The Director of Public Prosecutions v Charles Phiri (2023/HPEF/24) [2025] ZMHC 27 (28 March 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE ECONOMIC AND FINANCIAL CRIMES DIVISION REGISTRY HOLDEN AT LUSAKA ( CIVIL JURISDICTIONJ f" 2023/HPEF/24 IN THE MATTER OF: SECTIONS 29, 30 AND 31 OF THE FORFEITURE OF PROCEEDS OF CRIME ACT NUMBER 19 OF 2010 OF THE LAWS OF ZAMBIA IN THE MATTER OF: SECTION 71 OF THE FORFEITURE OF PROCEEDS OF CRIMES ACT NUMBER 19 OF 2010 OF THE LAWS OF ZAMBIA BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT AND IN RE PROPERTY: RESPONDENT PROPERTY NO. LUS/38478 HOUSING 1 THREE STOREY LODGE IN IBEX HILL C HARLES PHIRI: INTERESTED PARTY BEFORE THE HONOURABLE JUSTICES P. K. YANGAILO, A. MALATA-ONONUJU AND S. V. SILOKA, ON THIS 28TH DAY OF MARCH, 2025. For the Applicant : M rs . R. M . Jackson, Mrs. C. - Bau leni and Mr . D Mukelelabo J1 For the Interested Party : Na tional Prosecutions Authority . Mr. I. Simbeye - Messrs. Malisa and Partners Legal Practitioners. JUDGMENT A. MALATA-ONONUJU J ., DELIVERED THE JUDGMENT OF THIS COURT CASES REFERRED TO: 1. Simon Prophet Vs The National Director of Public Prosecutions Case CCT 56; 2. Director of Public Prosecutions Vs Jessie Bwalya Kapyelata Tapalu; Vs Dhiraj Dhumputha 3. The Director of Public Prosecution 2020/ HP/ 1287; 4. Director of Public Prosecution and ZMKJ 57,040, US$23,007.14, ZMK50,000, and ZMK82,333.83 held in different Bank Accounts 2019/ 1-IP/ 1784; 5. Director of the Assets Recovery Agency Vs Szepietowski & Ors (2007) EWCA Civ. 755;" 6. Abdulrahman Mahmoud Sheikh and 6 Others Vs Republic and Others 2016 eKLR; 7. Kumamath Mohunram & Shelgate Investments CC Vs The National Director of Prose cut ions BOE Bank Limited & The Law Review Project {As Amicus Curiae) CCT 19/0 6/2 007/ZACC; 8. National Director of Public Prosecutions Vs RO Cook Properties (260/ 03) /2004] ZASCA 36; 9. The Peopl e Vs Austin Chisangu Liato Appeal No. 29 1 of 2014; 10. Bwalya Chitalu Kalandanya and Others Vs The Attor ney General (2023) ZMHC 5; 11. Godfrey Miyanqa Vs The High Court (SCZ Judg ement No.5 of 1984) fl 984} ZMSC 19 (18 June 1984); 12 . Rosemary Chibwe Vs Austin Chibwe SCZ Judgment No. 38 of 20 00; 13. The Attorney General Vs Roy Clarke (2008 ) Z. R. 38 Vol. 1 (S. C.); 14 . Regina Chifunda Chiluba Vs The People, HPA / 15/ 2009; 15. Kabwe Transport Company Limited Vs Press Transp ort Company Limit ed ( 1985) Z. R. 24 (HC); J2 Sharnwana and Seven (7) Others Vs the People (1985) Z. R. 41 (SC); The People Vs Fredrick Chiluba (2003) ZR 153; 16. 17. 18. R Vs flham Anwoir, Brian McIntosh, Ziad Meghrabi and Adnan Elmaghrabi /2008} EWCA Crim 1354; 19. Criminal Assets Bureau Vs James Gately and Charlene Lam (2024) 20. 21. IEHC 399; Sydney Mwansa Vs The Directo r of Publi c Pros ecuti ons Appeal No. 276/2021; Nathan Mbaya and 2 Others Vs the Director of Public Prosecution Appeal No . 123 of 2024; 22. Melrose General Services Limited Vs The Economic and Financial 23. 24. 25. 26. Crimes Commission SC 151 9 of 2019; Asset Recovery Vs Peter Oluwafemi Olaiwon Civil Suit No. E002 of 2022; NFC Africa Mining PLC Vs Techro Zambia Ltd (SCZ Judgment 22 of 2009) /2009} ZMSC 168 (3 September 2009); The Director of Public Prosecutions Vs Dalitso Lungu 2 023 / HPEF / 24; In Re Property Chiyeso Lungi The Director of Public Prosecutions 2023/ HPEF/ 26; 27. Richard Musukwa and 7 Others Vs The Attorney General 28. 2023/ HPEF/ 21 ,· The Director of Public Pros ecuti ons in Re Property Esther Nyawa Lungu 2 023 / HPEJ,; 23; 29. General Nursing Council of Zambia Vs lng'utu Milambo Mbagweta (2008) ZR 105 (SC); 30. Matilda Mutale Vs Emmanuel Munaile (SCZ Judgment 14 of 2007) [2007} ZMSC 188 (25 July 2007); 31. Minister of Information and Broadcasting Services and Another Vs 32. 33. 34. 35. 36. Chembo and Others (76 of 2005) /2007} ZMSC 11 (14 March 2007); The Director of Public Prosecutions Vs Sharon Lee Brown (S. C. Z. Judgment 10 of 1974) fl 974} ZMSC 1 (8 July 1974); Johannes Kenneth Soigop i (Tl A Nam Transport Co. A Partnership) Vs Director of Public Prosecution s Appeal NO. 196/ 2020; !vlilner Vs Mini ste r of Pension fl 947} 2 All E. R. 372; S undi Vs Ravalia (Civil Appeal Cause 49 of 1948) [1949] ZMHCNR 1 (1 June 1949); lV!anuel Mota De Sousa Vs . John Kees Mumba SCZ Appeal No. 1 7 of 1993; 37. Examinations Council of Zambia Pension Trust Scheme Registered Tnlstees & Anoth e r Vs Tecla In.vestments Limited (37) (Appeal 127 of 2015 ) [2018} Zl'vISC 313 (19 September 2018); and J3 38. The Director of Public Prosecution In Re Property Henry Banda and 2 Others 2022/ HPEF I 16. LEGISLATION REFERRED TO : 1. The High Court R u les of the High Court Act, Chapter 27 of the Laws of Zambia; 2. The Forfeiture of Proceeds of Crime Act No . 19 of 2010 of the Laws of Zamb1:a; 3. The Income Tax Act Chapte r 323 of the Laws of Zambia; 4. The Proh ibition and Prevention of Money Laundering (Amendment) Act No. 44 of 2010 of the Laws of Zambia; 5. The Prohibition and Prevention of Money Laundering Act No. 14 of 2001 of the Laws of Zambia; 6. The Rules of the Supreme Court of England (White Bookj 1999 Edition Sweet & Maxwell; 7. The Constitution of the Republic of Zambia A ct No 18 of 1996 of the Laws of Zambia; 8 . The Prevention of Organised Crime Act Number 121 of 1998 (South Africa); 9. The Electronic Commun ications and Transactions Act No. 5 of 2022 of ihe Laws of Zambia; 10. The Evidence Act, Chapter 43 of the Laws of Zambia; 11. The Interpretations and General Provisions Act Chapter 2 of the Laws of Zambia; 12. The Anti-Corruption Act No 3 of the 2012 of the Laws of Zambia; and 13. The Lands and Deeds Act Chapter 185 of the Laws of Zamb ia . OTHE R WORKS REJi'ERRED TO : 1. Murphy on Evidence. 5th Edition (1995) Universal Law Publishing; 2 . 1 988 Vienna Convention on Money Laundering; 3. financial Action Task Force (FATF); 4. Phipson on Evidence 17th Edition Thompson Reuters, 201 O; and 5. Black's Law Dictionary, 11th Edition. Bryan A. Garner Editor in Chief, Thomson Reuters. 1. INTRO DUCTION 1. 1 The Applicant filed Originating Notice of Mot ion for an Applicatio n for Non -Convictio n Based Forfei ture Order of Tainte d Prop er ty pursuant to Order XXX Rules 15 and 17 of the High Court Rules J4 as read together with Sections 29 and 31 of the Forfeiture of Proceeds of Crimes Act No. 19 of 2020 of the Laws of Zambia . 1.2 The Noti ce of Motion, filed on 13th Jun e, 2023 , was accompanied with an Affidavit in Support, List of Author ities and Sk e leton Arguments of even d ate. 1.3 The Int erested Party opposed the Application through an Affidavit in Opposition accompanied with List of Authorities and Ske leton Arguments filed on 16 th May, 2024 . 1.4 The App licant filed Affidavit in Reply with List of Authorities and Ske leton Arguments on 18 th J une, 2 0 24 . 2. THE APPLICANT'S APPLICATION 2. 1 The Applicant' s Affidavit in Support was sworn by EMMANUEL KHONDOWE , a Senior Investigations Officer in the emp loy of the Dru g Enforcement Commission (DEC) work ing und er the Anti Money Launde ring Investigations Unit (AMLIU). 2.2 !n his Affidavit in Supp ort, Mr . Emm an uel Kho n d owe deposed that in May, 2022, DEC received information to the effect that there was real property that was reaso n ab ly suspected to be proceeds of crim e situate at Plot No. LUS/38478 in Lusa k a. Tha t the property belonged to politically exposed persons and their close associates and was acquired between 2013 and 2022. 2.3 It was deposed to that in the same month of May, 2 022 , the DEC, on receipt of the information , constit u ted a team of Investigators and institu ted investigations into the matter and that the Depo nen t was assigned to lead the said investigations. 2.4 It was deposed t h at investigations revealed that the real Pro p erty in question belonged to Ch arles Phi r i an d a search at Ministry of Lands and Natural Resourc es established that the Property in questio n is JS registered in th e name of Charles Phiri as per exhibit marked "EKl ", being a copy of the Register. 2.5 The Deponent averred that on 1s t November, 2022, he recorded a Statement, exhibited and marked "EK2 ", from Mr . Andrea Chuni, a Senior Registrar at the Ministry of Lands , who stated that Prop erty No. LUS/38478 at Entry Numbe r J of the Lands a nd Deeds Register was a 99-year State Lease to Eric Mwaba Chimese who obtained tit le under Certificat e of Title number 286342 on Entry Number 2 of the Register. 2.6 Further to the above that at Entry Numb er 3 of th e Lands and Deeds Register is a Surrendered Deed , the Less ee being Eric Mwaba Ch im ese and the Lessor b ein g the Commissioner of Lands. That on Entry Number 4 of the Regist er is a 99 -year State Lease from the Presid ent of t h e Republic of Zambia to Charl es Phiri und er Certificate of Title Num b er CT _8508. 2. 7 Th e Deponent avowed that h e wrote to th e Ministry of Infra stn1ctur e Housing and Urban Deve lopment (MIHUD) requesting for th e esti mated cost of construction of the 3 storey Lodge on th e Property in question. Th at a s at Nove mber , 2022, it was estim ate d to b e ZMW 15,549, 4 22 .22 as p er cop y of Bill of Quantities exhibited and marked "EK 3 ". 2.8 Emmanu el Khondowe deposed that h e intervi ewed a nd r ecor d ed a Statement, a copy . of wh ich was exh ibit ed and marked "EK4 ", from Micke y Kais i, a Qu antity Surveyor from MIHUD, who explained tha t u sin g t h e ave rage Unit ed States Dollar rate of UDS l.00 to ZMW9.49 from 20 15 to 2017, b eing the period between whic h t h e st ructur es we r e cons tru cted, the cost was int erpola ted to ZMW9, 0 69,699.87. J6 2.9 That following the above, and upon receiving the Priced Bill of Quantities Report, th e Deponent decided to investigate the financial capacity of Charles Phiri ; that his investigations revealed that Charles Phiri holds an account with First National Bank (FNB). 2.10 It was avowed that a Statement, exhibited and marked "EK7" , was recorded from Ms. Mwangala Sikombe, an Administration Manager at FNB, who confirmed that Charles Phiri holds a Kwacha Account Number 62545557780 and a United States Dollar Account Number 62650398813 at the Bank. That the Kwacha Account was opened on 2 nd July , 2015 , and is domiciled in Kitvve and the United States Dollar Account was opened on 20 th October, 2016, also domiciled at the Kitwe Indus t ria l Branch. 2.11 Further to the above, it was deposed that the Kwacha Account showed total debit entr ies worth ZMW874,653. 1] and total credit entr ies worth a gross total of ZMW875, 155.54 as debit and credit turn over between 2 nd Jul y , 2015, to 3 rd January, 2023. A copy of the Kwacha Account Statement was exhibited and marked "EKS ". 2 . 12 Further, that the United States Dollar Account had total debit entries worth USD2,850.00 and total cred it entries worth a gross total of about USD2, 101.33 as credit and debit turnover between 20 th October, 20 16 , and 20 t h January, 2023 . Cop y of the United States Dollar Account Bank Statement was exhibited and marked "EK6 ". 2.13 The Deponen1: averred that he found that Charles Phiri was the sole signatory to both Accounts as per a Statement from Ms. Mwangala Sikom be exhibited and marked "EK7 ". 2. 14 It was deposed that the Deponent extended his investigations to the Zambia Revenue Auth ority (ZRA) with regards to the Tax Returns for Mr. Charles Phiri and Crest Lod ge. That a Statement was recorded J7 from Mr. Chilala Hakalima, the Assistant Dir ector In vestigatio ns at ZRA who also provided attachrnents, though the same were not provided. A copy of the Statement, both written and typed, is exhibited and marked ''EKS". 2.15 That investigations and a search on Charles Phiri's tax compliance showed that taxes on t he thr ee storey Lodge built on his land alluded to above had not been paid. 2.16 Th e Deponent avowed that, on th e advice of Counsel and verily believing the same to be true, Tax Evasion is a serious offence which on convic tion could attract a penalty of three (3) years imprisonment. 2 . 1 7 Emmanuel Khondowe deposed that investigations furthe r r evealed that around 16Lh November, 202 1, Charles Phiri sold 10 ,892 .3890 hectares of land b eing property number F / M pika/ 1912933 for USDl00,000.00 to . Muneer Mitha and Mitha Ibrahim Hanif Mohamed and paid ZMW87,250.00 in Property Transfer Tax. 2.18 That the Deponent conducted a n analysis of Charles Phiri 's known income and known expend iture for th e p eriod l st August, 2015, to 8 Lh June, 2023, which revealed incomes of ZMW875, 155. 54, USD 100,000.00 and USD2,850.00 with variations of ZMW502.43 and USD99,251.33. 2 . 19 That following the above analysis, the Deponent did a comparison of the known income of ZMW875,155.54 and USD10 2, 101.33 which carne after the construction period, aga in st the thr ee storey Property valued at ZMW9 ,069 ,699.8 7, which gave a variation of about ZMWS,642,0 11 .08 abov e his known income. 2 .20 The Deponent swore th at his review of the Tax Returns, known income and known exp en ditur e for Charles Phiri showed that during the estimated period for the construction of the three storey Lodge, J8 being between 20 15 and 2017, there was no income to justif y th e estimated value of constr u ction ref erred to in Paragraph 2. 19 above. 2 .21 The Deponent avowed that he seize d th e Property No . LUS/38478 in question, as it was reasonabl y suspected to be a pro cee d of crime . A copy of the Seizure Notice was exhibited and marked "EK9 ". 2.22 That having been a dvis ed and verily b eliev ing the same to b e true and correct, the Deponent ave rr ed that the a b ove cited Property is tainted propert y and liable for forfeiture to the State because th e Property is reasonabl y suspected to b e a proceed of crime. 2.23 Fur the r that the offen ces in Section 71 of the Forfeiture of Proceeds of Crime Act No. 10 of 2010 and Section 102 of t h e Income Tax Act Chapter 323 of t h e Laws of Zambia are serious offences. 2.24 In the Skeleton Arguments file d , Counse l for the App licant begun by esta blishin g _ this Court's jur isdiction to hear the Matter by referr ing the Court to Order XXX , Rules 15 and 17 which states as follo ws : "15. When~ any application is autho~zed to be made to the court . or a Judge, such application, if made to a Judge in Court, shall be made by Motion ." "17. There shall be served with the notice of motion a copy of any affidavit on which the party moving intended to rely qt the hearing of such motion." 2.25 Counse l further anchored th e App lication on Sections 29 arid 31 of the Forfeiture of Proce eds of Crime Act (FPOCA) and submitted that Se ction 29 state .s as follows: "A Public • Prosecutor .may apply to a court for an order forfeiting to the State all or any property that is tainted property." J9 2.26 Counsel submitted that Non-Co nviction Based Forfeiture, also known as Civil Forfeiture, provides a unique remedy used as a measure to combat organized crime. That it rests on the legal fiction that property, and not the owner, has contravened the law. Counsel submitted that it does not require a conviction or even a crimin al charge against the owner. That this kind of forfeiture is in theory seen as remedial and not punitive. 2.27 Counsel fortified the above submission with the case of Simon Prophet Vs The National Director of Public Prosecutions !1 l whe r e the Constitutional Court of South Africa was called upon to strike an appropr iate balance between two constitutional principles, the first of which is that no one should be arbitrarily deprived of property, and the second is that the State is under an obligation to protect members of the public from criminal predations. 2.28 Counsel submitted that a Non-Conv ic tion Based Forfeiture is meant to demonstrate · that crime does not pay; to incapacitate criminal moguls so that property with which they allegedly committed the crim.e is taken away from them and by so doing to protect the public from criminal magnates. 2.29 It was Counsel's submission that Non-Conviction Based Forfeiture is const itu tional and fortified his assert ion with the decision in the case of the Director of Public Prosecutions Vs Jessie Bwalya Kapyelata Tapalu !2 l. 2.30 In addition r Counsel submitted that a Non-Conviction Based Forfeiture application may be brought wheth er a person has been acquitted, charged or not; that it is independent of a crirn .inal trial hence, may ran parallel with a criminal matter as was the decision JlO of th e Court in the case of The Director of Public Prosecution Vs Dhiraj Dhumputha l3l a nd as per Section 31(4) of th e FPOCA. 2 .3 1 Counse l fur t h er submi tted that in th e case of Director of Public Prosecution and ZMK157,040 .00, US$23,007.14, ZMKS0,000.00, and ZMK82,333.83 held in different Bank Accounts l4 l t hi s Court stated as follows : "A non-conviction based forfeiture provides an effective avenue for confiscation in situations where it is not possible to obtain a criminal co_n-viction, whether the defendant is dead, unknown, missing or immune from prosecution, or in cases where the statute of limitations prevents prosecution. " 2.32 Counsel subm itted that in casu, th e App licant has filed a Notice of Motio n for Non-Co n vict ion Based Forfe itu re Order aga ins t th e tain t ed p ro per ties suppo r ted by an . Affidavit in Suppo r t which provides clear evi d e n ce t h at. the Pr operty in question is a proceed of cr ime as its val u e exceeds the n et wort h of th e fnterested Party. 2 .33 Cou n sel con t end e d th at it is clear t h at t he Property owne d by the Intereste d Party .is p rocee d s of cr im e an d th at the p ossessi on of the said Prope r ty violates the prov isions outlined in Section 71 of the FPOCA . Counse l went on to quote the d efinitions of "pr ocee d s of crime" an d "prope rty" u n der the Prohibition and Prevention of Mon e y Laundering (Amendment) Act No . 44 of 2010 as read with the Prohibitio n and Pre vention of Mon e y Lau n de rin g Act No. 14 o f 2001 , as well as the defin ition of "pr oceeds of crime " under the FPOCA . 2.34 Counse l argued that the Affidav it in Support of the App lication shows that the estimate d cost for the construction of the thr ee sto r ey Jll Lodge at Property No. LUS/38578 was ZMW9,069 ,699.87. That Charles Phiri's Bank Account No. 62545557780 has total debit entries worth about ZMW874,653. l l and total cred it entries worth a gross total of about ZMW875, 155.54 as credit and debit entries turnov er between the period 2nd July, 2015, when the Account was opened, and 3 rd January, 2023. 2.35 That Char les Phiri's Dollar Account had debit ent ries worth about USD2,850 .00 and total deb it entries worth a gross total of about USD2,202.33 as cred it and debit turn over between the period the Account was open on 20 th October, 2 01 6, and 20 th January , 2023. 2 .36 It was Counsel 's contention that the above evidence clear ly shows the difference betwee n th e money that Charles Phiri had and the estimated cost for the construction of the property. That the construction expenses are far much higher than the money that Char les Phiri has in his Account and th at h e did not give any reasonable and sufficient explanation of how he managed to construct the property in qu est ion. Additionall y, that the Affidavit in Support of t h e Nctice of Motion clearly shows. that Char les Phiri had no other source of income. 2.37 Counsel argued that th e above proves the fact that Charles Phiri was in possession of Proper ty suspected to be Proceeds of Crime as h e failed to give prop er and sufficient explanation of where the money, h e used to construct the properties in issu e, came from. 2.38 That further, Counsel argued, it is clear from the income and expenditure analysis and the companson of known income tabulations shown for the period 1 st August, 2015, to 14 th March, 2023, that Charles Phiri had no capacity to poss ess a nd develop the properties in issue . J12 2.39 Counsel referr ed this Court to the case of Director of the Assets Recovery Agency Vs Szepietowski & Others (5 ) an d the holdin g of Moore -Bick W a t paragraphs 106 and 10 7 as follows: "106 When deciding what the Director must prove, it is important to bear in mind that the right to recover property does not depend on the commission of unlawful conduct by the current holder. All that is required is that the property itself be tainted because it, or other property which it represents , was obtained by unlawful conduct ... it is important therefore, that the Director should be required to establish clearly that the property which she seeks to recover, or other property which it represents, was indeed obtained by unlawful conduct." "109 In order to do that it is sufficient, in my view, for the Director to prove that a criminal offence was committed, even ifit is impossible to identify precisely when or whom or in which circumstances, and that the property was obtained by or in return for it. In my view Sullivan J. was right, therefore, to hold that in order to succeed, the Director need not prove commission of any specific criminal offence, in the sense of proving that a particular person committed a particular offence on a particular occasion.'' 2.40 Counsel subrnitted that .the Affidavit 1n -Support furthermore chronicled in vestigations which resulted . in the seizure of th e cited Property which are the subjec t of the Application as they are tainted properties as defined by S e ction 2 of the FPOCA . Counsel went on to define "se riou s offence" as provided for und er th e said Section. J13 2.4 1 It was conte n de d that the Proper ty is procee d s of crime in t h at t h e Interested Party has not given any suff icient explanat ion on h ow h e ac qu ire d the Prope r ty . Th at t hey ar e proceeds of cri m e an d s h ould be for feited t o the State. 