Jeffrey v Phiri and Another (MSCA Civil Appeal 12 of 2002) [2003] MWSC 6 (16 April 2003)

yee ee IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 12 OF 2002 (Being High Court Lilongwe District Registry Miscellaneous Civil Cause No. 1 of 2000) BETWEEN: GRESELDER JEPRFREEY i sisscscicssssccasasaaradainess 1ST APPELLANT - and - BRIAN KACHINGWE PHIRI...............:0::0000 2ND APPELLANT - and- THE ANTI-CORRUPTION BUREAU............ RESPONDENTS BEFORE: THE HONOURABLE THE CHIEF JUSTICE THE HONOURABLE MR JUSTICE UNYOLO, JA THE HONOURABLE MR JUSTICE TAMBALA, JA Mhone, Counsel for the Appellants + Nampota, Counsel for the Respondents Mchacha, Official Interpreter Chingana (Mrs), Official Recorder oe JUDGMENT Tambala, JA The present appeal arises from the exercise by the High Court of a power to make an order, in favour of the Director of the Anti-Corruption Bureau, for the seizure of property and freezing of money belonging to the respondents, in terms of section 32(5) of the Corrupt Practices Act (CPA). We shall, in this judgment, refer to the Director of the Anti-Corruption Bureau simply as “the Director” and the Anti-Corruption Bureau as “the Bureau”. On the 22.4 September 2000 the Director applied for and successfully obtained from Nyirenda, J at the High Court in Lilongwe, an Order to seize property and freeze bank accounts belonging to the appellants, especially the 1st appellant, Mrs Greselder Jeffrey. The affidavit in support of the application was sworn by Mr C E Kaminjolo, an Investigations Officer of the Bureau. It was sworn on 22nd September 2000. The Warrant to execute the Order was issued on the same day, 224 September 2000. Clearly, the Bureau here proceeded to obtain, from the Court below, the Seizure and Freezing Order with stunning speed. On 17 October 2000, Mr Makono representing the appellants, applied before the same Court which made the Seizure and Freezing Order, for an injunction to stay execution of the said Order. The application was successful. The Freezing and Seizure Order was suspended till the determination of the appellants’ application for the variation of the Order. That application was brought before the same Court two days later. It was supported by an affidavit sworn by Counsel for the appellants. The respondents filed before the Court an affidavit opposing the application. On 25th October 2000, Nyirenda, J, in the Court below, made a ruling on the appellants’ application. The result was that the application was rejected and the injunction which was granted on 17 October 2000 was set aside. Consequently, the Seizure and Freezing Order which was made on 2274 September 2000 was fully restored. The appellants appealed to this Court following the lower Court’s rejection of their application to have the Seizure and Freezing Order varied. The notice of appeal filed by the appellants in the Court below contains two reliefs, namely — (a) “that the Seizure Order be vacated in its entirety as it was granted on the basis of a very grave misapprehension of both law and fact. (b) “In the alternative, the appellants pray that the Seizure Order be confined only to bank accounts which, according to the Judge are traceable to the offences allegedly committed by the appellants and, therefore, that the motor vehicles and houses included in the Order be excluded from it. In their skeleton arguments the appellants raised ten broad issues which they claim arise from their grounds of appeal. We proceed to deal with such issues. The first issue relates to the procedure which was used when the application for a Seizure and Freezing Order was brought before the Court below. It is contended that the learned Judge in the Court below dealt with the application as if it was a criminal matter, when actually such applications are civil in nature and should be treated so. It is claimed that because the learned Judge regarded the application before the Court as a criminal matter, the appellants and some third parties who were affected by the Order were denied the opportunity to be heard before the Order was made. Section 32(5) of the Corrupt Practices Act does not indicate the proper procedure to follow when an application for a seizure and freezing order is made. The section does not give an indication whether such an application should be treated as a civil or criminal matter. That, in our view, is a serious omission made by the CPA. It is our hope that future amendments of the Act will address this issue. It is unclear whether the application which was brought by the respondents in the Court below was criminal or civil in nature. It was clearly an ex-parte application. It was commenced by a notice and supported by an affidavit. In England the High Court has jurisdiction to make restraint and charging orders at pre-conviction stage. The orders are made under the Drug Trafficking Act, 1994 and the Criminal Justice Act, 1988. The actual applications for the making of such orders are regulated by O.115 of the Rules of the Supreme Court. Such applications are treated as civil in nature. It would seem to us that the Seizure and Freezing Order made under section 32(5) of