Bendu v S (CR APP 5 of 2011) [2011] SLCA 12 (25 August 2011)

CR. APP. 5/2011 IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN: SARAH FIN DA BENDU - APPELLANT AND THE STATE - RESPONDENT CORAM HON. JUSTICE P.O. HAMILTON J.S.C. HON. JUSTICE V.M. SOLOMON J.A . HON. JUSTICE S.A. FOFANAH J. SOLICITORS E.E.C. SHEARS-MOSES ESQ. AND S.K. KOROMA ESQ. FOR THE APPELLANT C.T. MANTSEBO ESQ. AND M. SAMBA (MS.) FOR THE RESPONDENT JUDGMENT DELIVERED ON THE ,3 ^ DAY OF . 2011 HAMILTON J.S.C. This is an Appeal against the Judgment of Honourable Justice N.C. Browne-Marke J.A. delivered on the 10,h of February, 2011. The Appellant was jointly charged with one Hamzza /Uusine Sesay on a TEN (10) Counts Indictment with varioLS offences under the A n ti-C orru p tion A ct, 2008 (ACT No.12 of 2008). The Appellant was acquitted and discharged on NINE (9) Counts and convicted on ONE (1) Count which was Count 7 "Willfully failing to l f " *(s comply with the laws, procedures and guidelines relating to the procurement of property tendering of contracts and Management of funds contrary to S ection 48(2)(b) o f the A n ti-C orru p tion A ct, 2008". The Appellant was found guilty and sentenced to a fine of Le30,000,000/00 (Thirty Million Leones) or Three (3) years imprisonment. The Appellant being dissatisfied with her conviction and sentence has now appealed to the Court of Appeal. However, before considering the arguments and submissions made by both solicitors in their respective synapsis and oral submissions, a brief background of the facts would be of great assistance in this appeal. The background of the case can be brief ly summarized as follows: A committee to look into the problem of traffic congestion in Freetown was set up by the Ministry of Transport and Aviation hereinafter called "MTA" which committee then decided that there was the need to purchase Tow Trucks to help ease the traffic congestion within the Freetown Area so as to create a free flow of traffic. Prior to the setting up of this committee the S ie rra Leone Road Transport Authority hereinafter called “SLRTA" had already budgeted in the 2008 budget for one (1) Tow Truck and Twenty (20) wheel clamps. However the MTA suggested the purchasing of four (4) Tow Trucks and one hundred (100) wheel clamps. The Sierra Leone Transport Authority had decided at first to acquire two tow trucks and 100 wheel clamps. The process for the purchasing of these vehicles were to be conducted by "the Procurement Committee of the SLRTA" headed by the Appellant, Mohamed Tejan Kella the Head of Finance who was PW3 at the trial and 2 < 1 6 also a member of the Procurement Committee and it was he who signed the contract with Mabella Industries Ltd. The Ministry through its Permanent Secretary gave its approval for the procurement of the first Tow Truck and twenty (20) wheel clamps and urged the Appellant to use “her good office to fast track this programme so as to enhance road safety". By an earlier letter from the Ministry dated 20th April, 2008 the Appellant was asked for "strict adherence to procurement procedures" which letter the appellant said she never received. On 23rd April, 2008 PW2 Kelfala Ahmed Yansaneh the current Acting Executive Director then Acting Deputy Executive Director was asked by the Appellant to provide specifications for the purchase of a Tow Truck which he submitted to her. When the two (2) Tow Trucks arrived at the Quay he inspected them and prepared a report and took photographs of them. The contract between SLRTA and Mabella Industries Ltd. was signed on 23rd April, 2008 and or this day the sum of Le419.2000,000/00 for one Tow Truck and twenty (20) wheel clamps was made to Mabella Industries Ltd. by Mohamed Tejan Kella the Head of finance who was PW3 at the trial. There was a correspondence between 12r l1 and 1 3 ^ h May, 2008 between SLRTA and Mabella Industries Ltd. relating to the procurement of a second hand Tow Truck and Eighty (80) wheel clamps and based on the Appellant's letter of 12th May, 2008 addressed to Mabella's Director for the purchase of a minimum of four (4) Heavy Duty towing Vehicles and one hundred (100) wheel clamps "which letter only gave approval for the purchase of Heavy Duty Towing Vehicle and wheel clamps". 