Director of Public Prosecutions v Anthony Sindala and Ors (2023/HPEF/09) [2024] ZMHC 30 (15 May 2024)

IN THE HIGH COURT OF ZAMBIA 2023/HPEF/09 AT THE ECONOMIC AND FINANCIAL CRIMES COURT AT LUSAKA ( Civil Jurisdiction) BETWEEN: THE DIRECTOR OF PUBLIC PR SEGU!l'.l.01{S t. s, AP LICANT P O , AND ANTHONY SINDALA 1 ST INTERESTED PARTY IRFAN AZIZ 2 ND INTERESTED PARTY KENNETH MAZIBISA 3RD INTERESTED PARTY KENNEDY TEMBO 4TH INTERESTED PARTY NGUCHA ENERGY CORPORATION 5TH INTERESTED PARTY IN RE PROPERTY: TOYOTA H. IACE MINI BUS REGISTRATION NUMBER BAA 8763, TOYOTA HIACE MINI BUS REGISTRATION NUMBER BAC 8495, TOYOTA MINI BUS REGISTRATION NUMBER 4794, TOYOTA MINI BUS REGISTRATION NUMBER BAL 7807, TOYOTA COROLLA REGISTRATION NUMBER 9800,, 1X3 BLOCK OF FLATS IN CHUNGA GOVERNMENT FARM, Kll,827.86 HELD IN ACCOUNT NUMBER 0010337514681901, TOYOTA ALLION REGISTRATION NUMBER ARB 3333, TOYOTA NOAH REGISTRATION NUMBER ALM 6208, TOYOTA COROLLA REGISTRATION NUMBER ALC 8694, MITSUBISHI CANTER REGISTRATION NUMBER ALT 6574, CJ l K21,525.38 HELD IN ACCOUNT NUMBER CHK-800000544 AT CAVMONT BANK, TOYOTA ALTEZA REGISTRATION NUMBER ALL212 AND TOYOTA COROLLA REGISTRATION NUMBER AIC 3602. BEFORE HONOURABLE JUSTICES P. K. YANGAILO, A. MALATA ONONUJU AND I. M. MABBOLOBBOLO ON THIS 15TH DAY OF MAY, 2024. For the Applicant: Mrs. Margaret Kapambwe Chitundu, Mrs. Charity A. Bauleni and Mrs. Rhoda Malibata Jackson - National Prosecutions Authority For the 1st Interested Party: Mr. Anthony Mukanda - H. H. Ndhlovu & Company For the 2 nd Interested Party: In Person For the 3 rd Interested Party: In Person For the 4 th Interested Party: Mr. J. Banda - Messrs. Japhet Zulu Advocates For the 5 th Interested Party: Mr. Mwape Chileshe and Mr. Chilwana Nsokola -Eric Silwamba, Jalasi & Linyama Legal Practitioners. COMBINED JUDGMENT A. MALATA-ONONUJU J, DELIVERED THE JUDGMENT OF THE COURT CJ2 Cases referred to: 1. Simon Prophet Vs The National Director of Public Prosecutions CCT56/05; 2. 3. The DPP Vs Jessie Bwalya Kapyelata Tapalu 2019/HP/ 0932; The DPP Vs Sydney Mwansa and Others 2018/HP/ 1730; 4. Kumamath Mohunram & Shelgate Investments Cc Vs The National Director of Public Prosecutions, BOE Bank Limited & The Law Review Project (as Amicus Curae) CCT 19/ 06 (2007) ZACC 4; 5. The National Director of Public Prosecutions Vs RO Cook Properties (Pty) Ltd. 2004 (8) BCLR (SCA}; 6. Zambia National Commercial Bank PLC Vs Godfrey Muyamwa and Others Appeal No. 0005/ 201 7 ZMSC 78 ( 18th August 2017); 7. Kalandanya and Others Vs The Attorney General and Others 2022/ HPEF/ 10 ZMHC: 8 . The People Vs Austin Liato (8) (2015) ZMSC 26; 9. Macfoy Vs United Africa Company Limited (1961) 3 ALL ER 1169; 10. Constantine Line Vs Imperial Smelting Co,poration (1942) A. C. 154; 11 . Lewanika and Others Vs Chiluba S. C. Z. Judgement No. 14 of 1998; 12. Anderson Karnbela Mazoka and Others Vs Levy Patrick Mwanawasa and Others SCZ/EP/01/02/03//2 002; CJ3 13. Khalid Mohamed Vs The Attorney General (1982) Z. R. 49 (S. C.t 14. R. Vs John Rondo (2001) 126 A Crim. R. 562; 15. The DPP Vs Michael Kampinda Lushibashi and Inonge Siyauya Lushibashi 2017/ HP/ 1774; 16. United States Vs Lavin 942 F. 2d 177 (Cir. 1991); 17. United States Vs Jimerson SF. 3d 1453 (11th Cir. 1993); 18. A. J. Trading Company Limited Vs Chilombo (1973} Z. R. 55; 19. Johannes Kenneth Soigopi (Tl A Nam Transport Co. A Partnership} Vs Director of Public Prosecutions; and 20. Nachanga Transport Vs The Director of Public Prosecutions CAZ Appeal No. 252/ 2020. Legislation referred to: 1. High Court Rules, liigh Court Act, Chapter 27 of the Laws of Zambia; 2. Forfeiture of Proceeds of Crimes Act, Number 19 o/2010 of the Laws a/Zambia; 3. 4. Penal Code, Chapter 87 of the Laws of Zambia; Prohibition and Prevention of Money Laundering (Amendment) Act No. 44 of 2010 of the Laws of Zambia; 5. Prohibition and Prevention of Money Laundering Act No. 14 of 2001 of the Laws of Zambia; 6. Rules of the Supreme Court of England (1965) (White Book) 1999 Edition Volume 1; and 7. The Constitution of Zambia Act, Chapter 1 Volume 1 of the Laws of Zambia. CJ4 WRITTEN WORKS REFERRED TO: 1. The Example of Three Outlaw Motorcycle Gang Club Houses by John Simser. https://doi.orq/10.30709/eucrim-2023-009 2. Phipson on Evidence. M. N. Howard, Peter Crane and Daniel A. Hochberg. 14th Edition, Sweet & Maxwell. 1. INTRODUCTION AND BACKGROUND 1. 1 The matter was commenced on 15th February, 2023, by the Applicant by way of Notice of Motion for an Application for a Non-Conviction based Forfeiture Order of tainted property pursuant to Order XXX Rules 15 and 17 of the High Court Rules as read with Sections 29 and 31 of the Forfeiture of Proceeds of Crimes Act Number 19 of 2010 of the Laws of Zambia. 1.2 The 5 th Interested Party on 2 nd June, 2023, then filed Notice of Motion for an Order for Declaration of Interest over tainted property pursuant to Order III Rule 2 of the High Court Rules Chapter 27 of the Laws of Zambia as read with Sections 12 and 30 of the Forfeiture of Proceeds of Crime Act Number 19 of 2010 of the Laws of Zambia. 1.3 Having heard both applications simultaneously on the 13th February 2024, we now render a composite Judgment in respect of both Motions. We will begin by considering the Applicant 's Application, and then the 5th Interested Party's Motion as this hinges on the outcome of the Application in the main. 2 APPLICANT'S APPLICATION 2. 1 The Affidavit in Support of the Notice of Motion filed on 15th February, 2023, was deposed to by Elizabeth Mulopa Kajoba, CJS an Investigations Officer in the employ of the Drug Enforcement Commission {DEC). 2.2 It was deposed that 1n May, 2020, DEC was asked by the Zambia Police Service to jointly investigate a complaint reported to them by Ngucha Energy Corporation Limited, the 5 t h Interested Party herein, for the alleged financial irregularities in their Accounts Department and for the embezzlement of funds amounting to over ZMW200,000.00 by the Managers and Cashiers at four of the 5 th Interested Party's Service Stations namely, Emmasdale and Roma Service Stations in Lusaka, Lumwana Service Station in North Western Province and N chelenge Service Station in Luapula Province. 2.3 The Deponent avowed that she recorded a statement exhibited and marked "EMKl", from Jones Chitondo, the Human Resources Manager at the 5 th Interested Party, who confirmed receiving reports of financial irregularities at the four Service Stations. 2.4 It was deposed that Anthony Sindala, the 1s t Interested Party, was Manager in charge of Emmasdale Service Station, Kenneth Mazibisa, the 3 rd Interested Party, was in charge of Nchelenge Service Station, Kennedy Tembo, the 4 th Interested Party, was in charge of Lumwana Service Station and Raphael Chabala was in Charge of the Roma Service Station. It was further deposed that the 2 nd Interested Party, Irfan Aziz, and Raphael Chabala were on the run. 2.5 Elizabeth Mulopa Kajoba deposed that she obtained an Audit Report, exhibited and marked as "EMK2", of the four Service CJ6 Stations whose analysis alleges that the Managers were stealing by creating fictitious credit transactions purporting that they were performed by customers or entities which t h ey would substitute for cash. That the Managers would under bank cash from the sales. 2.6 It was deposed that a ccording t o the Audit Report, the alleged stolen funds were ZMW3,586,042.00 from Emmasdale Service Station, ZMWl,370,029.00 from Roma Service Station, ZMW840,372.96 from Lumwana Service station and ZMWl,761,028.00 from Nchelenge Service Station. That the aggregate amount stolen is ZMW7,755,747.23. as opposed to the initial amount of ZMW200,000.00. 2. 7 The Deponent avowed tha t she recorded a statement , exhibited and marked as "EMK3", from Stanford Mtamira, a Managing Partner for Upstreet Consultancy Services, who confirmed b eing engaged by the 5 t h Interested Party to audit the Reports submitted by the four Service Stations in question for the p eriod 1st J anuary 2019 to 31 st December 2019. 2.8 It was deposed that following verifications from the five en tities, whose Statements are exhibited and marked "EMK12-17", for the transactions of the four Service Stations, the Deponent found a large number of sales transactions were being forged by the Service Station Managers at each Station. That the aggregate amount stolen was ZMW2,823,073.22 by the 1st Interested Party, ZMWl ,608,951.62 by the 3 r d Interested Party, ZMW386,047.99 by the 4 th Interested Party. CJ7 2. 9 It was deposed that prior to the joint investigations, the Zambia Police Service had recorded statements, exhibited and marked as "EMKlS-19" from Cashiers at Emmasdale Service Station implicating the I s t Interested Party who was the Manager. That a further statement, exhibited and marked as "EMK20" was recorded from Efford Nkausu, the 1st Interested Party's Head Driver, stating that the 1s t Interested Party had bought a bus soon after he was employed in Octa ber 2018 and that from the time Mr. Efford Nkausu was employed, he deposited money into the 1s t Interested Party's mobile money account. That the 1st Interested Party bought a further three buses and later promoted him to the position of Head Driver. 2.10 Elizabeth Mulopa Kajoba deposed that the 1s t , 3r d and 4 t h Interested Parties were warned and cautioned for Theft by Servant contrary to Section 278, Forgery contrary to Section 344 as read with Section 347, Uttering of False Document contrary to Section 352 all of the Penal Code, Chapter 87 of the Laws of Zambia, and Money Laundering contrary to Section 7 of the Prohibition and Prevention of Money Laundering (Amendment) Act No. 44 of2010 as read with the Prohibition and Prevention of Money Laundering Act No. 14 of 2001 and Possession of Property Suspected of being Proceeds of Crime contrary to Section 71 of the Forfeiture of Proceeds of Crime Act, No.19 of2010 of the Laws of Zambia. 2.11 It was deposed t hat the Deponent seized four Toyota Hiace Mini Buses, one Toyota Corolla, lx3 blocks of flats in Chunga Government Farms and ZMW 11,827.87 from the 1st Interested CJ8 Party; a Toyota Allion, a Toyota Noah, a Toyota Corolla, a Mitsubishi Canter and ZMW 21,525.38 from the 2 nd Interested Party lrfan Aziz; a Toyota Alteza from the 3 rd Interested Party; and a Toyota Corolla from the 4 th Interested Party. The Seizure Notices are exhibited and marked "EMK21-24". 2. 12 It was deposed that following a search conducted at the Road Transport and Safety Agency (RTSA) in respect of the vehicles seized, it was her findings based on RTSA documents and letters of sale exhibited and marked "EMK25-36" that the vehicles were all registered to either the 1 st, 2 nd, 3rd and 4 t:h Interested Parties save for the Toyota Allion Registration Number ARB 3333 and Toyota Noah Registration Number ALM 6208 whose Motor Registration Certificate is under the name Aziz Ahmed, the father of the 2 nd Interested Party. 2.13 That intelligence information gathered indicates that these two vehicles registered in the name of Aziz Ahmed belong to his son, Irfan Aziz, the 2 nd Interested Party, who is currently on the run. It was deposed that a statement from Jeremiah Nyirenda, exhibited and marked "EMK37", confirms that the Toyota Alli on was sold to the 2 nd Interested Party; and a statement from Michael Makelani Phiri exhibited and marked "EMK38" confirmed that the Toyota Noah was sold to Aziz Ahmed who at the time of the sale indicated that he was buying it for his son Irfan Aziz, the 2 nd Interested Party. 2.14 The Deponent deposed that the registered owner of Toyota Alteza Registration Number ALL 212 on the Motor Vehicle Certificate is Buchizya Kanima who in a statement stated that CJ9 he sold the said vehicle on 10th December 2018 to a male person. The statement and copy of the letter of sale are exhibited and marked "EMK39" and "E M K40" respectively. 