensaka Enterprises Accounts for the period November, 2007 to February, 2009, PW56 noted that the Hensaka Account had a total value of cash deposits of K7,645,271.15 (rebased), while the Kahekam Kwacha Account had a total value of cash deposits of K4,260,453.60 (rebased). The total value of deposits in these accounts was Kll,905,724.75 (rebased). PW56 also established that part of the money deposited by the appellant in the Kahekam Kwacha and Hensaka Accounts came from the Ministry of Health through Algonquin Management Consultants. 2.329 He further established that between 19th March 2008, and p t October, 2008, there were only six significant deposits made into the Kahekam JlSS · Kwacha account valued at K181,200.00 (rebased). Deposits were mainly done by the appellant and John Kapoko. PW56's established that the deposits from John Kapoko were from the business (Total Filling Station run by the appellant) as they constituted different denominations and could not exceed an average of K30,000.00 (rebased) per day while the appellant's deposits were not from the business as they constituted huge sums with single denominations. There was a deposit by the appellant for as much as K184,000 .00 (rebased). 2.330As regards the Total Filling Station business, PW56 found that it was required to have a working capital of K400,000.00 (rebased) to run the Filling Station as evidenced by "P56(c)." PW56 concluded that, part of the money that the appellant used to purchase the dealership for Total Zambia Filling Station came from stolen money from the Ministry of Health. PW56 also noted that the cash deposits into this account suddenly reduced after November 2008, which coincided with the period when the accused stopped using Algonquin Management Consultants to steal money from the Ministry of Health. I I I I J156 2.331 He observed that, the K947,224.20 (rebased) that was transferred to Algonquin Management Consultants was withdrawn between 11th March, 2008, and 18th March, 2008, and given to the appellant by PW19. During the same period, the appellant made significant cash deposits to the Best Home Lodge Account, Kahekam Kwacha Account, and Hensaka, totalling K790,000.00 (rebased), which PW56 alleged was part of the stolen money from the Ministry of Health. PW56 further testified that "P108" showed the payments to Total Zambia Limited drawn on Best Home Lodge, Hensaka, and Kahekam Kwacha Accounts, and on 13th March, 2008, the appellant issued cheques totalling K250,000.00 (rebased) to Total Zambia Limited to buy petroleum products and lubricants for resale at Kabulonga Filling Station. 2.332 He considered all the proceeds from the Total Filling Station as proceeds of crime, since the money that the appellant used as start up capital was partly from the Ministry of Health. However, the Filling Station was not doing well, as evidenced by the bounced cheques totalling K524,000 .00 (rebased), that the appellant issued to Total Zambia Limited between 6th January, 2009, and 23rd January, 2009, due to insufficient funds in the accounts. This led to the termination I I I I I I I I I I I J157 of the Marketing License Agreement between Total Zambia Limited and the appellant, as stated in "P56(a)." 2.333 Further investigations were conducted by PW56 from December 2007 to February 2009, aimed at determining other sources of money that went into the appellant's business and personal accounts, as he had acquired high-value property, which were subject of the proceedings. During these investigations, PW56 established that a total of Kl,290,402.00 (rebased) was paid by the Ministry of Health to a company known as Kansma Investment Limited, out of which a total of Kl,095,950.00 (rebased) ended up with the appellant. This amount was paid into the Hensaka Account [K432,000.00 (rebased)], Best Home Lodge Account [K67,750.00 (rebased)], Kahekam Account [K329,000.00 (rebased)], the appellant's personal Account maintained at Standard Chartered Bank Lusaka Main Branch [K57,000.00 (rebased)], and in cash K219,200.00 (rebased). 2.334PW56 claimed that the money from the Ministry of Health that came through Kansma and Best Home Lodge, Hensaka, and Kahekam Accounts during the relevant period became tainted, as it mingled with the stolen money from the Ministry of Health through Algonquin J158 Management Consultants and deposited in the said accounts. Between December 2007 and June 2008, a total of Kl,130,488.00 (rebased) was paid to the Ministry of Health through Rojo Trading Limited. Out of this amount, K916,000 .00 (rebased) ended up with the appellant as follows: ► K190,S00.00 (rebased) was deposited in the Best Home Lodge Account. ► K162,000.00 (rebased) was deposited in the Hensaka Account. ► K117,S00.00 (rebased) was deposited in Kahekam Account. ► K48,250.00 (rebased) was deposited in the appellant's Personal Account held at Zambia National Commercial Bank Cairo Road Business Centre Branch. ► K61,750.00 (rebased) was deposited in the appellant's Personal Account at Standard Chartered Bank Lusaka Main Branch. ► K40,000.00 (rebased) was deposited in the appellant's Personal Account at Finance Bank Longacres Branch, and; ► K296,000.00 (rebased) was deposited into Mwamba Kasamba's Personal Account held at Zambia National Commercial Bank Cairo Road Business Centre Branch. I I I I I J159 2.335 He noted that, the deposits made into the Kahekam, Hensaka, and Best Home Lodge Accounts were commingled with stolen money from the Ministry of Health, rendering the funds tainted. 2.336On 17th January, 2008, the Ministry of Health paid CAN Investment K222,759.80 (rebased), of which K187,077.006 (rebased) was subsequently deposited into the Kahekam Kwacha Account. Additionally, between May and December of 2008, money in excess of KS00,000.00 (rebased) from the Ministry of Health was deposited into the Best Home Lodge Account, which made all the money in that account to be tainted due to commingling with the stolen funds. 2.337 PW56 concluded that all money deposited into the Kahekam, Best Home Lodge, and Hensaka Accounts between October 2007 and April 2009 was tainted, and the subsequent pay-out to other beneficiaries constituted an ongoing act of money laundering. The beneficiaries of these transactions, as outlined in exhibits "P108" and "P109," included Total Zambia Limited, which received a total of Kll,961,481.112 (rebased) between 13th May, 2008 and 3rd February, 2009. Of this amount, K4,844,189 .853 (rebased) was drawn from the Kahekam Account, K6,939,791.259 (rebased) was drawn from the I I I I I I I J160 Hensaka Account, and K180,000.00 (rebased) was drawn from the Best Home Lodge Account. 2.338 Exhibit "P109" shows that between 12th December, 2007, and 4th February, 2009, the appellant made cash withdrawals from the Kahekam, Hensaka, and Best Home Lodge Accounts totalling K4,754,850.00 (rebased). Between August 2008 and February 2009, Fred Chileshe made cash withdrawals on the Best Home Lodge, Hensaka, and Kahekam Accounts totalling K694,785.00 (rebased), while Bubala Chulu made cash withdrawals on the Best Home Lodge, Hensaka, and Kahekam Accounts totalling K166,150 .00 (rebased). 2.339 Between 1st April 2008 and 28th February 2009, Handyman's Paradise received cheque payments totalling K339,209.825 (rebased) drawn on Kahekam, Best Home Lodge, and Hensaka Accounts. During the same period, Pa Zed Enterpris.es received K108,698.00 (rebased) drawn on the same accounts. From 1st April 2008 to 30th December 2008, K24,578.347 (rebased) was drawn from Kahekam, Hensaka, and Best Home Lodge and paid to MICA Arcades Limited. From April 2009 to February 2009, cheques drawn on Best Home Lodge, Hensaka Enterprises, and Best Home Lodge amounting to K179,628.41 I I I I I I I (rebased) were paid to various companies including Oriental Quarries, National Building Supplies, Chibuluma Trading, TAP Zambia Limited, City Cement Blocks, and Galaxy Paints Limited. 2.340It was his further evidence that from April 2008 to November 2008, cheque payments totalling K104,272.40 (rebased) were made to Mikalile Trading, Furnishing World, Superior Furnishers, and Furn King drawn on Best Home Lodge, Hensaka, and Kahekam Accounts. From 1st April 2008 to 9th September 2008, payments totalling K480,500.00 (rebased) drawn on Hensaka and Best Home Lodge Accounts were made to Gracewell Mwale. 2.341On 14th November 2008, Best Home Lodge cheque no. 210 in the sum of KS0,000.00 (rebased) was issued to Doctor Leonard Nkole Kalinde. Between July 2008 and August 2008, three cheque payments drawn on Best Home Lodge and Hensaka Accounts amounting to K78,000.00 (rebased) were made to Rucho Tukuza Tembo. Between May 2008 and October 2008, three cheque payments drawn on Best Home Lodge account amounting to K21,904.00 (rebased) were paid to Australian Institute of Business Technology. On 21 st November 2008, two cheque payments drawn from Best Home Lodge Account amounting to I I I I I J162 K183,261.44 (rebased) were paid to Toyota Zambia Limited . The total amount of cheque payments paid out to the beneficiaries from the mentioned accounts between 1st December 2007 and 28th February 2008 was Kl9,591,405.554 (rebased). 2.342After, analysing the pattern of the transactions on the said accounts, PW56 linked the property in issue to the stolen money from the Ministry of Health. He established that Ms. Mary Mwamba Sampa, the appellant's wife, was the registered owner of Stand No. 7791 Woodlands Extension as of 2009, and that the property was linked to the stolen money. Ms. Mary Mwamba Sampa was summoned to the Anti-Corruption Commission office and requested to make a declaration of her assets. Her declaration, made on the Drug Enforcement Commission Anti-Money Laundering Unit Assets Declaration form dated June 2009, showed that she owned House No. 7791, a Toyota Hiace bus, and had a monthly income of K3,000.00 (rebased). 2.343 PW56 also analysed the documents related to the mortgage payments and sale agreements between Finance Building Society and Mr. Enock Kabwe, and subsequently between Ms. Stella Mweye Kabwe and Ms. I I I I I I I J163 Mary Mwamba Sampa. It was noted that upon signing the sale agreement between Ms. Stella Mweye Kabwe and Ms. Mary Mwamba Sampa on 20th December 2007, the appellant made the initial payment of K139,000.00 (rebased) to Ms. Stella Mweye Kabwe, which was made up of KS0,000.00 notes only. Two days after Algonquin Management Consultants was credited with the amount of K200,000.00 (rebased) which PW19 gave to the appellant. PW56 ·collected Mary Mwamba's financial profile and he found that she had no capacity to acquire the said property from her legitimate sources. The subsequent payments of K40,000.00 (rebased), K30,000.00 (rebased) and K96,057.00 (rebased) on the said house were all paid by the appellant. This was after Kl00,000 .00 (rebased) was withdrawn by PW19 from Algonquin Management Consultants using cheque no. 54 and another Kl00,000.00 (rebased) was withdrawn by PW19 from Algonquin Management Consultants Account on cheque no. 59. The said money was given to the appellant by PW19. PW56 concluded that the money used to purchase the said house came from Algonquin Management Consultants. I I I I I I J164 2.344PW56's investigations also revealed that Mary Mwamba had a Toyota Hiace Registration No. ABP 9276 and a check at RTSA revealed that false information was submitted as evidenced by "P121(c)," "P121{d)" and "PBS(c)." PW56 found that Mary Mwamba had no capacity to buy the said vehicle and he concluded that the same was purchased by the appellant using funds from Ministry of Health. At the time of investigations, the said vehicle was written "Best Home Lodge." 2.345As regards the BMW XS with registration number ABR 36 and a Tipper Truck with registration number ABM 8764, PW56 stated that Mr. Fred Chileshe claimed the BMW XS belonged to the appellant, despite being registered in his name. PW56 found that Fred Chileshe had withdrawn over K694,000.00 (rebased) from Best Home Lodge, Kahekam, and Hensaka Accounts, following deposits made by the appellant into those accounts. The money came from Algonquin Management Consultants, leading PW56 to conclude that the BMW XS was purchased with proceeds of crime. 2.346 PW56 also noted that the invoice for the Tipper Truck, which stated that it was a light truck manufactured in 1990 and was sold for I I I I I I I I I I I I I J165 USD2,500.00, was false. PW56 discovered that the truck was actually a heavy-duty truck manufactured in 2008 and was therefore new when it was purchased. Tax of K7,000.00 (rebased) was paid on the truck based on false documents, leading to a tax evasion of K161,000 .00 (rebased). The Zambia Revenue Authority valued the truck at USD125,000.00, and tax of about K168,000.00 (rebased) should have been collected. PW56 also found it unusual that the appellant registered high-value motor vehicles under the name of his employee, who had no capacity to procure such vehicles. Fred Chileshe's residential address was listed as the appellant's address at the time, and the appellant used money from the Ministry of Health to purchase the vehicles because he did not have legitimate sources of income to support their procurement. A disclaimer was signed by Fred Chileshe, stating that he had no right of claim over the vehicles. 2.347 As the vehicles were not part of the indictment, PW56 initiated administrative asset forfeiture proceedings pursuant to the Anti Corruption Commission of Discovered Properties Regulation of 2005. A gazette notice was issued to Fred Chileshe, and the notice was published in the Post Newspaper to allow anyone else who might have J166 had a claim over the property to lay claim. KBF and Partners, on behalf of their clients, claimed the vehicles and were invited to the Anti Corruption Commission to provide documentation relating to their procurement. 2.348 Regarding the unregistered Mercedes Benz CLS 500 seized from the appellant's house, PW56 was presented with a Zambia State Insurance Corporation Insurance Cover dated November 2008 that was retrieved from the appellant's house on the day of the seizure. The insured was BT Trading of South Africa. He claimed the vehicle belonged to Mr. Rashid but he failed to take purported Rashid to the Anti-Corruption Commission. The said vehicle was also subjected to the above administrative procedure for forfeiture and later joined to these proceedings as no one claimed it. 2.349On the Lexus registration no. ABG 7400, PW56's investigation revealed that the appellant had purchased the said vehicle from Henry Nduba at the price of USD33,000.00 as per sale agreement marked "132(b)." The appellant paid cash but instructed Nduba to register it in the names of the appellant's employee Stephen Chisala. Although the vehicle was purchased outside the indictment PW56 said it was connected to the I I I I I I I I I I I I J167 case as it benefited from the proceeds of crime through spare parts. On the Toyota Lexus ABL 2336 registered in the appellant's name, he found that it was registered during the indictment period and he treated it as a proceed of crime. 2.350 PW56's further investigations revealed that the Mitsubishi Challenger with registration number ABL 6832 registered in the appellant's name, the Canter Light Truck with registration number ABM 406 also registered in the appellant's name, and the Mercedes Benz CLS 500 series with registration number ABR 2204 and personalised registration number BHL 1, were acquired by the appellant during the period when they were stealing money from the Ministry of Health through Algonquin Management Consultants. 2.351 PW56, having analysed the registration and importation documents, as well as other relevant documents, classified these vehicles as proceeds of crime. The documentation relating to the registration of the vehicles, obtained from RTSA, show that they were registered within the indictment period. 2.352 PW56 also discovered some irregularities in the documentation of the vehicles. For instance, the registration documents for the Canter Light J168 Truck show that it was manufactured in 1996, while a physical examination of the vehicle indicates that it was manufactured in 2003. This raises questions about the authenticity of the registration documents, and strengthens the argument that the vehicle was acquired through illegal means. 2.353Additionally, it was discovered that the Mercedes Benz CLS 500 was brought into the country under CIP, with no customs duty paid at the point of entry. The vehicle was, however, assessed for customs duty, and the value indicated on the customs documents was K237,750.00 (rebased). It was found that at the time the vehicle was brought into the country, the appellant had already paid for it, but duty had not been collected. The amount of duty that ought to have been collected was K217,000.00 (rebased). Two weeks after importing the vehicle, its value was reduced to K72,000.00 (rebased) as such only K66,000.00 (rebased) was collected in taxes, resulting in a tax evasion of K151,000.00 (rebased). That the appellant did not have the financial capacity to purchase the Mercedes Benz CLS 500 which he bought at USD35,000.00 from his known sources of income. The vehicle was acquired within the same period when the accused were I I I I I I I I J169 stealing money from the Ministry of Health and PW56 classified the Mercedes Benz CLS 500 as proceeds of crime. 2.354Testifying on "PSS{a)" relating to an unregistered Mazda Drifter was insured by Adamo Pedro Joachim of Maputo, manufactured in 2007, with the registration number MLK-18-28. PW56 noted that, the insurance cover was dated 13th October, 2008 and was found in the appellant's house with the said vehicle. During the appellant's interview in relation to this vehicle, he claimed that it belonged to Mr. Hassan in Lusaka, but he did not reveal the person's identity to the Anti-Corruption Commission until his arrest in July 2009. "PSS(a)" suggests that the vehicle was brought into the country during the indictment period and was, therefore, considered as a proceed of crime. 2.355PW56 also testified on the documents marked "P138(a) to (c)" concerning a Toyota Land Cruiser, which include the tax invoice from Toyota Zambia valued at K270,000.00 (rebased) and two receipts issued to Apache Enterprises, totalling K182,000.00 (rebased). The vehicle registration documents, "P139(a) to (g)," obtained from RTSA, show that the car was allotted registration number ABR 3536. J170 PW56 believed that this vehicle was also proceeds of crime, as it was procured during the same period when the accused stole funds from the Ministry of Health. The vehicle had since been sold to Mr. Namayinga of Namwala, who PW56 believed to be a bonafide purchaser for value without notice. However, part of the stolen money was used to buy this vehicle, making it a way of laundering the stolen funds. 2.356 PW56 further established that the appellant purchased Property No. 3775, also known as House No. 25 Manda Hill Road at Olympia Park in Lusaka, from Mr. Gracewell Mwale in 2008 for K900,000.00 (rebased). The property comprises two stand-alone three-bedroom houses and a servant's quarter. Part of the money used to purchase this property was stolen from the Ministry of Health through Algonquin Management Consultants. The details of the purchase are as per testimony of Gracewell Mwale. In addition, the appellant paid Mrs. Mwale Kl00,000.00 (rebased) cash in April 2008, consisting of KS0,000 notes, at Best Home Lodge. PW56 concluded that this amount was part of the stolen money. I I I I I I I I I I J171 2.357On 11t h April, 2008, the appellant deposited K130,000.00 (rebased) cash into the Hensaka Account, which was part of the stolen money. On 14th April 2008, three days later, the appellant made another deposit of K130,000.00 (rebased) into the same account, which was also part of the stolen money. On the same day, the appellant transferred K300,000 .00 (rebased) from the Hensaka Account to Gracewell Mwale's Account at Stanbic Bank's Main Branch. When PW56 inspected the Bank Account on 5th September 2008, he found that a total of K497,550.00 (rebased) stolen from the Ministry of Health was credited to Gracewell Mwale's Account. 2.358On 4t h September 2008, the appellant filled two cheques for Algonquin Management Consultants totalling K397,000.00 (rebased), and on 5th September 2008, he made a cash deposit of KlS0,000 .00 (rebased) into the Best Home Lodge Account. The appellant then issued two cheques dated 4th September 2008: cheque no. 144 in the amount of K90,000.00 (rebased), and cheque no. 145 in the amount of K90,000.00 (rebased), both payable to Gracewell Mwale. The cheques were cleared on 8th September 2008, after KlS0,000.00 (rebased) was deposited into Algonquin Management Consultants Account. PW56 I I I I J172 concluded that K180,000.00 (rebased) paid to Gracewell Mwale in September, 2008 was part of the stolen money. The other payments relating to the said property were deposited by the appellant into Mwamba Kasamba's Account and they were also part of the stolen money from the Ministry of Health. The appellant paid a total of K900,000.00 (rebased) for the property but the land value was indicated as KS00,000.00 (rebased) which resulted in transfer tax evasion of K12,000.00 (rebased) because out of K27,000.00 (rebased) which ought to have been collected as tax, only KlS,000.00 (rebased) was collected. PWS6 concluded that the property was acquired from proceeds of crime. 