News Column

Court Orders Forfeiture Over D0.7 Million to State

June 3, 2014

Sidiq Asemota

Justice Abdulahi Mikailu of the High Court in Banjul, has ordered the forfeiture of Leadway Associates Limited assets and the sum of D779,501.00 to the state.

The High Court judge made the said order while delivering judgment in a criminal case involving the state against seven accused persons namely; Adeoti Clement, Emmanuel Tokunbo, Afolabi Olayami, Adsida Adesami Samuel, Oladiyo Adeyami Mosumala, Joseph Richards E.O and Leadway Associates Limited.

By an amended indictment, the accused persons were charged with the offences of carrying on banking business in The Gambia without a valid license, contrary to section 3(3) of the Banking Act vol.13 cap 79 Revised Laws of The Gambia 2009 and Economic Crimes, contrary to section 5(f) of the Economic Crims(Specified Offences) Act.

The particulars of offences stated that the accused persons between the months of October 2011 and April 2012 at Serrekunda in the Kanifing Municipality, allegedly collected cash deposits amounting to D15,717.205.00 from the general public by engaging in an illegal banking activities and operating a forex online trading without license, an act detrimental to the welfare of the people of The Gambia.

Delivering judgment, the presiding judge disclosed that the case was mentioned on several occasions without the accused persons present in court, and following an application made by the complainant, an order for substituted service of the information was made on the 12th December,2012.

According to the judge, in compliance with the order of the court, the information was published at page 15 of the 23rd January,2013 edition and page 9 of the 25th-27th Edition of Daily Observer Newspaper Limited. The publications in the two editions were admitted in evidence as Exhibit "A".

Despite the publication of the information, the accused persons refused to present themselves in court for trial on the 5th February ,2013,consequently,and pursuant to an application made by the complainant, an order was made by this court for the accused persons to be tried in absentia under section 7 of the Economic Crimes (Specified Offences) Act.

"On the 12TH March,2013, the information was read in the open court but none of the accused was present in court to take plea. In an attempt to prove its case, the prosecution called thirty three witnesses,(Pw1 and Pw29) were police officers involved in the investigation of the case, whilst Pw2 to Pw27 were staff/employees(marketing officers) of the 7th accused person(Leadway Associates). Pw8 was the inspector of companies. Pw30 to Pw32 were unsuspecting members of the public who deposited money with the said Leadway Associates Limited; whilst Pw33 was a staff of Trust Bank Ltd,Banjul".

The trial judge adduced that Momodou Lamin Korta of Fraud Squad, at the Police Headquarters in Banjul, recalled that on the 10th April,2012,whilst at the Office, they received a case file from Serekunda Police Station concerning the activity of Leadway Associates(7th accused person) which had its Office at Plaza building in Serekunda.

According to Justice Mikailu, " the initial report received was that on the aforesaid date ,depositors were unable to make withdrawal from their deposits with the 7th accused person as its business premises had been locked and the executives of the company were nowhere to be seen.Pw1 testified that the investigation revealed that the 7th accused, is a registered company which engaged in online forex training without authorization from the National Training Authority and also operates a financial institution without license from the Central Bank of the Gambia, during which it received deposits from members of the public amounting to fifteen million ,seven hundred and seventeen thousands, two hundred and five dalasis".

