The Anti-Corruption Commission v Ng'ona Mwelwa Chibesakunda (Appeal No. 99/2003) [2006] ZMSC 58 (12 April 2006)

) - - - - - - - - - - - - - - - - - - IN THE SUPREME COURT OF ZAMBIA Appeal No. 99/2003 HOLDEN AT LUSAKA (Civil Jurisdiction) THE ANTI CORRUPTION COMMISSION Appellant AND NG'ONA MWELWA CHIBESAKUNDA Respondent Coram: Chitengi, Silomba, JJS and Munthali, AJS. on 12th April, 2005 and 12th April, 2006. Q For the Appellant : Mr. N. Nchito of Messrs MNB. For the Respondent: Mr. R. M. Simeza of Messrs Simeza, Sangwa & Associates JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - 1. Zinka V The Attorney-General (1990 - 1992) ZR 73 2. Collett V Van Zyl Brothers Limited (1966) ZR 65 Q 3. Eagil Trust Co. Limited V Pigott Brown and Another 1985 ALLER 119 4. Du Prez and Another V Truth and Reconciliation Commission (1998) lLRC 86. Works Referred to: - 1. De Smith on Judicial Review of Administrative Action Paragraph 8- 021. J2 Statutes referred to: - 1. The Anti-Corruption Commission Act No. 42 of 1996 Section 24(1). In this appeal we shall refer to the Appellant as the Defendant and the Respondent as the Plaintiff, which is what they were in the court below. The facts of this case can be briefly stated. The Plaintiff holds, on title, properties known as Lus 28974, Katima Mulilo Road, Q Olympia Park; S/DB of Farm 488a Middle Way, Kabulonga; Plot No. 158, Mwabula Road, Jesmondine and S/Dl of Farm 687a Wagon Road, Makeni. All these properties are situate in Lusaka. 6n 21 st November 2002 the Director-General of the Defendant issued a Restriction Notice pursuant to Section 24(1) of the Anti-Corruption Act Number i (hereinafter referred to as the Actj(9. ~2 of 1996 Th.e effect of the Notice was to direct the Plaintiff not 'to dispose· of or otherwise deal with the properties in question without the consent of the Director-General of the pefendant. The reason given for the restriction was that the Defendant was conducting investigations into offences alleged or suspected to have been committed under part IV of the Act. On 27th November, 2002, that is some six days after the Notice was issued, the -Plaintiff, in terms of Sub Section(l) of Section • b J3 24 of the Act, under which the Notice was issued, applied to the Director-General of the Defendant for consent to sell two of the properties in order to raise money to meet family and other obligations. Some thirteen days later on 10th December, 2002, the Director-General of the Defendant wrote the Plaintiff refusing to allow the Plaintiff to sell the two properties he wanted to sell on the ground that at the stage 1:he inquiries had reached, it would be prejudicial to allow the Plaintiff to dispose of the two properties. However, the Director-General of the Defendant advised the Plaintiff to have recourse to the Q High Court in terms of Sub Section(S) of Section 24 of the Act which allows a person aggrieved by a Notice issued by the Director-General under Sub Section ( 1) of Section 24 of the Act to apply to the High Court for an order to reverse or vary the directive. 1, Consequent upon the refusal by the Oefendant's Director General to allow the Plaintiff to sell' \wo of the properties for the reasons the Plaintiff gave, the Plaintiff commenced this action in the High Court seeking an Order to reverse the !•.• directive of the ·Defendant's Director-General to the Plaintiff not to dispose of or otherwise deal with the two property the Plaintiff wanted to sell. According to the Plaintiff, the restriction Notice issued by the Defendant's Director-General was not issued in good faith because when his services with the National Assembly were terminated, he was interviewed by • ' n J4 officers from the Task Force on the properties he owns and he gave a statement.' But the officers from the Task Force have never gone back to him. Also from· the time the restriction ~ Notice was served on him up to the time he commenced this action he has not been asked on when and how he acquired the properties. The Defendant's position is simply that there is no bad faith; that the investigations are complex and sophisticated; that a O thorough investigation is required. On these fact_s, the learned trial Judge paused himself questions, whicl,:1 we do not find necessary to repeat, because •• ., the questions and the answers to them were not critical to the determinatioJ of the case before him. The effect of the judgment of the learned trial Judge was that the restriction order was defective. According to the learned trial Judge, the restriction order lacked specificity because it did not state the particular offence, to use the learned trial Judge's own words, envisaged or suspected to have been committed under the Act vis-a-vis Part 4 of the Act. The learned trial Judge also held that faih~re to specify the offence was a serious incurable defect because it denied the Plaintiff an opportunity to offer any explanation in respect of the property. The learned trial . Judge concluded