Nathan Mbaya and Ors v Director of Public Prosecutions (Appeal No. 123/2022) [2024] ZMCA 127 (11 June 2024)

.. IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 123/2022 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: I JUN 202'½ NATHAN MBAYA WUXINREW KELSHA INVESTMENT LIMITED 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT CORAM: Chashi, Makungu and Sichinga, JJA On 21 st February, 2024 and 11 th June, 2024 For the Appellants : Mrs. N. Chila-Matowe, Mr. L. Mahape and Ms. A. Nikosa of Messrs Muya and Company For the Respondent: Ms. V. Nsingo, State Advocate and Mr. B. Mukelabayi - National Prosecution Authority JUDGMENT Sichinga JA delivered t h e J udgm en t of t h e Cou rt . Cases referred to: 1. Leopold Walford (Z) Limited v Unifreight (1985) ZR 203 2. Antonio Ventriglia & Another v Finsbury Investments Limited SCZ Appeal / No. 2 of2019 .;:. . 3. Lumange Wakilaba v The People (1979) ZR 74 4. The People v B (1990) 219 5. Ambrose Mudenda v The People ( 1981) ZR 1 7 4 6. Woolmington v DPP (1935) AC 1 7. Kabwe Transport Company Limited v Press Transport (1975) Limited (1984) ZR 43 8. Manfred Kabanda and Kajeema Construction v Joseph Kasanga SCZ Judgment No. 2 of 1992 9. Chibuye v Zambia Airways Corporation Limited SCZ Judgment No. 2 of 10. Mahtani and Others v the Attorney-General & Others (201 OJ ZR 106 11. Simon Prophet v The National Director of Public Prosections CCT 56/05 12. DPP v Chiyesu Lungu in Re Property: LI 9390 and Property No. LN- 79093/ 1 State Lodge 2023/ HPEF/ 26 13. New Plast Industries v Commissioner of Lands & Attorney-General (2001) ZR 51 14. Kumarnath Mohunram & Shelgate Investments Co. v National Director of Public Prosecutions, Boe Bank Limited & the Law Review Project {As Amicus Curae} CCT 19/ 06 [2007] ZACC 15. National Director of Public Prosecutions v RO Cook Properties (PTY} Limited 2004 (8) BCLR 844 16. Chulu v The People (1969) ZR 128 17. R v Sinombe and Siababwa NRLR Vol. 1 Criminal Case No. 9 of 1936 18. US v One 6. 5mm Mainlicher-Carcaro Military Rifle 250 F. Supp. 410 (N. D. Tx. 1966) 19. Esaya Mupasha and 2 Others v The People SCZ Appeal Nos. 12, 13 and 14 of 2021 20. Mwiya and flcweti v The People (1968) ZR 53 21. National Director of Public Prosecutions v RO Cook Properties (PTY} Limited J2 ... Legislation referred to: 1. The Forfeiture of Proceeds of Crime Act No. 19 of 2010 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. The Customs and Excise Act Chapter 322 of the Laws of Zambia 4. The Banking and Financial Service Act No. 7 of 2017 5. The Prohibition and Prevention of Money Laundering Act No. 14 of 2001 6. The Evidence Act Chapter 43 of the Laws of Zambia Other sources referred to: 1. www.unodc.org/ en/ corruption 2. https://treaties.un.orq 1.0 Introduction 1. 1 "Non Conviction Based (NCB) asset forfeiture is a critical tool for the recovery of proceeds and instrumentalities of corruption. It is a legal mechanism that provides for the restraint, seizure, and forfeiture of stolen assets without the need for a criminal conviction. It can be essential to successful asset recovery when the offender is deceased, has fled the jurisdiction, is immune from investigation or prosecution, or is essentially too powerful to prosecute"1 • 1.2 In this jurisdiction NCB asset forfeiture proceedings have been applied against known alleged offenders. The United Nations Convention against Corruption (UNCAC) is currently the sole legally binding international instrument on NCB asset forfeiture. It was adopted by the United Nations General Assembly on 3 1st October, 2003 by resolution 58/ 5 and entered into force on 14th December, 2005 pursuant to Article 68 (1) of the Convention2 . Zambia acceded to the UNCAC on J3 .,.,. 11 th December, 2003 and ratified it on 7 th December, 2007 . It urges countries to consider permitting NCB asset forfeiture of stolen assets when the offender cannot be prosecuted. Therein lies the genesis of the Forfeiture of Proceeds of Crime Act (FPOCA)1 which was enacted into law on 16th April, 2010. Its objects inter alia include to provide for the domestication of the UNCAC in Zambia. 1.3 Whilst there are three issues that confront us in this appeal: whether there was a requirement for leave to serve the appellants out of jurisdiction; whether the wam and caution statements were made freely and voluntarily by the appellants; and whether the lower court erred to admit the wam and caution statements, the overarching subject is the applicability of the Forfeiture of Crimes Act supra. 1.4 With the increase of NCB asset forfeiture cases, must come a corresponding need for adherence to inter alia constitutional values, common law and the rules of the courts. 1.5 The appellants appeal against the decision of Musonda J 1n which he resolved, on the first issue, that there was no requirement for leave of the court to serve originating process on the appellants, who are foreign nationals, as service was effected within jurisdiction. On the issue of the warn and caution statements, the learned Judge found that the 1st appellant made the statement upon being apprehended and admitted being involved in illegal currency activities with the 2 nd appellant. That the 2 nd appellant's explanation that he was J4 collecting money from the 1st appellant for face masks and hand sanitizers supplied to him on credit was an afterthought. The learned Judge found in favour of the respondent and ordered the money seized from the appellants to be forfeited to the State. 2.0 Background 2.1 As deciphered from the record of appeal, on 26th January 2021 , the Drug Enforcement Commission (DEC) received intelligence information that some Zambian and foreign nationals were involved in illegal currency exchange activities at Kasumbalesa border in Chililabombwe. Upon investigations, on 28th January 2021 at Kai Shopping Centre at Kasumbalesa border, Nathan Mbaya (the 1st appellant) and another person were apprehended. Wu Xinren (the 2 n d appellant) escaped. He later reported himself to the police. Kelsha Investments Limited, (the 3rd appellant) was the 5 th interested party in the court below, and a company in which the 2 nd appellant was the managing director. Oscar Mutombo, the 2 nd interested party and Dominic Chileshe, the 4 th interested party, are not a party to this appeal. 