Thelma Maunga (suing in her capacity as administrator of the estate of the late Suzyo Nyika) v The Anti-Corruption Commission and Anor (APPEAL No.5/2024; SCZ/8/37/2023) [2025] ZMSC 10 (17 April 2025)

I IN THE SUPREME COURT FOR Z HOLDEN AT LUSAKA (Civil Jurisdiction) JuurCtARv I 7 APR 2025 L No.5/2024 Z/8/37 /2023 IN THE MATTER OF: ARTICLE 2 UTION OF ZAMBIA (AMENDMENT) ACT NO. 18 OF 1996. ENFORCEMENT OF PROTECTIVE PROVISIONS. ~......::a~.-~• IN THE MATTER OF: ARTICLE 16 OF THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 18 OF 1996. PROTECTION FROM DEPRIVATION OF PROPERTY. IN THE MATTER OF: ARTICLE 18 OF THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 18 OF 1996. PROVISIONS TO SECURE PROTECTION OF LAW. IN THE MATTER OF: A DECLARATION THAT THE SPOUSE OF A DECEASED CANNOT ANSWER FOR THE DECEASED'S ALLEGED CRIMES. IN THE MATTER OF: A DECLARATION THAT THE ESTATE OF A DECEASED WHO WAS NOT CHARGED OR CONVICTED OF A CRIME DURING HIS LIFE CANNOT BE SUBJECTED TO SEIZURE OR FORFEITURE. IN THE MATTER OF: THE ESTATE OF THE LATE SUZYO NYIKA BE1WEEN: THELMA MAUNGA (SUING IN HER CAPACITY AS ADMINISTRATOR OF THE ESTATE OF THE LATE SCJZYO NYIKA) AND APPELLANT THE ANTI-CORRUPTION COMMISSION THE ATTORNEY GENERAL 1 ST RESPONDENT 2ND RESPONDENT CORAM: Wood, Kabuka and Chisanga JJS On 5th November, 2024 and 17th April 2025. Jl Scanned with (ii CamScanner- I For the appellant: Mr. J . Chirwa Messrs. J Chirwa & Company Mr. B . T. Munalula, Messrs. Munati Chambers For the 1st respondent: Mrs. G. M. Muyunda, Assistant Legal Director For the 2nd respondent: Mr. N. Mwiya, Principal State Advocate JUDGMENT CHISANGA, JS delivered the Judgment of the Court. Cases referred to: 1. JNC Holdings Limited and Others vs Development Bank of Zambia SCZ JudgmentNo. 22/2013 2 . Vangelatos and Another vs. Metro Investments Limited and 3 Others SCZ Selected Judgment No. 35/ 2016 3. Access Bank Zambia Limited vs Group Fiue/ZCON Business Park Joint Venture SCZ/ 8/ 52/ 24 4 . Shamwana & Others us The People ( 1985) ZR 41 5. Zambia National Holdings Limited and United National Independence Party (UNIP) vs The Attorney General ( 1993-1994) 2R 115. 6 . Hakainde Hichilema vs Attorney General Appeal No. 4/2019 BACKGROUND 1 . Suzyo Nyika, now deceased and Thelma Maunga (the appellant) were man and wife, until Suzyo Nyika met his demise on 15th September 2021 . According to the appellant, the deceased was a businessman of domestic and international repute. His business interests lay in transportation, distribution and farming, and were conducted in Lundazi and Lusaka Districts. J2 Scanned with ~ CamScanner- I 2. As far as the appellant was aware, Suzyo Nyika had not, prior to his death, been summoned by any law enforcement agency for interviews, questioning or interrogation for being involved in criminal activities. He was never warned or cautioned for any crime, nor ever indicted for any criminal offence before any Court of competent jurisdiction. The appellant was one of the administratixes of the estate of deceased. 3. About six months after his demise, the respondents caused an inquest to be conducted on the body of the deceased. They decided to do so because they had doubts about the identity of the person it was claimed was Suzyo Nyika, buried at a village in Lumezi District of the Eastern Province of the Republic of Zambia. 4 . The body was exhumed on 11th April 2022 and DNA tests conducted on the deceased's decomposed body, as well as that of his mother, Tyness Nyika. According to the appellant, the respondents believed that the deceased was alive and well in a neighbouring Country, and what in fact lay in the ground as the body of the deceased was a stash of foreign cash. The J3 Scanned with Ci CamScanner- respondents failed to produce the DNA results more than a month after the inquest. I PETITION FOR REDRESS s. The appellant petitioned the High Court for redress under part III of the constitution of Zambia. She complained that she has suffered harassment from the respondents, who have claimed that the deceased had committed unspecified crimes, and that part of his estate was comprised of proceeds of crime. The respondents seized the property of the deceased and denied the appellant and other beneficiaries enjoyment and use of the estate of the deceased. 6. In addition to this, the respondents denied the deceased the right not to be condemned without being heard as the respondents' public relations machinery had conveyed a perception that the deceased was either a criminal or involved in criminal activities. 7 • Another grievance was that the respondents have breached the appellant's rights. Article 16 of the Constitution of Zambia has been abrogated, breached and contravened in that the J4 Scanned with (ii CamScanner- respondents seized property without an order of a Court of competent jurisdiction; the deceased was not subjected to due I process; the appellant and other beneficiaries were unjustifiably deprived of the estate of the deceased. 