2.42 Cou n sel subm itt ed that 1n the Kenyan case of Abdulrahman Mahmoud Sheikh and 6 Others Vs Republic and Others (6 l it was held that: "The lett e r, spirit, purpose and gravamen of the Proceeds of Crime and Anti -Money Laundering Act is to ensure that one doesn 't benefit from criminal conduct and that should a ny proceeds of criminal conduct be traced then it ought to be forf e ited , after due process , to t h e State , on behalf of the public which is deemed to have suffered some injury by t he c rim inal cond uct" 2.43 Counsel quoted Sec t ion 31( 1) of the FPO CA and submitted that conseque n tly, the balance of p roving that the Property is tainted or proceeds of crime is lower than in criminal matters. That the standard of p roof is on a balance of p r oba b ilities. Counsel subn 1itted that as set out in the preceding Sec tion, on a balance of probabi lities, from the evide n ce set out, it can clear ly be seen th at the Property in questlon are proceeds of crime. 2.44 It wa.s submitted that the offences of being in possession of property suspected of being proceeds of crime are serious offences because one can be sentenced to twelve months or more imprisonment vvhen found guilty . 2.45 Counsel submitted that in addition to the above, it is essential to add the tax component in t h is disc u ssion. Counsel subm itted that taxation can be defined as a process of raising revenue for th e Jl4 Central Governrnent through levy on income and gains of resident per sons. It was submitted that tax evas ion , on the other hand, can be d esc ribed as the illegal eva sion of taxes b y individuals, corporations and trusts. 2.46 Counsel argued that Charles Phiri deliberately misrepresented the true state of his affairs t o t he t ax authorities perhaps to reduce hi s tax liability. That such dishonest tax reporting is described among other acts as an act of tax evasion, an illegal activ ity in which a person or entity deliberat ely avoids paying a tru e tax lia bility and that those caught evading taxes are generally subject to criminal charges and substantial penalties. 2.47 Counsel submitted that in accordance with the Income Tax Act of 2018 , the Gene ral Pen a lty under Section 98 highlights the following: "Any person guilty of an offence against this Act shall, unless any other penalty is specifically provided therefore, be liable on conviction therefor to a fine not exceeding one hundred thousand penalty units or to imprisonment for a term not exceeding twelve months, or to both." 2.48 It was su brnitt ed that the Income Tax Act goes fu rthe r to outline the pena lty for fraudulen t r eturns as a form . of tax evas ion und er Section 102( 1) in the following terms: ''Any person who willfully with intent to evade or to assist another person to evade tax shall be guilty of an offence and on conviction shall be liable to a fine not exceeding three hundred thousand penalty units or to imprisonment for a term not exceeding three years, or to both." JlS 2 .49 In conclusion, Counsel urged us to adopt the r eas oning of Van Heerden AJ in the persuasive South African case of Kumarnath Mohunram & . Shelgate Inves.tments CC Vs The National Director of Prosecutions BOE Bank Limited & The Law Review Project (As Amicus Curiae) (7 l wherein she cited with approval the holding of the Supreme Court in th e Case of National Director of Public Prosecutions Vs RO Cook Properties (8l and submitted that th e Applicant has established on a. balan ce of probabiliti es that the Prop erty cited above are proceeds of crime . That the Affidavit and exhibits have placed sufficient evidence to satisf y the Court that th e Property s tate d a bov e are pro cee ds of crime. 2.50 It was Counsel 's prayer that t he Court finds th at the cited properties are tain ted properties and Orders th at the same be forfeited to the State . 3. THE RESPONSE BY THE INTERESTED PARTY 3.1 The Interested Part y filed an Affidavit in Opp os it ion wit h Lis t of Authorities and Skeleton Arguments on 16 t h May, 2 0 24. 3.2 Th e Affidavit in Oppo s ition was sworn b y Charles Phiri, the Int er este d Par ty herein, who b egun by stating that h aving viewed th e Appli cat ion of the Dir ector of Publi c Prose cution s (DPP) f:iJed into Court on 13 th Jun e, 2 02 3, and h aving b een adv ised b y his Lawyers, an d veri ly bdieving the same to b e true, he not ed the followin g issues: 3.3 Thal the purported Odginating Notice of Moti on do es n ot conform with th e prescribed form for a n Originating Not ice of Motion in th a t th e wor d s "R epublic of Zambia" follow ed by "Originating Notice of Moti-on" on top of the form , and the n ote "NOTE : It will not be necessary for you to enter an appe aran ce but if you do not attend J16 either in person or by your Advocate, at the time and at the place above mentioned, such order will be made and proceedings taken as the Court may think just and expedient." at the bottom of the form as conta ined in the Prescribed Form 11 in the First Schedule to the High Court Act, Chapter 27 of the Laws of Zambia , are missing. It was argued that by virtue of the depositions in Paragraphs 5 and 6 of the Affidavit in Support, the purported Originating Notice is irregu lar in substance for want of conformity with the prescribed form . 3.4 That Paragraphs to 8 and 10 of the Affidavit of Emmanuel Khondowe filed in Support are neither sworn in the first person nor do they disclose the source of the information depos e d to . 3.5 That exhibit "E~8" is no t certified to be a true copy of the origina l handwritten Stq.tement. 3.6 Charles Phiri ~vowed that he is a qualified Regis tered Nurse, with extensive experie nce in various institutions , including the Ministry of Health, Zambia Airways, and Zan1bart and that his professional t enure spans s ince 1990. 3.7 The Deponent averred that indeed the Bank Account Numbers 62545557780 and 62650398813 held at FNB are his, and the money cred ited therein is his. 3 .8 It was d eposed that in 2015, the Deponent applied for land ) being Property Number LUS/38478 situate in Lusaka, in the Lusaka Province, from the Minjstry of Lands Natural Resources and Environmental Protection (Ministry of Lands). 3 .9 That on 4Lh May, 2015 , h e was issued with an Inv it a tion to Treat with res pect to the said Property requesting him to pay the sum of ZM'vV2, 122.51 indicating that upon r emi ttance of the payment, the J17 Lands Departn1ent would generate and issue him with a formal Offer Letter, exhibited and marked "CPl". 3.10 It was deposed that on 5 th May, 2015, the Deponent paid the sum required and upon presenting the deposit slip, the Ministry of Lands issued him with an official Government of Zambia Receipt Number both exhibited and marked "CP2a" and "CP2b " respect ivel y. 3.11 The Deponent averred that on 1st June, 2015, the Office of the Commissioner of Lands issued him with a formal Offer Letter exhibited and rnarked "CP3". That following the issuance of the Offer Letter , the Ministry of Lands proceeded to issue him with the Certificate of Title No. 8508, exhibited and marked "CP4", with respect to the Property, then numbered as Stantj No. 38478. 3.12 The Deponent avowed that Mr. Edgar Chagwa Lungu , thereafter, offe red to develop the Property together with his ·own propert y which was lying adjacent to the Deponent 's Property by building a modern lodge thereon. 3.13 That the Deponent accepted the offer and Mr. Edgar Chagwa Lungu proceeded to develop the Property on the understanding that further to certain attainments , the Deponent would be allowed to receive rentals. A copy of the Land Use Agreement sign ed between Mr. Edgar Chagwa Lungu and the Deponent was exhibited and marked "CPS". 3.14 Charles Phiri avowed that contrary to the Affidavit in Support, he does not operate a business for which h e h as evaded any taxes . 3 .1 5 It \,vas sworn that in his Affidavit in Support, Mr. Emmanuel Khondowe has willfully conc eal ed the fa ct th at the D epon ent gave a voluntary Statement to him explain in g that it is Mr. Edgar Chag"l.va J18 Lungu who had developed the structures on the Deponent's Property and the terms on which he constructed the same . 3.16 That despite referencing and presenting Statements from other interviews, Mr. Emmanuel Khondowe has intentiona lly fai led or neglected to provide the Statement he recorded from the Deponent or disclose the exp lanation given to him during their interactions. That he has neglected to disclose a ll the material information the Deponent voluntarily shared with hin1 during the interrogation at h is Offices. 3.17 It was deposed that even by merely relying on the Deponen t's income as presented in the Affidavit in Support, it is not in dispute that at the material tirne of pur chasing the Property, the Deponent had overwhelming . capacity to acquire the said Property for which he needed to on ly pay less than ZMW3,000.00 to the Ministry of Lands. 3. 18 The Deponent averred that Mr . Edgar Chagwa Lungu was a Lawyer who . later served Government in various positions including the position of President of the Republic of Zambia for seven (7) years and as such, the Deponent has no reasonable basis for doubting his capacity to build the structu r e on his prop erty. 3. 19 It was d eposed that with regard to the construction and further to the above, the Deponent firml y believes th at Mr. Edgar Chagwa Lungu is likely to ·possess the most accurate inforn1ation regarding the full constr uction costs . · 3.20 It ·was deposed that having looked at the Priced Bill of Quantities in the Affidavit in Support, the same doe s not state the time period for the stated price estimates. Thai if the price estimates were as at November, 2 022 , then the Priced Bill of Quantities is rnateria l ly J19 misleading b ecaus e as at Nove mber , 2022, the str u ctur e h a d already been completed, occupied and commercially utilized . 3.21 That premised on the explanation above, th e Deponent avowed tha t his Prop erty is n eith er tainted nor is it a proce ed of crime a nd t h erefo re , the same is not liable for forfeiture to the State as ther e is no basis for forf eiting t he Prope rty cont rar y to the allegations in the Affidavit in Support. 3 .2 2 The Depo nen t s ubmitt ed that if Mr. Emmanuel Khondowe condu cted thoroug h in vest igati on s, h e wou ld have found that th e Depon ent is not run ning an y busin ess wit h respect of wh ich he h as evade d tax as a llege d in the Affidav it in Support. 3.23 Charles Phiri avowed th a t ind eed in 2021, h e so ld his lawfull y acqu ired property b eing F /Mpika/ 19129 33 at a consid er ation of USDl 00 ,0 00.00 , and that h e p ai d Prop erty Transfer Tax to ZRA and that there is nothing ill egal or irregular with him se llin g the said prope r ty in the manner h e did. That therefore, the d e posi tion s in the Affidavit in Support are imm ate ria) save to demonstrate that h e does lawfull y make substru--it iai mone y outside his for mal emplo ym ent a nd outside the moni es going through his Accounts r eferred to above. 3 .24 It was averre d that Mr. Khondowe's analysis of t h e Dep onent's know n income and known exp end iture an d ab ility to construct the said building on his Propert -y is unfounded as prior to thi s App lication, the D ep on en t had disclo sed to him the id ent ity of the Constructin g party, w hich informat ion Mr . , Khondow e chose to withho ld , the r eby, foster ing an arti ficial and unwarranted s u spicion. 3.25 The Deponent r eiterated that the Propert y is not tainte d as in any case, the App licant h as not brought any evid ence showing that the J20 said Propert y is connected to any crime whatso ever contrar y to the a llegations in the Affid a vit in Support . 3.26 The Deponent avowe d that he verily believes that the DPP cannot categorise his Property as tainted without the Court m aking suc h a determ ination; th a t the Prop er ty is lawfull y h is and does not form proc eeds of any crim e a s it was lawfu lly a cquired with legal and tr ac eab le sourc e s of income. 3 .27 In the Skeleton Argum ent s in Opposition t o th e Application for Non Con victio n Bas ed For feiture Order filed on 16 t.h May, 2024, Cou n sel for t h e Int erested Part y b egun by giving a summar y of wh at is contained in the Affidavit in Oppos it ion abov e whic h we shall not r ep ea t here . 3. 2 8 In obj ec ting to the pro visions of th e Appl icant 's Affid avit in Support offending the mandator y Rules of Court, Couns el subm itted that Pa r agr a phs 5 to 8 a nd 10 of the Affid avit in S u p p or t ar e n eith er swo rn in th e first p er s on nor d o th ey di s cl ose th e sour ce of in form. ation d epo sed to. Th a t Parag r a ph 17 of th e Affid avit is no t swo rn in th e fir st person nor do es th e Depon ent expr ess an y b e lief in th e inform a tion and that this appli e s to th e contents of exhib it "EK3 " r efer r ed to th er ein . It was furt h er s µ bmitt ed t h a t exh ib it "E~8 " is not ce rtifi ed to b e a true cop y of t h e origin a l h a ndwritten Stat em ent. 2 .29 Counse l cont end ed th a t th e for egoin g n on-co mpli a n ce in th e Ap pli cant 's Affid avit in Sup port viola t es m a n datory Rul es of Court for pre p a rin g Affid avits and pr ocee ded t o argue th e iss u es r aised wh ich we will n ot re produc e but h ave take n note o f th em. 2 .30 With regar d s th e r est of th e ar gum ent s c ontai n ed in th e S ke leton Argum ent s, Coun sel b egun b y s ubmitt ing on th e no velty of th e J21 proceedings und er th e FPOCA and the Zambian Jurisdiction. That the novelty of the proce e dings under the FOPCA has been acknow ledge d in the Supreme Court case of Austin Chisangu Liato Vs The People (9 l and in the High Court cases of Jessie Kapyelata Tapalu Vs The Attorney General (2 l and Bwalya Chitalu Kalandanya and Others Vs The Attorney General (IO)_ 2.31 In this resp e ct , it was Counsel's submi ssi on that the point being made is that pro ceedings of this kind curre ntl y before this Court are in the realm of unsettl ed jurisprud en ce and as suc h , the Court is urged to app roach the int erp r etation of the law in a way that will reflect th e int ention of the Legislature as expressed in the FPOCA. 2 .32 It was s ubmitt ed that the Court s hould not tightl y constrain itself by the emerg ing jurisprud en ce th at thi s Cou rt finds to b e incons istent with the exp r ess provisions of th e Statute. Th e Court was b ese eched to seek the true mean in g of th e prov1s10ns presented to it for int erpretation. 3.33 \1/hen it came to the basis of the DPP's Application, Counse l quoted Sections 29 and 31 of the FPOCA a nd contende d that pursuant to Section 31, in order to make a n. appl icat ion such as th e one present ly befor e Court, th e DPP shou ld , firstl y, demonstrate, on a balance of probabilities , that the assailed p ro perty is tainted as defined u nder Section 2 of the FPOCA . Counsel sub mit te d that Section 31(2) of the FPOCA accords an innocent party with a sta tuto ry d efe nce. 3.34 It was subm itted th at th e DPP has not demonstrated that the Int erested Part y's Property subject t o this Application -is tainted within the statutory meaning of 'tain t ed property' . Further, t hat even if the DPP demonstrated that th e Property was tainted, th e Interested J22 Part-y's Properties fall within the parameters of Section 31(2) of the FPOCA, and as such, forfeiture cannot lie against the Property, and to do so would fly in the teeth of mandatory statutory defence. 3.35 Counsel contended that by virtue of the cited provisions of the purported Originating Notice of Motion, the DPP seeks to have the Properties forfeited to the State on allegations that it is tainted in line with Sections 29 and 31 of the FPOCA. That in this regard , it is cardinal to highlight that the phrase 'reasonab le susp icion' does not appear in both Sections pursuant to which the present proceedings have been brought. 3.36 twas Counsel's submission that an application under Sections 29 and 31 of the FPOCA cannot be premised on 'reasonable suspicion ' but on evidence proving that, on a balance of probabilities, the property sought to be forfeited to the State is indeed tainted. That the OPP has not discharged the evidential burden of proving that the Property is tainted as required by law. Tha t on this basis a lon e, th e DPP's Application should be held to lack merit and therefor e, this Court should dismiss it wit h costs. 3.37 Counse l went on t o distinguish between the FPOCA's Sections 29 and 31 on one part, and Section 71 on the oth er, and submitted that th e Applicant has placed reliance on Section 71 of the FPOCA, but however that there is a clear distinction betwe en the FPOCA 's provisions in Sections 29 and 31 , and those of Section 71. 3.38 Counse l was fortified b y the fact that th e statutory defenc es applicab le to matters under Sections 29 and 31 are different from the statutory d efenc es a pplic a ble to Section 71 offence found in subsection (3) and in1plored this Cou rt to rule that the present Appli cation is premised on Section 29 and 31 of the FPOCA an d not J23 on Section 71 . Th at in an.y case, t h is Cou r t h as no juri s dicti on t o make any forf eiture Ord ers unde r Section 71 w h eth er und er criminal procee din gs or civil for feitur e p r ocee din gs . 3 .39 Counse l d efin ed jur isdi cti on a nd cited th e Supre m e Court cas e of Godfrey Miyanda Vs The High Court 111l and th e guid a n ce th er ein as follows : "The term 'jurisdiction' should first be understood. In one . sense, it is the authority which a court has to decide matters that are litigated before it; in another sense, it is the authority which a . court has to take cognizance of matters presented in a formal way Jar its decision. The limits of authority of each of the courts in Zambia are stated in the appropriate legislation." 3 .40 In th is r ega r d, Counse l arg u ed th at u n der Section 71 of the FPOCA , there is no .pr escri b ed power prem ised on whic h thi s Court can d r m;\r J urisd iction to make t he Forfeitu r e Order bein g sought by the OPP against the In te reste d Part y's Proper ty and th erefor e Non -Conviction bas ed Forfe iture p r oceed ings can n ot be b r ou ght u n der Section 71. 3.41 Counse l argued th a t ul timat ely, this Court's presc ribe d jur isdiction to forfe it prop erty to th e Sta t e is fou nd und er Sections 29 an d 31 of the FPOCA . Th a t it is therefo r e, arg u ed that it is m isleadin g for the OPP t o fin d so lace in Section 71 of th e FPOCA in a dvanc ing its Application. 3.42 Counse l s ubmitt ed t h at the Zamb ian Consti t ut io n gu arante es the sanctity of prop erty ownersh ip unde r Art icle 16- and cannot be D.brogated excep t in the .cir culnstan ces express ly provide d un der Artic le 16 (2). Couns el submi.tted that therefore, co n stitutionall y, the Interested Part y in .casu can not be d eprive d of th eir propert y J24 unless by way of penalt y for breac h of any law as that would be unconstitution a l. . . 3.43 Counsel argu ed that in this regard, and in line with Article 16(2)(b), under Section 29 and 31 of th e FPOCA, th e DPP should have d emons trat ed that the Interested Party breached the law or indeed that the Property h as been us ed or is intended to be use d in a cri m e and a s a result, the Forfeiture Order b eing sought is a penalty for breach of a spec ified provision of the law . 3.44 Counse l submitted th a t in other words, if the Court finds that Sections 29 a nd 31 or ind eed 71 or any other provisions of the FPOCA provides for forfeit ing of property with ou t the DPP proving that a p art icular offence was committed, the Court s hould de clare such a pro vis ion ultra virus Article 16 (2)(b) of the Constitution. 3.45 Cou n sel subm itted that the a bove-me nti on ed Sections are co nstitutional in that th ey require that when making an ap pli cat ion , a public prosecutor must provide evidence to s ho w that th e propert y he or she is app lying to b e forfeited to th e St ate is tainted with in the statuto ry definition of 'taint ed prop erty', t hat is to say, the said property was used in t h e comm ission of a crime. 3.46 It was submitt ed that acco rdin g to Section 31 of the FPOCA , t h e DPP must specifical ly prove the elements of tai n te d property by producing ev idence and the Court should be sat isfied as such on a balance of probabilities. 3.47 Counsel quoted S e ction 34 of the FPOCA and subr nitt ed that in this respect, the phrase 'matters necessary' refers to the elements of t h e cri1ne of tainted property as d efined b y Section 2. 3.48 Counse l argued that from the word ing of Sections 31 and 34 of the FPO CA, the OPP cannot make an appl icat ion for a Forfeiture Order J25 without first proving and satisfying the Court that the Interested Party's Properties are taint ed. That the Court mus t first declare that the Property is tainted. Only thereafter, can the DPP or any other law enforcement institution mak e a discretionary application for a Forfeiture Order relating to the Propert y. Further , that neither th e OPP nor an investigations officer has jurisdi ction to declare any property tainted pre -empti vely. 3.49 In demonstrating that the DPP's App lication fails to meet th e statutory thresho ld stipulated under Sections 29 and 31 of the FPOCA to warrant the rnaking of a Forfeiture Order by this Court, Counsel begun by submitting that the tvvo Sections are couched in discretionary terms in that the y both use the term 'may'. That in this regard, the prosecutor 'may' apply and even when the Court finds the subject property is tainted, 'may' order that such property be forfeited to the State . 3.50 Counsel referred this Court to the definition of 'tainted property' and 'relevant offence' under Section 2 of the FPOCA ,and submitted that having demonstrated that th e jurisdiction of this Court is not limitless and that it ought to be exercised in accordance with the law , Counsel contended that from Section 29 and 31 , the only basis on which this Court can make a Forfeiture Order i·s upon being satisfied that such propert y is tainted property. 