2 .2 Warn and caution statements were recorded from the 1st and 2 nd appellants following their apprehension. The 1st appellant, a Congolese national, admitted engaging in illegal conversion of foreign currency into Zambian kwacha. The 2nd appellant declined to say anything over the sums of US$92,750.00 and JS ZMW550 ,000.00 found on him. In his affidavit opposing the respondent's application for a non-conviction based forfeiture order, he averred that h e was the general manager for the 3rd appellant which dealt in non-specialized wholesale trade. He denied engaging in illegal curr ency exchange activities. 3.0 The appeal 3.1 Dissatisfied with the decision that the sums of ZMW550,000.00, ZMW582, 160.00, ZMW530.60 , US$92,750 .00, and US$28,520.00 were tainted property and accordingly forfeited to the State, the appellants appealed raising three grounds of appeal as follows: 1. The learned Judge in the court below erred in law and fact when it held that since the originating process was served within the Jurisdiction on the lawyers of the 1 s t and 2 nd interested parties who are Congolese, there was no requirement for leave of the court to issue originating process; 2. The learned Judge erred in law and fact by admitting and entirely relying on the warn and caution statements without determining as to whether or not the said statements were made freely and voluntarily which issue was raised by the appellants herein; and 3 . The learned Judge erred in law and fact by admitting and entirely relying on the warn and caution statements which are criminal in nature and taken for criminal prosecution under a civil action where the balance of proof is merely on the balance of probability and not beyond reasonable doubt. J6 " 4.0 The appellants' arguments 4.1 In support of the appeal, the appellants filed their heads of argument on 10th June 2022. 4.2 Under the first ground of appeal, it was submitted that the proper procedure to follow before issuing originating process to a foreign national resident outside jurisdiction, is to first seek leave of court and exhibit the drafted originating process. In support of this submission, reliance was placed on Order 10 Rule 16 of the High Court Rules2 (HCR) which prescribes an application for leave to issue for service out of jurisdiction inter alia a writ of summons, originating summons, or originating notice of motion. Further, we were referred to the case of Leopold Walford (Z) Limited v Unifreight1 to the effect that before a writ is issued for service outside jurisdiction, the law requires that leave of the court is obtained. 4.3 The appellants argued that the 1st appellant, who resides outside Zambian jurisdiction appointed his advocates, Messrs Muya and Company on 3rd September 2021 after the process against him had been issued on 20th August 2021. That the lower court had no jurisdiction to hear and determine the matter. 4.4 In her oral submissions, Mrs. Chila-Matowe, learned counsel for the appellants, argued that the respondent ought to have sought leave of the court per Order 10 rules 16 and 17 of the High Court Rules Supra. She contended that the originating J7 notice of motion was issued to interested parties with respect to the seized properties. She submitted that the proceedings against the 1s t appellant were therefore a nullity because the procedure under Order 1 0 rules 16 and 1 7 HCR were not followed by the respondent. She p laced reliance on the case of Antonio Ventriglia & Another v Finsbury Investments Limited2 where Musonda, DCJ, stated at pages R60 of the Supreme Court's ru ling as follows: "In reaching the conclusion we have reached i n 7 .20, we would adopt the English translation of the Lati n expression 'out of nothi ng, comes nothing' or the Latin maxim nihil qui non habet (He gives nothing who has nothing). " 4.5 Counsel submitted that since the lower court lacked jurisdiction, the proceedings before it were a nullity. We were urged to allow the first grou nd of appeal, and consequently set aside its decision . 4.6 With respect to the second ground of appeal, it was su bmitted that a warn and caution statement is taken for the purposes of criminal prosecution and that is why there is established procedure with respect to determining the voluntariness of a confession statement contained in a warn and caution statement by condu cting a trial within a trial once the voluntariness is contested. We were referred to three cases: Lumange Wakilaba v The People3 , The People v B4 and Ambrose Mudenda v The People5 all which speak to the J8 requirement of conducting a trial within a trial once the issue of voluntariness of a confession statement has been raised. 4.7 It was submitted that it was highly prejudicial to the appellants for the lower court to admit the confession statements implicating them in the civil proceedings before it and use them as the basis to decline all reasonable explanations given by the appellants as to the source of funds seized by the State. That the court rejected to examine the voluntariness on the ground that criminal procedural rules are not applicable to civil forfeiture. 4.8 The appellants contended that it was unjust and prejudicial to them for the lower court to entirely rely on the warn and caution statements but hold that it cannot go into determining the voluntariness of the said statements. 4.9 Mrs. Chila-Matowe emphasized that it is a legal requirement that the voluntariness of a warn and caution statement ought to b e examined. That to test the voluntariness of the statements, the court could have deemed the proceedings to be by writ of summons. 