8. Article 18 of the Constitution has been abrogated in that Suzyo Nyika, now deceased, cannot reasonably defend himself: Thus, the right to secure protection of the law has been abrogated; the right to be informed of a criminal offence and to defend oneself has also been abrogated; the right to be presumed innocent until proven guilty has been abrogated in that Suzyo Nyika was not subjected to a Court of competent jurisdiction to be tried for his alleged offences or to plead guilty on his own violation prior to his death. 9. The appellant asked the Court for the following remedies: i. A declaration that the conduct by the 1 •t, 2nd and 3rd Respondents is illegal, unlawful and unconstitutional hence void ab initio; ii. A declaration that the intention by the Respondents to charge the Petitioner for the purported offences allegedly committed by her deceased husband is illegal, unlawful and unconstitutional; iii. A declaration that the actions by the Respondents to seize and detain property without subjecting the JS Scanned with (i CamScanner- I deceased to due process is illegal, unlawful and unconstitutional; iv. A declaration that the actions by the Respondents to seize and detain property passed through succession is illegal, unlawful and unconstitutional; v. A declaration that condemning a deceased person to penal sanctions without due process is illegal, unlawful and unconstitutional; vi. An order for the immediate return and restoration of seized and detained properties; vii. An order for payment of damages for illegal and unlawful seizure of properties; viii. An order that costs for this cause be home by the Respondent; and ix. Any other relief the Court may deem fit. 1 o . The petition was verified by an affidavit sworn by the appellant. She deposed that her husband, Suzyo Nyika, met his demise. A copy of the death certificate and burial permit were exhibited as proof. She explained that after her husband's demise, the Joint Government Investigations Team (JGIT) raided her premises and seized movable and immovable property on allegations that they were suspected to be proceeds of crime. 11. On 8 th April 2022, the Acting Director General of Anti-Corruption Commission caused a Gazette Notice to be issued, threatening J6 Scanned with I> CamScanner- I to forfeit the property they had seized. The appellant complained that the JGIT, on account of the allegations against Suzyo Nyika, I summoned her to appear before a panel that traumatized her. The objective of the panel was to coerce her into giving information against her husband. 12 . The team threatened to charge the appellant with unspecified offences, and even attempted to charge her as a director of a company in which both the deceased and herself were directors. This, according to the appellant, revealed malice on the respondents' part. Additionally, notices meant for the deceased and the appellant were served late on her, making it difficult for her to respond. This clearly revealed the intent to deprive the beneficiaries of the property which formed part of the estate. According to the appellant, the JGIT has been fishing for offences against the late Suzyo Nyika and herself, but have not succeeded. ANSWERS TO THE PETITION 13 . In resisting the petition, the 1st respondent filed an answer as required by the applicable rule. It averred that the JGIT J7 Scanned with 11 CamScanner- comprised of officers from the respondents, the Drug Enforcement Commission and the Zambia Police. This team was investigating allegations of property reasonably suspected of being proceeds of crime. It conducted a search, and seized property under the Prohibition and Prevention of Money Laundering Act, on 23rd December 2021. The Notice of seizure was served on the appellant. Another search was conducted at Plot No.21 (F401a/21) Lilayi Road off Kafue Road, Lusaka, following allegations that there was property that had been unlawfully obtained. 14 . Additionally, in furtherance of investigations of property reasonably suspected of being proceeds of crime, on 2 nd February 2022, Restriction Notices, pursuant to Section 60 of the Anti-corruption Act No. 3 of 2012, were issued against property No. F/401a/21 Lilayi Road whose registered proprietors were the appellant and the late Suzyo Nyika, and flat No. 12 (KABUL/ 100/787 /CL/ 12) Napsa Housing Complex, Ibex Hill Lusaka, whose registered proprietor is the appellant. The restriction notices were duly served. J8 Scanned with ii1 CamScanner- It was averred that some of the motor vehicles that were found I at the appellant's premises and seized were registered in the names of other persons who were subjects of active criminal investigations. 16 . The 1st respondent explained that some of the property that had been seized was on 8 th April 2022, gazetted for forfeiture under the Anti-Corruption commission (Disposal of Recovered Properties) Regulations 2004, and persons with interest in the property were invited to make claims within 90 days, and substantiate their claims. 