Alimu Bah V The State (CR APP 52 of 2010) [2014] SLCA 1 (6 May 2014)

7 CR APP 52/10 34 IN THE COURT OF APPEAL OF SIERRA LEONE ALIMU BAH ~ APPELLANT. v THE STATE - RESPONDENT COUNSEL: ND TEJAN-COLE ESQ for the Appellant RS FYNN INR for The State

Coram

THE HONOURABLE MR JUSTICE NC BROWNE-MARKE, JUSTICE OF APPEAL” THE HONOURABLE MR JUSTICE E E ROBERTS, JUSTICE OF APPEAL THE HONOURABLE MS JUSTICE V SOLOMON, JUSTICE OF APPEAL JUDGMENT DELIVERED THE Gl say OF MAY,2014. THE APPEAL : .

1. The Appellant has appealed against his conviction and sentence in the : High Court on 27 July,2009, The Honourable Mrs Justice M Sey,

presiding. He originally filed 5 grounds of appeal, and by Notice dated 13

December,2011, he added another 3 grounds, making & in all. They are as

follows:

i. The Trial Judge erred in Law by not establishing on whom the legal hada is for the implementation of the project when the Appellant is just a conduit for receiving and transmitting correspondence of the Sierra Leone Football Association. (SLFA)

ji, The Trial Judge erred in Law to have inferred that PW3 was under employment of SLFA when exhibits D & F clearly show that PW3 was not employed as education officer.

iii, ‘The Trial Judge erred by not adverting her mind to the case of Lewis v Lethbridge [1987] Crim L R 59 ‘that defendant need not have been under an obligation to deal with the particular monies or property handed ove’ it is sufficient that he is under an e'sligation to keep in existence a fund eguivalent to that which he has

. received’ even though it is clear in the evidence that a single & - foreign exchange account is being operated.

: iv. The Trial Judge erred in Law by not verifying in whose name the draft cheque no. 2967 was written to ascertain who had the legal obligation to implement the project.

v. The Trial Judge erred in Law by not distinguishing the cases referred to of Davidge v Bunnett (1984) Crim L R 297 and Lewis v Lethbridge (supra) in reaching a decision and only stated "we are told in the judgment that the justices clearly preferred Davidge v Bunnett (1984) Crim L R 297 to Lewis v Lethbridge (Supra) which is the case relied on by defence Counsel.”

vi. The Learned Trial Judge erred in law when she convicted the. Appellant of the of fence of Misappropriating of Funds (sic) donated to the Sierra Leone Football Association by the NA Confederation of African Football. On & date of the alleged commission of the offence, the money was not the fund of the confederation.

vii, The Learned Trial Tudge was wrong to apply, decide and to convict the Appellant based on the construction/interpretation of

. dishonesty of subsection 3 of section 5 of the Theft Act,1968, an

: Act of Parliament inapplicable in Sierra Leone. The Laws of Sierra : Leone are contained in Section 170 of the Constitution of Sierra Leone,1991 - vide pages 65-68 of the Record.

viii, The Learned Trial Judge failed to advert her mind to the doctrine of virement which the Sierra Leone Football Association exercised or executed or used.

2, The original grounds of Appeal were settled and filed by Mr Africanus

Sesay, whilst the additional ones were settled and filed by Mr Tejan-Cole.

Tt appears that the original grounds were filed in a hurry by Learned

Counsel, The language used is imprecise in some instances, and clearly, the

|, grounds are of mixed fact and law, rather than of Law alone. This same criticism applies to Ground 8, filed by Mr Tejan-Cole, Also, Mr Sesay omitted the courtesy of referring to the trial Judge as the Learned Trial

Tudge. We would urge Counsel to adhere to the cordiality usually

‘extended to the Presiding Bench in the lower Court, by addressing the

occupant of that Bench as the Learned Trial Judge. rther than the

casual expression, trial judge

, THE INDICTMENT 7 ae

.