4.10 Counsel argued that the money found on the appellants did not amount to tainted property. She contended that the appellants satisfied the law by giving reasonable explanations and demonstrating their capacities as shown at pages 126 to 161 of the record of appeal. She further argued that the 1st and 2 nd appellants deposed that they were found seated. That J9 this does not mean that they were transacting in money. That the respondent had no reasonable ground to su spect that money was being u sed for unlawful activities. She con clu ded by stating that from the definition of 'tainted property' in section 2 of the Forfeiture of Proceeds of Crime Act, there is no proof that the money was derived from any u nlawful act. 4.1 1 In supp ort of the third grou nd of appeal, we were referred to the case of Woolmington v DPP6 to the effect that th e bu rden of proof is on the State to prove beyond all reasonable doubt. It was argued that the standard of proving voluntariness of confession statements is high to safeguard the interest of the alleged perpetrator and to ensure that trial is conducted fairly. 4.12 The appellants contended that since the said confession statements are criminal in nature, they cannot be relied upon under a civil action as they speak to criminal proceedings which has a higher standard of proof. It was argued th at once the same are expunged from the record, there would be no independent evidence sufficient to be relied upon that the property seized is tainted. In suppor t of this submission reliance was p laced on the case of Kabwe Transport Company Limited v Press Transport7 where t h e Supreme Court held as follows: "There is in Zambia, an Evidence Act ... in which there is not provision for the calling of evidence in criminal proceedings to assist a decision in civil proceedings." JlO .,.. 4.13 It was submitted that the above position has been followed in a plethora of other authorities including Manfred Kabanda and Kajeema Constntction v Joseph Kasanga8 , Chibuye v Zambia Airways Corporation Limited9 and Mahtani and Others v the Attorney-General & Others1 0 . 4.14 The appellants submitted that the current position of the law in Zambia is that a civil court is precluded from referring to criminal conviction or relying on the results of criminal proceedings in civil trials. That as a result, the lower court was precluded from relying on the warn and caution statements which are criminal in nature. 4.15 With reference to section 31 of the FPOCA supra, the appellants argued that they provided the lower court with proof of the source of the money by providing their business trading receipts and bank statements establishing that they are businessmen and an entity trading in the sale of various goods. That this gave them the capability to have the said monies. 4.16 The appellants contended that the respondent's evidence did not prove, on a balance of probability, that the money seized from them was tainted as guided by the definition of 'tainted property' in the FPOCA. It was submitted that by the definition in the Act, the respondent ought to have led independent evidence demonstrating how the appellants contravened the law by proving any of the elements of tainted property. That no proof was led to show that the appellants were conducting Jll .- illegal exchange of currency in violation of section 6 of the Banking and Financial Services Act4. 4.17 It was further explained that the appellants exhibited in their affidavits at pages 87 to 112, 118 to 128, 129 to 161, and 162 to 193 of the record of appeal that the 2 nd appellant was a general manager of the 3 rd appellant and that 90% of the money found in his possession was acquired on or about 28th January 2021. That a fraction of 10% was left for face masks and hand sanitizers collected around that period. They argued that this was a reasonable explanation warranting a discharge of the appellants' seized monies. 4 . 18 By these submissions we were urged to allow the appeal and set aside the ruling of the court below. 5.0 The respondent's arguments 5.1 In opposing the appeal, Ms. Nsingo, learned Principle State Advocate, for the respondent, relied on the respondent's heads of argument filed on 15th February 2024, out of time with leave of the Court. 5.2 In opposing the 1st ground of appeal, it was submitted that the court below was on firm ground when it allowed the originating process to be served on Messrs. Muya and Company, a firm registered in Zambia, and retained by the appellants to represent them. It was argued that process was served on counsel seized with conduct of the matter, who 1n J12 turn, would bring court documents to the attention of her clients. Counsel contended that there was no irregularity in the process of service on counsel. 5.3 It was submitted that in civil forfeiture proceedings, it is the property which is proceeded against and not the individual applicant. Reliance was placed on the case of Simon Prophet v The National Director of Public Prosecutions11 , a Constitutional Court of South Africa decision where it was stated inter alia as follows: "Civil forfeiture provides a unique remedy used as a measure to combat organized crime. It rests on the legal fiction that the property and not the owner has contravened the law." 5.4 It was submitted that since the proceedings were against the property and not individual interested parties, the provisions of Order 1 0 rule 1 6 HCR and the procedure outlined in the case of Leopold Walford (Z) Limited v Unifreight supra were inapplicable. 5.5 The respondent advanced that the procedure followed in giving notice of the application is provided in section 30 of the FPOCA which requires the respondent to give notice of the application to any interested person having interest in the tainted property. Mr. Mukelabayi, learned State Advocate, submitted that the respondent complied with the Act and notified the interested parties accordingly. J13 5.6 In opposing ground two, Mr. Mukelabayi emphasized what was stated in the heads of argument that there is no requirement in a civil procedure to test the voluntariness of a warn and caution statement. That such a p r ocedure is not provided in the Act. Reliance was placed on the Economic and Financial Crimes Division of the High Court case of the DPP v Chiyesu Lungu in Re Property: L/9390 and Property No. LN-79093/1 State Lodge12 where the lower court denied the interested party an application to cross examine th e respondent. 