Court of appeal dismisses nearly all grounds of appeal in Esther Lungu’s forfeiture case, hearing set for November

The Court of Appeal has dismissed four out of five grounds of appeal filed by former First Lady Esther Lungu, who contested the Economic and Financial Crimes Court’s (EFCC) ruling on preliminary issues surrounding the legality and procedure of forfeiture proceedings relating to her double-storey flats in State Lodge.

The ruling, delivered by a panel of three judges — Chalwe Mchenga, Petronella Ngulube, and Yvonne Chembe — upheld most of the findings of the EFCC, which last year ordered the forfeiture of the properties estimated at about K66 million.

The forfeiture was sought by the Director of Public Prosecutions (DPP) under the Forfeiture of Proceeds of Crime Act, after the EFCC determined that the properties were tainted.

In her appeal, Mrs. Lungu raised five grounds, including a challenge to the ruling on preliminary issues. She argued that the forfeiture proceedings were irregularly commenced and that her constitutional concerns were not properly addressed.

She also questioned the legality of the EFCC’s establishment, the mode of commencement of the matter, and the admission of certain bank records used by the prosecution.

However, the Court of Appeal dismissed the first and fifth grounds after Mrs. Lungu’s lawyers abandoned arguments questioning the legality of the EFCC’s creation.

They cited a previous ruling in Bowman Lusambo v. The Attorney General, which affirmed that the Chief Justice lawfully constituted the EFCC as a division of the High Court through Statutory Instrument No. 5 of 2022.

The second ground, which argued that the forfeiture proceedings were improperly commenced by an originating notice of motion, was also rejected.

The judges ruled that such a mode of commencement was consistent with the Forfeiture of Proceeds of Crime Act and established precedent.

On the third ground — which challenged the lower court’s admission of financial documents — the appeal partially succeeded. The Court found that the EFCC erred by admitting certain bank statements into evidence that were not properly introduced through a bank official’s affidavit, as required under the Evidence (Bankers Book) Act.

The panel ordered the expunging of four exhibits, including statements from accounts linked to the Esther Lungu Foundation Trust.

The fourth ground, relating to the alleged failure of the lower court to properly hear Mrs. Lungu on her preliminary and constitutional objections, was dismissed.

The judges held that she had filed written arguments that were duly considered by the EFCC before judgment was rendered.

“In the circumstances, out of the five grounds of appeal, only the third partially succeeds to the extent of expunging the improperly admitted exhibits,” the judges ruled. “The rest of the grounds are dismissed. Each party will bear their own costs.”

The possible hearing of the main appeal is scheduled for next month.

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