THE Anti-Corruption Commission (ACC) has argued that the case where three people who have sued it over the infamous 48 houses in Lusaka’s Chalala area was wrongly commenced and that the Lusaka High Court has no jurisdiction to entertain it.

It has, therefore, asked the court to dismiss the said matter with costs, arguing that the case should have been commenced by way of an application for judicial review and not by writ of summons.

In this matter, Uziel Bashire, Zuberi Bigawa (both Tanzianians) and Charles Loyana, a senior accountant at the Ministry of Finance, have sued ACC seeking declaration that Loyana had and has the requisite power and authority by law in Zambia to purchase, possess and own property in his name for his own benefit or for the benefit of any other person.

They also want the court to order that Bashire, a Tanzanian but currently residing in Norway, has an interest in the properties bought by Loyana and was to be the ultimate beneficial owner of the properties bought, and as such, Loyana as purchaser of the properties should be granted possession of the said properties.

Bashire, Loyana and Bigawa also want a declaration that the Notice issued pursuant to the ACC (Disposal of Recovered Property) Regulations, 2004 directed to Loyana and certain other individuals regarding Bashire and Loyana’s properties did not fully comply with the law, is null and void ab initio, and or no longer has effect in light of the rightful owners claiming the properties.

The three who are represented by Willis Muhanga of Messrs AKM Legal Practitioners, further want declaration that the arbitrary seizure and continuation of holding on of the properties by ACC despite the claim made by the rightful owners is unlawful and illegal, among others.

But in an affidavit in support of motion to raise a preliminary issue filed on March 16, 2021, ACC senior legal and prosecutions officer Gloria Muyunda – Chisambisha stated that since the plaintiffs were challenging the decision-making process of ACC by using the words ‘did not fully comply with the law’ and ‘null and void and initio’ as well as ‘unlawful and illegal,’ then this matter ought to have been commenced by way of judicial review and not via a writ of summons.

ACC further submitted in its skeleton arguments in support of notice of motion to raise a preliminary issue that the plaintiffs were challenging the manner in which the Commission, being a public body, exercised its powers in seizing the properties in issue.

It submitted that the plaintiffs’ claim was concerned with the decision-making process that was whether the correct procedure was followed by the ACC as opposed to the merits of the decision.

The ACC stated that the plaintiffs raised the issue of illegality in the manner in which the ACC exercised its powers, thus, questioning its decision-making process, adding that accordingly, this process should have been commenced by way of judicial review.

“The nature of this matter at hand, involves a public body and is premised on allegations of ACC not giving effect to the provisions of Anti-Corruption Commission (disposal of recovered property), regulations 2004. In other words, this allegation borders on ACC not correctly applying the law that regulates ACC’s decision-making power. We submit that the case at hand should have been commenced by way of an application for judicial review and not by writ of summons,” it submitted.

The Commission argued that the Court had no jurisdiction to hear this matter on the basis that the mode of commencement was irregular.

It added that the Court had no jurisdiction to hear this matter as it was a proper case for judicial review.

“As a consequence of the foregoing arguments, ACC prays that this honourable court dismisses this matter with costs on a point of law,” it stated.

The ACC had earlier argued in its defence that Loyana did not challenge the forfeiture proceedings that were instituted by the Commission despite being served with the notice of intention to have the said properties forfeited to the State.

It added that Loyana in a statement to it dated May 16, 2018, told the Commission that he owned only two properties, that is, one in Chilenje and the other in Chalala.

The ACC further submitted that there was no record of either Bashire or Bigawa being granted an investment permit to enable them to invest in Zambia.

However, in their reply to the ACC’s defence, the three plaintiffs argued that Loyana remained qualified to own property in Zambia using funding from any legal sources of his choice and cannot be deprived of the said properties in the circumstances of this matter.

They maintained that the Commission did not comply with the law in the process of seizing the said properties and would duly prove that at trial.

The plaintiffs stated that there was no law in Zambia that proscribed a foreigner from funding a local person who qualifies to own property, purchase property or to fund any such investment to require them first to have an investment permit.

They added that neither does there exist any law in Zambia that proscribes a foreign national from having an interest in any investment or property owned by qualified persons under the law in Zambia.

The plaintiffs stated that what the law prevents was owning the property in the foreigner’s name if that foreigner does not meet or does not qualify to own land in his/her name as required by law.