3.51 It ,vas submitted that Section 2 of the FPOCA sets out the eleme n ts which the DPP must prove before this Court to demonstrate that the subject Property is tainted . That taking in to consideration the definition of 're levant offence', it becomes irresistibly clear that the DPP should demonstr-ate a connection betvveen the Property sought to b e forfeited and the relevant offence. J26 3.52 Counsel submitted that it would appear that the present matter presents this Court with the first opportunity in our jurisdiction for the Court to consider the nexus between the FPOCA's Sections 29, 31 together with the Section 2 definitions of 'tainted property' and 're levant offences' which clearly demonstrates that a propert y can only be declared tainted upon the rel evant offence being proven to the court with evide nce led on a balance of probabilities. 3.53 It \Vas sub1nitted that what is runni ng through a ll the elements of tainted property is that there should b e an offence and property shou ld be connected to that offence. It was .argued that under Section 2 of the FPOCA, it is cardinal that the grou nds upon which th e DPP claim s that the propert y is tainted are stated and proved by evidence being either that the property has alread y b ee n used in the comm ission of an offence, or in connection with the cornmission of an offence, or th e OPP mu st demonstrate by way of evidence that there is intention on the part of the Intere s t ed Party to us e the Property in connectio n wi th the commission of an offence. 3.54 Counsel su bmit ted . that -if the OPP makes no reference to the con1m ission of a specific offence as dire cted by Section 2, as is the case in present Proceedings, th en this Court is co n straine d to make a Forfeiture Order. 3.55 Counse l submitted that it follows that the only reason property can be forfeited to the State under Sections 29 and 31 of the FPOCA is that it is declared tainted an d property can only be declared tainted if it is connected to a ser ious crin1e. That the OPP had the obli gat ion to prove that connection by providing evid ence directed at m eeting this threshold first . Couns el contended that without such evid ence, J27 as 1s 1n the present case, th e Court cannot decide based on conjecture. 3 .56 Counsel was fortified by the guidance of the Supreme Court in the case of Rosemary Chibwe Vs Austin Chibwe (12 l wherein the Court he ld that: "It is a cardinal principle supported by a plethora of authorities that court's conclusions must be based on facts stated on record." 3 .57 In a similar vein, Counsel further cited the case of The Attorney General Vs RQy Clarke (13 l wherein the Supreme Court frowned upon the trial Judge's finding whic h were not based on evidence on Record. 3.58 Counsel reiterated that this Court should religiously follow the guidanc e of the Supreme Court and only decide or make conclusions as to whether the besi eged Property is tainted -based on the evid ence before it and that no Ord er or conclus ion should be made which is not supported b y such evidence on Record . 3 .59 Counsel submitted that th e foregoing is also the interpr etation obtained in South Africa and reflected in the cases , relied on by the App licant, of Simon Prophet Vs The Director of Public Prosecutions (1l and Kumarnath Mohunram and Another Vs The National Director of Prosecutions Case (7) , and further referred us to the provisions of the primary South African legislation th a t gives th eir court's jurisdiction to make forfeitur e ord ers being the Prevention of Organised Crime Act Number 121 of 1998 (POCA) which deals wit h civil recov ery of propert y . 3 .60 Counse l quot e d Sections 38( 1), 48( 1) a nd 50( 1) of the POCA and gave a brief su:mmar y of the facts in the cases of Simon Prophet and Kumarnath Mohu.nram. Counse l submitted that in both cases the J28 Court was able to refer to the properties the National Director of Prosecutions sought to be forfeited as instruments of crimes because the properties were specifica1ly connected to a particular defined and proven offence. 3.61 It was submitted that in casu, there has been no demonstration as to how the Properties sought to be forfeited are connected to any crime. 3.62 Counsel argued that a carefu1 construction of the FPOCA reveals that even in Zambia, a propert y cannot be d eemed tainted and therefore, liable for forfeiture without demonstration by way of evidence that the property is connected to a specified crime. That under the FPOCA, a Forfeiture Order cannot be based on conjecturer, and mere suspicion no matter how high or reasonable such suspicion can be and that that is the intention of the Legislature as expressed under Sections 29 and . 31 of the FPOCA. 6.63 Counsel submitted that the DPP is under an obligation to prove that the Property is tainted by connecting them to a specific offence by evidence and the standard of proof is on the balance of probabilities, that therefore, • the DPP cannot casually refer to propert y .as instrum ents of crime or as tainted properties without proving the comm1ss10n of any crime, relatin g to or in connection with such property. 3.64 It was Counsel's su bmission that comparative to the way the POCA is being . interpreted and enforced in South Africa, a property liable for forfeiture must be con ne cted to a crime, it must be proved to be an in strumenta lity of cri n1e by violating or offending any law and only then can the National Director of Prosecutions institute an applicat ion for an order for forfeiture of such property. That wit hou t J29 citing any sp ecific facts as violating any pred efine d law, the DPP herein h as p rocee d ed to n1ake th e Application that the Prop erties b e for feited t o th e State. 3.65 Counsel , in this regard, bese eched this Court to hold that the Application presentl y b efore us is misconc eived and ought to b e dismissed. 3.66 Counsel for the Int erest ed Par ty submitted on the ambivalence and casua l misus e of diff erent terms interchangeably. It was submitted that in the Appli catio n before Cou r t at page 2, upon citin g Section 29 of the FPOCA, t h e DPP has argued tha t civil forfeiture pro vides a unique remed y for com b ating 'organised crime'. That the DPP th en slides into finding fortification in the South Afri can jurisprud ence as pronounced in the Simon Prophet case, supra. It was Counsel's argume nt th at while promin entl y used in the POCA , the phras e 'organised crime' do es not exist in th e FPOCA and therefo re, the r e is no such crim e under th e FPOCA . That similar ly, the facts pertain ing to wha t a mounts to organised crime as was the case in the Simon Prophet case are far from r esem blin g the facts as outli n ed in the case in casu as the OPP points to no cri m e as h aving been committed by the Int erested P arty . That the r e is no similarity between th e facts in the Simon Prophet case and this case a t a ll. 3.67 Counsel submitted th a t at page 4 of the DPP's Skeleton Arguments, the follow ing arguments have been p roffered: "On the case in casu, the Notice of Motion for non conviction based forfeiture order against tainted properties is supported by an affidavit deposed to by one EMMANUEL KHONDOWE filed herewith . The affidavit shows that the properties in issue are proceeds of crime J30 as they are above the net worth of the interested parties." (Emphasis theirs) 3.68 Counsel contended that the phrases 'tainted property' and 'proceeds of crime', while- sounding enticingly similar, the Statute has distinguished their meanings with an Application such as the one before this Court being justified only if it can b e proved the property is tainted. 3.69 Further, that there 1s no law in this Country prescribing that if a person h as property whose value is above the net worth of a person in so .far as is known to a law enforce ment officer, then such propert y turns into proceeds of crime or tainted property; that the learned DPP has not cited any statutory provision or case law to support such a submission. 3.70 It was submitted that law enforcement officers are obliged to enforc e the law as enacted and not as they imagine, perceive or wish the law to be. That having combed the entire FPOCA , there is nothing therein wh ich turns the Property under siege into proceeds of crime just because it has a value higher than a law enforcement officer can trace or declare as. 'kno wn to him', non e whatsoeve r. 3.71 It was Counsel's further submission that having demonstrated that the Proceedings before this Court are anchored on Sections 29 and 31 of _the FPOCA, h e contended that i.t is a misdirection or rather misleading for the DPP to resort and belabour referring to the provisions of the Anti-Money Laundering Act and this Court was urged to hold as such. 3.72 With regard to statutory defence, Counsel submitted lhat in his Affidav it filed in Opposition to the Application for a Forfeiture Order , the Interested Party has deposed that he had and still has no J31 reasonab le bas is for bel ieving that the Property is tai n ted within the meaning of the FPOCA. That he express ly stated that the Property was developed by h is nephew, Mr . Edgar Chagwa Lungu and that he h as no reas onab le gro u nds to believe tha t Mr. Edgar Chagwa Lu n gu could not manage to deve lop the Property to the level it is now. The Interested P arty has equally deposed that he has no reasonab le gr oun d s to believe tha t p r ior to acqu iring the Property, it was tainted. 3.73 Counsel submitted that in the circumstances of the case therefore, in the unlikely event that the Cou r t finds that there was anything tainted about the prope r ty prior to th e Interested Party purchasing the sarne, then, by virt u e of Section 31(2) of the FPOCA , this Court should hold that it cannot Order forfeiture of the Interested Party's Prope r ty herein. 3. 7 4 Based on the foregoing, Counse l ref erred the Court to the case of Regin a Chi fu nda Chiluba Vs The Pe ople P 4 l wherein the Three Panel High Court, sitt ing in its criminal jurisd iction, espoused the princip le that once the evidence shows that the Prosecution knows the origin of the thing, then there is no suspicion., should be applied to the present case. 3 . 75 It was argued that the Interested Party herein has informed this Court that he told the Investigating Officer how the Property was deve loped .. That therefore, it is unreaso n ab le for t h e Investigating Officer, having been furnished with undisputed evidence as to the arrangement sur r ounding the deve lopment of the Property, to then purport to harbour 'suspicions' as to the source of the Property as he had a lready been informed. 3 .76 With regard to t h e authorities relied upon by t he OPP, Counsel referred to the case of Jessi e Ka pye lata l2 l raised by the DPP, and J32 subm.itted that the Court in that case was dealing with a question of the constitutionality of Sections 29 and 31 of the FPOCA and held that the provisions were constitutiona l and did not contravene Article 16(2)(b) of the Zambian Constitution as amended by Act No. 18 of 1996. Counsel argued that in this regard, Sections 29 and 31 if interpreted to mean that for the Court t o Order forfeiture there is need to prove that the Property is tainted by being connected to a crime. 3 .77 It was contended that this is the only way the provisions can be said to be constitutional and in accordance with Article 16(2)(b). That in other words, shou ld the Court interpret Sections 29 and 31 as entailing that a Forfeiture Order can be issued even if it is not proven that the Property is connected to a crime, then such an interpretation would r ender the provisions inconsistent with Article 16(2)(b) which requires that the law under which property can be taken away from the owner can be 'by way of penalty for breach of any law, whether .under civil process or after con ;viction of.an offence'. 3.78 In conclusion, Counse l submitted that it has be en d emonstrated that for a property to qualify as tainted propert y, any of the three elements being either that (a) propert y was used in, or in connection with the comm ission of a serious offence, or (b) the property was int ended to be used in, or in connection with the commission of a serious offenc e, or (c) the proceeds of th e offence must be proved and that when used without reference to a particular offence means tainted property in relation to a setious offence. 3 .79 That it has be en den1onstrated that when .compared to th e South African legal framework of similar legislation, an app licatio n cannot lie to forfe it property und er Sections 50(1) and 48(1) of the POCA J33 unless the owner of the property has used the subject property in violation of the law thereby qualify ing it to be tainted property. 3.70 This Court was urged to hold that the DPP's Application has failed to outline what offence was committed by the Interested Party in connection with which the Property is sought to be forfeited to the State and as such, the Court's powers under Sectio n 2 9 and 31 of the FPO CA cannot be invoked. That such an Application cannot stand premised on feelings but on the facts pla ced on Record. 3. 71 Counsel submitted that it has a lso been demonstrated that the provisions of the Affidavit which violate the mandatory Rules of Court shou ld not be ad1nitted into evidenced but expunged from the Record of Court . 3.72 Counsel submitted .th at the DPP brought no piece or trace of evidence pointing to either of the four elements of tainted property as such, the standard required by Sec t ion . 31( 1) and 34 of the FPOCA ,has not been met; as such the Court is be see ched . to dism iss the Application with costs to the Interested Part y . 4. APPLICANT'S REPLY 4.1 The Applicant filed an Affidavit in Reply to the Interested Party's Affidavit in Opposition on 18 th June , 2024, . and the same was sworn by EMMANUEL KH ONDOWE who, having reviewed the Affidavit 1n Opposition sworn by Charles Phiri, responded accordingly. 4.2 Th e Deponent avowed that it is admitted tha t the Originating Noti ce of Motion is not in conformity with the pres cribed fonn , but having been a dvised .by Coun s el and verily beli eving th e same to b e tru e, th a t non conforrnity does not go to substan ce but form. · J34 4.3 It was deposed that the issues raised above were earlier raised by the Interested Party as Preliininary Issues and the Court pronounced itself on the same, which have now been raised again. 4.4 The Deponent avowed that it is admitted that Paragraphs 5 to 8 and 10 of the Affidavit in Support are not in the first person and do not disclose the source of the information deposed to, and that on the advice of Counsel and verily believing the same to be true, non disclosure goes to the weight to be attached to the averment , rather than its admissibility. 4.5The Deponent acknowledged the deficienc y in exhibit "EK8", which lacks certification as a true copy of the handwritten Statement, but havin.g been advised by Counsel and verily believing the same to be true , the defect is curable and the Affidavit can b~ received by the Court on ce it is cured accordingly to confirm its authenticity. 4.6 lt was averred that exhibit "CPS" does not show any proof of payments of rentals or con1pensation payable to the Landov .rner which directly contradicts the assertion th at the Lando wner would . receive rentals based on certain attainments. That having obtained a Statement from the Inter es ted Party before the Proceedings were co mmenced , the Deponent averred that the Inter este d Party never indicated that he had a . contract with the forn1er President, Mr. Edgar Chagwa Lungu . 4 .7 That further to the above, the said exhibit "CPS " is a Land Use Agreement w hi ch ivas created eight (8) years after the a lleged verba l agreerr1ent and only when the Int erested Party was faced with a forfeiture application. · 4.8 Further, it was avowed that the Int erested Party has not exhibited proof t o show the registration of th e Lease Agreement as required by la\V. J35 4. 9 The Deponent avuwed that he did not conceal any information but disclosed all the material information that the Interested Party informed him of and what he gained during investigations. 4 .10 Emmanue l Khondowe deposed that he admits that the Interested Party had capacity to purchase Lot LUS/ 38478 for less than ZMW3,000.00 and that the same was lawfully acquired, but contended that there are no clear, traceab le, and legal sources of income used for the de velopment of the Property . 4.11 It was deposed that Mr. Edgar Chagwa Lun gu's alleged distinguished career as a Lawyer and his subsequent service in various Government roles, -including a 7-year tenure as President of the Republic of Zain bi~, does not, ipso facto, establish his capacity to develop the Property in question. That the Interested Party has not exhibited any proof to show that the fonner President of the Republic of Zan1bia, Mr. Edgar Cha~N"a Lungu . developed Lot LU S/38478, and there is nowhere that the Interested Party has shown that the former President transferred money from any -bank account or d irectly paid for the construction of the Propert y. 4.12 The Deponent averred that the former President has not entered appearance as ai1. Int erested Party in this matter to categorica lly state that the Property is his , and to show the source of-his income to construct the Property. 4 .1 3 Further, that Chiyeso Lungu, ·who is shown to be a Director in the Lodge, has not ente red Appearance in this Matter as an Interested Part y . A copy of the Pate nts and Companies Registration Agency (PACRA) Printout was exhibited and marked "EKl" . . 4.14 It was deposed that Mr . Charles Phiri has a lso distanced himse lf from the Property., and that therefore, the Property is not being J36 claimed by any Interested Party in Court and should rightfully be forfe ited to the State. 4.15 The Deponent averred that the Priced Bill of Quantities explicitly states that the price estimates are as at November, 2022, and that the assertion that the Priced Bill of Quantities is materiall y mi.sleading is unfounded, as the docum .ent clearly denotes the time frame of est imates. That further, the completion, occupation, and comme rcial utilization of the structure by November, 2022, does not negate the validi ty of the cost estimates provided for that period . 4.16 It was the Deponent's contention that the Property in question 1s tainted property and reasonably suspected to be proceeds of crime . It was averred that the Int erested Party was involved in tax evas ion. 4.17 The Deponent avowed that he adm its that the Interested Party sold property F/Mpika/1912933 for USDl00,000.00 and paid Property Transfer Tax but that however, he disputes that his ave rments in Paragraphs 31 and 32 of his Affidavit in Support which speak to the sale of the said property and the analys is of the ·Interested Party's known income and expenditure for the period lsi August, 2015 1 to 8 th June, 2023, a re imm ateria l and serve to demonstrate that the Jnterested Party makes substantial money outside his formal emp loyment. 4 . 18 It was averred that the information regarding the construction was disclosed, yet the fir1ancial transactions and sources of funding for the deve lopment of the Property remain highl y suspicious . That the detailed analysis shown in the Affidavit in Support justifies the concerns rais ed,. regardless of th e disc losed identit y of the constructin g p arty . J37 419 The Deponent avowed that the Property subject of the Application is tainted property and that substantial evidence has been brought to show that the Property is connected to a crime in that it is reasonably suspected to be proceeds of crime. 4.20 The Deponent averred that on the advice of Counsel, and ver ily believing the same to b e true, that the OPP can categorise property as tainted property as provid ed by law . 4 .21 In the Skeleton Arguments of even date , Counsel for the Applicant gave a . background to the Matter as already submitted above and stated that Mr. Charles Phiri, the Interested Party herein, has had a career as a Registered Nur se, with a professional t enure spanning over four decades having worked in various institutions such as the Ministry of Health, Zambia Airways and Zambart since 1990 . 4.22 That according to industry benchmarks, a mid -career Registered Nurse can expect a total compensation package averaging Zl'v1K75,000.00; based on data from 9 salaries, equivalent to approximately ZM\V8,330.00 per month. 4 .23 It was Counsel's contention that the Int erested Party lacked the financ _ial wherewithal to develop the Property. That despite asserting that the developments on the Property were constructed by forrner Presiclent Mr. Edgar Chagwa Lungu and he only provided the bare land thereby distancing himself from the Lodge or any dealings with it. ' 4.24 It was submitted that. th e Interested Party raised several other conte ntions .,iv·hich Counse l ad dressed as follows: 4.24.1 Use of Defective Affidavits in Legal Practice Counsel acknowledged and admitt~d the defects 1n their Affidavit in Support as well .as the fact that the exh ibited -"EKS " J38 lacked certification as a true copy . They argued that the defects pertain to form rather than substance of the evidence presented and are curable and presented arguments and authorities to support their assertions. We have taken note of the same and will not repeat them here. 4.24.2 Counsel submitted that Order V Rule 14 of the High Court Rules empowers the Court to allow the amendment and re swearing of the defective affidavits, ensuring that procedural defects do not impede the administration of justice. Counsel subrnitted that he respectfully seeks the Court's Leave to re swear the Affidavit in Support to correct its formal defect. 4.24.3 Argument Against Admitting Exhibit "CPS" The Applicant submits that exhibit "CP5", purportedly a Contract b etween the Interes ted Party and Mr. Edgar Chagwa Lungu , is inadmissible as it vio lates leg a l principles and potentially constitutes fabricated evidence, a crimina l offence punishable w ith imprisonment for seven (7) years under Section 108 of the Penal Code and tampering with evide nce. 4.24.4 It was submitted . that th e Contact was draft ed and executed on May 2 nd , 2024, coinciding with the Interested Party's prepar ation of their response to the Application for a Forfeiture Order, despite the Originating Notice being filed on June 13Lh, 2 023. It was contended that thjs suggests an afterthought , and the Court shou ld prevent the san itisat ion of potentia11y fabricated evidence. 