Previous owners of 51 houses challenge conviction
A Couple of Lusaka that was recently jailed for three years by the Economic and Financial Crimes Court for possessing 51 houses and land suspected to be proceeds of crime have contested their conviction and sentencing.
Charles Loyana and Susan Sinkala who were public workers as senior accountant in the ministry of finance and assistant accountant at the ministry of works and supply respectively have filed in a notice of appeal before the Lusaka magistrates’ court.
Magistrate Faidess Hamaundu temporarily put the union of the corrupt couple asunder when she sent it to prison for building and concealing 51 houses in Lusaka’s Chalala area whose value was disproportionate to its income.
She established that indicated that Former ministry of finance and national planning accountant Charles Loyana and his wife Susan Sinkala are not pseudo owners of the properties as they claim.
Loyana and his wife Susan Sinkala, were charged with two counts of possessing and concealing 51 properties worth K37.9 million suspected to be proceeds of crime.
In her judgement magistrate Hamaundu said there was no trace of the obscene amounts of money which the couple claims to have received from Tanzanian nationals Uziel Bashire and Zuberi Bigawa to build the houses which are dotted near Gideon Robert University.
“There is no evidence of transfer of funds indicating that Uziel Bashire sent money to Zuberi Bigawa to transfer funds to Loyana to purchase land,”magistrate Hamaundu said
“I have no doubt that the money used to build the houses is reasonably suspected to be proceeds of crime because there is no way Loyana can receive huge amounts of money without a trace of were it came from. I hereby find him guilty as charged.”
The Court said Sinkala was a beneficiary of the proceeds realized from the rentals because she was also the owner of some the houses as evidenced by the applications to connect the houses to the ZESCO power grid.
The Court noted that the cost at which the houses were constructed was beyond the couple’s income who were public workers by then.
She said Loyana concealed ownership of the properties when he attempted to have them registered in his children’s names when the ACC begun to investigate the case but later registered them in the names of Kitwe based lawyer Chali Chitala.
This was after Lombe Bwalya who was selling the land on behalf of the Khankharas advised him that the children were minors and could not hold property.
Magistrate Hamaundu acquitted Sinkala of concealing property suspected to be tainted as the commission did not prove the case beyond reasonable doubt against her.
In meting out punishment magistrate Hamaundu sentenced Loyana to three years imprisonment with hard labour in the two counts which will run concurrently and slapped his wife with three years simple imprisonment.
But in their 15 grounds of appeal Loyana and his wife argue that the learned magistrate erred at law and fact when she convicted them on one count which had an offence that did not exist at law.
The convicts contend that Magistrate Hamaundu erred in law and fact when she convicted Sinkala without the state having suspicions about her.
Loyana and Sinkala said the learned trial magistrate erred at law and fact when she coined her own suspicions or factual issues against both accused persons which were not alleged by the prosecution, placing herself in the position of prosecution.
“Magistrate Hamaundu erred in law and fact when she convicted us of possessing property suspected to be proceeds of crime when the facts of the evidence on record did not meet the ingredients and principles of the subject offence as held by the supreme court,”the convicts argued.
They claim the magistrate erred in law and fact when she convicted them against the evidence of the prosecution that was in their favor and exonerated them.
The couple said magistrate Hamaunda erred when she failed to consider the evidence of how the properties came into their possession.
“The learned trial magistrate erred at law and facts when she convicted us of the subject offence on the insistence that the financing of the properties in question did not correspond with our income from the works we do, when infact there was clear evidence of financing for acquisition and construction of the properties that it was not financed using the accused’s finances,”Loyana and Sinkala stated.
They further argued that magistrate Hamaundu erred when she convicted them on the basis that the money was tainted when there was no such allegation before or during trial and without such a charge against them.
The couple added that the magistrate erred when she chose to fill in gaps left by the prosecution against the principal of criminal law which requires her to make findings of fact only on the evidence before her.
The matter comes up on July 28, for hearing of the bail application pending appeal to the EFCC (High court division).
By Mwaka Ndawa
Kalemba