5 t* The payment for the second order of additional Tow Trucks and Eighty (80) wheel clamps in the sum of Le606,400,000/00 was made on 14th May, 2008. There were three quotations received which were considered at a Management meeting where it was decided to award the contract to Mabella Industries Ltd. being the "Most responsive". The Procurement Procedure at SLRTA was explained by a retired Procurement Procedure O ffic e r Pius Joseph Mbawa who was not involved in the procurement of these Two Trucks and Alfred Herbert Kandeh the Chief Executive O fficer at the National Public Procurement Agency spells out the manner in which procurement involving large sums of money is carried out but the procurement of these Tow Trucks were not referred to his agency. On the view of the Appellant the procurement procedure was regular end no criminality was involved in the supply of second hand Tow Trucks and not new ones. Count seven (7) upon which the Appellant was found guilty and convicted out of ten (10) counts reads: STATEMENT OF OFFENCE Willfully failing to comply with the laws, procedures and guidelines relating to the procurement of property, tendering of contracts and management of funds, contrary to S ection 48(2)(b) o f the A n ti-C orruption A c t, 2008. PARTICULARS OF OFFENCE SARAH FINDA BENDU being the Acting Executive hi rector of SLRTA , on a date unknown between 18th September, 2008 and 18th September, 2009 at Freetown in 4 t the Western Area of Sierra Leone willfully failed to comply with the laws, of procedures and guidelines relating to the procurement of property, tendering of contracts and management of funds, to wit: she failed to comply with the provisions of the P u b lic Procurem ent A ct, 2004 and the Regulations there under, in awarding the contract for the purchase of the towing trucks to MABELLA INDUSTRIES LTD. The Statement of Offence refers to the contravention of S ection 48(2)(b) o f A n ti-C orru ption A c t, 2008. The date in the Particulars of Offence refers to 18th September, 2008 and 18th September, 2009 willfully failing to comply with Pub lic Procurem ent A c t, 2004 and Regulations o f 2006 and referred specifically to the contract signed on 23rd April, 2008. There is discrepancy in the date of the contract and the Particulars of Offence, that is, 23rd April, 2008 and 18th September, 2008, respectively. The particulars of the offence had a specific date that is 18il' September, 2008. This date falls outside the date of the contract. How can the Appellant fail to follow Procurement within 18th September, 2008 to I81 h September, 2009 when the contract was awarded on 23rd April, 2008? Procurement definitely starts before contract and not after. (Em phasis mine) However, it is the conviction and sentence of the Appellant on this Count 7 that she has now appealed against on the following grounds of appeal: /. That the Learn ed T ria l Judge e rre d in law in fin d in g the A ppellant g u ilty on Count seven (7) when in fa c t a t the tim e o f procurem ent o f the two (2) tru ck s and w heel chm ps was made i t was n ot a crim inal o ffe n ce in S ie rra Leone n ot to fo llo w procurem ent procedure and guidelines. 5 2. That the Learned T ria l Judge e rre d in law in fin d in g the A p pellant g u ilty when in fa c t the e n tire A c t com plained o f w ere fo r and on b e h a lf o f the S LR TA b y Managem ent 3. That the Learn ed T ria l Judge fa ile d to s e t out when the procurem ent p ro cess was commenced and completed. 4. That the Learn ed T ria l Judge m isd irected h im se lf on the issue o f w hether S ection 48(2) can be given re tro sp e ctiv e e ffe c t. H e had th is to say “In A p r il and May, 2008 the fra u d u le n t making o f payment o r an excessive paym ent fo r substandard o r d e fe ctiv e goods was n ot an o ffe n ce n or a p ro scrib e d act. A n d sin ce the A c t is n ot retrosp ective, w hatever may be fa c tu a l evidence probative o f the 2nd A ccused'1 g u ilty o f the o ffe n ce charged she cannot be con victed on count 3. 4, 5 and 6. The some analysis does n ot however apply to counts 1 ,2 ,7 , 8 and 10. It must be noted here that following a ruling on the 11th August, 2011 on the preliminary issue raised by C.T. Mantsebo Esq. Counsel for the Respondent on the determination of Section 28(3) of the Constitution of Sierra Leone 1991 the preliminary issue was overruled and an Order made that the Appeal proceeds, E.E.C. Shears-Moses Esq. Counsel for the Appellant and C.T. Mantsebo Esq. Counsel for the Respondent both relied on their synopsis and also made oral submissions. 