2.359PW56 further obtained an Asset Declaration Statement "P167(a) and (b )" made by the appellant and his wife. According to PW56, this only confirmed that said properties were proceeds of crime. 2.360 PW56 then recorded warn and caution statements from the appellant, A2, A3, A4, AS, and the appellant between June 2009 and July 2009 marked "P174(a) to (e)." Warn and caution statements for AS, and the appellant were recorded by Lazarus Chimponda marked "P71(b) to (d)." Under warn and caution AS stated that the payments were I I I I I I I I J17 3 processed based on the endorsement by Dr. Simon Miti which PW56 found to be false as the payments were not backed by any authority. PW56 also noted that they used the Expanded Basket Account for 10 out of the 13 payments made to Algonquin Management Consultants. AS indicated that the appellant's role was to come up with a list of participants and the budget for the transactions. A3, A2, and the appellant also claimed that the authority for the payments was the endorsements "FVA" made by Dr. Simon Miti on the letters from Algonquin Management Consultants addressed to the Ministry of Health and were backed by requisition forms and tender authorisations, which PW56 found to be false. The appellant approved the payment of K618,068.85 (rebased) without any authority and signed the payment voucher without properly checking the documents. The appellant audited three payment vouchers but did not scrutinise them before signing. He also received bribes ranging from KS00.00 (rebased) to K3,800.00 (rebased) from the appellant. PW56 concluded that the appellant's share of the money stolen from Algonquin Management Consultants was K3,800 .00 (rebased). A4 opted to remain silent on the matter. PW56 noted that the payments were I I I I J174 signed based on the unlawful payment instructions issued by the appellant where the appellant indicated "pay as per attached budget" and no service was rendered for the payments made which was against Regulation 50 of Statutory Instrument No. 111 of 2006. 2.361As regards the appellant and A3 who were not Accounting Officers, PW56's investigations established that the appellant and A3, despite not being Accounting Officers, were entrusted with similar responsibilities as Accounting Officers. These included ensuring that payments were made only to entitled payees and that payment calculations were correct. However, it was found that payments made to Algonquin Management Consultants were incorrect in terms of participation fee and allowances, and were made for programmes that were not provided for in the national budget or Ministry of Health Action Plan. PW56 established that K6.2 thousand (rebased) was paid to Algonquin Management Consultants purporting to be for capacity building for workshops for Secretaries, Cleaners, Messengers and Office Orderlies. Such conduct led PW56 to conclude that A3 and the appellant deliberately neglected their duties with an intent to steal money from the Ministry of Health. I I I I I I I I I J17 5 2.362At the conclusion of the investigations, PW56 decided to charge and arrest the accused herein for the alleged offenses. 2.363Cross-examination 2.364 In relation to count 1, where the appellant was alleged to have stolen K432,000.00 (rebased) plus, PW56 stated that there was no payment voucher. He did not know who prepared the said payment and the other people involved in the processing of the payment vouchers, suffice to state that the instruction letter relating to the said payment, marked "P16" and the Bank transfer letter were recovered from the appellant's house. 2.365When referred to "P16" and "P59(a)," PW56 stated that there was no Backing Sheet produced regarding the payment in question, and that the payment did not have a Commitment Requisition, but was drawn from the expanded basket. The Permanent Secretary saw exhibit "P59(a)." 2.366 He further stated that, the bank transfer letter "P16" instructed Indo Zambia Bank to transfer of K432,022.336 (rebased) to Algonquin Management Consultants. PW56's investigations established that the payment never had a payment voucher and the figure came from the I I I I I I I I J176 appellant, who elected to remain silent during his interview. This can be discerned from exhibit "P59( c)" which shows that the appellant endorsed an instruction to pay as per attached budget, and "P36" was ra ised accordingly. PW56 pointed out that he did not see the budget and the appellant would be the one who knows where the budget referred to in the instruction came from since he endorsed the instruction. 2.367When asked whether he saw any document containing a figure where the appellant signed, PW56 stated that he did not see any document containing a figure where the appellant signed, and that in the absence of fraud, the information on the payment voucher ought to come from the source documents. He highlighted the various endorsements on "P59( c)" which culminated in the appellant issuing the instruction to the Chief Accountant (A4) to pay as per attached budget. PW56 claimed that the fraud started with the appellant's instruction to pay as per attached budget. 2.368Regarding exhibit "P59(a)," PW56 confirmed that it had an auditor's stamp, but he did not speak to the auditor. The appellant wrote the date 2008/ 07/ 11 as the date when he saw the document, and the I J177 appellant was the last person to see the document before it went to Accounts. AS later endorsed "FYA" on "P59(a)," and the payment was prepared based on "P59(a)." According PW56 the payment should not have been raised, and that "P59( c)" was not on the file. He recovered it from AS's office. 2.369Regarding "P70," PW56 conducted a search at AS's office and found the document in issue, which was item number 8 on "P70." He claimed that the appellant came up with the figure as can be noted from the appellant's instruction on "P59(a)." PW56 denied that the appellant's job ended at his endorsement on "P59(a)." Although he confirmed that the appellant neither signed the cheque nor the EFTA, PW56 contended that the appellant stole the money because he went to withdraw the cash with Mrs. Chawinga (PW19). PW56 also confirmed that the appellant was not a signatory to the Bank Account at the Ministry of Health. 2.370 PW56 maintained that part of the money in the appellant's accounts, produced herein, was stolen from the Ministry of Health through Algonquin Management Consultants. He confirmed that "P106," "P107," "P111," and "P112" were part of his analysis. PW56 I I I Jl7 8 confirmed that the K432,022.336 (rebased) was credited to the Algonquin Management Consultants Account on December 6, 2007. 2.371 PW56 stated the appellant and Mrs. Chawinga withdrew the cash between December 6, 2007, and December 13, 2007. PW56 further stated that Mrs. Chawinga (PW19), claimed to be alone with the appellant when giving him the money. That, she never provided any receipts showing that the appellant had acknowledged receipt of the money. 2.372As regards to the appellant's presence at Finance Bank - Kamwala Branch, PW56 stated that the appellant spoke to the Manager and several Tellers, including Enock Chabu, who positively identified the appellant as having attended the Bank. PW56 contended that the appellant was not implicated solely on the evidence of PW19, but rather on the totality of the evidence on record. 2.373With regards to audits, PW56 stated that he had not come across the Auditors' Manual, but had interviewed the appellant and Mr. Masiye Banda from the Auditor General 1s Office in order to understand the auditing process. PW56 was aware that auditors maintain a register, but was not aware that they were mandated to sign payments. PW56 I I I I I I I I I I I I I I I I J179 testified that if an auditor made a query, it would be entered into the register and that if there was no fraud and the auditor passed a payment, it would indicate that the payment was okay. 2.374When asked whether the lost payment could be traced, it was his position that the lost payment voucher could not be traced by reference to the Cash Book, and even if the vouchers were found, it would not change the fact that money was stolen. 2.375Regarding Count 3, the indictment period was from 1st December, 2007, to 7th January, 2008 and PW56 was referred to exhibits "P14(b)" and "PlS(i)." It was PW56's evidence that no deposits were made into the appellant's accounts during the indictment period. However, PW56's investigation established that PW19 gave the money to the appellant, but no payment voucher was presented in court for this transaction . According to Gift Kamwale's evidence, the appellant took the payment voucher for the transaction and never returned it. The payee on the cheque was Algonquin Management Consultants, and it was deposited into its account. The backing sheet for this payment was "PSl(i)," and cashiers had the responsibility of taking the backing sheets to the bank. Gift Kamwale was a cashier at that J180 time, and she had the responsibility of taking the cheque, EFf A, backing sheets, and transfer letters to the bank. 2.376PW56 stated that the cheque was not signed for in the Cheque Distribution Register, but he did not bring the register to court as he considered it irrelevant. He also confirmed that the appellant did not sign anywhere on "P14(b)," "PlS{b)," and "PlS{i)." According to PW56, PW19 gave the money to the appellant without anyone witnessing the transaction, and the appellant did not provide a receipt for the cash. PW56 did not know the exact amount the appellant received from PW19 but was aware that the appellant received most of the money. PW56 did not investigate how the appellant shared the stolen money. Additionally, PW56 did not know that the appellant's company made more than Kl 16,000.00 (rebased) during the indictment period. 2.377 Regarding Count 5, the indictment period was from February 1, 2008, to April 3, 2008. With reference to exhibits "Pl{a)," "P15{b)" and "P13(a)," PW56 testified that the amount of K947,224.20 (rebased) was transferred on March 7, 2008. During the indictment period, a total of Kl,248,560.65 (rebased) was deposited into the I I I I J181 Kahekam, Hensaka and Best Home Lodge respectively in various amounts. The total amount of deposits was higher than the amount indicated on the indictment as having been stolen. PW56 maintained that his analysis marked "P112" was different from the one he tendered in the other court relating to Royal College. 2.378On "Pl(a)," PW56 maintained that the money was given to the appellant by PW19 during the indictment period, and the transactions took place on various days, as evidenced by the various withdrawals indicated on "P24" and the cheque marked "P26." PW56 maintained the appellant stole the entire amount on count 5. 2.379On Count 7, relating to the indictment period 1st April, 2008 to 30th April, 2008. When referred to exhibits "Pl(b )," "P13(b )," and "P15( c)," PW56 testified that the money for this count was credited to Algonquin Management Consultants Account. PW56 referred to "P112," "P111," "P106," and "P107" to demonstrate various deposits made to the Hensaka Enterprises Account during the indictment period. These deposits included KlS,002.00 (rebased) and KlS,121.12 (rebased) on the 4th of April, 2008, K17,949.70 (rebased), KS,354.60 (rebased), and Kll,307.80 (rebased) on the 5th of April, I I I I I I I I I I I I J182 2008, KlS,922.00 (rebased), K19,514.60 (rebased), K12,735.50 (rebased), and Kll,688 .00 (rebased) on the 7th of April, 2008, and K9,943.00 (rebased) and K23,193.70 (rebased) on the 8th of April, 2008. PW56 stated that there were no deposits on the Kahekam Account and that these accounts received laundered money from the Ministry of Health. 2.380PW56 further stated that on the 19th April, 2008, there was a cash deposit of USDll,600.00 in the Dollar Account, which was deposited by the appellant the defendant. On the 17th April, 2008, there was a cheque deposit in the sum of USO 9,600.00 from Chibuluma Mine, and PW56 established that the appellant deposited the stolen money. PW56 demonstrated the basis of his findings by reference to "P24," the Bank Statement from Algonquin Management Consultants Account, "P26," specifically cheque no. 70 and 54 from Algonquin Management Consultants and the cash deposit slips for USDll,600.00, and showed the movement of the money on which he drew the said inferences. 2.381 He further stated that on 18th April, 2008, after receiving the said money from PW19, the appellant paid Ms. Stella Mweye Kabwe K20,000.00 (rebased) in K20,000 notes. The said USDll,600.00 was =- - - - I I I I J183 deposited in the Kahekam Dollar Account a day after he paid Ms. Stella Mweye Kabwe the K30,000 .00 (rebased), and the said money, equivalent to USDll,600.00, was in K20,000.00 denomination . PW56 did not have the seria l numbers for the said notes. 2.382 PW56 went on to state that although he did not have the deposit slip before court, he was aware that the defendant deposited the said amount. He conceded that the statement on the Dollar Account does not show that the amount that was deposited was in K20,000.00 notes. 2.383On count 9, PW56 was referred to exhibits "P1(c)," "P13(c)" and "PlS(d)." The indictment period is between p t April, 2008 and 19th May, 2008. The EFTA shows that on 2nd May, 2008, K732,315.00 (rebased) was credited to the Algonquin Management Consultants Account. PW56 maintained that the money transferred to the Algonquin Management Consultants Account was stolen by the appellant, as PW19 wit hdrew the money and handed it over to the appellant. PW56 identified cheques no. 89, 88, 92, and 95, as the cheques that were used to withdraw the money from the Algonquin Management Consultants Account that was later given t o the appellant. The said cheques are part of "P26." Although the appellant's signature does not appear on the cheques, PW56 maintained that both the appellant and PW19 encashed the cheques. According to PW56, the appellant filling in some cheques connects him to the money. 2.384During the same period, Hensaka Enterprises received a total deposit of K720,326.50 (rebased), while no deposits were made on the Kahekam Kwacha Account. One deposit of USD900.00 was made to the Kahekam USD Account, and Best Home Lodge received two deposits totalling KS,750.00 (rebased) . The total value of the deposits made to these accounts during the period in question was K726,076.50 (rebased), excluding the USD900.00 as the exchange rate was unknown. The Kabulonga Filling Station was also part of the money laundering scheme. According to PW56, there was no money that the appellant earned from the mining business. He denied the assertion that he collected gold plates from the appellant and that PW14 never reported any issue relating to the seizing of the gold pots. PW56 further stated that, although he did not attend the appellant's house when PW14 and his team went to search the appellant's house, PW14 eventually informed PW56 of what transpired during the search. I I I I I J185 2.3851n relation to Count 12, PW56 testified that the money in question was credited to Algonquin Management Consultants on 28th July, 2008. PW56 referred to "P13{d)" and "P15{e)" as the documents relating to this count, along with the cash book, "P113." "P13{d)" was an EFTA for the transfer of K947,274.00 (rebased) to Algonquin Management Consultants, which is a certified copy and did not have supporting documents. PW56's effort to locate the payment vouchers proved unsuccessful but he learned through investigations that the appellant was the last person seen in possession of the payment voucher. 2.386PW56 further stated that exhibit "P15{e)," was signed by A2 and A7, and the bank processed the transaction after verifying the signatures on the mandate. There was sufficient money in the Ministry of Health Account to cover the transfer, but there was no Commitment Requisition for this payment. PW56 maintained that the money was stolen. 2.387Regarding "P106," "P107," and "P112," PW56 testified that four cash deposits were made into the Best Home Lodge Account between 28th July, 2008, and 15th August, 2008, with a total value of K25,942.00 I I I I I I I I (rebased). In the Kahekam Kwacha Account, there were deposits amounting to K65,000.00 (rebased), and two deposits in the Kahekam Dollar Account amounting to USDS,996.00. There were a total of 19 deposits in the Hensaka Account, amounting to K681,115.40 (rebased). The total deposits made to the aforementioned accounts amount to K793,463.00 (rebased) plus. 2.3881n relation to Count 14, PW56 provided evidence regarding "P1(e}," "P13(e}," and "P15(f}." He stated that money on the backing sheet and the EFrA marked "P15(f}" and "P13(e)" respectively was credited to Algonquin Management Consultants Account on the 2nd September, 2008. "P112" showed that between p t August, 2008 and 16th August, 2008, there were daily deposits into the Hensaka Account, and the said money was laundered using the Kabulonga Filling Station business. PW56 stated that Hensaka did not indulge in car hire or bus business, and Kahekam was not running any business, the appellant was the one running the said business. On the Bank Statement on the Hensaka Account marked "P82(b)," PW56 noted that the only cheque deposits on the said account during the indictment period came from the Ministry of Health. The Kl00,000.00 I I I J187 (rebased) deposit from the Ministry of Health to the Hensaka Account was laundered money because it sustained the business that was established by laundered money. 2.389 PW56 alleged that the money on count fourteen was stolen by the appellant, and he collected only two cheques in relation to this payment. The appellant wrote some of the cheques in favour of PW18 - Masuzyo Chawinga. The cheques in issue are cheques no. 81 and 82 in favour of Masuzyo Chawinga. The money ended up in the appellant's hands, as PW19 gave it to him. Masuzyo informed PW56 that he never met the appellant personally or gave him money. After the money was given to the appellant on 2nd September, 2008, there was a deposit of K150,000.00 (rebased) in the Best Home Best Lodge Account, which was the largest deposit during the entire existence of the account. 2.390 PW56 stated that, "P112" demonstrated that prior to the indictment period, there were no deposits on the Kahekam Kwacha Account. However, there were daily cash deposits on the Hensaka Account, which came from the laundered money through the Filling Station. As for the Kahekam Dollar Account, there were deposits of modest I I I I I I J188 amounts ranging from USD200.00 to USDS,000.00 in the period from the 25th August, 2008 to 2nd September, 2008. PW56 presented the deposits in the Hensaka Account, which included K72,684.10 (rebased) made on 28th August 2008 and K74,294.60 (rebased) made on p t September 2008. He said that there were a total of 15 deposits in the Hensaka Account valued at K619,069.00 (rebased). The Kahekam Kwacha Account had only a single deposit valued at K25,000.00 (rebased). The total value of the deposits was K790,069.00 (rebased), which was higher than the amount that was stolen on this court. 2.391 Regarding "Pl{e)," "P13(e)," and "P15(e)," PW56 stated that the appellant never signed any of the documents. He also indicated that the appellant never signed on "P15{f)." He could not confirm that "Pl(f)" was on a file, but the document was perforated, and he received it in the manner he presented it to court. It did not have any attachments. He indicated that the officers processed the payment voucher marked "Pl{e)," but he never brought them to court. 2.392He further stated that the seminar for which this money was paid never took place as it was given to the appellant. I I I I I I I I I I J189 2.393Regarding count 16, which relates to K618,068 .85 (rebased), PW56 referred to the payment voucher "P1{f)," EFTA "P13{f)," and backing sheet "P15{g)." According to analysis reports "P112," "P106," and "P107," the indictment period for these counts is April 2008 to 31 st October, 2008, and the money moved from the Ministry of Health Account on 14th October, 2008. PW56 noted that although the appellant did not make any endorsements on the payment voucher, he did attach a memorandum to it, which was audited by the appellant. PW56 also outlined the deposits made to several accounts following the withdrawal of the money, including Kahekam USD Account, Best Home Lodge, Kahekam Kwacha Account, and Hensaka Enterprises, totalling K925,335.10 (rebased) during the said period, which was higher than the amount on the indictment. PW56 maintained that the within amount was laundered money, and explained that there was no money that went into Hensaka Account until 31st October, 2008, and that the money was laundered through Kahekam. 