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IN THE COURT OF APPEAL
HOLDEN AT
ABUJA
APPEAL NO:………………….……….
CHARGE
NO: FCT/HC/G/13/CR/66/2008
BETWEEN
FEDERAL
REPUBLIC
OF NIGERIA ……….APPELLANT
AND
 1.
KENNY MARTINS
2. IBRAHIM DUMUJE
3. YERO GELLA
…..RESPONDENTS
4. NIGERSTALG
LTD
NOTICE OF APPEAL
TAKE NOTICE
that the Appellant being dissatisfied
with the decision contained in the
judgment of Honourable Justice A.M
TALBA of the High Court of Justice
of the Federal Capital Territory
delivered on Tuesday, November 24,
2009, do hereby appeal to the Court
of Appeal upon the grounds set out in
paragraph 3 and will at the hearing of
the appeal seek the reliefs set out in
paragraph 4.
AND THE APPELLANT
further states that the names and
addresses of the persons directly
affected by the appeal are those set out
in paragraph 5.
2.
THE DECISION OF THE
LOWER COURT
COMPLAINED OF:
The whole decision
3.
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial judge erred in fact
and misdirected himself when he held as
follows:
“Having summarized the whole evidence
adduced before the court. It is my
finding that in all the testimonies of
the witnesses, it is only PW5 who
testified that there was a fraudulent
transfer to Police Equipment Foundation
because the accused persons failed to
prove that the money was for equipping
the Nigerian Police. But then during
cross examination, he said the 2nd
accused explained that the transfer of
N774,000,000.00 from the account of
Police Equipment Revenue Account to
Nigerstalg was on account of the
agreement entered between Nigerstalg,
Ministry of Police Affairs and Federal
Government of Nigeria. The accused
persons had explained that all their
expenditure was within the 10% of money
collected.
I have looked at Exhibit T article V(d)
provides “Nigerstalg shall be paid 10%
of all sums accruing to the fund and
such payment shall be made periodically
upon clearing of the cheques as may be
determined by the Presidential
Committee.”
From the above, it is clear that the
payment of the sum of N774,000,000.00
out of N7,740,000,000.00 has been
explained as it is covered by the
article V of Exhibit T”
PARTICULARS
1. The “fraudulent transfer” of
various sums to “Police Equipment
Foundation”, a company limited by
guarantee, which was the evidence of
prosecution on record, was not in tandem
with the agreement in Exhibit T, article
V(d) which made a ten percent (10%) of
sum collected payable to a certain
“Nigerstalg Ltd” and not “Police
Equipment Foundation”. The accused
persons needed to explain this transfer
to a different body.
2. By the terms of Exhibit T which
was dated 14th March, 2006,
it was to be operative for 12 months. As
a result, the transfer of N7,740,000,000
to the Presidential Committee on Police
Equipment Fund (not Nigerstalg Ltd.)
which was done in May, 2007, was not
covered by the said Exhibit T, so the
Accused persons needed to explain why
they still deducted the said ten percent
(10%) after the 12-month period.
GROUND TWO:
The learned trial judge erred in fact
and misdirected himself when he held as
follows:
“There is a clear contradiction between
the evidence of PW6 and Article V(d) of
Exhibit T. The general rule is that
where parties have embodied the terms of
their agreement or contract in a written
document, extrinsic evidence is not
admissible to add to vary, subtract from
or contradict the terms of the written
instrument. Section 132 (1) of the
Evidence Act refers. See the cases of
UBN Vs Ozigi (1994) 3 NWLR (Pt. 333) 385
SC and Koiki Vs Magnisson (1999) 8 NWLR
(Pt. 615) 492 SC”.
PARTICULARS
1. There was no contradiction
between the evidence of PW6 and Article
V(d) of Exhibit T, since Exhibit T was
no longer valid at the time ALGON (which
PW6 represented) paid the money into the
account of the Presidential Committee on
Police Equipment Fund.
2. In any case, ALGON was not a
party to Exhibit T, so PW6 was right to
say there was no agreement between ALGON
and the accused persons to deduct ten
percent (10%) of the amount given by
ALGON for their personal use.
GROUND THREE
The learned trial judge erred when he
held as follows:
“In view of the above,
it is not in doubt that the accused
persons had explained sufficiently the
use of N774,000,000.00 which is 10% of
N7,740,000,000.00. That being the case
it means the allegation that the accused
persons dishonestly converted to their
own use the various sums of money out of
the said sum of N7,740,000,000.00 in
violation of the agreement between them,
the ALGON and the Federal Government of
Nigeria cannot hold water”
PARTICULARS
1. The Accused person did not enter
their defence, so they did not explain
anything to the court.
2.
In a ruling on no-case, the court only
looks at the case of the prosecution,
whether it has made out a prima facie
case, so there can be no question
regarding the explanation of the accused
persons at this stage.
