Director of Public Prosecutions v Charles Phiri (2023/HPEF/24) (10 May 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2023/HPEF/ 24 AT THE ECONOMIC AND FINANCIAL CRIMES DIVISION REGISTRY HOLDEN AT LUSAKA ( CIVIL JURISDICTION, 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: PROPERTY NO. LUS/38478 HOUSING 1 THREE STOREY LODGE IN IBEX HILL CHARLES PHIRI: INTERESTED PARTY BEFORE THE HONOURABLE JUSTICES P. K. YANGAILO, A. MALATA-ONONUJU AND S. V. SILOKA, ON THIS 10™ DAY OF MAY 2024. For the Applicant: Mrs. R. M. Jackson, Mrs. C. Bauleni and Mr. D Mukelelabo - Rl National Prosecutions Authority. For the Interested Party: Mr. I. Simbeye - Messrs. Malisa and Partners Legal Practitioners. RULING A. MALATA-ONONUJU J. DELIVERED THE RULING OF THIS COURT CASES REFERRED TO: 1. Attorney General and Donald Siakakole, Mildred Muzyamba Kabwenda and Grace Siakakole Appeal No. 04/2021; 2. Jamas Milling Company Limited Vs Imex International PTY Limited S.C.Z. Judgment No. 20/2002; 3. Lewanika and Others Vs Chiluba (4) (1998) Z.R. 79; 4. Codeco Ltd. Vs Elias Kangwa & Others Appeal No. 199 of2 01 O; 5. Kalusha Bwalya Vs Chardore Properties Limited and Others (2012) Vol. 1 Z.R. 241; 6. Robert Lawrence Roy Vs Chitakata Ranching Company Limited (1980) Z.R. 198 (H.C.); 7. Khalid Mohamed Vs Attorney General (1982) Z.R. 49 (S.C.); and 8. Access Bank Zambia Ltd. Vs Group Five/Z CON Business Park Joint Venture S. C.Z./ 8/ 52/2 014. LEGISLATION REFERRED TO: 1. High Court Rules of the High Court Act, Chapter 27 of the Laws of Zambia; 2. The Forfeiture ofP roceeds of Crimes Act No. 19 of2 01 O; 3. Rules oft he Supreme Court ofE ngland (White Book) 1999 Edition; and 4. High Court Act, High Court (Amendment) Rules 2020. Statutory Instrument No. 58 of2 020. 1. INTRODUCTION 1.1 The Applicant on 22nd February, 2024, filed Inter-Parte Summons to Review Ruling pursuant to Order XXXIX Rule 1 of the High Court Act, Chapter 27 of the Laws of Zambia accompanied with an R2 Affidavit in Support and List of Authorities and Skeleton Arguments in Support. 1.2 This Application was made following our Ruling dated 12th February, 2024, wherein the Interested Party herein, filed Summons to set aside Originating Process for irregularity. The provisions pursuant to which the Summons were filed were Section 30(a) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010, Order XXX Rule 1 of the High Court Rules Chapter 27 Volume 3 of the Laws of Zambia as read with Order 2 Rules 2 and Order 10 Rule 1 and 5 and Order 65 Paragraph 3 of the Rules of the Supreme Court of England 1965 (White Book) (RSC), 1999 Edition, Volume 1 on the ground that the Interested Party had not been served with the Originating Notice of Motion. At the time of writing the Ruling, the Applicant had not filed submissions in Opposition as Ordered on 12th October 2023. 1.3 We found for the Interested Party and Ordered that as per Order XXX Rule 18 of the High Court Act the impugned Notice be served on the Interested Party within five (5) days of the date of the Ruling. We further Ordered costs for the Interested Party to be taxed in default of agreement. 2 THE APPLICATION BY THE APPLICANT 2.1 The Applicant filed Affidavit in Support of the Summons to Review our Ruling on 22nd February 2024 and the same was deposed to by Rhodah Malibata Jackson, a Senior State Advocate in the employ of the National Prosecutions Authority (NPA) seized with the conduct of this Matter and thus competent to depose to the Affidavit. 2.2 It was deposed to that on the 13th June, 2023, the Applicant filed an application for forfeiture of the subject property. That on 30th June, R3 2023, the Applicant caused to be served on the Interested Party, an Affidavit and Skeleton Arguments in Support of the Applicant, without the Originating Notice of Motion as the Applicant was waiting for the Court to give a date of hearing. th 2.3 That on 12 February, 2024, the Deponent received the Ruling of the Court concerning the Interlocutory Application that was filed by the Interested Party and that perusal of the said Ruling revealed that this Court ruled in favour of the Interested Party and condemned the State to costs. 