Godfrey Shamanena v Anti-Corruption Commission (2024/HPEF/003) [2024] ZMHC 116 (21 June 2024)

IN THE HIGH COURT FOR Z AT THE ECONOMIC AND FIN CRIMES DIVISION REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) REGISTRY 1 P. O. BOX 50067, LUSAKA IN THE MATTER OF: SECTIONS 61, 58, 87 OF THE ANTI CORRUPTION ACT NO. 3 OF 2012. AND IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: AN ORDER THAT FAILURE TO SERVE A FRESH NOTICE OF RESTRICTION FOLLOWING THE EXPIRATION OF ITS INITIAL NINE (9) MONTHS LIFE SPAN RENDERED THE PURPORTED FRESH NOTICE RESTRICTION ILLEGAL AND INVALID. AN ORDER SETTING ASIDE THE WARRANT OF SEIZURE PLACED BY THE THE APPLICANT'S ACCOUNT ON GROUND OF ARBITRARINESS AND ABUSE OF POWER. RESPONDENT ON AN ORDER THAT THE RESPONDENT HAS NO POWER OR AUTHORITY IN MATTERS RELATING T O PROPERTY TRANSFER TAX AS SUCH POWERS ARE EXCLUSIVELY RESERVED FOR THE COMMISSIONER GENERAL OF THE ZAMBIA REVENUE AUTHORITY AS PER PROPERTY TRANSFER TAX ACT AS READ TOGETHER WITH THE INCOME T AX ACT. l , BETWEEN: GODFREYSHAMANENA APPLICANT AND ANTI-CORRUPTION COMMISSION RESPONDENT Before the Honourable Lady Justices S. M. Wanjelani, P. K. Yangailo and A. Malata-Ononuju, on this 2ist day of June, 2024. For the Applicant: For the Respondent: Kayula J . Nathan Advocate Messrs. Lewis Mrs. G. M. Muyunda, Assistant Di rector Legal - Anti-Corruption Commission JUDGMENT A. MALATA-ONONUJU J., DELIVERED THE JUDGMENT OF THE COURT. Cases referred to: 1. Anti-Corruption Commission Vs Bowman Chilosha Lusambo (2022) Z. M. H. C. 12 (Unreported); 2. Anti- Corruption Commission V. Serioes Farms Limited Appeal No. 1 o/ 2014; 3. Kalandanya and Others Vs the Attorney-General and Others 2 022/ HPEF/ 10 (Unreported); 4. Godfrey Shamanena Vs Anti-Corruption Commiss ion and The Zambia National Commercial Bank Plc. 2022/ HB/ 91 (Unreported); 5. Anti-Corruption Commission Vs Bamnet Development Corporation Ltd. S. C. Z. No.5 o/2008; 6 . C&S Investments Limi ted, Ace Car Hire Limited & Sunday Maluba Vs The Attorney General Appeal No. 31/2003; and 7. Savenda Systems Limited Vs The Anti-Corruption Commission 2 023/HPEF/28 (Unreported). R-2- ) • Legislation referred to: 1. The Anti-Corruption Act No. 3 o/2012 of the Laws of Zambia; 2. Property Transfer Tax Act, Chapter 340 of the Laws of Zambia; 3. Income Tax Act, Chapter 323 of the Laws of Zambia; and 4. Prohibition and Prevention of Money Laundering Act No. 14 of 2001 of the Laws of Zambia. 1. INTRODUCTION 1.1 Th e App licant filed Originating Su mmons p u rsu ant to Sections 61, 58 and 87 of the Anti-Corruption Act, No. 3 of2012 on 31 st January 2024. The Summons was accompanied by an Affidavit in Suppor t and Skeleton Arguments. 1.2 The Ap plicant's claims are as follows: 1. An Order setting aside the Warrant of Seizure placed by the Respondent on the Applicant's Account on grounds of arbitrariness and abuse of power; 2. An Order that failure to serve a fresh Notice of Restriction by the Respondent on the Applicant following the expiration of nine (9) months of its initial lifespan rendered the Respondent's continued denial of the Applicant's access to his Account illegal; 3. An Order that the Respondent has no power or authority in matters relating to Property Transfer Tax as such power are exclusively reserved for the Commissioner General of the Zambia Revenue Authority as per the Property Transfer Tax. Act, as read together with the Income Tax Act; 4. Further or other relief that the Court may deem fit; and 5. Costs of and incidental hereto. R-3· 2. APPLICANT'S APPLICATION 2.1 The Applicant, GODFREY SHAMANENA (CHIEF NKANA), swore the Affidavit in Support in which he deposed that he is a Zambian national and Director and Shareholder of Bisma Investment Limited, which Company owned a Mining Licence 13811 -HQ-GML, as per exhibit of the Licence marked "GSl". 2.2 He stated that on 20th August, 2021, Bisma Investment Limited offered to sell its Mining Licence, aforementioned, to Pridegems Mining Limited, a subsidiary of Grizzly Mining Limited, at the price of USD 5,000,000.00, but subsequently, a Contract wa s entered into between the Parties at the price of USD 3,000,000.00, as per exhibits marked "GS2" and "GS3" respectively. 2.3 The Deponent averred that on 5th September, 2022, Pridegems Mining Limited, through its holding Company, Grizzly Mining Limited, made its last instalment payment of USD 165,000.00, into the Deponent's Accou nt at Zambia National Commercial Bank (ZANACO) in Kitwe as per the proof of payment marked "GS4". ~.4 lt was deposed th at on 8 th ~eptember, '.2U'.2'.2, the Respondent herein caused to be issued a Restriction Notice on his Account and served the srune on ZANACO R•4• as shown by the exhibited true copy of the said Restriction Notice marked "GSS". 2.5 He deposed that he was called once by the Anti Corruption Commission in Kitwe in or about 15th September, 2022, for inquiries as to the source of the money that was transferred into his Account to which he explained as above. 2.6 He avowed that he has never been called by the Anti Corruption Commission on any issu e concerning the restricted Account or any other investigation. 2 .7 The Deponent averred that when the Nine (9) months initial life span of the Restriction Notice was about to expire as prescribed by law, he met with the Director General of the Anti-Corruption Commission (ACC) and inquired as to when he would be allowed to access his Account and also explained that being a senior citizen and advanced in age, he depended on the same Account to fund his regular medical check-ups as recommended by medical doctors. 2.8 The Deponent avowed that in response to his inquiry, the Director-General informed him that the Respondent had extended its investigations into whether the necessary taxes were paid on the said transaction and that to that effect, the Respondent had written to Zambia Revenue Authority (ZRA) for a formal report on the tax compliance status of the transaction that Bisma Investment Limited and Pridegems Mines Limited had concluded. R·S· J 2 .9 The Deponent added that to assist the Respondent expedite its findings on the tax compliance status of the transaction in question, he furnished the Respondent with the Tax Assessment Report and Property Transfer Tax Clearance Certificate issued by ZRA to him, indicating that Bisma Investment Limited had fully paid the necessary taxes on the transaction, as per exhibits marked "GS 6", being the true copies of the Tax Assessment Form and the Property Transfer Tax Certificate, issued in respect of the transaction in question. That the Respondent did not and has not responded to his letter to date. 2.10 It was deposed that when the initial lifespan (nine months) of the Restriction Notice expired on 7th June 2023, he went to the Bank in the hope that his Account was accessible since he had not received any notification that a fresh Restriction Notice had been placed for a further and final term of Six (6) months as prescribed by the law. That to his surprise, his Account was still restricted notwithstanding that he was never served with the fresh Restriction Notice. 2 .1 1 That upon learning of this development, the Deponent decided, once again, to go and meet the Director General of the Respondent to inquire when it would let go of his Account but he was told that the Respondent was waiting for the Report from ZRA on tax compliance and that it could not act based on the Tax Assessment R-6· J and Property Transfer Tax Certificates that he had furnished. 2.12 The Deponent deposed that from the time the Restriction Notice was placed on h is Account on 8th September, 2022, he has been deprived use of his money, unable to do farming as he could not buy farming inputs and his health has deteriorated as he has been unable to access medical check-up and/or treatment as advised by his local doctors. To this end, he produced copies of medical recommendations that he undergoes tests and/or treatment in India or South Africa marked "GS7". 2.13 It was further deposed that on 7th December, 2023, the Deponent's Advocates wrote to the Respondent informing the Respondent that the legal period for which a Restriction Notice can endure had ended as well as the subsequent fresh Notice issued on 7 th June, 2023, for the further and final term of six months, as per the true copy of the letter of demand to the Respondent marked "GSS". 