2.394Regarding count 17 and 18, which relates to the sum of K592,925.15 (rebased), PW56 referred to payment voucher "P27{a)," I I I I I I I I J190 EFTA "P13{g)," and backing sheet "P15{h)." He stated that, the money was debited from the Ministry of Health Account on 18th November, 2008, for participation fees for the Audit and Frauds Seminar as per the attached document. PW56 also referred to a letter authored by Dr. Joshua Kanganja, the then Secretary to the Cabinet, which purported to grant authority to conduct workshops. 2.395PW56, on his analysis report "P106" regarding deposits that the appellant made to his various accounts following the transfer of the money from the Ministry of Health Account to Algonquin Management Consultants Account, testified that the appellant deposited a total of K340,000.00 (rebased) into his accounts between 19th November, 2008, and 24th November, 2008, and that the money was stolen from the Ministry of Health by the appellant. 2.396On "P26," PW56 identified several cheques that were used to withdraw the said money, including cheque no. 122, in the name of Masuzyo Chawinga, which was filled in by the appellant, and cheques no. 119, 123, and 124, which were either in favour of PW18 or PW19. Prior to the within transfers, Hensaka Enterprises Account was never credited with an amount above KS,000.00 (rebased). PW56 stated I I I I I I I I I I I J19 1 that the appellant did not have the capacity to run the Filling Station without the said stolen money. PW56 had occasion to look at the appellant's account and found that it did not have any significant amounts. 2.397On counts 19 and 20, involving an amount of K629,029.80 (rebased) for the period 1st May 2008 to 30th June 2008. PW56 referred to documents "P9(b)" and "P11(a)," which bore the signature of Dr. Miti and an impression of a franking stamp. PW56 testified that the Permanent Secretary did not authorise the payment in question even though the authenticity of his signature on "P11(a)" was confirmed by the Permanent Secretary himself. PW56 further stated that the only Ministerial Tender Committee minutes relevant to the case were "P2(g)," and that no training was discussed in the said Ministerial Tender Committee Meeting. 2.398When presented with a letter authored by Dr. Peter Mwaba to the Ministry of Justice, PW56 claimed that Algonquin Management Consultants did not provide any training related to this case, and that the Human Resource Development Committee never granted authority I I I I I I I I I J192 for the payment in question. The Permanent Secretary was misled into signing "P11{a}." 2.399On cheques no. 77 and 74 which formed part of "P26," PW56 maintained his evidence that the cheques were used to withdraw part of the money herein. He confirmed that cheque no. 74 was written by the appellant while cheque no. 77 was written by someone else, not the appellant and cheque no. 59 was written by Mrs. Chawinga. 2.400 PW56 further found that the appellant issued instructions to pay even after he left the ministry and others act on it. There was also evidence that the appellant transferred money believed to be part of the stolen money from the Ministry of Health. Money laundering charges. 2.401 In relation to count 21, where it is alleged that the appellant engaged in business transactions involving the amount of K6,840,547.636 (rebased) and that part of the money was used to buy a motor vehicle namely: Mercedez Benz C200 (GLS 500) Registration No. BHL 1, PW56's evidence was that the said vehicle whose purchase price was USD35,000. 00 was purchased using money that was stolen from the Ministry of Health. That the invoice marked "P69{a}," and J193 other such as "P69(c)" and "P69{a)" are evidence that the said vehicle was imported by the appellant. He also stated that the said vehicle was registered in the appellant's name. 2.402With regards to Count 22, PW56 identified the Mitsubishi Challenger with registration mark ABL 6832 as having been imported by the appellant through Zambia Revenue Authority documentation which indicated that the consignee was George Kabwe. PW56 testified that the vehicle was registered in the appellant's name but he did not establish how it was paid for. PW56 denied the assertion that the appellant bought the vehicle from Daniel Hachibolya, an employee at Standard Chartered Bank. 2.403On Count 23, PW56 identified the Toyota Lexus with registration number ABL 2336 and testified that the appellant bought the vehicle within the period when money was stolen from the Ministry of Health, which was between p t October, 2007 and 30th December, 2007. 2.404On count 26, PW56 identified the unregistered Mazda ( 4x4 BR 804316), metallic silver in colour, which came into the country in October 2009. PW56 testified that the appellant bought the vehicle within the indictment period but did not have the sales agreement. I I ' I I I I I I I Although he had no evidence to show that money moved from the appellant's account to procure the vehicle, he claimed that the money used to procure the vehicle was stolen from the Ministry of Health. 2.405On Count 27, PW56 identified the Diatsu Truck with registration number ABM 406, which was imported from RIB World and cleared in Lusaka with the Zambia Revenue Authority on 11th April 2008. Although, the documents showed that RIB World was the importer and consignee, PW56 contended that the appellant was the importer. The documents from RTSA indicate that the appellant is the owner of the vehicle. 2.406Concerning Count 28, PW56 identified the Nissan Track UDI with registration number ABM 8764 and supporting documents marked "P123." The importer was Lameck Phiri and the exporter was Truddy Trading of Durban in South Africa. PW56 did not know how much money was paid for the vehicle due to the falsification of invoices. PW56 alleged that the appellant had something to do with the falsification of the documents. 2.407On Count 29, PW56 found the documents "P121(a) to (f)" relating to this count inaccurate as they purport that the motor vehicle is a I I I I I J195 Toyota Hiace when it is a Toyota Fantum registration number ABP 9276. According to PW56 the vehicle was imported by the appellant but registered in the names of Mary Mwamba his wife as a cover up. The ZSIC Insurance Cover document "PSS( c)" was presented as evidence that the appellant was the importer, but the insured on the said document is B. Mkize. The vehicle was smuggled into the country as confirmed by Mr. Edgar Kwalela and Maxwell Mukwakwa of ZRA. 2.408On Count 30, PW56's evidence was that Property No. 7791 Woodlands was sold to Mary Mwamba Sampa for K310,000.00 (rebased) by Stella Mweye Kabwe. The money that was paid to Stella Mweye Kabwe in relation to this property came from the Ministry of Health. PW56 contended that all the money earned from the lodge was considered money laundering. 2.409On Count 31, PW56's evidence was that House No. 25 Manda Hill Road, also known as Stand No. 3775, was procured using laundered money that came from the Ministry of Health through various companies. He claimed that part of the laundered money was K180,000.00 (rebased) which came from the Ministry of Health to Algonquin Management Consultants, later drawn from Best Home J196 Lodge, and issued to Gracewell Mwale through two cheques. The Title Deed for the property was pledged as security for a K400,000.00 (rebased) overdraft by the appellant with Finance Bank. 2.410On counts 32 and 57, PW56's evidence was that Property No. 13949 Roma was acquired through proceeds of crime and that the Kl00,000.00 (rebased) that the appellant paid to Dr. Leonard Kalinde for the property came from the Ministry of Health through Algonquin Management Consultants. The appellant did not have the capacity to purchase the property at the time. PW56 considered the Best Home Lodge as a money-laundering machine. 2.411 On Count 33, PW56 referred to exhibits "P77" and "P77(d)." He stated that "P77" is a contract of sale between the appellant and Mr. Paul Mukwisa Wasamunu dated 15th September, 2006 which is outside the indictment period (October, 2007). PW56 stated that the money the appellant used to develop the bare land was stolen from the Ministry of Health through Algonquin Management Consultants. 2.412 PW56 testified that on counts 45 to SO, the appellant was involved in depositing money in the Algonquin Management Consultants Account and collecting the money from PW19 to deposit it I I I I I I I I I J197 in the Kahekam, Best Home Lodge and Hensaka Accounts, but he did not sign any EFTA or cheque in these transactions. 2.413With regards to count SO, PW56 testified that the money the appellant used to run the Filling Station was stolen from the Ministry of Health through Algonquin Management Consultants, and that whatever proceeds came from the Filling Station were criminal income being re-invested. The appellant was not warned or cautioned regarding count 50. 2.414On count 51, PW56 testified that the appellant opened an account with Handyman's Paradise in April 2008 and that the money used to procure materials from Handyman's Paradise came from the Ministry of Health, as evidenced by various documents including cheques and vouchers. 2.415On count 52, PW56 charged the appellant for using stolen money to procure a Mazda Drifter, which was partly paid for by cheque and partly in cash, and was registered in the name of Stephen Mwenya Chisala as part of money laundering. PW56 could not produce the vehicle in court as it had changed hands. I I I I J198 2.416With regards to count 53, PW56 testified that the appellant I imported a Toyota Land Cruiser Registration No. ABM 9355 and registered it in his name, but the vehicle was not produced in court. PW56 maintained that at the t ime of purchasing the said vehicle t he appellant had no financial capacity to do so from his legitimate sources of income. 2.417On count 54, PW56 stated that the vehicle in question, a Land Cruiser had changed hands several times. PW56 claimed that at the time the appellant owned it, he registered it in Apache Enterprises as part of the laundering process. PW56 did not charge the appellant for this count. 2.418On count 55 involving a BMW ABR 36 vehicle, PW56 identified the documents "P126," "P130" and "P131." PW56 claimed that the appellant bought the said vehicle as part of the money laundering scheme and registered it in the names of Fred Chileshe. The appellant was not formerly charged for this count. 2.419Count 56 relates to a 2006 metallic silver Mercedes Benz CL5 500 shown on "P130(c)." PW56, stated that the vehicle was listed in a gazette notice, but the insurance cover was not in the appellant's J199 name. According to exhibit "P58(a)(i)," the vehicle is registered under YK Trading of South Africa, but it was found at the appellant's residence during a raid by officers from the Anti-Corruption Commission in April 2009. PW56 stated that the appellant claimed that he imported the vehicle, but he had no documentation to support this claim. He also stated that he did not know who purchased the vehicle, but its market value at the time was USD160,000.00. Since the vehicle was found at the appellant's residence, PW56 believed that the appellant was the owner of the vehicle. PW56 formally warned the appellant regarding the vehicle, but did not arrest him. No sale agreement relating to the vehicle was presented. 2.420On count 57, PW56 stated that he had cautioned the appellant in 2009 regarding this count but did not formally arrest him. 2.421Count 58 relates to the purchase of Plot 13947, also known as Best Home Lodge. PW56 stated that the appellant purchased the property from Luka Special Mwanza between 2004 and 2006, before the indictment period. The property was undeveloped at the time of purchase, but the appellant developed it using illegal money. According to evaluation report "P114{a)," the property was valued at I I I I I I J200 K694,000.00 (rebased). PW56 further stated that materials for the construction were sourced from various entities, including Handyman's Paradise and Tap Zambia. The appellant paid for the materials either by cash or cheque from the stolen money from the Ministry of Health. 2.422Count 59 and Count 24 relates to the appellant's payslips for May 2008 and May 2007 exhibit "P115(a) and (b)." PW56 stated that the payslips show deductions for a car loan, but he did not know whether the appellant actually purchased a car. 2.423 Regarding the spare parts for two Lexus vehicles, registration numbers ABG 7400 and ABL 2336, PW56 believed that one or both vehicles had spare parts fitted that were proceeds of crime. 2.424PW57 was Maybin Funda, the Branch Manager, at Finance Bank Kamwala Branch. He produced the Bank Statements for Mary Mwamba, and Best Home Lodge domiciled at Finance Bank. The said documents were marked "P118{c)" and "P142." 2.425 Under cross-examination, he said that there were no deposits on "P118( c)" that came from the Ministry of Health. All the deposits made on that Account were in cash. I I I I I J201 2.426 PWSS was Jonathan Kapaya Tembo, a Banker at Barclays Bank Mutaba House. He produced the Bank Statement on Account number 1517062 belonging to Mary Mwarnba, domiciled at Barclays Bank. He positively identified the said Bank Statement marked "P118{d)." 2.427Under cross-examination he said that the statements had cash deposits, and that the names Henry Kapoko, Masuzyo Chawinga and Gladys Musopelo Chawinga do not appear on it. 2.428 PW59 was Gabriel Phiri, an Exhibit officer at the Anti I Corruption Commission. He stated that he kept all the exhibits given to him by PW56 in relation to this case until they were required in court. 2.429 Under cross-examination he stated that, the payment marked "P181{i)" was made to Pearl Haven Inn. 3.0 DEFENCE 3.1 In his defence, the appellant opted to give sworn evidence and did not call any witnesses. However, the cou rt called other witness to give evidence. DW1, Ambassador Peter Lesa Kasanda Acting Secretary to the Cabinet at the time the offences were committed J202 produced documents relating to the correspondence between the Permanent Secretary at the Ministry of Health and the Secretary to the Cabinet. In the said correspondence, the Permanent Secretary at the Ministry of Health sought authority to hold seminars, workshops and pieces of training between 2007 and 2008. 3.2 A summary of the evidence of DW2, Dr. Peter Mwaba, the then Permanent Secretary at the Ministry of Health, was he was attending court through subpoena duces tecum to produce some documents before the court. He said he got in touch with the Registry and the said documents were not available. According to him they had been taken by the Anti-Corruption Commission and the Drug Enforcement Commission during investigations. 3.3 DW3: Henry Mulenga Ngosa Kapoko was the Acting Chief Human Resource Officer. In his opening evidence, he summarised his work history in the civil service. He informed the court that he was transferred to the Ministry of Health on promotion to Senior Resource Officer, from the Ministry of Commerce in 2000. He stated that he worked at the Ministry of Health until 2008 when he was transferred to the Ministry of Local Government and Housing as Chief Human I I I I I I J203 Resource Development Officer. As a Human Resource Development Officer dealings were all guided. On 15th October 2007, the Secretary to the Cabinet Mr. Joshua Kanganja issued a circular to repeal or review the 1996 Training Policy and to introduce the procedures and guidelines for Human Resource Development in the public sector. He stated that it was this circular that introduced the Training and Development Policy and the procedures and guidelines for Human Resource Development. 3.4 Upon noting that PW6 was lying, he instructed his lawyers to request for the Minutes of the Human Resources Development Meetings, Memorandum and Conveyances which were generated from the Human Resource Development Unit to the Permanent Secretary. As per instructions, his lawyers wrote to the Permanent Secretary on 14th July 2013. On 29th July 2013 the Permanent Secretary replied and referred him to the Ministry of Justice as they were better placed to respond. That the Director of Human Resources and Administration Mr. John Moyo produced the said documents. He stated that the said documents discuss long-term and short-term training. He also produced a newspaper article, an advert relating to training which was I I I I I I J204 within the training mandate of the Human Resource Development at the Ministry of Health. On the issues pertaining to the procedure of procuring the training, his evidence was that the Ministerial Tender Committee was alien to him and that the procedure will not change simply because the appellant is in court charged with the offences because DW3 and DW4 have not been repeated. That there is nowhere the Ministerial Tender Committee is mentioned in the advert. 3.5 The issues of procurements and payments in this regard were dealt with by the Human Resource Development Committee. That it was the Human Resource Development Committee that discussed the fees and allowances for the training provider and allowances for participants. The Human Resource Development Committee approved the said fees and allowances attendant to training. In the event that the training provider had no venue and has requested the Ministry of Health to provide the revenue, then that component of the venue will be discussed by the Ministerial Tender Committee. That the institutions that provide training are accredited by TEVETA, and TEVETA works closely with the Human Resource Development Officers to ensure that the institutions that are engaged to provide training are I I I I I I I I I I I J205 those that meet the standards set by TEVETA. On the other hand, the suppliers of goods and services work in corroboration with the Public Procurement Authority. He opined that there is no way a training provider who is unknown to the Procurement Unit could be discussed at the Ministerial Tender Committee. 3.6 He lamented that whatever he did passes through the office of his immediate boss Mr. Elias Mwila, the Assistant Director of Human Resource and Administration, who was not called as a witness. The Minutes for Human Resource Development Committee Meetings, which are in the custody of the Anti-Corruption Commission would indicate whether the workshops were approved, the budget and all the attendant details. He said the authority to conduct workshops came from the Secretary as shown in the documents produced before the court. On "P91(a)(b) and (c)" "P92" and "P93" it was his evidence that when Cabinet Dissolved the Central Board of Health, in 2006, there was need to assimilate about 26,000 employees of the Central Board of Health into the Ministry of Health. This meant that the said employees had to be oriented in their respective fields of work into the civil service. The said seminars were to be conducted within and I I I I I I I I I I I J206 outside the Ministry of Health. It was his evidence that during the same period, Circular No. 7 of 2006 was issued by the Secretary to the Cabinet directing that authority to conduct seminars or workshops outside the premises of the Ministry ought to be sought from the Secretary to the Cabinet. In light of the said Circular, "D1" contains the various authorities that were granted to hold various workshops and seminars. 3.7 He told the court that the letters seeking the within authority to conduct the workshop were authored by him and were forwarded to the Permanent Secretary through the Assistant Director of Human Resources Development and Director of Human Resource and Administration for onward transmission to the Secretary to the Cabinet. That Human Resource Development Committee approves budgets and payments. He told the court that the Ministerial Tender Committee awards contracts and does not approve payments. 3.8 That payments are the preserve of the Permanent Secretary. That on "P92," "P92(f)" is a memorandum that was authored by Mr. Mumba seeking authority from the Permanent Secretary to pay, despite the fact that the Permanent Secretary was part of the meeting that J207 awarded the contract to Suwilanji Gardens to host the workshop for Office Orderlies. 