2.15 Elizabeth Mulopa Kajoba deposed that investigations revealed that the 1st Interested Party was initially employed by Zambia Bata Shoe Company Plc and that he was paid ZMWll,157.46 as his terminal benefits in 2017. That in his Warn and Caution Statement, the 1st Interested Party stated that he acquired the properties in question from a salaula (second hand clothing) business where he would exchange the clothes for grains for re sale at Soweto Market. 2.16 It was deposed that the 3 rd Interested Party in his Warn and Caution Statement stated that he acquired the motor vehicle from business he was doing with the Ministry of Health, Sino Hydro, Vector Link and Star Agents, a construction company. That a search on the 3 rd Interested Party's Business Account showed funds deposited by the Ministry of Health and Sino Hydro. It was deposed that with regards to the alleged theft of ZMWl,761,028.00, the 3 rd Interested Party stated that he was instructed by the 2 nd Interested Party to send him money clain1ing that the account holders had already paid Head Office and needed to be refunded. 2.17 The Deponent avowed that in his Warn and Caution statement, the 4 th Interested Party stated that he acquired the motor vehicle from savings from his salary and ZMW30,000.00 from family. That a Nessy Chiyabi, upon being interviewed confirmed CJlO lending ZMW20,000.00 to the 4 th Interested Party though h e did not know what the money was for. 2.18 It was deposed that the offences the a bove Interested Parties are being charged with are serious offences. 2.19 In the Applicants Skeleton Arguments in Support of the Notice of Motion filed on 15th February, 2023, Counsel for the Applicant begun by correctly stating that the Application was commenced by ·way of Notice of Motion pursua n t to Order XXX Rules 15 and 17 of the High Court Act, Chapter 27 of the Laws of Zambia. Counsel cited the case of Simon Prophet Vs The National Director of Public Prosecutions (ll where the court was called upon to strike an appropriate balance between two con stitutional principles being, that n o one should be arbitrarily deprived of property, and that the State is under an obligation to protect members of the public from criminal predations through civil forfeiture proceedings. Counsel further cited the High Court case of The DPP Vs · Jessie Bwalya Kapyelata Tapalu < 2 1 whose decision stated that Non-Conviction based Forfeiture is constitutional. 2.20 It was Counsel's submission that the Notice of Motion for Non Con viction based Forfeiture supported by an Affidavit sworn by Elizabeth Mulopa Kajoba shows that the property in issue is tainted property. That it shows that the Interested Parties were stealing from the 5 th Interested Party, their employer, contrary to Section 278 of the Penal Code. 2.21 It was submitted that the evidence shows that the said In terested Parties were employed by the 5 th Interested Party as CJ l 1 Managers with the role of managing the Service Stations and sending Daily Sale Summaries and deposit slips to Head Office for reconciliation. That the Interested Parties did under bank cash sales and created fictitious transactions purporting that they were performed by customers or entities which they would substitute with cash. 2.22 Counsel submitted that according to the statement of Kasongo Nkole, an Accounts Clerk working under the 1st Interested Party at N chelenge Service Station, he was instructed by the 1st Interested Party to send money to the 2nd Interested Party when the 1st Interested Party was on leave. That the 2 nd Interested Party, who was the officer in charge of reconciliation of deposit slips at Ngucha Energy Corporation Limited Head Office, fled the Country clearly showing that he was involved in the stealing of money. 2.23 Counsel submitted that the said Interested Parties are also charged with the offence of Forgery and Uttering False Document, contrary to Sections 347 and 352 of the Penal Code respectively. That the said Interested Parties made false documents, namely credit sales coupons and put customers or entities names on them purporting that they performed the transactions. That the Audit Report shows the transactions in question and that a verification of the entries found that the fuel transactions in the Audit Report and the values were different from that of the actual entities or customers who disputed having made the fuel transactions. CJ12 2. 24 Counsel submitted that the said Interested Parties uttere d the said coupons when they presented them to the Financial Accountant a t the 5 th Interested Party. 2.25 Counsel con tended that the foregoing clearly proves the elements of the offences of Theft by Servant, Forgery and Uttering a False Document. 2. 26 It was Couns el's submission in addition that the said Interested Parties were also charged with being in possession of proceeds of crime as defined by the Prohibition and Prevention of Money Laundering (Amendment) Act No. 44 of 2010 as rea d with the Prohibition and Prevention of Money Laundering Act No. 14 of 2001 and by the Forfeiture of Proceeds of Crime Act. 2.27 Counsel stated that the Affidavit in Support of the Applicaiion shows that the said Interested Parties bought properties during the period of the theft at the 5th Interested Party and that the same was seized as it was realized from the offences stated a bove. 2.28 It was submitted that the Affidavit in Support of the Application shows that the said Interested Parties did not give sufficient explanation on how they acquired the said properties hence the properties can be said to be tainted properties on a balance of probability. Counsel was fortified by the d ecision of the Court in the case of The DPP Vs Sydney Mwansa and Others 131• That further the Affidavit in Support chronicled the investigations which resulted in the seizure of the cited properties which is the subject matter of the Application as it is tainted p roperty. CJ13 2.29 Counsel went on to define tainted property under the Forfeiture of Proceeds of Crime Act and contended that the property is tainted property as it is proceeds of crime in that the said Interested Parties acquired the property as a result of making false credit sales coupons, uttering the documents and under banking cash hence the Application for Forfeiture Order made pursuant to Sections 29 a nd 31 of the Forfeiture of Proceeds of Crime Act. 2.30 Counsel submitted that as set out in the above Sections, on a balance of prob abilities fro1n the evidence presented, it can clearly be seen that the property in question is tainted property. That based on the offences the Interested Parties are charged with, these are serious offences which carry a sentence of more tha n twelve mon ths when found guilty. 2.31 Counsel, while noting that it is for persuasive purposes only, urged this Court to adopt the r easoning of Van Heerden AJ in the South African Constitutional Court case of Kumarnath Mohunram & Shelgate Investments Cc Vs The National Director of Public Prosecutions, BOE Bank Limited & The Law Review Project (as Amicus Curae) 141 wherein she cited with a pproval the holding of the Supreme Court in the case of The National Director of Public Prosecutions Vs RO Cook Properties (Pty) Ltd. 15 ) as follows: "Chapter 6, which is headed A Civi.l Recovery of Property, makes provision for orders to be made for the forfeiture of property which is tainted because it is linked to the commission of crime either because it CJ14 is proved, on a balance of probabilities, to be an instrumentality of an offence referred to in Schedule l of the Act or because it is proved, according to the same standard of proof, to be proceeds of unlawful activities. Such orders may be made even if no one has been convicted of having used the property or having been guilty of the lawful activities of which the property is said to be the proceeds". 2.32 Counsel submitted that the Applicant h as established on a balance of probabilities that the property cited above is tainted property. That the Affidavit in Support and the exhibits therein have placed sufficient evidence to satisfy the Court that the property stated above is tainted property. 2.33 It was Counsel's prayer that this Court finds that the cited property is tainted property and ord ers that it be forfeited to the State. 3 1 sT INTERESTED PARTY'S SUBMISSIONS IN OPPOSITION TO THE NOTICE OF MOTION 3.1 The 1st Interested Party filed an Affidavit in Opposition to the Noticed of Motion on 17th July 2023. The same was sworn by Anthony Sindala, who avowed that he was the 1s t Interested Party in the matter and the beneficial owner of all the property described in Paragraphs 53, 55 and 63 of the Affidavit in Opposition and therefore duly competent to swear the said Affidavit. CJlS 3.2 In admitting his employment status at the material time, the Deponent avowed that the Audit Report was false and predicated on speculative inferences and con clus ion. That h e neither had knowledge of the contents of the Report nor was it brought to his attention. Further that he was never afforded an opportunity to respond to the Audit Report by his employer, the 5 th Interested Party. 3.3 It was d eposed that the allegations of theft of money was never brought to h is attention and that his dismissal from. \Vork was on account of alleged absenteeism a s exhibited in the dismissal letter marked "ASl". 3.4 It was deposed that the St atements mentioned in the Applicant's Affidavit in Support do not directly link him to the commission of any crime and that the veracity of the said Statements need s to be tested. The Deponent disputes all Statements from the Cashiers and avov.rcd that they are a ttributed to biased 'V\r:itnes ses who have to be put on strict proof. 3.5 The 1s t Interested Party deposed that all the property he owns is his and was acquired through hard work, sacrifice and entrepreneurship. 3.6 The Deponent admitted that he was warned a nd cautioned for the aforementioned offences, but wondered why the Applicant has not presented him before a court for criminal prosecution if they had evidence of his criminality and tha t h e has always been available to jus tify the acquisition of the property subject of the case. The Deponent avowed that he never stole any mon ey from the 5th Interested Party and hence was never charged for any offence. 3. 7 The Deponent stated that he had been trading in grain business as an entrepreneurial activity, but that he does not keep a record of all the customers he encounters save for a few from whom he bought grain from. That he started trading in grain around 2012 whereby he would purchase the grain from Eastern and Northern Province and resell it in Lusaka for a profit. The invoices are exhibited and marked "AS3". 3.8 It was deposed that he was employed by Zambia Bata Shoe Company Plc as a Merchandiser and Production Planner and earned an income ofZMW4,100.00 per month. The Pay Slip was exhibited and marked "AS4". It was avowed that while working for Zambia Bata Shoe Company Plc he continued with his grain business and made substantial profit of over ZMW 300,000.00. 3.9 It was deposed that he did get other benefits from Zarnbia Bata Shoe Cornpany Plc other than his gratuity and that at the time he was leaving, he had earned a total ofZMW 139,100.00 which was added to his pension refund of ZMW 11,157.46, which brought his income to ZMW 150,257.46. A Pension Benefit Settlement Statement from Zambia Ba.ta Shoe Company Plc was exhibited and marked "ASS". 3.10 The 1s t Interested Party deposed that in the year 2017, he decided to venture into transport business and purchased a pre-owned vehicle, Subaru in make, at the cost of ZMW 27,900.00 which he swapped for a Toyota Corolla Registration Number ABT 9800. The Deponent exhibited the letter of sale of CJ17 the Subaru and the same is marked "AS6". That the said Corolla was used as a taxi and for personal errands. 3.11 It was deposed that as a. taxi, the Corolla generated ZMW2,000.00 per month, and that at the time it was seized, it had generated approximately ZMW68,000.00 and that he purchased the said vehicle prior to being employed by the 5 th Interested Party. 