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The Magistrate Court had no authority to set aside the warrant of seizure granted to the Anti-Corruption Commission (ACC) to size Bowman Lusambo’s house in Lusaka’s Chamba Valley, the Economic and Financial Crimes Court has ruled.
The Court also held that 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.
“Further, we wish, to guide that the proceedings being criminal, the learned magistrate was rendered functus officio relative to the warrant of seizure in issue.
“ He had no power to review the order as he purportedly did when he reversed the warrant. This is in view of the position that subordinate courts enjoy reversionary powers only when exercising civil jurisdiction as conferred by order XXXVII of the subordinate court civil jurisdiction rules. We therefore find merit in ground two of appeal,” pronounced the court.
This is in a matter in which ACC appealed the ruling of Magistrate, Albert Mwaba, delivered on May 19, 2022, setting aside the warrant of seizure granted to the investigative wing to seize Lusambo’s properties.
On April 13, last year, ACC investigations officer, Mr Christopher Siwakwi swore on an affidavit in which he sought of seizure from the Subordinate Court to enable him seize properties known as F/609/E/44/B/3; F/609/E/44/B/8 and F/609/E/44/B/9, belonging to Lusambo.
This was on the background that the said properties were suspected to have been acquired through corrupt practices.
But Lusambo, a former PF Kabushi Member of Parliament, asked the court to set aside the warrant of seizure citing irregularities.
Magistrate Mwaba in his ruling set aside the warrant of seizure stating that the document cannot be applied for on a property where there is already a restriction notice as the two documents have the same effect.
He also said that the affidavit accompanying the warrant of seizure was unfiled, thereby offending Order V,Rule 11 of the subordinate court civil jurisdiction rules.
ACC in its appeal against magistrate Mwaba’s ruling argued that he erred by holding that both the warrant of seizure and restriction notice issued under Anti- Corruption Act no.3 of 2012 of the Laws of Zambia have the same effect.
The Commission submitted that the lower court erred in law by holding that the warrant of seizure was irregularly issued as an affidavit in support was not filed in court as required by law when there is no legal requirement for warrant to be supported by an affidavit under Zambian law.
In addition, that the Court misdirected itself in law by having recourse to the subordinate court civil jurisdiction rules when warrants for purposes of criminal investigations are governed by the Criminal Procedure Code (CPC) Act, Chapter 88 of the laws of Zambia.
ACC stated that the court pronounced itself on the particulars of the warrant of seizure when the former law maker moved the court on two specific grounds for setting aside the warrant of seizure, which specific grounds, did not challenge the warrant for being defective in a material.
Delivering judgement, Judge Kenneth Mulife who sat with Justice Pixie Yangailo and Justice Susan Wanjelani said the subordinate court was not in order to discharge the warrant of seizure.
“That both Section 118 of the CPC and the interpretation and General provisions Act which we were referred to, do not provide the prescribed form in which the oath should be made to a magistrate for purposes of a warrant.We therefore do not agree with the submissions by counsel for the respondent that an oath for purposes of a warrant, can only be made through an affidavit,” said the court.
The Court explained that where a warrant involved is an order of court, the requirements of obtaining a warrant set out in the CPC apply.
“In view of the above, the rules applicable to warrants are those provided for in CPC as guides already. Thus, reference to order V , rule 11 of the subordinate court (civil jurisdiction) rules which require the filing of an affidavit before it can be used in court was a misdirection, especially that the matter was still at an investigations stage and no criminal proceedings had been commenced,” he said.
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