2.14 The Deponent added that unknown to him, the Respondent, upon realizing that the mandatory prescribed period of fifteen (15) months for which Restriction Notices can last had only remained with two (2) days before it expired, had decided to place a Warrant of Seizure on the same Account. That this only came to his attention when the Warrant of Seizure was served on his Advocates on 12th December, 2023, as per R•7• J exhibits collectively marked "GS9" being copies of the Respondent's Affidavit in Support of Warrant of Seizure. 2 .15 It was averred that the Respondent's Affidavit evidence in Support of the Warrant of Seizure under Paragraph 10, stated that the sale of Bisma Mines to Grizzly Mining Limited was the subject of the investigation as there was no information to suggest that appropriate Property Transfer Tax was paid for the transaction. That this was despite the Deponent having furnished the Respondent the Tax Assessment Report and the Property Transfer Tax Clearance Certificate issued by Zambia Revenue Authority in June, 2023, conclusively indicating that the taxes were paid on the transaction. 2.16 He added that he verily believes as advised by his Advocates, that the decision by the Respondent to place a Warrant of Seizure on his Account, which was already a subject of a Restriction Notice, two (2) days before the expiry period of the Restriction Notice, is an abuse of power meant to deny him access to his Account in perpetuity. 2.17 Further that the reason a Restriction Notice has a timeframe is to ensure that an investigation is concluded in that period and that the subject of the investigation is not denied and/ or precluded from enjoying his property indefinitely. 2.18 The Deponent stated that he had been advised by his Advocates which advice he verily believes to be true that the decision of the Respondent to place a Warrant of R-8- Seizure on his Account upon realizing that the Restriction Notice placed on it on 7th June, 2023, had two (2) days to its expiry, is meant to circumvent the law which places a period of limitation and/ or expiry. 2 .19 It was avowed that the Respondent has no authority to place a Warrant of Seizure for purpose of investigation which purpose could have or should have been achieved by the Restriction Notice which has since expired. 2 .20 The Deponent avowed that further to the above, the Respondent's decision to place a Warrant of Seizure two (2) days' shy of 15 months, being the maximum mandatory period for the life of Restriction Notices, is effectively meant to further the lifespan of the Restriction Notice and continue in perpetuity with investigations when the same have been terminated by operation of the law. 2.21 It was contended on the advice of his Advocates that the Respondent's conduct is an act of impunity, unfair, abuse of power and motivated by other ulterior motives rather than the need to do justice. 2.22 That the Respondent has no legal mandate to inquire into issues of Property Transfer Tax as the same is the exclusive function of and statutory power exercised by the Commissioner General of the ZRA. 2.23 The Deponent avowed that on the advice of his Advocates, and verily believing the same to be true, this Court has power and authority to curtail the excesses of the Respondent so as to ensure that there is no R-9- t arbitrariness, oppr ession and/ or illegality in the conduct of the Respondent as it exercises its public law functions. 2.24 The Applicant filed Skeleton Arguments on 31 st Janu ary, 2024, and begun by submitting that this Matter was correctly before this Court as per Section 86 of the Anti-Corruption Commission Act. 2.25 Counsel for the Applicant submitted that as the Affidavit evidence shows, the decision being challenged stems from the purported exercise of power by the Director-General of the Respondent. 2.26 Cou nsel went on to quote Section 6 1 of the Anti Corruption Commission Act in its entirety, and contended that Section 61(4) provides the timeframe for which a Restriction Notice placed by the Respondent may endu re. That it provides for an initial nine (9) months and has a further proviso empowering the Director-General of the Respondent to issu e fresh Notice upon the expiry of the initial nine (9) months for a further and final six (6) months to facilitate the conclusion of an investigation. 2.27 Cou nsel submitted that as the Affidavit evidence demonstrates, the Director-General of the Respondent placed the initial Restriction Notice on the Applicant's Account on 8 th September, 2022, which expired on 7th June, 2023, nine (9) months later. That a fresh and final Notice for a further six (6) months was placed on the Account on 7 th June, 2023, and should have expired on R-10- 7 th December, 2023. That on 4 th December, 2023, the Respondent placed a Warrant of Seizure on the Applicant's Account to prolong the denial of the Applicant's access to his Account. That it is this decision and conduct which the Applicant impugns for being an act of abuse of power. 2.28 Counsel submitted that scrutiny of the Respondent's Affidavit in Support of Warrant of Seizure at Paragraphs 9 and 10 states that the reasons for the placing of the Restriction Notice on the Applicant's Account on 8th September, 2023, was for investigative purposes and the reasons for the imposition of the Warrant of Seizure which took effect on 4 th December, 2023, two days before the expiry of the Restriction Notice, was because the sale of Bisma Mines to Grizzly Mining Limited is the subject of investigations as there is no information to suggest that appropriate Property Transfer Tax was paid for the transaction. 2.29 Counsel submitted that Paragraphs 6 and 10 of the Respondent's Affidavit in Support of Warrant of Seizure are crucial to the determination of the validity and propriety of the Respondent's action. It was firstly observed that the Restriction Notice was intended to facilitate investigations with a timeframe of fifteen months. Secondly, as per Paragraph 10, it was observed that the Warrant of Seizure was placed on the Applicant's Account because there were investigations going on, R-11· 2.30 It was Cou nsel's submission that the common thread between the Restriction Notice of 8 th September, 2022, which ran till 7th Decembe.r, 2023, and the Warrant of Seizure is that they both relate to the investigations of the Applicant's Accou nt in relation to the transaction between Bisma Mines and Grizzly Mining Limited. 2.31 Counsel argued that the purpose for which the Warrant of Seizu re had been placed by the Respondent on the Applicant's Account had been served and came to an end by the Restriction Notice, being investigations. Th at therefore, the decision by the Respondent to impose a Warrant of Seizure after realising that the Restriction Notice was coming to an end, is in effect, an extension of the Restriction Notice which had come to an end by operation of the law. 2.32 Counsel posed the question that can the Respondent, where it fails to conclude investigations on property subject of the Restriction Notice within the prescribed period by law, decide to place a Warrant of Seizure in order to perpetuate investigations whose time frame had lapsed under the Restriction Notice? Counsel argued that the answer is no. That such a position would be abu se of power and/ or authority as it would render the timeframe for investigations spelt out under Section 61 of the Anti-Corruption Act obsolete and moribund. 2.33 Counsel referred us to the case of Anti-Corruption Commission Vs Bow m an Chilosha Lus ambo 111, wherein the High Court discussed the possible interplay R-12- I and differences between a Restriction Notice and a Warrant of Seizure and argued that where the function of these two devices required by the State can be achieved by eith er, then there is no need for the two to run concurrently. Further, that the only instance where a Warrant of Seizure can be placed on a property which is already a subject of the Restriction Notice is where the fu nction required to be achieved is temporal cu stody or control, which cannot be achieved by a Restriction Notice. 