3.9 On the workshop for Secretaries at Manchichi Bay, his evidence was that the members of the Ministerial Tender Committee that signed the documents marked "P93" during the round lobbying process were merely awarding the contract or they were in agreement with the award of business to Manchichi Bay. He further narrated the procedure for approval by the Permanent Secretary for payments. He told the court that the within training took place and a payment of K80,500.00 was paid out. 3.10 On the witnesses that were brought to court, it was his evidence that most of the witnesses that the state brought were witnesses with interest to serve as they were all initially placed on suspension in relation to the within case among others. He singled out PW38 who he said was actually on suspicion at the time she came to testify. He explained further that "D1" were letters of authority that were received by the Ministry of Health from the Cabinet Office over the workshops. He told the court that they were on headed paper and I I I I I I I I I I I I I J208 that "D1" does not contain all the authority letters as PW56 did not produce everything. 3.11 In his continued defence, he stated that the assertion by PW6 that he conducted the workshops without authority was not true. That the said authorities were attached to all payment vouchers relating to payments for allowances and participation fees to training providers or consultants. He stated that those authorities were missing on the payment vouchers. He stated that the court's record was incomplete as some of the documents he worked on while working for Ministry of Health were not produced in court. He also said Human Resource Development Committee Minutes which shows what was discussed, and the said Cabinet Authority among others were equally missing. 3.12 On the evidence of PW2, he told the court that PW2 told the truth when he said that the payments relating to training do not go to the Ministerial Tender Committee and that the only component that goes to the Ministerial Tender Committee is that relating to accommodation. And that the Algonquin Management Consultants was never discussed in the Ministerial Tender Committee. I I J209 3.13 With respect to PW39's evidence on the dealings of the Algonquin Management Consultants with the Ministry of Health, he stated that PW9 was the one who drafted all the Memorandum going to the Permanent Secretary to the Director Human Resource and Administration and he would indicate that the despondence with Algonquin Management Consultants was on file. It was his evidence that the Minutes of the Senior Management Meetings were the issues pertaining to Algonquin Management Consultants, were discussed, were not produced before court and that the assertion that the Permanent Secretary was not aware of the workshops is not true. He told the court that authority to conduct the within workshops came from Cabinet Office while authority to pay for the workshops came from the Permanent Secretary through endorsements on requests to the following effect "director approved." Once the above authority was granted, the subject file containing such authority would trickle down to the Human Resource Development Unit. He would then give instructions to the Chief Account to pay on the weight of the said authorities. That he would also instruct the Procurement to process for venue . I J210 3.14 On counts 1 and 2 he told the court that he did not seal the money thereon. He said that the subject file would show that the authority to pay the money was granted by the Permanent Secretary. That the Human Resource Development Committee Minutes would equally show the approval and recommendation to the Permanent Secretary. He mentioned that had the prosecution brought the Human Resource Development Committee reports on all workshops and seminars the said reports would have shown that the works did take place. He stated that although he was never a party to the said meetings he belonged to the unit that provided Secretarial Services. He thus had access to the Minutes from time-to-time. 3.15 On counts 3 and 4 he stated that he never stole the money. He maintained his lamentations relating to the absence of the Human Resource Development Committee Minutes, the subject file and other documents which he alleged were in the possession of the Anti Corruption Commission. He stated that just like in counts 1 and 2, PW56 did not produce evidence to prove that he connived with the other accused persons to steal the money from the Ministry of Health . I I I I I I J211 3.16 On counts 5 and 6, DW3 told the court that, the authority to hold workshops outside the Ministry of Health was given and that the Cabinet Office granted the said authority and the Permanent Secretary approved the payments while the Human Resource Development Committee approved the programme and the budget for the workshop. That is if the subject file number MH/ 101/ 4/5 was availed to the court, it would have shown the conveyance from the Director Human Resource and Administration to the Permanent Secretary in relation to this workshop. He maintained that he never signed on any instruments herein marked "P15(b)," and "P13(a)." DW3 said that PW56 did not bring evidence to show that he met the people that prepared the payment so that he could steal the money. He told the court that government bureaucracy has many checks and balances as such it is not possible to steal the money that was authorised by the Permanent Secretary and the budgets approved by the Human Resource Development Committee. That it is wrong to create an impression that all workshops were about him when it is not true. He told the court that he only coordinated high-level workshops. I I I I I I I I J212 3.17 On counts 7 and 8 it was his testimony that he never stole the said money and that the payments of K886,000.00 (rebased) plus were authorised by the Permanent Secretary Dr. Simon Miti and that the Cabinet Office authorised the holding of the workshops. He equally lamented the absence of the subject file to prove that the right procedure was followed. He denied the assertion that he colluded with his co-accused to steal the within money and that there has not been any evidence produced before this court to prove collusion between DW3 and the other co-accused to steal the money. 3.18 On counts 9 and 10, DW3 stated that he retaliated his defence in the previous counts and demeaned the fact that the Subject File No. MH/101/4/4 was not brought to court. He stated that he did not understand how he was connected to the said offences as he did not sign any of the documents before the courts of law. When referred to "Dl(Q)(i)" it was his evidence that in all the correspondence that he drafted on behalf of the Permanent Secretary, to the Cabinet Office, he indicated the dates of the workshops, the programme schedule and the cost associated to the programme. I I I I I J213 3.19 On counts 11 and 12 he told the trial court that he did not steal the within money. In his defence, he stated that if the state released A6 and A8 stating that they are not thieves, then there is no way he could have stolen the said the money when he was not a shareholder in the Algonquin Management Consultants and was not even a signatory to the said company's accounts. It was his defence that payments were authorised by the Permanent Secretary, and that authority to conduct the workshop was granted by the Cabinet Office. The budget and programmes were approved by the Human Resource Development Committee. He said that the explanation given by PW13 that Accounts would only pay on authority from the Permanent Secretary. He told the court that there was nothing on the record connecting him to the within issues. He told the court that if the subject file was present, the court could have gained a better understanding of how the transactions were conducted. He told the court that the state had not adduced any evidence to show that he colluded with the co-accused or PW18, and PW19 to steal the money. 3.20 On counts 13 and 14, he told the court that he did not steal the K490 million indicated in the charge. It was his defence that payments I I I I I I I I I I J214 were authorised by the Permanent Secretary, and that authority to conduct the workshop was granted by the Cabinet Office. The Director of Human Resource and Administration committed the funds and the budget and programmes were approved by the Human Resource Development Committee. 3.21 On count 16 he told the court that he equally did not steal the money thereon. That the authority to pay K618,000.00 (rebased) plus was granted by the Permanent Secretary at the Ministry of Health and that the authority to conduct the workshop was granted by the Cabinet Office. The budget and programmes were approved by the Human Resource Development Committee. The funds were committed by the Director of Human Resource and Administration and all this information is available on the subject file which was not produced. He told the court that if all these allegations against him were true, he could have undergone disciplinary proceedings and no payment could have been made. He stated that the correct position is contained in the within files which PW56 refused to bring to court owing to the fact that PW56 perceives them to be irrelevant. J215 3.22 On counts 17 and 18, he stated that he did not steal the said money and maintained the position that authority to conduct the within workshops was granted by the Cabinet Office, on a letter dated 12th April 2008 the Director - Human Resource and Administration was authorised by the Permanent Secretary to pay Algonquin Management Consultants the sum of K592,000.00 (rebased) plus indicated on the within counts. That the budgets and programmes were approved by the Human Resource Development Committee, and the funds were committed by Mrs. Kapihya the Director of Human Resource and Administration. 3.23 On counts 19 and 20 it was his evidence that he stated that he did not steal the said money and that that authority to conduct the within workshops was granted by the Cabinet Office, and the authority to pay the sum of K629,000.00 (rebased) plus on the said counts was by the Permanent Secretary. That the budgets and programmes were approved by the Human Resource Development Committee, and the funds were committed by Mrs. Kapihya the Director of Human Resource and Administration . He recalls that the funds for the workshop came from the Mirror Account and as such the Permanent I I - I I I I I I I I I I I J216 Secretary signed the backing sheet. He said that had the payment voucher been availed, it would have shown authorities quoted. The authorities would be on the Ministry of Health subject file which was not brought to court because it was said to be irrelevant to the within proceedings. In the absence if the subject file, the Human Resource Development Committee Minutes, and budget, the record is incomplete. He stated that every payment has a history on the subject file and the documents before the court have perforations, an indication that they were on a subject file. He maintained that he was neither a Director nor Shareholder at Algonquin Management Consultants and that he was not a signatory to the Algonquin Management Consultants Accounts. That no cheque has graced the court's record to show that he moved the money. On his endorsement on the letter from the Permanent Secretary to pay as per the attached budget, it was his evidence that he was merely conveying the authority of the Permanent Secretary and the Human Resource Development Committee to the Chief Accountant. On PW13's evidence, he questioned the credibility of PW13's evidence, as in "D18," PW13 indicated that he could not recall giving the money to DW3. He J217 maintained that the workshops in question were conducted and that authority was given by the Secretary to the Cabinet and that of the service providers were not undertaken, the person answerable ought to have been the Secretary to the Cabinet. On the allegation that he received money from PW19, it was his evidence that it was a lie and that the state never called any witnesses to substantiate PW19's claim. On cheques number 81, 82, 74, 72, 122, 88, and 114 marked "P26" collectively, it was his evidence that PW19 was DW3's former boss's younger sister. That at times he could help his former boss writing cheques for PW19 when Algonquin Management Consultants was awarded workshops between the period 2004 and 2008. When his boss retired, DW3 would from time to time help PW19 to write the cheques. He told the court that it did not bother him because he did not consider it to be anything. It was his evidence that PW19 told him that he could not write well on cheques and he believed her as he used to see his boss writing cheques for PW19. He went on to say that it was unfair to allege that he wrote on the said cheques so that he could receive the money. He stated that some of the cheques were written on by other people and wondered why those other people were not I I I I I I I I I J218 called if writing on cheques was theft. On PW19's evidence that he had a hand in the opening of the Algonquin Management Consultant's Account, he told the court that it was a lie and that he never met PW19 or Mrs. Mabumba at the time they were opening the bank account. On "P38," the torn cheque, it was his evidence that at the time he wrote on "P38," "P72" and "P74," the cheques were blank, and were not pre-signed. He maintained that he never received any money from PW19. On the issue of the torn cheque, he explicated that the said cheque was torn by PW19 in his office and that he inadvertently put it in his 2008 diary. That the same was recovered when he was searched by the police and it was mended in the presence of PW19 and later brought before this court. It was his evidence that if it was him who tore it he could have been charged with obstruction of justice. 3.24 He told the court that his arrest was precipitated by the assistance he rendered to the then-opposition political party the Patriotic Front in 2008. 3.25 On Hensaka, it was his testimony that he owns the said company together with his wife. He testified that the said company supplied various goods and services to government institutions and Ministries J219 from its inception in 2000 until the date of his testimony. In 2001 he decided to use Hensaka for public transport services. He duly applied and was allocated a freight Number, LSK 2424 by RTSA. In 2004 they bought high-value vehicles in addition to Lexis and Minibuses. The high-value vehicles included Mercedes Benz cars, BMW XS, Hammer H3, Mazda Drifter and Ford BTS0. The said vehicles were brand new and were operating under Hensaka Enterprises for car hire. 3.26 It was his further testimony that in 2008, he decided to operate a Filling Station under Hensaka Enterprises. They approached Total Zambia, and after doing their internal due diligence, they were awarded a contract to operate the Kabulonga Filling Station. He told the court that Hensaka Operated the Kabulonga Filling Station until April 2008. 3.27 On the company called CHATLAK he told the court that he was a Shareholder and Director of that company together with his friend Moses Kaseba who was a sole bank signatory to that company account. He told the court that this company had very good dealings with Caltex who they supplied among other things pump spare parts. It was his testimony that the said company is still operational although he was no longer a Director. I I I I I I I I I I I I I J220 3.28 On the company called Best Home Films, it was his evidence that he founded the said company in 2003 together with his siblings, who he named as Brian Sampa, Collins Sampa, Thelma Mukuka, and Angela Sampa. The company's main line of business was film production. That they produced a film entitled "Tears of Love" which aired on ZNBC and DSTV for a period of two years, from 2003 to 2005. He told the court that Best Home Films had a contract with ZNBC and Multi Choice South Africa where they were paid UDS40,000,000.00 and that the money was paid into the company's account domiciled at Finance Bank. He was the sole signatory to the said account. The company continued doing business and at some point, it did business with the Ministry of Health. That the Ministry of Health, requested Best Home Films help in sensitisation of HIV and AIDS programmes. He told the court that the operation of this company seized in 2009 when he was arrested. 3.29 On Kahekam, it was his evidence that the company was awarded a contract to supply alveolus pipes and clamps for 24 months. The company was also contracted to supply water meter flows, cement and was also contracted to construct a Conveyor Belt. It was his evidence I I I J221 that, during the period of 2007 to 2009, Chibuluma Mine paid Kahekam in excess of KS00,000.00 (rebased). It was his further evidence that in 2007 Kahekam entered into an agreement with Mr. Richard Kafula to develop and run his Mines in Kabompo and Mwinilinga. 3.30 It was his further evidence that Kahekam was awarded a contract to supply desks in schools mainly in Central province, was also awarded a contract by Ministry of Health to supply the Mother-Baby Kit and at the time of his testimony the company had been paid 90% of the total contract sum. 3.31 In 2009 Kahekam was awarded a contract to supply electric appliances and protective wear by Konkola Copper Mine. He told the court that the contract for the supply of electrical hardware over a period of one year was in the sum of Kl,600.00 (rebased). While the contract for the supply of protective clothing was in the sum of K825,00000 (rebased). These contracts were later halted by the Anti-Corruption Commission. 3.32 On Best Home Lodge, it was his testimony that the lodge started operating in May, 2007 at Plot No. 13947 Roma Township. He told the court that Best Home Lodge had dealings with various Ministries, I I I I I J222 Private Companies and Quasi-Government Institutions. He further told the court that in 2007, he applied for a licence at the Ministry of Mines to sale precious minerals and stones. He told the court that he sold diamonds, emeralds and gold. That the Anti-Corruption Commission are still holding on to some of the gold pieces that were collected from his home. 3.33 He also told the court that he owned two farms in the extent of 24 hectors each and that is where his mother lives. Installed on the said farm is a milling plant which mills mealie meal that is supplied to Mungwi Technical Secondary School among others. 3.34 On the company called Maxheve Mining Limited, it was his evidence he founded the same together with A4 and Mr. Maximillian Masamba. He told the court that they were later given land by Chief Kaingu in Mumbwa for proposed mineral exploitation. That in 2009 the exploration commenced but they did not sell any minerals because the project was halted by the Anti-Corruption Commission. 3.35 He testified that he is a Civil Servant employed by the Government of Zambia and that during his tenure of employment, he contracted loans I I I I J223 be it car loans, or household loans. In support of this, he produced his payslips. 3.36 It was his evidence that Best Home Lodge dealt with a lot of institutions, and these institutions paid a lot of money and therefore he could not fail to buy cars. He told the court that "P110" indicates that the majority of the money came from the Ministry of Agriculture, Ministry of Finance, and the Ministry of Labour. He stated that the total amount of money Best Home Lodge received from the above mentioned Ministries was in excess of K2,000,000.00 (rebased) and that the Mercedes Benz in count 21 was bought at USD35,000.00 from South Africa in 2008. He maintained that PW19 never gave him any money and that he never stole any money from the Ministry of Health. 3.37 On count 22 relating to the Mitsubishi Challenger, he told the court that the said motor vehicle was bought by him in January 2008 from Mr. George Kabwe of Stanbic Bank at K60,000.00 (rebased) using his money. He told the court that there were no illegal transactions as evidenced by the bank statements. His general statement over the money laundering charges stated that all the properties in the said charges were bought using the money he worked hard from his I I I I I I I I J224 legitimate business which included Best Home Lodge, Kabulonga Filling Station, Kahekam, Hensaka and Best Home Films among others. He maintained that he never had any dealings with Algonquin Management Consultants during the period 2007 to 2009. I 3.38 On count 23, he said that prior to 2009 he had a good name in the business world which was respected by business persons. He thus procured most of the properties herein on agreements that he pays for other properties, like the black Lexus, indicated in count 25, he bought in 2006 from Mr. Perry Mutale. He said that he never had personal dealings with Algonquin Management Consultants during the period 2007 to 2009. He further explained that neither of his companies had dealings with Algonquin Management Consultants. 