3.12 It was deposed that he purchased another pre-owned vehicle in 2017 being Toyota Hiace Mini Bus Registration Number BAA 8763, prior to his employment with the 5 th Interested Party and that it generated an average monthly cash turnover of ZMW 9,600.00. That before the Minibus was seized, it had generated an average turnover profit of ZMWl 92, 000.00. 3. 13 It was deposed that he was employed by the 5 th Interested Party in 2018 as Station Manager at the Emmasdale Service Station Branch in Lusaka and fr01n his salary and the proceeds of his transport business, he was able to purchase a plot by instalment payments and slowly constructed a lx3 block of flats in Chunga Government Farm in Lusaka at a total average cost of ZMW 150,000.00 over a period of two years. The copy of the letter of sale was exhibited and marked "AS7". 3.14 That his .monthly income as an employee of the 5 th Interested Party was ZMW 5,757.00 and the copy of a pay cheque was exhibited and marked "ASS". That by the time he was disrnissed by the 5 th Interested Party, he had earned ZMW161 , 196.00. That during his employment with the 5 th Interested Party coupled with his transport business, he purchased three more C,Jl8 pre-owned vehicles and earned ZMW30,000.00 from rentals of the flats at the time they were seized. 3.15 The 1st Interested Party deposed that it can be clearly seen that part of the restricted property was acquired long before he was employed by the 5th Interested Party. 3.16 The Deponent avowed that on or around 1s t February 2020, the 5th Interested Party transferred him to its Head Office to take on the role of Commercial Sales Executive which the Deponent stated was an elevation or promotion but the salary remained the same, and he worked up to the titne he was arrested on 29th April, 2020. 3.17 The Deponent avowed that on 26th May, 2020, the DEC seized the following properties in which he had sufficient beneficial interest namely: a) Toyota Corolla Registration Number ABT 9800 valued at ZMW27,900.00; b) Toyota Hiace Mini Bus Registration Number BAL 7807 valued at ZNIW 120,000.00; c) Toyota Hiace Mini Bus Registration Number BA~J 4 794 valued at ZMW 65,000.00; d) Toyota Hiace Mini Bus Registration Number BAC 8495 valued at ZMW 75,000.00; e) Toyota Mini Bus Registration Number BAA 8763 valued at ZMW 50,000.00; and f) A lx3 bedroo1ned flat in Chunga Government Farm valued at ZMW 175,000.00 CJ19 3.18 The Deponent exhibited and marked as "AS9" the copies of sale as well as registration documents of the above as proof of ownership. 3.19 It was deposed that the Deponents salary account number 5115000005632 held at Eco Bank, Thabo Mbeki Branch, was restricted on 26th May, 2020, and had ZMWl 1,000.00 representing accumulated salary payments. That he was never served with the Restriction Notice placed on his account and was advised by his Advocates that the failure by the Applicant to serve him the Restriction Notice is fatal to their case and is bound to be quashed by this Court. 3.20 The Deponent averred that on 2nd September, 2020, and on 8 th July, 2021, he and his Advocates respectively, wrote to the Applicant demanding tl1e release of his property, but they were denied for reasons that the matter was still being investigated. That the Appliu'illt has continued to hold on to his private property for over three years now and this 1s inordinate, unreasonable and inexcusable. The Deponent averred that he was advised by Counsel that it is an affront to his constitutional rights and a serious travesty of justice to deprive him of his property on the basis of speculative and unproven allegations. 3.21 It was deposed that the combined total of all the seized property an1ounts to ZMW52 3,900.00, and the net tot al ofincorne for the period in issue amounts to ZMWl,123,219.46. 3.22 That the property was seized without ascertaining its value a nd that had the Applicant's agents carried out proper inve stiga tions and cross checked his incon1e against the value CJ20 of the property, and the p eriod he acquired them, they would not have linked the said property to the commission of any offence or indeed deemed them to be tainted property. 3.23 In conclusion, the 1st Interested Party deposed that the Applicant's action to arbitrarily seize and continue to hold on to his private property has sent him into severe squalor and servitude. 3 .24 Counsel for the 1s t Interested Party filed Skeleton Arguments in Opposition on 17th July, 2023, and referred this Court to the case of Zan1bia National Commercial Bank PLC Vs Godfrey Muyamwa and Others 161 as well as Article 1(2) to (3) of The Constitution to buttress his submission that this Court has inherent jurisdiction to pronounce itself on matters bordering on constitutional rights of a citizen. 3.25 Counsel referred us to Article 11 (d) of The Constitution which declared that every person in Zambia is entitled to the fundamental rights and freedoms stated, subject to limitations contained, in particular protection for the privacy of his home and other property and from deprivation of property without con1pensation. In referring us to Article 16 of The Constitution, Counsel argued that the said provision derogates in sub Articles 2 (a~z) however, none of these derogations provide for a n arbitrary and indefinite deprivation of one's property. 3.26 Counsel submitted that Article 16 (2)(t) states as follows with regards to derogation: CJ2 1 "For so long as may be necessary for the purpose of any examination, investigations, trial or inquiry or in the case of land, the carrying out there on". 3.27 It was Counsel's strong contention that the crafters of this law never intended the executive to arbitrary accuse citizens of a crime and purport to carry on indefinite investigations to the detriment of property owners. 3.28 Counsel quoted Article 18 (2)(a) and (12)(a) of The Constitution and based on his understanding he argued that he believed that this provision stipulates that when a citizen is charged with a criminal offence, they may be given an opportunity to prove certain facts failing which the property in question can be taken possession of. 3.29 It was submitted that the 1st Interested Party was initially charged with the offence of Theft by Servant and later the Applicant's agents went on to arbitrarily restrict and take possession of the 1st Interested Party's property without allowing him. to prove certain facts only for him to be given that opportunity six months later and again more than three years later. It was Counsel's submission that this is not what the legislature contemplated when crafting Article 18 of The Constitution. 3.30 Counsel contended that Section 15 of the Prohibition and Prevention of Money Laundering Act is either inconsistent with the spirit of Article 18 of The Constitution or has been misapprehended by the Applicant. It was argued that the gravamen of Counsel's submissions is that the arbitrary seizure CJ22 and continued possession of the 1st Interested Party's private property by the Applicant for purposes of conducting endless and indefinite purported investigations is repugnant to the enactments of the Republican Constitution and therefore, illegal. 3.31 With regards to the interest in the property, Counsel quoted Section 2 of the Forfeiture of Proceeds of Crime Act and submitted that the 1st Interested Party herein has demonstrated sufficient interest in the property as the same were seized fron1 him and he has also exhibited documents proving his interest, both legal and equitable. 3.32 With regards to the seizure of the Bank Account, Counsel referred us to the case of Kalandanya and Others Vs The Atto1·ney General and Others l7l wherein this Court discharged Notices of Seizure that were effected without serving them on the Interested Parties. 3.33 With regard to the Application for forfeiture, Counsel referred this Court to the case of The People Vs Austin Liato (S) and submitted that the Supreme Court held inter alia that once the prosecution had proved its case under Section 71(1), it was for the accused to show they did not have reasonable grounds for suspecting that the property was not derived from crime. Counsel went on to quote Section 71(1) of the Forfeiture of Proceeds of Crime Act, and submitted that the Applicant has to prove its case that the property in issue was reasonably suspected to have been procured using any commission of offence. That in casu, the Applicant has anchored its be.lief on a CJ23 contentious and qu estionable Audit Repor t which in any case, only covers a year, and substantially refers to a third p a rty b y the name of Kalumbila Council who never a t any time d ealt with Emma sdale Service Station where the 1s t Interested Pa rty herein was stationed. 3.34 It was Counsel's argument that the Applicant has to s a tisfy this Court on a balance of probability that the 1st Interested Party was incapable of buying property, save through stealing property of the 5th Interested Party. 3 .35 Counsel referred to a n a rticle entitled "Non~Conviction Based Forfeiture in Canada: The Example of Three Outlaw Motorcycle Gang Club Houses" fou n d a t https://doi.org/10.30709/eucrim-2023-009 and written by Canadian author John Simser and quoted from it as follows: "As a safeguard, NCB statutes confer on the court a jurisdiction to refuse to issue an order that would clearly not be in the interest of justice. If the state makes out all technical elements required for a case, the court can still refuse or limit forfeiture if the outcome would be n1anifestly harsh or inequitable". 3.36 Counsel contended that it will be grossly repugnant to the very concept of justice that a citizen of this country should be wantonly dispossessed of his h a rd--earned property on m ere unp r oven allegations of theft by his employer. 3.3 7 Counsel quoted Section 31(2)(a) and (b)(i) and (ii) of th e Forfeiture of Proceeds of Crimes Act and argued th.at it can CJ24 be seen from the depositions in the Affidavit in Opposition deposed t o by the 1st Interested Party that h e acquired some of the property b efore he wa s employed by the 5 th Interested Party. That the allegation by the Applicant is specific to money stolen from the 5th Interested Party and that it remains with the Applicant to prove that allega tion. 3.38 Counsel cited the case of Macfoy Vs United Africa Company Limited 191 wherein the Court held as follows: "If an act is void, then it is a nullity. It is not only bad but incurably bad. There is no need to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have court declare it to be so and every proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It tvill collapse." 3.39 It was Counsel's view that the Applicant has not met the test for the Non-Conviction ba sed Forfeiture t o warrant the Order contempla ted by the Forfeiture of Proceeds of Crime Act. It was Counsel's contention that the Applicant's suspicion is u n reason a ble and cannot be the b asis upon which a citizen can have his property forfeited. CJ 25 4 APPLICANT'S AFFIDAVIT IN REPLY TO THE 1sT INTERESTED PARTY'S AFFIDAVIT IN OPPOSITION TO THE NOTICE OF MOTION 4.1 The Applicant's Affidavit in Reply was sworn by Elizabeth Mulopa Kajoba and filed on 26th July 2023 . 4.2 It was deposed that the Audit Report for the four Service Stations showing fictitious credit tran.sactions 1s not speculation a nd that the efforts to avail the 1st Interested Party the same Report by summoning him to work were unheeded. That the 5t h Interested Party's efforts to loca te the 1st Interested Party, which included writing to his p revious employer Zam bia Bata Shoe Company Plc as per exhibit "EMKl", failed as he had provided a false home address. 4.3 That the 5 th Interested Party wrote a letter to the Labour Commissioner giving Notice of Suspension of Staff on suspected fraud, collusion and gross incompetence pending police investigations. That the said letter stated that the Service Station Mana gers were on the run a nd absent from work without officia l leave or a u thorization, and that their mobile phones were switched off and social media contacts deleted as p er exhibit marked "EMK2". 