2.34 It was Counsel's contention that what is clear is that the purpose for the placement of the two devices on the Applicant's Account is investigations. That there is no disclosure at all in the Respondent's Affidavit in Su pport of Warrant of Seizure that the reason it was placing the Warrant of Seizure is for purposes of securing a further layer of protection, that is to say, temporal custody. 2.35 Counsel submitted that according to the Bowman Chilosha Lusambo case supra, it is abuse of power to place a Seizure Notice on a property already the subject of the Restriction Notice when the purpose for the imposition of the Warrant of Seizure is one that could be or could have been achieved through a Restriction Notice. That such imposition is an abuse of power and clear stratagem to defeat the protection and/or safeguard afforded to persons who may b e subject of investigations by the Respondent by prescribing and R-13- limiting the tim e frame to a maximum of Fifteen (1 5) m onths. 2.36 Cou nsel contended that lhe lixning of th e i1nposition of the Seizure Warrant lends creden ce to the argument that the Respondent intended to achieve nothing out of the Warrant of Seizure other than secu ring more tim e to continue with investigations on the Account b eyond th e Fifteen (15) months prescribed for Restriction Notices. That the Respondent's intention was to prolong and perpetuate the p eriod of investigation which had run out under th e Restriction Notice. 2.37 It was Counsel's contention that this was not the intention of the Legislature at all. That the failure by the Respondent to con clude its investigations within the tim eframe s pelt out u nder Section 61 of the Anti Corruption Commission Act, is an abrogation of the law. Further that the im position of the Warr ant of Seizure almost at t h e end of the life of the Restriction Notice is a glaring a buse of power by the Respondent and that su ch excesses must be frown ed u p on by the Courts of law. 2 .38 Counsel referred us to the case of Anti-Corruption Commission Vs Serioes Farms Limited 121, wherein the Supreme Court stated that it did not think it was the intention of the Legislature that investigations should be a blank cheque for a fishing expedition, and invited this Court to examine the Respondent's Affidavit evidence to its full effect in order to appr eciate the R-14· possible scope and/ or complexity of the investigation and determine on the basis of reasonableness, whether such an investigation can objectively outlive the life of a Restriction Notice, which is fifteen (15) months without concluding. 2.39 Counsel submitted that in the Respondent's Affidavit in Support of Warrant of Seizure at Paragraph 10, it is stated that the on-going investigations which started on 8th September, 2022, is about whether the transaction between Bisma Investments Limited and Grizzly Mining Limited paid the necessary taxes on the said transactions. Counsel argued that this is the nature and scope of the investigation, and nothing more. 2.40 Counsel submitted that the Applicant, in his Affidavit has informed this Court that he in fact availed the Respondent with the Tax Assessment Report and the Property Transfer Tax Clearance issued to him by ZRA. Counsel posed a question that looking at the nature and scope of the Respondent's investigations, being an enquiry into whether tax was paid, and the materials at the disposal of the Respondent, is it reasonable that such a thin and linear investigation can go beyond fifteen (15) months? Counsel's response was in the negative. 2.41 It was argued that the failure to conclude such investigations is not only a blatant abuse of power, but also a grave manifestation of incompetence. It was Counsel's assertion that it would not be farfetched to R-15• I su ggest that the Respondent has ulterior motives adrift of and away from the furtherance of justice. Counsel s u bmitted that ther efore, in the words of the Suprem e Court in the Anti-Corruption Commission Vs Serioes Farms Limited 121 this Cou rt should not permit the Respondent to use the alleged investigations as a blank cheque for a fishing expedition. 2.42 Counsel submitted that after the expiration of the initial nine (9) month Restriction Notice, the Applicant was never served with the Notice regarding the issuance of the fresh Restriction Notice and was only made aware of it when the Bank cou ld not permit h im to access his Account. 2.43 The qu estion Counsel posed was the legality of the failu re by the Respondent to serve the Applicant the Notice as regards the fresh Rest riction Notice. 2.44 Counsel referred u s to Section 61(4) of the Anti Corruption Act, and submitted that the proviso permits the Respondent to issue a fresh Restriction Notice for a further term of Six (6) months. That the use of the word "fresh" in the Act connotes that it is a new Notice beginning its own life independent of the initial Nine (9) months bu t limited only to Six (6) months. Cou nsel contended that since a fresh Notice has its own life, its issuance must be communicated to the person being investigated. 2.45 In referring this Court to the position of the High Court in the case of Kalandanya & Others Vs The Attorney R-16· General 13l, wherein the Court considered Section 15 of the Prohibition and Prevention of Money Laundering Ac t , Cou nsel argued that a fresh Notice must h~ communicated to the person being investigated . That Section 61(2) of the Anti-Corruption Act does not only apply to an initial Restriction Notice of Nine (9) months , but also applies to a fresh Restriction Notice given for a period of Six (6) months. 2.46 Counsel submitted that by parity of reasoning, Section 60(5) of the Anti-Corruption Act states: "A person aggrieved with the directive of the Director-General issued under subsection (1 ) may apply to the High Court for an order to reverse or vary the d irective. " 2 .47 It was Counsel's argument that b ased on the Kalandanya case supra, the Applicant could on ly move the High Court for reliefs aforesaid if he was served with the fresh Notice of Restriction. That consequently, th e failure of the Responden t to serve the Applicant herein with the fresh Restriction Notice did not only render the said Notice illegal and invalid , but also prejudiced the righ t of the Applicant to make any application to the High Court as he was not aware of the status of his Account. That this failure rendered the Responden t's act of continu ed restriction of the Applicant's Account illegal and invalid. 2.48 Counsel further submitted that the Respond ent does n ot have any legal authority or man date to deal with R•17• issues relating to Property Transfer Tax. Th at such matters are a subject of statute being the Property Transfer Tax Act (PTT Act). That according to the PTT Act, the Commissioner General h as exclu sive p owers to deal with Property Transfer Tax issues and qu estions. Counsel quotes Section 3 of the PTT Act as follows: "(1) The Commissioner-General shall, subject to the direction of the Minister, be responsible for giving effect to the provisions of this Act, and shall for that purpose have all the powers conferred on the Commissioner-General by the Income Tax Act." 2.49 Counsel conten ded that the language of the PPT Act is very clear as to who wields the power in relation to the Property Transfer Tax. That the PTT Act uses the word "shall" in vesting the power relating to Property Transfer Tax in the Commissioner Gen eral and there is no room for other law enforcement agencies to partake in th is power a s it is exclusive to the office of the Commissioner General. 2.50 Cou nsel submitted that the PTT Act has gone further to equip the Commission er General with specific methods of recovering unp aid Property Transfer Tax and the issu ance of Restriction Notices or Warr ants of Seizure are not among the means prescribed by the PTT Act for enforcement purposes. 2 .5 1 Counsel argued that as a result of the act of the Respondent herein to purport to have authority and R•l8· power to deal with Property Transfer Tax matters is n ot only illegal, but also constitutes usurpation of the powers granted to the Commissioner General by the PTT Act, as well as meddling in the affair s and exercise of power of the Commissioner General. 2. 