3.39 On count 26 he stated that the Mazda in question was delivered to his home on 19th April, 2009 by Perry Mutale and he has not yet paid for the same as the Anti-Corruption Commission Officers got the said car before he had paid for it. 3.40 On count 27 involving a Daihatsu Truck, he told the court that the said vehicle was also supplied by Mr. Perry Mutale at USD22,000.00 in March 2008. He told the court Kansma was awarded a contract by I I I I J225 the Ministry of Health which was financed by Hensaka Enterprises. In February, 2008, Kansma paid Hensaka Enterprises about K120,000.00 (rebased) which he used to buy the said motor vehicle. He told the court that the state did not bring Mr. Peter Kansembe the proprietor of Kansma to testify on the K120,000.00 (rebased ) he I received from Kansma . 3.41 On count 28 involving a Nissan UDI Truck registration number 8764, it was his evidence that he bought the said vehicle from Perry Mutale in May 2008 at USD37,000.00. He told the court that he registered the said vehicle in the name of his brother, Fred Chileshe who was at the time, the Operational Manager at Kahekam Limited. He stated that the said truck was bought to be used in the mining activities in Kabompo and Mwinilinga. 3.42 On count 29 involving a Toyota Hiace registration number ABP 9276 it was his evidence that he bought the said vehicle around September 2008 from Perry Mutale at USD19,000.00 using the money from his business services. 3.43 On count 30 involving Stand No. 7791 situated in Woodlands Extension, Lusaka, it was his evidence that the said property belonged ' J226 to his wife who purchased it from Mr. Kazembe. It was his testimony that the money the wife used to buy the said property was partly her personal savings and her family money. 3.44 On count 31 involving House No. 25 Manda Hill Road sitting on Lot Number 3775 Lusaka, it was his evidence that the said property was his and that he bought it from Gracewell Mwale (PW24) herein at K900,000.00 (rebased). He told the court that he paid for the same after he hosted the Ministry of Agriculture and Ministry of Finance at his lodge. He also told the court that he also had some money in Kahekam, and some of that money came from CAN Investment amounting to K117,000.00 (rebased). He also told the court that he received money from Rojo Trading. He maintained that all the money that he paid out was money that he worked for. 3.45 On counts 32 and 57 involving the acquisition and development of Stand No. 13949 situated in Roma Township, he told the court that he bought the said property from Dr. Kalinde, and the transaction later presented a challenge because it turned out that Dr. Kalinde was duped. He stated that the payments he made toward the said property were sums of money he raised from PEMFA in the sum of I I I I I J227 K48,000.00 (rebased), K181,000 .00 (rebased) from the Ministry of Works and Supply, KSS,660.00 (rebased) from the Ministry of Health, and K25,009.90 (rebased) from the Ministry of Community Development among other entities. He explained that the materials he used to develop the said property were obtained on credit from Pa Zed Enterprises about KlS0,550.00 (rebased), K63,260.00 (rebased) for cement from Ms Siame and K90,000.00 (rebased) he promised to offset in instalments. He stated that he also got an overdraft of K300,000.00 (rebased) from Finance Bank. He also had a credit facility with Handyman's Paradise where he was allowed to get building materials on credit on condition that he pays for them within ninety days. That if he had all the money he is being accused of having received from Algonquin Management Consultants, he would not have contracted all this debt. He told the court that he still owes Handyman's Paradise about Kl00,000.00 (rebased). 3.46 On count 33 involving Subdivision 3325/M situated at Ibex Hill in Lusaka, he told the court that he procured the same in September 2006 from Mr. Paul Wasami Mwikisa (PW42) herein. He told the court that a contract of sale was signed and he paid for the property in two I I I J228 instalments. He told the court that his various businesses as explained enabled him to construct the house in Roma and the one in Ibex Hill. He explained that had the state exhibited his companies' bank statements, the court could have had a clearer picture of his liquidity. It was his testimony that he could have loved to bring the said statements but was unable to do so, as the last interaction he had with the bank officials made his bail to be revoked. He stated that other than being a businessman he was in stable employment in the Civil Service. That he earned a salary, and allowances, took out loans, and salary advances. He told the court that he travelled outside the country for work-related activities several times and earned allowances from the same. Besides, he also got allowances from local workshops and seminars which he attended. 3.47 On counts 45 to 52 he denied the charges and told the court that he never deposited over K6,000,000.00 (rebased) in the Algonquin Management Consultants Accounts which the appellant was charged with the offence of money laundering. 3.48 On count 56, he told the court that the Mercedes Benz in count 56 was delivered to his house together with the Mazda in count 26 and I I I I I I I I I I I I J229 that he also had not paid for it. That he was not a signatory to the accounts held by the Ministry of Health, and there is no payment voucher supporting the claim that he prepared the payment, passed them over for checking and finally paid. He told the court that the money in his accounts are amounts of money he raised from his different businesses. 3.49 On count SO he stated that he never got any money from Algonquin Management Consultants to run the Filling Station as the proceeds from the sales of the petroleum products were ploughed back into the business. 3.50 On count 51 he maintained that he opened his account with Handyman's Paradise in 2006 and that he presented to Handyman's Paradise bank statements to support his application. 3.51 On count 52 relating to a motor vehicle a Mazda BTS0 registration no. ABM 3234, it was his evidence that the same belongs to Stephen Chisala a Director at Best Home Films and there was nothing wrong with him owning that car. He told the court that the luxury cars he bought were also used in film production. He told the court that he registered it in the name of Stephen Chisala so as to motivate him and J230 that the registered owner had the option to purchase the said vehicle after five years. He told the court that he registered these vehicles in the names of the Directors to avoid the maintenance cost. 3.52 On count 53 relating to a motor vehicle registration number ABM 9655 a Land Cruiser left hand drive, he told the trial court that he bought the said car to enhance his business in precious stones in Angola and the Democratic Republic of Congo. He told the court that he bought the said car from Dubai at K30,000.00 (rebased) using the funds he made in his various businesses. 3.53 On count 54, relating to motor vehicle registration no. ABR 3536, it was his evidence that he does not own that vehicle and does not know anything relating to the same vehicle. He however told the court that in 2008 he got a contract to supply computers and printers, and he borrowed money from Mr. Chabinga of Apache Enterprises. He told the court that he later paid the Kabinga back his money in a total of K183,000 .00 (rebased). He further told the court that the said money did not come from the Algonquin Management Consultants. I I I J231 3.54 On count 55 relating to the BMW XS registration number ABR 3536, he maintained that it was registered in the name of Fred Chileshe for the reasons aforementioned. 3.55 On count 58 which relates to Best Home Lodges, it was his evidence that he bought the plot from Mr. Luka Special Mwanza in 2004 after returning from Singapore where he had gone to attend a JICA sponsored programme for two weeks. It was his evidence that while in Singapore, he used his allowances to purchase 50 cell phones which he sold when he returned. He used the money he made from the said phones to pay Mr. Mwanza. He told the court the money used to build the said house came from loans, allowances from his trip to Denmark where he stayed for three months and other sources. 3.56 On count 58 relating to a motor vehicle registration number ABG 7400 it was his evidence that he was never warned and cautioned over this charge just like count 45. He explained that this motor vehicle was registered in the name of Stephen Chileshe for the reasons aforementioned. 3.57 In conclusion, he stated that he was being persecuted because he was the nephew of the late President Sata and because he was I I I I I I I I I J232 Bemba. He repeated the procurement processes as he knew them and emphasised that he did not steal any money. 3.58 Under cross-examination, he stated that the money he paid to A9 was in conjunction with the motor vehicle he bought from him. He told the court that he never colluded or worked together with all from the Ministry of Health to steal. On the K618,068.85 (rebased) deposited into the Algonquin Management Consultants Account, he told the court he never operated that. He told the court that the procurement threshold for the Permanent Secretary in relation to works, goods and services was KS0,000.00 (rebased) and that when it comes to procurement for training, the Permanent Secretary need not refer to the said procurement to the Ministerial Tender Committee even if it was above the threshold. According to him, this was because training is a condition of service and he referred to several circulars in support of his position. He stated that when making payments, the Permanent Secretary does not draw his mandate from the Cabinet Office. That the mandate is drawn from the Procurement Regulations. He said that if the Permanent Secretary authorises an amount beyond his threshold, the same is not a crime and the payment will be said to be I I I I J233 unsupported. He maintained that Ministerial Tender Committee merely awards contracts and does not make payments. He stated that the Commitment Requisition was in use at the time and that the mandate for the Human Resource Development Committee was to approve budgets and activities and convey the authority of the Permanent Secretary to pay. 3.59 He said that he never participated in the movement of the funds. It was his evidence that the money herein was not authorised by the Ministerial Tender Committee. He told the court that all the payments from count one to count twenty did not pass through the Ministerial Tender Committee and that all the payments are above KS0,000.00 (rebased) which is above the Permanent Secretary's threshold. He told the court that the workshops in question did take place and that the photos on the record speak to that. 3.60 On the money which was found in the boot of the Lexus car, he confirmed the evidence of the appellant and PW19. On the K947,247.00 (rebased), he confirmed that the said amount was credited to the Algonquin Management Consultants Account. He said I I I I I I I I I J234 that thereafter he did fill in cheque number 88 and 89 in the sum of about K300,000.00 (rebased). 3.61 On the deposits made in his personal and company accounts, it was his evidence that the said monies were proceeds of sales of petroleum products, precious stones, sales from Best Home Lodge, and that at times he would withdraw money within and among his companies. He stated that there was no pattern established that whenever money was deposited into Algonquin Management Consultants Account from Ministry of Health, PW19 would withdraw the money and later DW3 would deposit huge amounts of money in various accounts following receipt of money from PW19. 3.62 He said that he did not dispute that money left the Ministry of Health, or that he filled in cheques for PW19. He admitted that money was withdrawn from Algonquin Management Consultants Account in the names of Masuzyo Chawinga, and that the same day cash was deposited in the Kahekam Account. 3.63 On the Mines, he told the court that he did operate the Mines and that he was unable to produce the Mining License as the same was in the custody of the Anti-Corruption Commission. On his business with I I I I I I I I J235 Mining Companies, he told the court he was a supplier of goods to Chibuluma Mine and Konkola Copper Mine. He told the court that the evidence of his dealings with Chibuluma Mine was the deposit in his account. 3.64 On the extensions made to Best Home Lodge, it was his evidence that he made the said extensions in 2006 and 2007 contrary to the evidence given but Ms Barbara Moyo, the Manager at Best Home Lodge that the extensions were done between January 2008 to I I I October 2008. 3.65 In re-examination, it was his evidence that the Zambia Tender Board Act, Chapter 394 of the Laws of Zambia clearly spells out the composition and mandate of the Ministerial Tender Committee. The rest of his evidence in re-examination is some of his evidence in chief and we have taken note. 4.0 DECISION OF THE LOWER COURT 4.1 The trial court after consideration of the evidence found that the I offences for which the appellant was charged had been established beyond all reasonable doubt and accordingly convicted, sentenced the appellant to 5 years imprisonment with hard labour on each of the 5 J236 counts of ordinary theft, 9 years imprisonment with hard labour on each of the 5 counts of theft by Public Servant and ordered sentences to run concurrently. 4.2 On money laundering counts, he was sentenced to 9 years imprisonment with hard labour on each of the 26 counts and the sentences were to run concurrently. The sentence of 9 years on the theft and 9 years on money laundering were ordered to run consecutively. 4.3 On appeal, the High Court acquitted the appellant on count 59 but upheld his convictions and sentences on the rest of the other counts. However, the sentence of 9 years on the theft offences and 9 years on money laundering offences were orderly to run concurrently by the High Court, reversing the consecutive order made by the trial court. 5.0 GROUNDS OF APPEAL 5.1 Unhappy with the decision of the High Court, the appellant lodged this appeal fronting 41 grounds of appeal. We shall deal with them in the manner they were presented in the appellant's arguments. I I I I I I I I I I J237 6.0 APPELLANT'S ARGUMENTS I I 6.1 Grounds one and two were argued together, together considered as ground one. The gist of the grievance was in the failure by the learned Madam Justice Lombe-Phiri to recuse herself from the cause. 6.2 We were referred to the provisions of Section 6(2) of the Judicial Code of Conduct Act No. 13 of 1999 of the Laws of Zambia which provides that: "A judicial officer shall not adjudicate or take part in any consideration or discussion of any consideration or discussion of any proceedings in which the officer's impartiality might reasonably be questioned on the grounds that: (a) The officer has a personal bias or prejudice concerning a party or a party's legal practitioner or personal knowledge of the facts concerning the proceedings; (b) The officer served as a legal practitioner in the matter." 6.3 We were also referred to Section 7(1) and (2) of the Judicial Code of Conduct Act, No. 13 of 1999 of Laws of Zambia which provides that: "(1) A judicial office disqualified under section six shall I I I J238 at the commencement of the proceedings or consideration of the matter, disclose the officer's disqualification and shall request the parties or the parties' legal representatives to consider, in the absence of the officer, whether or not to waive the disqualification. (2) Where a judicial officer has disclosed an interest other than personal bias or prejudice concerning a party to the proceedings, the parties and the legal representatives may agree the officer adjudicates on the matter." that 6.4 It was contended that the Judge in question was mandatorily not supposed to adjudicate in the proceedings of the appellant's appeal in the High Court and was supposed to disclose her disqualification to the appellant. That the failure of the judge who was a practitioner working at the National Prosecution Authority when the appellant was charged, to comply with Sections 6(2) and 7(1) of the Judicial Code of Conduct Act No. 13 of 1999 made the appeal proceedings irregular. 6.5 It was further submitted that this court is empowered under Section 16 (1) ( c) of the Court of Appeal Act to quash the judgment of the High Court as there was material irregularity due to non-compliance with provisions of the Judicial Code of Conduct. 6.6 In support of ground two, it was submitted that the plain meaning of Section 272 as read together with Section 277 of the Penal Code J239 in relation to this case is that for the appellant to be convicted of theft by servant, all the elements making up the offence of theft must have been proved. That it is only after theft is proved, that theft by public servant can be proved. It was contended that in casu, no theft was proved and as such theft by public servant could not have been proved. 6. 7 We were referred to the case of Si mango v. The People1 in which it I was held that the offence of theft by a servant consists of two ingredients: there must be actual theft of money and the money must be stolen from the employer. We were urged to uphold this ground of appeal. 6.8 It was submitted that the appellate court could not impose a sentence which is way higher than what the trial court could impose on the appellant. That the High Court's imposition of a sentence of 9 years when the Resident Magistrate could only impose a maximum sentence of 7 years was a grave misdirection of the law. In support of this we were referred to the case of Kosamu and Another v. The People2 in which the Supreme Court directed that an appellate court can only impose a sentence that the trial court could have imposed. It has no power to impose any greater sentence. J240 6.9 On the offence of money laundering, it was the appellant's contention that the prosecution did not discharge its duty of proving that the appellant engaged directly or indirectly, in a business transaction that involved property acquired with proceeds of crime; or that he received, possessed, concealed, disguised, disposed of or brought into Zambia, any property derived or realised directly or indirectly from illegal activity; or that he retained or acquired property knowing that the property is derived or realised directly, from illegal activity. According to the appellant, he gave a reasonable explanation of how he started his business in the year 2000 and that he demonstrated that he had several businesses with many parastatal and government institutions. 6.10 It was submitted that when sentencing the appellant, the High Court failed to take into account the fact that the appellant was incarcerated at the Lusaka Correctional Facility from 27th December 2017. 6.13 GROUND THREE The learned judges in the court below erred in law and in fact when they held that the issues regarding the proof of the offence of theft against the appellants lack merit and are dismissed. I I J241 6.14 In support of this ground of appeal, it was contended that for a person to be convicted of an offence, all the ingredients of the said offence he or she was charged with must be proved. That the court below erred when it held that the issues regarding the proof of the offence of theft against the appellants lack merit and are dismissed. 6.15 GROUND FOUR The learned judges of the court below erred in law and in fact when they held that the appellants circumvented the procurement procedure in perpetuating the thefts. The evidence relating to the circumvention of the procurement procedure can therefore be treated as corroborative evidence to the mens rea of the accused persons. 6.16 In support if this ground of appeal, it was submitted that no evidence was led to prove that the appellant circumvented the procurement procedures to perpetuate the thefts. It was contended that it is perplexing that the High Court went on to hold that the evidence relating to the circumvention of the procurement procedure can therefore be treated as corroborative evidence to the mens rea of the appellant. Further, it was submitted that this is a proper case in which this court may interfere with the holding of the High Court as their holding was not supported by any evidence on the record. I I I I I I I I J242 6.17 We were referred to the provisions of Section 18 of the repealed Zambia National Tender Board Act, Chapter 394 of the Laws of Zambia does not criminalize failure to comply with government procurement procedure and that it is the controlling officers who are accountable for failure to comply with the provisions relating to procurement. Since the appellant was not the controlling officer of the Ministry of Health, he was not accountable for failing to follow the procurement procedure if at all any. We were referred to the case of Chiyokoma v. The People3 in which it was held that a breach of government regulations does not in itself constitute a criminal offence. 