5 .7 The respondent cited section 71 (1) of the FPOCA which provides as follows: "71 (1) A person who, after the commencement of this Act, receives, possesses, conceals, d isposes of or brings into Zambia any money, or other property, that may reasonably be suspected of being proceeds of crime commits an offence and is liable upon conviction to • (a} if the offender is a natural person, imprisonment for a period not ex ceeding five years; or ... (3) The offence under subsection ( 1) is not predicated on proof of the commission of a serious offence or foreign serious offence. " 5.8 It was submitted that the respondent su cceeded in satisfying the court below, on a balance of probability, that the subject forfeited property is tainted property or proceeds of crime as the appellants were engaged in currency transactions in J14 contravention of section 41A (1) of the Customs and Excise Act:3, section 6 of the Banking and Financial Services Act4 and section 7 of the Prohibition and Prevention of Money Laundering Act5 which provisions create serious offences. 5 .9 Opposing the 3 rd ground of appeal, Mr. Mukelabayi submitted that the 1st and 2 nd appellants confessed in their affidavits that they were found in the latter's vehicle with large sums of cash in backpacks. That at the sight of Drug Enforcement Commission (DEC) officers, one of them (not a party to these proceedings) bolted. He argued that the appellants failed to explain the source of the money they were found in possession of. Counsel contended that the appellants exhibited receipts to justify how they acquired the moneys , which were altered and not dated. He stated that the appellants were investigated by immigration and DEC officers. Counsel submitted that when the court below looked at all the evidence, on a balance of probability, it weighed in favour of the respondent. 5 . 10 It was argued that the matter was to be determined on affidavit evidence only. Reliance was placed on the case of New Plast Industries v Commissioner of Lands & Attorney General13 where the Supreme Court held inter alia that a deponent cannot be heard to argue that he was denied the right of hearing simply because he had not adduced oral evidence. That the decision whether or not to admit a warn and caution statement is discretionary by the court. JlS 5.1 1 Coun sel argued t h at t h e a ppella n ts failed to establish by affidavit evidence t h e legitimate sou rces of th e m oney found on t h em was not tainted p roperty. He urged the Cou rt to adop t th e reasonin g of t h e South African Constitu tion al Cou rt in th e case of Kumarnath Mohunram & Shelgate Investments Co. v National Director of Public Prosecutions, Boe Bank Limited & the Law Review Project (As Amicus Curae)14 wh erein th e Cou rt u pheld th e Su preme Court of Sou th Africa in t h e case of National Director of Public Prosecutions v RO Cook Properties (PTY) Limited15 as follows: "Chapter 6 , which is headed 'A Civil Recovery Property, ' makes provision for orders to be made for the forfeiture of property which is tainted because it is linked to the commission of crime either because it is proved, on a balance of probabilities, to be an instrumentality of an offence referred to in Schedule 1 of the Act or because it is proved, according to the same standard of proof, to be proceeds of unlawful activities. Such orders may be made even if no one has been convicted of having used the property or of having been guilty of the unlawful activities of which the property is said to be the proceeds." 5. 12 It was submitted that, as set out in section 31 (1) of the Forfeiture of Proceeds of Crime Act, on a balance of p robabilities, the respon dent, through affidavit evidence and skeleton arguments, proved th at t h e subject forfeited property are tain ted or proceeds of crime, and the lower court correctly forfeited the same to the State. J16 6.0 Appellants' arguments in reply 6.1 In reply to the respondent's arguments, Mr. Mahape submitted that the warn a nd caution statements were obtained with coercion. That they were statements that th e lower court should not have relied on. Reliance was placed on the case of Chulu v The People16 where the Court held inter alia t h at: "1. A breach of the Judges' Rules in the obtaining of a confession from the accused raises a reasonable doubt as to the freedom or voluntariness of the confession; accordingly, the prosecution has not discharged its burden to support the confession's admissibility into evidence. 2. When an accused has been kept in custody for a long period without food and has been subjected to lengthy interrogation, and the police obtain a statement from the accused in these circumstances, the Judge should exercise his discretion to exclude this statement from evidence." 6.2 Counsel referred us to page 33 of the record of appeal wh ere the Learned Judge stated that the respondent needed to lead evidence to s h ow h ow the appellants offended the law cited by the respondent. 6.3 Mr. Mahape argued that the 2 nd appellant had shown extensive bank statemen ts that it had the capacity to hold the forfeited money. J17 6 .4 Counsel urged the Court to allow the appeal, lest the gener al public be at the mercy of law enforcement without due process or a d equ ate safeguards. 7.0 The considerations and decision of the Court 7 . 1 We have carefully read the record and considered the appellants' arguments . 7.2 On the first ground of appeal, the learned Judge held that there was no need for leave of court prior to issuing process to the appellants as they were served through their lawyers who were within jurisdiction. The appellants, through their coun sel, advanced that the court was robbed of jurisdiction to determine the matter since the respondent did not seek leave of the court prior to issuance of the originating summons. 