2 .4 It was deposed that arising from a misunderstanding, this Court, in its Ruling, stated that the Applicant failed to file and serve the Interested Party the submissions in opposition despite being ordered to. 2.5 It was the Deponent's averment that the correct position is that on th 24 August, 2024, Mr. Mukuma Chipawa, a Senior State Advocate at NPA filed into Court on behalf of the Applicant, an Affidavit in Opposition to the Summons to set aside Proceedings for irregularity deposed to by Emmanuel Khondowe and Skeleton Arguments in Support. The copies of the same were exhibited and marked "RMJl(a)" and "RMJl(b)". 2.6 That when the Matter had come up for hearing on 12th October, 2023, the Deponent informed the Court that the State had filed the Affidavit in Opposition but unfortunately did not serve the Interested Party. That she would endeavour to serve the Interested Party the Affidavit in Opposition and Skeleton Arguments before the close of business on that day, being 12th October 2023, to which Counsel for the Interested Party agreed. R4 2.7 Rhodah Malibata Jackson deposed that on the same date, 12th October 2023, and immediately after Court, she served Counsel for the Interested Party, Mr. Isaac Simbeye an Affidavit in Opposition to Summons to set aside proceedings for irregularity and the Skeleton Arguments in Support. 2.8 That despite filing into Court and serving the Interested Party the said documents, the Court proceeded to render its Ruling and did not take into consideration the said documents. 2.9 The Deponent avowed that the failure by this Court to take into consideration the Affidavit in Opposition and the Skeleton Arguments in Support led to the State being condemned to costs. That the failure by this Court to consider the evidence deposed to in an Affidavit filed by the Applicant makes this a good case for this Court to review its Ruling of 12th February, 2024. 2 .10 The Deponent avowed that no prejudice will be occasioned on the Interested Party in the event that this Court reviews its Ruling. 2 .11 In the Skeleton Arguments in Support of the Summons to Review Ruling filed on 22nd February 2024, Counsel for the Applicant begun by rehashing the contents of the Affidavit in Support above which we will not belabour to repeat here. 2.12 Counsel submitted that this is a proper case in which this Court can exercise its discretion to review its Ruling on reasons that the Applicant complied with the mandatory prescribed Rules of Court. 2.13 It was argued that the State has demonstrated through the Affidavit deposed to by the Senior State Advocate with conduct of this Matter that the Applicant did file into Court the Affidavit in Opposition to set aside the proceedings for irregularity and the Skeleton Arguments on the Interested Party immediately after Court on 12th RS October, 2023, thereby complying with the Court's Orders and mandatory prescribed Rules of Court. 2.14 It was submitted that from the Record, the Applicant has not lodged an appeal and in addition, that the Application is being made within the time prescribed by Order XXXIX of the High Court Act. That the Application is not therefore, affected by the 14 days limitation of the time provided for in the said Order. 2.15 To buttress their submission, Counsel referred us to the decision of the Supreme Court in the case of Attorney General and Donald Siakakole, Mildred Muzyamba Kabwenda and Grace Siakakole 111 and the holding in case of Jamas Milling Company Limited Vs Imex International PTY Limited 121, though no citation was provided in the Skeleton Arguments and the List of Authorities filed, as follows: ''For review under Order 39 Rule 2 of the High Court Rules to be available, the party seeking it must show that he has discovered fresh material evidence, which would have had material effect upon the decision of the court and has been discovered since the decision but could not with reasonable diligence have been discovered before." 2.16 Counsel submitted that in the case in casu, this Court condemned the Applicant to costs on reasons that the Applicant failed and/ or neglected to serve Notice or notify the Interested Party in accordance with the mandatory prescribed Rules of Court. 2.17 Counsel submitted that it was through the said Ruling that it came to the Applicant's attention that the Court did not have a copy of the Affidavit in Opposition to set aside proceedings for irregularity and the Skeleton Arguments that were filed into Court by the State. R6 2.18 It was Counsel's submission that failure by this Court to take into consideration the Affidavit filed by the Applicant when it was in existence prior to the Ruling makes the case in casu a good case for the Court to exercise its jurisdiction to review the Ruling and put matters right. 