6.18 In order to constitute a criminal offence in the circumstances it would have to be proved that there was fraud, within the meaning of Section 265 of the Penal Code. 6.19 Furthermore, it was contended that Section 51 of the Public Finance Act No. 15 of 2004 gives guidance to the term of years an erring officer may face. 6.20 GROUND FIVE The learned judges in the Court below erred in law and in fact when they held that the appellant would have managed to steal the money they stole as they had strategically placed themselves in the chain of payments to ensure that money J243 was moved from the Ministry of Health Accounts to Algonquin accounts. 6.21 In support of this ground of appeal, it was contended that there is no evidence on record to prove that the appellant placed himself in the chain of payments to ensure that money was moved from the Ministry of Health Accounts to the Algonquin Management Consultants Accounts. According to the appellant, he was not among the people that approved and authorised the payments made to Algonquin Management Consultants and thus was nowhere near such transactions. 6.22 It was submitted that there is no documentary or circumstantial evidence adduced to prove that the money move from the Ministry of Health to the appellant or from Algonquin Management Consultants to the appellant's accounts. We were urged to uphold this ground of appeal. 6.23 GROUND SIX The learned Judges in the court below erred in law and in fact when they held that therefore, the arguments whether or not there was need for authority to pass those payments do not help the appellants in any way and are accordingly dismissed. I I I I I I I I I I J244 6.24 In support of this ground of appeal, it was the appellant's contention that the then controlling officer, Dr. Simon Miti did state in his testimony on page 1090 of the record of appeal that he signed off the documents to the Director Human Resource and Administration which other witnesses such as Danstan Mwansa and Gift Kamwale confirmed in court. We were equally urged to uphold this ground of appeal. 6.25 GROUND SEVEN The learned judges in the court below erred in law when they dismissed the appellant's argument that had the prosecution produced the subject file the Court would have found that all the payments to Algonquin were authorised by the permanent secretary or the employer of the appellant and would have consequently found that the appellant is not guilty of theft by public servant. 6.26 The appellant submitted in support of this ground of appeal, that the failure by the state to produce evidence whether or not favourable to the appellant which was in their custody is a grave misdirection which the trial court and the High Court ought to have taken into consideration . We were referred to the case of Able Banda v. The People. 4 It was further submitted that the only inference which can be drawn from the failure of the prosecution to produce all the seized documents was that they knew that the same was favourable to the J245 appellant. We were referred to the case of John Nyambe Lubinda V. The People. S 6.27 In this case, it was held that where evidence available only to the police is not placed before the court, it must be assumed that had it been produced it would have been favourable to the accused. 6.28 We were further referred to the case of Masonga v. The People6 in which it was held that it is trite law and a constitutional duty for the prosecution to guarantee a fair trial and a fair trial starts with investigations. Any shortcomings in the investigation may seriously jeopardize the right to a fair proceeding and thereby also prejudice the accused person's innocence. 6.29 It was contended that the prosecution prejudiced the appellant's innocence when they failed to produce the documents which were favourable to the appellant and the High Court should have seen this and should have acquitted the appellant. 6.30 GROUND EIGHT The learned judges in the court below erred in law and in fact when they held that the failure to return the money the 1st and 2nd appellants' conversion of the money to their own use constituted the intent to permanently deprive the Ministry of Health as envisaged in section 265(2) (a) of the Penal Code. I I I I I I I J246 6.31 In support of this ground of appeal it was submitted that there being no evidence on the record to prove theft, the appellant cannot be said to have had an intent to permanently deprive the Ministry of Health as envisaged in section 265(2)(a) of the Penal Code. It was contended that the prosecution did not adduce evidence to prove that the appellant took or converted money belonging to the Ministry of Health with intent permanently to deprive the Government of the Republic of Zambia. That there being no evidence to prove theft, the appellant cannot be said to have had an intent to permanently deprive the Ministry of Health as envisaged in Section 265(2)(a) of the Penal Code. 6.32 It was submitted that the evidence on the record indicates that the alleged stolen money was transferred from the Ministry of Health to Algonquin Management Consultants Limited a company which the appellant had no control over. 6.33 GROUND NINE The learned judges in the court below erred in law and in fact when they found the 1st appellant's explanation as to why he continued working for the Ministry of Health shortly after his transfer to Ministry of Local Government and Housing. I I I J247 6.34 In support of this ground of appeal, it was submitted that the explanation given by the appellant was reasonable and the court below erred in the manner they interpreted the evidence on the record. We were urged to quash the holding of the court below. 6.35 GROUND TEN The learned Judges of the High Court erred in law and in fact when they held that the manner in which the appellants in a calculated and systematic manner managed to manipulate the procurement and payment process in the Ministry of Health in order to ensure that payments were made out to Algonquin Management Consultants goes to demonstrate that there was a meeting of minds and speaks to the mens rea of the appellants. 6.36 In support of this ground of appeal, it was submitted that the holding of the lower court to the effect that the appellant calculated and systematically managed to manipulate the procurement and payment process at the Ministry of Health in order to ensure that payments were made out to Algonquin Management Consultants. It was submitted that the court did not explain how it arrived at this holding. We were referred to the case of Zambia Consolidated Copper Mines Limited and James Matale7 where it was held that a finding of fact I I I I ' I I I J248 becomes a question of law when it is a finding which is not supported by the evidence or when it is one made on a view of the facts which cannot reasonably be entertained. We were urged to dismiss this appeal. 6.37 GROUNDS ELEVEN The learned judges in the court below erred in law and in fact when they held that all this evidence is to show that other than the three workshops at Suwilanji Gardens, Crossroads lodges and Manchinchi Bay Lodge Algonquin did not conduct any other training. This issue proved beyond reasonable doubt by the prosecution and the arguments of the appellants lack merit. 6.38 GROUND TWELVE The learned judges in the court below erred in law and in fact when they held that having found that the payments made to Algonquin lacked the requisite authority and also that the purpose for which the payments were made was significantly altered as the bulk of the workshops/training seminars did not actually take place. 6.39 Ground 11 and 12 were argued together. The gist of the appellant's argument was that the appellant was not charged with the offence of not conducting workshops. Therefore, the issue of whether or not workshops were conducted was irrelevant to providing the guilt of the appellant in the trial court. It was contended that linking the evidence J249 of workshops to theft and theft by Publ ic Servant did not establish that the appellant stole money from Ministry of Health. 6.40 In the alternative, it was submitted that we should find that Algonquin Management Consultants did not hold workshops other than those mentioned by the court below, we should hold that Algonquin Management Consultants is obliged to return the money to the Ministry of Health as the appellant was not paid any money. 6.41 GROUND THIRTEEN Was a repetition of ground 8. 6.42 GROUND FOURTEEN The learned judge in the court below erred in law and in fact when they held that furthermore, the evidence revealed that the appellants having permanently deprived the Ministry of Health of the money also used it at their own will. 6.43 In support of this ground of appeal, it was contended that the holding of the High Court that the appellant permanently deprived the Ministry of Health of the money which was paid to Algonquin Management Consultants was a misdirection. According to the appellant, the finding of the court below is not supported by any evidence. 6.44 GROUND FIFTEEN I I I I I J250 The learned judges in the court below erred in law and in fact when they held that in view of the foregoing, it is clear that the 1st appellant acting together with the other appellants acted fraudulently and dishonestly in his dealings with Algonquin Management Consultants and PW19 resulting in the theft of Public Funds. 6.45 The appellant reiterated his argument that it should be the management of Algonquin Management Consultants Limited who should be held responsible as it is their company which received the money from Ministry of Health. 6.46 GROUND SIXTEEN The learned judges in the court below erred in law and in fact when they held that the appellants were tried, convicted and sentenced as joint offenders in the commission of theft of public funds but acquitted two leaving out the other appellants therefore discrimination. The learned judges of the court below erred in law and in fact when they held that there is therefore, no need for the prosecution to produce direct evidence that the appellants were working towards a common purpose. The lower court erred in law when it held that the appellants acted with a common purpose and that the unlawful common purpose was theft of public funds from the Ministry of Health and based its opinion on section 22 of the Penal Code Chapter 87 of the Laws of Zambia. I I I I I I J251 6.47 The three grounds of appeal (grounds 16, 17 and 18) were argued together. The gist of the appellant's argument was that if the appel lant and those others who were acquitted formed a common intention to carry out an unlawful act as the High Court held, he should be acquitted as well. 6.48 GROUND NINETEEN The learned judges in the court below erred in law and in fact when they held that in respect of the crime of theft by public servant found to have been orchestrated by the 1 stappellant when there was no evidence to prove that the 1st appellant when there was no evidence to prove that the 1st appellant orchestrated the theft. 6.49 The appellant argued that there is no evidence of the record to prove appellant orchestrated theft of the funds. 6.50 GROUND TWENTY The learned judges in the court below erred in law and in fact when they held that it has also already been established that these transactions where the procurement procedures were conveniently ignored by all the officers that took part in the process. 6.51 In support of this ground of appeal, the appellant argued that the appellant was not involved in the procurement of services and that there is no evidence on the record to establish that. I I I I ' J252 6.52 GROUND TWENTY-TWO {Ground twenty-One was skipped) The learned judges in the court below erred in law and in fact when they held that further evidence on record is that the 2nd and 3rd appellants continued to process payments on behalf of the 1st appellants even when they were aware he was no longer deployed at the Ministry of Health. 6.53 In support of this ground of appeal, it was contended that the appellant had nothing to deal with Algonquin Management Consultants Limited and that he was neither a shareholder nor a director. 6.54 GROUND TWENTY-THREE The learned judges of the court below erred in law and in fact when they held that there is no further evidence to link the 4th appellant to the scheme that had been crafted by the 1st appellant. 6.55 The appellant contended that there is no evidence to the lower court's finding and that this ground of appeal should be upheld. 6.56 GROUND TWENTY-FOUR The learned judges in the court below erred in law and in fact when they held that money laundering can be described as the manipulation of money or property in order to misrepresent its true sources or nature. 6.57 In support of this ground of appeal, the appellant took issue with the lower court's interpretation or definition of money laundering. We were referred to Section 2 of the Prohibition and Prevention of I I I I I I I J253 Money Laundering Act No. 14 of 2001 of the Laws of Zambia which provides that: "Money laundering means where a reasonable inference may be drawn, having regard to the objective factual circumstances, any activity by a person - {a) who knows or has reason to believe that the property is the proceeds of a crime; or {b) without reasonable excuse, fails to take reasonable steps to ascertain whether or not the property is proceeds of a crime; Where the person- {i) engages, directly or indirectly, in a transaction that involves proceeds of a crime; {ii) acquires, receives, possesses, disguises, converts, carries, transfers, disposes, uses, removes from or brings into Zambia proceeds of a crime; or exchanges, {iii) conceals, disguises or impedes the establishment, of the true nature, ongm, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of crime." 6.58 It was submitted further that the appellant did not at any point engage directly or indirectly in a business transaction which involved property acquired with proceeds of crime. In summation we were urged to I I I I J254 quash the lower court's interpretation of the offence of money laundering. 6.59 GROUNDS TWENTY-FIVE, TWENTY-SIX AND TWENTY-SEVEN The learned judge in the court below erred in law and in fact when they held that the learned trial magistrate found that the amassing of both real and other property on the part of both appellants was questionable and that the only reasonable inference that could be drawn from this finding of fact was that the appellants paid for these properties using the funds that were stolen from the Ministry of Health through Algonquin Management Consultants. The learned judges in the court below erred in law and in fact when they held that what is evident from the record is that there were several witnesses called to testify regarding the acquisition of property by the two appellants and how this property was acquired. The learned judges in the court below erred in law and in fact when they held that our view is that the learned trial magistrate properly found that the 1st and 2nd appellants had laundered the proceeds of the theft by acquiring various properties. 6.60 In support of these grounds of appeal the appellant contended that he did indicate to the trial court as well as the court below that he had shares in various companies which were actively in business. It was contended further that there is no evidence to prove that the appellant I I I I I I I I J255 bought his properties using the money allegedly stolen from Ministry of Health. We were asked to uphold these grounds of appeal. 6.61 GROUND TWENTY-EIGHT The learned judges of the court below erred in law and in fact when they held the money transferred from the Ministry of Health account and deposited into the Algonquin Management Consultants Account is the property that was concealed and disguised to cover up theft ....... The money was going towards the payment for the workshops yet it was meant to be withdrawn as cash by the appellants. As the appellants knew right from the onset that there would not be any workshops, other than the ones that were held, all other payments made and to Algonquin were done so illegally. 6.62 It was contended that there is no evidence on the record to support the lower's court's finding that the appellant withdrew the money pa id to Algonquin Management Consultants Limited. 6.63 GROUND TWENTY-NINE The learned judges in the court below erred in law and in fact when they held that part of the evidence that warranted his conviction was the proof beyond reasonable doubt that he amassed so much wealth during the same period he stole money belonging to the Ministry of Health. I I I I I I J256 6.64 In support of this ground of appeal, the appellant contended that the record of appeal is devoid of any evidence to support the trial court's finding under this ground of appeal. According to the appellant, the offences levelled against him were not proved beyond reasonable doubt. 6.65 GROUND THIRTY The learned judges in the court below erred in law and in fact when they held that the evidence on record shows that the property that was seized from the 1st appellant was property which he acquired during the material period of the indictment. Whereas property belonging to the wife was seized and property belonging to the Companies were also seized. 6.66 In support of this ground of appeal, it was contended that the house the appellant was living in at the time of his arrest was bought way before the indictment period. The appellant's wife had a house which was also seized when the same was bought by her. That companies in which the appellant had shares had properties seized and bank accounts were of the same companies were frozen to date it was stated that this demonstrates that the lower court's holding is a fatal misdirection as the court failed to peruse the voluminous record of proceedings in order to come across the evidence highlighted. J25 7 6.67 GROUND THIRTY-ONE The learned judges in the court below erred in law and in fact when they held that they were satisfied that the trial magistrate was satisfied as to the accuracy of the figures on PW19's note and thus, the said note was an accurate source of information and therefore, competent to be used by PW19's as an aid memoire. It was not clear from the record whether the opposing Counsel/ party has accession to inspect PW19's note nor is it clear whether they had the opportunity to cross examine upon it. 6.68 In support of this ground of appeal, the appellant contended that the document which PW19 referred to during trial was not made available to him or his counsel thus he was prejudiced. 6.69 GROUND THIRTY-TWO The learned judges in the court below erred in law and in fact when they held that the corroborative evidence on the record was overwhelmingly including documentary evidence of cheques written out by the 1st appellant for PW19, witnesses who were present when money was handed over to the 1st appellant and the manner that the 1st appellant desperately pursued payments to be made to Algonquin. 6. 70 In support of this ground of appeal it was the appellant's contention that there is no evidence on the record to support this finding by the trial court. I I I I I I I I I J258 6.71 GROUND THIRTY-THREE The learned judges in the court below erred in law and in fact when they held that the danger to falsely implicate the 1st appellant by PW19 was ruled out. Further that even though PW38, PW12 and PW19 were to be considered suspect witnesses, their . evidence before the court was sufficiently supported by independent evidence. 6. 72 In support of this ground of appeal, it was held that the said witnesses were suspect witnesses and there is no independent evidence on the record to corroborate their testimonies. 6.73 GROUNDS THIRTY-FOUR, THIRTY-FIVE AND THIRTY-SIX The learned judges in the court below erred in law and in fact when they held that there was therefore, no contradiction or any lingering doubt left to be resolved by the Trial Magistrate. The learned judges in the court below e.rred in law and in fact when they held that in the premises, the trial magistrate for exercising discretionary powers cannot be provided for by statute. faulted The learned judges in the court below erred in law and in fact when they held that there were ten transactions disguised as payments to Algonquin that essentially amounted to theft as they were unlawful. All the disguised payments were done for the criminal purpose, to defraud the Ministry of Health. 6. 74 In support of these grounds of appeal, it was contended that all the J259 payments which were made to Algonquin Management Consultants were lawfully made as all the signatories to the Ministry of Health account signed. He contended further that he was nowhere near Algonquin Management Consultants Limited and therefore cannot be held liable. 