the CPA is closely analogous to the English restraint and charging orders. The essential purpose of both types of orders is the preservation of assets pending the conclusion of criminal proceedings instituted or likely to be instituted against the affected person. In both cases, there is an anticipation of making an order of confiscation of the affected assets following a conviction. The other objective of the orders is the prevention of the dissipation of the assets before the time of making the final confiscation order. Since applications for the English orders are treated as civil in nature, it would be safe to regard applications for an order under section 32(5) of the CPA as civil in nature also. The fact that the respondents commenced their application with a notice which was duly supported by an affidavit would buttress our view that such applications are civil in nature. The respondents probably had in mind the procedure of originating motion when they commenced their application. The appellants argue that because the application was not treated as a civil matter, the appellants and other third parties affected by the Court’s Order were not given an opportunity to be heard. In our view, there is no rule of procedure or practice which requires that when the matter is criminal in nature, the right to be heard, before a penalty is imposed, is forfeited. The usual rule of natural justice is that where a decision will impose a penalty or will adversely affect another person’s right or freedom, the affected person must be given an opportunity to be heard before the decision is reached. It is immaterial whether the decision arises out of a criminal or civil matter. It is common practice in applications for an order such as the one brought by the respondents that the initial application is made ex-parte. The obvious reason is that such applications are made at a very early stage, even before the prosecution have full knowledge of the assets to which the suspected person is entitled. At the same time, the application must be made speedily and ex-parte to ensure that the suspected person is not given an opportunity to remove, conceal or otherwise dissipate the assets before an inter-partes order is obtained. After an ex-parte order is obtained, it is the usual practice that the affected person against whom the order is obtained applies to the same court that made the order to set aside the said order. During the hearing of such application, both parties are heard. The opportunity to be heard occurs at this stage. In the present case, the appellants applied also ex- parte to have the order obtained by the respondents set aside. They were successful and the court below granted them an injunction staying execution of the order. Can the appellants still claim that they were not heard in this matter? The appellants subsequently applied to the same Court for the variation of the Seizure and Freezing Order. During the hearing of that application they presented a variety of arguments to the Court below in support of their application. Can the appellants still maintain that they have not been heard? We take the view that they have been heard sufficiently. The appellants complain that the learned Judge who made the Order ex-parte did not incorporate in the Order a date for an inter-partes hearing. While it is common that ex-parte orders are made valid for few days pending the hearing of an inter-partes application, a court sometimes makes such orders valid until further order. In that case, it is incumbent upon the affected person to make an inter- partes application to vary or set aside the order. In the present case, the appellants applied and succeeded to have the order set aside two days after it was made. The appellants’ opportunity to be heard was interfered with by the ex-parte order only briefly. Thereafter, it was available to the appellants. We do not find much substance in the appellants’ complaint that they were denied the opportunity to be heard in this matter. There is argument to the effect that the Seizure and Freezing Order affected property of third parties who have not been given an opportunity to be heard. In the application to stay execution of the Seizure and Freezing Order and in the subsequent application to vary that Order, the appellants did not plead that some of the affected properties belonged to third parties. Even during the hearing of this appeal, Counsel for the appellants had great difficulty to disclose who those ‘third parties’ are. The evidence for the respondents on this matter is simple and clear. It is that the 1st appellant was in the habit of acquiring various properties and opening bank accounts using different names; however, the title documents showing the different names were recovered in the 1st appellant’s house, confirming the fact that those various properties and bank accounts bearing different names belonged to the 1st appellant. The claim that the Seizure and Freezing Order affected properties of third parties lacks the support of credible evidence. It is then contended that it was necessary for the respondents to establish