2.19 It was submitted that the Applicant has exhibited the said documents as evidenced which Counsel prayed the Court considers in reviewing its Ruling delivered on 12th February 2014. 2.20 Counsel, to fortify her submission, cited the case of Lewanika and Others Vs Chiluba 131 and quoted Judge Ngulube, as he was then, as follows: "Review under Order 39 of the High Court Act is a two-stage process, that is to say, first showing or finding a ground or grounds considered to be sufficient, which then opens the way to the actual review. Review enables the court to put matters right. I do not believe that that the provision exists simply to afford a second bite or simply to afford a dissatisfied litigant the chance to argue for an alteration to bring about a result considered more acceptable to him." 2.21 It was Counsel's contention that as demonstrated in the Affidavit filed herein, the Applicant complied with the Court Order and in accordance with the mandatory prescribed Rules of Court. 2.22 It was Counsel's prayer that the Court considers reviewing its Ruling and set aside the Order made therein including the award of costs to the Interested Party. R7 3 THE RESPONSE BY THE INTERESTED PARTY 3.1 Counsel for the Interested Party filed List of Authorities and Skeleton Arguments in Opposition to the Summons to Review Ruling on 14th March, 2024, but however, omitted to file an Affidavit in Opposition. 3.2 We note that Order XXX: Rule 3 of the High Court Rules, Statutory Instrument No. 58 of 2020 clearly gives mandatory procedural direction as follows: "On receipt of the affidavit in support of the application, skeleton arguments and list of authorities, the respondent shall file an affidavit in opposition with skeleton arguments and list of authorities. (Emphasis ours) 3. 3 There is a plethora of cases that speak to the importance of adhering to Rules of Court and in fact, the very gist of the impugned Ruling herein is hinged on these authorities. 3.4 We are guided by the case of Access Bank Zambia Limited Vs Group Five/ZCON Business Park Joint Venture 14l as follows: "Rules of procedure and timeliness serve to make the process of adjudication fair, just, certain and even-handed. Under the guise of doing justice through hearing matters on their merit, courts cannot aid in the bending or circumventing of these rules and shifting goal posts, for while laxity in application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules." 3.5 The consequence of the Interested Party's failure to adhere to mandatory procedural rules is that we cannot consider their written submissions herein as they are irregularly before this Court. In as much as Counsel for the Interested gave viva voce submissions at the hearing held on 18th March, 2024, we will equally not consider R8 those submissions as they lack the requisite legal foundation ab inito. 4 HEARING 4.1 The Hearing of the Summons for Review was held on 18th March, 2024 and present before Court was Counsel for the Applicant and the Interested Party. 4.2 Counsel for the Applicant, Ms. Vivian Nsingo begun by stating that she would rely entirely on the Affidavit and Skeleton Arguments in Support filed herein suffice to add that Order XXXIX Rules 1 and 2 of the High Court Rules vests this Court with the power to review its own judgment. To fortify her submission, she relied on the Supreme Court case of Codeco Ltd. Vs Elias Kangwa & Others 141 wherein it was held that the Court has power to review its own judgment. 4.3 Co-Counsel for the Applicant, Mr. Chipawa, submitted that he wished to re-emphasize that the circumstances that have brought about this Application for the review of this Court's Ruling that condemned the Applicant to costs for a purported failure to serve the Originating Notice of Motion on the Interested Party has reached the threshold required for this Court to review its Ruling. He submitted that the circumstances that brought about the discovery that indeed the Applicant had served the documents and filed them into Court was only known to the Applicant upon receipt of the Ruling which the State now seeks this Court's review. 