Justice Abdulahi Mikailu of the
By an amended indictment, the accused persons were charged with the offences of carrying on banking business in The
The particulars of offences stated that the accused persons between the months of
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
According to the judge, in compliance with the order of the court, the information was published at page 15 of the
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.
The trial judge adduced that
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
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
On their part, he added, Pw2 to Pw27 testified that between
"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
The trial judge further maintained that
He also maintained that
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
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
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
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
He stated that it is also not in contention that 1st to 6th accused have absconded from The
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 (
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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