by saying that the directive to seize the property was irregular. In the event, the learned trial Judge I J .l) JS acting under Section 24(7) of the Act, reversed the Defendant's Director-General's directive. The Defendant now appeals to this court against the decision of the court below advancing two grounds of appeal. The first ground of appeal is that the Honourable Judge in the court below erred at law when he held that the Restriction O Order issued by the Director General of the Anti-Corruption Commission was defective in that it lacked specificity of the :,;· offence envisaged or suspected to have been committed under Part IV of the Anti Corruptj.on Act. ,, .' The second gr<;?und of appeal is that the Hono~rable Judge in the Court below erred in law when he held that the Director General of the Anti-Corruption Commission is oblige_<l to offer an affected party a hearing before determining whether a Restriction Notice should or should not continue in force. Both counsel filed detailed heads of argument which they supplemented with oral submissions. Mr. Nchito's ,written submissions on ground one are that the provisions of Section 24(1) of the Act are clear. It is Mr. Nchito's submission that Section 24(1) of the Act does not require the Director-General to specify ,the offence the Anti- Corruption Commission is investigating. He said that the only requirement is that the investigations must relate to offences alleged or suspected to be committed unde~ the Act. Mr. Nchito pointed out that investigations are conducted to verify whether or not a person can be charged with an offence under the Act. For this reason, Mr. Nchito submitted that the holding by the learned trial Judge that the Director General must specify the offence being investigated and that failure to Q specify the offence counts against the Appellant, flies in the investigations procedures. teeth of well settled criminal ,,;- Further, Mr. Nchito submitted that the Plaintiff having admitted being under investigations and giving a statement to the Anti-Corruption Commission, Section 24(1) of the Act came into play, tpereby rendering the restriction. Notice valid in law. Mr. Nchito pointed out that the Plaintiff challenged the restriction Notice two months after the Notice was issµed, a period which was not enough to complete the complex investigations to determine the appropriate charge. Mr. Nchito then referred to the provisions relating to the life span of a restriction Notice and the rationale behind these provisions., ; It "is not necessary for us to repeat these submissions because, in the view we take of this appeal, the lifespan of a restriction Notice is not critical to the determination of this appeal. J7 On ground two, Mr. Nchito, submitted that Section 24 of the Act does not require the Director-General to exercise his powers judicially as the learned trial Judge held. In this regard Mr. Nchito referred us to the case of Zinka V The Attorney-Generall1J where we said that: - "In order to establish that a duty to act judicially applies to the performance of a particular function, it' is now . unnecessary to show that the function is analytically of a judicial character or that it involves the determination of a O lis inter partes; however, a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decision entails the determination of disputed questions of law and fact. ....... . However, the conferment of a wide discretionary power exercisable in ·the public interest must be indic&.tive of the absence of an obligation to act judicially .. i ,,' Where no statutory provision is made for prior notice to be given it can be often be assumed that the omission is .:•, deliberate. " It was Mr. Nchito's submission that a perusal of Section 24 of the Act does not require the Defendant's Director-General to exercise his powers judicially as the court below held. He said that Section 24 of the Act is for investigation purpose and it is J8 clear that the legislature deliberately left out a provision for hearing under Section 24 of the Act. He submitted that the court misdirected itself by adding to the provisions under the guise of statutory interpretation. He emphasized that the legislature did not intend that the audi alteram pattern rule should apply in Section 24 of the Act. He said that if that was the intention of the legislature it would have said so. Mr. Nchito then referred to Article 16(2) of the Constitution on Q deprivation of property. We say no more on this because we are satisfied that the determination of this appeal does not turn on the constitutional provisions but on the proper interpretation of Section 24 of the Act. Mr. Nchito ended his written submissions by saying that the Plaintiffs property was not taken away to warrant the right to be heard. He said there has been only a restriction pending investigation. In consequence, Mr. Nchito urged us to reverse the decision of the court below. In his oral arguments on ground one