1 7. The appellant was served with Gazette Notice No.604 of 2022. She made claims on some of the properties but failed to appear before the investigating agents to substantiate her claims, despite being invited to do so. It was averred that the criminal investigations were still active, and the seized properties were subject of active criminal investigations, pursuant to Section 6 (1) (c) and (2) of the Anti-corruption Act No.3 of 2012. Moreover, the restriction and seizure of the subject properties has been done in furtherance of active criminal investigations as J9 i Scanned with Ci CamScanner-! -------- ----·······---------· mandated by law, including the Republican Constitution in Article 16 (2) (f). The 1st respondent denied abrogating Article 18 of the Republican Constitution as the appellant was and would be given an opportunity to be heard. It denied harassing the appellant nor violating Article 16 and 18 of the Republican Constitution by undertaking criminal investigations into allegations of being in possession of property reasonably suspected of being proceeds of crime. 19. An opposing affidavit was sworn on behalf of the 1st respondent. The contents of the answer were restated, with the addition that five Leyland DAF Trucks, an SDLG front-end Loader, and four motor vehicles were seized on suspicion of being proceeds of crime. Other items seized were four other motor vehicles, two scooters, three motor bikes, speedboats, firearms, ammunition for four types of firearms and two empty magazines. 2 o . The 2nd respondent, the Attorney General, also filed an answer to the petition. It was explained on his behalf that the DNA test on Suzyo Nyika was not done because the finger prints examination confirmed that the person exhumed was Suzyo JlO Scanned with (I CamScanner· I I Nyika. The properties were seized because the JIT's reasonable suspicion is that .the seized and restricted properties are tainted properties which are subject of on-going criminal investigations. The seven firearms and 462 ammunition were not declared upon the death of the licenced owner Suzyo Nyika, in contravention of the firearms Act Chapter III of the Laws of Zambia. 21 . The appellant and the deceased were registered as directors and shareholders in Makali Farms Investments, Garden Grill Lodge Limited and Mayo Security services, which made the appellant an accomplice. The appellant had come to Court prematurely in a bid to circumvent the criminal justice system. 22 . The 2nd respondent averred that the seizure and detention of property is lawful as it was done pursuant to Acts of parliament which include inter alia, the Prohibition of Money Laundering Act, 2001, The Forfeiture of Proceeds of Crime Act, 2010, the Anti-Corruption Act, 2012 and Article 16 (2)(h)(ii)(t) and (u) of the Constitution of Zambia. The 2nd respondent explained that Article 18 is inapplicable to the deceased. The forfeiture and seizure proceedings are civil in nature and targeted at tainted property. Jll Scanned with (i CamScanner- I I I I 23. The appellant, by virtue of being joint administratix of the estate of the late Suzyo Nyika is vested with properties that belonged to him. It is her legal duty to defend the estate on his behalf and show an inventory when challenged. Furthermore, by being a joint owner of properties with the late Suzyo Nyika, the appellant had the right to make representations within 3 months before forfeiture of the seized properties per regulation 3(2) of the Anti Corruption (Disposal of Recovered Property) Regulations, 2004. 2 4 . The 2 nd respondent also challenged the mode of commencement, stating that the matter was a probate action and ought to have been commenced by way of writ of summons. 2 5 • The affidavit in support of the 2nd respondent's answer was sworn by one Byemba Musole, who was Deputy Commissioner of Police in the Zambia Police Service and Head of the Joint Investigations Team. He explained that the seizure notices were issued to secure the properties which were reasonably suspected to be proceeds of crime. The companies in which the appellant and the deceased were Directors and Shareholders had no financial capacity to acquire the said properties. J12 ,-- : Scanned with --- -------------------- ! ii CamScanner- ·--·········------·······---- I I I I I I 26. The appellant and co-administratrix were invited for interviews to establish how the properties were acquired. The appellant stated that she was not aware of some properties and did not know how her late husband acquired them. The co administratrix, Helen Nyika, was also interviewed and expressed total ignorance over all the properties for the deceased. 27. It was discovered, in the course of investigations, that Leyland vehicles were registered in the name of Master Source Limited. When invited by the Joint Investigating Team, Master Source disclaimed the properties, which were subsequently forfeited. The record indicates that all the parties filed skeleton arguments in support of their respective positions. 