AFTER a year of not raking it in on rentals and receiving purchase orders for chickens, Edgar Lungu’s daughter Chiyeso has contested the forfeiture of her farms to the State in the Court of Appeal.
Chiyeso said the Economic and Financial Crimes Court was wrong when it ignored her explanation that the the two farms with a high-cost house, four chicken runs, and three flats worth K9, 375, 438.62 on Chagwa Drive in state lodge area were gifted to her by her parents.
In this case, the DPP moved a motion of a non conviction based forfeiture order in the Economic and Financial Crimes Court seeking a relief that Chiyeso’s properties acquired between 2013 and 2021, be forfeited to the State.
Delivering judgement in the matter Judge Ononuju indicated that Chiyeso did not discharge the evidentiary burden of proving that the money used to acquire the assets was given to her by her parents.
She said though there is nothing wrong with fathers gifting their offspring property, it is imperative that the recipient when called upon, should prove that the property was indeed given or acquired by the benevolent father without casting any shadow of doubt.
Judge Ononuju and her colleagues Mwanajiti Mabbolobbolo and Vincent Siloka said they took Judicial notice of Lungu’s resume who’s a a lawyer and served as member of parliament until he assumed the position of presidency, but they refused to create a dangerous exemplar were people who acquire property illegally, point to their fathers or generous people as the source of their wealth when asked to account for the same, without giving clear, logical, consistent, believable and convincing evidence.
However in her nine grounds of appeal Chiyeso says the EFCC erred in law and in fact when it held that there are developments on property No. LN_79093/1 situated in State Lodge area against the weight of undisputed evidence.
She said the Court below erred in law and in fact when it held that her properties were tainted based on mere doubt and suspicion without the State producing evidence that the properties were tainted.
“The Court below erred in law and in fact when it disregarded the appellant’s affidavit evidence that the property was bought for her by her parents but accepted the same affidavit evidence produced by the DPP as proof that the appellant’s properties were tainted thereby applying different standards to the parties in the same case,”Chiyeso said.
“The Court below erred in law when it held that creation of mere doubt is sufficient to warrant the granting of a non-conviction forfeiture Order when the standard of proof required in applications under section 31(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010 (“FPOCA”) is proof on the balance of probabilities.”
Lungu’s daughter said the Court was wrong at when it decided the case based on legal principles applicable to criminal cases brought under section 71 of the FPOCA instead of the using the principles applicable to civil applications brought under sections 29 and 31 of the FPOCA.
Chiyeso said the Court fumbled when it granted relief on disputed affidavit evidence while denying the application to cross-examine DEC investigations officer Emmanuel Khondowe who established that her properties were disproportionate to her income.
“The Court erred in law when it accepted paragraphs of the Applicant’s Affidavit
which were defective in substance,” she claimed.
“The Court below erred in law and in fact when it disregarded the appellant’s undisputed explanation as to the source of the money for purchasing the properties.”
Chiyeso added that the EFCC erred in law and in fact when it held that the burden of proving
the case shifted to her upon the State establishing a prima facie case against her.
By Mwaka Ndawa
Kalemba May 28, 2024.
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