STATE VS GIVEN LUBINDA COURT PROCEEDINGS 24TH AND 25TH NOVEMBER 2022
CASE BACKGROUND
Between the years 2018 and 2019 Mr. Given Lubinda contracted private loans against his properties located in Chilenje and the loan was disbursed to him in amounts of $50,000, $100,000 and $80,000 through his ABSA bank account. The receipt dates being 3rd March 2018, 2nd February 2019 and 23rd December 2019 respectively. It is these amounts that the state reasonably suspects to be proceeds of crime.
DEFENSE LAWYERS
Kennedy Kaunda, Anthony Mwila from Kaunda Kaunda & Mwila Legal Practitioners and Makebi Zulu, Nkhula Botha, Francis Daka and Emmanuel Phiri, from Makebi Zulu Advocates.
COURT PROCEEDINGS
On 24th November 2022 the Economic and Crimes court heard from an ABSA Relationship Manager Mupeta N’gambi (a state witness) who confirmed that the loan amounts being suspected to be proceeds of crime where received through ASBA Bank. Mr N’gambi during cross examination testified that given the level of business activity conducted by Mr Lubinda through ABSA Bank for the last 25 years (since 1997) there was nothing unusual about the three transactions which were before the court for scrutiny because had their been any suspicions by the bank the three transactions as per the law would have been reported to the Financial Intelligence Centre.
Another state witness Agatha Banda a Chief Registrar at the Ministry of Lands testified that her Ministry did not have any data relating to the properties which the Anti Corruption Commission (ACC) was making inquiries on. During cross examination by the defense lawyers Ms Banda was asked if she was aware that there was no such plot number in Zambia as 22/27 because the plot number presented to her by ACC was incomplete something she should have noticed as Chief registrar at the Ministry of lands. Ms Banda narrated that the warrant of access from the ACC specifically stated that the desired information related to properties on plot number 22/27 Chilenje. She stated that she requested the ACC to avail her more details relating to the said properties to enable her search further but unfortunately the ACC went mute on her. When further asked if she was aware that the said three properties in question were under the jurisdiction of Lusaka City council who in this case were the ones that issued the certificates of title for the properties Ms Banda responded in the affirmative.
On 25th November 2022 the court heard a further state witness a Relationship Manager of FNB who testified and confirmed that Mr Lubinda held an account with FNB.
VERBATIM EXCERPTS
Lawyer Kennedy Kaunda: witness can you confirm that the bank statements you have presented before this Honorable court are part of your evidence ?
Witness: yes they are my evidence .
Lawyer Kennedy Kaunda: Witness do you know the counts that Hon Lubinda is facing in this court?
Witness: No I don’t .
Lawyer Kennedy Kaunda: so you have brought evidence for a case you don’t know?
Witness: I was just told by the ACC to print them and present them as evidence.
Lawyer Kennedy Kaunda: When did you print the statements that you have presented before this Honorable Court?
Witness: I printed the statements this morning because I was asked to do so by the ACC.
Lawyer Kennedy Kaunda: witness do you know that Hon Lubinda started appearing before this Honorable court sometime in March 2022?
Witness: No I am not aware.
Lawyer Kaunda : No further questions Your Honor
Lawyer Makebi Zulu: witness are you aware that FNB is renting Hon Given Lubinda’s property in Chilenje?
Witness: yes I am aware!
Lawyer Makebi Zulu: Where is the property located ?
Witness: At Chilenje market somewhere there.
Lawyer Makebi Zulu: Do you know that FNB is paying about $10,000 in rentals per month?
Witness: no I do not know because I am not privy to that information unless my superiors.
Lawyer Makebi Zulu: Witness with that level of rental income from FNB alone do you think Hon Given Lubinda would fail pay back the loans he contracted from China Africa Cotton Limited and Qingdao Ruichang Cotton Industrial Company Limited looking at the fact that FNB alone as one of the occupants of one his properties in Chilenje was paying rentals of about $10,000 per month.
Witness: He can not fail to service the loans.
Lawyer Makebi Zulu: That’s all from me Your Honor.
A further state witness a Legal Officer at Lusaka City Council Ms Tawonga Kaonga took the stand to testify. Ms Kaonga told the court that she was the custodian of certificates of title at the council and that the property in question did not belong to Mr Given Lubinda but belonged to Jaffer Khalid Shalam and Sahera Shanty Shanan. During cross examination Ms Kaonga failed to substantiate her claims despite having a file filled with documents with her.
VERBATIM EXCERPTS
Lawyer Emmanuel Phiri: Good morning witness?
Witness: Good morning Sir.
Lawyer Emmanuel Phiri: In which department do you work at the Council?
Witness:The Legal department Sir
Lawyer Emmanuel Phiri: For how long have you worked with the council ?
Witness: More than 10yrs
Lawyer Emmanuel Phiri: That’s all from me Your Honor.
Lawyer Nkhula Botha : witness you told the court that you work in the legal department at the council right?
Witness: Yes Sir
Lawyer Nkhula Botha : What qualification do you hold ?
Witness: I hold a Diploma in law from the National Institute Of Public Administration.
Lawyer Nkhula Botha : You claim that the property against which Hon Lubinda contracted the loan belongs to Jaffer Khalid Shalam and Sahera Shanty Shanan and yet the certificate of title bears the names Given Lubinda?
Witness. Yes… because in my office we keep the history of records from the first owner to the current owner.
Lawyer Nkhula Botha : Have you brought a copy of a certificate of title to prove to the court that this property in question belongs to Jaffer Khalid Shalam and Sahera Shanty Shanan?
Witness : No Sir
Lawyer Nkhula Botha : Thats all from me Your Honor .
Lawyer Makebi Zulu: witness would you agree with me that at times there are filing discrepancies at the council ?
Witness : Yes it’s possible.
Lawyer Makebi Zulu: So let’s get to the crack of things and refer to your file shall we! Does the law allow foreigners to own property?
Witness: Kindly just rephrase your question Sir.
Lawyer Makebi Zulu: Can a foreigner own property in this country?
Witness : yes they can.
Lawyer Makebi Zulu: very well, would I be correct to say you do not have all the documents required before this Honorable Court to prove your claims.
Witness: Yes Sir
Lawyer Makebi Zulu: Your Honor I would like to request the court that the witness brings before the court all documentation from the council relating to the properties in question as there is clearly confusion as to which property belongs to who and which property relates to the mortgage.
The court adjourned and requested Ms Tawonga Kaonga to gather all documents necessary to the matter. Trial continues on 19th January 2023.