Ronald Kaoma Chitotela v Anti-Corruption Commission and 3 Ors (SCZ/8/1/2025) [2025] ZMSC 17 (13 August 2025)

The transfer of the case from the General Division to the EFCC was irregular and not in compliance with section 23 of the High Court Act. As a result, the EFCC lacked jurisdiction to hear the matter, and its judgment is quashed. The matter is remitted to the High Court, General Division, for hearing under the...

Source-derived case information.

Citation: [2025] ZMSC 17
Parties: Appellant: Ronald Kaoma Chitotela; 1st Respondent: Anti-Corruption Commission; 2nd Respondent: Silumesi Muchula; 3rd Respondent: Gift Tembo; 4th Respondent: Kopano Chilembo
Court: Supreme Court of Zambia
Jurisdiction: Zambia
Case Number: SCZ/8/1/2025
Procedural Posture: Civil Appeal / Supreme Court Judgment
Outcome: appeal allowed
Legal Topics: Jurisdiction, Transfer of Cases, Human Rights, Seizure of Property, Due Process
Source Language: en

Constitutional Law Administrative Law Criminal Law Jurisdiction Transfer of Cases Human Rights Seizure of Property Due Process

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Summary, issues, holding and outcome

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Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2

Parties

Ronald Kaoma Chitotela

Appellant

Anti-Corruption Commission

1st Respondent

Silumesi Muchula

2nd Respondent

Gift Tembo

3rd Respondent

Kopano Chilembo

4th Respondent

Procedural Posture

Civil Appeal / Supreme Court Judgment

Legal Issues

1 Whether the Economic and Financial Crimes Division (EFCC) of the High Court had jurisdiction to hear a human rights petition initially filed in the General Division
2 Whether the transfer of the case from the General Division to the EFCC was lawful and regular under section 23 of the High Court Act
3 Whether the appellant's constitutional rights were violated by the seizure of his property

Ratio Decidendi

Court Disposition

appeal allowed

Orders

Judgment of the EFCC quashed
Matter remitted to the High Court, General Division, under the original cause number for rehearing