The trial judge added; " Pw1 further testified that in the course of investigation, they recovered items(which are listed in an inventory-exhibit 8) from the premises of 7th accused,namely;1.Forty two(42)chairs;2; Six(6)plastic chairs;3;Ten(10)office tables;4;one(1)Samsung monitor;5;One(1)Water dispenser; 6;One(1)Dell monitor; 7;One(1)Sharp copier, printer Scanner(three in one); 8;One (1)LG television with two remote control; 9;One (1)Internet server with one wireless gateway receiver; 10;Three(3)Staple machines; 11;One(1)Money counter; 12;Three (3)Stamp pads with three stamps;13;Three(3)Calculators;14.One(1)Universal filing cabinet; 15;One(1)Pin remover;16.Nine(9)Tea cups;17;Four(4)Waste paper basket; 18;One(1)Hat; 19;One Office Cupboard; 20;One(1)Face cap;21;Two(2)Electronic Generators;22;One(1)Bucket with broom; 23;One(1)Switch over for Generator;24;One(1)Bag containing T-shirt of Leadway Associates Ltd; 25.One(1)Bag containing books and papers; 26;One (1)Wall clock;27.Twenty(20)Curtains; 28;Two(2)Prayer mats; 29;Four(4)Electric adaptors; 30;Two(2)Packets of big envelopes;31;One(1)Bag containing complimentary cards; 32;One(1)Bag containing original documents; 33;Two(2)Central processing unit(CPU)for computer; and34;One(1)Numbering machine admitted as exhibits 'X' to ' X' 33 respectively".

On their part, he added, Pw2 to Pw27 testified that between October 2011 and 10th April 2012,they were employed by the 7th accused(Leadway Associates Ltd) as marketing officers, and as marketing officers, they were assigned a duty by the 7th accused to sensitize and convince members of the public to invest and deposit their money with the company, that they performed this duty by convincing unsuspecting members of the public that they would be given forty percent interest on whatever amount they deposit with the company after a period of five weeks.

"The witnesses maintained record of deposits made by persons whom they introduced to the company and records containing the names of depositors maintained by Pw2 -Pw27 was admitted in evidence as exhibits B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,Q,S,T,U,V,V1,V2,V3,V4 and V5 respectively and a cursory perusal of the above mentioned exhibits reveal facts about the transaction".

The witnesses, the judge added, testified that at the maturity date, they went to the premises of the 7th to collect what was due to them but they were told that the proprietors had left the country accused and as such they were not paid their cash deposits and the interest.

The trial judge maintained that Modou Lamin Sonko of The Gambia Police Force (Pw29) informed the court that he obtained cautionary statement from the 1st,4th,5th and 6th accused under words of caution and the said statements were admitted in evidence as exhibits W1,W2,W3 and W4 respectively.

The trial judge further maintained that Alieu Jammeh, an inspector of company testified that the 7th accused was registered as a company after it fulfilled all requirements for registration, adding that the memorandum and article of association of the 7th accused was admitted in evidence as exhibit W.

He also maintained that Yahya Corr of Trust Bank Limited (Pw33) informed the court that on the 19th April, 2012, he received a letter from the police requesting for the statement of account of the 7th accused, the statement of account, annexed to a forwarding letter and the sum of D779,501.00(cash) were admitted in evidence as exhibits W8 and W10 respectively.

Justice Mikailu disclosed that after the end of prosecution's case, the matter was adjourned on three occasions to enable the accused persons come forward to respond to the evidence led by the prosecution but none of them appeared, consequently urged the court to proceed to judgment.

He further disclosed that the accused are charged in count one with the offence of carrying on banking in The Gambia without a valid license, contrary to section 3 (3) of the banking Act cap 79 vol.3 Laws of The Gambia.

The trial posited that the question that arises is that the order made by the said court for trial in absentia was made in pursuant to section 7 of the economic crimes(Specified Offences) Act with respect to count 2 of the charge is can the accused persons be tried in absentia also for the offence in count one ?.

The trial judge pointed out that the banking Act does not provide the procedure to be followed for trial of offences under the Act, but resort is therefore made to section 3 sub-section(1) and(2) of the CPC.

He noted that in view of the provisions of the sections of the CPC, the trial of the accused persons on count one was in accordance with the Criminal Procedure Code and that under the CPC, an accused to be tried before the High Court must not only be present at his trial but must undergo valid arraignment, otherwise the whole proceedings or trial will amount to a nullity, citing sections 216,221,223,224,225 of the CPC, the cases of State(no.2) versus Darboe(no.2)1997-2001 GLR 787 paragraph 3-5,section 24(3) (b) of the constitution of the republic of The Gambia 1997.

