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The Anti-Corruption Commission (ACC) has applied in the Lusaka magistrate court to refer the matter of Lusaka business man, Francis Muchemwa’s proceed of crime case to the High Court for interpretation.
The interpretation is on three counts which the court did not find him with a case to answer and acquitted him.
The state in the summons filed before Chief Resident Magistrate, Davies Chibwili, said that any party was free to appeal when dissatisfied with the court’s determination for being erroneous on a point of law or for being in excess of jurisdiction.
In this matter, Muchemwa, 38, of L/26392/M in Silverest area Chongwe and two others pleaded not guilty to ten counts of possession of property suspected to be proceeds of crime and failure to comply with the provisions of the Income Tax Act contrary to Section 99 (1) as read with Section 98 of the Income Tax Act Chapter 323 of the Laws of Zambia.
Muchemwa was jointly charged with two persons in the name of companies namely; Friltech Networks Zambia Ltd and Altitude properties Ltd.
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Chibwili, however, in his ruling on a case to answer last month, ruled that the prosecution did not summon relevant witnesses to testify in the matter where counts 7,8 and 10 was concerned and there was no sufficient evidence to warrant putting the accused on their defence on the three counts.
But the state disputed the ruling by the court stating that it wanted the opinion of the High court on whether Income Tax Act, exhibits marked P43 and P44 constitute prima facie evidence of their contents.
“Your Honour, P43, P44 and P45 are tax compliance status reports compiled by the Zambia Revenue Authority which according to the facts before court were availed to the arresting officer during investigations.
According to Section 7 (2) of the Income Tax Act Chapter 323 of the Laws of Zambia provides that; (2) Every officer appointed for the purposes of carrying out the provisions of this Act is under the Commissioner General’s direction and control, and shall perform such duties as may be required by the Commissioner-General,” read the file.
The state submitted that the Investigations Officer (PW14) having received and tendered P43 and P44 without objection from the defence, it can be deduced that the said reports were availed by the Commissioner General as such and they constitute prima facie evidence of what they contain as envisaged under section 105 of the Income Tax Act.
“We submit Your Honour that since P43, P44 and P45 constitute prima facie evidence of what they contain, the only way that the prima facie status of the said exhibits may be watered down is by adducing evidence to the contrary otherwise the presumption in favour of the exhibits shall continue to subsist throughout the trial unless rebutted by evidence in their defence.
“It is our submission that based on Section 105 (1) of the Income Tax Act, P43, P44 and P45 constitute prima facie evidence of its contents and ought to have been relied upon by this Honourable Court to determine whether 1st Respondent and 2nd Respondent where compliant with the provisions of section 99(f) and 102 (e) of the Income Tax Act,” the state submitted.
The further stated that there was merit in the application and the matter be stated to the High Court.
“Your Honour based on our submissions, may this Honourable Court exercise its discretion to state this question for opinion before the High Court”.
The court has since adjourned the matter to November 15, 2023 for ruling whether to grant or not the state’s request to refer the matter to the high court.
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