News / National
High Court suspends criminal case against Nigerian businessman
30 Aug 2016 at 01:41hrs | Views
THE High Court has suspended criminal proceedings against a Nigerian businessman Alphonsus Obioma Achinulo (49) who allegedly swindled his Zimbabwean business partner of more than $70 000 in a botched deal.
The ruling by Bulawayo High Court judge Justice Nicholas Mathonsi follows an urgent chamber application filed at the High Court by Achinulo seeking for stay of criminal proceedings pending a review.
In papers before the court, Matabeleland South provincial magistrate Mr Willard Maphios Moyo and the state were cited as the respondents.
Achinulo, a Liberation Centre pastor in Bulawayo, through his lawyer Advocate Lucas Nkomo who was instructed by R Ndlovu and Company, said there was no evidence linking him to the alleged offence. He argued that the state had failed to establish a prima facie case.
"The applicant was put to his defence not because the state had proved the essential elements of the theft as provided for in the law, but merely because, as a partner in a partnership of himself and the complainant, he was required to account to his partner how the money he received was applied. Clearly, putting the applicant to his defence would amount to bolstering the state case unable to stand on its own," argued Adv Nkomo.
Achinulo had applied for discharge at the close of the state case, but the magistrate dismissed it and set a trial date.
Justice Mathonsi said that there were gross irregularities in the manner in which the magistrate handled his case.
"This court will not interfere in unterminated proceedings except where there is gross irregularity resulting in a miscarriage of justice. The provincial magistrate, in his judgment, appears to have allowed his mind to wander off the field of discourse. In the end, he did not address the application before him at all," said the judge.
Justice Mathonsi said the matter lends weight to the argument that it was more of a civil dispute.
"Achinulo was put to his defence not because a prima facie case has been established but merely to account to his partner. It is prejudicial to an accused person to perpetuate a trial for that reason. In light of that I am prepared to exercise my power to interfere with the criminal proceedings even though unterminated in order to afford the applicant the opportunity to explore a review of the validity of that decision. In the result, the provisional order is hereby granted," ruled the judge.
Achinulo who is the director of Enfund Trading Company (Private) Limited and his business partner, Mr Nicholas Masuku, were in a partnership to service and develop residential stands at Feinspruit Township in Umzingwane district.
Mr Masuku, who is the managing director of N and S Properties, claimed that from May 2011 to February 2012, Achinulo received $70,533, 34 and used the money for other purposes outside the deal.
Achinulo denied stealing the funds saying all the money he received was channelled towards the partnership project.
The ruling by Bulawayo High Court judge Justice Nicholas Mathonsi follows an urgent chamber application filed at the High Court by Achinulo seeking for stay of criminal proceedings pending a review.
In papers before the court, Matabeleland South provincial magistrate Mr Willard Maphios Moyo and the state were cited as the respondents.
Achinulo, a Liberation Centre pastor in Bulawayo, through his lawyer Advocate Lucas Nkomo who was instructed by R Ndlovu and Company, said there was no evidence linking him to the alleged offence. He argued that the state had failed to establish a prima facie case.
"The applicant was put to his defence not because the state had proved the essential elements of the theft as provided for in the law, but merely because, as a partner in a partnership of himself and the complainant, he was required to account to his partner how the money he received was applied. Clearly, putting the applicant to his defence would amount to bolstering the state case unable to stand on its own," argued Adv Nkomo.
Achinulo had applied for discharge at the close of the state case, but the magistrate dismissed it and set a trial date.
Justice Mathonsi said that there were gross irregularities in the manner in which the magistrate handled his case.
"This court will not interfere in unterminated proceedings except where there is gross irregularity resulting in a miscarriage of justice. The provincial magistrate, in his judgment, appears to have allowed his mind to wander off the field of discourse. In the end, he did not address the application before him at all," said the judge.
Justice Mathonsi said the matter lends weight to the argument that it was more of a civil dispute.
"Achinulo was put to his defence not because a prima facie case has been established but merely to account to his partner. It is prejudicial to an accused person to perpetuate a trial for that reason. In light of that I am prepared to exercise my power to interfere with the criminal proceedings even though unterminated in order to afford the applicant the opportunity to explore a review of the validity of that decision. In the result, the provisional order is hereby granted," ruled the judge.
Achinulo who is the director of Enfund Trading Company (Private) Limited and his business partner, Mr Nicholas Masuku, were in a partnership to service and develop residential stands at Feinspruit Township in Umzingwane district.
Mr Masuku, who is the managing director of N and S Properties, claimed that from May 2011 to February 2012, Achinulo received $70,533, 34 and used the money for other purposes outside the deal.
Achinulo denied stealing the funds saying all the money he received was channelled towards the partnership project.
Source - chronicle