52 In conclusion, Counsel for the Applicant submitted that th e decision and conduct of the Respondent has been highly oppressive and u n fair to the Applicant. It was argued that therefore, it is in the interest of j ustice that this Court intervenes and pron ounces itself on the m anifest arbitrariness unleashed by the Respondent on the Applicant. 2.53 It was Counsel's prayer that this Cou rt sets aside the Warrant of Seizure that the Respon dent placed on the Applicant's Account on the groun d that the Respondent acted oppressively, unfairly, and a bused his power s under the Anti-Corruption Act, and also u su rped and/ or meddled in the affairs of the Commissioner General under the PTT Act. 3 . THE RESPONDENT'S RESPONSE 3.1 The Respondent filed an Affidavit in Opposition to the Originating Su mmons on 20th March, 2024 , and th e same was sworn by MILIMO NG'ANDU, a Senior Investigation s Officer in the Respondent's employ. 3.2 The Deponent avowed that the Respondent received two com p laints dated 25th July, 2022, and 8 th September, 2022, respectively alleging, amon g other things, that on dates unknown but between 1st J anuary, 2022, and 30th R-19· September, 2022, the Applicant was in possession of funds suspected to be proceeds of cri1n<.;. 3.3 It was avern::d that upon perusing the said complaints, exhibited and marked "MNla-b", the Deponent discovered th;:i t fiirthPr details of the oomplu.int wc:r1, that the Applicant was involved in illicit activities of money laundering and being in possession of property suspected to be proceeds of crime and that he was being used as a conduit for the execution of illicit activities by politically exposed persons. 3.4 The Deponent avowed that his preliminary investigations showed that the Applicant has been receiving funds suspected of being proceeds of crime from Grizzly Mining Limited in the period between 20th January, 2022, and 8th September, 2022, which funds are alleged to have been payment towards the sale of Bisma Mine in which the Applicant had a proprietary interest. 3.5 It was avowed that upon the Deponent's recommendation, a Restriction Notice was issued by the Respondent on 8 th September, 2022, against the Applicant's Dollar Account held at ZANACO, Industrial Branch, Kitwe, under Ar.r.ount Number 05011411 ?,00~3S, whir.h Rr.ntriction Notice wuu t.luly served on the Bank. The said Restriction Notice was exhibited and marked "GSS" in Lhe Affidavit in Support. 3.6 That having been advised by Counsel for the Respondent and verily believing the same to be true it R•20- was deposed that the Applicant challenged the aforementioned Restriction Notice, which Order was denied and the Matter dismissed on 20th April, 2023. The copy of the Ruling from the Kabwe High Court was exhibited and marked "MN2". 3.7 The Deponent averred that following the expiration of the Restriction Notice of 8 th September, 2022, on the Applicant's Bank Account, the Deponent on 7 th June, 2023, recommended to the Respondent for the extension of the Restriction Notice for a further Six (6) months as provided by law, which expired on 6 th December, 2023. The Restriction Notice is exhibited and marked "MN3". 3.8 It was avowed that because the investigations against the Applicant were active and ongoing, the Deponent recommended that the Respondent issues a Warrant of Seizure on the Applicant's Bank Account and the same was issued on the Applicant's Dollar Account and served on ZANACO and the Applicant's Advocates as shown 1n exhibit marked "GS9" in the Affidavit 1n Support. 3. 9 It was deposed that on the advice of the Respondent's Advocates and verily believing the same to be true that the Warrant of Seizure goes beyond the effects of the Restriction Notices as is the case in this investigation. Further that the Warrant of Seizure is an investigative tool issued in tµe course of an investigation pursuant to the provisions of the Anti-Corruption Act. R-21· 3.10 The Deponent avowed that he recommended that the Respondent writes to ZRA requesting for all documentation relating to tax as a result of the sale of Bisma Mining, that however, he is advised by the Respondent's Advocates that the Respondent has not received any feedback yet. The letter to ZRA seeking the docu ments is exhibited and marked "MN4". 3.11 The Deponent submitted tha t in response to the Applicant's deposition that he availed a Tax Assessment Report and Property Transfer Clearance Certificate issu ed by ZRA to the Respondent, he was advised by the Respondent's Advocates that there is need for ZRA to indep endently avail the Respondent with information regarding the tax status of the Applicant in order to corroborate the documents that were availed to the Respondent by the Applicant. 3 .12 It was avowed that the investigation against the Applicant is not only limited to the payment of Property Transfer Tax from the sale of Bisma Mines, but extends to possible money laundering and the manner in which the Applicant received funds from Grizzly Mining Limited as part payment for the sale of Bisma Mining Limited, a small-scale mining license to Pridegems Mining Limited, a subsidiary of Grizzly Mining Limited. 3.13 That contrary to the advice rendered to the Applicant by his Advocates that the Respond ent does not have the mandate to inquire into issues of Property Transfer Tax, the Deponent averred that he was advised by the R-22· Respondent's Advocates and verily believing the same to be true, that the Anti-Corruption Act mandates the Respondent to investigate and prosecute corruption offences as well as any other offences which may be discovered in the course of an investigation. 3.14 The Deponent deposed that the Respondent's Advocates advised him that on 19th September, 2023, the Applicant served on the Respondent a letter seeking to compel the Respondent to release his funds based on an alleged Presidential pronouncement. The same letter is exhibited and marked "MNS". 3.15 Further, the Deponent affirmed that on the advice of the Respondent's Advocates, and verily believing the same to be true, the Applicant was invited for interviews relating to the issu es subject of the investigation and that the Respondent still requires some other independent information to prove or disprove the allegations contained in the complaints referred to above. 3.16 The Deponent avowed, having been advised by the Respondent's Advocates, that granting the Applicant the reliefs he seeks would prejudice the Respondent's criminal inveotigo.tiono o.o they would be rendered academic. 3.17 The Respondent filed Skeleton Arguments on 201.h March, 2024, and begun by giving a brief background to the Matter which we have already highlighted above. R-23· 3 .18 Counsel b egun by submitting on the law on Third-Party Restr iction Notices and stated that Section 61 of the Anti-Corruption Act makes provision for r estriction on disposal of property by Third-Party. It was su bmitted that the Respondent herein issued a first Restriction Notice on 8 th September, 2022, and subsequently, on its expiry, extended the same pursuant to the provisions of Section 61 , in June 2023. 3.19 Counsel argued that contrary to the Applicant's contention th at a Restriction Notice takes effect only from the date of service on the person under investigations, a Third-Party Restriction Notice, in terms of Section 61( 1); (4)(a); (5); and (6) of the Anti Corruption Act actu ally takes effect upon service on the Third Party. 3.20 It was submitted that a s the Record will show, the Third -Party, being ZANACO, was du ly served with both the initial and fresh Third-Party Restriction Notices. Cou nsel argued that although Section 61(2) p rovides that a Third-Party Restriction Notice is also served on the p erson under investigations, the said provision does not state that the said Notice only takes effect wh en served on the person under investigations. 3.21 That this is unlike a first party Restriction Notice issued under Section 60 of the Anti-Corruption Act which is directed and served on the person being investigated. That Section 61(4)(a) is among the provisions that guid e on when a Third-Party Restriction Notice takes R-24- effect which is when it is served on the Third-Party. That this is fortified by the fact that Section 6 1(5) creates an offence for non-compliance with a Third-Party Restriction Notice on the part of a Third-Party who is served with a Notice under sub-section (1) without fu rther reference to the service on the person under investigations under sub-section (2). 