3. The Indictment on which the Appellant was tried was dated 15 July.2009 ne end reads as follows: : COUNT 1

Statement of Offence

Misappropriation of Donor Funds, contrary to Section 13 of the Anti- Corruption Act,2000 (as amended)

Particulars of Offence

ALIMU BAH ona date unknown between 13" December,2006 and 31° December, 2008 at Freetown in the Western Area of Sierra Leone, being the General Secretary of the Sierra Leone Football Association dishonestly appropriated the sum of USD5,200 being funds donated to the Sierra Leone Football Association by the Confederation of African Football

The Trial

4, The Trial was by Judge alone as Ordered by the Learned Trial Judge on : 17 August,2009 on the written Application of the then Attorney-General . & Minister of Justice, dated 14 July,2009 and on the oral Application of . Prosecuting Counsel, C M Mantsebo esq. The Trial commenced before bs SEY,J on 17 August 200A, The prosecution called four witnesses to Ns testify on its behalf. The Appellant gave evidence on his own behalf, and called one witness, {\r Nahim Khadi, the then President of the SLFA. At A the end of the wil on Counsel for the Appellant, A S Sesay esq submitted a written closing address at pages 31-34 of the Record, and Mr ‘Mantsebo submitted one for the prosecution, at pages 35-56 of the Record, The Learned Trial Judge's Judgment is at pages 58-70 of the Record, After reviewing the evidence led by both sides, she made several

Findings

LEARNED TRIAL JUDGE'S FINDINGS

5. At page 62, she found as follows: "Having carefully considered the evidence adduced by the defence, I must state that I find significant inconsistency and contradictions in the testimony of the accused and his -ibitness, DW For instance DW1 said they spent USD3,988 on the equipment, yet the accused told the Court that out of the USD4,000 7 withdrawn, it was USD3,500 that was used to purchase the equipment.

7 Also, DW1 stated that the USD4,000 was used to purchase office ue equipment immediately after he left for the UK but the accused : maintained that the equipment was purchased much later. Again they differ with regard to the items purchased. The accused said only a laptop and an overhead projector were purchased, whereas DW1 stated that in addition to these two iteins, a camcorder and a camera were also purchased. As regards the amount given to PW3 as allowances, the ‘accused on the one hand said that PW3 was paid USD500 out of the USD4,000 withdrawn on the ¥° January,2007 for his trip to Cairo but later the accused contradicted himself by stating that the USD5O0 was taken from the President of SLFA to pre-finance PW3's trip. It is also noteworthy that even though the accused and DW1 have stated that they did not regard PW3 as the Education Officer they nonetheless gave him allowances to attend conferences at Cairo and Tunisia in that capacity.”

6. Her findings in this respect were quite correct, as she had quoted the evidence led by both sides, quite correctly. She had chosen to review the ‘Appellant's case first, perhaps because, his came after the prosecution, Usually, a trial Judge begins with the case for the prosecution, and ends : with that for the defence, but there is no hard and fast rule cbout the . sequence. So long as the Judge bears in mind that the legal burden of. . proof rests on the prosecution at all times, save in the exceptional case : where statute imposes it on the accused, this approach cannot be seriously challenged. The duty of the trial Judge is to assess the facts of the case fairly, and to apply the Law to the facts as found. LEARNED TRIAL JUDGE'S HANDLING OF PROSECUTION'S CASE

7. She began, as recorded at pages 1-2 of the record, by setting out succinctly and clearly, the case for the prosecution. She said: "Briefly put, the prosecution's case is that the accused dishonestly appropriated the sum of USD5,200 which was part of the sum of USD6,000 that had been donated to the SLFA by CAF. The instructions given by CAF were as per exhibit C to the effect that the amount should be used as follows:"3000 US Dollars to buy of fice equipment such as LCDs, laptops, beamers, overhead projectors, CDs and DVDs etc.... - 3000 USdollars to cover 50% of the salary of your Education Director Mr Alphan S. Coker - for the period from f" Jaly,2006 to 30” June, 2007, The prosec:'tion has argued that there was a legal obligation on the accused and the SLFA to utilize the funds from CAF for their intended purposes.”

The pages read for this report end here. The judgment continues in the PDF.