Full Case Text

Judgment text and source record

1 paragraphs

IN THE SUPREME COURT ZAMBA HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: AND IN THE MATTER OF: BETWEEN: REPUBLIC OF ZAMBIA (OURTOE ZAMBIA aPREM JUDICIARY 13 AUG 2025 RCISTKY2 ATAPEAL NO. 10/2025 SCZ/8/1/2025 SUPRENE: COUT SAKA of Zambia (Amendment) Act No.2 of 2016 of the Laws of Zambia the Constitution Articles 17 and 18 of the Constitution of Zambia (Amendment) Act No.2 of 2016 of the Laws of Zambia Article 28 of the Constitution of Zambia (Amendment) Act No.2 of 20O16 of the Laws of Zambia Seizure Notice issued dated 27th April, The Protection of Fundamental Rights Regulations, 1969 RONALD KAOMA CHITOTELA APPELLANT AND ANTI-CORRUPTION COMMISSION SILUMESI MUCHULA GIFT TEMBO KOPANO CHILEMB0 1sT RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT CORAM: Malila CJ, Kaoma and Chisanga On 3rd June, 2025 and 13th August, 2025 JJS J2 For the Appellant: For the 1st Respondent: Mr. A. Kombe, Messrs Andrew & Partners with Mr. B. Mwelwa, Messrs Mwelwa Phiri & Partners Ms. G. M. Muyunda, Assistant Director (Legal) – Anti-Corruption Commission For the 2nd Respondent: For the 3rd Respondent: For the 4th Respondent: In person In person In person JUDG MEN T Malila, CJ delivered judgment of the Court. Cases referred to: 1. Thelma Maunga u. Anti-Corruption Commission and Attorney General (Appeal No. 5 of 2024) 2. JCN Holdings Ltd. v. Development Bank of Zambia & Others (SCZ Judgment No. 22 of 2013) Other work referred to: 1. Constitution of Zambia (Amendment) Act No. 2 of 2016 2. Anti-Corruption Commission Act, No. 3 of 2012 3. Forfeiture of Proceeds of Crime Act, No. 19 of 2010 4 Economic and Financial Crimes (Division of Court) Order 2022 5. High Court Act Chapter 6. Protection of Fundamental Rights Regulations, 1969. 27 of the Laws of Zambia 1.0. INTRODUCTION AND BACKGROUND 1.1. A question that is often asked in the anti-corruption efforts is whether the end should justify the means? This and kindred questions inevitably deserve consideration in this appeal, no matter how slight. More solemnly, the appeal is a stark J3 reminder on the need for those involved in various roles in investigating, prosecuting and trying corruption cases to always temper their decisions with discernment - good judgment, SO aS to avoid indicting innocence. Put simply, however the pursuit of graft isdone, grafting injustice must be the last thing. 1.2. The appellant was a businessman and a Member of Parliament at the time these proceedings commenced in May 2022. He had previously served as a Cabinet Minister. 1.3. He is the alleged beneficial owner of the property known as Stand No. CHONG/LN.21188/51 State Lodge, Chongwe, though it is registered in the name ofa third party, Liu Runmin, who issaid to have sold the property to the appellant. 1.4. In its investigations, the first respondent took an interest in the appellant's said property, suspecting it to have been acquired using proceeds of crime. The fact that the property was still registered in the nameof Liu Runmin only heightened the first respondent's suspicion. The appellant explains that the only reason the property is not yet registered in his name is because J4 some largely administrative aspects of the sale transaction with Liu Runmin have not been completed. 1.5. The first respondent issued a restriction notice pursuant to the provisions of the Anti-Corruption Commission Act over the property on 22nd March 2022. Through his advocates the appellant challenged the restriction notice in the High Court. 1.6. Subsequently, the first respondent invited the appellant for an interview on the 20th April 2022 whereupon he was warned and cautioned on a possible property reasonably suspected to be proceeds of crime. of being charge in possession of 1.7. On 29th April 2022, a seizure notice in respect of the appellant's property was served on the appellant's advOcates, and soon announced the seizure of the thereafter the first respondent property to the public. 2.0. A PETITION ISFILED 2.1. The appellant was angered by these developments as he had maintained through-out that he purchased a bare plot of land on which a dwelling house was constructed. He alleges that he J5 used a construction company to put up the development and had not even completed paying the bill for the construction the time the property was seized by the first works at respondent. He believed that by its actions, the first respondent had violated several of his fundamental rights guaranteed under the Constitution. 2.2. The appellant thus filed a petition in the High Court, General to Article 28 of the Division, on 26th May 2023, pursuant Constitution which provides that any person who believes that his rights have been, are being or are likely to be infringed, may petition the High Court for redress. 2.3. In his petition, the appellant alleged various breaches by the of his fundamental rights as set out in the first respondent Constitution. He claimed that the first respondent's entry upon his property and the purported seizure of the same without his to privacy under consent violated, among others, his right Article 17(1) of the Constitution of Zambia. 