According to him, it is trite that an accused is deemed to have submitted to the jurisdiction of the court when he has generally pleaded to the charge(see section221 CPC),therefore, an accused to be tried before the High court must be present during his trial unless for misconduct and by an order he is excluded there from, or the particular enactment under which he is charged makes a special provision regulating the manner of trying or dealing with such offences.

However, the accused persons in this case have never appeared before the court and as such they were not arraigned in accordance with section 216 of the CPC with regards to count one. "Since their plea was not taken, they cannot be deemed to have put themselves upon the country for trial, in the circumstance, I hold as a fact that the accused cannot be tried in absentia on count one and for the reasons, count one is according struck out and the accused persons discharged on count one".

Justice Mikailu said that in count two, the accused were charged with Economic crime and proceeded to read the charge, adding that the lone issue for determination is whether the prosecution has proved the charge beyond reasonable doubt against any or all the accused persons.

The High court judge cited section 5(f) of the Economic crimes (Specified offences)Act: "A person commits an offence if he or she intentionally does any other act or omission which is shown to be detrimental to the economy or to the welfare of the people of The Gambia".

He maintained that Pw1 to Pw 27 who were employed by the 7th accused as marketing officers testified that about 667 people whom they introduced to the 7th accused had deposited their money with the company on the belief that they would be paid forty percent interest after five weeks, whilst Pw30 to Pw32 also explained how they deposited various sums of money with the said company and there are evidence that the company (7th accused) received cash deposits of D15,717,205, from members of the public.

He maintained that it is glaring from the prosecution witnesses that the company had intentionally engaged in a banking business within the meaning of sections 2(1) of the banking Act, but stressed that section3(1) of the banking Act provides that a local banking institution shall not carry out a banking business in or outside the Gambia without a license issued by the Central Bank, authorizing the licensee to do so.

He stated that it is also not in contention that 1st to 6th accused have absconded from The Gambia after collecting cash deposits of D15,717,205.00 from the said people and the depositors were left without their cash deposits and/or interest they were promised, as their disappearance of the accused with the cash deposits is certainly detrimental or economically harmful to the said depositors.

The trial judge posited that on who should bear criminal liability of the conduct of the company (7th accused),it is obvious that the 7th accused is a juristic person clothed with legal personality, having been incorporated as company limited by shares, that though 7th accused is clothed with legal persona, it remains an inanimate body which could only answer charges through its top ranking officers who represent and direct the state of mind of the company and is treated by law as such.

The judge cited section 69 of the Banking Act and adduced that it is clear that the 1st,2nd,4th,5th and 6th accused being the top ranking officers of the company(7th accused) must be held to have created the criminal liability the company must perforce suffer, adding that the cash deposits in issue were received from members of the public with their consent and connivance.

The trial judge held that the prosecution proved count 1 of the charge beyond reasonable doubt against the 1st,2nd,4th,5th,6th and 7th accused persons and however found them guilty and convicted accordingly on the said count.

The trial judge revealed that he found no evidence connecting the 3rd accused (Afolabi Olayemi) with the commission of the crime, noting that apart from the charge, the name of the 3rd accused does not feature anywhere throughout the trial and as for the said reason the 3rd accused was accordingly acquitted and discharged. At this junction, DPP,S H Barkum told the court that the state have no record previous conviction against any of the convicts, but however crave the court indulgence to order the forfeiture of exhibits X toX33 and W10 to the state.

In passing sentence, Justice Abdulahi Mikailu sentenced each of the convicts to imprisonment of 10 years in the alternative to pay the sum of D15,717,205.00. He further ordered the forfeiture of the sum of D779,501.00 and items recovered from the company premises at plaza building in Serekunda.

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Source: AllAfrica

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