4 .4 The Depon ent submitted that the 1s t Interested Party was elusive as he had stopped r eporting for work and that a revie\v of his personal d ata a t work showed that all the listed d etails for his wife were not true and were not able to disclose h is whereabou ts a fter he deserted his job. That the 5 th Interested Party reported the 1st Interested Party to the Labou r Office CJ26 where they were advised to report him to the Police and he was later apprehended. 4.5 It was deposed that as a result of the 1st Interested Party's absenteeism, following the allegations leveled against him, the 5th Interested Party resorted to writing him a letter of dismissal exhibited as "ASl". 4.6 The Deponent avowed that the finding that the aggregate amount allegedly stolen by the 1st Interested Party being K2,823,073.22 is not speculation as there is evidence to that effect. 4.7 Elizabeth Mulopa Kajoba deposed that there is no evidence to show that the witnesses were biased, but gave evidence as it was. Further, that following the arrest of the witnesses, the 1st Interested Party reported to the Police Station and informed the Police that the three Cashiers arrested had nothing to do with the allegations which resulted in their release. That a letter exhibited and marked "EMK3" was -written by the Police to the 5 th Interested Party to this effect. 4. 8 It \Vas avowed that the properties 1n question were bought during the period when the 1st Interested Party was working for the 5 th Interested Party and when the money was stolen as shown by exhibits marked "EMK4~7" which are copies of letters of sale and the Offer of Employment with the 5 th Interested Party. 4.9 It was contended that the 1st Interested Party failed to avail the names of the customers and suppliers for the business he was doing at the time he was warned and cautioned to enable the CJ27 Deponent conduct the necessary investigations into how much profit he was making from the sales. 4.10 It was deposed to that in as much as the 1s t Interested Party has a right to own property, the right does not extend to property that is a proceed of crime. 4.11 That the 1st Interested Party never received any other benefits fron1 Zarnbia Bata Shoe Company Plc and has not produced any proof of the s aid benefits. That his exhibit marked "ASS'' is only showing his Pension and does not show total income earned and that it is unclear how the 1st Interested Party arrived at that amount which amount fails to show the exp enses during the period. 4.12 It was deposed that the 1st Interested Party was already employed by the 5 th Interested Party from 23rd June, 201 7, when he bought the Toyota Corolla Registration Number ABT 9800 on 10t h July, 2019, and Toyota Hiace Minibus Registration Number BAA 8763 on 10th December, 2018, whose letters of sale are exhibited and marked "EMK8" and "EMK9" respectively. 4.13 That contrary to the I st Interested Party's assertions that part of the restricted property was acquired before he was employed by the 5 th Interested Party, she contended that he purchased all the properties after being employed by the 5 th Interested Party. 4 .14 The Deponent avowed that contrary to the 1s t Interested Party's assertions that he constructed the Flats in two years, she contended that he constructed the Flats within a year usjng the stolen money from the 5 th Interested Party. CcJ28 4.15 Elizabeth Mulopa Kajoba deposed that the Seizure Notice was served on the 1st Interested Party's Bank as the custodian of the money and it was up to the Bank to serve the same on him. 4.16 That the properties were seized after conducting investigations and discovering that they were proceeds of crime. 4 .1 7 With regards to the 1st Interested Parties assertion as to values of the properties seized and his alleged incomes, it was deposed to that the net total is misleading as it does not show any of the expenses incurred by the 1s t Interested Party. 4.18 The 2nd, 3 rd and 4th Interested Parties did not file written submissions. 5 5TH INTERESTED PARTY'S SUBMISSIONS IN REPLY TO THE 1 sT INTERESTED PARTY'S SUBMISSIONS IN OPPOSITION OF THE NOTICE OF MOTION 5.1 The 5 th Interested Party, following service of the documents pertaining to this Matter on its Advocates by the 1st Interested Party, filed Affidavit in Reply to the 1st Interested Party's Affidavit in Opposition on 21 st July, 2023, and the same was deposed to by Natasha Hara, the Chief Executive Officer in the en1ploy of the 5 th Interested Party. 5.2 It was deposed that the assertion by the 1st Interested Party that he is the beneficial owner of the properties described and itemized in his Affidavit in Opposition at Paragraphs 53, 55 and 63 is not correct as the 1s t Interested Party did not exhibit documents such as Bank Statements and Contracts to trace his source of income to d emonstrate his capability to buy the said CJ29 properties and to show that he had a stable flow of income to enable him purchase the properties in contention. 5.3 It was avo,ved that consequently, this renders the 1st Interested Party's averments as to his capability to purchase the said properties as speculation. That the properties in contention were not owned in good faith and is m erely meant to deprive the 5th Interested Party funds that were stolen and reported to the Police on 20th February, 2020. 5.4 With regards to the assertion that he was not afforded an opportunity to be heard, the Deponent avowed that the 1st Interested Party abandoned a Company car at the Office upon hearing that the 2nd Interested Party, who is on the run, was being investigated for the shortage and theft at the 5 th Interested Party's Company as shown by exhibit marked "NH4". 5.5 That the 1st Interested Party made it impossible to accord him ru1 opportunity to be heard as he was on the run from 29th February, 2020, when the matter \Vas reported to the Police, until 5 th May, 2020, when he surrendered himself to the Police, contrary to his assertions that he has never been a fugitive nor elusive, as shown by a second exhibit marked "NH4". 5.6 The Deponent submitted that contrary to the 1st Interested Party's avennents that he is n either a fugitive nor on the run, he went into hiding from February 2020 to December 2020. That his phone was off and the number which he provided to the Company as being his wife's nurr1ber was not going through which prompted t he 5 th Interested Party to \VTite to his former CJ30 employer seeking for more information. The letter is exhibited and marked "NH4(ii)". 5.7 Natasha Hara avowed that the 5 th Interested Party reported the matter to the Labour Commissioner to suspend the employees who were involved in misappropriation of the funds as shown by exhibits marked "NH4(i)" collectively. 5.8 The Deponent exhibited copies of the White Books and an agreement with regards to Farm No. 2103/M dated 10th June 2018 marked "AS9" collectively, "NH4(ii)" and "NHS" collectively and" AS7", and deposed that the 1st Interested Party purchased the said properties after the 23rd June 201 7, the date when he was employed by the 5 th Interested Party as shown by exhibit also marked "NHS", being the Offer of Employment. 5. 9 The Deponent averred in conclusion that the 1st Interested Party has not demonstrated that he had the means to purchase the said properties in contention by exhibiting bank statements and contracts relating to his business ventures. 5.10 The 5 th Interested Party filed List of Authorities and Skeleton Arguments in support of the Affidavit in Reply to the Affidavit in Opposition filed by the 1st Interested Party on 21 st July 2023. 5.11 Counsel for the 5 th Interested Party begun by reiterating the averments in the Affidavit in Reply as shown above at 5.2, 5.3 and 5.9 and sub1nitted that it is trite that the burden of proof lies upon the party who substantially asserts the affirmative of the issue. Counsel quoted from the authors of Phipson on Evidence at paragraph 402 at page 50 with regards to the burden of proof as follows: CJ31 "The burden of proof lied upon the party who substantially asserts the affirmative of the issue. The rule which applies is el qui affirmat non ei qui negat incumbit probation ... " 5 . 12 Cou nsel wen t on to cited the case of Constantine Line Vs Imperial Smelting Corporation •10 > a t page 174 wherein the En glish Cour t of Appeal J udge, Lord Maugham, opined as follows: "In general, the nde which applies is el qui affirmat non ei qui negat incumbit probation (proof rests on he who affirms not he who denies). It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons." 5 . 13 Cou nsel further referred us t o a n urnber of Zambian cas es wher ein the Suprem e Court espoused on the law regarding the burd en of p roof which were the cases of Lewanika and Others Vs Chiluba •111, Anderson Kambe la Mazoka and Othel's Vs Levy Patrick Mwanawasa and Others •12J and Khalid Mohamed Vs The Attorney General 113l which we have taken n ote of. 5.14 It was Counsel's submission that the 1st Interested Party h as lan1entably failed to relinquish the burd en of proof as he h as n ot satisfied the t hreshold required by th is Honourable Cour t. 5 . 15 Coun sel argued in su m m ary that the 1st Inter ested Party cann ot b e allowed to h ide in the b u siness of selling beans and rnaize grain s to acquire the said properties. Counsel con tended that it CJ 32 is clear that the said properties were acquired from the proceeds of crime. 5.16 In conclusion, it was Counsel's prayer that the 5 th Interested Party's claim is possessed with merit and the Court order that the 5th Interested Party be paid the sum of ZMW7,755,747.23 being funds stolen by th e Interested Parties herein as well as Raphael Chabala and Kasongo Nkole, all former employees. 5.17 Counsel's prayer above with regards to the 5th Interested Party's claim will b e d ealt with later in this Judgment. 6 NOTICE OF MOTION FOR AN ORDER FOR DECLARATION OF INTEREST OVER TAINTED PROPERTY PURSUANT TO ORDER III RULE 2 OF THE HIGH COURT RULES CHAPTER 27 OF THE LAWS OF ZAMBIA AS READ WITH SECTIONS 12 AND 30 OF THE FORFEITURE OF PROCEEDS OF CRIME ACT NUMBER 19 OF 2010 OF THE LAWS OF ZAMBIA. 6.1 The 5t11 Interested Party filed the Notice of Motion for an Order d eclaring its interest on the tainted property on 2nd J u n e 2023 and the saine was accompanied with an Affidavit in Support as well as List of Authorities and Skeleton Arguments of even date. 6.2 The Affidavit in Support was sworn by Natasha Hara, a Zambian nation al and Chief Executive Officer in the 5 th Interested Party, Ngucha Energy Corporation Limited. 6.3 The contents of the 5 th In ter est ed Party's Affidavit are largely a repetition of the Applicant's Affidavit in the main and we will not belabour to repeat the1n here, suffice to say we h a ve taken note of them, save for the following averments. CJ33 6.4 The Deponent avowed tha t she verily b elieves that the 5 t h Interested Party is legally entitled to the proceeds arising from the disposal of the property in order to be compensated for the loss of funds as a result of the fraud and theft by its former employees. 6.5 She deposed that the State, Applicant herein, has already registered the 5th Interested Party's right to be declared a s a p erson entitled to benefit from the proceeds of the sale or disposal of the tainted assets demonstrated by the enlisting of it as a Party suo moto. 6. 6 The Deponent concluded by avowing that she verily believed that no prejudice will be occasioned to the Applicant by such Order and conversely the interest of justice shall be served so that the 5 th In terested Party is compensated for the loss suffered on account of the stated fraud. 