2.4. The appellant also alleged violation of his right to a fair trial under Article 18 of the Constitution in that the seizure by the J6 first respondent of his dwelling house meant that his right to be presumed innocent had been violated. He posited incumbent upon the first respondent guilty before any seizure of his property. He also contended that that it was to prove the appellant he could not be compelled to give evidence; that the first seized his property without ascertaining where the respondent resources he used to purchase and construct the same came from. 2.5. He sought a series of relief including a declaration that his property was legally and genuinely acquired; and that the seizure of his property was arbitrary and in purported contravention of his rights under the Constitution. 2.6. The appellant challenged sections 58 and 59 of the Anti Act, Commission Corruption unconstitutional as they deprive him of his right to privacy, his property and to dueprocess of the law. alleging they that are to 2.7. More deliberately,the appellant alleged that sections 71 and 78 of the Forfeiture of Proceeds of Crime Act are unconstitutional as they contravene Article 18(2)(a) and (7) of the Constitution. J7 2.8. Before the hearing of the petition, several preliminary issues Were raised. One of them impugned the jurisdiction of the Economic and Financial Crimes Division (EFCC) to hear a human rights matter. 2.9. In his motion on the jurisdictional question before the EFCC, the appellant pointed to section 3 of the Economic and Financial Crimes (Division of Court) Order 2022 in supporting his the court was created to hear and determine and submission that financial crimes economic and pertaining cases to and not those alleging violations of fundamental corruption rights under theBill of Rights and as such he would be severely if that court heard and determined his grievances prejudiced under the Bill of Rights. 2.10. He also raised concern that the file's movement from the General Division to the EFCC was not commnunicated to the parties. 2.11. The court gave short shrift to the objection, holding that the EFCC was mnerely constituted as a division of the one High Court established by Article 134 of the Constitution; that the J8 Statutory Instrument No. 5 of 2022 by which the Chief Justice established the EFCC as a division of the High Court stated that in economic and financial crimes matters was in its jurisdiction addition to the jurisdiction it has under Article 134; and that under section 4 of the High Court, all judges possess and may exercise in all respects, equal power,authority and jurisdiction. The objection by the appellant was thus dismissed. 2.12. As the court did not, in dismissing the objection which was heard on affidavit evidence, either grant or decline to grant leave took out an application for leave to to appeal, the appellant appeal against the court's decision on the jurisdictional point. 2.13. The application for leave to appeal was dismissed by the EFCC of appeal did not reveal any on the basis that the grounds realisticprospects of success for the intended appeal. 2.14. The next thing the appellant did was to issue a notice in the Court of Appeal of intention toappeal against the ruling of the EFCC. The nmatter was allocated to a single judge of the Court of Appeal who promptly dealt with it. J9 2.15. On 30th March 2023, the single judge of the Court of Appeal dismissed the application on the basis that the appeal did not have prospect of success. In the process the judge pointed out other technical weaknesses that afflicted the application such as the absence in legislative provisions on "special leave to appeal" which the appellant had indicated he wished to pursue, as well as the delay in filing the notice of appeal. 3.0. DECISION OF THE HIGH COURT AND THE APPEAL TO THE SUPREME COURT 3.1. Meanwhile, the EFCC heard the appellant's petition and the response to it, and appraised the submissions made on behalf It concluded that the appellant had failed to of the parties. prove the petition and thus, in its judgment of 20th August 2024, dismissed the petition in its entirety. 3.2. Appeal is dated 21st January The appellant was unhappy with thejudgment of the court. He thus launched an appeal to this court. The Memorandum of 2025 - five months after the It is unclear from the record of judgment appealed against. appeal whether leave to appeal out of time was sought given. Therespondent did not raise any issue over this. and J10 3.3. The record of appeal was filed on 21st March 2025, seven months after the judgment appealed against, and sixty ays after the memorandum of appeal. 