4 .24 .5 Counsel s ub mitted that the Interested Party's decision to execute a contract a year after the matter commenced , and their failure to disclose any information regarding a_r1 oral contract during the investigation .and in the Statement recorded, raises ser ious J39 concerns. It was suggested that this constitutes fabrication of evidence, and the Court should disregard exh ibit "CPS" in its entirety. 4.24.6 It was submitted that based on the provisions and requirements of Section 30(b) of the FPOCA , the former President has not shown any interest in the Property. It was contended that only the Interested Party has shown interest in the Property to the extent that he purchased the land, and he h as distanced himself from the developmen ts thereon , therefore, as it stands, no one has shown interest in the developments on Property No. LUS /38 478. 4.24.7 Counsel submitted that the Prop erty in question is tainted property as there has been no evidence that has been adduced by the Interested Part y to the effect that the forrner President d eve loped the land; that the Property is in the name of the Interested Party and he bears the onus to show how he developed the land arid a mere statement that it was developed by the former President is not sufficient to prove that it is n ot tainted property. 4 .24 .8 Counsel then proceeded to submit r easons for non-adm.ission which were that the timing of the creation of exhibit "CPS" raises serious issues of fabricating and tampering with evidence, that the same was a violation of legal principles and inconsistent with standard business practices. 4.24.9 Counsel submitted that the exhibit "CPS " lacks independent evidence to corroborate its authenticity or the terms of the alleged oral agreernent and contravenes rules of evidence . That there are no con temporan eous records, wit ness es, or other documentation supporting the existence of this agreement prior to its recent and untimely drafting. It was Counsel's contention that w itho ut J40 verif iable evidence, the Court cannot reasonabl y rely on exhibit "CPS" as credible. 4.24.11 It was further submitted that admitting "CPS" would unfairly prejudice the Applicant's case by introducing new evidence at a late stage in the Proceedings and would deprive the Applicant of the opportunity to adequately challenge t h e authenticity and veracity of the Contract resulting in an imbalanc e of legal rights and r emedies 4.24 .12 Counsel submitted that investigations revealed that the deveiopment costs of the Property far exceed the Inter ested Party's financial means and the financial outlay required for the Property's development remains unexplained casting doubt on the Interested Party's claim of having over wh elmin g financial capacity to both acquire and develop the Property within the declared means. 4.24 . 13 It was submitted that despite the Int erested Party's assertions, includin g claims . regarding Mr. Edgar Chagwa Lungu 's development of the Property, concrete evidence such as financial transact ions and formal agreements with suppliers fo r the Property's constructio n is r equ ired to substantiate their claims. That the lack of such evidence leaves significant questions unanswered. 4.24 .1 4 Counsel arg u ed that the corn erstone of any legal system is the principle that claims must be substantiated by credible evidence. It was s.ubmitted that the Int erested Party's role was to demonstrate the legitirn.ate acquisition and development of th e Property . That ,.v-hile the Interested Party has provided sufficient evidence regarding the · acquisitio n of the land, his exp lanation .141 concerning th e d ev elopment of the land 1s insufficient and unsubstantiated. It was submitted . . that the stark contrast between the detailed evidence of land acquisition and the complete lack of evidence for the Property development raises serious concerns about the source of the mone y that was used to develop the land. 4.24.15 Counsel submitted that mere statements are insufficient to establish facts, especially in cases involving substantial financial transactions and proper ty development . Counsel referred us to Murphy on Evidence , where it was emphasised that the burden of proof lies w ith the party making the allegation ; that the lnter est~d Party's failure to provide such evidence falls short of this lega~ standard. 4.24.16 Col1nsel cited _the case of Kabwc Transport Company Limited Vs Press Transport Company Limited l 15l wherein the Court underscored the necessity of presenting concret e evidence to support on e 's c1airns. It w a s argued that th e abs ence of eviden ce in casu , m eans that the lnter ested Part y h as not m et ·the required s tandard .of proof. 4.24.17 Counsel further cited the case of Shamwana and Seven (7) Others Vs the People 1.16} t h a t it illustr ates th a t do cum entary evidence is crucial in establishing the vera city of claims. It wa s s u b mitted that th e Interested Part y 's inabilit y to provide such evidenc e for prop erty dev elopm ent signifi cantl y und ennines his p osition. 4.24.1 8 Coun sel submitt ed th a t despit e th e Inter e sted Party's ass ertions that the Priced Bill of Qu a ntiti es do not state t he tim e p eriod for th e s t a t ed pric e es tim ates, th ey expli citly sta te t h a t th e pr ice J42 estimates are as a t November, 2022 . That the costs listed reflect the market valu e s as at that specific tim e, providing an accurate and relevant financial reference for evaluatin g the Property's development expenses and any claims to the contrary lack substantive merit. 4.24 . 19 Counse l submitted that the Prop erty is suspected proce eds of cri1ne . He cited the case of The People Vs Fredrick Chiluba !171 whe re the former Presi d ent Fredrick Chiluba was . t ried for th e theft of public funds and the Cou.rt emphasised that prop ert ies and assets obtained through th ese stolen funds were proceeds of crim e . Couns el submitted that this includes suspicious financial transactions and activities, as well as unexplained sources of ~ncome linked to the Prop erty's d evelo,pm ent. 4.24.20 I t was submitted that t h e sale of propert y F / Mpika / 1912933 and the payme nt .of USDl 00 ,0 00.00 and Property Transfer Tax to ZRA is an o_th er red flag. Counse] conte.nd ed th at the profile of Charles Phiri, a .male nurse who was lar gely emp loyed by the Ministry of Health (essentially a civ il servant ) wit h a sala ry, raises serious susp icions a s to wh ere and how such a person co uld h ave been ab le to afford a prop er ty for which attracted such Property Tran sf er Tax. 4 .24.21 It \Vas s ub m itt ed th at the susp icion becomes cogent when a s ked how he acquired , th e Property , he poin ts to the former President w ho · in turn does no t enter appearance, does not exp lain the source of his -mone y and ho w h e d eve lo ped th e Property. It ·was sub rni tted that un exp lain ed funds and financial inconsist encies highli ghted in the supporti n g Affidavi t remain relevant, indicating potential ille gal activ ity with the reversible burde n of proof placed in the Int eres ted Part y to disprove. 4.24 .22 Counsel went on to r eiterat e his earlier submission on detai led analysis and lack of financ ia l transactions with regards to the d eve lopm ent of the Propert y, as well as th e substantial evidence that links the Proper ty to crime and submitted that the evidence supports a r easonable su s picion that th e Property i.s conne cte d to crimina l ac tivities , warran ting ser ious cons id eratio n for the Forfeiture Application. 4.24.23 In con clu sion, Cou n sel s u bmitt ed th at the Applicant has p resente d ample evidence to support th e reasonable suspicion t hat the Propert y is taint ed and connected to crimina l activities and is a proceed of crime. It was submitted that th e Int erest ed Party must prov id e· concrete evi d ence t o substantiate his claims abo ut the Pro perty 's acq ui siti on and d eve lop ment .. That \Vithout such proof , his assertions ren1ain un convi n cing and fail to address the substant ial financ ia l ano m alies and unexplained wealth id ent ified in th e investigations. 4.24.24 Counsel co ntend ed th at exclu din g the suspicious evidenc e and ens uring t horou gh scrutiny of all claims · is essen tial to maintaining public trust in the legal system an d preventing potential abuse of pro cess . That the Court must car efully consider all evidence presented a nd ensu r e that j us tice is served. 5 . HEARING 5. 1 Th e Hearing of th e Originatin g Notice of Motion was held on 23r d Jul y , 2024, and present before Cour t was Couns el fo r the Applicant and th e Int er e sted Party. J44 5.2 In augmenting their s ubm issions, Counsel for the Applicant, Mrs. Margaret Kapambwe Chitundu, begun by submitting that she wished to bring to the attention of the Court, the Court of Appeal of England and Wales' case of RVs Ilham Anwoir, Brian McIntosh, Ziad Meghrabi and Adnan Elmoghrabi (18 ) as heard by Lord Justice Latham 1 Mr. Justice David Clerk and Mr. Justice MacDuff, at Paragraph 21 which reads as follows: "We consider that in the present case the Crown are correct in_ their submission that there are two ways in which th.e Crown can prove the property derives from crime, a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or b) by evidence of the circumstq.nces in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived fron1 crime." 5.3 Counse l further . referred the Court to the High Court of Ireland case of Criminal Assets Bureau Vs James Gately and Charlene Lam (19) and submitted t.hat follo wing the reasoning of these two cases, it was Co un sel's submission that the circu rnstanc es in which the subject property was found in t he possession of Mr. Charles Phi r i leads to an irresistible inference that it is a proceed of cr.ime. 5.4 Counsel submit t ed that the investigations in this Matter point ed to the Lodge , the subject Property, being in the possession arid control of. Mi-.. Charles Phiri. 5.5 It was submitted that possession in itself is an exclusive claim to the property against the who le ·world because by being in possession of J4S the property, a person decl ares to the whole world that the property belongs to him/he r. 5.6 Counsel submitted that Section 71 of the FPOCA creates an offence of being in possession of proceeds of crime, and that Section 71 in itself is complete in creating the offence of being in possession. 5.7 It was submitted that contrary to what was decided in the cases of Sydney Mwansa Vs The Director of Public Prosecutions !201 and the Nathan Mbaya and 2 Others Vs the Director of . Public Prosecutions 121 1 by the Court of Appeal 1 the two cases cited herein a,re in aid to ber submission that once a ,person is found in possession of property which is a proceed of crin1e there is no other evidence required to show the criminality of how they acquired it because Section 71 itself creates an offence therefore, anyone 1n po~session of those proceeds of crime is guilty of a criminality. 5.8 Counsel sub1nitted that Section 71 does not require anything mor.e than sirnply showing that yo u are in possession of property for which you cannot account for: That going beyond that wou ld defeat the very es$ence why the asse t forfei tur e regime was advocated for by the provisions of the Vienna Convention and the Financial Action Task Force and their immedjate outcomes and recommendations, whe re they have placed an obligation on Countries to ensure that they have effective asset recovery . and in particular Non-Conviction Based mecha..nisrns in place. 5. 9 It was contended that to req uire that the State must bring evidence re quired in the Sydney Mwansa and Nathan Mbaya cases would be den1anding the standard of ev id en ce needed in proving a criminal matter a nd that would be defeating the r equirements of Non - J46 Conviction Based Forfeiture which demands the State to prove its case on a balance of probability and on a balance of probabi lity only. 5.10 It was Counsel's subrn.ission that the balan ce of probability 1s enough to say yo u have b een found in possession of propert y to which you cannot account for and by this m.ere fact, you have committed an offence and that offence therefore 1 taints the propert y. You must therefore, give a reaso nable exp lar1ation as to ho w you came into posse ssion of this propert y . 5.11 Cuunsel emph asised that the eleme nts of the .offence .under Section 71 is merely b eing in possession of tainted property; just as it would be needed in a case of murder that there was a killing, malice aforethoug h t and those other ele1n-ents. That in Section 71, that element or those elements are being · in possession of propert y suspected to be proceeds of crime, and failing -to account for. it. 5.12 It was submitted that someone can not just say, as it was suggested in the Sydney Mwansa case and the Nathan Mbaya case, . that it is irrelevant that th.e person was in possession as there is need for more evide nc e. Counsel contended that being in possession is the crux .of the matter itself . and it h as all the re levance. That what .the higher Court failed to see in those two cases is what was stated ii.vi th e case of R Vs Ilham Anwoir, . Brian McIntosh, Ziad lVIeghral>i and Adnan Elmaghrabi l 18l cite d above. Counsel invited .this Court to criticall y con sider the. two. ways of proving that the property was derived from crime at Paragraph 2 1, 5 . 2 above, .and that their emphasis is on b) the circumstances that rai se an . irresistible inference that the property cari only be deriv ed fro1n crirne. 5 .1 3 l t was subrnitted that in the pres ent case, Mr. Charles Phi:ri, a Nurse a ll his life ·, was found in possession of a Lod ge, the -subject Property. J47 That the Evaluation Report illustrates the wo rth of this Property. He could not account for this prop erty ; all he said was that he . bought the land on which the Prop er ty is sitting for les s than ZMW3,000.00. He later referred to the Property being that of former President , Mr. Edgar Chagwa Lungu , therefore, Mr. Charles Phiri, to whom the State thought had an interest in the Property because of him being in possession of it, has totally distanced himself from the subject Property. 5.14 It was submitte d that later on, after the Matter had commenced, Mr. Charles · Pbiri and Mr. Edgar Chag\;va Lungu decided to execute a Contract which had not been in existence at the time the Matter c01nmenced and it was signed on 2 nd May, 2024, a few days before the Inter ested Party filed Affidavit. in Opposition. 5.15 Counsel submitted that this issue has been extensively argued in the Affidavit in Reply an d stated that it was their wis h that this Court pronounce itse lf on . th e issu e whether that amounted to tarnpering with Court evidence. 5.16 It was Counsel's submjssion that if at the time the Matter was brought to Court, there was only an oral ?.greement between the two, a nd not a Contract, th e oral agreement should have been what was laid before this Court as the Inter ested Party's evidence and not to exec ut e a Con.tract .which was not in existence at the time. 5.17 Counsel submitt ed th.at as of the · morning and afternoon of the Hearing, there v,,as no Affidavit or appearance of a third -party interest entere d by Mr. Edgar Chagw a Lungu to claim this Property before Court as his, or to stat e how he acquire d it if he clain1s i t is his . 5.18 It was contended that therefore , Mr. Lungu too has not claimed this Property. That Chiyeso Lungu, who appears as Co-Director with Mr. Charles Phiri , has also not entered any appearance or claimed this Property. 5.19 lt was therefore, Counsel's submission that this Property must be forfeited to the State and given back to the people of Zambia to whom it rightfully belongs. 5 .20 It was Counsel's prayer that this Court , in the interest of justice , Orders the forfeiture of th e subject Property to the State. 5.21 Counsel for the Interested Party, Mr. I. Simbeye, in response, submitted that by virtue of Section 34 of the FPOCA , the Applicant bears the onus of proving the necessary eleme n ts in order to succeed in such an Application. 5 .22 That by Section 78 of the FPOCA, unless provided otherwise, the standard of proving such elements referred to in Section 34 is on th e balance of probabilities. It was their submission, therefore, t h at this standard applied in all civ il matters in our jurisdiction . 5.2~) It was submitted that the other principle they .would like t.o bring to tb.is . Court's attent ion comes from Phips on on Evidence at Paragraph 6 as follows: '.'So far as the persuasive burden is concerned, the burden of proof lies 1:1,pon the party whQ subst a ntially asserts the affirmative of the issues ." 5 .24 It was subrnitt e.d that in this regard , the Party .in these Proceedings who ~sser ts affirmative that the subject Property is tainted is the OPP and therefore, .they bear . the burden of proving .that the subject . Property is .tainted Property and the proof has to be on a ba]ance of J49 probabilities and not on suspicion or doubt as also confirmed by Section 31(1) of the FPOCA . 5.25 It was contended that the law i8 always prescrib ed and this Court is a Court of law which, by Counsel's understanding , 1neans that this Court ought to interpret the law as pronounced by the Legislature. 5.26 Counsel subrnitted that a tainted property is defined and the net effect of that definit ion is that it has to be connected to a crirne either by way of being acquired from the commission of a crime, or by using that property to c01nm it a crime. 5.27 Counsel found . fortification in the Court of Appeal case of Nathan Mbaya an-d 2 Others Vs the Director of Public Prosecution (2 1J an d the case of Sydney Mwansa . Vs The Director of Public Pro~ecutions 1201 and argued in repl y to the submissions which suggest that t he Court of Appeal was misdirected or that it missed some .points ,amounts to calling upon this Court to overru .le the Court of Appe2J . . COl.u1.sel contended that having followed Counsel for th e Appliccµ1t's sub n1issions , it was Counsel for the 1ntere .sted Party's ·understanding that .. Counsel for the - Applicant 's submissions were not to distinguish -the cases, hut rather the purpose was to s hm..v :that the Court of Appea l did not interpret the law properly as, accord ing to Gounse l for .the Applicant, such interpretat_ion by the Court of Appeal overlooked the spirit of t h e FPOCA. 5 .28 Counsel s ubn:ii tted that b e vehernently beseeched this C.ourt not to be p er suaded by t hose su bmi ssions as do in g so wou ld ainount to turning . the . Ji.:tdiciary aJ1.d its struct ure on its h ead, arid tha.t what might fo1low next is that the Subordinate Court might overnile tbi s Court. JSO 5.29 Counsel s1..:i.bmitted on the Nigerian case of Melrose General Services Limited Vs The Economic and Financial Crimes Commission 1221 where the Supreme Court equa lly confirmed that there is need for linkage between the crim .e and the property sought to be forfeited to the State. 5.30 rt was submitted on Section 71 of th e FPOCA, that w hilst the crime under this Section is Possession of Property Reasonably Suspected to be Proce ed s of Crime, Subsection (3) reli eves the Prosecution from proving a s erious . offence. It was Counsel submission that those are the only o.ffenoes -which the Prosecution is excluded from proving a serio us. offence for purposes of securing a conviction; that Subsection (3) do es not state that the Pros ecutio n should not prove anything. 5.31 It was a:rgu ~d that even if a person is convicted under Section 71 , whe n bringin g an application b ase d on a co n viction under Section 4 of t h e FPOCA such an application can .onl y be sustained if the conv i_ction arises from a serious crime. That the . wording of the Section is cl ear in this regard. 5.32 It was Counsel 's -furth er submission tha t a serious offence h as b een defined by the FPOCA in a way that it ought to hav e e ither of the two elementsi that is eith er the sentence attracts a minimum . mandatory sen tence of one year or. it is a capital punishn1ent. That t her efo r e , if the offen ce ·in question does not attract a death sent en ce or a minim urn n1and.ato ry sentence of one yea r it cannot b e a ser ious cnn1 e . 5.33 Cou nsel subr n.itt ed that ultimately, t h ey urge this Court to find -th at Lhe offence under . Section 71 of th e FPOCA is not a serio-us offe nc e becaus e it fal ls out.s ide those two elements of a serious offence. 5.34 Counsel contended that in any case in these Proceedings even the very offence which is not serious under Section 71( 1) has not been . ' . proven and therefore, it cannot be the basis for seeking a Forfeiture . ' . Order. 5.35 Counsel submitted that the submission that the Interested Part y in this Matter has dis tanced himself from the Prope rty goes against the weight of the evidence on the Court's Record and that the same should be disregarded on t hat basis. 5.36 It was submitted that as Counsel for the Applicant has submitted, the Applicant has violently attacked the exhibit before Court without citing any evidential rule or law which it violates. That it is on this basis that they find no means of effectively res-ponding to the attack on the piece of evi denc e but to leav e it to this Court which is the urnpire of justice. 