6.7 In the Skeleton Arguments filed in support of the Motion for an Order for d eclaration of Interest over the tainted property on b ehalf of the 5th Interested Party, Counsel reiterated that the Motion was made pursuant to the provisions of Sections 12 and 30 of the Forfeiture of Proceeds of Crime Act and quoted the san1e. It was submitted that the 5th Interested Party is seeking for an Order declaring its interes t on the tainted property \vith the view of being compensated for the loss of funds following the State's Motion for forfeitur e of tainted proper ty which at the time was yet to be heard. 6.8 It was submitted that an Investigating Officer in the employ of the DEC working u nder the Money Laundering Unit, Elizabeth CJ34 Mulopa Kajoba, in her Affidavit in Support of Notice of Motion for forfeiture of tainted property at Paragraphs 21, 25 and 68 deposed to the amounts stolen by the Interested Parties and former employees at the Service Stations and that the cited properties are tainted property liable to forfeiture to the State because the property ,:vas acquired from money stolen from Ngucha Energy Corporation Limited. 6.9 That Paragraphs 13, 14, 18, 20 and 37 of the said Affidavit in Support of Notice of Motion allude to the investigations conducted based on the findings in the Audit Report for the four Service Stations and that the 5th Interested Party is a victim of the fraudulent and fictitious transactions made by the Interested Parties and former employees of the Company. That the 5 th Interested Party is the Complainant in a criminal matter where the Interested Parties were charged with Theft, Forgery, Uttering of False Documents and Money Laundering. That The 5 th Interested Party was deprived of money in the sum approximately of K7, 755,747.23. 6.10 Counsel submitted that the facts attending the circumstances of the case are relative to the source of funds for the acquisition of the properties ·by the Interested Parties and former employees are comrr1on cause and not disputed by the Parties. That the 5 th Interested Party has exhibited the Audit Report which shows that the cash belonging to the Company was misappropriated and further that the DEC have confirmed that in its inv~stigations, it has established that the source of funds was the suspect's employer videlicet the 5 th Interested Party as CJ35 shown in Paragraph 68 of the Affidavit in Support of Notice of Motion filed by the Applicant. 6 .11 It was Counsel's contention that from the foregoing, the 5 th Interested Party has duly discharged its burden to demonstrate what is contained in its Affidavit in Support of Notice for an Order of Declaration of Interest over tainted property and consequently entitles it to a portion of the forfeited property upon disposal in satisfa ction of the value stolen from it. 6. 12 Counsel referred us to the holding in the case of The DPP Vs Michael Kampinda Lushibashi and lnonge Siyauya Lushibashi 1151 and argued that from the foregoing case and the provisions of Section 12 of the Forfeiture of Proceeds of Crime Act it is clear that the 5t h Interested Party is entitled to be co.rnpensated in the sum of ZMW7,755,747.23 which was stolen by the Interested Parties. 6.13 Counsel argued that having established that the 1s t to 4 th Interested Parties were fonner employees of the 5 th Interested Party and that they were stealing from the Company, a nd that in forfeiture cases such as the one in casu where the victirn of fraud has applied to be refu n ded its money, the goal of forfeiture is not only to get the money out of the hands of the crim inals or a ccused persons, but also to give back to the victim, in t his case, the 5th Interested Party. 6 .14 Counsel fortified his submission by referring to tvv·o American cases namely United States Vs Lavin 1161 and United States Vs Jimerson 1171 where it was held respectively as follo,vs: CJ36 "Victim of embezzlement may not recover in ancillary proceeding unless it can trace its property to forfeited funds." "The Government may not use the ancillary proceeding to forfeit the interest of Third Parties." 6 .15 Counsel submitted that the 5 th Interested Party agrees with the Applicant's Skeleton Argurnents at page 5, Paragraph 1 which alluded to the Audit Report and the findings therein and the su b1nission by the Applicant that the evidence clearly proves the elements of the offences of Theft by Servant, Forgery, and Uttering a Forged Document. 6.16 Counsel referred us to a number of articles written on the su bject matter, and argued that it is clear that the 5 th Interested Party in these p roceedings has legal interest in the property forfeited by the Applicant as it is a victim of fraud and forge1y con1mitted by the Interested Parties. That the Applicant having clearly ad mitted the 5 t h Interested Pa rty's interest in the tainted property, there is th erefore, no issue between the Parties left to be determined by this Court. 6.17 With regards to Counsel's submissions on admission of facts, we were referred to Order XXI Rule 6 of the High Court Rules, a nd Order 27 Rule 3/2 of the Rules of the Supreme Court (RSC) 1999 Edition. It was Counsel's argument that a perusal of the Applicant's Skelet on Arguments in Support of the Notice of Motion for Forfeiture of tainted property reveals that it is an express admission of the 5 th Interested Party's claim falling within Orders cited above . Counsel fortified his submission by C,J37 citing the case of A. J. Trading Company Limited Vs Chilombo 1181 wherein the High Court held inter alia as follows: "An admission by the defendant of an allegation in the plaintiff's Statement of Claim means that there is no issue between the parties on that point and no further evidence is admissible in reference to that point." 6. 18 Counsel wished to submit that the Applicant agrees with the 5 th Interested Party that it h as to be compensated on the loss occasioned by the theft and frau d. It was Counsel's submission that the 5 th Interested Party be granted the relief sought as it is legally entitled to the proceeds arisin g from the disposal of the properties in order to be compensated for the loss of fund s as a result of the fraud and theft by the Interested Parties and former ernployees, Raphael Chabala and Kasongo Nkole . 6.19 Counsel su bmitted on the law regarding burden of proof and cited the learned a uthors of Phipson on Evidence, as well as the cases of Constantine Line Vs Imperial Smelting Corporation 1101, Lewanika and Others Vs Chiluba 111i, Anderson Kambela Mazoka and Others Vs Levy Patrick Mwanawasa and Others 1121 and Khalid Mohamed Vs The Attorney General 113 1 which we already referred to above at 5.11 , 5.12, and 5.13, and argued that the 5 th Interested Party h as relin quished the burden of proof as it h as satisfied the threshold required by this Honourable Court. 6.20 In summary, Counsel submitted that the 5 th Interested Party h as relinquished the burden of proof as it has satisfied the CJ38 threshold required to be p aid part of the proceeds of the sale of the properties in line with the provisions of Section 12 of the Forfeiture of Proceeds of Crime Act. That it is therefore, their prayer that the 5 th Interested Party's claim is p ossessed with merit and the Court Order accordingly that the 5th Interested Party be paid the sum of K7,75 5,747.23 being funds stolen by the 1st, 2nd, 3 rd and 4th Interested Parties and Raphael Cha bala and Kasongo Nkole, all being former employees of the 5 th Interested Party. 7 THE HEARING 7. 1 At the h earing of the main Application on 13th February, 2024 , Counsel for the Applicant submitted that the State would rely on the d ocuments filed in s upport of the Application. .... 2 I • The l s t Interested Party submitted that he too would r ely on the documents filed by his Advocate entirely. 7 .3 The 3n1 Interested Party submitted that he had filed no documents in opposition but would give viva voce submissions. It was submitted that the 3 rd Interested Party registered a company called Shubzi General Dealers. The 3 rd Interested Par ty sub1nitted that he conducted business with Sino Hydro in Luapula Province and Nchelenge Rural Health Centre under a p rogr am called RIS spraying houses to p revent m a laria, supply various materials and doing small renovations to their buildings for which he was paid. The 3 rd Interested Party submitted that he was p a id for the work done through his Company's account and a ttempted to present the bank Statements to buttress his earnings, ho,vever the Court could not adn1it them durin g the CJ39 hearing as they did not form part of the documents in Opposition filed into Court in response to the Application by the State. This ended the 3 rd Interested Party's oral submissions. 7.4 In his viva voce submissions, the 4 th Interested Party submitted that his lawyer did not file any documents in opposition into Court and asked for time to file the same. The State opposed this and argued that the Court has rules and procedures and timelines in which to file responses and applications. That the 4 th Interested Party's lawyer neglected to do the needful at the appropriate time and before today's hearing. Further that the lawyer should have sent s01neone from the Firm to explain to the Court why they were not before Court to represent their client. 7. 5 This Court responded by inf onning the Parties that the matter was commenced in Febn1ary 2023 and that as early as June 2023, the Interested Parties and their lawyers had ample time to do the needful in terms of filing the responses to the Application in the main. This Court declined the application to adjourn the matier further and Ordered that the 4 th Interested Party proceed \vith his submissions, to which he stated that he had nothing further to add. 7.6 Counsel for the 5 th Interested Party, Mr. Chilwana, submitted that on 2 nd June 2023, he caused to be filed a Notice of Motion for an Order for Declaration of Interest over the tainted property, an Affidavit in Support as well as Skeleton Arguments and List of Authorities in Support. He stated that he wished to rely on the said documents. CJ40 7.7 Co-Counsel for the 5 th Interested Party, Mr. Chileshe, augmented in response to the 3 rd Interested Party's submission that he has not filed any documents into Court in support of his claims That there are no documents to show that the 3 rd Interested Party's Company, Shubzi General Dealers, is a registered company. That there is no contract before Court between Shubzi General Dealers and Sino Hydro, there are no bank statements or delivery notes relating to any dealings done, That the 3rd Interested Party has not brought any contracts relating to the spraying that he referred to in his submissions. It was Counsel's further contention that they would not have the opportunity to respond via affidavit. 7 .8 In Reply, Counsel for the State and Applicant herein Ms. Chitundu joined issue with Counsel for the S t b Interested Party's submission. She submitted that there is no evidence that the 3 rd Interested Party filed anything into Court despite having ample time to substantiate his submissions before Court. That the 3 rd Interested Party has not touched on the evidence presented before Court by the Applicant to the effect that the Interested Parties were employed by Ngucha Energy Corporation as Managers, with the role of managing the Service Stations by sending Daily Sales Summary and deposit slips to Head Office for reconciliation. That the 1st , 2 nd, 3 rd and 4th Interested Parties made false credit sales coupons; that they :forged the coupons and put customers nan1es on the coupons purporting that the customers perf orn1ed the transactions. CJ41 7. 9 Counsel submitted that the Audit Report shows the transactions in question with the number of alleged entities. That a verification of the entities in the Audit Report was done and the findings were that the fuel transactions in the Report and the values were different from that of the actual entities. Counsel submitted that other entities disputed altogether having made any fuel transactions. 7. 10 It was submitted that the State adduced evidence that the said Interested Parties altered the coupons when they presented them to the Financial Accountant at the 5 th Interested Party. 