28. We note that the petition was filed on 31 st May 2022, at the Principal Registry under cause number 2022/HP /0825. It was described as falling under the court's Constitutional jurisdiction. The Answers filed by the respondents also bore cause number 2022/HP/0825. However, the matter was moved to the Economic and Financial Crimes Division and described as falling under that Division. The cause number was also changed to J13 Scanned with ~ CamScanner- I I I 2023/HPEF/06. In all other respects, the particulars were the same. THE HEARING IN THE HIGH COURT 29. At the hearing, three judges, Wanjelani J, Musona J and Yangailo J sat to hear the matter. They sat as the Economic and Financial Crimes Division hearing a civil matter bearing cause number 2023/HPEF/06. Mr. T. Munalula of Messrs. Lusenga Mulongoti Advocates appeared with Mr. Mehluli Batakathi of Muyatwa Legal Practitioners on the appellant's behalf. Mr. Munalula expressed concern with the manner in which a matter that had been commenced as a constitutional matter under the Bill of Rights had changed into an Economic and Financial Crimes Division matter with criminal connotations. The matter was assigned to the civil jurisdiction of the Division, moving completely away from Counsels' initial instructions to pursue constitutional remedies. 30. Mr. Munalula noted that the Economic and Financial Crimes Division was allocated the matter only a few days before the hearing date. He explained that counsel were taken aback when they received a notice that placed the matter before that J14 Scanned with ~ CamScanner- I I Division. It had assumed a criminal ambiance, despite the indication that the matter would be heard as a civil matter. Counsel sought guidance as to which rules would be applied during the hearing. 31 . The Court responded by asking counsel whether the matter had not been commenced in the High Court, and whether the Court seized with the matter was not the High Court. The Court pointed out that it was the Economic and Financial Crimes Division Court under the High Court. It had both criminal and civil jurisdiction and was sitting as a civil panel in that matter. The Court asked counsel how they intended to proceed when commencing the matter in the High Court General Division. 32. Mr. Batakathi's response was that the appellant had invoked the Constitutional jurisdiction of the Court under Article 28 of the Constitution and the Protection of Fundamental Rights rules of 1969. The Court would hear the petition and any evidence the parties would call. It appears the Court was satisfied with counsel's response and proceeded to hear the petition, under cause number 2023/HPEF /06. JlS Scanned with Ci CamScanner- I I / 33. The Court heard testimony from the petitioner, and from one Peter Alison Phiri, who testified on behalf of the respondents. These witnesses reiterated the contents of the Petition and Answers respectively, providing detail where necessary. DECISION OF THE COURT 34. Upon considering the evidence and the submissions, the Court held as fallow: i. The matter was not a probate action, but one concerned with the violation of certain provisions of the Constitution. ii. It was wrong to invoke Article 18, as it was only applicable where a person had been charged with a criminal offence; the investigations were criminal in nature and the issues raised could not be addressed in that civil action; the investigations were ongoing, therefore the claim was premature and lacked merit. iii. It was not legally tenable for the deceased to be made a subject of criminal investigations. Therefore, the claim that he was being condemned to penal sanctions without due process could not arise iv. The right to own property as guaranteed by the constitution is not absolute. Some of the exceptions to the right include deprivation on account of investigations, inquiry or trial. Section 15 of the Prohibition and Prevention of Money Laundering Act, Sections 118 and 119 of the Criminal Procedure Code J16 Scanned with {i CamScanner· I as well as section 60(4) and 5 of the Anti-corruption Act are laws under which the property in issue were dealt with by the respondents. The 1 •t respondent, public prosecutors, The Director General of the Drug Enforcement Commission and Investigating officers in the police service all have power to conduct investigations, Reasonable suspicion warranting the seizure of the properties existed. Moreover, the properties the Petitioner had claimed were subject of active Criminal Investigations. Furthermore, some of the properties that had been seized had belonged to both Suzyo Nyika and the Petitioner, one property belonged to the Petitioner, while several properties belonged to companies in which both the Deceased and Petitioner appeared as Directors and Shareholders. Additionally, the Petitioner was the Administratrix of the deceased's