Mr. Nchito said that the Act deals with commission of criminal offences and not administrative powers. He said the power granted under Section 24 of the Act is part of the investigations. Mr. Nchito's other oral submissions are a repeat of his written submissions. ' ' J9 On ground two, Mr. Nchito's oral submissions also repeat his written arguments except to emphasize that the rules of natural justice do not apply in this case because the statute does not provide for a right to be heard. He ended by saying that the court below misdirected itself by saying that there was a requirement to be heard. He pointed out that in any case the court below by its own finding said the Plaintiff was heard. In his written submissions on ground one Mr. Simeza Q submitted that the use of the phrases "an offence' and "such offence' clearly signify specifity. He said there has to be an offence either for which one is being investigated or prosecuted under the Act. It is Mr. Simeza's submission that before a restriction is imposed the investigator must know the specific offence being investigated, so that the person being investigated can be in a position to challenge or meet his accusers with full facts. He said that if the investigator does not exactly know the offence being investigated then it is Q almost impossible to challenge the Restriction Notice under Sub Section 5 of Section 24 of the Act as lack of knowledge of the offence renders the provisions in Sub Section 5 ineffective. It is Mr. Simeza's submission that before a Restriction Notice is imposed the nature of the offence being investigated should first be determined. Mr. Simeza submitted that to hold otherwise would lead to injustice because not every offence under the Act warrants restriction on spmeone's property. He no pointed out that restriction applies only to property acquired corruptly and which maybe liable to forfeiture. Further, Mr. Simeza submitted that if the offence being investigated is not specified, the person being investigated will have no means to know that the Director-General is acting in good faith. He said that the powers to restrict should be used with caution because it is potentially an infringement to one's property rights guaranteed under Article 16 of the Republican Constitution. It was Mr. Simeza's submission that there should be pre conditions for the exercise of the powers under Section 24 of the Act 1n order to provide checks and balances on the exercise of the powers by the Director-General. He also submitted that there must be a causal connection between the offence being investigated and the property being restricted because the legislature intended only to net property obtained through corruption. It is Mr. Simeza's submission that if the preconditions are not met then the court can interfere with the exercise of the powers under Section 24(5) of the Act. In any case, Mr. Simeza submitted, the Defendant cannot argue that its Director-General was not required to specify the offence(s) being investigated when in a subsequent Restriction Notice on Page 8 of the supplementary record of appeal the Defendant's Director-General specified the offences being investigated. He said because of, the Defendant's subsequent act of specifying 0 J11 the offences being investigated the argument that it was not necessary to specify the offence being investigated cannot stand. Consequently, Mr. Simeza submitted, the court below was on firm ground when it reversed the earlier Restriction Notice. It is Mr. Simeza's submission that Section 24(7) of the Act gives a discretion to the Judge to whom an application is made. He said there is no argument that the Judge exceeded Q his discretion. Citing the case of Collett V Van Zyl Brothers Limited/21 as authority, Mr. Simeza submitted that as an appellate court we can interfere with the trial Judge's exercise of his discretion only when we are satisfied that the trial Judge had given no weight (or no sufficient weight) to those things which ought to have weighed with him. He said the Act does no give guidelines to the Judge on how and when he may exercise his discretion under Section 24(7) of the Act. He said it is entirely up to the Judge to decide after due consideration 0 of the matter. Mr. Simeza also cited the case of Eagil Trust Co. Limited V Piggott Brown and Another<31 where the court stated that: - ''Although the exerci.se of a Judge's discretion may be attacked if it is clearly wholly wrongly exerci.sed, the court of appeal will not use this as a means of substituting its own discretion for that of the Judge." N J12 In view of this, Mr. Simeza submitted that the Defendant bears the burden to show that the Judge below either failed to apply the settled principles or alternatively that the exercise of the discretion can be attacked on Wednesbury grounds. He said the reasons given by the defendant for imposing the Restriction Order were not reasons for depriving a person of his property rights and the