3.4. In the Memorandum of Appeal, seven grounds of appeal were fronted as follows: Ground One The trial court below misdirected itself in law and in fact by misinterpreting and misapplying the provision of Articles 17 and 18 of the Constitution of Zambia (Amendment) Act No. 2 of 2016, specifically in relation to the appellant's to privacy and the presumption of innocence by failing to adequately safeguard the appellant's these constitutional provisions. rights under fundamental right Ground Two The trial court below misdirected itself in law and in fact in dismissing the appellant's claims regarding the seizure notice issued on 27th April 2022, which the appellant contende d was unlawful and a violation of his constitutional rights by failing to properly for the consider the legal basis and justification seizure in light of the protection of fundamental rights. Ground Three The trial court below misdirected itself in law and in fact by dismissing the appellant's claims against for misfeasance in public office, and yet the evidence presented demonstrated that the respondents acted with reckless the respondents J11 for the appellant's disregard rights, failed to address this issue adequately. and therefore, the court Ground Four The trial court below misdirected failing to give itself in law and in fact in due consideration to the constitutional provided safeguards Zambia, which is designed appellant therefore, undermining dangerous under Article 28 of the Constitution of individuals like the from unlawful actions by public authorities, and the effectiveness of these safeguards for the protection of to protect precedent set and fundamental rights. Ground Five The trial court below misdirected itself in 1law and in fact in the public interest awarding costs to the respondents nature of the constitutional issues raised by the appellant, and the therefore, pursuit of legitimate the awarding of costs was unjust and discouraged constitutional challenges. despite Ground Six The trial court below erred in the classification of the case under Cause No. 2022/HPEF/02 in the Economic and Financial Crimes Division, as per the memorandum dated the 24th of June 2022, by demonstrating bias in identifying a matter relating to as one to be tried before the Economic and the Bill of Rights Financial Crimes Division of the High Court, contrary to its proper categorisation and jurisdictional mandate of the High Court of Zambia. Ground Seven The trial court below erred in law and fact when it transferred III of the this matter which.was a petition under Part J12 Constitution under Cause No. 2022/HP/0660 in General Division to the Economic and Financial Crimes Division of the High Court under Cause No. 2022/HPEF/02. 4.0. THE APPELLANTS CASE 4.1. The appellant filed his heads of argument on 21st March 2025 along with a List of Authorities. At the hearing of the appeal, Mr. Kombe, learned counsel for the appellant, stated that it is upon those heads of argument that the appellant wished to place reliance. He went on to state that in view of our recent decision in Thelma Maunga v. Anti-Corruption Commission and Attorney Generall!) which was made after the appellant had filed his heads of argument, he wished to focus his oral address to the court on the two grounds of appeal that raised the jurisdictional point regarding the EFCC and constitutional matters touching on the Billof Rights. 4.2. Mr. Kombe drew our attention specifically to grounds six and seven of the appeal which related to the classification of the filed originating processes in the High Court as well appellant's as the transfer of the record from one Division of the High Court toanother. J13 4.3. Drawing our attention to his written submissions around the two grounds of appeal,the learned counsel stressed that section 23(1) of the High Court Act, is instructive on how a transfer of a matter between judges is to be done. He also referred us to sections 25 and 26 highlighting the procedure to be followed when a matter is being transferred. 4.4. The learned counsel alsoreferred us to correspondence in the record of appeal indicating the circumstances under which the matter was transferred from the General Division of the High Court to the EFCC contending that the documents on which the transfer was based do not in any way constitute an order of the court as envisaged in sections 23, 25 and 26 of the High Court Act. This rendered the transfer of the file unlawful. 4.5. Counsel submitted that in the Thelma Maungal) case, this court stated, while agreeing with the position in JCN Holdings Ltd. v. Development Bank of Zambia & Othersl2), that a judge transferring a matter to another judge must not only make a note to that effect but must also give an order to give effect to the transfer. In the present case, the file was moved from Lady Justice J14 Sharon Newa of the General Division after a memorandum to the Judge-in-Charge (General Division) informing of the transfer. 4.6. VWe were urged to hold, as we did in the Thelma Maunga() case, that the transfer was irregular, and in like manner, refer the matter to the High Court, General Division under the original cause number, Counsel thus prayed that the decision of the EFCC be quashed and that the costs be awarded to the appellant. for rehearing. 