By TREVOR WAHUNE
THE State has appealed a National Court decision dated Oct 11 that ruled it reimburse K2.65 million to former Nasfund board chairman Jimmy Maladina which he had paid to the State as restitution when he was convicted of fraud charges in June, 2015.
According to the State’s application obtained by The National yesterday, it was filed on the grounds that primary Judge Oagile Key Dingake was misled by Maladina when he said that he had paid money totalling K2,650,000 to the State, and that he was entitled to a refund after he was acquitted of the charges in the Supreme Court in 2016.
The appeal also states that Maladina never personally paid restitution.
The State, through lawyer Henry Monei, from the Office of the Solicitor-General, filed the Notice of Appeal dated Nov 19, also raised issues that:
- The judge also relied on uncontested evidence that Maladina paid restitution to the State;
- the judge mixed fact and law when he assumed that Isles Builders and Contractors Ltd was indebted to the plaintiff (Maladina) of the amount K2.65 million as consultancy fees when there was no corroborative evidence showing that he did so, which was a relevant requirement to the assessment of debt; and
- the judge had failed to take judicial notice whereby Maladina had the onus of proving his losses, and it was not sufficient to rely on assertion in his statement of claims where there was a breach of natural justice.
The appeal would therefore be seeking to obtain an interim order on the National Court orders dated Oct 11 to compel the State to pay K2.65million to Maladina pending a hearing and a final judgment on the appeal:
- that orders for State to pay K2.65million to Maladina be dismissed; and,
- the National Court proceeding WS No. 635 Of 2017 Jimmy Maladina the State be reinstated before another judge for a proper trial on assessment of damages.
Meanwhile, a source told The National that Nasfund would be filing an application to join the proceedings in order to assist the State with critical evidence given that they had an interest in the outcome of the judgment in the National Court where they were conveniently left out as a party. Maladina, in June 2015, was convicted with charges of conspiring to defraud and misappropriating K2.6 million, being the property of National Provident Fund (NPF, now Nasfund) between Feb 26 and July 30, 1999.
Maladina was given an eight–year suspended jail sentence in July 2015 after he paid K2.65million in restitution ordered by the court and was also given a two-year good behaviour bond.
Maladina on April 20, 2016, appealed his conviction in the Supreme Court and was acquitted of the chargeson grounds that the trial judge made his decision on his sentence using circumstantial evidence.