EFCC Appeals Judgment on Kenny Martins & others

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

IN THE COURT OF APPEALHOLDEN AT ABUJA APPEAL NO:………………….……….CHARGE NO: FCT/HC/G/13/CR/66/2008BETWEEN FEDERAL REPUBLIC OF NIGERIA ……….APPELLANT AND 1. KENNY MARTINS2. IBRAHIM DUMUJE3. YERO GELLA …..RESPONDENTS4. 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.