estate. The respondents could conduct investigations into allegations that the property had been improperly acquired as there were persons, i.e. the Petitioner and representatives of the companies, who could respond to the allegations. v. The Petitioner did not make a claim for the property in compliance with the Provisions and Regulation 3 of the Anti-Corruption Commission (Disposal of Recovered Property) Regulations 2004. vi. The seizure and detention of the property was provided for by an Act of Parliament not in conflict with the Constitution. The Petition was dismissed. Jl7 Scanned with Ci} CamScanner· I I / APPEAL I 35. The Petitioner was aggrieved with this decision and appealed to this court on the following grounds: 1. The Lower Court misdirected itself by assuming jurisdiction over a Constitutional matter commenced under Part III of the Constitution when it is a Court of Criminal Jurisdiction. 2. The Lower Court erred in fact and law when it held that the seizures and detention of the deceased's properties was not a violation of the Constitution as it was done pending criminal investigations despite finding that a deceased person cannot be subjected to criminal proceedings. 3. The Lower Court erred in fact and law when it held that the widow and administrator of a deceased's estate can be called upon in a criminal investigation to answer questions about the acquisition of property by the deceased. 4. The Lower Court erred in fact and law when it held that the claim made by the Appellant to the property was not in accordance with the provisions of Regulation 3 of the Anti-Corruption Commission (Disposal of Recovered Property) Regulations, 2004. 5. The Lower Court erred in law and in fact when it found that seizures made by the Drug Enforcement Commission under Section 15 of the Prevention of Money Laundering Act could be properly disposed of by the Anti-Corruption Commission under the Anti- Jl8 Scanned with I} CamScanner- / Corruption Act without demonstrating how the property was transferred from the DEC to the ACC. 6. The Lower Court erred in law and in fact by recognising the existence of the Joint Investigations Team (JIT) and its actions despite there being no law establishing the same and outlining its legal mandate. 7. The Lower Court erred in law and in fact when it declined to pronounce itself on the validity of the seizure notices on grounds of it not being pleaded, when in fact the petitioner had specifically pleaded for a return of the property. 8. The Lower Court misdirected itself by holding that the search and subsequent seizure done in Lundazi were legal despite finding that no search warrant was issued for the said search. 9. The Court erred in law and in fact when it held that the Appellant was not deprived of her property even when it found that she had made a claim to the property but went on to hold that she had to present "something more," a position not supported by any law. ARGUMENTS OF THE PARTIES 3 6 . The parties have filed written heads of argument in support of and in opposition to the appeal respectively. In our consideration, ground one is determinative of this appeal. We will therefore recite arguments directed at this ground only. 37. The appellant contends that the Court below had no jurisdiction to hear this matter. It was brought under part III of the Jl9 Scanned with ~ CamScanner· Constitution, a special jurisdiction. It was no ordinary action at common law or in equity. The principles applicable to such actions were inapplicable to the matter. It should have been dealt with pursuant to the Protection of Fundamental Rights and Freedoms Rules and not under the Economic and Financial Crimes Court Rules. 38. It was an irregularity for the Economic and Financial Crimes Court to assume jurisdiction over a matter commenced by way of a Petition. This rendered proceedings in the Court below a nullity. These arguments are anchored on the decisions in JNC Holdings Limited, Post Newspapers Led, Mutembo Nchito vs. Development Bank of Zambia, 1 and Vangelatos and Another vs. Metro Investments Limited and 3 Others.2 According to learned Counsel, it behoves this court to cure the defect that characterized the whole trial. 3 9 • In resisting this ground, it is argued, on the 1st respondent's behalf, that the 1st ground of appeal arose out of misconception and ignorance of the law. The Economic and Financial Crimes Court is by law mandated to hear and determine matters of this nature. It is a Division of the Court. In addition to its jurisdiction J20 Scanned with ~ CamScanner- I as provided under Article 134 of the Constitution, it hears and determines matters relating to economic and financial crimes. 