Judge below cannot be faulted in exercising his discretion in favour of the Plaintiff. Q Finally, Mr. Simeza pointed out that the Restriction Notice has in fact ran its statutory life span of 12 months and cannot be allowed to continue. In his written arguments, on ground two Mr. Simeza, submitted that the learned trial Judge was on firm ground when he held that: - "On the interpretation, it is clear that Section 24(3) confers judicial function on the Director-General and that he should exercise such powers judicially and that can only be done wher~ the Plaintiff has made available to him some explanation which might reasonably be true. This is only possible where a particular offence has been specified or is contemplated in the light of the provisions of Part 4 of the Act. In both cases the Plaintiff must be informed of the offences." J13 It is Mr. Simeza's submission that the learned trial Judge cannot be faulted in his holding because whenever one's property rights are affected the owner of the property must be informed of the reason why his rights are being affected. Mr. Simeza then referred us to De Smith on Judicial Review of Administration Actions at paragraph 8 - 021(11 where the learned authors state that: - "There is a presumption that procedural fairness is required whenever the exercise of a power adversely () affects an individuals rights protected by common law or created by statute. The individual rights include rights in property, personal . " zmposz ons ........... . .ti liberty, status or other fiscal Mr. Simeza also cited the case of Zinka V The Attorney Generalf11 where we dealt with principles of natural justice and the case of Du Preez and another V Truth and Reconciliation Commissionf41 and other cases on the right to be heard and to act fairly, which cases we have read. It is Mr. Simeza's submission that in view of these authorities it is not correct to say that for the principle of audi alteram partem to apply it must be impliedly or expressly incorporated in the statute in question. He said section 24 of the Act does not exclude the principle of audi alteram partem. According to Mr. Simeza, since the principle of audi alteram Partem is a common law principle, it must apply to Section 24 of the Act, more so that Section 24(3) of the Act confers a judicial J14 function on the Director-General which he must perform judicially. In conclusion, Mr. Simeza submitted th?-t in this case, after the Director-General had imposed the Restriction Notice, it was absolutely necessary to accord the Plaintiff a hearing so that he would give an explanation which the Director-General could consider. Mr. Simeza pointed out that after such an explanation the Director-General might have considered to cancel the Restriction Order even before the expiry of its life of 12 months. For these reasons, Mr. Simeza submitted that the learned trial Judge cannot be faulted when he held that the Director-General should pave given the Plaintiff a hearing; Mr. Simeza's oral submissions are an emphasis and a repeat !/ • of his written arguments. It is not, therefore, necessary for us to repeat them. We have carefully considered the Affidavit evidence that was before the learned trial Judge, the submissions of counsel and the authorities cited and the judgment appealed against. Counsel,. particularly Mr. Simeza, addressed us at length. Some of the ,arguments by counsel touch on the constitutional provisions relating to protection of property. As we have said above the determination of this appeal does not turn on any 0 J15 constitutional prov1s1on. In any case, the question of the Plaintiff's property being compulsorily acquired does not arise in . this case. The determination of this appeal turns on the proper interpretation of Section 24 of the Act. For this reason, we are firm in our minds that although most of the cases which Mr. Simeza has cited to us correctly state the law, these cases are not applicable in this case because these cases deal with administrative law, a law which does not apply to this case. We have reproduced some of these cases and read the rest of them only to show that we have considered these cases in deference to counsel for his resourcefulness, and for which we commend him. In this case we are not dealing with an administrative agency but with an investigative agency. It cannot be seriously argued that a government agency whose duty is to investigate crimes is engaged in administrative function requiring it to observe the rules of natural justice. The nature of criminal proceedings is such that the investigating authority does not finally decide the fate of the person being investigated. The final arbiter is the court where the accused will be given an opportunity to be heard. In any case, it is trite law that a person being investigated for a criminal offence has a right to Jl6 his silence and no court can draw any adverse inferences from the accused's silence during investigations. Section 