that there was a real risk of dissipation of assets before the Order was granted by the Court. There is legal authority in support of such argument see Restraint and Confiscation Orders by T J Millington, 1* Edition p.16. While it is true that the respondents did not lead evidence showing the risk of dissipation of assets by the appellants, during the time that the order was obtained ex-parte, such evidence was brought during the inter-partes hearing. The affidavit in opposition to the appellants’ application to vary the Order stated in paragraph 3 that - “(a) While under arrest and while they were still in custody they arranged withdrawal of sums amounting to K3 million from their bank account in anticipation of the Freezing Order. The Bank Account was with Leasing and Finance Company.... (b) After the issuance of the Seizure and Freezing Orders, the appellants closed their Bank Accounts with National Finance Company Limited in contravention of the said Order.” It was disclosed that at the close of business, the National Finance Company Account had a credit balance of KS million. We take the clear view that the respondents presented cogent and adequate evidence showing the risk of dissipation of assets by the appellants if the Seizure and Freezing Order was not made. The second issue raised by the appellants related to construction of section 32(5) of the CPA. We do not find it necessary to comment on each and every paragraph under the relevant heading as most of the paragraphs contain observations of a general nature which do not deserve our comment. We intend to deal with few arguments advanced in connection with this issue. In paragraph 2.1.4 it is contended by the appellants that section 32(5) of the CPA is ambiguous in so far as it purports to apply to persons other than civil servants or who may never have been recipients of proceeds pursuant to an offence under the section. We are unable to see any ambiguity in section 32(5) of the CPA. The section clearly states that a seizure or freezing order may be made during investigation of or the proceedings for an offence under this Part. The Part is PART IV —- OFFENCES. The offences which are provided in the relevant part can be committed by either public officers or private persons. In particular, offences provided in sections 26, 27, 30 and 31 may be committed by private persons. The word ‘any property’ may cause a problem; but clearly, it cannot refer to property of a person who is not connected with an offence under the CPA which is being investigated or which is a subject of prosecution. Before making the order the court will ensure that there is some link between the property and the person who is being investigated or prosecuted for an offence contained in Part IV of the CPA. We do not believe that section 32(5) can give rise to insurmountable problems of construction in a particular case. Clearly, the case under consideration did not give rise to any such problem. Considering the clear wording of section 32(5) of the CPA, it would be wrong to hold that the section does not apply to the entire Part IV of the CPA but only to those sections relating to offences committed by public officers. The restriction of section 32(5) in that manner is unwarranted. It has no legal basis. We therefore find no merit in the arguments or observations made in paragraphs 2.1.6, 2.1.7, 2.1.8 and 2.1.9. It is observed in paragraph 2.1.10 of the appellants’ skeleton arguments that the respondents were required to make full disclosure at the time when they obtained the Order. Section 32(5) is silent on the existence of such duty. We however accept that a person making an application for an order ex-parte carries a duty to make full disclosure of relevant facts which may have a bearing on the decision whether to grant the application or not. We also accept that the general rule is that when it is shown that a person who obtained an ex-parte order failed to disclose a material fact at the time he applied to obtain it, such order is liable to be set aside. In the present case, what was not disclosed has not been specified. Besides, the Order which was obtained ex-parte survived only for two days, it was set aside following an ex-parte application made by the appellants. The Order which subsists is the one which resulted from an inter-partes hearing. We therefore think that the issue of the duty to make full disclosure has no practical relevance in the present case. The other issue raised in the appellants’ skeleton arguments is that section 32 shows a _ public officer scheme, thus confirming the contention that the entire section 32 and all its subsections were intended to apply to public officers only. It is said that it would therefore be wrong to extend section 32(5) to make it applicable to the appellants, who are private persons. We have already demonstrated that by its clear wording, section 32(5) was intended to apply to the entire PART IV of the CPA. It applies to both public officers and private persons. The third issue raised by the appellants is to the effect that it was incumbent upon the respondents to establish py pee that