Donald Bash-Taqi v Attorney General Minister of Justice (CIV APP 52 of 2020) [2022] SLCA 15 (21 November 2022)

no —{20- c1O.APP NO, 52 2020 !N THE COURT OF APPEAL OF SIERRA LEONI: " IN THE MATTER OF THE PROVISIONS OF SECTION 147-149 OF II: CONSTITUTION OF SIERRA LEONE IN THE MATTER OF THE CONSTITUTION INSTRUMENT NO.64 OF 2018; THE COMMISSION OF INQUIRY (EXAMINATION, INQUIRY AND INVESTIGATION) NOTICE (1)2028 IN THE MATTER OF THE FINDINGC OF THE HON.MR JUSTICE BIOBELLE GEORGEWILL COMMISSION OF INQUIRY DATED MARCI! 2020 IN THE MATTER OF THE WHITE PAPER PUBLISHED BY GOVERNMENT OF SIERRA LEONE BETWEEN Za Se Ks |ASH-TAQL 5 ory “APPELLANT DR DONALD BASH-TAQ orcs APPELLANT AND id AF aaa cing ‘THE ATTORNEY GENERAL AND x el RESPONDENT ye MINISTER OF JUSTICE Cares

Coram

HON. JUSTICE MRS BINTU ALHADI JA(Presiding) HON JUSTICE KOMBA KAMANDA JA HON MRS JUSTICE TONIA BARNETT COUNSEL. LYILLA FOR APPELLANT A SUWU KENDOII FOR RESPONDENT JUDGMENT DELIVERED ON THE 21°" DAY OF NOVEMBER 2022 TBARNETEIA. ft. oe 0/7 This appeal emanates from the Fiaings ofa commission of inquiry Constitutional tnstrument * No. 6f of 2018 established by the President His Hxeelleney Retina Bripadir Julius Maad Dio pursuant to Section 147 ofthe Constitution of Sierra Lee Act No. 6 af 1991 (herein aller refer toa he 1991 Comstntion) In hat regard. Jastice Hike Cieongesill Connmuission inquiry ws set ap with hint as the Chaienean Soke Connmssioner His tems ot eeference as pel wut nt Setion 4 uf the Constitutional tsdrantent bere tne Im

; —14Ul— corrupt practices and other related matters of persons who were President, Vice President ‘Ministers, Ministers of ‘State, Deputy Ministers, Heads and chairmen of Boards of Parastatals, to investigate whether assets were legally or illegally acquired, whether persons in control of government funds were negligent reckless, dishonest and or complacent or

e otherwise abused their office thus causing huge financial loss to the government and People of Sierra Leone. The Chairman and Sole commission upon conclusion of its investigation submitted its report thus making adverse findings, recommendations and report against the Appellant (see ppage26-28.). It is against the findings of the commission that the Appellant being dissatisfied has appealed in line with Rule 9 (2)(3) of the Court of Appeal Rules 1985. By way of a Notice of Appeal dated the 27/10/2020, the Appellant caused to be filed 19

Grounds of Appeal

The grounds of appeal are:

1. That the sole commissioner erred in law by exercising personal jurisdiction over the appellant being that the Appellant was not covered by the terms of reference contained in in the Constitutional Instrument No 64 of 2018 which deals with investigating President, Vice President, Ministers, Deputy Ministers, Heads of Parastatals Departments, Agencies within the period of November 2007- April 2018

2. That not being covered by the Terms of Reference, he however went on to make adverse findings and recommendation against the Appellant

3. That the sole Commissioner erred in law by exceeding his jurisdiction conferred on his commission by constitutional instrumeit No 64 of 2018 by transforming persons not within the remit of the terms of reference and without any such authority.

4. "That there was no evidence before the sole commissioner to have warranted him to find that the Appellant collaborated with any person in an act of corruption, dishonesty or abuse of office that he acted wilfully or complacently to have caused financial loss to the government of Sictra Lcone.

5. ‘That the Sole Commissioner erred in law and fact in making adverse findings against the Appellant without pointing any evidence submitted against the Appellant and notwithstanding same, the Sole Commissioner made generalised findings thus breaching the Appellants right of equal protection under the law.

6. ‘That the Sole Commissioner erred in fact in making adverse findings against the ‘Appellant without citing or analysing any evidence in the report which found that the Appellant was a civil servant/Case Management Pillar lad at Emergency Operation Centre EOC as the person charged with the responsibility to manage, disburse and authorise disbursement of funds at EOC in the Ministry of Health,

7. ‘That the Sole Commissioner erred in law by referring to the Appellant as an indicted person thus importing the eriminal standard when the Sele Commissioner was, ‘mandated by the terms to inquire into assets and pecuniary resources of the eategories of persons listed in the Constitutional instrument

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8. That the Sole Commissioner erred in faet in analysing the evidence at para 4 when he stated that persons of interest did not show up before the commission though there is evidence that the Appellant did as a person of interest but wars told hy the Sole Commissioner alter no evidence adduced aysainst hit by the state to feave stud promised to et ont hi if nel be

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9, ‘That the Sole Commissioner erred in law in proceeding to set a standard of prima facie case not set out in the Constitutional Instrument and crroncously proceeded to ‘seta standard of a prima facie case not set out in the constitutional instrument and

= finding erroneously that once a prima facie case is established in « commission of . inquiry, a person of interest has no choice but is compelled to testify and on this basis, erroneously proceeded to make a finding against the Appellant despite the fact that no evidence was led by the state which implicated the Appellant in any material way in the management and disbursement of Ebola funds whilst he served at the emergency Operation Centre(EOC) at the Ministry of Health.