24(1) of the Act under which the Defendant's Director General issued the Restriction Notice reads as follows: - "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 tlJat such' person shall not dispose of or otherwise deal with any property specified in such notice without the consent of the Director General." ,, :t\1r. Nchito's submission on ground one are that the provisions of Section 24(1) l!l.re very clear and that the Director-General is not required to specify the offence being investigated. It was Mr. Nchito's submission that an investigation is intended to verify if one can be charged with an offence. He said that investigations come first and the holding by the learned trial Judge that the Defendant's Director-General should have specified the offence being investigated flies in the teeth of well settled criminal investigations procedures. Mr. Simeza's submissions are that the use of the phrase "an offence' and "such offence' clearly signify specificity. It was Mr. Simeza's submission that the offence being investigated J17 should be specified so that the person being investigated can challenge and meet his accusers with full fats. We have carefully read and considered the prov1s1ons of ~ Section 24(1) of the Act. As Mr. Nchito submitted, the provisions in Section 24 ( 1) are clear. We cannot give restrictive interpretation to these provisions as Mr. Simeza's submissions suggest. To hold that when issuing a Restriction Notice the Director-General should specify the offence being investigated would limit the effective operatioµ of Section 24(1) of the Act and cause confusion. It is' common knowledge that when investigating authorities receive reports of alleged crimes they may not be in a position to know definitely what offence it• has been comrp.itted- until after an investigation. Indeed, the ,/ use of the indefinite article "an" in Section 24(1) of the Act does not slggest specificity as Mr. Si+Il~Za argued and submitted. The interpretation canvassed for by Mr. Simeza would lead to a situation where a Restriction Notice would be issued in respect of an offence which after investigations turns out to be not the offence actually alleged to have been committed. We need not say what the legality of a Restriction Order made in such a situation would be. ,, The submissions that the offence should be specified so that the person being investigated can be in a position to meet his ' accusers with full facts is of no force. As we have s'aid, a Jl8 person suspected of having committed a crime is not obliged by law to give explanations to his accusers at investigation stage. He is erititled to his right to silence. Mr. Simeza, finding support of his submissions .in the subsequent serving by the Director-General of the Defendant of another ~ Restriction Notice specifying the offences being investigated, submitted that the Defendant cannot now turn around and argue that Section 24(1) of the Act does. not require the Director-General to specify the offence being investigated. We note that the subsequent Restriction Notice was issued after the Plaintiff had instituted these proceedings. Whether the subsequent Restriction Notice was a reaction to the Plaintiffs action, we cannot say from the evidence. All we can say is that we are certain .that the subsequent Restriction Notice is •· :, I not an aid to us when interpreting Section 24( 1) of the Act. We are satitfied that when issuing a Restriction Notice the Defendant's Director-General is not required to specify the offence being investigated. All that the Director-General is ... required to state is that the offence being investigated is under Part IV of the Act. The Act specifically deals with corruption and corruption related offences and a person who is served with a Restriction Notice under Section 24(1) of the Act should have an idea that he is being investigated for an offence relating' to corruption. The details will be given after the , completion of the investigations and if there is at all a case requiring prosecution. Jl9 In the event, we hold that the learned trial Judge erred in law when he :tield that when issuing a Restriction Notice the Director-General must specify the offence being investigated. The first ground of appeal, therefore, succeeds. ~ The complaint in the second ground of appeal is about the holding that the Director-General is obliged to afford the affected Plaintiff a hearing before determining whether a Restriction Notice should or should not continue in force. Both Counsel made long submissions on this issue but in the view we take of _this ground of appeal we do not find it •· necessary to recite, these submissions. We are bound to say that we do not understand the basis upon which the learned ' trial Judge madg this holding. Nowhere in Section 24(3) of the Act which the learned trial Judge relied upon heavily is it said that after the Restriction Notice is issued the Director-General must consider whether the· Restriction