40. Learned counsel contends that the respondents were investigating the deceased for offences alleged or suspected to have been committed under the Prohibition and Prevention of Money Laundering Act No. 14 of 2001 and part III of the Anti Corruption Act No. 3 of 2012. Therefore, the rightful Court to deal with any matter arising from corruption - related investigations is the Economic and Financial Crimes Court, even though the matter is brought under Part III of the Constitution. This is because the Court has unlimited and original jurisdiction in civil and criminal matters including petitions brought under Part III of the Constitution of Zambia. 41 • The 2nd respondent's submissions echo those made by the 1st respondent. According to counsel, Statutory Instrument No. 5 of 2022 merely confers additional jurisdiction on a High Court Division that already enjoys unlimited jurisdiction. THE HEARING 42. At the hearing Mr. Munalula, learned counsel for the appellant, informed the court that the case 'ran some form of unknown J21 Scanned with i} CamScanner- ' metamorphosis, in that it changed its cause number.' He explained that when the matter was commenced in the Principal Registry, one of the judges on the panel attended to some preliminary matters under the initial cause number. The ambiance of the matter was changed from that of being a constitutional matter to one of Economic and Financial Crimes, when the objective of filing it as a constitutional matter was that it be dealt with as such. 4 3 . Indeed, learned counsel for the 1st respondent Mrs Muyunda, confirmed that the cause number was changed to a number in the Economic and Financial Crimes registry. She also informed the court that the respondents did not request for a transfer of the matter. She was not sure if an order to transfer the matter was part of the record. 44. The oral arguments made on behalf of the 2 nd respondent were that Article 119 of the Constitution vests judicial authority in the Courts, which jurisdiction is to be exercised by the Court in accordance with the Constitution. The jurisdiction of the Court is stipulated in Article 134 of the Constitution. Statutory Instrument number 5 of 2022 merely provides for additional J22 Scanned with I} CamScanner· J I I / jurisdiction. Other than Article 134, several pieces oflegislation confer jurisdiction on the High Court. An example is the Anti money laundering Act, which defines Court to mean the High Court and the Subordinate Court. 45. On the question whether the matter was properly transferred, learned counsel argued that the notice of hearing constitutes an order of Court. All the parties attended Court accordingly. 4 6. In responding to these arguments, Mr. Chilwa submitted that there is a procedure that is followed in the movement of cases from one registry to the other. No application to transfer the matter was made. The Court did not issue an order of transfer. The appellant was still in shock as to how the matter moved from one registry to the other, and how it was assigned a new cause number. He cited Access Bank Zambia Limited3 on the effect of lack of jurisdiction on a decision rendered by a Court with no jurisdiction to hear and determine a matter. CONSIDERATION 4 7 • We have taken the liberty to peruse the High Court file. That we can do so is confirmed in Shamwana & Others vs The People.4 J23 ··········---------------, ! Scanned with Ci} CamScanner·! ----------------------------· The record reveals that initially, as observed in paragraph 28 above, the petition was issued out of the Principal Registry, with the words 'constitutionaljurisdiction'in brackets underneath the issuing Registry. The cause number indicated on the petition was 2022/HP/0825. The parties to the petition were the appellant as petitioner, and Anti-Corruption Commission, Mary Chirwa and Biemba Musole as respondents. On 5th August 2022, a summons and affidavit for joinder and misjoinder of a party pursuant to Order XIV Rules (2) and (5) of the High Court Rules CAP 27 of the Laws of Zambia were filed at the _Principal Registry. The return date was indicated as 23rd August 2022, before S. M. Wanjelani J. 4 8 • Subsequently, the learned judge signed an Order dated 6th September 2022, misjoining Mary Chirwa and Biemba Musole who were the 2 nd and 3 rd Respondent respectively, and joining the Attorney General as 2 nd Respondent to the proceedings. On 7th September 2022, a notice of hearing of the petition was issued out of the Principal Registry, under cause number 2022/HP/0825. The notice indicated that the matter was to be J24 Scanned with i} CamScanner· heard and determined by Hon Mrs Justice S. M. Wanjelani on 5 th December 2022 at 09:00 hours. 49. On 20th January 2023, the learned judge wrote a memorandum to the judge-in-charge General List, Hon. Mrs Justice G. C. Chawatama. The memorandum read as follows: Reference is made to your memo of mid-last year, and your direction that all matters relating to Financial and Economic Crimes be referred to your office for re-allocation to judges on the Economic and Financial Crimes Division. I wish to inform you that this matter was inadvertently omitted and proceeded under General List. In view of the fact that judges in the Economic and Financial Crimes Division sit in Panels, I hereby refer this Record to your office for re-allocation and determination under that Division. 