7.3 Order 10 Rules 15 and 16 of the High Court Rules provide as follows : "15. Service out of the jurisdiction of a writ of summons, originating summons or originating notice of motion, or of a notice of such writ of summons, originating summons or notice of motion may be allowed by the Court or a Judge whenever- (a) .. . (b) .. . (c) Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or (d) .. . J18 {e) .. . (I} .. . {g) .. . {h) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction; or {i) ... 16. An application for leave to issue for service out of the jurisdiction a writ of summons, originating summons, or originating notice of motion or a concurrent writ of summons, originating summons or originating notice of motion may be made ex parte to the Court or a Judge on deposit of the writ, summons or notice with the Registrar together with an affidavit in support of such application. The affidavit shall state- {a) the grounds upon which the application is made and the facts which bring the plaintiffs case within the class in respect of which service out of the jurisdiction may be allowed; {b) that the deponent is advised and believes that the plaintiff has a good cause of action or right to relief; {c) in what place or country the defendant resides or probably may be found; (d) whether the defendant is a citizen of Zambia or not." J19 • 7.4 From the above prov1s1ons, it is clear that an application for leave to serve originating process outside jurisdiction cannot necessarily be made for the category of circumstances not covered by Order 10 Rule 15 of the High Court Rules. 7. 5 It is also plain from the captioned High Court Rules that before a party can issue originating process against an intended defendant residing outside Zambia, it is incumbent on the intending plaintiff to first seek leave of the court to issue and serve originating process outside jurisdiction on the intended defendant. 7 .6 Whilst the 1st and 2 nd appellants are foreign nationals , they were apprehended within jurisdiction for alleged criminal offences. It is not within the contemplation of the rules that whenever legal process is intended to be issued against a foreign national, the intended plaintiff must invoke the provisions of Order 10 Rule 16, even when the intended defendants are within jurisdiction. 7. 7 The real issue, however, in this matter 1s whether the Forfeiture of Proceeds of Crime Act (FPOCA) provisions were strictly adhered to. The Act provides for the notification of an application for non-conviction based forfeiture to interested parties as opposed to personal service of the originating summons. Section 30 of the Act states as follows: "30. Where a public prosecutor applies under section twenty nine for a forfeiture order- J20 (a) the public prosecutor shall give not less than thirty days written notice of the application to any person who is known to have an interest in the tainted property in respect of which the application is being made; (b) any person who claims an interest in the property in respect of which the application is made may appear and produce evidence at the hearing of the application; and (c) the court may, at any time before the final determination of the application, direct the public prosecutor to- (i) give notice of the application to any person who, in the opinion of the court, appears to have an interest in the property; and (ii) publish in the Gazette or a daily newspaper of general circulation in Zambia, a notice of the application." (Emphasis is ours) 7.8 The law is couched in mandatory terms as it uses the word 'shall' as opposed to 'may '. In our view, it is not clear from the wording of the Act whether the written notice ought to be given prior to the issuance of process or after process has been issued. However, what is clear from the wording of the Act is that it is mandatory to notify any interested party and would be interested party in writing or by way of general publication as prescribed in the Act. J21 7. 9 From the ruling, it is not clear that the learned Judge satisfied himself in terms of section 30 of the Act that the interested persons (appellants) were availed not less than thirty days written notice of the application. The applicant (respondent) through the affidavit of one Yunikedi Mvula, in support of the originating summons at pages 41 to 45 of the record of appeal, not once referred to the written notice availed to the appellants. The said written notice is not part of the record. 7 .10 The 1st appellant, in his affidavit in opposition to the originating summons at page 18 of the record of appeal, confirmed the respondent's assertion, that he was apprehended in Zambia for an alleged criminal offence and detained for three days. 7.11 The respondent, in his affidavit in reply, sworn by the said Yunikedi Mvula deposed that the 1st appellant retained the services of Messrs Muya and Company, a Ndola based firm which accepted service on his behalf. Pages 202 to 206 of the record of appeal ref er. 7 .12 The 2 nd appellant, in his affidavit in opposition to the originating summons, at page 118 to 120 of the record of appeal, deposed that he was resident in Zambia .. He further exhibited a document from the Patents and Companies Registration Agency (PACRA) showing that the 3 rd appellant was a Zambian registered company with its offices in Zambia. J22 7. 13 The Judge referred to the provisions of Order 1 0 Rule 16 of the HCR which were inapplicable pursuant to section 29 of the FPOCA. In our view, there was no requirement for the respondent to seek leave of the court to issue originating process on the appellants. The respondent was obligated to notify interested persons in conformity with section 30 of the FPOCA. The first grou nd of appeal as couched therefore has no merit. It is accordingly dismissed. 7. 