6 SROUND 1 On the first ground of appeal Counsel for the Appellant submitted that the Learned Trial Judge held that failure to follow Procurement Procedure vas a wrongful act and that the A n ti-C orru ption A ct, 2008 prescribed the punishment for the contravention of the Procurem ent A c t and Regulations and th a t as o f 2004 it was unlawful not to follow procurement procedure. Counsel further submitted that the Learned Trial Judge failed to distinguish between a wrongful act and a criminal offence, therefore to fail to follow procurement rules and regulations may have been a wrongful act but it was not criminal before the passing of the A n ti­ Corruption A ct, 2008, (h e re in a fte r ca lle d “The A c t") which was enacted on 5th August, 2008. The Learned Trial Judge in his judgment at Page 167 lines 19-26 had this to say: ..... W illfu lly fa ilin g to com ply w ith procurem ent law s was n ot punishable b y fin e o r im prisonm ent p rio r tc 2008 b u t was cle a rly p ro scrib e d by the Public Procurem ent A c t 2004 and 2006 Regulations. I t was cle a rly a w rongful act. W hat in my re s p e c tfu f opinion the 2008 A c t has done is to p re scrib e a punishm ent fo r the contravention o f the 2004 A c t and the 2006 Regulations. A s o f 2004 it was unlaw ful to w illfu lly do an a c t o r om it to an a c t thus contravening the provisions o f the Pu b lic Procurem ent A ct, 2004." The Learned Trial Judge did state as above that it was the A n ti-C orru ption A ct, 2008 that prescribed the punishment for the contravention of the A c t o f 2004 and the Regulations o f 2006. Counsel for the Appellant submitted that this is not the case because under the Procurem ent A c t, 2004 and the 2006 Regulations a procuring unit, bidder or supplier that fails to follow procurement procedure shall 7 ( 0 6 101 be subjected to sanctions provided under the Act applied by the Independent Procurement Review Panel pursucnt to S ection 65(5) o f the Procurem ent A ct\ 2004 which sanction include prohibiting the procuring entity from acting or deciding in an unauthorised manner or from following the correct procedure, reversing the decision, awarding cost etc. Counsel for the Respondent submitted that the Learned Trial Judge acted correctly in law when he held that the failure to comply with procurement procedures and guidelines in contravention of S ection 48(2)(b) o f the A n ti­ Corruption A c t, 2 00 8 was prior to the commencement of the said Act proscribed conduct Constituting a wrongful act which is a criminal offence and that the A n ti­ Corruption A ct, 2008 merely made provision for the punishment of such conduct. With due respect to learned Counsel for the Respondent, it is our humble opinion that the finding by the Learned Trial Judge that failure to follow procurement procedures and guidelines was an offence before the passing of the A n ti­ Corruption A ct, 2008 and th a t it was the A c t o f 2008 that came to prescribe the punishment is totally incorrect since the existence of the Independent Procurement Review Pane! under the A c t o f 2004 clearly had power to provide remedy by sanctions for the violations of Procurement Procedure is well defined. Counsel for the Respondent further argued that what the Appellant has taken issue with is the use by the Learned Trial Judge of the word "Wrongful acts" which is absent in both the Act and the Regulations but went further to contend that the Appellant's wrongful conduct in failing to comply with the applicable procurement procedures and guidelines is criminal can be found by re fe re n ce to the Government 8 Budgeting and Accountability A c t, 2 00 5 S ection 77(1). This sub-section need not be quoted and with due respect to Counsel for the Respondent I do not agree with him when in his synopsis and oral submissions he submitted that S ection 77(1) o f the s a id A c t establishes the fact that in addition to the offence of failing to comply with procurement procedures and guidelines, the acts and omissions of the Appellant also constitutes the offence referred to in S ection 77(1). It is clear that the Appellant was never charged under S ection 77(1) o f the Government Budgeting and A cco u n ta b ility A c t, 2005 nor is it an alternative to S ection 48(2)(b) o f the A nti-C orruption A c t, 2 0 0 8 .I hold that it is completely irrelevant. Counsel for the Appellant submitted that the act of the Appellant was not willful and it was not voluntary since she was under pressure thereby negativing the willfulness of the offence which is an essential element of the offence which is the mens re a of the offence. Counsel for the Respondent submitted that there is a distinction between motive and desire and submitted that the acts of the Minister should not be mistaken with the intention of the Appellant. The Learned Trial Judge at Page 189 said; ".....Exhibit 20, the 2Pd accused explains in vivid language the pressure which was being e x e rte d on h e r b y the then M in is te r o f Transport, M r. Kemoh Sesay H e th reaten ed her, he was harassing h e r to g o through w ith the co n tra ct w ith the minimum o f delay" She h e rs e lf adm its a t Page 102 o f e x h ib it 2 0 t h a t" ........w ith th is tim e fram e given it was im possible to