50. Hon. Mrs Justice Chawatama, in tum, wrote to the judge-in charge, Economic and Financial Crimes Division on 25th January 2023 as follows : "Reference is made to the above captioned matter. Enclosed is a file where cause number is 2022/HP/0825 and a copy of a letter from judge Wanjelani for your attention and action." 51 . Following this communication, a notice of hearing was issued on 13th February 2023. It indicated that the matter would be heard J25 Scanned with ~ CamScanner· and determined by the Economic and Financial Crimes Court of Zambia on 24th February 2023 at 10:00 hours, by Hon. Justices E. L. Musona, P. K. Yangailo and S. M. Wanjelani. The Court did sit on 24th February 2023 as indicated in the notice of hearing. Thus, the matter was moved from the Principal Registry to the Economic and Financial Crimes Division Registry, and heard by judges assigned to that division. 52. In our considered view, the pertinent question to be addressed, on the background given above, is whether the Economic and Financial Crimes Division was possessed of the requisite jurisdiction to hear and determine the petition. That the High Court must adjudicate matters before it in accordance with the law admits of no doubt. This requirement was given expression by this Court in Zambia National Holdings Limited and United National Independence Party (UNIP) vs The Attorney General. 5 Ngulube C. J penned the judgment of the Court. His words bear repetition: "The jurisdiction of the High Court ..... is unlimited but not limitless since the Court must exercise its jurisdiction in accordance with the law .... The High Court is not exempt from adjudicating in accordance with the law including J26 ,-- : Scanned with --- -------------------- ! ii CamScanner- ·--·········------·······---- complying with procedural requirements as well as substantive limitations." 53. The High Court Act CAP 27 of the Laws of Zambia, and the Rules enacted under that Act outline the procedure that governs a matter from commencement to conclusion. Resort to the Supreme Court Rules of England is provided for in cases where the Act and its Rules are deficient. 54. As noted above, this cause moved from the Principal Registry before W anjelani J, to the Economic and Financial Crimes Division and was heard by a panel of 3 judges, as they would an application or matter brought in that Division. 55. The manner in which a cause or matter may be transferred from one judge to another is prescribed. Section 23 (1) of the High Court Act CAP 27 of the Laws of Zambia enacts the following: 23 (1) Any cause or matter may, at any time or at any stage thereof, and either with or without the application of any of the parties thereto, be transferred from one judge to the another judge by an order of the judge before whom the cause or matter has come or been set down: Provided that no such transfer shall be made without the consent of the judge to whom it is proposed to transfer such cause or matter. J27 Scanned with CamScanner- This provision was discussed in JNC Holdings Limited and Others vs Development Bank of Zambia. 1 The matter was initially before Wood J, as he then was. It was thereafter re allocated to Mu tuna J, as he then was, who heard it and delivered judgment. On appeal against his decision, this Court took issue with Mutuna J's jurisdiction to hear the matter. Upon examining Section 23 ( 1), the Court concluded that one of the steps to be taken by a judge who wished to transfer a matter is that they are required to make an order to that effect. s 7 • The Court held that Section 23 ( 1) of the High Court Act was not complied with in transferring the matter from Wood J, to Mutuna J, as Wood J, did not make an order to give legal effect to the transfer. So, even assuming Wood J had legally recused himself, the movement of the matter to Mutuna J, did not still comply with the law. 58. The Court went on to hold that Kajimanga J, as deputy judge in-charge of the Commercial list, was enjoined to ensure that the handover of the matter from Wood, J, to him for re-allocation, complied with the law. He was expected to ascertain that the record reflected that Wood J has indeed recused himself. He had J28 Scanned with I> CamScanner- to ensure that the record contained an order from Wood J, giving effect to the transfer, in accordance with Section 23 (1) of the High Court Act. s g • In the absence of a note of recusal and an order of transfer from Wood J, it was difficult to comprehend how Kajimanga J moved the matter from Wood J to Mutuna J . The Court went on to opine that when counsel questioned the legality of the transfer, this should have put the judge who had received the matter on alert. He should have asked the parties to raise and settle their concerns with the judge-in-charge. 