Only Bank Can Produce Bank Statements – Court
By Dickson Jere
Esther Nyawa Tembo Lungu is former First Lady of the Republic of Zambia. She noticed that some properties which she had an interest in had been seized by the Drug Enforcement Commission (DEC) on the grounds of being tainted with corruption. DEC, through the Director of Public Prosecution (DPP), filed an application in the High Court to have the same properties forfeited to the State as proceeds of crime. In short, DEC wanted a non-conviction forfeiture of these assets.
Mrs Lungu filed an application as an interested party with a claim over the same properties. DEC produced bank statements, among other documents, belonging to the Esther Lungu Foundation as part of the evidence in the case. These bank statements were produced in Court by DEC officer who had interviewed the bankers at ZANACO during investigations and collected the documents.
However, Mrs Lungu objected to the bank statements being produced by DEC instead of the bank itself. The High Court, after hearing both sides, accepted the evidence of the bank statements from DEC.
Dissatisfied, Mrs Lungu climbed the Court ladder and appealed to the Court of Appeal, arguing that bank statements cannot not be produced by person outside the bank.
A panel of three Judges analyzed the record and the law. They then opined thus;
“As for the bank statements, the Evidence (Bankers Book) Act points out that admissibility of bank records, is dependent on proof that it is a bankers book,” the Court observed.
The Judges opined that the DEC officer – even though interviewed the officers in the bank and collected bank statements – he did not meet the legal requirement to submit such evidence in Court.
“That provision, required the evidence to be presented by a partner or officer of the bank, orally or by affidavit,” the Judges ruled.
“Since this case proceeded on affidavit evidence, the bank statements were supposed to be introduced into evidence through an affidavit by a bank official,” the Court said.
The Court went ahead and expunged the bank statements from ZANACO belonging to Esther Lungu Foundation because they were produced in breach of the law.
“Section 5 of the Evidence (Bankers Book) Act requires that such documents are proved either orally or by affidavit, by a bank official to be ‘original and correct’. No bank official gave such evidence,” the Court noted.
Case citation – see Esther Nyawa Tembo Lungu v DPP – Appeal No. 59/2024 and Judgement delivered last week on 23rd October, 2025.
Lecture notes;
1. This case underscores the need to follow the provisions of the Evidence (Bankers Book) Act of Zambia here adducing evidence in Court relating to bank records such as statements, accounts, transfers, etc. Even when the police or any law enforcement agencies have accessed these documents, they ought to be submitted by the bank who are the custodians of the records.