there was reasonable belief that the appellants participated in the alleged crimes and that they were likely to be convicted. It is also argued that the respondents must establish a reasonable belief that the appellants benefited illegally from the crimes. Section 32(5) of the CPA does not make proof of reasonable belief of a suspect’s participation in an alleged crime and the likelihood of conviction a condition precedent for making a seizure and freezing order. It is also silent on the need to establish reasonable belief that the suspect benefitted from the commission of the crime. The evidence which was available in the Court below showed that the appellants were suspected to have been paid, by means of corrupt practices, sums of money in excess of K56 million. It was also established that the various bank accounts which the 1st appellant operated were opened at almost the same time that the corrupt payments were made. Again, most of the properties affected by the Seizure and Freezing Order were acquired at almost the same time. The nature of the case against the appellants and the evidence which was presented in the Court below tended to show some link between the appellants and the commission of crimes under the CPA. In any case, the Order made in the Court below was interlocutory in nature and merely intended to preserve the assets pending the conclusion of the case which the appellants are required to answer. Real proof of any link between the appellants and the commission of the crimes, and whether the appellants benefitted illegally, would be established at the conclusion of the case against them. The fourth issue raised in the skeleton arguments is what the appellants termed ‘the bail principles issue’ . It is contended that the Court below erred in applying principles which are relevant in bail applications to an application made under s.32(5) of the CPA. We are unable to accept the position taken by the appellants on this issue. At pages 12 and 13 of the ruling, the learned Judge in the Court below stated — 10 “It will be unusual for a court to demand lesser deposits into court where large sums are involved and yet demand large deposits for lesser sums of money. The unusual will only happen on a consideration of other attendant factors to the case, but the court will inevitably pay attention to the size of the alleged loss.” It is clear to us that the learned Judge was saying that he was required to consider the magnitude of the alleged loss in order to properly determine the value of the property which must be caught by the seizure and freezing order. It is in that sense that a principle used to guide bail applications would be applied in a consideration of an application made under section 32(5). We find no fault with that approach. It was argued that in considering an application made under section 32(5), the proper test must be to strike a balance between keeping the appellants’ assets available to satisfy any seizure order which may be made in the event of a conviction and meeting the appellants’ reasonable requirements in the meantime. The case of Re Peters [1988] QB 871 was cited as authority for the proposition. It would however appear to us that the case of Re Peters was concerned with the interpretation of the relevant provisions of the Drug Trafficking Act and O.115 rule 4(1) of Rules of the Supreme Court. The latter provision allows the making of provision for the suspect’s general living expenses and legal expenses. Section 32(5) of the CPA is silent on the affected person’s general living expenses following the making of a seizure and freezing order. We therefore take the view that the case of Re Peters and the principle which that case stands for, have no application to the present case. The fifth issue raised by the appellants in their skeleton arguments is the property right issue. It is contended that section 32(5) of the CPA, and especially the manner in which it may be interpreted and applied in a particular case, is capable of violating the rights against arbitrary deprivation of property contained in section 28 of the Constitution. The respondents reply by observing that the right to property is not non-derogable. In terms of section 44(2) of the Constitution, the rights to property can be subject to limitations or restrictions which are prescribed by law, are 11 reasonable and recognized by international human rights norms and are necessary in an open and democratic society. The appellants accept that the right to property prescribed by section 28 of the Constitution can be restricted or limited in the manner described by the respondents. They also concede that section 32(5) of the CPA is such law which restricts the right to property. They however contend that the manner in which that section may be interpreted and applied may violate the constitutional right to property. The appellants argue that in the present case, the application of that provision violated their right to property. The respondents stress the fact that every time a seizure and freezing order is required, it must be obtained from a court of law. They say that that