4 .4 It was his submission that no amount of due diligence on the part of the Applicant could have alerted the State that the documents in Opposition to the Interested Party's Preliminary Issue were inadvertently not placed on the Judge's Records despite the fact that R9 the same documents were filed into Court and even served on the Interested Party. 4.5 Counsel submitted that he would rely on the authorities filed in their Skeleton Arguments especially the case of Jamas Milling Company Ltd. Vs Imex International PTY Limited 121 that this is a proper case for this Court to review its Ruling. 5 ANALYSIS AND DECISION OF THE COURT 5.1 We have considered the Affidavit and Skeleton Arguments filed by the Applicant and the oral submissions by Counsel for the Applicant during the hearing of this Matter. 5.2 Indeed, by virtue of Order XXX Rule 1 this Court has the power and jurisdiction to review a decision made by it. Order XXXIX Rule 1 of the High Court Act states as follows: "Any Judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn), and, upon such review, it shall be lawfulfor him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous judgment or decision: Provided that where the judge who was seized of the matter has since died or ceased to have jurisdiction for any reason, another judge may review the matter." 5.3 Such review is not automatic upon the request of a party to the proceedings. In order for this Court to exercise its discretion and review its decision, the party applying for review must provide clear grounds and meet a certain threshold. We are fortified by the case of Lewanika and Others Vs Chiluba 131 at page 79 wherein the Supreme Court held, in this respect, that it must be demonstrated R10 that there is a ground or grounds considered sufficient for review which then open the way to the actual review. 5.4 Such grounds are tendered by providing the Court with fresh evidence or material evidence which would have a material effect upon the decision of this Court. 5.5 In the case ofKalusha Bwalya Vs Chardore Properties Limited and Ian Nyalungwe Haruperi 151 reference was made to the findings of the High Court in the case of Robert Lawrence Roy Vs Chitakata Ranching Company Limited (61 and the Supreme Court case of Jamas Milling Company Limited Vs Imex International (PTY) Ltd. 121 and it was determined that for review to be resorted to based on fresh evidence, the applicant must satisfy five (5) tests as follows: "l) that the fresh evidence is material; 2) that the fresh evidence would have had material effect upon the Courts decision; 3) that the fresh evidence existed prior to the decision of the Court; 4) that the fresh evidence was only discovered after the decision of the Court; and 5) that the fresh evidence could not with diligence have been discovered prior to the decision." 5.6 We shall now consider the grounds or fresh evidence that the Applicant has tendered which must be sufficient to open the way to actual review of our Ruling. 5.7 The Applicant has contended that firstly, in response to the Interested Party's Summons to set aside the proceedings for irregularity, the Applicant had in fact filed Affidavit in Opposition and Skeleton Arguments in Support on 24th August, 2023, prior to the Ruling, which inadvertently were not taken into consideration in Rll the Ruling of this Court due to the documents not being on the Record of the Court. That this omission by the Court makes it a good case for this Court to exercise its discretion and review the Ruling of 12th February, 2024, which resulted in the Applicant being condemned to costs. 5.8 That the said documents themselves are the new evidence that would fundamentally and materially affect the Ruling of this Court. 5. 9 In the Impugned Ruling, we noted the absence of submissions in opposition which left the Interested Party's Application unopposed. We stated that we are under a judicial duty to adjudicate every aspect of the application as submitted by the Interested Party. We referred to the case of Khalid Mohamed Vs Attorney General 171a nd surmised that we are nonetheless, compelled to interrogate the Interested Party's Application autonomous to the lack of any opposition. 5.10 We have perused the Affidavit in Opposition and Skeleton Arguments in Support exhibited and marked "RMJl(a)" and "RMJl(b)" respectively in the Applicant's Affidavit in Support of Summons to Review as well as our Ruling. 