60. The Court concluded that the transfer of the matter was irregular for non-compliance with the law. As a result, Mutuna J did not have jurisdiction to hear and determine the matter. 61 . The ratio in the JNC case indicates that a judge transferring a matter to another must not only make a note to that effect, but is additionally required to make an order, to give effect to the transfer. While the note of recusal or transfer, as the case may be, should be endorsed on the record, a valid or regular transfer of the matter is only effected by an order under the hand of the judge who transfers the matter. We reiterate what we said in the J29 ··········---------------, ! Scanned with Ci} CamScanner·! ----------------------------· JNC case that the statutory provisions relating to recusal and transfer of matters between judges are important, aimed at avoiding forum shopping and ensuring transparency in the dispensation of justice. 62. Turning to the present case, it is undeniable that the procedure outlined above was not adhered to in this matter. Wanjelani J wrote a memorandum to the judge-in-charge on the General list. She did not, however, issue an order of transfer of the matter to the judge-in-charge. The judge-in-charge of the Economic and Financial Crimes Court ought to have satisfied himself that the transfer of the matter had been given legal effect by a Court order under Wanjelani J's hand. When counsel for the appellant raised concern on the movement of the matter, the Court should have addressed that concern as guided in the JNC case. This was not done. As matters stood, the transfer was irregular. The result is that the panel that heard the matter had no jurisdiction to do so. 63. That is not the end of the matter. As noted above, the applicant commenced this matter by petition. She alleged infringement of the rights secured under part III of the Constitution. The right J30 Scanned with I> CamScanner- to invoke the Court's jurisdiction in this regard is conferred by Article 28 (1) of the Constitution as follows : 28 (1) subject to clause (5), if any person alleges that any of the provisions of Article 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall- a) hear and determine any such application; b) determine any question arising in the case of any person which is referred to it in pursuance of clause (2); and may, make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of Article 11 to 26 inclusive. 6 4 • This article enables a party to seek redress for infringement of their rights. The right to do so is without prejudice to any other action which is lawfully available. The import of Article 28 is that a person may elect to pursue relief by petitioning the High Court. We, in Hakainde Hichilema vs Attorney General, took note of this when we said at J79: J31 Scanned with (i CamScanner- I I "The clear and natural import of the words used in Article 28 as can be discerned from the language of the latter part of Article 28 (1) .... is that it provides an avenue for the enforcement of rights contained in the Bill of Rights. The High Court, in this respect, has to be moved by an aggrieved person; or one who fears or is apprehensive that his or her rights under the Bill of Rights may be infringed in relation to him or her. Such a person may apply for redress under Article 28 (1) of the Constitution. The High Court can only be moved under Article 28 for the purpose of enforcing or securing the enforcement of the provision of the Bill of Rights. This means that the High Court can only interpret the Rights in the context of what is alleged to be contravened or likely to be contravened in an application for redress under Article 28 (l); and this is without prejudice to any other action with respect to the same matter which is lawfully available." 6 5 • A petition for redress under part III of the Constitution is filed at the Principal Registry. While no judge is precluded from hearing and determining a petition, be they from the Economic and Financial Crimes Division or any other Division, the character of the petition must be preserved. It is as a result undesirable to change the issuing registry. 6 6 • To recap, the matter was not transferred in accordance with the law as laid down in Section 23 of the High Court Act. The J32 Scanned with i1 CamScanner- transfer was irregular. The implication of the irregularity was that the Court that heard the petition had no jurisdiction to hear it. The proceedings were a nullity. Nothing came out of them. 67. We therefore quash the judgment of the High Court, and set aside the proceedings. The matter is remitted to the High Court. 6 8 • The cause number assigned to the petition at the Principal Registry is reinstated. It will be heard and determined by a High Court judge, and not one of the three who sat to hear it. The appellant will have her costs both here and in the Court below . . , A. SUPREME J. K. KABUKA SUPREME COURT JUDGE F. M. CHISANGA SUPREME COURT JUDGE • • • I J33 Scanned with i} CamScanner·