5.37 Cou.nsel submitted that when an application such as the one in casu has . been launched , and the . interest ed person a ppears as he has done , Section 31(2) of t he FPOCA clearly explains what such an interested p erson . is supposed to do; that what he is supposed to do is. simp ly demonstrate that he has interest in the property a..nd that he did not acquire the interest in the property as a result of any serio us offence, and that if at a ll any serious offence is connected to the property, that he acquire d the property before the commission of the ser ious offence or after the ser iou s offence ; and th at there was no way he .would have known .that the p roperty is connected to the serious offence con1mitte d previously. • 5 .38 Counsel contended that those are the -defences stip .ulated by .the lm,v and that there is nothin g under Section 31(2) putting a :responsibilit y on the int er ested person to a ssert anything J52 affirmative ly requiring hin1 t o produce evidence in accordance with the principle in Phipson on Evidence already cited above. 5.39 It was Counsel's content ion that the burden, according to Section 34, does not shi ft at any point to the Interested Party. That even after a full hearing just as this one, just as is the case in all civi l proceedings, the Court at the end of the trial or hearing will still ask the question has the appl icant or p laintiff proven his or her case on a balance of probabiiities considering the totality of the evidence before the Court. And if the answer is in .the negative , no matter what can be said of the defence, the applicant or plaintiff cannot succeed as a matter of right. 5.40 Counse l submitted that the defence under Section 31(2) of the FPOCA confirms that app lications such as this ought to be anchored on a .specific crime which has been proven and that once this crime has . been proven the Interested Party 's job is then to say something to that crime to which he has been directed . .. 5.41 Th.at -if no .cri·me i~ being pointed at; the scenari .o becomes such that the lnterest ed Part y has to d efend himself against all the crimes in the wor ld which in Counsel 's humble opinion, .is n ot the in tention of th.e Legislature. 5 .42 Cou ns el submitt_ed that th e _sp irit of the FPOCA is to fight crime and not to forfeit any propert y that the DPP looks at and feels it has to b e forfeited. That if t he spirit is to fight crime , these Proceedings should have been evolving arourid a specified crime primaril y and for feiture pro cee din gs should only be a con seq1..1ence a nd not the other w a y around . 5.43 Coun sel submitted th a t th e r e are Paragr a phs in th e Affidavit 1n Sup p ort of .the . Origin ati n g Notic e of Motio n whi c h viol a te th e JS3 rr1andatory Rul es of Cour t which h ave b een highlighted and which the Sta te has gracef ull y adn1itt ed in th eir Affidavit in Repl y· and they hav e even asked the Court to allo w them to am end. It was Counsel 's subm.iss ion that such Paragraphs should not form part of the evid ence on Record on which this Court should anchor its decision. 5 .44 It \Vas Counsel's humble praye r that the Appli catio n b e disn1issed wi th cos ts to the In terested Party. 5.45 In Reply, Couns .el for the Applicant, Mrs. Rhoda Malibata-Jackson s1..1,bmitted that they acknovi 1ledged that Section 34 of the FPOCA places t h e onus on th e Applicant to prove, but however, this onus is on a balance of probabilities a nd all that the Appli cant has to s how is that th e Propert y in issue is a pro cee d of crin1.e an d once that is done, . the burden shifts t o the In terested Party to show how he or she acquire d .the Property. 5.46 Counse l referred · us to the Ke nyan case of Asset Recovery Agency V$ P~tc:r Oluwafemi Olaiwon 123 l. where th e Court stated that all t h e appJicant h ad to .do is to create .doubt by p rov id in g some initial prima Ja6e evidence that th e funds, assets, or propert y that th e r espo nd ent h olds may have been acquired through crirn e or oth er dubious means such as ·money laundering. 5.47 That the mornent that ha s bee n est a bli shed, th e eviden tia ry burden then sh ifts . to the respond ent to. show how the · funds , asse t s, or p r opert y we.r e .a cquired . . That the respo nd ent is also expected to provid e- evid ence to support that exp lan ation he or she has in r e b;uttal ; they rnust offer satisfactory exp lanation an d eviden ce that is ~olicl, hon e s t: and beyond guess work. JS4 5.48 Counsel submitted that in the now famous case of Sydney Mwansa Vs The Direc tor of Public Prosecutions (20l , supra , th e Court of Appeal, in exp iaining Section 71 of the FPOCA , stated as follows: "For this offence, it is our considered view that it is sufficient for the prosecution to establish, on the balance of probability, that the accused was in possession of property and that there was reasonable suspicion of the property bei ng prqceeds of crime. It thus rernains on the person. ~o charge, to show that he, or she, had sufficient resources to acquire such property (negativing reasonable suspicion) or that he or she had no reasonable grounds for suspecting that the p,·operty in . their possession, was derived or ··realised, .directly . or ind,irectly, from any unlawful activity as pet· the defence .in S.ect ion -71(2) of the Act.!' . , . .' . 5.49 It "\vas Goupse l's submission that t h e . .above Gited cases clear ly. show t hat all the. Applicant need$ to do is to show . that there is suspicion that the lnterest ,ed Part y is in poss e.ssion of property susp~cted to be proceeds of crirn<;;. That once the Applicant has show n reasonable suspicion, th'e .onu s is. on . _the ,Int er est ed Party to .show that th e property .was not -proceeds of crime. 5.50 That in - casu, the Applicant has shOVill1 on a balance of probability that the Property is ,a proceed of crirn e and all the Interested Party has said is that it was developed by another person. 5 .51 With ·respect to the is sue of tainted property as submitted by Counsel for th e Jntere .sted Party on Section 2 of the FPOCA, it was Counsel's subm ission that the subsections a ) to c) are separated by semi colons JSS whid1 means that they a1i stand alo n e and w h en lookin g a t taint ed property _, the Court can consider any of the listed defin itions . 5 .52 It wa3 the Applicant's su.b1ni ssion that this Property is tainted 1n relation to a serious offence as per Section 2(c) of the FPOCA and that Section 71 is a s erious offence in that the punishment for this offence wh en one is found guilt y is more than 12 m.onths. 5.53 Counse l for the Applicant sub mitt ed that Counse l for the Interested Party cited S e c tion 31 of the FPOCA to conv ince this . Court that the Interested Party ha s shown evide n ce of th eir interest in the Property and it was submitted that as.it. stands, the form er Head of State , Mr. Edgar Chagw a Lung u, has not s ho wn any interest in the Proper ty subject of this Application because Section 30(b) of the FPOCA , which Counsel for the Int er est ed Party skipped and went to Section 31 , clear ly states what a part y with int erest in the propert y should do as follows: "any .pet'son .who . claims an interest in the property in respect of which, the app l:.cation is ma.de may appear and produce _evid e nce at the hearing of the application;" 5 .54 It was Counse l's submission that from the tinl'e the Procee dings started to date, the former Head of State has n ot s ho wn interest in the prop er ty a rid -therefore the contract that h as been exhibited does not confirm that h e has interest in th e Pro perty as he has not claimed interest in the said Property .and th at leaves only Ch ades. Phi.ri a s the only Int erested . Pa1:t.)r. in this case .. . ' 5.55 It \vas ·, suhrni tt ed that in as much as th e ln te1:ested Party had capacity to tru y th e land, h e has not adduce d any evidence to show how it was developed and therefore Couns ei submitted that the Property s houl d .be for feited to the State as it is tainted Property. J56 6. ANALYSIS AND DECISION OF THE COURT 6 . 1 'vVe h ave c on s~d er e d th e Affid av it a nd Skeleto n Ar gum ents file d by the P a rti e s both in Support, in Opposition and in Re ply and we are grat eful for the spirited argurn e nts and authorities therein as well as thos e submitted viva voc e durin g the Hearing of the Application. 6. 2 The Applic a nt's Originating Noti ce of Motion is m a.de pursuant t o Order XXX Rule 15 a nd 17 of th e High Cour t Rules as r e ad toget h er wit h S·ections 29 , 30 , .31 , whic h pro vis ions give this C our t jur isd ictio n to h ear suc h a.ppli cat ion s , a nd Section 71 of the FPOCA wb ich creates th e offence of being in possess ion - of - p rope rty s u s p ected of bei n g proceeds of cri m e an d de em s it a seriou s offen ce . 6 .3 Th e preambl e of th e FPOCA fittingly sum s up th e purpos e a nd cr u x of the Act a s follo w s: "An Act to provide for the confiscation of the proceeds of crime; provi.d e for the deprit1ation of any person of any proceed , be11efit or property derived from the commission of ahy seriou s offen c e; facilitate · the tracing · oj any proceed, benefi t and property d e rived from the commission · of any serious offence; provide for the domestication of the United Nations Convention against Co r ruption; and ·p r·ovi d e . for matters connected with ,. or incidenta .l to, -the foregoin,g." 6.4 It is trit e t h at: .the. Constit~ .tion . of the Republic o-f Zambia, · b eing th e grundn orrn and -•·1.vhich detcr rn ines the vaHd ity of- a ll laws; do es affo r d its ci tize n s p ro.p er ty rights under Part III , h owever, .. t h esc d o ha ve derogations . that a ilm;v for the for.feitur e an d confi sca tion of assets as w i11 be -elaborated later in our Judgment. ]57 6.5 ln the Matt er before us, we have an Application by the Director of Public Prosecutions (DPP) for Non-Conviction Based Forfeiture Order of tainted property, being Property No . LUS/38478 housing one three storey Lodge in the Ibex Hill area of Lusaka. The Application has been opposed by Mr. Charles Phiri, being the Int erested Party herein. 6.6 V./e shall begin by considering the issues raised by the Interested Party with regard to the Applicant's Originating Notice of Motion and Affidavit in Support filed herein. 6.6 . 1 The Interested Party contends that the Originating Notice of Motion filed does not conform with the prescribed form as contained in Prescribed Forrn II i.n the · First Schedule to the High Court Act. 6.6.2 It was contended that Pa:ragraphs 5 to 8 and 10 of the Affidavit in Support sworn by Em:r:nanuel Khondowe are neither in the .· first pers_on nor do they disclose the source of the information deposed to. 6.6.3 That exhibit "EKS" 1s not certified to be a true copy of the original handwritten Staternent, 6.6.4 ln response, the Applicant admits that the Originating Notice of Motion filed is not in . conformity with the presc 1jb ed form but argues that this does not go to substance , but to form .. 6.6 .5 They further adn1it that Paragraphs 5 to 8 and 1-0 of their Affidavit in Support are not in the first person and do not disclose · the sou-rte of in fonnat ion . deposed to but argue that non- -disc losure goes to the weight to be attached to the averm. ent rather than its adrnissibiiity. 6.6.6 The Applicant acknow ledged the deficiency 1n their exhibit 1narked "EKS", but argued that not only is-th e defect curab le J58 and th a t th e Affid avit can be r ec ei ved by the Cou r t on ce it is cured acc;~r din g_ly to confir m .its aut h entic ity, but that the d efect p ertains t o th e form r ath er than the su bstance of the eviden ce pres e nt ed and r en1ain s a u th en tic an d r eliab le . 6.6 .7 We h ave co n s id er ed th e submis sions by bo th Partie s as w ell as th e auth orit ies cite d . From th e on s et , we w is h t o r einst a t e th is Cou r t's firm view th at Ru les of Court m us t be a d her ed to . Th e imp orta n ce of th ese Rules and t h e adherence to the same was pronou nce d u p qn in a p leth or a of cases incl uding the cas e of NFC l\Hnin.g Vs Te c h pro Za1nbia Limite d 1241 wherein th e Sup r em.e ·Court guide d as follows: "Rules of court a.re intended to assist in the proper a71-d orderly adrrtinistration of justice and as such must be strictly adhered to." 6 .6.8 Wit h rega rd t o t h e above iss u es r aised by the In te r este d Party, we do agr ee tha t th er e are defects in th e rnan n er in wh ich th e Originc1.ting. Notice of Motic)n was .p r es~nted .b u t ·however, wish t o point out that we h ave dea lt wit h a similar issue , in the Ru ling of thi s Court in the case of ',fhe Director of Public Prosecutjons . In Re Property Vs Dalitso Lungu 125l an d found as follows: "5. 7. How e ver, as poi nted out by t h e . Applicant, the Originatin.g Notice of Motion filed ·is not ·wildly different from t he p res c rib e d f or.tn and in fac t , is presente d in a manner that has b e en . a llowed to be filed i nto this Cou,-t . Th e presc 'r ibe d form requires the u se1· to . spe.c ify t he sta tute whe.re applic a ble and . the .. Applicant correctly s pec ified Section 30 of the Forfei t ure of Proceeds of JS9 .. ' .' f. j I" " •' : ' . : Crim.es Act inter al-ia which indeed does give notice and direction t9 th.e Interested Party as would the omitted ' ' . Notice in the prescribed form. 5.8. It is therefore our considered view that slight deviation f-ro1n the prescribed Form 11 in the First Schedule of the High Court Act goes to form and not substa .nce and is not misleading to this Court nor to the Intereste,d · Parties he.rein especia.lly con,sjdering that they have made -the appropriate responses to . the Application in the main." 6 .6.9 vVe held .the srune position m the case of The Director of Public frosecutions In Re Property Chiyeso Lungu (261. We wish to p0int out th~t both Counsel for the Applicant and the Interested. Party h ~rei n, wer:e Counsel ·for the Parti es in the above ci t ed cas~s and are aware of our Findings in· those Matters. lt is mischievous . for Co.unsel to rai.se t he same.issues . that ._they : _are fully aware that this Court has rendered a position on. We will not depart from our finding in ·the above cited cases of this Court . 6.6.1 0 With regards to the impugned Paragraphs of the Applicant 's Affidavit in Support of Notice of Motion , we refer to this Court's recently decid ed cas e of Richard Musukwa & 7 Others Vs The Attorney General l 27l, at J40 and J41 , it was found as follows: ~'14.6 However, the said impugned parag1·aphs shall not be .expunged because the objection wa-s 'lnade very late, . As guided by Order· tr, Ru.le 21 of the lfigh Court Rules, which pro ·vides as follows : J60 ' ' • • •• • '• I "In every case and at every ~t:age thereof, any obiection to the reception of evidence by a Party affected therebt/ shall be made at the time the evidence is offered: Provided that the Court may, in its discretion, on appeal, entertain any objection to evidence received in a Subordinate Court, though not objected to at the time it was offered". (Eniphasis Ours) 14 . 7 .(n confor-ming wi.tli th.e above provision, th(? Petitioner should have objected at the time the Application was made by the Respondent to tender the Witness Statement of RW 1. Therefore, having not objected to the Witness Statement at the time . of production, entails that .the Petitione1·s cannot object to the contents of the Witness Statement .. 14, 8 In our, .1,i~,v, th.e no objection that was offered by the Petitioner at the time of producing the · TVitn~ss Stateme.nts amo.unts .. to a fresh step .envisioned by Order 2, Rule 1 of the Rules of the Supreme Court of England which provi ,des that: . "An · application to ,set aside for irregularity · any .. proceedings, any ,step in any p1·oceedings or any doc.ument, Judgment or Orde1· therein made . within a · r.e,a..sonable ·titne and before the Party applying has . taken .any . fresh step after ·becoming · awar e of the . . irregularity' .' (Emphll.sis ours)'~ .. 6.6.11 \Ve h eld t h e , sam e . p ositi on in the case of The Director of Public Pros~cution In. R.e Property Esther Nyawa Lu.ngu l28l J61 ' t .• : where the In terested Party therein objected to the admission into evidence cer tain exhibits on the basis that they were computer ge;e;ated and w~re coritrarj , to the provisions of Section 9 (4) of The Electronic Communications and Transactions Act which provides as to how computer generated 'data message ' is requ.ired to be certified and further that sorne exhibits had not met the requirements of Section 3 of The Evidence Act , wh ich requires that an original of the document must pe produced and the n1aker called as_ a witness in the proceedings. 6.6.12 Jn the above case, h aving referred to Order V Rule 21 of the High Court Rules as wel1 as Order 2 Rule 1 of the Rules of the Supreme Court of England we found as follows: ."7.29 Based on -the foregoing provisions, on being served the Affida ·uit in . Reply, which was filed into . Co-µrt on 9th l!ugust~ 2023, and the Interested Party becoming aware of the alleged irregularities in the said exhibited documents, she ought to have filed an application to expunge the said documents. Instead, the Interested Party took a fresh step in the proceedings when she filed . a . Notice to Raise Preliminary Issues .on l .lth August, 20.23, . wherein a,nongst other. issues, she objected to . the admission into evidence of documents contained in.. the ilpplicant's .1lffidavit in Support .of the Application ancl did not extend her objection to the .impugned Docum ,cnts in - the ilpplicant's Affida ·vi.t in Reply or J62 I • o exhibit "EK 4", in the Affidavit in Support of the Application. 7. 30 Therefore, it is our considered view that the Interested Party waived her right to object to the said documents. Consequently, her objection to the admission into evidence of the impugned documents is dismissed." 6.6.13 The Intere$ted Party herein should have made the necessary application to set aside for irregularity in good and reasonable time and before fr esh steps had been taken after becoming aware of the above defects. It is our considered view conseque .ntl y , that the Int erested Party has slept on its rights and the above objections have come late. 6.6 . 14 We shall therefore, proceed to det erm ine the Matter in the main without expunging the Originating Notice of Motion and the imp1.,1gned Paragraphs and exhib it of the Affidavit in Support filed by the Applicant · for the reasons given above. 6.7 Based on the submissions made by the Parti es, both in writing and orally, the issu es for determination are as follows: (a) Hris the Interested · Party shown. that he has interest in t.he subject P,-operty; (b) Has the Applicant satisfied this Court, baS'ed on the evidence tendered and ·on a balr.:t.nc·e of pr.obability, ·that the Property is tainted property and therefore proceeds .of a crime; (c) Has the Interested l'arty shown, based on the evidence tendered and on a balance ·of pr-obability, that he did not acquire the said interest in the J63 . ' . . . ' Property as a result of any serious offence carried out by him . 6.8 We will begin by considering t h e Int erested Party 's contentions with regards to th e proc edure under the FPOCA and the pro visions that deal with Non-Conviction B ased Forfeiture pro ced u re . 6.9 Couns el for the Int er es ted Part y submits t he DPP seeks to h ave the Properties forfeited to the State on allegations that it is tainted in line with Sections 29 an d 31 of the FPOCA and con tends t h at the ohras e . . - 're asona ble suspicion' do es not appear in bo th Sections pursuant to which t h e prese nt Pro cee din gs h ave b een brou ght. F'l,irther that a n app licat ion under Sections 29 an d 31 of t h e FPOCA canno t b e premis ed on 'reasonable suspici on' but on evid en ce proving that, on a balance of probab iliti es, the proper.t y sought to b e forfeited t o the State is inde ed tainted. 6.1 0 Perusal of th e li'POCA ind eed shows t h at th e phrase 'reas _onabl e .susp icion ' is absent. 6 . 11 Black's Law Dictionary defines 's uspi cion ' as: 1ir ({ "The. apprehension or irnagination - of .the existence .of something wrong based only on inconclusive or slight evidence, or possibly even no evidence at all." 6.12 Black's Law Dictionary defin es 'reasonabl e su spic ion' as: "A particular i sed . a,nd objective ba.5i.sf suppo,-ted by specific and articulable facts, suspecting a pe,·son of crtmina ·l activity ." 6. 13 Law Enfor ce1nent • Agen cies, su ch as the • Dru g Enfo r cement Co.rnn1iss ion , commence investiga tions on a .. m ere sus picio n, and based on th eir findi ngs rn.ay, based 011 specific and a rti c ulabl e facts, • . j . ·' · pro gress to having reasonable suspicion sufficient enough to institute pro ceed in gs under Sections 29 and 31 of the FPOCA. 6 .1 4 In casu, as forfeiture proceedings are against property an d not the person, reasonable suspicion would b e a particularised and objective basis, supported by specific a nd articulable facts, suspecting a property of b eing proceeds of crim e or tainted p roper ty. 6 . 15 Black's Law Dictiona:ry refers the definition of 'balance of pr oba biliti es ' to 'prepond er ance of th e evidence" as follows: "The greater weight of the evidence, not necessarily established by the greate1· number of witnesses testifying t o the fact but .by the evidence that has the most convincing force; superior evide _ntiary weight that, though not sufficient to free the . mind wholly from all reasonabfo • dc,u'J;>t, is still sufficient to incUne Cl fair and impartial .mind to one side of the issue rather than the o'th_er. This .i.s the burden of proof in most civil trials, i n which th~-ju,ry is instructed to .find for the party that, on the whol'e, has . the stronger evidence, however slight the edge 1nay be. " 6.16 It is our considered view that based on the above , an d th e standard of proof r equire d in N()n-Conviction Based Forfeiture, being on a b alanee .of probabili:ties, the ,use of this phrase 'reaso nable s.uspic ion' j s appropr iate --,an d that· ind eed th e . . Applicant may connnenc .e for feiture - proct~dings where . they have .· reasonab le suspicion, supported b y :,articu lable fact , suspect in g a prop.erty of being proceeds of.crime or tainted property. 6. 