High Court sus­pends crim­i­nal case against Nige­rian busi­ness­man

Chronicle (Zimbabwe) - - National News - Mashudu Net­sianda Se­nior Court Re­porter

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. — @mash­nets

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