7 .11 That this is just a little of the evidence which the Applicant disclosed to substantiate their Application that the property in issue is tainted property and proceeds of crime. That the said Interested Parties have not disproved this evidence. 7.12 It was therefore, Counsel's prayer that this Court finds that the State has, on a balance of probability, shown that the property herein is tainted and should be forfeited to the State. 7.13 Ms. Chitundu went on to submit that they have noted the 5 th Interested Party's Motion for an Order of Declaration of Interest over the tainted property in this matter and have no objection to the Motion and to the Court recognizing them as victims in this Matter. 7.14 Co-Counsel for the Applicant, Ms. M. Jackson in acknowledging the 5 th Interested Party's Motion, aug111ented that it was the State's humble prayer that in the event that the Court finds that the 5th Interested Party has established their interest in this Matter, and in the event that the Court orders restitution, that CJ42 the Court puts into consideration the costs that the State may have incurred in investigating, preparing the Applications, and eventually bringing the Matter before this Court. 8 CONSIDERATION AND DECISION OF THE COURT 8. 1 We have considered the issues raised in both Applications, the Affidavit evidence of the Parties and Submissions by learned Counsel as well as the 1st, 3rd, and 4 th Interested Parties. We h ave also considered the authorities cited, for which we are grateful to Counsel. 8.2 We take note that Messrs. H. H. Ndhlovu & Company, Japhet Banda Advocates and Chilawo Nyirongo Mwiinde Legal Practitioners had put themselves on Record as Advocates for the 1st, 3rd and 4 t h Interested Parties, however none attended the hearing held on 13th February 2024 and only their clients appeared. 8.3 \Ve will b egin by considering the Applicant's Application in the main, being the Notice of Motion for an Application for Non Conviction based Forfeiture of tainted property and then consider the 5 th Interested Party's Notice of Motion for an Order for Declaration of Interest over the tainted property. 9 NOTICE OF MOTION FOR AN APPLICATION FOR NON CONVICTION BASED FORFEITURE OF TAINTED PROPERTY 9.1 As earlier stated, this Matter was commenced on 15 th February, 2023, by the Applicant by way of Notice of Motion for an Application for a Non-Conviction based Forfeitw·e Order of tainted property pursuant to Order XXX Rules 15 and 17 of the High Court Rules as read with Sections 29 and 31 of the CJ43 Forfeiture of Proceeds of Crime Act Number 19 of 2010 of the Laws of Zambia (FOPCA). 9.2 The law on civil forfeiture is provided for in the FOPCA whose preamble states, inter alia: "An Act to provide for the deprivation of any proceeds of crime, provide for the deprivation of any person of any proceeds, benefit or property derived from the commission of any serious offence ... " 9.3 The Applicant, being the Director of Public Prosecution, brought this Application under Sections 29 and 31 of the FOPCA which empowers this Court to grant an applicant a Non Conviction based Order and states that: ''A public prosecutor may apply to a court for an order forfeiting to the State all or any property that is tainted property". 9.4 The standard of proof required in non-conviction based forfeiture is prescribed in Section 31(1) as follows: ,,. Subject to subsection (2), where a pub lie prosecutor applies to the court for an. order under this section and the court is satisfied on a balance ofprobabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the ~tate". (Emphasis is ours.) 9.5 Therefore, in the case in casu, the prepon derance of evid ence, being a standard of p roof in civil matters, as provided by tl1e CJ44 Applicant, should show that it is more likely than n ot true, that the property in question, is tainted property. 9 .6 According to Section 2 of the FOPCA, "tainted property" 1n relation to a serious offence means: "{a) any property used in, or in connection with, the commission of the offence; (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;" 9. 7 The FOPCA further defines a "seriou s offence" as: " ... an offence for which the maximum penalty prescribed by law is death, or impriso1tment for not less than twelve months;" 9. 8 Section 2 of the FOPCA provides a definition of "proceeds of crime" as follows: ~'proceeds of crime" in relation to a serious offence or a foreign serious offence, means property or benefit that is- (a} wholly or partly derived or realised directly or indirectly, by any person from the co,nnlissiort of a serious offence or a foreign serious offence; (b) wholly or partly derived or realised from a disposal or other dealing with proceeds of a serious offence or a foreign serious offence; CJ45 (c) wholly or partly acquired proceeds of a serious offence or a foreign serious offence; and includes, on a proportional basis, property into which any property derived or realised directly from the serious offence or foreign serious offence is later converted, transformed or intermingled, and any income, capital or other economic gains derived or realised from the property at any time after the offence; or ... " 9.9 In the case in casu, this Application , made pursua nt to the above p rovisions of the FOPCA, lies again st the cited property h erein. Therefore, the Applicant must prove, on a balance of probabilities, that th e properties, which are the subject matter of the Application, are tainted a s they are proceeds of a crime or crimes that are considered serious offences. 9. 10 In as n1uch as the 1st Interested Party avowed that the Audit Report was false and predica ted on sp eculation, inferences and conclusions, h e failed to adduce evidence to contradict the findings therein that resulted in h is dismissal and the charges b eing levied against him h erein. 9 .11 The 1s t Interested Party has alleged that h e had no knowledge of and was never a fforded an opportun ity by the 5 th Interested Party to respond to the Audit Report; that his dismissal from work was on a ccount of alleged absenteeism and not theft of n1oney as exhibited by the dismissal letter marked "AS 1 ". l~rther that despite b eing warned a nd cautioned, he has not been presented before court for criminal p roceedings. CJ46 9.12 It 1nust be stated here that when a person is suspected to be in possession of property reasonably suspected of being proceeds of crime under Section 71 of the FOPCA, that the focus is on the property and not the person. Hence, Section 71(3) states: "The offence under subsection (1) is not predicated on proof of the co,nmission of a serious offence or foreign serious offence." 9.13 According to Section 71(2} of the FOPCA the only defence available to a person so suspected is to satisfy the court that he or she had no reasonable grounds for suspecting that the property referred to in the charge was derived from or realised, directly or indirectly, from unlawful activity. 9 .14 The question then remains, have the said Interested Parties satisfied this Court that the properties attributed to thern are not proceeds of crime and therefore, should not be forfeited to the State accordingly; have the Interested Parties sufficiently proved that the said property was acquired through hard work, sacrifice and entrepreneurship? 9.15 The Applicant herein filed Affidavit in Support and Skeleton Arguments in Support which state that the properties in question were proceeds of crime as they were acquired from funds embezzled by the 1st, 2 nd, 3rd and 4 th Interested Parties from the 5 th Interested Party b eing Ngucha Energy Corporation Limited. 9. 16 Through the 1st Interested Party's Affidavit in Opposition and Skeleton Arguments in Opposition and the oral submission made by the 3 rd Interested Party during the hearing, dispute CJ47 this allegation and argue that the properties were legitimately acquired and are not proceeds of crime. 9.17 It is not in dispute that the said Interested Parties were employed by the 5th Interested Party in various capacities at its Service Stations as evidenced by exhibits marked collectively as "NHl" as well as a number of correspondences between the 5 th Interested Party, the Zambia Police Service and the Labour Commissioner on Record. 9.18 Evidence on Record shows that the 1st Interested Party, Mr. Anthony Sindala, was offered employment as Retail Station Manager in June 2017 as per exhibit marked "NHS" and a Contract of Employment exhibit marked "NHl" which shows an Agreement of Employment dated 1st January 2018 and signed on 26th April 2018. The 2nd Interested Party, Mr. Irfan Azizi was employed on 6 th October 2015. The 3 rd Interested Party, Mr. Kennedy Mazibisa, was employed as Assistant Station Manager on 1st November 2014 and the 4th Interested Party, Mr. Kennedy Tembo was employed as Station Manager from 1st September 2015. The Agreements of Employment are collectively marked "NHl". 9.19 It is not in dispute that during the period in question the 1st Interested Party was the Manager in charge of Emrnasdale Service Station, the 2 nd Interested Party worked in the Accounts Department at the 5 th Interested Party Head Quarters, the 3rd Interested Party was in charge of Nchelenge Service Station and the 4 th Interested Party was in charge of the Lumwana Service Station. C,J48 9.20 It is not in dispute that when irregularities were noted, the 5 th Interested Party engaged Upstreet Consultancy Services to audit its service stations for the period 1st January 2019 to 31s t December 2019. That an Audit Report was generated exhibited and marked "EMK2" a nd ''NH2" on Record. That the said Report not only showed how the money was being embezzled from the Service Stations, but also showed that the aggregate amount stolen from Emmasdale, Roma, Lumwana and Nchelenge Service Stations was ZMW?,755,747.23. 9.21 It is not in dispute that following the Audit Report and the 5 th Interested Party reporting the matter to the Police, the said Interested Parties were warned and cautioned for the offences of Theft by Servant, Forgery, Uttering a False Document contrary to Sections 278, 344 as read with Section 347, and 352 all of the Penal Code, as well as Money Laundering contrary to Section 7 of the Prohibition a11d Prevention of Money Laundering (Amendment) Act No. 44 of 2010 as read with the Prevention and Prohibition of Money Laundering Act No. 14 of 2001 and Possession of Property Suspected of being Proceeds of Crime contrary to Section 71 of the FOPCA all of which are serious offences. 9.22 It fr, also not in dispute tha t the Applicant seized four Toyota Hiace Mini Buses, one Toyota Corolla, lx3 blocks of flats in Chunga Government Fanns and ZMK 11,827.87 from. the 1st Interested Party; a Toyota Allion, a Toyota Noah, a Toyota Corolla, a Mitsubishi Canter and ZMK 21,525.38 fron1 the 2 nd Interested Party Irfan Aziz; a Toyota Alteza from the 3 rd CJ49 Interested Party; and a Toyota Corolla from the 4 th Interested Party. The Seizure Notices are exhibited and marked "EMK21- 24". 9.23 It is not in dispute that the majority of the motor vehicles seized were registered to the Interested Parties as evidenced by the RTSA documents and letters of sale exhibited and n1arked "EMK25-36" on Record. 9.24 It is not in dispute that Toyota Allion Registration Number ARB 3333 and Toyota Noah Registration Number ALM 6208 Motor Registration Certificates are under the name Aziz Ahmed, the father of the 2 nd Interested Party as shown by the RTSA documents on Record. 9.25 The Applicant alleges that the said Interested Parties embezzled the money through fraudulent acts from the four Service Stations they were employed at and used the said monies to purchase the said properties. Hence, it is their contention that the said properties are tainted properties and liable to forfeiture to the State. 