17 The Inter ested Party submits that the DPP cannot ·categorise his Proper ty as tainted without the Court mak ing· suc h a de tenni.na tion. J65 That the Court must first declare that the Property is tainted and only thereafter can th e DPP or other Law Enforcement Agencies make a discretionary app lication for a Forfeiture Order ·relating to the Property; that the DPP nor an inv es tigations officer has no jurisdiction to declare any property tainted pre -emptive ly. 6.18 This submission by the Interested Par ty flies in the teeth of the pro visio ns of the FPOCA and in particular Section 29 which states as follows: "A public prosecutor may apply to a court for an prder forfeiting to -t-he St:ate all or any property that is tainted property ." 6. 19 It is our cons id er ed view and based on the above provision, that the Applicant is at libert y to d esig nate a property as tainted based -on reasona ble suspicion of it being proc eeds of c.rirne following an ----- investigation and prior to making an application before this Court for an Order . forfeiting to _ the State the said property: The Applicant clear ly h as the -jurisdiction to declare -any property as _ tainted pre - emptive ly. 6.20 Other conte ntion s raised by Counsel for the In terested Party are in relation to Sections 29 , 31 and 71 of the FPOCA . 6.21 First ly, Counsel. for .the Interested Party co ntended that .there . ·ts a dear distinction between SectiC>ns 29 and 31 and Section 71 of the FPOCA. From .. the .subrn issions on Record , Counsel is fortifying his assertions based _on the statutory defences a,pplica ble to matters und e r Sections 29 and 31 being different from the statutory defences applicab1e to Section 71 found in subsection (2). Co-unsel implored this Court to rule that the present Application is premised onl y on Sections 29 and 31 of the FPOCA and not on Section 71. J 66 ...... . 6.22 Secondly , Counsel contends th a t a property which is the subject of forfeitw·e proc e edings under S~ctio _ns 29, 31 and 71 of th_e FPOCA slio :uld be connected to a crime. In support of their contention above, the Interested Party found for tification in the cases of Nathan Mbaya and 2 Others Vs the Director of Public Prosecution (21 ) and the case of Sydney Mwansa Vs The Director of Public Prosecutions {2 0i as v-ircll as the Nigerian case of Melrose General Services Limited Vs The Economic and Financial Crimes C~mmission {22 l that th e re is need for linkage betw een the crime and the property sought to be forfeited to the State. 6.23 Thirdly , Counse l has argued that this Court does not have jurisdiction to make Forfeitur e Orders und e r Section 71 of the FPOCA . .. 6.24 There is a plethora of cases that give gt.1idance _on the -interpretation of sta tutes an.d arnongst then1 is th e: ,ca~e - of Ge. Q.eral Nursing Council of Zambia Vs · lng'utu Milambo lVIba.gwet~ (29l wh ere the Supr erne Court held th.at: "The primary ru. le of construction 01· interpretation o.f statutes is that enactments must be cons-trued according to the plain. and ordinary meaning of the words used, unless . such construction would . • lead to $Orne . unre .asona.ble result; · or be in.consistent with, . o.r contrary to the .de.c .lar.ed or, .imp lied i'nte.ntion : c,f _the framers · of t:he law_. in wh.ich case the grammatical sense of the words may be· extended . or rnodifi .e.d. . . 6.2 5 Sin1ilarly , in l\iiatilda l\l!utalc Vs Emmanuel ·Muna.ile -!30l, it was held that: J(j7 • , ' ,. . • 1' • "If the wo r ds of the sta t ute are precise and unambiguous, then no more can be necessary than t o ex pand on those words in their ordinary and natural sense . Whenever a strict interpretation of a statute gives rise to an absurdity and unjust situation, the judges can and should use their good se nse to remedy it by reading words in it, if necessary, so as to do what Parliament would have done haq, the y had the s itu ation i n mi,id. " 6. 26 The definition of the wo r d 'construe ' was given in .the case of Minist er. of Info rma t ion and Broadcasting Service s and Another Vs Chembo and Ot h ers (31 l as follows: "The w ord "construe" in our consider e d opinion tneans reading th.e s t atu t e in whole and .nof;·p i ecemeal." 6.27 The posit ion is th erefore that the provis ions of any Stat u te .must be co n strued accordi .rig to .the p lain .and or dinary meaning of the words an d they must b e in consonance ·wit h other related provisions in the Stat 1..1t~ when read as a. whole .. lt is only when the ·plain or litera l meaning is not clear that the purposive approach shoul d be used. 6.28 It is our considered view therefore, that this is in keeping with the settled principle of law that in interpre ti ng any provision of a s t atu te, the statute n1ust be read as a whole an d eve ry section or provision bearing on ·the subject matter in question must b e considered. ln this · regard, S.e c tion 9 of the Inte rpre tat ion and General Provis ion s A ct, Chapte r 2 of the Laws o f Zam bia , is very -specific and provides that every schedule to or table in any written law, to gether with .notes thereto, shall be construed and have effect as part of such written law. J68 . ·i 6.29 Section 29 of the FPOCA gives a public prosecutor the authority to make an application for Non --Conviction Bas ed Forfeiture of tainted property. We wish to state her e that such an a pplication can be brought by a public prosecutor even when an interested party is facing criminal prosecution on matters directly or indirectly related to the subject matter in the forfeiture proceedings as was guided in the case of The Director of Public Prosecution and Dhiraj Dhu ·mputha 13 l, where the . Court of Appeal held tha t: "Whether or not there is a criminal prosecution o,· conviction:, it does not affect the case of recovery of assets reasonably believed to be proceeds of crime. A non conviction based forfeiture can run parallel with a criminal trial." (Emphasis ours) 6.30 l[nder Section 31 of the FPOCA , the Court, upon .being satisfied .on a . -b~an.ce. . of pro)::>.ability that the property the subject of an application .is tainted propert y-, may make an . Or.der ,as to forfoiture: Sectiol) 31 gees further and provides an interested party th e opportl::lnit.y to · put forward a defence in relation to th e property by 'j '? showing , inter · alia, that th ~y do h ave an interest in the propert y and that the y did no! a~q~ire th<; int erest in the propert y as a result of any serious -off,ence carried out by them. This is the defence as found in Sectiqn 71(2) of the FPOCA. 6 .31 The definition of 'tainted property' is equal ly cl ear as follows: .":J.'ainted .p-roperty " in relation to a ser.ious .offen.ce or ci forei9'n serious .c,Jfence, mcans- (a.) any property used · in, .01· in connection with, . the commission of the offence; J69 . .; : ·. • ... (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." 6 .32 A 'serious offen ce' is d efine d as one in which the 111axim um p enalt y prescrib ed b y law is death , or imp ri s onm en t for a term not less than twe lve ·mo nths. 6.33 Section .71 of t h e FPOC.t<\ creates an offence and states as follows : "l} A person who, afte1· the commenc e ment of this Act, receives, possesses, conceals, disposes of or brings into Zambia . any money, or other propert11, that may rea.sonably be suspected of being proceeds of crime .cornmits an offence and is lip,ble upon conviction to- (a} if the offender is a natural person, imprisonment for a . period not exceeding five years; .or (b. J if-the offender is a body corporate, afine not exceeding seven hundred . thousand penalty units. 2) It .is ci defence unde1· this section, if a person satisfies the. court that the person ha_d no reas.onable grounds for suspecttng that the property refer r~d t o in the charge was d(!r.ived - or . rea -lised, .di.rectly or in di.r~ ctly , from any unlawful activity, T he·offen.c _e under s ubsection (1) is not predi cated Qn proof Qf... J.lte comtniss·ion of a serious offence or foreign serious offence." (E1np.hasis our.s) . 6.34 Th e FPOCA defines .'proce~ ds of crim e' as follows: J70 1 , .. • "Proceeds of cri me " i n re lation to a serious offence or a foreig n s e rious offe nc e, mean s property or benefit that is (a) wholly or partly derived or realised directly or indirectly, by any person from the commission of a serious offence or a foreign s erious offence; (b} wholly or partly derived or realised from a disposal or other dealing wit,h proceeds of a -se rious .offence or a foreign serious o_f. J'enc e; (c) wholly 01· part ly acquired proceeds of a serious offence o r a fore i gn. serious offe n ce; a nd includ e s, on a p ropo rtional basi s , p rope rty into which any property derived o r realised .directly from the serious offence or. foreign serious offence is lat er ~onverted, t r ansformed or interm .i nglad, and . any if.tcome, capital or other ec o nomic · gai n s derived or re alised from . the _prop e rty at any time . after the offe.nce; or (d) any property . that is . der-ived or realised , directly or in d i 1·e ct ly, by a ny p.e rson f ro rri a ny a c t o r o,nission that occurr e,;1. ,outside Za m.bia and would, if the act o r omission had . occurred in. Zant bia, have con·stituted .a serious offence." . 6 .35 Havir,g consid .e.r.ed the above Sections .of.the FP OCA, it is c:;:lear that when _the pu.b}ic prosec u tor files an . app li ~a-tion fo r an Order for Non Co n vict ion Ba~ed Forfe jture ,undcr Se cti on .29 ,•.based on r.easonab lc sus p icion that the . proper·ty is tainted . and is proceeds of a crime ; the interested par ty . 1s at. liberty . to defend the property sought to be J71 forfeited and gui dance for such defence is found 1n both Section 31(2} and Section 71(2) of the FPOCA . 6.36 Th e Court upon consideration of the totality of the evidence before it, and t he Court depending on whether it is satisfied on a balance of probability that the property is tainted and proceeds of a crime, it may or may not grant the public prosecutor's applicat ion. Should th e Court gra nt lhe public prosecutor's application and find tha t th e impug n ed proper ty is ind eed tainted, the property is considered to be either an .instrumentalit y, tha t is it is u sed in or intended to be used in the commission of an offence, or a proceed of the cri m e or the offence. 6.37 As guided in the case of Minister of Information. a nd Broadcasting Services and Another Vs Chembo and Oth.ers l31 l, as well as th e Interpretation and General Provisions of Statutes Act ,. the FPOCA , mus t b.e read as a whole and not piec ~meal. In <;ioing so, we find that Section 71 cannot be- read in isolation from th e other pro visions of the Act, incl:t,.1ding Seqtions 29 anci 31. 6.38 \Ve find .as above for the simple and clear r eason that a public prosecutor will attach and refer to S~ctiQn 71 in his application for a Forfeiture Order, whether Conv iction Based or Non -Con viction Based, for the simple reason ·of fin ding that an offence of being in possess ion of prop erty r easonab ly suspected of bei n g p roceeds of crime bas been committed by the inter ested par ty which is a serious offence. Posse ssion is the serious offence as r equired by the FPOCA. When an application is brought · before Court -under Section 29 of th e FPOCA , · an int erested party will defend the app licat ion as provided for u nd er Sectio11s 31(2) and 71(2) . J72 6.39 We a re buttressed b y Olsson ,. J in The Director of Public Prosecutions Vs Sharon Lee Brown (32 l wher e h e sai.d that: "Once it is shown that there has been a relevant receiving, possession, concealment or disposal of property that may reasonably be suspected of being proceeds of crime, then an offence has., pri.ma facie, been committed." 6.40 Therefore, in an application for Non-Conviction Based Forfeiture of tainted proper.ty, the tainted propel.'t y must be tainted in relatio n to a serious offence an d on e such- serious offence, w h en there has been no referen ceto p articu lar offence, is pro vided for -by Section. 71( 1), that is, being in poss essio n of property suspected of being proceeds of crim e . 6.41 It is im portant to note, in relation to the above, that Section 71 also provides as .follo ws : "'l'he offence under subsection (1) is not predicated · on. p1·oof of the commission. of a serious offence or foreig~ serious offence." 6.42 This, in .our considered view, is what len d s to· the very esse n ce and crux of Non-Conviction Based Forf eitur e app lications u nd er th e J.t"'POCA i n th at with or wit h out the a tt achment of an offence or proof . of .a crime com.mitted, rnere pos session of p r opert y d eem ed to be tainted is an offence 1,,rnd~r the Act. ·· 6.43 We take - cogn :iza.'1ce ·of .the . F indin gs of the . Court ·of, Appea l· in the cases of Natha .~1 . Mbaya and 2 Others Vs the Director of Pu'blic Prosecution (21 l a..'1.d Sydney Mwansa. Vs The Director of Public Prosecutions (2 0l that there is need ·for linkage betwee n the crime and the property s ought to be forfeited to the State. ·we a r e however, fortified an.d gu ide d by the findi ng of the Supreme Court in -the case .173 of The People v Austin Liato !9 l wherein this \,vas emphasised as foilows: "To prove reasonable suspicion under section 71 (1) of the Act, therefore, the prosecution does not have to show the link between the source of the money or the accused to possible criminal con.duct. It is sufficient that possession and reasonable suspicion are proved ." (Ernphasis ours) 6.44 Counsel's further conte:ntion is that this Court has no jurisdiction to n1ake any Forfeiture Orders under Section 71 whether under cri1ninal proceedings or. civil forfeiture proceedings .. That Section 71 of the FPOCA only creates an offence, the elements of the offence and possible statutory defence without giving the Cm.irt any power to forfeit property for .what~ver reason, let a lone \;\_iithout _a .conviction of any sorts. 6.45 \Ve h ave already found and · demonstrated above that _all provisions of the FPOCA, let alone Sections 29, 31 ar:id 71 cannot be read in isolation .nor piec~meal. Sections ~9 and 31 give this . Court jurisdiction to 1nake Non-Conviction Based Forfeit1,.tre Orders and Se,ition 71 provides the offence and penalties under the Act as well as a .d efence for the in terested party, they must be read together. 6.46 Counsel for the Int erested Party will do well to note that the FPOCA for procedure provides for Conv iction Based Forfeiture under Section .. lo or D.ivision 2 as wei] as Civil Forfeiture under Division IV which includes Non ~Conviction Based Forfeiture a nd · both g ive ~his :o:.irt jurisd~ction to rnake Orders .as. to fo rfeiture, and fu~t~er, Section 71 · appll~s to both Non --Conv1ction Ba sed and Co nv1ct1on Based Forfeiture proceedings . J74 t . ... •• •• 6.47 One nee d onl y to read the Preamble of th e FPOCA , as provided in paragraph 6.3 above, to apprec iat e the obj ective of th e Act and t o conclude th a t it would be absl.:ird t o hol d that the re is no pro vision for forfeiture under Section 71 when th e Act is r ead as a whole . 6.48 Counsel also argued t hat there is no law in this coun try prescribing that ff a person has prop erty w hos e value is above the net wo rth of that person, then such proper ty turns into proceeds of crime or is tai nt ed prope rty. That having combed th e entire FPOCA, there is nothing th ere in whic h t urn s the impugn ed Prop erty into proce eds of crim e just b ecause it · has a value higher than ·. a law enforcemen t officer can trace or d eclar e as 'knovvn to him' . 6.49 Con tr ary to Couns er s assertions above , Section 62 of t h e Anti Corruption Act No. 3 of 20.12 states as foilo vvs wit h r_egards t o commencernent of forfeitu.r e p ro cee din gs for unexplained prop er ty, or what is r efe rred .to as Unexp lained Wealth in other juri .s_dictions: "The . Comniission may commence proceedings for forfeiture of unexplained property under this section against a person where- (a) after due investigat-ion, the Comt nissi on is satisfi~d that the . p e rson has µnexplained assets; and . (b) the person has, in the course of th-e exercise by the Comm..ission of its powers .of investigation or otherwise, been afforded .a reasonable opportunity to explain the d-is proportion . between the assets concerned and the person's ~nown legitimate sources of income and the Comrnission ·is not .s .atisjied that an ade .q ua.t e explanation of that .dispropor t ion has been given." , . ' ' J75 ,.1 J I 6.50 Evidently, where a person · has ·wea lth or assets, in whatever form, whose value Law Enforcern ent Agencies ha ve found to be above the known legitim ate sources of incorne of t hat person, a nd that p erson , having failed to proffer a n adequate explanation as to their origins or the disproportion , may find tha t the w ealth or assets a re considered tainted proper ty and proceeds of crime an d forfeiture proceedings cornn1enced a gai nst. the said property. 6.51 It. is our consider~d view tha t a public prosecutor 1nay rnake an app licati on for Non-C on vict ion Based Forfeiture under Section 29 of t h e F'POCA with a very cler1.r u nderstanding tha t Section 71 of the FPOCA , creates an offence cf possession of property t h at may be r easonab ly suspected of being p roceeds of crin1 e. The Int eres t ed Party is at .liber ty t o defend t h e property as provided for under Section s _31(2) and 71(2). As lon g as the public prosecutor h as recrnonab le suspicion and a ddu ced s uffici ent evi d en ce on a balance of probabilities to 1na k:e his -case to th e satisfaction of the Court that the prop erty is taint ed, the _ onus sh,ifts to th e Jntere~ted P arty. to adduce evidence in r ebutta l. ·. 6.52 The FPOCA provides for the confiscation and forfeiture of the proceeds of crime, th e deprivation of any proceeds, ben efit or property deriv ed· fron1 .the commission of ser-ious. ·offences and fac ilitates the trac in g of a,.n.y proc eeding , b ene fit and property-derive-d from the con11nission of any serio us offence. Non -Convict ioo Based Forfeitu r e Ord ers can be enforced against unexpl ained property as lon g as su fficien t evid enc e has been ad du ced by the publ ic prosecuto r based on a lack of ex planatio n of th e -legitimate source of the .p rop erty and the conduct of the . Int er es t ed Part y . J76 6.53 Last ly , Couns el fo r the Interes ted Par ty cont end ed that forfe itur e or ders are in breac h of Article 16 of th e Cons t it ution in th at th e Zambian Constitut ion gu a r a ntees th e sanc ti ty of prop erty own ers hip und er Article 16 and can n ot be abro gated except in the cir cu msta n ces express ly pr ovide d u nd er Article 16(2) . 6 .5 4 Art icle 16 , which p r ovi d es for th e p rotect io n from dep rivation of prop ertie s state s as follo ws: "1. Except as provided in this Artie le, no property of any description shall be compulsorily tak e n possession of, and no i n terest in or rig ht over property of any description shall be co m pulsorily acquired , unles s by or under the aut_hority of an Act of Parliament which provides for payment of adequate compensation for t h e p roperty or i nterest or right to be t a ken possessio n of or acquired . 2, NQt h.i ng con ta in ed i n or done under the .authority _o.f any la w shall be held t o be inco nsistent _with or in contrq.vent"ion of .claus ? fl) to the extent that it is shown t hat s uch law p rov id e s fo r the . talci n,g .poss e ss ion or acqui s it ion of any p1·operty or intere st the re in or right thereover - - a .. .. .. ; b.. b11 -w ay... Q[pena ltu fo r .breach of an_y_l<,J.. W,· .w h e ther unde r civil proce ss or after c onvictio n o f an. o ffen ce;" (Emph asis ours) 6 .5 5 It was Coun sel 's co nt enti on tha t in lin e with Article .16(2)( b), und er S ec ti on 2 9 a nd 3 1 of th e F POCA , t h e ,DPP shou ld · h a ve d emon s tr ate d th a t th e Intere s t ed Party breac hed th e law or inde ed th a t th e Prop erty h a s b een u s ed or is intend ed to be u sed in a crime . J77 That if the Court finds tfiat Sections29 arid 31 or indeed 71 or any other pr_ovisions of the FPOCA provides . . for forfeiting of property . without the OPP proving t ha t a particular offence was committed , the Court should declare such a provision ultra virus Article 16(2)(b) of the Constitution . 6.56 vVe do not agree with this po sition and have stated so in a number of cases that have been brough t before us. On e su ch case is the cas e of Th.e Director of Public Prosecutions In Re Property Chiyeso Lungu !26l, whe r e th e very $ame argument was presented and we stated a s follows with regards to Article 16: "We agree with the Interested Party that Article 16 (1) of the Republican Constitution guarantees the right to ownership and enjoyment · of propert,y . That . notwiths"tand ·ing, ilrticle 16 i~ not couched .• in absolut~ te,:-ms meaning tha.t jn -c.ircurnstances ·that arc permitted, . property c(,ln be taken away from a per~son <;.nd the rights to it curtailed. In fact, there c.an be no gua,·anteed right to a property whose origins cannot .. be legally justified by the person. claiming an interest in it. t.{le do not share the views expressed by t.1:ie Interested Party that the Director of Public Prosecutions should have de-mo.nstrated -·to• .the . satisfaction . of. the Court . that ·the Jnt er¢::s~ed Pa1.1:.y had breached a _pat1.iicu la r . law · or that the prop ·e.rties have . be e n used ,or. intended to be used i.n 'the -co,nmiss .ion ,of a pre.scribed criminal offence. We ·say so because .· if that : were the case, that approach would ne1Jer ever give effect to the intention oftfte Legislature in passing · the ,Forfeiture of Proceeds of Crim .e . Act." • I : • J78 . ·.'' . . ... , .• ' ,: . ' - . • 6.57 Further in the case of The Director of Public Prosecutions Vs ,Jessie Bwalya Kapyelata 1.~apalu (2 l it was found that Non- • t ; •• ' .• : ' ~ •. , Conviction Ba s ed Forfeiture ·is constitutional. We therefore find no basis for departing from our position. 