provides enough safeguard against abuse of section 32(5) of the CPA. The respondents state at page 13 of their skeleton arguments — “It is sufficiently clear from the foregoing that where a warrant is obtained from the court before seizure and freezing, enough safeguards are in place. It is abundantly clear that Justice Nyirenda exhaustively looked at all the property rights of the applicants and weighed them against the goals Parliament intended to achieve when it enacted the provision.” We accept the respondents’ contention that section 32(5) contains the best safeguard against abuse. We take the view that the appellants’ concerns regarding the possible abuse of the provision through wrong interpretation or application are unjustified. Those concerns can be raised against any statutory provision which requires to be interpreted and applied by a court of law. It is the accepted duty of the court to properly interpret the law and apply it in a given case. We have already held that there was no fault in the manner in which the learned Judge in the Court below interpreted section 32(5). The appellants suggest that the respondents should have used a lesser means of achieving the same purpose, namely, the preservation of the appellants’ assets pending the conclusion of the case. They say that in that case, the respondents should have resorted to issuing a restriction 12 notice under section 23(1) of the CPA. They also appear to contend that the Court should have required the respondents to issue such restriction notice instead of obtaining a Seizure and Freezing Order. At page 10 of the respondents’ skeleton arguments, it is stated — “The Bureau disagrees with that view, considering the applicants’ activities after arrest. The applicants caused one of the vehicles to become a write-off, closed her bank accounts and made a truck disappear immediately after issuance of a seizure warrant in respect of that truck. The truck was not voluntarily surrendered back to the Anti-Corruption Bureau but was seized by force at a Police Road Block.” We accept the position taken by the respondents. We think that on the facts and circumstances of the present case, the learned Judge in the Court below was entitled to grant the application for a Seizure and Freezing Order. The sixth issue raised by the appellants is the tracing issue. We would, here, briefly observe that when the learned Judge in the Court below used the word ‘trace’ in his ruling, he was simply indicating that the respondents showed a possible link between the loss suffered by Government and the funds in the bank accounts of the 1st appellant. It would also appear that the word was used to show that the respondents’ investigations disclosed that the various bank accounts belonged to the 1st appellant. It was not the intention of the learned Judge to embark on a voyage of technical examination of the meaning of ‘tracing’, both at common law and equity, and apply the discovered meaning to the facts of this case. We think that the learned discussion of the word ‘tracing’ contained in the appellants’ skeleton arguments was unnecessary. It was of no practical use in the present case. The seventh issue raised by the appellants was the unclean hands issue. In the course of his ruling of 25th October 2000, the learned Judge in the Court below stated — “In light of all this information I am inclined to accept Mr Nampota’s submission that the respondents have not come to court with clean hands.” 13 Clearly, that was one of the grounds upon which the appellants’ application to have the Seizure and Freezing Order varied was rejected. The appellants here make three observations. Firstly, they say that the use of an equitable principle of coming to court with unclean hands was misguided, as the matter concerned a statutory order and not an equitable relief. Secondly, the appellants say that the finding that they came to court with unclean hands was unfortunate, as there was no court order prior to the making of the Seizure and Freezing Order by the learned Judge in the Court below to stop the appellants from using their property as they wished. Thirdly, the appellants say that even if the learned Judge made a finding that money had been taken away, the same would not be deemed illegal if it was by a bank exercising it’s right of set off under ordinary principles of banking law. The respondents’ reply was that the concept of clean hands came into consideration at the time the appellants brought an inter-partes application which required the Court to set aside the Seizure and Freezing Warrants. It was at the hearing of that application that the respondents contended that the Seizure and Freezing Orders were lawfully made and could not legally be set aside. The respondents further argued that the only remedy available to the appellants was an equitable remedy. Then the respondents contended at the hearing of the inter-partes application that the 1st appellant was coming to court with unclean hands, because — “(i) After the 1st appellants’ arrest, she made effort to dissipate her bank account at Leasing and Finance. (ii) She had one of the