9.26 The Applicant has based its assertions on the findings of the Audit Report and their own investigations and assert that not only were the properties acquired by the said Interested Parties during their period of employment with the 5 th Interested Party, but that save for the stolen funds, the said Interested Parties had no capacity to purchase the properties in question. 9.27 Based on their investiga tions, the Applicant established when the said properties were purchased by and tied ownership of the properties to the Interested Parties. Further that a scrutiny of CJ50 the Interested Parties earnings either from employment or enterprise showe d that the Interested Parties did not have the capacity to purchase the properties and they failed to give sufficient explanation on how they acquired the said properties. Hence, the Applicant's contention that the properties were tainted properties on a balance of probability. 9.28 In opposing the Applicant's contentions , the 1st Interested Party through his Affidavit in Opposition and Skeleton Argumen ts, admitted to owning properties listed in Paragraphs 53, 55 a nd 63 of his Affidavit. 9.29 It was argued that he acquired the properties through his hard work, sacrifice and entrepreneurship. The 1st Interested Pa rty subrnitted that he traded in grain and second-hand clothing a s exhibited by "AS3", which is a s ingle invoice s howing earnings of ZMW28,000.00. The 1st Interested Party also submitted a pay slip from his previous ernployer Zambia Bata Shoe Company Plc dated February 201 7, showing that he earned roughly ZMW4,429.55 per month though in his Affidavit in Opposition h e deposed that he earned ZMW4100.00 per month. 9.30 That other than his benefits of ZMWlS0,257.46 from his employment 'With Zambia Bata Shoe Company Plc, made up of his aggregate earnings and his pension benefits, he earned a p rofit of ZMW300,000.00 from his grain business. 9 .31 The 1st Interested Party a lso alleged that in 20 17 h e ventured into transport business which generated approxii---riately Ztv'. IW68,000.00. He argued that the Toy ota Corolla Registration Number ABT 9800 an.d Toyota Hiace Mini Bus Registration CJSl Nurnber BAA 8763, used in the transport business, were purchased prior to his employment with the 5 th Interested Party and they generated an income ofZMW192,000.00. Further that he was able to buy the plot of land at Chunga Government Farm and slowly construct lx3 block of flats at the average cost of ZMWlS0,000.00 over a 2-year period. The letter of sale of the plot is exhibited and marked "AS7". 9.32 The 1s t Interested Party contended that he earned ZMW161, 196.00 whilst employed with the 5th Interested Party and that coupled with his enterprise, he was able to purchase other vehicles subject of this Application. 9 .33 There were no written submissions from the 3 rd and 4 th Interested Parties. However, during the hearing, the 3rd Interested Party gave viva voce submissions as regards his capacity to purchase property attributed to him and which was seized by the Applicant. He submitted that he had incorporated a company called Shubzi General Dealers and conducted business with various companies and entities for which he was paid through the Company account but failed, as submitted by the Applicant and 5 th Interested Party, to substantiate his claims. 9.34 The 4 th Interested Party failed to file any responses in opposition to the allegations made and to buttress his ability and capacity to purchase property attributed to him, and had nothing to add to the proceedings. In his warn and caution staternent, he claimed to have purchased the vehicle, a Toyota Corolla, from savings fron1 his salary and a loan of ZMW30,000.00 from CJ52 family. A Nessy Chiyabi was interviewed and confirmed lending the 4th Interested Party money but stated that it was a loan of ZMW20,000.00 and that the purpose for the loan was unknown. 9.35 The 2 nd Interested Party, as already established, is currently on the run and ZMW21,525.38 was seized as well as a vehicle Mitsubishi Canter Registration Number ALT 6574 registered in his name. 9.36 The 1st Interested Party has spiritedly argued that his earnings from employment and his enterprise afforded him the capacity to purchase the properties which he vehemently argues were largely purchased prior to his employment. 9.37 Evidence on Record, being exhibited marked "EMK 29-34" as well as those collectively exhibited and marked "AS9" show that the vehicles attributed to him and seized by the Applicant being: a) Toyota Hiace Registration Number BAJ 4 794 was sold to him by Mr. Victor Katongo on 1st August 2019 and registered with RTSA on 13th August 2019; b) Toyota Corolla Registration Number ABT 9800 registered v;,ith RTSA on 16th July 2 0 19; c) Toyota Hiace Registration Nu111ber BAL 7807 registered with RTSA on 4 t.h November 2019; d) Toyota Hiace Registration Number BAC 8494, bought from Mr. Charles Siwanzi and registered \Vith RTSA on 101h July 2019; and e) Toyota Hiace Registration Nurnber BAA 8763 registered with RTSA on 17th December 2018. CJ53 9.38 The Applicant seized ZMWll,827.87 being funds in the 1st Interested Party's account number 515000005632 held at Eco Bank, Thabo Mbeki Branch as well as Farm No. 2103/M with lx3 block of flats situated in Balastone Park or Chunga Government Farms bought by the 1s t Interested Party at a cost of ZMW40,000.00. The purchase agreement Marked "AS7" shows the sales date as being 10th June 2018. The 1st Interested Party alleges to have spent ZMWIS0,000.00 building the l x 3 blocks of flats. 9 .39 The 1st Interested Party states that he worked for Zambia Bata Shoe Company Plc and a pay slip exhibited and marked "AS4" shows that he earned ZMW4,429.55 monthly. 9.40 That during his period of employment, his grain business earned him ZMW300,000.00. His only proof of earnings is what is headed "Quotation/Invoice/Cash Sale" exhibited and marked as "AS3" showing the amount of ZMW28,000.00 and dated 10th tJune 2016. 9.41 \Vith regards to his transport busine ss, the 1st Interested Party claims that Toyota Corolla Registration Number ABT 9800 and Toyota Hiace Registration Number BAA 8763 were used and earned him ZMW68,000.00 and ZMW192,000.00 respectively. He has not provided documentation be it deposits, invoices, bank statements or any other proof to support his claims. 9.42 There is no further evidence of any income or earnings from the grain and transport business. There is sin1ply little to n o transactional proof of his earnings or income. CJ54 9.43 With regards to his employment history, the 1st Interested Party claims to have earned a total of ZMW 139, 100. 00 whilst employed at Zambia Bata Shoe Company Plc. We are left to assume that this is an aggregate of his monthly pay and it is without any consideration of any ordinary expenses. 9 .44 The 1st Interested Party submitted that he earned a Pension refund from Zambia Bata Shoe Company Plc ofZMWl 1,157.46. Exhibit marked "ASS" being Pension Refund Settlement dated 24th August 2017 supports this. 9.45 The 1st Interested Party states that he was employed by the 5th Interested Party in 2018, however, the Offer of Employinent and Agreernent of Employment, exhibited and marked "NHl" shows that he was employed on 23rd June 201 7 as Retail Station Manager and 1st January 2018 as Station Manager respectively. That he earned about ZMW161, 196.00 which is an aggregate of his monthly pay and this figure fails to exclude ordinary expenses. 9.46 The 1st Interested Party admits that while employed and earning from his transport business, he purchased three more pre owned vehicles and finalized the construction of the lx3 block of flats. That the flats earned him ZMW30,000.00 in rental charges by the time they were seized by the Applicant. His assertions are purely word of mouth and are not backed by transactional documents at all. 9.47 It was his claim that the total value of the property seized is ZM\V523,900.00 and that the total net income earned for the period is ZMWl,123,219.46 as broken down in Paragraph 63 of CJ55 his Affidavit in Opposition. Again, this is purely word of mouth and not backed by any documentation. The 1st Interested Party has not provided a documented and valid valuation of the said property nor any proof of rentals paid either through bank deposits or receipts. 9.48 What the 1st Interested Party has failed to sufficiently do is to substantiate his claims as to his capacity to earn and purchase the said properties. 9.49 This is equally the position we take with the property seized from the 3 rd Interested Party which is a Toyota Alteza Registration Number ALL 212 and the property seized from the 4th Interested Party a Toyota Corolla Registration Number AIC 3602 registered with RTSA on 15th January 2020. 9.50 Despite the claims of being entrepreneurs with the 3 rd Interested Party claiming to be a business owner, nm.vhere in the Interested Parties' submissions, both in writing and orally, have they produced their Taxpayer Identification Number {TPIN), a unique ten-digit computer generated number allocated to a taxpayer upon registration with the Zambia Revenue Authority (ZRA), which is a prerequisite for any transaction with ZRA concerning taxes be they Domestic, Income Taxes or Custom Services to show proof of taxes remitted on the earnings they claim were used to purchase the said properties. 9.51 We are inclined to agree that the Applicant has, on a balance of probabilities, proved that the properties attributed to the 1s t , 2 nd, 3 rd , and 4 th Interested Parties are tainted properties as they were derived from proceeds of crime. CJ56 9.52 In the case of The People Vs Austin Chisangu Liato 8 it was held that: "Section 71(2) of the FOPCA does not impose any obligation on the accused person to prove any ingredient of the offence under Section 71(1) of the Act, but it does afford the accused an opportunity to explain the absence of reasonable grounds of suspicion that the property he was found in possession of under Section 71(1) were proceeds of crime." 9. 53 The said Interested Parties have failed to show that the properties in question are not proceeds of crime and h ave equally failed to off er sa tisfactory explanation · and evidenced that is solid, honest and beyond peradventure. 9.54 Coupled with the Audit Report showing clear embezzlement of the 5 th Interested Party's funds from its four Service Stations, it is our considered view that the Applicant has proved its case on a balance of probabilities and had reasonable grounds for suspecting that the property in question was derived or realised directly or indirectly, from unlawful activity, being the theft of the 5 th Interested Party's funds. 9 .55 In the case of R. Vs John Rondo 14 the New South Wales Court of Appeal sta ted that: " ... reasonable suspicion involves less than a belief but more than a mere possibility. There must be some factual basis f~r the suspicion; reasonable suspicion is not arbitrary". CJ57 9 .56 In the case of The People Vs Austin Chisangu Liato8 th e Supreme Court stated as follows: "It is clear to us from the very definition of 'suspicion', that there is a call to prove what may well be inconclusive. Suspicion, being essentially a state of mind, is not in itself easy to prove with certainty. In fact, we think it cannot be proved conclusively and is, in ·itself to a large extent, subjective. What however, calls for proof under section 71 (1) of the Act is 'reasonable suspicion'. This necessarl.ly entails that the suspicion ought to be based on some factual basis which removes the subjectivi.ty implicit in ordinary 'suspicion'. If there are no grounds which make suspicion reasonab le, then such suspicion is mere suspicion or is unreasonable suspicion. It is that factual basis which makes suspicion reasonable, that require to be established.'' 