Notice should be cancelled or contin1,J.e in force. What Section 24(3) says 1s that the Restriction Notice shall remain in force for a period of twelve months or until cancelled by the Director-General, whichever is earlier. What this means is that a Restriction Notice can cease to have· effect by effluxion of time or by cancellation by the Director-General. Clearly, the cancellation will come about because the investigations are effectiveiy - - - - - - - - - --------- - - - ]20 stopped or the investigations reveal no offence committed by the person being investigated. It was therefore, a misdirection in law, by the learned trial Judge to hold that after the Restriction Notice the Director-Gene:r:al should have given the , Plaintiff an opportunity to be heard so that the Director- General could determine whether the Restriction Notice should continue in force or be cancelled. If the interpretation put on Section 24(3) of the Act is accepted, then Section 24(5) which gives an affected party the right to challenge a Restriction Notice soon after it has been served on him will be rendered nugatory. In short, an affected party is already given a right by statutory law to challenge a Restriction Notice soon after it has been served on him. And that is what the Plaintiff did in this case. :, ·' We must say11that the Plaintiff's case as presented is not the same case as argued before us and before the court below and as determined by the learned trial Judge. Looking at the Plaintiffs Affidavit in Support of the Originating Summons, we are clear in our minds that the Plaintiff felt that the Director-General in issuing the Restriction Notice acted in bad faith. The facts that galvanized the Plaintiff into taking this action were tliat after the termination of his employment with the National Assembly he was interviewed by Task Force , officers to whom he gave a statement; that the Task Force officers had never gone back to him since the interview;· that ,.:, ( I J J l". J by the time he took this action, he has never been asked on when and how he acquired the properties in question; that the action taken by the Director-General was an abuse of office. The Defendant's Affidavit in Opposition justified the delay on ~ the complexity and sophistication of the investigations and stated that at the time of this action the Restriction Notice had been in force for less than four months. The Defendant further deposed that the Restriction Notice was issued in good faith; the Defendant in its Affidavit promised to "rest all these issues as soon as possible. The Defendant denied that its Director-General abused his authority. This case was sietermined on Affidavit evidence. The parties •· did not give viva voce evidence. I J/ It can be seen from the Originating Summons and the Affidavits in Support and Opposition that the issue that was for determination by the learned trial Judge was whether the Restriction Notice was issued in bad faith. The learned trial Judge did not rule on this issue but drifted into the issue of interpretation of Section 24(3) of the Act which, although we have dealt with it in our judgment, was not the Plaintiffs complaint. J22 Mr. Simeza, in his well-researched submissions, urged us not to interfere with the learned trial Judge's exercise of his discretion under Section 24(7) of the Act. Mr. Simeza cited to us authorities on when we may interfere with the trial court's exercise of discretion and said that in this case none of the ~ conditions for interfering with the learned trial judge's exercise of his discretion are present. While we agree with Mr. Simeza's submissions on the principles on which an appellate court may and may not interfere with the trial court's exercise of its discretion, we do not agree with the submissions that in this case the learned trial Judge exercised his discretion properly. As we have already stated, the learned trial Judge in his judgment did not deal with the issue of mala fides which it· . :, I he was asked to determine. Instead, the learned trial Judge allowed himself to be carried away by counsel's submissions and dwelt on 11the issue of interpretation of Section 24 of the Act. We are, therefore, at large to find whether on the evidence that ... was before the learned trial ·Judge, the Director-General acted in bad faith. We find no basis upon which we can find that the Director-General acted in bad faith. In the event, tJ.:ie second ground of appeal also succeeds. Both grounqs of appeal having succeeded, the appeal also succeeds and we allow it. The judgment of the court below is reversed. But having regard to the circumstances of this case, J23 we order that each party will bear his own costs both in the court below and in this court. 0 SUPREME COURT JUDGE ITENGI ,'I • • • • • • ••• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • S. S. SILOMBA SUPREME COURT JUDGE I/ -~ A ........... ~L'.~-.... ~--··· .......... . S. S. K. MUNTHALI ACTING SUPREME COURT JUDGE