go the procurem ent p rocedu res a s stip u la te d n the NPPA A ct, hence lim ite d bidding*. She chose to aive in to the unlaw ful pressures, and g e t h e rs e lf in to trouble. (Em phasis mine) I'02- 9 With due respect to the Learned Trial Judge, he did make it clear in his judgment that the Appellant chose to give into the unlawful pressure of the Minister and got herself into trouble. This in my humble opinion clearly negative her act being willful and deliberate thereby mens re a which is an essential element of the offence was not proved beyond reasonable doubt which th* prosecution failed to do by leading evidence to the contrary. GROUND 2 In arguing this ground, Counsel for the Appellant raised a first question as to whether the Appellant was acting in her personal capacity by herself or was acting in a group in her capacity as head of the SLRTA Management. PW3 Mohamed Tejan Kella under cross examination said; "The management team com prised o f 2** Accused, Yansaneh, H ead o f Lincence bepartm ent, M rs. A lic e P ra tt, the H ead o f Human Resources, Moham ed L been the A ctin g head o f transport, Ibrahim Sangary, m yse lf as head o f finance, the head o f In te rn a ! A u d it A lb e rt Sambie. The team took the decision co lle ctiv e ly to aw ard the co n tra ct to M abella In d u strie s L td ." . j (Em phasis M ine) This same witness said at Page 48 of the records said: "I was involved in the procurem ent o f the towing vehicles b y SLR TA * Counsel then submitted that it was not disputed that it was Management of SLRTA that acted as the Procurement Committee and decided to award the contract to Mabella Industries Ltd., and that if Procurement Procedures were not satisfied and an award is then made, in law therefore, it was wrong to hold the Appellant 10 \ 0 2 > personally liable for the acts and omissions of the SLRTA Management. I f procurement procedures are not followed the management should be held responsible and not the Appellant. Counsel for the Respondent submitted that the Appellant falls into S ection 48(2) o f the A n ti-C orru ption A ct, 2008 and if a body commits an offence under the Act one person may be prosecuted and the others treated as witnesses since it is irrelevant whether the Appellant acted in con cert with others as her liability is not collective regardless of what the other members of the management team may have done, With due respect to Counsel for the Respondent it is clear that the A n ti­ Corruption A c t 2008 makes provision for the indictment of corporate bodies or management S ection 129(a) o f the A nti-C orru ption A c t, 2008 provides: "W here an o ffe n ce under th is A c t is com m itted b y a body o f persons. I f the body o f persons is a body corporate, every d ire c to r o r o ffic e r o f th a t body shat! be deem ed to have com m itted the o ffe n ce The Crim inal Procedure A c t 1965 (A c t N o.32 o f 1965) S ection 2 0 7 provides in cfear terms: "A corporation may be charged e ith e r alone o r jo in tly w ith another person w ith an o ffe n ce tria b le on indictm ent o r tria b le sum m arily b e fo re a M a g istra te C o u rt' In my humble opinion, since the decision to award the contract was done by management and procurement procedures have not been followed the SLRTA l l 1 \ G)£> Management should have been charged in accordance with S ection 129(a) o f the A n ti-C orruption A c t, 2008. The Learned Trial Judge with due respect was mistaken in holding that the Appellant willfully failed to comply with procurement procedures since it was management that decided on awarding the contract, and not the Appellant unilaterally. GROUND 3 This ground of appeal relates to the commencement and conclusion of the procurement process. Counsel for the Appellant submitted that the Learned Trial Judge failed to explain the bid process, its financial evaluation and the amount of contract. He further submitted that the procurement process end with the signing of the contract (exhibit 7) on the 23rd April, 2008 by PW3 for and on behalf of the Acting Executive Director on behalf of the Authority at which time S ection 48 o f the A n ti-C orru ption A c t, 2008 was in applicable. Counsel fo r the Respondent argued that the commencement and determination of the procurement procedure does not end at the signing of the contract since the contract deals with what the parties intended to do. Procurement he submitted relying on S ection 2 o f the P u b lic Procurem ent A c t 2004 starts well before the signing of the contract and continues well after the signing of the contract. He then submitted that procurement is complete when the goods or services are delivered whether accepted or not