Mweene v Zambia Revenue Authority (HP 1734 of 2014) [2015] ZMHC 147 (5 October 2015)

• IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) I 2014{HP{1734 BETWEEN: WILFRED MWEENE AND ~ - --:-;--;;-.. -:" ~/ Pt'~' Jl L of I; j)APPLICANT \ ,. ZAMBIA REVENUE AUTHORITY RESPONDENT Before the Hon. Mr. Justice I For the Applicant .. E. M. Sikazwe in Chambers. Ms. Susan Chambanange - Merrs KBF and Partners For the Respondent: Mr. Banda - Messrs A. M Wood and Company Ms. D. B Golomota - Legal Counsel Zambia RevenueAuthority RULING The Applicant filed in an Exparte Summons for Counsel to apply for Judicial Revi~wpursuant to Order 53 RSC (White Book) 1999 edition. This Court slw it fit by the nature of what the Applicant had come to Court to hav~ an Inter parte hearing. This was done on 19th November 2014. On this day both Counsel sought to have the matter be adjourned for their rea!ons given. Another date of 5th February, 2015 was set. -Rl- , Parties were also allowed to submit on their affidavit evidence to which I both complied. In support of :the Affidavit, the Applicant, stated that as a business man he bought on various dates prior to 12th September, 2014, 885 boxes containing P1cifiC cigarettes I at a total cash of K973,500.00 from COMESAMARKETin Lusaka. He later kept these cigarettes at his farm in Chilanga a~ea. Zambia Revenue Authority officers got wind of it and on 12th SeptJmber 2014, raided his farm house and confiscated 885 boxes of the s~id cigarettes. He further stated that the Zambia Revenue Authority, alJo got away with cash USD 95.000.00, 480.000.00 South African Rand, K68,000.00 a passport and a Certificate of Title. That after that he went to report himself to Zambia Revenue Authority Office and whilst there he met a Mr Moses Shuko one of the employees. Mr Moses Shuko then t~ok over the matter and in his presence he informed the officers to stob whatever they were doing at his premises. But as these officers moved a\vay from his farm house they went with the confiscated I items mentioJed above. He had tried on several occasions explaining to Zambia Revebue Authority Officers all the circumstances surrounding his business but to no avail. To date Zambia Revenue Authority officers have even no availed to him any seizure notice Of a search warrant as required by llw and this contravenes the provision of Section 162(7) of the Customs lnd Excise Act. He has thus suffered loss of business. I I In opposing the grant for Judicial Review, the Defendant through the Tax Inspector staJed that from the onset the Applicant had failed to disclose material facts and thus the Court should deny the Applicant's request for Judicial Revil'V. He went on to state that the Respondent through the Act was empowered to assess, charge, levy and collect all revenue due to -R2- , the Zambian Government under the vanous pIeces of legislation including the Customs and Excise Act. The Respondent was further empowered to investigate, search and seize any goods from a person believed to h~ve contravened the provisions of Customs and Excise Act. I To this effect l I Investigations the Respondent on 11th September, 2014, though its Department received intelligence information that a truck I I had off loaded Cigarettes at house No. 258 Longridge Chilanga, Lusaka, believed to ha~e been imported into Zambia Contrary to the provisions of the Customs lmd Excise Act. A search warrant was duly obtained from the SubordinAte Court on 12th September, 2014, one of the Respondent's officer was stJtioned at the same house of Applicant to keep watch of the said house p~ior to the search party arriving at the said house. Whilst this was happening, a certain motor vehicle drove to the said house and loaded several cartons of cigarettes. This motor vehicle was intercepted in Chilanga oh its way from the same house. Upon search, 62 cartons of un stamped cigarettes were impounded. The search party went to the said house il the company of one Police Officer attached to the Mobile compliance u it and three other officers from Chilanga Police Station. At the said home, there was nobody to serve the search warrant on. The search party Aad proof that unstamped cigarettes were stored in the said house and if no action was done same unstamped cigarettes would be removed the Olise. It was upon this belief that they proceeded to break the locks as empowered by the la\\! in order to gain access to the house. Upon entry another 437 cartons of unstamped Pacific Cigarettes and 78 cartons of I unstamped Kingdom Cigarettes were seized. While the search was going on the search party tumbled upon a cell phone number and upon ringing the number, the Applicant responded, but refused to go to his house -R3. '. I I I I under search. The Applicant preferred to meet the search party at its Head office. They met at Head office with the Applicant who complained to the Directbr of Investigation that he was not complying with the search. He al~o claimed that he kept some cash money and jewery in the house which ~e suspected to have been stolen by the search team. Follo\ving this complaint, the Director of Investigations, the search party and the Applicant agreed to go back to the house and verify his complaint. When they reached home they found that the new locks which they hah replaced on the broken one had been tempered wIth and there was at tJe house a lady who had given entry and was introduced to them as his wife. This is the time that he claimed to have lost R480.000 and K68.000.00 and that he had left US$95.000.00 in one of the boxes seized during the search. Apart from this, the Respondent has attempted on several occasions to personally serve the seizure Notice number 08562 dated 15thSeptember, 2014 on the Applicant in respect of the seize unJtamped Cigarettes from the Applicant's house. The Applicant has not at any time been found at his home and the person living with hIm has refused to receive anything delivered to the Applicants horse by the Respondent. Further the Applicant on 15'h Septembej' 2014 when he visited the Respondent's Head Office was served with a letter to attend interviews but declined to receive the letter instead direct4d that the letter be delivered to his house No. 258 in Chilanga. the Applicant had ignored all invitations to attend In short, I the Respondent's I interviews at offices in connection with the seized Cigarettes prompting the Respondent to initiate Criminal proceedings. Even the warr1nt of arrest has not been effected on the Applicant as the Respondent cahnot locate the Applicant. ~R4- ", , I have considered the VIVAVOCE evidence from both Counsel and taken into account I the Affidavit evidence from both camps. The oral and Affidavit eVide~ce from the Respondent has not been challenged by the Applicant. Reading through the lines of the Respondent's Affidavit fortified by th~ oral submission by the Respondent's Advocate, I find that the Applicant had suppressed vital material facts from this Court, I I thereby trying to mislead the Court and apply to this court to be granted Judicial Review in this matter. How will the Court grant Judicial Review to the ApplicaAt when the oral submission of the Respondent's Advocate and the Affid1vit evidence cannot be challenged. If this Court grants Judicial Revie,~, how will the Applicant engage the Respondent, when all along he has been elusive to the Respondent when called and invited to I attend inten'i~ws in connection with the 885 boxes containing an uncustomised ~ontraband of pacific as \vell as Kingdom Cigarettes. The Applicant iiS running to Court when he is failing to engage himself with the Respondent on the issue. Time and again Courts have ruled that judicial ~eview is concerned with reviewing, not the merits of the decision in resrect of which the application for Judicial Review is made but the decision making process itself. Further the purpose of Judicial Review is to dnsure that an individual is given fair treatment by the authority to which he has been subjected. The Court will not upon a Judicial RevieI, application act as a "Court of Appeal", from the body concerned, the Court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exerJised in a way \vhich is not \vithin that body's jurisdiction or the decision is Wednesbury unreasonable . •R5. nor will I '. , This has not been the case in this matter presented before this Court. On the other hand the Applicant has not come to Court with clean hands. To that effect Leave to Apply for Judicial Review has been declined. Costs in favour of the Respondent, to be taxed in default of agreement. DELIVERED IN CHAMBERS THIS 5TH DAY OF OCTOBER 2015. I E. M. S WE JUDGE '. -R6-