6.58 Having clarified the issues raised by Counsel for the Interested Party above, we shall proceed to co nsider the issu es for determination in the main. (a} Has the Interested . Party _shown that lie has interest in the subject Property. 6. 59 In_ the Affidavit in Support, the Deponent averred tha t inv e stigations r evealed that the real Property in question belonged to Mr. Charles Phiri and that a search conducted at th e Ministry of Lands and Natural Resources established that the Prop erty is registered in the name of Charles Phiri as per exhibit m a rke d "EKJ." being a copy of the; Register. 6.60 That a Statement, .exhi b it ed an d marked "EK2", from Mr. Andrea Ch uni, a Senior · Registr ar a t the s a id Minist ry, confirmed th at on Entry Number 4 of th e Register, there is a 99-year State Lease from the Preside n t of Zambia to Ch arles Phiri und er ,a Certificate of Title CT_8508 . 6 .6 1 It was a ls o ave rr ed in the Affidavit in Support that a Seizure Notice exh ib ited and marked "EK9 " was issue d to Mr. Char les Phiri, being tbe established · owner , and being in possession of th e su.bj ect Property. · 6 .62 ln the Affidavit in · Reply , the Deponent averr ed that the ln terested Party, having state d U:1at the Property was d evel oped by Mr. Edgar Chagv, ,a Lungu , h as distanced hirnself from the Property and ther efore, th e . Property has not been claimed by either t h e Int erested J79 Party, Mr. Edgar Chagwa . Lungu, who it was state d developed , constructed and owne d the . said Property as purpo rted b y the Lan d Use Agreement, or Ms. Chiyeso Lungu , a Co- Directo r with Mr. Charles Phiri in the Lodge buil t on the Propert y . 6.63 However , in the oral submiss ion s in Repl y, Counsel for the Appli can t s tate d th a t fro n1 the time th e Proceedings started to date the form er Republican Pre si d e nt , Mr. Edgar Chag\1/a Lu ngu, has not shown nor clai m ed intere~t in th e Property , and that thi s leave s only Charles Phir i 2 .. s the onl y In terested Pa rty in thi s case . 6.64 In .th e Affidavit in Opposjtion, the Depor:i ent, being Mr. Charles Phiri, averred that h e appl ied for and was granted title , after following la id down procedures a nd processes and following a pay ment of ZM\1/2, 122.51 as exhib ite d and marked "C. P2b '' b eing a copy of th e Governr;.1..ent of Zarnbia Re ceipt Number G00998053 in his name, to the .sc..:u.cl Pro p erty _by way of Certificate of Title No. 850 8 exhib ited and marked "CP4 ". 6.65 1t \Vas avow e d that Mr. Edgar Chagvva Lungu offer ed t o develo p the said . Prope rty by huildin g a modern Lodge thereon .and the-Deponent accepted t he offer on the understand ing that :!.\1rther to certai n attai nm e nts , the D ep onent wou ld be allowed .to receive rentals . That a Larid Use Agre e ment , exh ib ited and m arked "CPS" , was entered into between th e D eponent a nd M r. Edga r Chagwa Lungu in fulfilment of .the same . 6 .66 Counsel for the [nterested Party argued in h is ora l sub1nissions th at the . App lican t' s submission that the Inter ested Party has distanced him~elf from the Property, goes aga in st th e weight of the evidence on Record and urged th is Court to d isregard it. · 6.67 Section. 30 (a) a nd (b) of the FPOCA states as foll ows: "W here a public prosecutor appl ies under section . t _w ent y-nin e for a forf eiture ord er-- (a) the public pt·osecutor shall give not less than thirty days wri t ten notice of th e application to any person who is known to have an interest in the tainted property in respect of which the application is be ing made; (b) a ny pe rso n. who claim s a n int ere s t in t h e p roperty . i n respect of wh ic.h the appliea t ion is made may a.ppea.r and p rodu ce evidence a t t he -heari ng of the applic ati o n." 6.68 From the Court Record, the Ap plica n t d id indeed make an Ap plicat ion under Section 2 9 of t_he · FPOC A . and did give the requisite No ti ce_ ~o the known [nt er ested Party as evidenced by an Affidavit of Serv.ice filed ... on 30 th ,June, 2023, and .deposed . to by, Emm.a nuel Khondowe. An exhi bit marke d ". EKl !' therein shows that serv ice was rn.ade . on and .f,\cknowledged by .. Charles Phiri 0n 25 th June, 2023. 6.69 Itis also ap p arent from the Record that Charles Phi r i, in accordance with Se-c tion 30(b) of the F POCA , claimed interest ir1 the Pr op er ty and appeared and produced evidence, including a Certificate of Tit le in his name, at the Hearing of the Application. 6.70 Having taken the above int o co nsideration, it is our considered view that despite the Applicant submitting on one hand that the Interested Party had distanced h imse lf frorr1 the Property ar1d on the other had declaring him the only Inte r ested Par ty hereto wit h po.ssession and .con trol of the said Pr operty, the Interested Party has not only shown his interest in the Property by filing an Affidavit in J81 I • :, Opposition wit h exhibi ts, Lis t of Authorities and Skeleton argume nt s, but throu gh his Counsel, w ho appeare d in Court throughout the Hearing s, opposin g the Appli catio n . 6. 71 We are further fortified b y the Court of App eal 1n the case of Johannes Kenneth Soigopi (T / A Nam Transport Co. A Partnership) Vs Director of Public Prosecutions (33l wherein it was h eld that documentary evi dence showing ow nership of the propert y e$t ab.lis hes inter es t. 6.72 Desp ite t h e Land {) s e Agreement exhib ited . as "CP4" in th e Affidavit in Opposition and alluded to .in Counsel 's oral submissions, the fonner Republic a n President , Mr. Edgar Cha gw a Lungu, has opted not to make an a pp earance a nd a dduce evide n ce in r elation to his interes t in .the Pr operty as · envisi oned by Section 30(b) of the FPOCA. It is our consid er ed vie w th at th is is his prerogative an d do es not tak e away from Charles Phiri's a ppar ent interes t in th e said Property a.nd t h e need for ·h im . . to d efend it against the a llegat ions made by the Applicant. . 6.73 VJe th ere f9r e, find that Charles Phiri h as shown interest 1n the sub j ect property an d is rightfully an d lega lly indi cated and refer r ed to as an Int erested Part y in these Pro cee din gs • (b) · Has th~ Applicant sa,.tisfied this Court, based on the evidence tendered and on -a. balance of probability, that the Property is tainted propert!J. 6.74 Tainted property is defi n ed under Section 2 of the FPOCA as shown above . It is .abundan tly clear fr om the d efi nition of taint ed propert y that if the prop e rties ar e tainted prope r ty, it is tain ted in r ela tion to a ser iou s offence , it is proceeds of the offenc e . A serious offence is equal ly defined und er Section 2 of the FPOCA as : J82 "'Serious offence' m.e an.s a.n offenc ,e for which the maximum p~n~lty presc1 •fJ?ed __ by law is death, or imprisonment for not less than twelve 1nonths." 6. 76 Bas ed on Section 31( 1) of the FPOCA , th e onu s of pro ving t h at a property is tainted to the sat isfaction of t h e Court falls on th e App licant. Th e provision stat es as follows: "(l) Subject to subsection (2), where a public prosecutor applies to the court for an order . unde.r this sectio _n and the court · is- satisfied on a balance of probabilities that the property is tainted pro.12.?rty, the court may order that the property, or such ofth.e property as is specified by the court in the order, be forfeited to the State ." (Emphasis ours) 6.76 This is further un derscored by Section 34 q f the FPOCA which states that: ''The applicant in ·any-prpceedings unde.r this Act bears th~ onus of protring the matters_ necessary to e_sta,l,Zi s h · 'the grpund.~ for- making t he order .a_ppz.le.(1 for .~~ 6.77 The standard of proof r equ ir~d is on a balance of probabi lit ies us ed in civil p ro cee dings, as opposed to th e standard of proof in criminai matte rs which is -beyond . a reasona bl e doub t. We are fortified by Section 33 of the F'POCA w hi ch states a s follo ws : "(1) Any proceeding on an app lication far a 1·estra ining order:, forfei .ture . order. .or confisca.tion order is . n ot a . cri.111.in.a.l proceeding; . ·. ·.· .. · (2) Excep t in relat.ion to an offence under this A ct- -· J83 a) the rules o.f construction applicable only in relation to cr'im .inal law do not app ly in th..e interpretation of this Act; and b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act." 6.78 Other than the definition of 'balance of probabilities ' in Black's Law Dictionary .above, . Lord Denning, in exp la inin g the mean ing _of "a balance of probabilities" in the case of Miller v Minister of Pensions (34 1 stated as follows: "That degree is settled. It must carry a reasonable degree of probability, but not so high as is required in criminal cases. If the evidence is such that the tribunal can say: 'we think it .more probable than not' . then the •burden i.s .discharged." 6 . 79 The Applicant must adduce evi d ence to satisfy this Court in attempt,ing to fulfil t h e prescribed r equi remen ts of Sections 31(1) and 34 of the FPOCA. 6.80 The Applicant has submitted in the Affidavit in Support and Reply as well as in their ora l .subrr1iss ions that having r e ceived information to the effect that the subject Property, bei n g Plo t No. LUS i 38478 in Lusak a , • acq~ired between 2013 and 202 2, was r easonably suspe cted to be proce eds of crime, instituted . inves tigation::, and found . that the said Property belonged to t h e Interested Party , Mr. Charles Phiri as .per Certific a te of Title. It ·was submitted that the est:n1 a te cost of const ruc tion of the three store y Lodge on the property as per -the Priced Bill of Qua..l"ltities exhibited • and marked J84 ,:EK 3 '' was ZMWlS,549,422.22, interpolated to ZMW9,069 ,699 .87 as per the Statement r ecorded fro _m a Quantity Surveyor from the MIHUD exhibited and marked "EK4" . 6. 81 Bas~ on the findings above, it was decided to investigate the financial capac ity of the In terested Party w hi ch revea led that he had a Zambian Kwa ch a Account and a United States Dollar Account with FNB opened on 2 nd Lluly, 20 15, and 20L h October, 20 16 , r especti vely . Further that the Interes ted Party had around 16th November, 2021, so ld 10,892.3890 h ecta res of land, . being Property No . F/Mpik a/ 19 12933 for USDl00,000.00 a nd paj cl ZM\iV87,250 .0 0 in Prop erty Transf e.r Tax. 6.82 That following a nal ysis of the Inte rested Party's accounts and known income a _nd expenditure for the p eriod 1st AugL1st, 2 015 , to 8 th June, 2023 , it was r eve aled th a t th e Int e rested Party had incom es of ZN1'N875 , 155.54 , USD 1_00 ,00.0.00 and USD 2,850. 00 which revealed a variation of ZMW502 ,43 and USD99,251.33 respectively. 6.88 That following this anal ys is , a co mpar ison of the kno,;v n income of ZMW875 , 155.54 .and -USD10 2, 101.3 3 , which it was submitted came after the con$truction period around 16 t h Novernber, 2 0 2 1, aga ins t the esti mat e d cost of construction of th e three $to rey Propert y valued at the int erpolated amount of ZMW9 ,069 ,699.87 , gave a va riation cf a:b01..lt ZM\1/5,642,0 11.0 8 above the Intere ste d Party's known incorne. 6 .84 The -Applicant exte nded its in vestiga tions to ZRA with regards to th e Tax Ret urns for th e lnt er estecl Par ty an d Cre st Lodge , bein g the three ,...sto r ey building const r ucted on the . Pro p erty .. 'It \~'as subn1itted that t he investigations, \lirh ic h include d a rec ord e d Statement from . t h e Ass istant Dir ector Inv estiga tio ns . at ZRJ'\. exhibit ed a nd rnark cd "EH8 ", revealed. that ta'<es on Crest Lod ge, a goi ng co n cern s inc e J85 2017, had not been paid which pointed to the serious offence of Tax Evasion. 6.85 It .was ·subm itted that a revi ew of the Inte .rested Party's Tax Returns and known incorr1e and expend iture showed th at during the estimate d period of construction of the Lodge , between 2015 and 2017, there was no incon1e to justify the estimated cost of construction of the said Crest Lodge on the Property . 6 .86 With regards to the Land Use Agreement, exhibited as "CPS" in the Interested Party's Affida v it in Opposition, it was the Applicant's submission that the same was created Eight (8) · years after the alleged verba l agreement and only when the Interested Party was faced with a Forfeiture Application and, being a Lease Agreemen t , was not register ed as required by law. 6.87 lt was the Applicant's contention that the creation of the said Agreement, · does not ipso facto estab lish rhe . Developer's; .being Mr . Edgar Chagvva Lungu, capacity to d evelop th~ property in question . Further to thfa, that n.o evidence \Vas. ten~ered to shmiv that Mr. Edga.r Chagwa Lungu actual ly developed the said . Propert y nor was evide nce tendered in the form of money transfers frorn any . bank account or· directly paid for th e constructio n of the Property. 6.88 It was further contended that Mr. Edgar Chagwa Lungu has • not enter.eel. Appearance as an Interested Party and .a dduc e d the relevan t evidence to sho :w his int erest in. the said Prop erty and to show his capacity to constr uct the said Property. 6.89 It y.,as submitted that d espite the · PACR. A Print Out , exhibited and marked as "EKV' in the Affidavit in Reply, sh.ovving that Chiyeso Lungu is .a Director in .the Lodg e, she too bas not entered. Ap p earance as an Int erested Party. J86 6 .90 It was subrnitted that the Intere ste d Party failed to give reasonable ?nd sufficient explanation of how he managed to construct the Prop erty in question. This led to the seizure of th e said Propert y as it was submitted that evidence has be en sufficient ly adduced showing that th e Prope rty is tainted prop erty and liabl e for for feiture to the State as it was reason a bly susp ected, on a balan ce of prob a bilities, to be tainted propert y and therefor e a proceed of crime. Th r, copy of the Seizui;-e Nobce wa!::~ exhibited and marked "EK9" . 6.91 Vie agree . with the Applicant's assertions as well as the evidence t endere d that the development costs of the Property far excee ds the Int eres ted Par ty's legitim ate· financial means , a nd that th e finan cia l outlay re quired for the Property's d evelopment remains unexplained. This does cast. doubt on th e Inte rested Party 's • fin a n cial capac ity to develop the Prop erty based on the Appli cant 's investigations coupl ed ~ri.th th e Land Use Agreement created h ap h azardly in May, 2024 . ··---_;:._----_:__ _ _:_ __ _ 6. 92 B a sed on th e evi d en ce a dd1.1Ced above by the Ap pli cant, it is our cons id ere d vie~N that the Applicant ha s, on a b a lance of probabilities, satis fied this Court that the Prop erty is tainted property in relation to a serious offenc e . As · the Int eres ted -Part y was in pos sess ion of a Prnperty that \,vas worth far m ore tha n hi s known legiti m ate sources of inco m e, it is our further considered view th at the said Property is proceeds of crim e, an d therefore, liable to forfeiture to the State. (c) Has the Interested Party shown , based on the evidence tendered and on a balanc e of probability, · that he . did not acqu.ire the said i.nterest in the . P,·operty as a res ult of any serious offence carried out by him. J87 : . ... ' 6.93 The Applicant having satisfied this Court accordingly as per Section 31(1) of the FPOCA , the onus of disproving the assertions made by the Applicant and adducing evidence to the contrary now falls on the Interested Party. 6.94 Section 31(2) and Section 71(2) of th e FPOCA affords defences to the Interested Party. Having found that the Interested Party h ad interest in the Property above, the Interested Party must now add u ce evidence to shO\.v that he did not ac quire the Prop erty as a result of any serious offence carried out by him nor was it derived from any unlawful activity o r conduc t. 6.95 The Interested . Party, Charles Phiri , asserted that he is a q·ualified Registered Nurse vvho worked in vari ous institu tions and w hose professional tenure spans since 1990 .. 6 .96 'fhe Interested Part y subm itted that he had applied for land from the Minis try of Lands .and Natural Resources and . Envir-onmental Protection in 20 i 5 and was issued v.rith a Certific .ate of Title Number 8508 for th.e Property in question being Number LUS / 38478 situate in Lu saka . That he paid ZMvV2, 122.51 as consideration for the same. 6.97 The Interested Party submitted that the Prop erty ,:vas developed b y the former Republican President, Mr. Edgar Chagwa Lungu and a c opy of the Land Use Agreeme nt between th em was exhibited and mar ked "CPS". 6.98 The Inte r es t ed Party submitt ed that at the tim e ·of purchasing the Prop erty he-had the capacity to pay the ZMW2, 122 . 5 1 consideration, but tbat it was Mr. Edgar Chagv,ra l,ut1gu vvho develqped the Propert y and erected the three Storey Lod f::,.re thereon, as .he had the capacity as he is a Lawye:::-who later $erved in vari ous ·positions including that . of President of the R.epubJic of Zambia for Seven (7) yea rs. The J83 Interested Party deposed in his Affidavit in Opposi tio n that he firml y believes that Mr. Edga r Chagvva Lungu is likely to possess the ~ost acc.urate .information ·rega r ding th e· full' construction price or costs of th e Lodge. 6. 99 Th e Interested Party argued that the Bill of Quantities exhibited by the Applicant in their Affidav it in Support does not state the per iod the estima ted prices were obtained and that if the price estimates were as at Novernbe r , 2022, then the Bill of Quantities is mater ially mislead ing as . the structu r e on th e Propert y had a lready been completed, occupied and commercially utilised by then. 6.100 As _ regards the a llegation of Tax Evasion, the Interested Part y deposed that had Mr. Emmanuel Kh ondowe con.d ucted a thoroug h investigation; he wou ld have found that the Interested · Party is not ninning any busi n esses at all th at wou ld ,varrant such an accusat ion. 6.101 It was the Int er ~s ted Party's subrriission that hav ing sold . his lsrwfu1ly acq uir ed -prop erty beir:ig F /Mpika/ 1912933 at a cons id eration of USD 100 ,000.00 and paid Propert y Transfer Tax to ZRA , this den1 onstra tes that be do es lawfu lly n1ake rr1_oney outside h is formal empl oyme n t ancl outside .the monies going through his AcGo.unts. 6 . 10 2 li was the Interested Party's co ntention that the Property is not tain ted nor can it be categorised as such as the, Applicant has not brought any evidence showing Lhat the Property is connected to any c;:ri1ne whatsoever. · 6 .103 . Fur.ther to the a bove, it was submitted ·th at the Property was lawfully acquired with legal and traceab le sources of ir1co:me and .further that the Interested Party had disclosed to the Applicant the . ' J89 identity of the construct in g part y as per exhibit "CPS" being the Land Use Agreement. That the Interested Par~y had no reasonable grounds to believe that prior to acquiring the said Property , it was ' ' tainted. It was conten ded therefore, that the Applicant's analysis of the Interested Party's incom e and expenditure and ability to construct the said building on his Property is unfounded. 6.104 It was subn1ittcd that by virtue of Section 31(2) of the FPOCA , the Court can not order forfeiture of the Property and referred us to the case of Regina Chifund,a Chiluba Vs The People (1.4 1, supra, and contended that having informed the Applicant or investigating officer how the property was acquired and d evelope d , it was unreasonable for the Applicant to harbour suspicions a.s to the source of the property. 6. 105 We have consi der ed the Interested Party's subrnissiens in defence of the impugned Property. 6 . 106 The In terested Pa rty, . in defending the impugned Property, has subrnitted that he . is a quahfied and Registered Nurse who has worked -since 1990. A perusal of the evidence subrnitted by the Interested Part y with r egards to t hese assertions shows . that h e has .failed to produce evidence t hat h e is a qualified and Registered Nurs.ed by way of Academic Certificates .and further to this , he has failed to a d0u ce evidence to show his earnings over the per iod he [ cJaims to have worked . . 6.107 \Ve have no. doubt, based on the Appl"icant 's evidence of the Interest ed · Part y's Bank Statements · cover ing the p e riod . in quest ion that .the Int erested Party ·had th e financial capacity to obtain Title to the sa id Prop erty by pay ing the requisite J90 Consideration of ZMW2, 122.5 1 to the Ministry of Lands in 2015, and the Applicant has not disputed this. 6.108 The Applicant 's contention in casu is the Interested Party's capacity to construct the three-s tore y building or Lodge known as Crest Lodge, on the said Property . 6. J 09 In his defence of the Property, the Jnterested Part y submitted that the Lodge was constructed on the Property by Mr. Edgar Chagwa Lun gu by way of the Land Use Agreement exhibited as "CPS " dated Eight (8) years after the fact. It was the Interested Party's contention that Mr. Edgar Chagvva Lungu had the capa city, presumabl y financial, to erect the three -storey building thereon and that it is only him that is likely to possess the most accurate information regarding the fu ll construction pnce or cost estirn.ated at ZMW9,069,699.87. · 6. 110 Mr. Edgar Chagwa Lungu 1s not an Int erested Part y m these Proceedings and bas not therefo!'"e tendered ·evidence .to defend the Property, nor. to ~ubstantiate the In terested Party's assertions as to his capacity financial o-r otherwise to construct the three -st orey lod ge . 6 .111 The only evidence tendered by the Interested Part y with rega:rqs to the construction of the three --storey building on the Property is the Land Use Agreement. . 6 .112 Th e Applicant . has vigorously . argued against the Land Use Agreeme nt's · validity and subm itted that the Agreement. was not registered as requi red by law and that none of the conditions contained therein, being payme n ts of rentals or compensation upon certain ,2.ttain rn ents to the landowner, th e Interested Party, have been fulfilled. J91 6.113 Other than. the fact that the Land Use Agreement was created Eight (8) years after the alieged verbal agreement, it '\. Vas the Applicant's contention that the [nterested Party has failed to produce substantial evi dence in the form of clear, traceable and legal s ources of income used to develop the Property. 