vehicles involved in an accident and it was a write-off. (iil) | She hid one of the trucks at the time the seizures were being done. That truck was concealed and was recovered by force at a Police Road Block.” From the respondents reply, we take the view that the learned Judge in the Court below properly understood the 14 doctrine of unclean hands and correctly applied it to the application which was brought before the Court. There is, in our view, no merit in the appellants’ arguments on this issue. The eighth issue is the segregation issue. Here the appellants argue that the learned Judge who made the Order in question should have segregated two things. Firstly, he should have segregated property which the appellants owned through operating legitimate business from property which they acquired illegally. Secondly, property which belonged to third parties or which the appellants held in trust for other persons should have been distinguished from property wholly owned by the appellants. The implication here is that the Seizure and Freezing Order should have been confined to property which was acquired illegally as well as property which was owned by the appellants. The rest of the property should not have been touched by the Order. In the United Kingdom, where similar orders can be made, the position is different from that canvassed by the appellants. There, the relevant statutes permit the making of restraint or charging orders in respect of all property held by the suspected person, including property coming to him after the making of the order. The reason being — “A restraint order is frequently obtained at an early stage in the proceedings before the full extent of the defendant’s realisable property is known. When applying for a restraint order, the prosecutor probably has somewhat limited information as to the defendant’s assets, yet an immediate application may be necessary in order to prevent dissipation. In the last analysis, the nature, extent and location of the defendant’s realisable property is peculiarly within his own knowledge and at this stage the prosecutor will not have the benefit of any affidavit of means sworn by the defendant pursuant to any order for disclosure granted by the court.” See Restraint and Confiscation Order by T J Millington, 1*ted p.18 par 2.5.4. Then at paragraphs 2.5.5 and 2.5.6 of the same book, it is stated as follows — 15 “2.5.5It is a common misconception that restraint and charging orders may only be made in respect of assets which represent directly or indirectly the proceeds of the defendant’s criminal activities...” “2.5.6The court is thus able to confiscate (and therefore restrain) any assets held by the defendant whether legitimately acquired or not, up to the amount by which he benefited from the offence.” From the wording of section 32(5) of the CPA, it is clear to us that the correct position is analogous to that obtaining in the United Kingdom, where all property held by the defendant and whether legitimately acquired or not, is liable to be confiscated. We find no merit in the arguments raised in relation to the segregation issue. The ninth issue is the economic issue. The first point made by the appellants in relation to this issue is that, by granting the application to seize and freeze the assets of the appellants, including the transport business, which had nothing to do with the construction business involved in the alleged fraud, the learned Judge in the Court below infringed the appellants’ rights to economic activity. After considering the arguments made by the appellants in connection with this issue, it has become clear to us that we have adequately dealt with almost all concerns raised by the appellants on this issue. But the appellants also contend that the learned Judge should have considered the appointment of a receiver to manage the business activities of the appellants while preserving the assets at the same time. In England, the court’s power to appoint a receiver is governed by the provisions of the relevant statutes. Section 26(7) of the Drug Trafficking Act and s.77(8) of the Criminal Justice Act provide — “Where the High Court has made a restraint order, the court may at any time appoint a Receiver (a) to take possession of any realisable property and 16 (b) in accordance with the court’s directions to manage or otherwise deal with any property in respect of which he is appointed subject to such exceptions and conditions as may be specified by the court....” The Criminal Justice Act was enacted in 1988 while the Drug Trafficking Act was enacted in 1994. Clearly, these Acts do not apply to our local jurisdiction. We also do not have the equivalent of these statutes in this country. The Corrupt Practices Act does not have an equivalent provision which would empower a court to appoint a receiver. Our clear view is that the learned Judge in the Court below had no jurisdiction to appoint a receiver in the present case. The tenth and last issue is the discretion issue. We note that we have dealt with some of the principal arguments made in relation to this issue elsewhere in this judgment. For