as it is a continuous process and in this case in October, 2009 when the A nti-C orru ption A ct, 2008 was operative. In my humble opinion the procurement procedure ends as at the signing o f the contract on 23rd April, 2008 since what follows there after (contract 12 I 06 administration and modifications) are mere modalities intended at executing the contract since if the goods or services are undelivered due to supervening events there are other legal processes available for its enforcement. As at 23rd April, 2008 the Anti-Corruption Act, 2008 was inoperative. GROUND 4 This fourth ground of appeal raised by fhe Appellant is that the A n ti-C orruption A c t 2008 is not retrospective and that at the time the offence was committed (S ection 48) it was not an offence. Counsel for the Appellant submitted and I agree with him that it is a presumption in law that a statute is not retrospective unless it is so provided in the statute itself. However, nowhere in the A n ti­ Corruption A c t, 2008 is it stated that the Act is retrospective. The A n ti-C orru ption A c t 2008 (A c t No.12 o f 2008) became operative as at 5th August, 2008 and has a repeal and saving clause but with no retrospective effect. S ection 144(4) o f the A nti-C orru ption A ct, 2008 provides: "AH investigations, prosecutions and o th e r le g a l proceedings in s titu te d o r commenced under the A c t hereby repealed and w hich have n ot been concluded b e fo re the commencement o f th is A c t, shad be continued and concluded in a ll re sp e cts a s i f th a t A c t has n ot been rep ea led * Counsel for the Appellant stated in his synopsis that the offence of failure to follow procurement procedures and making excessive payment for sub standard goods were not in the A n ti-C orru p tio n A ct, 200 0 (th e repealed A c t) b u t a creation o f the 2008 A ct. 13 l o f The Learned Trial Judge failed to explain whether failure to follow Procurement Procedures was an offence before the passing of the 2008 A c t or whether it was just a wrongful act for which there are sanctions provided by S ection 65(5) o f the Pub lic Procurem ent A c t, 2004. Counsel for the Appellant then submitted that the Learned Trial Judge erred in holding that count 7 could not be in the same position as Counts 3,4,5, and 6. With due respect to the Learned Trial Judge, the procurement process came to an end on the signing of the contract (exhibit 7) as by P A R T X R e g u la tio n s 140-146 o f the Public Procurem ent Regulations\ 2006 what happens after the signing of the contract are “Contract Administration and contract modifications". The acts and conduct of the Appellant before the passing of the A n ti-C orru ption A ct, 2008 were neither criminal nor was it in any way an offence, and for such wrongful acts there is S ection 2 0 (Independent Procurem ent Review Panel) th a t can provide a rem edy pursuant to S ection 65(5) o f the Pu b lic Procurem ent A c t 2004 unless the complaint is dismissed. Finally Counsel for the Respondent has urged this Court to hold in any event, that there are cogent and valid basis upon which the Appellant's conviction could be upheld relying on S ection 5 8 (2 ) o f the C ourts A ct, 1965\nW \c\\ provides'. "On an appeal against conviction the C ourt o f Appeal may, notw ithstanding th a t th ey a re o f opinion th a t the p o in t ra ise d in the A ppeal m ight be decided in favour o f th e appellant, dism iss the appeal i f they con sider th a t no su b sta n tia l m iscarriage o f ju s tic e has o ccu rre d ." 14 As Oguniade JSC o f the Nigerian Supreme Court in the case o f Solomon Adekunta v. The S tc te (2006) 6 S.C.N .J. 2 7 5 a t 2 9 0said: '!M isca rria g e o f ju s tic e is a fa ilu re o f ju stice . I t means fa ilu re on the p a rt o f the C ourt to do ju stice . I t is ju stice m isapplied. I t is an i l l conduct on the p a rt o f the C ourt which amount to an in ju stice. (Em phasis mine) In my humble opinion there is no stretch of imagination in which it can be said in this case that there was no miscarriage of justice. The absence of men re a even makes it clear that the conviction should not stand. Similarly, considering the Learned Trial Judges various contradictions in his judgment makes it a proper case in which an application of the provision of S ection 58(2) o f the C ourts A c t 1965 would not be right and I would therefore quash the conviction. For all the above reasons, the Appellant's appeal is allowed. Her conviction and sentence are hereby SET ASIDE and an ACQUITAL AND DISCHARGE be substituted. Accordingly if the fines imposed was paid by the Appellant I hereby order that it be refunded. " • 162 HON. JUSTICE V M SOLOMON J.A . 15