48 houses owners discontinue case against ACC

TANZANIAN Uziel Bashire and two others claiming ownership of the 48 houses have discontinued the matter in which they sued the Anti-Corruption Commission challenging the seizure of their properties.

This is according to a notice of discontinuance dated March 29, 2021.

“Take notice that the plaintiffs herein being desirous to discontinue this suit in whole against the defendant have this day of the notice discontinued the matter,” read the notice.

Recently, the ACC asked the Court to dismiss the matter for being wrongly commenced.

The ACC, through its legal prosecutor Gloria Chisambisha, said since the plaintiffs were challenging its decision-making process 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 a declaration of an action to be null and void invites the court to quash the decision made by it on the ground of illegality and such an action was only achievable by an order of certiorari granted by the court.

Chisambisha said the complainants were asking the court to quash the decision to forfeit their property 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.”

Bashire, his cousin Zuberi Bigawa and Zambian Charles Loyana, a senior accountant at the Ministry of Finance, sued ACC in the Lusaka High Court for forfeiting their property to the state.

According to their amended statement of claim, the three were 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.

The plaintiffs explained that in 2011, Bashire decided to invest in real estate in Zambia and upon acknowledging that he was not qualified to own property in Zambia in his own name because he is a foreigner, decided to partner with Loyana, who qualified to purchase and own land in Zambia.

It was agreed that Bashire would fund the purchase of land and construction of estates.

Bashire, Bigawa and Loyana stated that it was agreed by all the parties that Loyana would receive a commission of five per cent for any property purchased and register and own the properties in his name or any nominees.

They stated that ACC had arbitrarily continued holding on to the properties illegally and without any lawful justification despite Bashire explaining that he had interest and was to be the beneficial owner of the properties, and that they were purchased through Loyana.

However, ACC in its amended defence argued that there were no records showing that Bashire or his cousin Bigawa were granted an investment permit to enable them invest in Zambia.

ACC said the power of attorney between Bashire and Bigawa as well as between Bigawa and Loyana does not state that Bashire would have interest and would in future be the beneficial owner while upon purchase, Loyana would own and possess the properties.

It said on the other hand, both powers of attorney indicate that Bashire shall be the beneficial owner of all the real estate to be bought by Loyana.

ACC said the power of attorney also included the power to bring or defend any proceedings on behalf of or against the 48 houses bought by Loyana but the latter did not challenge the forfeiture proceedings that were instituted by ACC despite being served with the notice of intention to have the properties forfeited to the state.

It stated that in a statement dated May 16, 2018 made to it, Loyana said that he only owns two properties, one in Chalala and the other in Chilenje and denied having bought any property from Lombe Bwalya and associates and also denied ever doing business with them.

However, in their reply, the plaintiffs argued that there was no law in Zambia that stopped a foreigner funding a local person who qualifies to own property, purchase property or to fund any such investment to require them to have an investment permit.

They said the Anti-Corruption Commission’s understanding of the requirements of an investment license to justify its illegal seizure of the 48 houses was out of context and remains unjustified at law.

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