LUSAKA High Court judge Dominic Sichinga has set April 2, 2013 as date for judgment in a matter where Thandiwe Banda Chilongo sued the Anti-Corruption Commission over the seizure Mpundu Trust Limited apartments on Leopards Hill Road in Lusaka owing to an investigation.
Last week, the Anti-Corruption Commission (ACC) advised Access Bank Zambia Limited to sue Thandiwe and not the state over the seized apartments if the Nigerian bank wanted to recover the mortgage loan she acquired for it.
Thandiwe wants judge Sichinga to order with costs, the reversal of the restriction notice to lease or dispose of the property issued by the ACC against her property.
She wants the court to annul the restriction notice and allow her lease the property out as well as employ property managers.
Thandiwe said Mpundu Trust Limited was established in 2009 to look after the interests of her twins and their future education and health needs and that she applied to Access Bank Zambia Limited for a loan of up to US$600,000 for the completion of the construction of the 12 residential properties.
Thandiwe said on April 9, 2009 the bank offered her the loan and on February 16, 2011 she again applied to the bank asking for a further loan of up to US$1 million for the completion of construction.
When the matter came up for inter-parte hearing in chambers two weeks ago, judge Sichinga allowed the recently-joined second applicant in the matter, Access Bank Zambia Limited, to present its submissions in response to the ACC's earlier submissions, after which the ACC would be accorded the right to reply before Thandiwe concludes.
Access Bank's lawyer, Anne Theotis of Theotis and Mataka Legal Practitioners submitted that the bank was a bonafide mortgagee of the property which was subject to the restriction notice.
"Its interest is based on the fact that as long as the restriction notice remains in force, the second applicant will not recover the loan installment due to it from the first applicant as the first applicant will not be able to lease out housing units," Theotis argued. "As long as restriction notice remains in force, the second applicant will not be able to enforce its power of sale under mortgage should the need arise."
Theotis said the restriction notice should either be varied to allow Thandiwe service the loan to Access Bank or that it should be reversed to at least enable her take possession and sale in order to offset liabilities due to the Nigerian bank.
She argued that varying the restriction notice in order to allow Thandiwe lease out the properties would not compromise or prejudice the state's investigations in any way.
But ACC senior legal and prosecutions officer James Mataliro said the fact that Access Bank was a mortgagee to Thandiwe over the restricted Mpundu properties had not been contended and he wondered how the restriction notice would affect the loan arrangement to which the state was not party to.
He further said Access Bank was not treated unfairly as two restriction notices that were issued over the Mpundu properties had been copied to the bank despite there being no legal requirement for that to be done.
Mataliro prayed that the application by the second applicant be refused by the court with costs.