4.7. Mr. Mwelwa, learned co-counsel for the appellant, in augmenting the submission of Mr. Kombe, submitted that the exchanged by judges during the transfer correspondence process of the case from theGeneral Division to the EFCC of the High Court show that a directive was given by one judge to another in the performance of that other's judicial function. This amounts to unlawful interference with a judge's judicial independence. 4.8. Counsel urged us to refer the caseback to the judge who had initial conduct of it in the General Division. J15 5.0. THE FIRST RESPONDENT'S CASE 5.1. The learned counsel for the first respondent, Ms. Muyunda, informed the court that the first respondent did not file its heads of argument. The reason was that following the holding of this court in the Thelma Maunga(!) case, the first respondent was of on the the view that jurisdictional issue of the EFCCto hear this case. the case now borders principally 5.2. In her submission, she agreed with the appellant that the EFCC did not have jurisdiction to hear the matter and, accordingly agreed with counsel for the appellant that the matter be referred back to the General Division for a fresh hearing. 5.3. On the issue of costs, counsel for the respondent contended in the Thelma Maunga(1) case costs were awarded that although against the losing party (the appellant), they should not in this case be so awarded because the record clearly shows that the transfer of the case was done at the instance of the High Court itself without any involvement of the respondent or the other parties. J16 Additionally, that as the appellant himself stated in his heads of argument,this beinga constitutional rights petition, it is one of public interest. Costs should thus not be awarded. 6.0. THE SECOND, THIRD AND FOURTH RESPONDENTS' CASE 6.1. in person, informed the court that he would Mr. Muchula, exclusively rely on the heads of argument filed in court on 27th May 2025. 6.2. Mr. Tembo, in person, informed the court that he did not file any submissions but has had sight of the second respondent's submission and wished to adopt them as his own. 6.3. Mr. Chilembo, also in person, equally informed the court that he did not file any heads of argument and equally desired to adopt those filed by the second respondent. ANALYSIS AND DECISION 7.0. 7.1. It became quite clear to us at the hearing of the appeal that it is the jurisdictional question that was the subject of the parties' focus. we shall thus deal with that issue first, for jurisdiction is everything. Without it nothing comes out of arny proceedings. J17 7.2. Jurisdiction is indeed a threshold issue and the lifeline for continuing any proceedings beforea court. If upon examining the arguments we come to theconclusion that the lower court had no jurisdiction to deal with the matter, then there would be no need to proceed with the substantive grievances appeal as a whole. in the 7.3. Put diferently, should the arguments on the EFCC's lacking jurisdiction succeed, there would be no useful purpose served in appraising the arguments of the parties and the findings of the EFCCon the questions put to it in the petition. 7.4. The case for the appellant on the issue of jurisdiction is set out in grounds six and seven. The facts around it are simply that the petition by the appellant was filed in the General Division of the High Court which the appellant argues was the correct forum todeal with a human rights petition. 7.5. The appellant wrongfully contends that the matter was, wrongly and transferred to the EFCC which is a specialised division designated to deal with economic and financial crimes. J18 7.6. Section 3 of the Economic and Financial Crimes (Division of Court) Order 2022 (Statutory Instrument No. 5 of 2022), which counsel for the appellant referred to reads as follows: The Economic andFinancial Crimes Court shall, in addition to the jurisdiction the to economic Constitution, hear and determine natters relating and financial crimes and corruption. the court under Article 134 of of 7.7. We do not agree with any submission that the EFCC lacks jurisdiction merely because it is mandated to hear economic and financial crimes as well as corruption cases. 7.8. As is evident from the Statutory Instrument we have quoted to the Chief above, made pursuant Justice by the High Court Act, the jurisdiction of the EFCC to deal with economic and financial crimes, is only additional to its jurisdiction under the Constitution. to the powers granted 7.9. We entirely agree with the EFCC's judgment where, in referring toArticle 133(1) of the Constitution which establishes the High Court,held that there is only one High Court in Zambia which has various divisions. J19 7.10. We must stress that the divisions of the High Court are designed to enhance administrative convenience, foster specialisation and promote efficiency. Divisions of the High Court are not designed to confer exclusive jurisdiction or indeed deprive any High Court judge of the jurisdiction reposed in the High Court. 