3.22 It was submitted that, stated another way, the Third Party's obligation to comply with a Third-Party Restriction Notice under risk of committing an offence arises the very moment the Third-Party is served without fu rther recou rse to service of the said Notice on the person under investigation. 3 .23 Counsel buttressed his submission with the holding in the High Court case of Godfrey Shamanena Vs Anti Corruption Commission and Another 141 which he stated was on fours with the case in casu. Counsel contended that the Restriction Notices issued in the investigation relating to the Applicant were legal and rightly issued pursuant to the provisions of the Anti Corruption Act in the course of an active investigation. Further that there is nothing improper about issuing a Third-Party Restriction Notice to a Third-Party holding property on behalf of a p erson u n der investigations such as the Applicant. 3.24 Counsel submitted that a Restriction Notice is an investigative tool with the effect of main taining the status quo of the property in issue. That therefore, where R-25- an investigation is on-going, and it becomes necessary to preserve the property, the Director-General of the Respondent has the power to restrict property as provided for by Sections 60 and 61 of the Anti Corruption Act. 3.25 Counsel referred l:1S to the case of Anti-Corruption Commission Vs Barnnet Development Corporation Limited <5lwherein the Supreme Court held as follows: "The argument of the appellant, under the first ground of appeal, is that a criminal investigation is, by its nature, conducted in secrecy and as such there cannot be full disclosure of the investigations. As far as the appellant is concerned, the affidavit evidence filed before the lower Court showed that there was an investigation going on relating to the manner Stand No. 6955, Lusaka, was acquired by the respondent. On the other hand, it is contended by the respondent that the appellant has not provided clear evidence to sustain the issuance of the restriction notice under Section 24 (7) of the Act. As far as the respondent is concerned, there is no evidence on the identity of the person being investigated and as such the learned trial Judge is said to have exercised his discretion properly on review when he ordered the R-26- withdrawal of the restriction notice against Stand No. 6955, Lusaka. The power to issue a restriction notice by the Director General of the appellant commission under Section 24 (1) of the Act is not in dispute. Whether the Director General has power to issue a fresh restriction notice or simply renew the one already in force is a matter that will be considered in the second ground of appeal. The power of the appellant to issue a restriction notice has been challenged for lack of supportive evidence. To appreciate the extent of the authority vested in the Director General, we propose to reproduce Section 24 (1) of the Act, which is couched in the following terms+ 24 (1) "The Director-General may, by written notice to a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed under this Act, or against whom a prosecution for such offence has been instituted, direct that such person shall not dispose of or otherwise deal with any property specified in such notice without the consent of the Director-General". R-27• l By the foregoing provision and as conceded by counsel for the respondent, the "investigation and prosecution" of the person for an offence under the Act need not exist at the same time for a restriction notice to issue. It was, therefore, a misdirection for the learned trial Judge to have come to the conclusion that there should have been both investigation and prosecution for a restriction notice to be issued. In this appeal case, the basis for issuing a restriction notice was that an investigation had been launched against the respondent in the manner it allegedly acquired Stand No. 6955, Lusaka. This was the allegation and the affidavit in opposition filed by the appellant commission, clearly outli.ned the allegation, consistent with a corrupt act, that needed to be investigated. (Emphasis theirs) 3 .26 It was Counsel's submission that it can be seen from the App licant's Affidavit in Su pport as well as the Respondent's Affidavit in Opposition that the contested Restriction Notices both of 8th September, 2022, and June, 2023, h ave since expired. That it can also been noted that considering the on-going investigation against the Applicant, th e Respondent has subsequently caused to be issued a Warrant of Seizure as of 15th November, 2023. R-28· 3.27 It was Counsel's contention tha t this Cou rt should not entertain this claim to the extent that th e Restriction Notices aforeu1entioned have both expired and have been overtaken by a Warrant of Seizure. 3.28 With r egards to th e law on Warr ants of Seizure, Counsel submitted that Section 58(1) of th e Anti-Corruption Act makes provision for seizure of p roperty under a Warrant of Seizure. That from the definition of "seizure" under Section 2 of th e Anti-Corruption Act, which is temporarily prohibiting the transfer , conver s10n, disposition or movemen t of any property or temporarily assu m ing the custody or control of prop erty or temporarily assuming the custody or control of property on th e basis of an order issued by a cour t or a notice by the Director-General, th e same can be issued even without the involvement of court. 3 .29 It was submitted that just like a Restriction Notice, a Warrant of Seizure is an investigative tool which however , goes beyond th e effect of a Restriction Notice. 3.30 Counsel submitted that the Applicant has argued that the Respondent acted illegally and in abuse of power when th e Warrant of Seizure was issu ed on the Ap plicant's Bank Account held at ZANACO Bank. It wa s Counsel'o contention tllal lhere has been no illegality as the Warrant of 8eizuu:: was rightly is sued following the expiration of the Restriction Notice aforementioned. 3.31 It was argued that the Applicant has misapprehended the provi:Jions of Sec tion 61 of the Anti-Corruption R-29- ,' I Ac t by arguing that the Respondent cannot proceed to issue a Warrant of Seizure on the basis that the law u nder S e ction 61 provides for a life span uf the Notices and upon expiry, issuance of any other instrument is illegal. 3.32 Counsel submitted that the Applicant has further misappreh ended the Judgment in the case of Anti Corruption Commission Vs Bowman Chilosha Lusambo 11 part and not as a whole. > and cited the holding of the Judgment in 3.33 Counsel drew our attention to the holding of the Judgment at pages 26 and 27 under Paragraph 8. 12 of the Judgment which was correctly cited by the Applicant, but that the Applicant has wrongly applied the case, and submitted that the High Court held that a Warrant of Seizure goes beyond what a Restriction Notice can do, and therefore, it is possible for a Warrant of Seizure to follow a Restriction Notice in order to do what a Restriction Notice cannot do, which is the continued preservation of th e property by taking temporary custody or control. 3 .34 Counsel submitted that the distinction between the effects of a Warrant of Seizure and a Restriction Notice u n der the Anti-Corruption Act, is that a Warrant of Seizure empowers an authorised officer to take temporary custody of the seized property wh ereas a Restriction Notice only grants controlled r ights to the Director-General of the Respondent Institution while R-30- the affected person remain s in custody of the property. That this was the position held in the case of Anti Corruption Commission Vs Barnnet D e velopment Corporation Limited l5l_ 3.35 Counsel argued therefore, that the Warrant of Seizure issu ed in this matter, was rightly issued, and there is no legal basis demonstrated by the Applicant upon which this Court can be moved to set aside the said Warrant of Seizure. 3.36 With regard to the argument that the Respondent does not have the authority and mandate to deal with issues relating to Property Transfer Tax, it was Counsel's submission that the Applicant is arguing from a vacuum as he has not cited any provision of the law which precludes the Respondent from investigating tax offences. 