14 We shall now deal with the second and third grounds of appeal in concert as they are interrelated. They relate to the test to be applied to the voluntariness of the warn and caution statements. Put differently, to the admissibility of the warn and caution statements. It is trite that admissibility is a technical rule. It provides the courts with a means of excluding evidence that is relevant, but for some reason 1s inherently so unreliable or oppressive that the court should refuse to be swayed by it. The best example is what we have to contend with in this appeal, that is, the rule in criminal evidence of excluding a confession. It is a fundamental entrenched principle of justice, in this jurisdiction, that for a confession (warn and caution statement in this case), to be admissible, it m u st be free and voluntary. It must neither be extracted by any sort of threat or violence nor obtained by any direct or implied promise, however slight, nor by the exertion of improper conduct. The case of R v Sinombe and Siababwa1 7 refers. J23 7.15 An NCB asset forfeiture , also referred to as a 'civil forfeiture, ' or 'in rem forfeiture, ' is an action against the asset itself and not against an individual, as rightly submitted by the respondent. It imparts a separate personality and guilt in wron g to the property. For instance, in the United States of America case of US v One 6.5mm Mainlicher-Carcaro Military Rifle1 B, a charge was brought against the rifle which was used for the assassination of President John F. Kennedy, as a result of which the rifle was forfeited to the State. It is a separate action which is not a criminal proceeding. Section 33 of the FPOCA refers. NCB asset forfeiture requires proof that the property is tainted, or put differently, that the property is the proceeds of, or an instrumentality of crime. The criminal conduct must be established on a balance of probabilities (standard of proof). 7. 16 In casu, the on ly evidence the State relied upon were warn and caution statements, which were obtained by DEC officers in criminal investigations. In criminal proceedings, warn and caution statements objected to by the accused person as having not been given voluntarily may be admitted in evidence after the conduct of "a trial within a trial." In the case of Esaya Mupasha and 2 Others v The People1 9 , the Supreme Court defined "a trial within a trial" as an interlocutory or preliminary hearing with all the characteristics of the main trial, heard and determined before the main trial. The evidence is admitted on proof beyond all reasonable doubt that the statement was freely and voluntarily given. It is evident that J24 the process of conducting a trial within a trial cannot appropriately be used in civil cases. 7. 1 7 Further, when an accused in a criminal case denies makin g a confession or a statement attributed to him, but raises no question as to the voluntariness of that confession or statement, the trial court need not hold a trial within a trial before admitting the confession or statement into evidence. The case of Mwiya and lkweti v The People2 0 refers. In the present case, the appellants objected to the admission of the warn and caution statements into evidence. At page R22 (page 32 of the record of appeal), the lower court ruled that according to section 33 of the FPOCA the rules of evidence that apply in criminal proceedings are inapplicable in this case. 7 . 18 We uphold the lower court's holding that according to section 33 of the FPOCA the rules of evidence that apply in criminal proceedings are inappropriate to this case because that is what the FPOCA under section 33 (2) (b) provides. 7 .19 Further, warn and caution statements fall under criminal law as they are recorded or taken from an alleged perpetrator of a crime by the State prosecutor. The State may rely on such a statement if the matter they are investigating is prosecuted. We therefore accept the appellants' argument that warn and caution statements cannot be used in any civil action. Hence, the question whether the warn and caution statements were given freely and voluntarily by both appellants is a non-issue . J25 We hold that the lower court's reliance on evidence (warn and caution) obtained during criminal investigations was a misdirection. 7.20 Having held as above, we will proceed to consider whether the affidavit evidence on record proved the case against the appellants on a balance of probability. 7. 21 The process of establishing a material fact is one we refer to as proof Within the common law, rules regarding proof are in civil cases, less strict than in criminal proceedings. In other words, the basic evidentiary requirements for proof of a fact are that it is relevant and admissible and that the evidence is sufficiently strong to satisfy the burden of proof. All cases whether civil or criminal are decided on the burden of proof being discharged. It places the responsibility for establishing particular fact on its proponent. For example, if a plaintiff, P , claims that a defendant, D, injured him by his negligent driving, then it is up to P to make out a case. 7.22 In the present case, the respondent alleged that ZMW 550,000.00, US$ 92,750.00, US$ 28,520.00, ZMW 530.60, ZMW 582,160.00 was tainted property. S e ction 2 of t he FPOCA provides as follows: "'Tainte d property' in relation t o a serious offence o r a fo reign serious offence, means - (a) any p roperty used in, or in connection w ith, the comm ission of t he offe nce; J26 • , (b) property intended to be used in, or in connection with, the commission of the offence; or (c) proceeds of the offence and when used without reference to a particular offence means tainted property in relation to a serious offence; and 'unlawful activity' means an act or omission that constitutes an offence under any law in force in Zambia or a foreign country." 