7.11. Article 134 of the Constitution states that: The High Court has, subject to Article 128 (a) unlimitedand original jurisdiction in civil and criminal matters 7.12. Section 4 of the High Court Act enacts that: to any express statutory provision to the contrary, all Subject judges shall have and may exercise in all respects, equal power, authority and jurisdiction, and subject as aforesaid, any judge may exercise all or any part of the jurisdiction by this Act or otherwise vested in the court. 7.13. In Thelma Maunga v. Attorney General(1) we did in fact hold that the EFCCdoes have jurisdiction to hear any matter which the In precise terms, we High ourt is mandated by law to hear. stated in that case that: While no judge is precluded from hearing and determining a from the Economic and Financial Crimes petition, be they Division or other Division, the character of the petition must J20 be preserved. registry. It is as a result undesirable to change the issuing 7.14. The appellant grumbles that the EFCC is not equipped to hear constitutional matters; that the transfer of the case between divisions was bound to prejudice him because it altered the aspects of the case, procedural confusion and the possibility of a non-objective hearing. introduced undue delays, 7.15. We do not agree with the appellant's claim that the change of divisions necessarily entailed a change in procedural that would introduce undue delays. When a High Court judge deals with any matter which the High Court by law has jurisdiction to determine, the judge is duty bound to hear such aspects matter in accordance with applicable adjectival law. 7.16. When handling ordinary criminal matters as they do, judges of the EFCC are obliged to apply, not the rules applicable to proceedings involving economic and financial crime, but ordinary rules applicable to ordinary crimes. 7.17. Where a judge in the General Division is called upon to deal with a matter filed in the Commercial Division, the judge will be J21 expected to apply the rules applicable tothat species of cases. Likewise, here, the court was dealing with the Bill of Rights, was obliged to handle the case in accordance with the applicable it procedural rules including the Protection of Fundamental Rights Regulations, 1969. that appellant 7.18. Much can be said about the submission by counsel for the the EFCC is not well equipped to hear Suffice it to say that we find the are appointed to constitutional matters. submission to be rather castaway. their positions because of their learning, experience and intellectual qualities. The least they carry with them, is the presumption of competence which in this case has not been dispelled by any evidence. Judges 7.19. Although each of the judges of the EFCC has the jurisdiction to try a human rights case, we accept the appellant's concern that being heardon a non-economic and financial crime matter by the EFCC, constituted as such, carries with it a very uneasy spectre that has the tendency of eating away a part of the of innocence even if one is in fact the plaintiff or presumption J22 petitioner in that court. Only the wilful would ignore the implication of that for optics of judicial impartiality. 7.20. We appreciate that the learned counsel for the appellant raised much more than merely stating that it was undesirable for the EFCCwhich deals principally with criminal cases, to have dealt with the petition on violation of human rights. grounds six and seven of the appeal, they pointed to numerous irregularities in the transfer of the case docket from the time the matter was filed in the General Division of the High Court to the In arguing time it was determined in the EFCC. Registry 7.21. The case, according to counsel, was filed in the Principal No. given and after its transfer to the EFCC it was 2022/HP/0660, renumbered as No. 2022/HPEF/02. The movement of the case a General Division Cause and file from the General Division to the EFCC was, according to counsel, fraught with irregularities. 7.22. Quoted in support of the appellant's case was sections 23(1) of the High Court Act which reads as follows: J23 (2) Any cause or matter may, at any time or at any stage of any and either with or without the application thereto, of the parties thereto, be transferred from one judge to another judge by an order of the judge before whom the cause or matter has come or been set down. Provided that no such transfer shall be made without the consent of the to whom it is proposed to transfer such cause or judge matter. 7.23. Counsel submitted that this provision was not complied with. Wewere referred to the record of appeal where Jat page 294 and 295] are documents indicating what prompted the movement of the case files. 