3.37 Cou nsel argued that the Respondent is empowered by Section 6(1) of the Anti-Corruption Act to initiate, receive and investigate any offences which may be discovered in the course of an investigation. That this provision allows the Respondent Institution to investigate offences under any written law. That it can be noted from the documents on Recor d that this issue relates to an active investigation against the Applicant, therefore, this matter is still at investigations stage. It was Counsel's contention that these Proceedings cannot be used to curtail an ongoing investigation against the Applicant. R-31· • ' 3.38 Counsel submitted that civil proceedings cannot curtail criminal investigations. It was submitted that the Applicant has made several claims among which he claims that the Warrant of Seizure should be set aside. Counsel reiterated that the criminal investigations under which the said property is subject have not been concluded and are still on-going and that the Applicant cannot use these Proceedings to stop criminal investigations against him. 3.39 Counsel argued that the Applicant has not demonstrated any illegality on the part of the Respondent in issu ing the Warrant of Seizure. That in the absence of malice, bad faith and unreasonableness, this Court has no jurisdiction to challenge the discretion of an Investigating Authority. Further that the Respondent is not obligated to disclose the stage of investigations, and that it is also worth noting that this Court is restricted to what is on Record considering the secret nature of criminal investigations. 3.40 Counsel submitted that the case in casu has similar facts as those in the case of C&S Investments Limited, Ace Car Hire Limited, Sunday Maluba Vs The Attorney General 16 > wherein the Supreme Court found all grounds of appeal against a Warrant of Seizure to have failed as the investigations were on-goihg and the civil application could not circumvent criminal investigations. R il 3 .4 1 Counsel s u bmitted that on the strength of the foregoing, it was h is prayer that the Applicant's Application b e dism issed as the Ap p licant's case lacks merit. ;:in cl is founded on m isconception of the law. That granting the Applicant's Ap plication will aid the Applicant with circum venting criminal investigations. 3.42 Counsel submitted that with res pect to the case of Kalandanya and Others Vs The Attorney General and Others 13>, that this case was correctly decided on its own fact s as it rela ted to a Seizure Notice issued under the Prohibition and Prevention of Money Laundering Act. Th a t the said piece of legislation has no comparable provision to Section 61 of th e Anti-Corruption Act on a Third -Party Res triction Notice taking effect upon service on the Third-Party as was the ca se in the p resent Matter. 3 .43 In conclusion , Counsel's prayer was that this Court finds in favour of the Respondent and u p hold the Third Party Restriction Notices that have been over taken by the Warrant of Seizure subsequently correctly issued. Further that the Respondent is within its powers to inquire into any tax offen ces in the event that any are discovered. It was Counsel's further p rayer that this App lication be dism issed with costs to the Respondent. R-33· • ' 4. HEARING 4 .1 The Matter came up for Hearing on 26th March, 2024, and Counsel for both the Applicant and the Re. Rpondent were present. 4.2 Counsel for the Respondent, submitted that he wou ld be relying on the documents already filed and before the Court, but however, would be briefly augmenting the contents of the same. Counsel's augmentations however, covered issues already addressed in the Affidavit and Skeleton Arguments in Support of th eir Application. We have noted the same and will not repeat them here. 4.3 The Respondent equally submitted that they would rely on the documents filed in Opposition and also wished to b riefly augment and respond to the oral submissions made by Counsel for the Applicant. We also note here that the Respondent's augmentations are in response to the Applicant's submission and are contained in their Affidavit and Skeleton Arguments in Opposition. We have taken not of them and will not repeat them here. 5. CONSIDERATION AND DECISION OF THE COURT 5.1 Having perused the documents filed by both Parties in Support and in Opposition, and heard their viva voce augmentations at the Hearing, it is our view that there are three issues for this Court to determine. These are: 1 . Whether the failure by the Respondent to serve the fresh Restriction Notice, issued on 'Jth June, 2023, on the Applicant renders the said Notice null and void; 2. Whether the decision by the Responde nt to issue a Warrant of Seizure on the Respondent's Account, which was already a subject of a Restriction Notice, Just two days before the said Notice was due to expire was done in bad faith, oppressive and an abuse of the Respondent's power and authority; and 3. Whether the Respondent has the power to investigate and prosecute offences under the Property Transfer Tax Act (PTT Act). 5 .2 We shall proceed to deal with each issue above ad seriatim. 5 .3 Whether the failure by the Respondent to serve the fresh Restriction Notice, issued on 'fth June 2023, on the Applicant renders the said Notice null and void. 5.4 The Applicant submitted that after the expiration of the initial Restriction Notice of nine (9) months, the Applicant was never served with the fresh Restriction Notice and wa s only made aware of it when ZANACO could not permit h im to access his account. 5.5 Counsel questioned the legality of the Resp on dent 's omission to serve the Applicant the fresh Restriction Notice and argued that such omission went against Section 61(2) of the Anti-Corruption Act. Counsel contend ed that b ased on the provisions of Section 61(5) R-35- • ' of the Anti-Corruption Act, the Applicant could only move the High Court for the reliefs therein if he was served with and consequently had knowledge of the fresh Restriction Notice. That such failure to serve the Notice on the part of the Respondent rendered the said Notice illegal and invalid. 5.6 In response, Counsel for the Respondent submitted that the Third-Party, being ZANACO in casu, was served with the fresh Third-Party Restriction Notice. Counsel went on to argue that although Section 61(2) of the Anti Corruption Act provides that Third-Party Restriction Notices be also served on the person being investigated, this provision does not state that the said Notice only takes effect when served on the person being investigated. That the Notices only take effect when the Third-Party, being ZANACO, is served thereby placing an obligation on the Third-Party to comply with the Restriction Notice under risk of committing an offence. 5.7 We will begin our consideration of the arguments presented by the Parties by quoting the impugned Section 61 of the Anti-Corruption Act which covers restriction on disposal of p roperty by a Third-Party as follows: "(1) The Commission may, where it has reasonable grounds to believe that a Third Party is holding any property, including money in a bank account for, or on behalf of, or to the order of a person who is under R-36· l investigation, by notice, in writing, under the hand of the Director-General, serve a notice on the Third-Party directing that the Third-Party shall not dispose of, or otherwise deal with, any property specified in the notice. (2) A notice issued under subsection (1) shall be served on the Third-Party to whom it is directed and on the person being investigated. (3) The Commission may, in issuing a notice under this section impose such conditions as it may determine. (4) A notice issued under subsection (1) shall (a) in respect of an investigation within the jurisdiction, have effect from the time of service upon the person and shall continue in force for a period of nine months or until cancelled by the Director-General, whichever is earlier; and b) in respect of an investigation outside the jurisdiction, have effect from the time of service upon the person and shall continue in force for a period of twelve months or until cancelled by the Director-General, whichever is earlier: Provided that the Director-General may issue a fresh notice upon the expiry of the previous one for a further final term of six months to facilitate the conclusion of an investigation. R-37- ' (5) A Third-Party on whom a notice is served under subsection (1) who disposes of, or deals with, the property specified in the notice without the consent of the Director-General commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding five years. (6) A Third-Party on whom a notice is served under this section shall not dispose of, or otherwise deal with, the property specified in the notice except in accordance with the terms of the notice. (7) Subsections (5), (6) and (7) of section sixty apply to this section." 