7.23 The respondent alleged that the said funds were tainted property because the interested persons offended provisions of section 41A (1) of the Customs and Excise Act, section 6 of the Banking and Financial Services Act, section 71 of the Forfeiture of Proceeds of Crime Act and section 7 of the Prohibition and Prevention of Money Laundering Act. 7 .24 In his affidavit, at pages 41 to 45 of the record of appeal, Yunikedi Mvula, made no averment on how each of the amounts seized was used in, or in connection with the commission of any offences; intended to be used 1n, or 1n connection with the commission of the offences alleged; or shown to be proceeds of crime. The property, which was on trial and not the owners, was not shown to have a nexus with the alleged offences save that it was found in bags in a car. 7.25 In the case of National Director of Public Prosecutions v RO Cook Properties (PTY) Limited21 supra, cited by the respondent for its persuasive value, the applicant alleged that a suburban house was used as a brothel in contravention of section 20(1) of the Sexual Offences Act and that persons kidnapped by one Michael Zinqi and his cohorts were J27 assaulted and held hostage on the property. The owner opposed an NCB asset forfeiture application. The High Cou rt of South Africa found that the State had not proved that the property was an instrumentality of an offence and dismissed the application. 7.26 On appeal, the Supreme Court of South Africa upheld the lower court and stated at page J23 as follows: "The approach to chapter 6 has the interpretive consequence that in giving meaning to 'instrumentality of an offence' the focus is not on the state of mind of the owner, but on the role the property plays in the commission of the crime. The phrase must be interpreted independently of the guilt or innocence of the property owner. Where a forfeiture order is sought the court thus undertakes a two-stage enquiry. In the first, it ascertains whether the property in issue was an 'instrumentality of an offence'. At this stage the owner's guilt or wrongdoing, knowledge or lack of it, are not the focus. The question is whether a functional relation between property and crime has been established. Only at the second stage, when (after finding that the property was an instrumentality) the court considers whether certain int erests should be excluded from forfeiture, does the owner's state of mind come into play. Approached from a different perspective, the contextual and constitutional indicat ors pointing to a restrictive interpretation of 'inst rumentality' make it unnecessary to intrude the owner's culpability into the first stage." J28 7.27 In relying on the South African case, the respondent contended that the 1st appellant confirmed in his warn and caution statement that he had been engaging in money exchange business with the 2 nd appellant. That the 2nd appellant had failed to provide a justifiable cause why he was found transacting in the motor vehicle with two Congolese nationals. The approach taken by the respondent in the initial stage was to ascertain the state of mind of the interested parties and not to link the seized property to the alleged offences. This approach in our view was flawed . 7.28 In this jurisdiction, we are of the view that the FPOCA equally calls for a two-staged approach. In the first stage, the tainted property must have a relationship with the offence alleged. Evidence must be adduced showing the role the property played in the alleged offences for it to be considered tainted property. In the affidavit in support of the application, the deponent simply stated that he had intelligence information that the interested parties were engaged in currency exchange. Thereafter, a sting operation was conducted leading to the arrest of the appellants. 7.29 The question of whether the appellants' warn and caution statements were made freely and voluntarily for the court to admit them into evidence then came into play. The learned Judge considered the following at page R26 of the ruling (page 36 of the record of appeal): J29 • "In his warn and caution statement marked 'YMl' dated 29th January, 2021, he said that: "I wish to state that the government should put up Bureau de Change so that they can provide services of forex exchange. I do not know of any Bureau at Kasumbalesa. My other plea is that the immigration should open up more booths for entry of Congolese as the current situation is that we have long queues which affect our business as we spend more time in queues. Since I know the regulations of Zambia, I promise not to engage in such business again." In answer to a question he said "I get the dollars from Lubumbashi Congo DRC where I take from Congo currency and get dollar." 7 .30 On the basis of the statement made by the 1st appellant, the learned Judge found that he had contravened section 41A (1) of the Customs and Excise Act4 when he imported US$28,520 into Zambia and later engaged in its exchange with Zambian Kwacha without a licence in contravention of section 6 of the Banking and Financial Services Act. 7.31 With respect to the 2 nd and 3 rd appellants,the learned Judge considered what the 2 nd appellant said when warned and cautioned and stated at page R26 of the ruling (page 36 of the record of appeal) as follows: "Concerning the 3rd interested party, he did not say anything when warned and cautioned over the money apart from stating that he denied the allegation. It was averred that the J30 money found on him belonged to the 5 th interested party of which he is the General Manager and that on the day he was apprehended he was collecting money from the 1st interested party for the face masks and hand sanitizers supplied to him on credit earlier. It was further explained that 90% of the money found on the 3 r d interested party was acquired by the 5 th interested party before 28th January, 2021 and only a fraction of 10% was for the face masks and hand sanitizers supp lied to the 1st interested party and other parties." 