7.24. At page 295 is a memorandum. It is dated 20th June 2022 from the Hon. Mrs. Justice S. Kaunda-Newa to the Judge-in-Charge General Division. It reads as follows: SUBJECT: REFERAL OF CASE No. 2022/HP/0660 RONALD ANTI-CORRUPTION KAOMA COMMISSION AND OTHERS CHITOTELA With reference to the above matter, and your direction that all matters relating to financial and economic crimes be referred back to your office for reallocation to judges on the Financial and Economic Crimes Division, I hereby refer the said record to your office for reallocation. J24 7.25. At page 294 is another memnorandum, It is dated 24th June 2022 from the Judge-in-Charge (General Division) to the Judge in-Charge (EFCC.) It reads as follows: SUBJECT: MATTERSIDENTIFIED TO BE BEFORE YOUR DIVISION The above captioned matter refers. The following matters have been identified as matters before your division Economic and Financial Crimnes' 1. Ronald Kaoma Chitotela v. Anti-Corruption Commission &s Others Cause No. 2022/HP/0773. 2. Referral of Cause No. 2022/HP/0660 Ronald Kaoma Chitotela v. Anti-Corruption Commission & 0thers. 3. Trywell Katatula Kashawa 2015/HP/1931. & The Attorney General 7.26. Counsel contended that it is clear from this correspondence exchanged that there was no order as required by section 23 in the case files. Citing the case of JCN Holdings Ltd. v. Development Bank of Zambia & Others(2), counsel rehashed our transferring holding in that case that there should be reasons necessitating any transfer of cases between judges. there appears to be a directive premised on a characterisation of the In this case, case. J25 7.27. What is clear to us is that this was not an ordinary transfer of a case record from one judge to another as envisaged in section It was a surrender of a file from the 23 of the High Court Act. handling judge in the General Division tothe Judge-in-Charge, transfer of the case General Division, and the subseguent record from the General Division to the EFCC. 7.28. The allocation of cases to iudges of the High Court 1s administratively done by the Judge-in-Charge. Once a judge has taken conduct of a case, they are expected to conclude it. Where, however they cannot, for any reason, continue to deal with the case and it becomes necessary that the handling judge passes the file to another judge, section 23 of the High Court Act becomes applicable. The handling judge must make an order (in writing)and must secure the consent of the transferee judge. 7.29. We note that section 23 of the Act does not envisage the return of a file to the Judge-in-Charge for purposes of reallocation. The reason for this is not far to seek. The Act does not provide for J26 the administrative position of Judge-in-Charge and the role he/she plays in allocating files. 7.30. "There is, of course, a difference between a transfer and an allocation. An allocation is clearly not a transfer. However, a reallocation of a case could well be a transfer from the initial judge toanother judge save that chain is broken at the point of the Judge-in-Charge's administrative intervention. 7.31. Although returning a case record to the Judge-in-Charge is with a clear understanding by both the judge returning the file and the Judge-in-Charge that the file is to be reallocated to another judge,we believe that such return tothe Judge-in-Charge being a transfer of a file, still requires compliance with section 23. There ought to be an order by the transferring judge on the file. At a more practical level, however, the consent of the Judge-in Charge is not necessary since he is not the judge that wil1 handle the matter. 7.32. In the case of Thelma Maunga v. Attorney General(1) we held that: J27 the matter was not transferred in accordance with the law as laid down in section 23 of the High Court Act. The transfer was irregular. The implication was that the court that heard the petition 7.33. In the present case, from the correspondence exchanged had no jurisdiction to hear it. between the judge initially given conduct of this matter and the Judge-in-Charge, the reason for the transfer of the case file to the EFCC was the mischaracterisation of the case as an economic and financial crimes matter when it clearly was not. There is no evidence that an order was made in transferring the file to the Judge-in-Charge (General Division) or indeed to the judges of the EFCC, nor is there anything on record confirming the consent of the transferee judges. 7.34. As in Thelma Maunga(), we hold that the transfer or allocation of the EFCC the case to the EFCC was irregular. In the result, lacked jurisdiction to hear the matter. In consequence, the judgment of the court is hereby squashed. 7.35, We order that the matter be remitted to the High Court to be heard in the General Division under the original cause number. J28 7.36. As the irregularity was occasioned by the court's own mischaracterisation of the matter, we order that each party bears its own costs. Mumba Malila CHIEF JUSTICE R. M. C. Kaoma SUPREME COURT JUDGE F. M. Chisanga SUPREME COURT JUDGE

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