instance, we have dealt with the issue whether the application for a seizure and freezing order was criminal or civil in nature and the effect that it had on the learned Judge’s decision. We have also dealt with the bail principles issue and its bearing on the learned Judge’s decision. We have further demonstrated that the appellants failed to present credible evidence in the Court below to show that some of the property caught by the Seizure and Freezing Order belong to third parties. The contention of the respondents, which still remains uncontroverted, is that the 1st appellant acquired and held various properties using different names. It would be difficult to maintain that she did so in good faith. We are unable to find any improper exercise of the Court’s discretion granted by section 32(5) of the CPA. We are satisfied that on the evidence presented before the Court and in the light of the allegation made against the appellants and all the circumstances of the case, the learned Judge was entitled to make the Seizure and Freezing Order upon the respondents’ application. He was also entitled to reject the appellants’ application to vary that Order. 17 Ordinarily, we should have come to the end of this judgment at this stage. However, we are constrained to revert to the procedural issue raised by the appellants because of the failure by the CPA to indicate the proper procedure to be followed when making the necessary applications pursuant to section 32(5). The failure to provide for such procedure was, in our view, a serious omission made by the CPA. To correct such omission and to guide parties who may desire to make applications arising out of section 32(5), we proceed to set out the following Practice Direction — A. “Application for a Seizure and Freezing Order 1. (a) An application for a seizure or freezing order in terms of section 32(5) of the CPA may be made to a Judge of the High Court in Chambers. (b) Such application may be made by the Director or Deputy Director of the Bureau or a senior police officer or by Counsel representing any one of these officers. 2. The application shall be commenced by Originating Motion in accordance with Order 8 rules 2 and 3 of the Rules of the Supreme Court (1995 edition). 3. The Notice of Motion and all subsequent documents must be entitled in the matter of the defendant, naming him, and in the matter of the Corrupt Practices Act. 4. The Notice of Motion shall be accompanied by an affidavit in support of the application. 5. Ordinarily, the application shall be made ex parte, and in that case the affidavit in support of the application shall comply fully with the usual rules of disclosure. 6. In addition to the affidavit in support, the Notice of Motion must be accompanied by a 10. 18 draft order in terms of the order sought by the applicant. The draft order must be prepared in sufficient copies by the applicant so that one copy duly signed and sealed by the court shall be served on the respondent, or each respondent and any other party who may be affected by the order, one copy shall remain on the file, while the other copy shall be retained by the applicant. Where an application is made in respect of two or more respondents who are jointly charged or are likely to be so charged, a separate Notice of Motion must be issued in respect of each respondent; again, a separate draft order must be prepared for each respondent. However, one affidavit covering the whole case would suffice. The seizure and freezing order must incorporate a _ provision’ giving the respondent and any person who has been served with or notified of the order the liberty to apply to discharge or vary it. Incorporating the liberty to apply provision in the order is_ essential, especially in those cases where the court directs that the order is valid until further order. A seizure or freezing order shall specify the period of time, usually between seven and fourteen days, during which the order shall remain valid pending an inter partes hearing; a date for an inter partes hearing may be specified in the order. The applicant or his counsel must attend the hearing of the application, whether it is ex parte or inter partes. 11. 19 As a condition precedent to obtaining the order, the applicant must give an undertaking to serve the order on all parties concerned as soon as practicable, which phrase has been construed to mean forthwith: see P S Refson and Co. Ltd v. Saggars [1984] 3 ALL ER 111. The affidavit which was used to support the application must be served on all parties concerned, together with the order. A notice of explanation indicating the nature and terms of the order and consequences of non- compliance with it must also be served on all other parties concerned, together with the order. B. “Application to Discharge or Vary the Order 1 (a) Any person or body on whom a seizure or freezing order has been served or who is notified of such order may apply by summons, to the court which made the order, to discharge or vary the order. (b) The application must be inter partes. The summons shall be accompanied by an affidavit setting out the facts and grounds