9.57 It is ou r considered view that the Applicant has establish ed factual basis wh ich h as convinced us that their su spicion is r easonable. That is,. that the s aid Interested Parties, h a ving been employed in variou s fiduciary ca pacities at the 5 th Interested Party's Service Station, and based on the findings of the Au dit Report and the Applicant's investigations, d id acquire the s aid p roperties a s a result of m a king false coupon s, u ttering CJ58 the documents, and under banking cash b elonging to the 5 th Interested Party, all of which are serious offences subject to more than 12 months imprisonment if found guilty. 9.58 As earlier stated, the 2 n d Interested Party is currently on the run following the m a tter of embezzlement being reported to the Zambia Police Service. The Applicant has rightly seized his monies amounting to ZMW21 ,525 .38 as well as a vehicle Mitsubishi Canter Registration Number ALT 6574 sold to the 2 n d Interested Party as shown by exhibits marked "EMK26" and ''EMK27" on Record. 9.59 Following a careful scrutiny of the RTSA documents, in particular those exhibited and marked "EMK28" and "EMK29" as well as "EMK36" an.d "EMK37" on Record, we note that the vehicles alluded to, being Toyota Allion Registration Num.ber ARB 3333 and Toyota Noah Registration Number ALM 6 208, are r egistered in the name of Aziz Ahmed, the 2 n d Interested Party's father. Aziz Ahmed is not a party to these Proceedings and n either h as he claimed interest in the above seized vehicles, despite b eing aware of them based on the Seizure Notices exhibited and m arked "EMK21" addressed to and served on him in relation t o the vehicles. 9 .60 Intelligence information gathered by the Applicant asserts that the two vehicles belong t o the 2 nd Interested Party and a state1nent from Jeremiah Nyirenda exhibited and marked ~EMK38" confirms that the Toyota Allion \Vas sold to the 2nd Interested Party but registered in Mr. Aziz Ahmed's name. A further statement from 1Viichael Makelani Phiri, exhibited and CJ59 marked "EMK39" confirms that the Toyota Noah was sold to Aziz Ahmed who at the time of the sale indicated that he was buying it for his son, the 2 nd Interested Party 9.61 We have also taken note of a Toyota Alteza Registration Number ALL 212, which was seized from the 3 rd Interested Party. According to the exhibit marked "EMK40", the said vehicle was sold by Fridah Nkole, to Buchizya Kamima. According to the Affidavit in Support sworn by Elizabeth Mulopa Kajoba at Paragraph 56 and 57, it was avowed that a state1nent was recorded from Buchizya Karriima, the buyer of the said vehicle, who stated that he sold the vehicle to a male person between 2018 and early 2019. It was further avowed that the said statement was exhibited and marked "EMK39". Perusal of the Record shows that "EMK39" is in fact a statement from a Michael Mekelani Phiri. There is no staterr1ent exhibited from Buchizya Kamima, and further the male person he sold the vehicle to is not identified and is unknown. There is no RTSA document to establish legal ownership of the vehicle. Therefore, despite the vehicle being seized from the 3 rd Interested Party, its legal ownership remains unknown. 9.62 We refer to Section 2 of the FOPC Act, where the word interest is defined as: "{a) a legal or equitable estate or intere~-t in the property; or (b) a right, pou,er or privilege in connection with the property". (Our e1nphasis) CJ60 9.63 In the case in casu, it is apparent that the Applicant is asserting equitable estate or interest in the motor vehicles or a right, povver or privilege in connection with the motor vehicles on to the 2 nd and 3 rd Interested Parties. 9.64 Equitable interest or estate arises when a person holds an interest in a property even if they do not have legal title to it. Unlike legal interest, equitable interest or estate can be created ,vithout the need for formalities and it can be established through informal agreement and. by the conduct of the parties involved which establishes a right, power or privilege in connection with the property. 9 .65 The Court of Appeal in the case of Johannes Kenneth Soigopi (T / A Nam Transport Co. A Partnership) Vs Director of Public Prosecutions 19 held that documentary evidence showing ownership of the property establishes interest. Further, the Court of Appeal also held in Nachanga Transport v The Director of Public Prosecutions 20 that documentary evidence such as a motor registration certificate establishes ownership and legitimate interest as does evidence establishing equitable interest. 9.66 From the evidence on Record, it is clear that though both the 2 nd and 3rct Interested Parties had no legal estate or interest in the rnotor vehicles, it is clear that they had equitable interest in them based on informal agreements. The 3 r d Interested Party has submitted that he bought the vehicles through proceeds of his business endeavours even though the vehicle is not formally registered in his name. Both the 2 nd and 3 rd Interested Parties CJ61 had a right, power or privilege in connection with the properties in their possession. 9.67 It is therefore, our considered view that the Applicant was on firm ground when it seized and applied for the forfeiture of the Toyota Allion Registration Number ARB 333, Toyota Noah Registration Number ALM 6208 and Toyota Alteza Registration Number ALL 212. 10 NOTICE OF MOTION FOR AN ORDER FOR DECLARATION OF INTEREST OVER THE TAINTED PROPERTY 10. l As earlier stated, the 5 th Interested Party on 2nd ,June 2023, filed Notice of Motion for an Order for Declaration of Interest over tainted property pursuant to Order III Rule 2 of the High Court Rules Chapter 27 of the Laws of Zambia as read with Sections 12 and 30 of the Forfeiture of Proceeds of Crime Act Number 19 of 2010 of the Laws of Zambia. The l\11otion was accompanied with an Affidavit in Support and List of Authorities and Skeleton Arguments in Support submitted above at 5. 10.2 As we consider the issue of interest over tainted property as applied for by the 5 th Interested Party, we arc guided by the Court of Appeal in the case ofNachanga Transport Vs Director of Public Prosecutions 20 as follows: '~In our view the issue of sufficient irtterest is the most important issue for consideration. This is because if satisfied, only then can the court order that the interest shall not be affected by the forfeiture 01·der C,J62 and declare the nature and extent of the interest in question." 10 .3 Section 12 of the FOPCA states a s follows : "(l) Where an application is made for a forfeiture order against any property, a person who claims an interest in the property may apply to the court, before the forfeiture order is made, for an order under subsection (2). (2) Where a person applies to the court for an order undet· this subsection in respect of the person's interest i11. any property and the court is satisfied that- (a) the applicant has an interest in the property; (b) the applicant was not in any way involved in the commission of the offence in respect of which the forfeiture of the property is sought, or the forfeiture order against the property was made; and (c} the applicant- (i) had the interest before the serious offence occurred; (ii) acquired the interest during or after the commission of the offence, bona fide and for fair value, and did not know or could not reasonably have known at the ti"1e of the acquis·ition that the property w as tainted properly; CJ63 the court may make an order declaring the nature, extent and value, as at the time when the order is made, of the applicant's interest. 10.4 Section 30 of the FOPCA states: "Where a public prosecutor applies under section twenty-nine for a forfeiture order- (a} the public prosecutor shall give not less than thirty days written notice of the application to any person who is known to have an interest in the tainted property in respect of which the application is being made; (b) any person who claims an interest in the property in respect of which the application is made may appear and produce evf.dence at the hearing of the application;" 10.5 The Applicant herein has recognized the 5 th Interested Party as a person known to have interest in the tainted property and they were served with the Application or given Notice of it. The 5 th Interested Party, accordingly appeared and produced evidence at the hearing of the State's Application. 1.0.6 The issue here is whether the 5 th Interested Party has fulfilled and satisfied the requirements under Section 12 of the FOPCA for this Court to consider it a person with interest in the property for the Court to make an order declaring the nature, extent and value of the 5 th Interested Party's interest. 10. 7 Having already esta blished that the said 1st to 4 th Interested Parties were employed by the 5 th Interested Parties in various CJ64 positions including Managers in the stated Service Stations as well as at the Company Head Quarters, and that the said Interested Parties were found and charged with various serious offences with regards to the embezzlement and fraudulent activities at the Service Stations as evidenced by the Audit Report and substantiated by the Applicant's investigations, there is no denying the 5 th Interested PaTty's interest in the properties purchased with the monies stolen fro1n it. 10.8 No evidence has been tendered that would show that the 5 th Interested Party was in any way involved in the commission of the offences in respect of which the forfeiture of the property is sought. If anything, the 5 th Interested Party has demonstrated that it has suffered financial loss and datnage as a result of the embezzlement and fraudulent activities perpetrated by the Interested Parties during the period of their employment. It is these acts of theft that birthed the Applicant's Application in the main and established the said properties as tainted having been obtained from proceeds of crime, being monies stolen from the 5 th Interested Party. 10. 9 It is therefore, our considered view that the .5th Interested Party has sufficiently established interest in the tainted properties to be forfeited to the State as they were purchased using 1nonies stolen from the Company. The said monies were legitimately earned in the conduct of its business prior and during the committing of the offences by the said 1st to 4 th Interested Parties, and the 5 th Interested Party had no hand in the crimes committed. The 5 th Interested Party is entitled to some CJ65 restitution. Therefore, this Court will make an order declaring the nature , extent and value, as at the time when the Order is m ade, of the Applicant's interest in line with Sections 12 and 30 of the FOPCA. 11 CONCLUSION 11. l For the avoidance of doubt, and for the reasons given above, we hereby Order the following properties forfeited to the State: a) Toyota Hiace Mini Bus Registration Number BAA 8763; b) Toyota Hiace Mini Bus Registration Number BAC 8495; c) Toyota Mini Bus Registration Number BAJ 4794; d) Toyota Mini Bus Number Registration Number BAL 7807; e) Toyota Corolla Registration Number ABT 9800; f) Farm No. 2103/M with 1X3 Block of flats in Chunga Government Farm; g} ZMWl 1,827.86 held in Account Number 0010337514681901 or Account Number 51 15000005632 a t Eco Bank, Tha bo Mbeki Branch; h) Toyota Corolla Registration Number ALC 8694; i) Mitsubishi Canter Registration Number ALT 6574; j) ZMW21,525.38 h eld in Account Number CHK-800000544 at Cav1nont Bank; k ) Toyota Corolla Registration Nu1nber AIC 3 602; 1) Toyota Allion Registration Number ARB 3333; m ) Toyota Noah Registration Number ALM 6208; and n ) Toyota Alteza Registration Number ALL 212. 11.2 Having found that the 5 th Interested Party has sufficiently proved its interest, we hereby Order that the subject properties CJ66 be surrendered to the 5 th Inter ested Party t o dispose of in a manner it d eems fit. 11.3 The 1st, 2 nd , 3 rd , and 4 th Int erested Parties are hereby Or d ered to pay costs to the Applicant in r elation to these proceedings. 11 . 4 The said cos ts shall be taxed in default of agreement. DELIVERED AT LUSAKA THIS 15Tn DAY OF MAY 2024 P. K. YANGAILO HIGH COURT JUDGE A. MALATA-ONONUJU HIGH COURT JUDGE I. M. MABBOLOBBOLO HIGH COURT JUDGE CJ67