6.75 GROUND THIRTY-SEVEN The learned judges in the court below erred in law and in fact when they held with respect to the imposition of a custodial sentence that we uphold the custodial sentences on both of theft by public servants and money laundering. 6. 76 The gist of the appellant's submission was that the court below was out of order to impose a custodial sentence on the appellant for the offence of money laundering which provides for imposition of a fine as a first penalty. 6.77 GROUND THIRTY-EIGHT The learned judges in the court below erred in law and in fact when they held that each offence to run concurrently with effect from 1st August, 2018 to December, 2023. 6. 78 The gist of the appellant's argument under this ground of appeal, was that the court below was wrong to state that the sentence should start running from the date of its judgment instead of indicating that the I I I I I I I I I J260 sentence should start running from the date when his bail was revoked. 6.79 GROUND THIRTY-NINE The learned judges in the court below erred in law and in fact when they failed to address each and every ground of appeal the 1st appellant raised in his appeal but decided to wholesomely bundle the same. 6.80 In support of this ground the appellant contended that the court below was wrong in bundling together all the grounds of appeal, instead of considering each ground of appeal separately. 6.81 GROUND FORTY The learned judges in the court below erred in law and in fact when they failed to order the state to immediately return the 1st appellant's seized properties when the record shows that no evidence was adduced by the state to prove the offence of failing to account for possession of property reasonably suspected to have been unlawfully obtained. 6.82 GROUND FORTY-ONE The learned judges in the court below erred in law and in fact when they failed to order the unconditional release of the 1st appellant's seized properties with respect to count 24 which the trial court found the said appellant with no case to answer and when evidence on the record shows that count 25 was withdrawn by the state against the 1st appellant and the same was actually upheld by the judges. J261 6.83 In support of this ground of appeal, it was stated that the properties belonging to the appellant which were wrongfully forfeited to the state due to the charges contained in count 24 and 25 should have been released to the appellant. 6.84 In summation, it was contended that the prosecution failed to prove their case beyond reasonable doubt. We were urged to acquit the appellant and set him to liberty. 7.0 RESPONDENT'S ARGUMENT 7 .1 In responding to the appeal, learned counsel for the appellant supported the conviction and sentence of the trial court. Due to the ponderous nature of the record, counsel responded to the arguments by organising the grounds of appeal into the following categories of the issues believed were raised . These have been identified to be mainly:- 1. Elements of the Offence of Theft and Money Laundering; 2. Witnesses with an interest to serve 3. Independent corroborative evidence; 4. Sentence; and 5. Mixed issues (Miscellaneous). I I I I I I I I I I I I I I I J262 7.2 In responding to the grounds of appeal which attacks one of the learned Judges of the High Court, the Honourable Lady Justice C. L. Phiri, it was submitted that the learned Judge did not personally prosecute the matter for the information to come to her knowledge. It was contended further that the fact that she was with the National Prosecution Authority does not in any way raise any bias and that the appeal was heard by three Judges of the High Court. It was counsel's further submission that there was no misconduct from which a technicality can be said to have arisen and shaken the conviction of the appellant. 7.3 In resounding to grounds 1, 2, 3, 4, 5, 10, 11, 12, 15, 24, 28, 45 which touch on elements of the offence of theft by public servant and money laundering, it was contended that the elements of this offence were proved beyond reasonable doubt. It was the counsel's submission that the evidence of PWl 9 was very clear that the appellant facilitated the movement of the money through the payment instructions he fraudulently endorsed on a number of documents that eventually passed for payment. The money was withdrawn from Algonquin Management Consultants Limited and given to the appellant. The J263 appellant obtained the money on the pretext that the workshop had been cancelled and the money was to be paid back. It is worth noting that the withdrawal of the money from Algonquin Management Consultants Limited was always on the instruction of the appellant; the same person who assisted PW19 to have the account re-opened and wrote the cheques for her as according to him, she did not know how to write on the cheques. This coupled with the other pieces of evidence made the trial court to form a view that the appellant did act fraudulently and intended to deprive the government of the said money. 7.4 On the offence of money laundering, it was learned counsel's contention that the prosecution proved the offence of money laundering beyond all reasonable doubt. It was submitted that pursuant to the definition of Money Laundering under Section 2 of the Prohibition and Prevention of Money Laundering Act (PPMLA} No. 14 of 2001, any dealing with the proceeds of crime constitutes an offence of money laundering. 7.5 It was contended that dealing with proceeds of crime includes receiving, acquiring, possessing, retaining, carrying, transferring, I I I I I I I I J264 exchanging, disguising, concealing, disposing of, removing from or bringing into Zambia proceeds from any illegal activity, or engaging, directly or indirectly, in a business transaction that involves property acquired from any illegal activity as well as disguising, concealing or impeding the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of proceeds of any illegal activity. That in casu, any dealing with the money that was stolen from the Ministry of Health constituted an offence of money laundering. 7.6 In summation it was counsel's contention that the learned trial court could not be faulted for convicting the appellant for money laundering. We were urged to find that there is no basis on which the findings of fact made by the trial court can be overturned. 7.7 In responding to grounds 31 and 33 which realised the issues of witnesses with an interest to serve, it was contended that the PW12, 19 and 38 were rightly classified as witnesses with an interest to serve and their evidence properly handled . The trial court went at length to analyse the law on witnesses with an interest to serve and found that there was also independent evidence supporting the testimonies of the J265 witnesses. The danger to falsely implicate was ruled out and we support the decision of the High Court. It was submitted further that the court below referred to the case of Emmanuel Phiri and Others v. The People8 in which the Supreme Court espoused guiding principles on how to handle the issues of witnesses with an interest to serve. According to learned counsel, the court below properly directed its mind to the said principles and applied them accordingly. 7.8 In responding to ground 32 which raises the issue of independent corroborative evidence, counsel contended that that there was overwhelming independent corroborative evidence on the record supporting the evidence of the witnesses whose evidence the appellant has yet again assailed. It was pointed out that some of this evidence include: the documents brought and admitted into court in support of the prosecution's case; including among the many, the Handwriting Expert's evidence which showed that the appellant filled in cheques to the sum of K629,029.80 (rebased) appearing on two cheques. This evidence independently ascertained by the Handwriting Expert PW53 directly linked appellant; I I I I I I I I I I J266 • The conduct of the appellant which included the signing on the cheques and the concealing of cheques and documents which were found at his place; • The properties connected to the appellant and the testimonies of other independent witnesses as the record will show. 7.9 We were urged to dismiss this ground of appeal as it lacks merit. 7.10 In responding to grounds 6, 7, 8, 9, 16, 17, 18, 34, 41, 43, 44, 45, 48 which counsel for the respondent identified to raise mixed issues, her submissions were made as follows: ,. Transfer of Appellant It was contended that the appellant was transferred from the Ministry of Health to the Ministry of Local Government and Housing (MLGH) in May 2008 and that in June 2008, the appellant collected K629,029.80 (rebased) from PW19 by purporting that he wanted to use it to pay allowances for the participants when he was no longer an employee of the Ministry of Health. According to learned counsel, this conduct of the appellant proved fraudulent and the desire to unlawfully facilitate the movement of the money from the Ministry of Health to Algonquin I I I I I I I I J267 Management Consultants where he benefited. We were urged not to disturb the findings of the trial court. ii. Discrimination In responding to the grounds of appeal which raise issues of discrimination, it was submitted that the appellant claims that he has been discriminated against as some of his co-appellants were acquitted. Learned counsel, Mrs. Mwansa submitted that the acquittal of a co-appellant cannot in any sense infer discrimination to render submissions on a possible constitutional infringement. It is the evidence that exonerates one when criminally charged and not the status of a person. In this case, the High Court gave reasons for acquitting the other appellants and the reasons were generally that the prosecution had failed to prove the case beyond reasonable doubt over those. They were not acquitted because of a status that they carried to the appellate court for the appellant to now unreasonably claim discrimination simply because the prosecution failed to prove its case against those acquitted appellants. We were urged to dismiss this ground of appeal for being frivolous and vexatious. I I I I I J268 111 . Grounds bundled together In responding to the ground of appeal which seeks to assail the decision of the court below on the ground that the High Court dealt with all the grounds of appeal together, learned counsel for the respondent contended that the learned High Court Judges cannot be faulted for arranging the grounds in a neat manner as they did. With this, the court did not just bundle the grounds but arranged them and attended to each and every ground the appellant had raised. It was further submitted that as long as the gist or the substance of the arguments in the grounds is addressed and not distorted, we see nothing wrong with the grounds being grouped into categories for clarity of writing or responding to issues. The High Court cannot be condemned for simplifying the arguments and communicating in a simple and straightforward manner as it did. We see no merit in this line of argument. iv. Forfeiture In responding to ground 41 which raises the issue of forfeiture, learned counsel submitted that the learned Judges did not err in law and fact when they made an order on page (J129) releasing the property that I I I J269 was subject to count that the prosecution failed to prove. With regard to the other tainted properties seized in the course of the investigations, appropriate applications were made and the properties were forfeited in accordance with the law. The appellant has on numerous occasions attempted to have the properties released and this ground is yet again another attempt to make a previous failed application; couched in the form of a ground of appeal before this court. Counsel contended that this court is faced with a case where huge sums of money were stolen by a public servant who shortly thereafter, amassed a lot of wealth. According to the respondent, the evidence on the record, "P106," when analyzed together with other pieces of evidence discloses that the appellant had large unexplained income and expenditures during the month of May 2008 when he stole this amount of money from Ministry of Health. This evidence supports PWl 9's evidence that she gave this stolen money to the appellant. For example, on 2nd May 2008, K732,350.00 (rebased) was credited to Algonquin Management Consultants Account from the Ministry of Health. These funds were later withdrawn in cash from the Algonquin J270 Management Consultants Account by PW19 between 2nd May 2008 and 31 st May 2008 leaving a balance of K3,262.338 (rebased) in the account as at 31st May 2008. On 3rd May 2008, Kl00,000.00 (rebased) was withdrawn in cash from this account using cheque number 59, and on 5th May 2008, K200,000 .00 (rebased) was withdrawn in cash using cheque number 60. PW19 then gave this money to the appellant. Then on 5th May 2008, the appellant made a large unusual cash deposit of K120,000.00 (rebased) into Hesaka Account. Furthermore, on 12th May 2008, there was a cash withdrawal of K160,000.00 (rebased) from the Algonquin Management Consultants Account by PW19 which she gave to the appellant. And on 23rd May 2008, the appellant made a large unusual cash deposit of K40,000.00 (rebased) into Hesaka Account. During the same month of May 2008, he imported a brand new Nissan UD 290 Tipper Truck registration number ABM 8764. 7.11 In summation, it was the learned counsel's contention that the appellant played a pivotal role in the illegal movement of the money and amassed a lot of property in laundering that money. The court below cannot be faulted for convicting him as charged. I I I I I I I J271 v. Sentence 7.12 In responding to grounds 33 and 34 which raises the issue of sentencing, it was learned counsel's contention that the Trial Magistrate sentenced the appellant in his capacity as Principal Resident Magistrate. According to the respondent the sentence is within the law and the Trial Magistrate had the jurisdiction to sentence as he did. Section 7 of the Criminal Procedure Code is inapplicable in this case. 7.13 It was the respondent's further submission that the court below employed the deterrence theory of sentencing in this case and that the deterrence theory is a principle or objective of sentencing a person guilty of a crime which ensures that the punishment is sufficient to deter the guilty person, and others, from committing the same crime. 7.14 To demonstrate the use of this principle we were referred to the case of Wilson Chamoto v. The People9 in which the court imposed a custodial sentence for an offence attracting a fine because it was found that offences involving firearms had become prevalent and there was need for deterrent sentences. J272 7.15 It was further submitted that the High Court observed that there were aggravating circumstances in this case which rendered the imposition of a fine inappropriate and warranted a custodial sentence. It was Mrs. Mwansa's sentiments that financial crimes have escalated to alarming levels in our jurisdiction and that the judicial system will be lamentably failing in its duties if the same is left to persist by the imposition of sentences that are not deterrent. In summation we were urged to dismiss the appellant's appeal on sentence. 8.0 THE HEARING 8.1 At the hearing of this appeal on 22nd April 2022, learned counsel for the appellant Mr. M. Cheelo and Mr. C. Simukonda extensively argued their case. On the other hand, learned counsel for the respondent Mrs. M. C. Mwansa informed the court that they would rely on the filed arguments. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the record, the arguments for and against the appeal. 9.2 We firstly wish to address the manner in which the grounds of appeal were presented before us. The appellant fronted a total of 41 grounds, I I I I I I I I I J273 most of which were repetitions, dealing with the same issues, some of which were inconsequential to the appeal. It is not good lawyering to present a plethora of grounds when the issues in the appeal could easily be covered in three or four grounds of appeal. Presenting a lot of replicated and irrelevant grounds is never helpful to the court and the parties. It simply complicates a seemingly straightforward appeal to the possible detriment of the proponent. This may lead to a possibility of missing out the important issues by the parties, as they appear to be shooting in the dark. 9.3 The manner in which the grounds of appeal were presented in the High Court is similar to the way the same were presented before us. The complaint in ground 39 is self-inflicted. We cannot fault the High Court for proceeding as it did. When counsel presents replicated and unnecessarily winding grounds, a court is justified in simply addressing the issues raised in the plethora of grounds for the sake of clarity. We shall proceed in the same manner by addressing heads of issues identified. Consequently, ground 39 suffers the fate of being the first to die. I I I I I I I J274 9.4 We wish to guide the parties that we frown upon conduct by counsel presenting numerous grounds when they can clearly and concisely do so. We expect counsel to comply with our guidance. 9.5 We now wish to comment on the several counts that were presented before the trial court. We note that the general rule is that a charge sheet should contain only one count. The law however allows for joinder of counts as long as the offences are of a similar character or based on the same facts. Therefore on this score, the same were not duplicitous. We are also alive to the discretion the Director of Public Prosecutions relating to what charges to bring, how many and against who. 9.6 We wish, however, to guide that the charges must carefully be scrutinized for replication and an assessment made. Even if the law allows for joinder of counts in the manner we have discussed above, it is very important to always avoid overloading a charge sheet with several counts. This may have the effect of overwhelming the trial court and the parties, and may ultimately not meet the ends of justice. In this case, there were a total of 69 counts and 59 witnesses. The judgment of the trial court gobbled up a total of 1229 pages. The I I I I I I record of appeal before us is made up of 13 very thick volumes. This is obviously unbearable for a court and the danger of some things being missed is very high. 9.7 We thus implore the Director of Public Prosecutions to consider preferring a few counts, especially the ones which can stick, or at least placing the counts on different charge sheets containing fewer counts to be tried before different courts. Some of the counts in casu, as it will come to light later in this judgment should have been compressed into one or so counts. 9.8 Having said the foregoing, we now turn to consider the arguments, in the categories in which they fall. But before we do so, we note that the appellant has argued that Madam Justice Lombe-Phiri ought to have recused herself from sitting on the appeal because she was working at the now National Prosecution Authority at the time the appellant was being prosecuted. There is no evidence that she was involved in the prosecution of the matter. The mere fact that she worked there is not enough. This argument is thus without merit and we dismiss it. Theft by public servant and ordinary theft I I I I I I J276 9.9 We wish to observe at the onset that the trial court did a block analysis of the evidence before the court and at the end did a block conviction for the theft related offences. At page JSS, this is what the trial court said: "I note that although the accused stand charged on sixty nine (69) counts, these counts boils down to two offences namel~ theft b~ gublic servant contra~ to Sections 272 and 277 of the Penal Code Chapter 87 of the Laws of Zambia and Mone~ Laundering contrary to Section 7 of the Prevention and Prohibition of Money Laundering Act No. 14 of 2001 of the Laws of Zambia. I will thus beseech ~our indulgence to allow me to cluster the counts when discussing the law."(Emphasis ours) 9.10 To begin with, the foregoing appears as though the appellant was facing two categories of offences. This is an incorrect statement. He additionally faced offences of ordinary theft and failing to account for possession of property reasonably suspected to have been unlawfully obtained. 9.11 After considering the evidence and reviewing the relevant law, the trial court proceeded to make the following block finding of guilty at page J1215 : "Ipso facto, I find Al, A2, A4, AS and all guilty of the offences of theft by public servants on which they are I I I I I I I J277 jointly and severally charged on counts ........ and will convict them accordingly. I however find A3, A7, A9, A10 and A12 not guilty and I will acquit them on the charges of theft by public servant." 