on which the applicant for a discharge or variation order relies. The summons, together with the supporting affidavit, shall be lodged with the court which made the seizure and freezing order. The summons and the supporting affidavit shall be served on the Director or senior police officer (if the latter obtained the Order from the Court) at least two clear days before the date set for hearing the application. Where the applicant for a discharge or variation order is not the defendant (or respondent in the initial 20 application for a seizure and freezing order), the summons and affidavit must also be served on the defendant not less than two clear days before the date for the hearing of the application. After the court grants the application to discharge or vary a seizure and freezing order, it is the duty of the applicant to draft the order granted by the court within seven days from the date of the court’s ruling. Sufficient copies of the draft order must be brought to the court which granted the order for signing and sealing. The sealed copies of the discharge or variation order must be served by counsel for the applicant on the Director or senior police officer and any third party who may be affected by such order. The third party may include a bank or any institution or person holding assets belonging to the applicant for a discharge or variation order. The terms of a variation order must be carefully explained to lay persons affected by the order to ensure proper compliance with the order. Before an application for a variation order is made, it is good practice for the party desiring variation of the seizure and freezing order to consult the Director or senior police officer with a view to reaching mutual agreement or compromise on the terms of the variation order sought. In the event that such agreement is reached, a consent order may be drawn up, signed by the parties and brought to the court for the court’s signature and seal. The sealed copies of the order should subsequently be served on all the persons and bodies who may be affected by the variation order. 21 These rules of procedure have been sourced from O.8 and O.115, especially O.8 rules 1 and 2 and O.115 rules 3 and 5 of the Rules of the Supreme Court (1995 edition). The grounds on which an application for the discharge of a seizure or freezing order may successfully be made would include failure by the applicant for the seizure and freezing order to establish by affidavit or other evidence an essential requirement for obtaining the order. For instance, failure by the applicant to show that the defendant is being investigated or prosecuted for an offence under Part IV of the CPA. The other ground is a breach by the applicant of his duty to make a full and frank disclosure of material facts. Section 32(5) of the CPA did not make provision for allowing the release of funds out of the seized and frozen assets to meet general living and legal expenses of a person against whom a seizure and freezing order has been made. We believe that failure by the CPA to make such provision is a serious omission which would tend to impact negatively on the basic rights of a person before he is tried and convicted of a crime. It would be necessary for us to rectify such omission. We believe that it would be acceptable to apply to vary a seizure and freezing order to allow funds to be released to enable the person against whom the order is made to meet his general living expenses. The seizure and freezing order would normally be made prior to the conviction of the defendant. The law would regard such defendant innocent at the time when his assets are seized and frozen. It is also common knowledge that criminal proceedings arising out of the CPA take an unduly long time before they are concluded. Should a person be driven into utter destitution and remain in that state for a long time before his fate is known? We believe that that would be unacceptable under the current human rights norms. The court would, therefore, be entitled to order the release of funds from the seized and frozen assets sufficient to meet the reasonable general living expenses of the person against whom a seizure and freezing order has been made. The order to 22 allow the release of such funds may be made at the time the seizure and freezing order is made or preferably following an application to vary the order. For similar reasons advanced in favour of allowing provision for the general living expenses of a person subject to a seizure and freezing order, we would find it unacceptable that such person should fail to obtain legal representation because all his assets have been seized and frozen before trial. The court would, therefore, be entitled in a proper case to order release of sufficient funds from the seized and frozen assets to meet his legal expenses. Again, such order may be made at the time the seizure and freezing order is made or when such order is varied. Ultimately, we reject the appeal. It is dismissed with costs. DELIVERED in open Court this 16‘ day April 2003, at Blantyre. L E UNYOLO, JA TG sscewas Dw nar Ra A 5 aS D G TAMBALA, JA ef