5.11 In our Ruling, we found that the Notice of Motion must be served with an Affidavit in Support with, as stated by Order 12 Rule 3A of Statutory Instrument No. 58 of 2020, skeleton arguments and list of authorities in support. Our decision in the Ruling was not only buttressed by Section 30(a) of the FOPCA, but also Order XXX Rule 17 of the High Court Rules, inter alia. 5.12 Our Order in the said Ruling is buttressed by Order XXX Rule 18 of the High Court Rules which provides consequences of lack of service on parties as well as the well-known holding in the Supreme R12 Court case of Access Bank Zambia Ltd. Vs Group Five/ZCON Business Park Joint Venture tsJ. 5.13 Based on the foregoing, it was our considered view that the Applicant had failed and or neglected to serve the Notice or to notify the Interested Party in accordance with mandatory prescribed Rules of Court and Ordered that the Notice be served on the Interested Party within five (5) days of the date of the Ruling. 5.14 Consequently, we find that the Affidavit in Opposition to Summons to set aside proceedings for irregularity and the Skeleton Arguments cannot be considered a ground or fresh or new evidence. We find that there is nothing contained in the Affidavit in Opposition and Skeleton Arguments exhibited by the Applicant that would have had an impact or materially affect our Ruling of 24th February 2024. 5.15 Secondly, The Applicant contends that the reason why the Interested Party was not served the Originating Notice of Motion at the time the Preliminary Issue was filed was because this Court had not yet endorsed a return date on the Notice. That at the time the Preliminary Issue was being raised, the Applicant lawfully was still within the period of 30 days prescribed by Section 30 of the FOPCA. 5 .16 We have already demonstrated above that our Ruling of 12th February, 2024, adequately responds to this issue. We stated that the Originating Notice of Motion must be served on the Interested Party at the time of serving the Affidavit in Support and Skeleton Arguments and List of Authorities in Support of the Originating Notice of Motion. 5.17 Section 30(a) of the FOPCA as stated in our Ruling requires the public prosecutor, the Applicant herein, to give not less than 30 days written notice of the application to any person who is known to have R13 an interest in the tainted property in respect of which the application is made. 5.18 This is a mandatory statutory provision as it uses the word 'shall'. Consequently, it does not give any discretionary powers to this Court nor does it allow the public prosecutor, or Applicant in casu, to depart from it. 5.19 As stated in the said Ruling, the importance placed on the need to give written Notice of the application to any person who is known or indeed suspected to have an interest in the tainted property is to enable them have knowledge of the application and afford them the time and opportunity to respond accordingly. 5.20 The minimum time given to an Interested Party from the moment a public prosecutor applies for forfeiture and serves the Notice on them is nothing less than 30 days as prescribed by Section 30(a) of the FOPCA. Hence, the reason why Notice is served immediately an application, accompanied with the requite affidavit and skeleton arguments and list of authorities, is filed into Court and a hearing date is given on or after the expiry of the 30 days as was done in the case in casu. 5.21 Based on the forgoing, we find this ground or purported new evidence would not have fundamentally affected the Ruling of this Court. It is our considered view that all things considered, nothing compelled the Applicant to serve the Affidavit in Support and List of Authorities and Skeleton Arguments before receiving the dated Notice of Motion. 6 CONCLUSION 6.1 For the avoidance of doubt, we find that the Applicant has not proved to our satisfaction that there is basis upon which our Ruling of 24th February, 2024 can be reviewed. That is to say, the Applicant has R14 not surmounted the first hurdle for review which is that there is a ground or fresh evidence to warrant a review. DELIVERED AT LUSAKA THIS l0THDAY OF MAY 2024 P.K. YANGAILO HIGH COURT JUDGE .~~ ~-r::lf!!..:.. ................' !. . ~~ ..... . ..........•.................••.•......... A. MALATA-ONONUJU S. V. SILOKA HIGH COURT JUDGE HIGH COURT JUDGE RlS