7.32 Following th e explanation s in the warn and cau tion statement and on the totality of the evidence b efore h im , the learned J u dge found th at the 2 n d app ella n t was en gaged in illegal exchange of curren cy outsid e t h e purview of section 6 of the Banking and Financial Services Act. 7 .33 In admitting the warn and caution statements, the learned J udge took heed of section 33 of the Forfeiture of Proceeds of Crime Act which provides as follows: "(1) Any proceeding on an application for a restraining order, forfeiture order or confiscation order is not a criminal proceeding. (2) Except in relation to an offence under this Act - (a) the rules of construction applicable only in relation to criminal law do not apply in the interpretation of this Act; (b) the rules of evidence applicable in civil proceedings apply, and those applicable only in J31 .. criminal proceedings do not apply, to proceedings under this Act." 7.34 We accept that the matter being a civil matter, there was no requirement for a trial within a trial. However, the issue of voluntariness of the warn and caution statements arose. We take the view that even in civil matters , courts ought to satisfy themselves of the voluntariness of a statement sought to be relied upon. If, for instance, a statement sought to be relied upon was allegedly obtained through duress, its probative value is diminished. A court will attach little or no weight to it unless the allegation 1s corroborated by some other independent evidence. For that r eason, a contract entered into under duress or undue influence is bound to be set aside or d eclared unenforceable. 7.35 In the second stage, there was need for the State to produce evidence linking the property to the wrongful acts. The trial Judge noted this requirement at p age R23 lines 5 to 23 (page 33 of the r ecord of appeal). The learned Judge, however, stated that the respondent n eeded to lead evidence to show how the interested parties offended the law. This is not correct. We are of the view that in order to satisfy the second stage, the r espondent ought to have produced evidence to show how the property offended the provisions of the law. All the respondent did was to state the offences it alleged the interested parties committed, whilst the proceedings in the lower court were apparently against th e property and not the interested parties J32 per se. The evidence in support of the application must support it, or in other words, point to the commission of the offences allegedly committed by the property. It is therefore not sufficient to simply state the offences. This is because civil forfeiture, will not be ordered unless the alleged act is connected to the commission of a serious offence, on a balance of probability. 7.36 Further, to prove that offences were committed, the respondent produced warn and caution statements stating that the interested parties confessed. We take note that confessions are important to those engaged 1n law enforcement. As such prosecutors welcome a plea of guilty because time and expense of a long trial are saved. They often expedite the search for evidence and remove lingering doubts. 7.37 In his oral submissions, Mr. Mukelabayi, forcefully argued that the property was the off ender, and we accept his submission. The focus ought to have been on the property and the evidence showing how it was tainted. In the Cook Properties case, the Supreme Court of South Africa stated the following at page J45 of its judgment: "We do not think the NDPP can claim forfeiture of property by oblique invocation of statutory infractions, still less by mistaken allusion to them. If our approach seems technical, we think that this is rightly so. Assets forfeiture is a serious matter. Where an owner stands to lose property because the asset was 'concerned in the commission of an offence,' the J33 " papers must set out clearly the case he or she is called to answer. Certainly t he p roperty owner must be told clearly what scheduled offence or offences t he NDPP relies on to establish forfeitu re. ,, 7.38 In the Cook Properties case, the Supreme Court of South Africa found the ND PP had failed to prove that the property was an instrumentality of any of the offences on which the ND PP relied. 7. 39 In casu, we noted that in order to ascertain that the property was tainted, the respondent's focus was initially on the state of mind of the interested parties. The respondent did not demonstrate that the money off ended the provisions of the law cited. 7.40 In obiter dicta, we pause to take cognisance of the different avenues of forfeiture and confiscation orders that are available to law enforcement under the FPOCA supra. The FPOCA is a comprehensive tool that allows law enforcement authorities to seize and confiscate assets derived from criminal activities including section 4 which provides for an application for a forfeiture order or a confiscation order to be made upon conviction. Further, section 9 of the FPOCA establishes procedure for obtaining forfeiture orders upon conviction in situations where a person has absconded. 7.41 Section 29 of the FPOCA upon which provision this matter was based, allows for non-conviction based forfeiture orders for tainted property. It also specifies the procedure for restraining J34 orders related to such property. What it does not do is define the circumstances under which an application can be made. 7.42 Reverting to the present case, we asked counsel for the respondent, what the State's recourse would be in the event that the application was refused for failure to find the property tainted on a balance of probability. Counsel's response was that the State would resort to criminal proceedings against the suspected persons. 7.43 Counsel's response reinforces the caution in Article 54 of the UNCAC that countries "consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases which the off ender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases" 7.44 In the view we have taken, we find merit in the second and third grounds of appeal and accordingly set aside the judgment of the lower court. 8.0 Conclusion 8.1 While non-conviction-based asset confiscation may be an effective tool for asset recovery in intricate corruption, money laundering and drug trafficking cases, the opinion we have rendered in this judgment demonstrates that it remains a highly technical area in which fundamental rights, such as the J35 . .. ti ; right to a fair trial must not be sacrificed at the altar of expediency. 8.2 The net result is that the appeal substantially succeeds. As this is a matter of public interest, that each party shall bear their own costs. J. Cha COURT OF APPEAL JUDGE C. K. Makungu COURT OF APPEAL JUDGE COUR a, SC AL JUDGE J36