6.114 Perusal of the Land Use Agreement ("CPS"), made on 2 110 May , 2024, and described as a docurr1entary embodiment of an oral agreen.rent entered into in th e year 2016, ~hows that the te rms and conditio n therein mee~ the description of do cuments that ,requires registration as prescribed by Section 4 of the Lands and Deeds Registry Act. 6.1 J 5 It stipulates that the Lan downer, being the Inter ested Part y herein , leases to the Developer, Mr. Edgar Chagwa Lungu, and .. the Developer leases frorn the Landowner prop e rty known as Stand 0 8478 • . ' J . the · impugned Property, for the sole purpos e of c0nstructing and operating a lodge. It is stated that the term • of agreement is for a. period of 20 yea rs commencing the 1s t dqy -of Ma.y, 2016, . during which period the D eve loper shall be at liberty to ope:rationalise the Propert y . 6.116 The Land Use agreement goes on further to state that the Develope1· shall at the · termination of the agree ment relinquish a. JI int eres t in the Property, and subject to entry into a new agreement or. a renewal , the Landown e r shall be at liberty to t a1,ce full control and possession of the Propen y . 6.117 h stat.es .under Lhe heading Use of th e Prop e rty and Construction Value ·at Paragraph 3 as follows: w1•he Developer shall have the exclusive right to use the Prope,1:y for the construction and operation of a lodge at a )92 value estim .ate of ZMW.12,000,000.00, including any ancillary facilities deemed necessary for the operation o.f . . ' the lodge." 6.118 The document 1s signed by both the Interested Party, as Landowner, and Mr. Edgar Chagwa Lungu, as Developer. 6.119 It is trite that a docu.rnent, such as the La nd U se Agr e ement must be registered. This is a mandator y requir emen t under the Lands and . Deeds Registry ·Act . Chapter -185 of the Laws of Za1nbia. Section 4 of the said Act s tates as follows: "(.1) Every document purporting to grant, con-uey or t,·ansfer land or any interest in land, or to be a lease or agreement for lease or permit of occupation of land for a longer term than on,e year, or to create any . charge upon land, whethe ·r by way of mortgage or otherwise , .or· which e.vidences th~ satisfact;io ,n .of any · mortgage or c harge, and all bills of sale of personc1:l property whereof the grantor remctins in appa,:-ent · possessi,;,n, unless already registered pur;511-ant to the provisions of "Th.e Nort'J:r,-Eastern Rhodesia Lands an.d Deeds . Registration Regulations, 1905" or "The No,-th-Wester,:i Rhodesia Lands . and . Deeds R.egistry . Proclamation,- .1910", m~,st be re gistered within . the t -im es he:reina.f'te1 · specified in '.the ·•Rf:~gistry -or in. a Dist r i ct Regi.str y if elig ible:Jor ,regist1·ati0.n in such District Registry: .. , ·(2. J Any . docuinent required or permitted to be registered affecting land, persons, property or rights J9 3 • • ·• 'M fl' , , r .. • ' . in any district for which a District Registry has been appointed may be registered either in such District Registry or in the Registry." 6.120 The time fram e for r egistrat ion of documents is prescribed 1n Section 5 as follows : "(1) All bills of sale must be registered within three months of th~ exec uti.on of the same . (2) AU ot_her documents, except probate of a will, required to be registered as aforesaid shall be -registered- (a) in the case of a document executed at the place where it is registered, within thirty days from . its date." 6.120 Further to the above ; Section 6 of th·e.- Lands and Deeds re quir es that any docum en t th at Regisby Ac t . states registration ; and is not registered, provision st~te ·s as follows : ~~Any document required is ·null' and void . "The to be registered as aforesaid . and not registered within the time specified in the last preceding section shall be null and void ... " 6. 122 f t is o.ur co ns idered view t h at based on t he . ab ove cited provision, and -without evid ence of registration of the Land Use Agreement being . tend ered, nor an applicat10n having been rnade ta extend time within vvhich to have the s~d do cume n t registered as per Section 6 of the Lands and Deeds Re gistry Act , the said Land Use Agre em ent is nu ll and void. 6.123 Vl/e a r e buttre ss ed. in our finding by the case of Sundi Vs Ravalia (35 l wh ere th e equ ivalent of Section 6 of the Lands and Deeds Registry Act ,~·as interpreted to m ean that such document s not registered were without legal e ffect. 6.124 In the case of Manuel Mota De Sousa Vs John Kees Mumba (36), the Supr eme Court found as follows : "'An option, just as a contract of sale, is an interest in land and in terms of Section 4(1) of the JJq.nds and Deeds Registry Act , Cap 287, . this ought to be registered a .nd in terms . of Section 5(2J(a) of the same Act must be registered within. thirty days of its execution. Failure to do so makes the document null and void as provided under Section 6 of the Lands and D.eeds Registry Act .and rnakes the contract un.enforceaJ,Ze. In our . Present .case there .is no ev·1dence -tha ,t the sale qgree .men t or ''.opti on ". was registered in the Lands and D~eds Regi$try q.s required within the stipulated t ·in1e 01· at .all. Further ther e is no evi<J,ence that an application is. pending befor e the High. Court for it to be registered out of time. The effect of this failure is tha t the doc;ument is .null and . VQid." (Emph~sis ours) 6 .1 25 Furth er - in the ·case of Examinations .. Cou ncil of Zambia Pension. Trust ·Schen1 e Registered Trus tees · & Another Vs Tecla Investments · Lirnited (3.71 · the .· requiremen t • and c onsequ ences of non -regist r ation of a do cument v,ras eq u a lly espoused b y the Supreme Court as follows: J95 "It is agreed that the lease agreement was not registered as required by section 4( 1) of the Lands and Deeds Registry Act. There can be no dispute either that section 6 of the Act provides for the consequences of failure to register any document that is required to be registered under section 4. Such document shall be null and void. In Krige and another . v Cl;t.ristian Council of Zambia and Makanya Tobacco Company Limited v J & . B Est(l.tes I.,imited -we dealt . with the same issues and we held that the effect of non-regist1·ation of a document that is required to be registered is that it is void for all ,7 purposes . . whatsoever. This is well settled law .... Whate ver may be said about the lease, the truth is . tha .t since . it , was void for lack of registration, it could not be enfo1:ced or relied upon. ·1 ' 6 . 126 We a~opt the Supreme Courts pron ounc emen t on the requiren1ents of S ec tion 4 of the Lands a.nd Deeds Registry Act as well as the guidance given in the above cited cases. It is consequently our cons idered vievv that the Land Use Agreement .being fronted by the Interested Party is null and void for ,,vant of registration and cann ot be e nforc ed nor re lied .,.,.,.,. _.--, upon. vVe will not consider it a s it has no lega l effect . 6 .1 27 Hav in g· found thal lh c Land Use Agreemen t. has no legal effect , all that remains is f"or' t ne ln terested Partv t o adduce ev'idenc ie to show that he djd not acquire the in terest in the Property as a result of any ser·ious offence car ried out by hi m .. J96 6.128 The standard of the evidence to be add u ce d has been aptly set out in th e persu asive Ken yan case of Assets Recovery Vs Peter Oluwafemi Olawon (23 l as follows : "In civil forfeiture proceedings, the burden of proof initially lies with the Applicant, who must establish that the properties in question are likely to be proceeds of crime. Once this is established, the evidentiary burden shifts to the Respondent, who must demonstrate and justify that th.e properties are legitimate and not acquired through illicit means. The Respondent rnust provide a practical and sufficient explanation to satisfy the court regarding the source of the properties. 1'he Applicant's role is to raise doubt by presenting e-viden.cc suggesting that the .property rnay have been acquired through criminal or dubious means. . Ol3,ce this .doubt is · established, the Respondent must offer a satisfactory explanation and evidence that is solid, honest . and . beyond co'f]j_ecture · or misinformation. The evidence must be clear, logical, consistent, believable and convincing. -The Res pond ent must demonst'f.'.ate honesty and avoid being evasive..i . scap egoating, or misleading. A c_ceptab.le pro<2. LQ.f.te1-1 . . i-nc ludes p.ays ljps, 11a.nk statements, .~1n.oney -trc,nsfer , records , . "testamentary wills etc., provided the informa tion. substantially reducf.!S the doubt -ra ised by-the Applicant." (Ernphasis o-urs) • I ,' J97 6.129 Perusal of the Record shows th at the Interested Party's only defence to the allegat ions made by the Applicant wit h r egards to the P roperty being proceeds of crime and tainted property are that Mr. Edgar Chagwa Lungu offered to d eve lop the Property and bu ild a modern lodge thereon and proceeded to do just that. The Interested Party goes on to give a summary of Mr. Edgar Cb agwa Lungu 's career attai n ments and submits that h e has no reasonable basis for doubting his capac ity to bui ld th e- structu r e on his Property . 6 . 130 We , as a Court, cannot. be swayed by mere declarations and postur.ing as to Mr. Edgar Cha/5\va Lun gu's cap ac ity, or indeed the Interes ted Party 's capac ity to construct the said building without reliable and . provable evid ence demonstrating legitirnate finan.cia l wherewithal as guided in the case of Assets Recover y Vs Peter Oluwafemi Olawon , supra. We have held this positior-1 in var ious cases such as The Director of Public Prosecutions • In Re Property Chiyeso l;.,ungu 12 6 l, and emp h asis _ed the need f?r Inter~s t ed Parties to offer satis factory expl anatio ns and evidence that is solid, honest and beyo nd conjecture or rnisinformation . in The Director of Public Prosecution In Re Property Henry Banda and 2 Othe1·s (38l. 6. J 31 Tbe Interested Party'.s submission that he firmly believes that Mr. Edgar Chagwa L1..1ngu is likely to possess the most accurate insufficient inform .a6on . r egard in g the fu11 constn,1ction ·· costs is equally to m ~et t h e requir ements or S ,ections 30(b) .and 31(2) o[·the FPOCA and fails to r educ e the doubt raised by the Applicant. Mr. Edgar Cha 6n.va Lungu h as nor risen to the c.a ll of Section 30(b) and Section 31(2) and has not presented J98 himself as an Interested Party m the defence of th~ said Property. 6.132 Once the Applicant has discharged its obligation and satisfied this Court on a balance of probabilities that the Propert y is tainted property, the onus is on any Int ereste d Party to come forward in defence cf the Property. Th e Applicant is not obliged to compel any int e rest ed Party to come forward beyond the Notice of Application as provided for in Section 30 of the FPOCA . 6.133 1 The attempt by the Interested Party to present the Land Use Agree1nent as the basis for legitim.i.sing his interest in the said Property has not onl y fai led as a result of t h e non-registration of the Agreem ent as required by the Lands and Deeds Registry Act, but even if it were regist _ered acco rdingl y, it would not, by itself, be ·sufficient to show interes t as required . by th e FPOCA. The_ Land Use Agreement is expected to have been tendered with evidence that n1ust be solid, honest, _beyond peradventure, beyond guess work or misinform2 Ltion. It must also be clear, logical, consistent, believable, and convin .cing, It. must be back ed or supported by sufficie::.'1t evidence by the Developer of his , capacity · to build the Lodge and the legiti1n acy of his sc.n.,1rce(s) of income. 6.134 \Ve agr ee with the Applicant's subn1issions, and the findi ngs in th e cases ,referred to of Kabwe Transport Company Limited Vs Press Transport Company Limited (15) and Shamwana and Seven Others Vs The People !16l which under s cored the necessity of presenting concn~te evidence to support one's claims · and that documentary evidence cruc ial 1n J99 establishing the veracity of claims, that concrete evidence such as financial transactions, and formal . agre~me .nts wit~ suppliers for the Property's construction, inter a. Zia, is required and that the lack of such evidence leaves significant questions unanswered. 6.135 C01 . .1nsel for the Interested Part y referred u s to the case of Regina Chifunda Chiluba Vs The People l 14l and sub mitt ed that the Cou rt espous ed the principle that once the evidence shows that the Applicant knows the origin of the thing, then there is no suspicion as to the source of the Property; that essen tiall y, the Interested Party having disclosed ho w the Property was built and by whom, has discharged its burden u,nc::ler Section 31(2) of the FJ>OCA and that this principle sho uld be applied to th e case in casu. 6.136 It is our considered view that this r end iti on of the Regina Chifunde. ChUuba ca5c, supra, is fiction. We will proceed to quote our _posi tio p from our Jud gment in the case of The Director of Public Prosecutions In Re Property Chiyeso Lungu t26 ) w here Counsel for the Parties . a re the sarn ·e in casu., as follows: "5 . 40 The Interested Party's submission that once the In.tcrestecl Party had pointed the Applicant to the father a .s. the . source of money, then the Applican.t should have followed the father does not, in our i,iew, .hold sway. We .. are -not persuaded by the .. case -·.of 'the Regina Chilu.ba v 7.'he -People 21 cited by the Interested Party. The view we take is th.at . Regina Chiluba . . case . is distinguishable fr@rrt- the case in ,, •• !, • • • Jl CO ..., casu on many fronts as will be demonstrated presently to put into context our position. 5.41 In the Chiluba case, evidence was adduced pointing to the fact that the Appellant in that case Regina Chiluba used to receive money from former and now late Republican President, Dr. Chiluba. There was a document prepared by the Appellant for tax purposes and in that document the Appellant was declaring that she had received from Dr. Chiluba, over a period of time, US$352,000. There was a witness who had dealt wi t h t he Appellant 's declaration from the Zambia Revenue Authority who told Court that the Appellant prepared the dee laration form in the presence of Dr. Chiluba. There was also another witness, the First Secretary at the Zambia High Commission in London , who testified that Dr. Chiluba instructed him to deliver to the Appellant, in London, a sum of US$45,000.00 which amount the witness said he actually delivered. 5. 42 Flowing from the above , t he S upreme Court held that the moment evidence was adduced pointing to Dr. Chiluba as being the source of the money which could not be accounted for by the Appellant's businesses, then the suspicion that the Appellant had stolen or unlawfully obtained the ex tra money was effectively removed." Jl Ol 6.137 We reit erate that the Regina Chifunda Chiluba (14l case is distinguishable as further and sol id evid ence was a ddu ce d by the applicant to substantiate her claim that the former and late Republican Presid ent , Dr Chiluba , was th e sourc e of the impugn ed funds. Therefore, mere disclosure of the constructing p arty, let alo n e the produ ction of the Land Use Agreement, is not sufficient evid ence to defend t h e Property and discharge the evid entiary burd en that the FPOCA casts upon persons who claim and pres ent themselv es as an Interes t ed Party in property deemed to be tainted or procee d s of crim e. 6.138 The Interested Pa rty attac k s the Priced Bill of Quantities exhi bited as "EK3 " in the Applicant 's Affidavit in Support contending that it does not state the period the estimated prices were obtained and that if the price estimates were as at Novernber, 2022, then the Priced Bill of Quantities is materially n1isleading as the structure on the Property had alrea dy been completed, occupi ed and comm ercial ly u tilised by then. 6 .1 39 The Applicant in Reply submitted that the price estimates contained in the Bill of Quantities are as a t November, 2022, and therefore clearly denote t h e time frame of the est im ates. It was the Applicant's contention that completion, occupation , and commercial utilisation of the structure by November, 2022, does no t n egate t h e val idity of the cost est im ates provided for t h at period. 6 .140 Having perused th e docu1nents submitted by Counse l, ,ve have taken note that in the Applicant's Affidavit in Support, they have submitt ed, as per the Pri ced Bill of Quantities, that the J102 estimate d cost of constr u ction of the building on the Property as at November, 2 0 22, was ZMWlS ,549,422.22, and b ase d on the Dollar r a t e from 2 015 to 201 7, the period the Lodge was constru cted, the cost was interpolated to ZMW9, 069 ,699.87 showing a more accurate estimate of th e cost of construction. 6.141 It is this interpolated cost of co nstruction th a t the Applicant has us ed to argue its case and we find nothing misleading a bout it. It is equ al ly not lost on us that th e La nd Us e Agreement entered into between the Int ere sted Part y a nd Mr. Edgar Chagwa Lungu , and describ ed as a docurnentary embod ime nt of an oral agr eem ent ente r ed into in the year 2 01 6, est imat es t h e cons tru c tion cost at ZMW 12 ,00 0 ,000 .00 , a price high er than that estimat ed by th e. Pri ced Bill of Quantit.ies. \Ne therefore find n o m erit in th e In terested Party's argument . 6.142 The Interested Pa rty in hi s Affidavit in Oppo sition re fu tes th e Applicant's all ega tions of Tax Evasion -by su bmittin g that had the Applicant condu cted thorough investig ati ons, it would have been found that h e does not run any bu s iness to warrant this a llegati on. The In te r ested Part y goes further and subn1its that h aving sold hi s lawfull y acqu ired proper ly, F /M pika / 1912933, at a consid er ation of USD 100,000.00, ar~d paying the requisite Prop erty Transfer Tax, which was known to the Applic?..nt, it dernonstrates .th at he does lawfull y m ake substantial mone y outside his formal employment. and outside monies go m g through his accounts . 6. 143 The rnterested Part y's submissions above only further serve to shrJw that h e h as no discernible legit imate in come made J103 through enterprise that could be proffered as evidence to defend the Property, and further he has not produced any shred of evidence that he makes substantial money outside of his formal emp loyment apart from stating the amount earned from the sale of the property F /Mpika/ 191933. The Interested Party has not provided proof of income earned in and outside his formal employm.ent, supported by income tax returns nor payslips or bank statements. 6.144 Having considered the evidence tendered by the Interested Party in defence of the Property, we find that the Interested Party has not adduced sufficient evidence on a balance of probabilities , that he had capacity to develop the Property to the satisfaction of this Court, nor has he refuted the Applicant's conclusions based on its investigations that the Property was acquired by unlawfu l conduct . 6.145 Pointing to the Land Use Agreement has not served the Interested Party not on ly because of the failure to register the Agreement as required by law, but further that no additional evidence was tendered to show that legitimate sources of u1com e were used to construct the Lodg e thereon. The Interested Party has .not submitted sufficient evidence to show that the Propert y is not proceeds of crim e and was la:-wfully acquir ed by tendering into evidence proof of legal a nd traceable sources of income used i.n the development of t he Property. 6. ]46 Subrnissions on Record point to the fact that the Propert y was built between 201 S and 2017 and that it was commerciall y viable in November , 202 2 . Lack of eviden ce to show that the conditions set out in the Land Us e Agreement have b een or are Jl0 4 . " being fu lfilled may lead one to infer that not only was it an afte rthqu ght, h aving been produ ced eight (8) yea r s . a fter the fact, an d close to one year after commencement of these Proce edings , but th at it is indeed fabricated evidence that does offend Section 108 of the Penal Code and can be concei ve d as tampering with evidence as a llege d b y the Applicant. 6.147 The Int erested Party has, in our view not discharged the evide nti ary burd en th at th e FPOCA casts upon persons who claim · an inte r est in property deemed to be tainted or procee ds of crirn e as required by Sections 31(2) and 71(2) of the FPOCA . 7. CONCLUSION 7 .1 For the avo ida nce of doubt, we fin d that the Applicant's Originating Notice of Motion for an Application for Non-: Conv ictio n Based Forfej ture . Order of tainted propert y succeeds. 7.2 \Ve find that the Intere sted Party was in possession of Property which was reasonably suspec t ed to b e proc eeds of crim e, as sta ted in Section 71 of the FPOCA, which is a ser ious offence and for whi ch he failed to explain its acquis ition . 7.3 The Interested Party 's Prop erty, being Prop erty No. LUS/38478 housing one (1) th ree Storey Lodge in Ibex Hill, is forthwi th forfeited to the Stat e to be app lied as the Dir ector of Public Prosecutions deems fit vv·ithin th e confines of the law. 7.4 The Int erested Party, having satisfied this Court as per Section 31(2)(a) a nd (b)(i) of the FP OCA , sha ll forthwith be r eirn burs cd the value of the land only , being J.,US/ 384 78 situated in Ibex Hill Lusaka, by the Applicant . nos 7. 5 The Interested Part y is, in cons eque nce, cond emn ed in costs to be taxed in d efaul t of agr eement. DELIVERED AT LUSAKA THIS 28TH DAY OF MARCH, 2025 P. K. YANGAILO HIGH COURT JUDGE A. MALATA-ONONUJU HIGH COURT JUDGE S. V. SILOKA HIGH COURT JUDGE J106