THE Anti-Corruption Commission has argued that Tanzanian Uziel Bashire and three others claiming ownership of the 48 houses have wrongly commenced the matter challenging the seizure of the said properties and the court has no authority to entertain it.
This is in a matter where Bashire, his cousin Zuberi Bigawa and Zambian Charles Loyana, a senior accountant at the Ministry of Finance, have sued ACC in the Lusaka High Court for forfeiting their properties to the State.
According to their amended statement of claim, the three are seeking a declaration that Loyana, had and has the requisite power and authority by law to purchase, possess and own property in Zambia in his name for his own benefit or for the benefit of any other person.
They want an order that Bashire, who is currently residing in Norway, has an interest in the properties bought by Loyana and was to be the ultimate beneficial owner of the 48 houses and Loyana as purchaser of the properties should be granted possession of the same.
According to an affidavit in support of notice of motion to raise a preliminary issue sworn by Gloria Chisambisha, a senior prosecutor at ACC, the commission intends to raise preliminary issue.
Chisambisha said the ACC’s preliminary issue was based on the amended statement of claim in which the plaintiffs alleged that the ACC did not comply with the provisions of the Anti-Corruption Commission (Disposal of Recovered Property) Regulations, 2004.
Chisambisha said since Bashire, Bigawa and Loyana were challenging the decision making process of ACC by using the words “did not fully comply with the law” and “null and void ab initio” as well as “unlawful and illegal”, the matter should have been commenced by way of judicial review and not writ of summons.
In its skeleton arguments in support of notice of motion to raise preliminary issue, ACC said the plaintiffs’ claim was concerned with the decision making process; whether the correct procedure was followed by ACC in forfeiting the 48 houses as opposed to the merits of the decision.
“The plaintiffs raise the issue of illegality in the manner in which the defendant exercised its powers, thus questioning the decision making process of defendant. Accordingly, this process should have been commenced by way of judicial review,” Chisambisha said.
She said a declaration of an action to be null and void invites the court to quash the decision made by ACC on the ground of illegality and such an action was only achievable by an order of certiorari granted by the court.
Chisambisha said Bashire, Bigawa and Loyana were imploring the court to quash the decision to forfeit their properties and such a relief was only granted through judicial review.
“The court has no jurisdiction to hear this matter on the basis that the mode of commencement was irregular,” she said.
“When an action is commenced wrongly as is the case herein, the court has no jurisdiction to entertain the matter. The judgment emanating from a court acting without jurisdiction is a nullity and can be set aside by a superior court.”
Chisambisha prayed that the matter be dismissed with costs in a point of law as it is a proper case for judicial review.