5 .8 A perusal of the submissions on Record show that for the Applicant, the issue was never when Restriction Notices took effect, b ut rather that the fresh Restriction Notice was only served on the Third-Party, being ZANACO, and not on the person being investigated, being the Applicant h erein, contrary to Section 61(2) of the Anti-Corruption Act. 5.9 Th is Court dealt with both th ese issues in the case of Savenda Systems Limited Vs The Anti-Corruption Commission 171 and found at J 3 l as follows : "7.25 It is therefore our considered view that the Respondent's failure to serve the Third-Party Restriction Notice on the Applicant, being the person under R-38· ' investigation, as mandated by Section 61(2) of the Act renders them irregular, null and void ab initio for want of service and we order that the Restriction Notice on the Applicant's USD Dollar project account number 5727652500219 held with ZANACO be lifted with immediate effect." 5. 10 We stand firmly beh in d our fin ding a bove. It is th erefore, ou r considered view that the fresh Restriction Notice issued on 7<h J u n e, 2023, is null and void ab initio for want of service on the App licant, being the person being investigated. 5 .11 Whether the decision by the Respondent to issue a Warrant of Seizure on the Respondent's Account, which was already a subject of a Restriction Notice, just two days before the said Notice was due to expire was done in bad faith, oppressive and an abuse of the Respondent's power and authority. 5 .12 Cou nsel for the Applicant submitted that Section 61(4) of the Anti-Corruption Act provides the timeframe for which a Restriction Notice may endure. That the Director-Gener al of the Respondent may issue a Restriction Notice for an initial Nine (9) m onths and may issue a fresh Restriction Notice upon the expiry of the Nine (9) months for a further and final p eriod of Six (6) months to fa cilitate the conclusion of investigations. That the fresh Restriction Notice for a further Six (6) months was p la ced on the Applicant's Account with R-39- ZANACO on 7th June, 2023, and was due to expire on 7 th December, 2023. That however, the Respondent placed a Warrant uf Sc::i;t;ure on the said Account two days before the expiry of the fresh Restriction Notice. 5.13 Counsel stated that both the Restriction Notice and the Warrant of Seizure were placed on the Applicant's Account for purposes of investigations therefore, the imposition of a Warrant of Seizure when the Restriction Notice was due to expire is in effect an extension of the Restriction Notice which had come to an end by operation of the law. 5.14 It was Counsel's argument that based on the function of the Restriction Notices and Warrant of Seizure, there was no need for the two to run concurrently for the same purpose, that is investigations. That the only instance where a Warrant of Seizure can be placed on a property which is already the subject of a Restriction Notice is where the function required to be achieved is temporal custody or control, which cannot be achieved by a Restriction Notice. That it was never the intention of the Legislature that investigations should be a blank cheque for a fishing expedition. 5.15 In response, Counsel for the Respondent submitted that because investigations against the Applicant were active and on-going, the Respondent issued a Warrant of Seizure on the Applicant's Account as this not only goes beyond the effects of a Restriction Notice, but is also an investigative tool issued in the course of an investigation R-40- pursuant to the provisions of the Anti-Corruption Act. That a Restriction Notice so issued is an investigative tool with the effect of maintaining the status quo of the property in issue and is necessary to preserve the property. 5.16 It was submitted th at due to the on-going investigation s against the Applicant, the Respondent cau sed to be issued a Warrant of Seizure on 15th Novemb er, 2023. 5.17 That based on the definition of "seizure" u nder Section 3 of the Anti-Corruption Commission Act, the Respondent, by issu ing the same, was assuming custody or control of the property unlike a Restriction Notice which allows the person being investigated, through the office of the Director-General and with his permission, to access th e said property. 5.18 It was submitted that other than the above distinction, which goes beyond the effect of a Restriction Notice, a Warrant of Seizure and a Restriction Notice are nonetheless both investigative tools and that there is no illegality in the issuance of the Warrant of Seizure following the expiration of the fresh Restriction Notice. S .19 We note that the Director-General, under Section 11 of the Anti-Corruption Act may au thorise in writing, any officer of the Commission to conduct an inquiry or investigation into alleged or suspected offences u nder the Act. Section 52 clearly states that the Director General shall, upon receipt of a complaint or by its own initiative, examine each alleged corrupt practice and R-41• J .. decide whether or not an investigation in relation to the allegations is warranted. 5.20 Further, Section 60 and 61 of the Anti-Corruption Act speaks to Restriction Notices, either on the first person , that is the person being investigated, or the third person, being the person or entity hold ing the property on b ehalf of the person being investigated r esp ectively. 5.21 When it comes to Seizu re of property, Section 58(1) of the Anti-Corruption Act states as follows: "Where in the course of an investigation into an offence under this Act, an officer has reasonable grounds to suspect that any movable or immovable property is derived or acquired from corrupt practices, is the subject matter of an offence or is evidence relating to an offence, the officer shall, with a warrant, seize the property." 5.22 Section 3 of the Anti-Corruption Act defin es "seizure" as follows: " ... means temporarily prohibiting the transfer, c o nversion, disposition or movement of any property or temporarily assuming the custody or control of property on the basis of an order issued by a court or a notice by the Director General;" 5.23 What is clear from the above provisions, is that the Respond ent has the legal right to seize or restrict prop erty belonging to a person under investigation s or R-42• whose property is suspected to have been derived or acquired from corrupt practices, is the subject matter of an offence or whose property is evidence relating to an offence under Part IV of the Anti-Corruption Act. It is within the rights and powers of the Respondent to either issue a first, or Third-Party Restriction Notice, or Warrant of Seizure on the property of a person being investigated. 5.24 Where property is restricted under Sections 60 and 6 1 of the Anti-Corruption Act, the lifespan of both the initial and fresh Restriction Notices is prescribed and further, both Sections instruct that the person under investigations and the Third-Party shall not dispose of, or otherwise deal with, any property specified in such notice without the consent of the Director-General. 5.25 A Warrant of Seizure, in and of itself, can be issued by the Respondent either as the first port of call in an investigation of corrupt practices, or indeed at any time including following the expiration of either the initial or fresh Restriction Notice. A Warrant of Seizure, once issued, not only temporarily prohibits the transfer, conversion, disposition or movement of any property but also allows the Respondent to temporarily assume custody or control of property. 