3. The “various sums of money”
referred to by the court which is
besides the said N774,000,000.00, by
simple arithmetic was not part of the
so-called ten percent (10%) of the
N7,740,000,000.00 and it behoves the
accused persons to explain the use of
these other “various sums of money”.
GROUND FOUR
The learned trial judge erred in law and
misdirected himself on the facts when he
held as follows:
“Then if the position of the Federal
Government is that the fund should be
run as a private affair it means the
accused persons were given a discretion
as to how to manage the fund without any
condition attached thereto. And that
being the case the petitioners herein
are meddlesome interlopers or busy body,
they raise an alarm where there is no
substance to backup. It is in evidence
that some donations were received from
agencies and organizations and same were
accredited into the Zenith Bank account”
PARTICULARS
1. From the evidence of PW2, one of
the Petitioners on record, his Eminence,
the Sultan of Sokoto, Saad Abubakar III
was, at the relevant time, a member of
the Police Equipment Foundation, the
body to which funds were allegedly
illegally diverted, so he was not a
meddlesome interloper.
2. The Accused persons never
offered any explanation to the court
that they had any discretion regarding
the fund.
3. The Court was making out a
defence of “discretion” for the accused
persons where non existed on the record.
GROUND FIVE
The learned trial judge erred in fact
and misdirected himself when he held as
follows:
“PW5 in his evidence, he said from
Exhibit Hi they discovered that the
account was opened on 7/8/2006 and on
16/8/2006, Zenith Bank Plc donated the
sum of N50m to the fund. The charge
before the court is premised on the
N7,740,000,000.00 credited into the
account by ALGON. It does not include
other donations that were accredited
into the account. To that extend the
payments made by the accused persons
from that account which includes other
donations were not taken into
consideration. It is therefore,
speculative as to the whether some of
the payments are from the
N7,740,000,000.00 from other donations”
PARTICULARS
1. The prosecutions evidence (PW5)
was very direct and straight forward
that the account into which the
N7,740,000,000 was paid was already in
debit of N37,927,911.19. As a result,
there was no evidence before the court
that the unexplained withdrawals were
from “other donations”.
2. The accused persons were the
ones to explain in their Defense whether
the unexplained transfers or payments
were from the N7,740,000,000.00 or from
other donations and not the court to
assume or speculate that it was.
GROUND SIX
The learned trial judge erred in fact in
discharging the accused persons on the
first count of “conspiracy”.
PARTICULARS
There was ample evidence that the
accused person acted together in making
the fraudulent withdrawals and
transfers.
GROUND SEVEN
The learned trial judge erred in law by
making his ruling too detailed and too
long.
PARTICULARS
1. A ruling on no-case ought not to
be too long and lengthy as it is only to
deliberate on the essential ingredients
of the offence as charged.
2. The in-depth review of the
evidence of the prosecution and the
in-depth analyses of the evidence by the
learned trial judge was unnecessary.
GROUND EIGHT
The ruling is unreasonable and
unwarranted and cannot be supported
having regard to the evidence.
4. RELIEFS SOUGHT FROM THE
COURT OF APPEAL
a.
AN ORDER
setting aside the decision of the Lower
Court in this case delivered on
Tuesday, November 24, 2009.
b.
AN ORDER
remitting this case to the Chief Judge
of the Federal Capital Territory, Abuja
for re-assignment to another judge of
the High Court of the Federal Capital
Territory, Abuja, other than Justice
A.M. Talba, for re-trial.
…………………………..…………………….
Signature of Legal Representative of the
Appellant, Mr. Festus Keyamo
5.
PERSONS DIRECTLY AFFECTED BY THE APPEAL
NAME OF
APPELLANT
ADDRESS
Federal Republic of
Nigeria
C/o Its Counsel,
Festus Keyamo, Esq.
Festus Keyamo
Chambers,
13, Nouakchott
Street,
Near Bank PHB,
Wuse Zone 1,
Abuja.
NAME OF
RESPONDENTS
ADDRESS
1. KENNY
MARTINS C/o
their Counsel,
2. IBRAHIM DUMUJE
Mike Ozekhome’s Chambers,
3. YERO GELLA
Ukwe House,
4. NIGERSTALG LTD
27, Jesse Jackson Street,
Off Onitsha Crescent,
Asokoro Extension,
Abuja.
Dated this …………day of
………………………………...…..………2009
FESTUS KEYAMO, ESQ.
Festus Keyamo Chambers,
13, Nouakchott Street,
Near Bank PHB,
Wuse Zone 1, Abuja.
ON NOTICE TO:
The Respondents,
C/o their Counsel, Mike Ozekhome’s
Chambers,
Ukwe House,
27,
Jesse Jackson Street,
Off Onitsha Crescent,
Asokoro Extension,
Abuja.
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