9.12 The trial court never made a finding of guilty in respect of the offences of ordinary theft and failing to account for possession of property reasonably suspected to have been unlawfully obtained. The trial court however proceeded as though it had convicted the appellant even on those offences. The counts of ordinary theft the appellant faced were counts 12, 14, 16, 18 and 20. The trial court sentenced the appellant to 5 years on each of the theft counts (page 21 of the Ruling on sentence). In respect of the offence of failing to account for possession of property reasonably suspected to have been unlawfully obtained, which was count 59, despite the absence of any conviction, the trial court proceeded to have the motor vehicle, which was a subject of the charge, forfeited to the state. I 9.13 This is the danger of considering counts together and analyzing evidence together. In our recent decision, in the case of Noah Tembo and 2 Others v. The People10 , this is what we said: "Before we conclude, we wish to guide trial courts that whenever a person is charged with multiple counts, the J278 court must consider the evidence in respect of each count and make a finding on each count in respect of each accused person. In this case, the trial court lost sight of the issues because it made a block consideration of the evidence in count one and count two and made a conclusion on the basis of count one. That is not a correct approach. An accused person's guilt must be assessed in respect of each count in relation to the evidence led." 9.14 The need to adhere to this guidance is that a court will not miss out any count and assess the veracity of the evidence against an accused person in respect of each count. Further, it is a requirement in criminal matters that a court must make a finding of guilty in respect of each and every count. It does not follow that when a person is guilty in one count, then they are inevitably guilty in the other. 9.15 The High Court, despite having correctly noted the 4 categories of offences the appellant faced, equally fell into the error of the trial court by considering the offences of ordinary theft and theft by public servant as one and all the counts for the two categories of offences together. The only error the High Court noticed was the one relating to count 59, and rightly acquitted the appellant. I I I I I .. -------- - - ------------- I I I I I J279 9.16 The trial court having not convicted the appellant on the five counts of ordinary theft, it had no power to impose the sentences it did. We see no justification in making the appellant undergo another trial on the counts relating to ordinary theft. We consequently acquit the appellant in respect of counts 12, 14, 16, 18 and 20 and set aside the sentences imposed on him in that respect. 9.17 We now turn to the offences of theft by public servant. Despite the block conviction, we note that the trial court actually convicted the appellant on the offences of theft by public servant after analysing the evidence. We see no prejudice occasioned to the appellant as a result thereof. 9.18 The gist of the appellant's voluminous grounds and arguments is basically challenging his conviction and the absence of corroboration on the part of evidence given by PW19. We have no intention of restating the position of the law relating to the offence of theft by public servant as that is very clear and was aptly explained by the trial court and the lower court. 9.19 We must state that the trial court meticulously analysed the evidence before it and reached a conclusion that the within offences were J280 proved to the required standard. The counts relating to theft by public servant were counts 1, 3, 5, 7 and 9. We cannnot fault the finding by both the courts below that the appellant hatched a very well orchestrated scheme to loot the Government coffers at the Ministry of Health whilst acting with others. His closest ally in this scheme was PW19, who was turned into a state witness. There is no doubt she was a witness with an interest to serve, whose evidence required corroboration. The trial court and the court below were on very firm ground when they found very strong circumstantial evidence and direct evidence as corroborating evidence. The appellant continued dealing with and pushing payments to Algonquin Management Consultants, completed a cheque even after his transfer from Ministry of Health, his involvement in writing cheques, the finding of unseparated payment vouchers in his home and a torn cheque in his diary. All these payments related to Algonquin Management Consultants, a company operated by PW19. The trial court accepted these facts as presented by the prosecution witnesses and we see no reason to interfere with the same. There is evidence of the theft of money in count one given by PW10, PW39 and PW56, in count 3 given by PW9, PW19 and PW56, I I I I I I I I I J281 in count 5 given by PW9, PW19, PW39 and PW56, in count 7 given by PW9, PW19, PW36 and PW56 and in count 9 given by PW9, PW13, PW19, PW36 and PW56. 9.20 We therefore have no hesitation in finding that there was overwhelming evidence of theft, and the fact that money belonged to the Government of the Republic of Zambia and that the appellant was in the employ of Government is undisputable. We therefore find no merit in the grounds that seek to assai l the appellant's conviction in respect of counts 1, 3, 5, 7 and 9. We hereby uphold his conviction in respect of each and every count aforementioned. Money Laundering 9.21 The offence of money laundering which the appellant faced spanned a total of twenty-six counts. These are counts 21 to 34 (save count 24 in which he was acquitted and 25 which was withdrawn) and counts 45 to 58. 9.22 What we have noticed is that the counts contain the same details save for the properties purportedly procured. All the counts alleged that the money acquired through an illegal activity was K6,840,547.636 I I I I I I I I I J282 (rebased) and the date the various properties were procured was between 1st October 2007 and 31st December 2008. 9.23 It is our view that when the prosecutors were drawing up the charges, they abdicated their responsibility to identify the approximate date on which the offences may have been committed in all the 26 counts of money laundering. We say so because much as it may have been difficult to identify the actual day when the offences were committed, it was possible in most cases, to determine from the evidence, the months between which the offences were committed and in some cases, the month in which the offences were committed. 9.24 It was the appellant's contention that the prosecution did not discharge its duty of proving that the appellant engaged directly or indirectly, in a business transaction that involved property acquired with proceeds of crime; or that he received, possessed, concealed, disguised, disposed of or brought into Zambia, any property derived or realised directly or indirectly from illegal activity; or that he retained or acquired property knowing that the property was derived or realised directly, from illegal activity. According to the appellant, he gave a reasonable explanation of how he started his business in the year 2000 and that I I I I I I J283 he demonstrated that he had several businesses with many parastatal and government institutions. 9.25 To begin with, we have already upheld the appellant's conviction on five counts of theft by public servant. There is certainly no doubt that during the period when he was involved in stealing monies, the accused bought several properties. The manner in which these funds were transferred and subsequently withdrawn clearly show great appetite for enriching oneself. This is very strong circumstantial evidence. We cannot therefore fault the trial court for convicting the appellant for the offence of money laundering. 9.26 We therefore find no merit in the grounds and arguments relating to this offence. As we have noted above, since the state abdicated their duty, a conviction can only be for one count of money laundering with the several properties in the particulars. We thus set aside the trial court and the High Court's conviction on the 26 counts. We note that no prejudice has been occasioned to the appellant by the several counts for which he was convicted as he defended himself and both the trial court and the High Court considered them as one. Therefore, I I I I I I I J284 we find the appellant guilty of one count of the offence of money laundering and accordingly convict him. 9.27 The property subject of the conviction for money laundering excludes Best Home Lodge Limited (subject of count 49 in the court below), Stand No. 13949 Roma Township (subject of count 57 in the court below) and Stand No. 13947 Roma Township (subject of count 58 in the court below). This is because there is undisputable evidence that Best Home Lodge was a going concern even prior to the dates of the alleged offence. It was therefore not acquired or procured from the proceeds of the within crimes. The allegation is that some money was deposited in the Lodge's account. The prosecution did not provide proof to the required standard that such a lodge business could not possibly have had such kind of money. As for the two Roma properties, they were equally not procured during the period in question and they were not proceeds of the within crimes. The allegation is that the stolen money was used to develop the said properties. The prosecution have not even stated how much of the stolen money was used to develop the plots neither have they presented evidence to the required standard showing that the stolen money was used to develop I I I I I I I I J285 the plots. In the absence of such evidence, it cannot be inferred that the money used to develop them was proceeds of the within crimes, as it is not the only inference which could reasonably be drawn from the facts . Forfeiture Orders 9.28 Following a conviction of the offence of money laundering, the property subject of the conviction must be forfeited to the state. The only requirement is that the property must be in the possession or under the control of a person convicted of money laundering and that the property was derived or acquired from proceeds of crime. 9.29 We have no hesitation to state that the appellant having been convicted of the money laundering charge, all the properties subject of the offence, derived from or acquired through proceeds of crime, must be forfeited to the state. 9.30 The trial court cannot be faulted in having ordered the forfeiture of the properties save for the Best Home Lodge, Plot No. 13949 Roma and Stand No. 13947 Roma as they were not derived or acquired from proceeds of crime. We order that they be released to the appellant. I I I I I J286 9.31 To the extent discussed in the preceding paragraph, the forfeiture I order made by the trial court is upheld. Statutory Judgment 9.32 We feel compelled to deal with the issue of the statutory judgment entered by the trial court below notwithstanding that it was not raised both in the court below and before us. 9.33 The power to enter a statutory judgment is conferred on a court by Section 171 of the Criminal Procedure Code. The aim is to recover money stolen from the Government by a person employed in the public service. The aim is not for Government to make profit from the theft, but to recover stolen or looted money. If a person has stolen Kl00,000.00 and the same is recovered from a public service employee upon apprehension, a court cannot, after conviction, additionally enter a statutory judgment for the sum of Kl00,000.00. If a court did so, it would translate into a gain by the Government of Kl00,000 .00. This would be an affront to the purpose and intent behind the entry of a statutory judgment, and would lead to unjust enrichment. 9.34 The appellant having forfeited several properties which were procured from the stolen money, the Government has gotten back part of the I J287 stolen money from the value of the forfeited properties. A just I situation would have been to enter a statutory judgment for the value remaining unrecovered or outstanding. This can only be arrived at after assessment. 9.35 Procedurally, in view of the many different properties bought, the trial magistrate should have invoked Section 302 of the Criminal Procedure Code and received evidence of how much was spent on the properties we have found were rightly forfeited to the state, and deducted the amount from the monies lost before entering statutory judgment. 9.36 We therefore vary the statutory judgment regarding the full amount of the money stolen to an amount which will be found to be outstanding after assessment, in respect to the five counts of theft by public servant for which the appellant has been convicted. 9.37 In view of the complexity of the matter, we will on a date to be notified invite the state to present evidence on how much was spent by the appellant on the forfeited properties in order for us to determine the amount for the statutory judgment. I I I I I I J288 Costs 9.38 The tria l court ordered the appellant to pay costs of the proceedings, which order was confirmed on appeal by the lower court. We are compelled to deal with this issue for the sake of giving guidance to trial courts, notwithstanding that no ground on costs has been tabled before us. 9.39 The trial court after making reference to Section 172 of the Criminal Procedure Code, which confers discretion on a court to order a convicted person pay reasonable costs of the prosecution, had the following to say at page J1228: "I note that this trial has been long and winding, and so were the investigation. In the process the state incurred huge expense. I think these are expenses which, had the accused not acted with greed, would have been put to good use. I don't think the taxpayer should always be made to bear the blunt of such greed. I will thus order the accused to pay costs of these proceedings. The costs to be taxed in default of agreement." 9.40 We have checked through the record of appeal, we have not found a portion where the prosecution prayed for costs. We wish to guide trial courts against the practice of moving suo moto on matters such as this. This is because in criminal matters, an award of costs against a I I I I J289 convict must be made sparingly, for good cause, and in extremely exceptional circumstances. This is because, a suspect enjoys a constitutional presumption of innocence until proven guilty. This applies even in a situation where he or she is found infragrante de/icto (in the unlawful act). It is the state which institute criminal proceedings against an accused person on suspicion that he or she has committed a crime and bears the burden of proving his guilt. The state is a strong party, with all the state machinery behind it, as opposed to an accused person. It would thus be an affront to the presumption of innocence if courts will be ordering costs against convicted persons 'willy nilly.' 9.41 No order is equally made for costs against the state whenever a person is acquitted as a matter of course. It would in fact be even more justifiable to order costs against the state whenever a prosecution ends in an acquittal because they are the ones who inconvenience an innocent person by hauling him or her from his or her comfort zone to be trotting before court defending matters. However, these are criminal proceedings and the power to order costs must be carefully locked away in a safe, only to be unlocked when necessity beckons. J290 9.42 In this case, no application was made by the state for costs and the appellant was never heard on the issue of costs. Moodley, J in the case of The People v. Jerry Chisonge11 stated that an order for costs should not be made against a party without being accorded an opportunity to be heard. We agree with this decision. The right to be heard is one of the fundamental principles in the administration of justice. 9.43 We therefore have no hesitation in setting aside the costs order made by the trial court. Had the learned judge properly directed his mind, he would no doubt have reached the verdict as ours. Sentencing 9.44 The appellant has argued that the trial court had no jurisdiction to impose the sentence of 9 years imprisonment. We note that at the time trial had started, the trial magistrate could only impose up to a maximum of 7 years imprisonment. However, at the time of conviction and sentence, the trial magistrate had jurisdiction to impose up to 9 years imprisonment as he was a Principal Resident Magistrate. This argument is bereft of merit. I I I I J29 1 9.45 The appellant has also argued that the trial magistrate erred when he ordered the sentence to run from p t August 2018. On the contrary, the sentence for the appellant was ordered to run from 27th December 2017, the date he was remanded in custody. This argument too is misplaced. 9.46 We note that the appellant was sentenced by the trial court to 9 years imprisonment on each count of theft by public servant to run concurrently. With regard to the offence of money laundering, the appellant was sentenced to 9 years to run consecutively. The High Court reversed the trial court's consecutive sentence order and instead ordered the sentences to run concurrently. 9.47 The apex court had occasion to clarify the law recently in the case of Isaac Njovu v. The People 12 where they explained the meaning of a series of offences forming part of a course of conduct, a prerequisite for making a concurrent sentence order. The Supreme Court stated that a series means a number of similar or related things coming one after another and course of conduct as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. And "continuity of purpose" meaning the I I J292 acts should be similar to the original act and in line with the defendant's original intention. 9.48 The Supreme Court went on to state that: "To demonstrate what we have stated in the preceding paragraph with reference to the Kalunga case, the appellant in that matter committed the thefts from his employer between December 1972 and June 1973. These thefts were similar in nature and represented a continuity of purpose being to steal from his employer repeatedly. He did not go outside his employment and rob another." 9.49 Flowing from the foregoing, the order by the trial court for the sentences to run concurrently and the treatment by the High Court of the sentences for theft by public servant as one was correct. The question is whether the High Court was right to reverse consecutive sentence order by the trial court in respect of the offences of theft by public servant on one hand and money laundering on the other. 9.50 We have no hesitation in holding the money laundering offence is not a similar offence to that of theft by public servant and is completely different. It is not in the course of conduct with the thefts. The purpose in the two offences is equally different. We therefore find the I I I I I I J293 concurrent sentence order made by the High Court to be flawed and we set it aside. 9.51 We had time to look carefully at the sentence imposed for the offence of money laundering. The offence has an option of a fine and carries a maximum sentence of 10 years imprisonment. We note that the appellant is a first offender. We also note the circumstances in which the offence was committed. The trial court was justified in imposing a custodial sentence instead of a fine as there are aggravating factors on the record, mainly in the manner in which the appellant went about with impunity to conceal stolen money. 9.52 We however hold the view that the sentence of 9 years imprisonment is manifestly excessive for a first offender and comes to us with a sense of shock. We therefore set it aside, and in its place we impose a sentence of 5 years imprisonment with hard labour. The 9 years imprisonment for theft by public servant and 5 years will run consecutively with effect from 27th December 2017, the time he was remanded in custody. 10.0 CONCLUSION 10.1 The appeal having substantially failed, we uphold the conviction of the I I I I I I I I J294 appellant on the offences of theft by public servant and money laundering. 10.2 We uphold the sentence of 9 years imprisonment on each of the 5 counts of theft by public servant which will run concurrently. 10.3 We set aside the 9 years sentence imposed in respect of money laundering and in its place we impose the sentence of 5 years. 10.4 The sentences will run consecutively effective 27th December 2017 the date he was remanded in custody. For avoidance of doubt, he will serve a total of 14 years imprisonment. 10.5 We have set aside the order for costs and varied the statutory judgment. ··············· ~ ·· ··· · C. K. MAKUNGU COURT OF APPEAL JUDGE ... ,.. . ... D. L ....... .. . ...... . A, SC . COURT OF APPEAL DGE ······~ ············ ······ K. MUZENGA COURT OF APPEAL JUDGE