5.26 It is our considered view that Restriction Notices and a Warrant of Seizure are investigative tools used by the Respondent, but however, have very different effects. R-43· 5.27 Property subjected to a Restriction Notice, issued under either Section 60 or 61 of the Anti-Corruption Act, cannot be dealt with, transferred or disposed of without the consent of the Director-General of the Respondent. This was the guidance of the Su preme Cou rt in the case of Anti-Corruption Commission Vs Barnnet Development Corporation Limited f5l. Therefore, a person being investigated and whose property is subject to a first, or Third-Party Restriction Notice, can, with the consent of the Director-General, deal with, transfer or dispose of his or her property. 5 .28 On the other hand, a Warrant of Seizure issued under Section 58, as read with the definition of "seizure" under Section 3 of the Anti-Corruption Act does not allow a person being investigated and whose property has been seized to deal with, transfer or dispose of his or her property. A Warrant of Seizure goes fu r ther and states that the Respondent assumes temporal custody or control of property and the person under investigation has no access to his or her property at all. 5.29 In reference to Restriction Notices and a Warrant of Seizure under the Anti-Corruption Act, in the case of Anti-Corruption Commission Vs Bowman Chilos ha Lusambo flJ this Cou rt stated as follows: "What is clear from the above provisions of the la w is that both a Restriction Notice a nd a Warrant of Seiz ure are inte nd e d to prot ect the interests of t he St ate in a property reasonably R-44- suspected to be acquired from corrupt practices. However, what differs is the degree of protection. While both the Restriction Notice and a Warrant of Seizure restrict or prohibit the dealing, disposal, conversion or movement of the subject property, a Warrant of Seizure goes a step further by granting the State temporal custody or control of the subject property. Emanating from the foregoing, our view is that while a Restriction Notice and a Warrant of Seizure serve the same purpose of protecting the State's interest in properties suspected to be acquired or derived from corrupt practices, they have a different degree of protection. Thus, a Restriction Notice cannot be issued on a property subject of a Warrant of Seizure as all the functions of the Notice of Seizure can be achieved through a Warrant of Seizure. On the other hand, a Warrant of Seizure can still be issued on a property that is subject of a Restriction Notice in order to have temporal custody or control of the subject property, which is not possible through a Restriction Notice. R-45- Further, had the Legislature intended the two documents to serve the same purpose, it could not have provided for them in separate provisions." 5 .30 Based on the foregoing, it is our considered view that a Warrant of Seizure can be placed on property that is the subject of a valid and on -going Restriction Notice. Therefore, the Respondent's actions in issuing the Warrant of Seizure on the subject property was not only legal, but cannot be said to have been done in bad faith, nor was it oppressive and an abuse of power and authority. 5.31 Whether the Respondent has t he power to investigate and pros ecute offences under the Property Transfer Tax Act (PTT Act). 5.32 Counsel submitted that in the Resp onden t 's Affidavit in Support of Warrant of Seizure at Paragraph 10, it is stated that the ongoing investigation which started on 8 th September, 2022, is about whether the necessary taxes were paid on the transaction between Bisma Investment Limited and Grizzly Mining Limited. It was s ubmitted that the Applicant took it upon himself to avail the Respondent with the Tax Asses smen t Rep ort and the Property Transfer Tax Clearance issu ed to him in relation to the said trans action, but that this did not sway the Respondent who disregarded the documents and continued to investigate the issue to date. R-46• 5.33 It was submitted that the Respondent does not have any legal authority or mandate to deal with issues relating to Property Transfer Tax, which Counsel cuulended, falls under the exclusive power and authority of the Commissioner General ZRA. 5 .34 In response, Counsel for the Applicant argued that under Section 6(1) of the Anti-Corruption Act, the Respondent is empowered to initiate, receive and investigate any offence under any written law which may be discovered in the course of investigations as in the case in casu. 5.35 Counsel submitted that the Applicant cannot use these Proceedings, being civil proceedings, to curtail an on going criminal investigation against the Applicant. Counsel submitted that the Applicant has failed to demonstrate any illegality on the part of the Respondent in issuing the Warrant of Seizure. That in the absence of bad faith, malice, unreasonableness, this Court has no jurisdiction to challenge the discretion of an Investigating Authority. 5 .36 Section 6(l)(b) of the Anti-Corruption Act is self explanatory in relation to the Applicant's issue herein. It states that the functions of the Commission, the Respondent herein, inter alia, are to: "initiate. receive and investigate complaints of alleged or suspected corrupt practices, and. subfect to the directions of the Director of Public Prosecutions. prosecute- R-47• (i) offences under this Act; and (ii) such other offence under any other written law as may have come to the notice of the Commission during the investigation of an offence under this Act." (Emphasis ours) 5.37 Not only does Section 89 give the Anti-Corruption Act supremacy over all other written laws, but Section 6(l)(b) above allows the Commission investigate other offences under any written law outside the Anti Corruption Act. This includes offences under the PTT Act and the Income Tax Act. 5.38 It is therefore our considered view that the Respondent has the power to investigate and, subject to the directions of the Director of Public Prosecution, prosecute offences under the PTT Act. 5.39 It is our further considered view that the Respondent issued a Warrant of Seizure against the Applicant's property as part of their on-going criminal investigations and we agree with the Respondent that this Application cannot be used to circumvent the said criminal investigations. We are supported by a plethora of decided cases including C&S Investment Limited; Ace Car Hire Limited, Sunday Maluba Vs The Attorney General l6l wherein the Supreme Court stated as follows: "As we understand it, the fourth ground of appeal attacks the learned Judge's conclusion that there were no cogent reasons to arrest R-48· criminal investigations by the Respondent. The Respondent's position, according to his affidavit in opposition, was that the seizure of the goods and the freezing of accounts were carried out during the course of criminal investigations. Clearly, any Order to release the property would have an impact on the criminal investigations. We do not find that it was farfetched for the Judge to conclude, in these circumstances, that there was an attempt, through these civil proceedings, to a rrest criminal investigations." 6 . CONCLUSION 6.1 In view of th e foregoing, we find that the failu re by the Respondent to serve the fresh Restriction Notice on the Applicant renders th e it null and void. Therefore, the Applicant's first issue raised succeed s . 6 .2 We find th at the d ecision by the Respondent to issue a Warrant of Seizure on th e Respondent's Account was not d one in bad faith, oppress ive and an abuse of the Respondent's power and au th ority. Therefore, the Ap plicant's second issue raised fails. 6.3 We find that the Respondent has the power to investigate and prosecu te offences under the Property Transfer Act. Therefore, the Applicant's third issue raised fails. 6 .4 Each Party to bear its own costs. R-49· 6.5 Leave to appeal is granted. SIGNED, SEALED AND DELIVERED AT LUSAKA THIS 2l5t DAY OF JUNE 2024 S. M. W JELANI HIGH COURT JUDGE ~ .... .............................•.• P. K. YANGAILO HIGH COURT JUDGE A. MALATA-ONONUJU HIGH COURT JUDGE I\EPUBLIC OF ZAM81A ~tGH COU"T OF UIM61A ECONOMIC ~ ,~NCI-'!. CRIMES DIVISION ~ ( 2 t JUN 2024 \q_a REGISTRY 1 P. O. IIOX 5001i7. LUSAKA R-50-