10. That the said Hon. Sir Justice Biobele Georgewill sitting as Chairman and Sole ‘Commissioner erred in law in proceeding to set an arbitrary standard of prima facie case not set out in the constitutional Instrument and proceeded to erroneously evaluate evidence not individually involving the Appellant but in a group involving other persons of interest utilizing the arbitrary standard of prima facie.

11. That the Sole Commissioner erred in fact in making adverse findings and recommendations against the Appellant herein a medical doctor/civil Servant in that at page 34 and 38 of his report, the commissioner made general findings and did not make any specific findings against the Appellant and in particular did not specify how the Appellant misappropriated public funds at EOCMinistry of Icalth and how the ‘Appellant abused office and his findings and conclusions in this report are therefore ‘made without any evidential support.

12. That the said Hon. Sir Justice Biobele Georgewill sitting as Chairman and Sole ‘Commissioner of the Commission of inquiry held in Sierra I.cone pursuant t0 Constitutional Instrument No. 64 of 2018 lacks Jurisdiction to sit as Commission established under the Constitutional Act No 6 of 1991 in that the Rules of Court Committee which should by Constitutional Instrument design the rules and procedures for the conduct of Commissions of inquiry in Sicrra L.cone did not do so by Constitutional instrument and the commissioner's reliance in his Report on the practice direction developed by the Three Commissioners for the conduct of the Commission's hearings is not a substitute to the Rules of procedure and Evidence to be designed by Rules of Court Committee for the functioning of the Commission of Inquiry in Sierra Leone pursuant to Seetion 150 of the referred Constitution of Sierra Leone, Act No. 6 of 1991

13. That the absence of clear rules of procedure developed by the Rules of Court ‘Committee pursuant to section 150 of the Constitution of Sierra L.cone Act No. 6 of 1991 deprived the Appellant of fairness in the inquiry in that the Appellant was informed by the commissioner that he would be called upon if needed and there was a legitimate expectation on the part of the Appellant that he would he notified by the commission which had promised to eall him before making any adverse finding against him thus depriving the Appellant of his due process rights an his protection

fs tunder the kaw guaranteed by the Constitution of Sierra Leone. Act no.6 of 199% the Appellant was deprived of his right to fair hearing, Further to that that the Commissioner promsised to eall the Appellant if need be but fited to dh so,

14. That Section 6(1) of the Constitutional Instrument No. 64 which pray the

Commissioners powers to modify sand aalapt rales of evidence is uaconsttti

1991 in that it impugned section 6 subjects to the procedures and practices of the hearings of the commission to the discretion of the commissioners without following ‘due process rules and procedures thus subjecting the entire process to uncertainty, Unpredistebility and lack of protection for the App=tant under the law. .

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15. That the said adverse findings, conclusions and recommendation of the Chairman and sole commissioner against the Appellant as well as the confirmation of same by the Government White Paper aforementioned did not support the evidence that was available to the commission or ought to have been made available to the Commission had the Appellant been grated audience by the Chairman and Sole Commissioner before arriving at the said findings, findings, conclusions, recommendations and confirmations had there been clear procedures in place to be followed by the commission of inquiry developed by the Rules of Court Committee as mandated by section. 150 of the Constitution of Sierra Leone Act no 6 of 1991.In particular evidence subsists on the record to show that the Appellant had legitimate expectation that he would be called by the Commissioner who had indicated to the Appellant that he would call on the Appellant ,ifneeded, by the Commission. lividence subsists farther to show that during the short period in which the Appellant served as Case Management Pillar Lead at EOC, Ministry of Health, he did not eal with the management and disbursement of Ebola funds and did not work for National Ebola Response Centre(NERC).

16. That the Hon. Sir Justice Biobele Georgewill siting as Chairman and sole Commissioner of the commission of inquiry held in Sierra I.cone pursuant to Constitutional Instrument No 64 of 2018 erred in law/procedure in making adverse findings and recommendations against the Appellant hercin without granting him an ‘opportunity to be heard as a person of interest in order to be able to present his own side of the case or in order to respond against any allegation against him, which the ‘Appellant contends none exists or was led against him at the hearings of the ‘commission because he was told to leave by the Commissioner and would invite him again to the commission iff required

17."That the facts and evidence available to the chairman and sole Commissioner during proceedings of the Commission did not support his specific findings, conclusions and recommendations made against the Appellant that he (the Appellant) misappropriated public funds and or abused his office.

18. That the said Hon Sir Justice Biobele Georgewill sitting as Chairman and Sole Commissioner of inquiry held in Sierra Leone pursuant to Constitutional Instrument No 64 of 2018 erred in fact there is only one item of evidence that is the bola Audit Report tendered by Aiah Ghondo Tugbawa(CW3) in which the Appellant's name was mentioned against Ie 33,00,00(Thirty three million ) ina table and could not have provided any evidential basis for the sole commissioner to rciurn adverse findings of iisappropriation of public funds and abuse of office against the Appellant because the narrative of the audit report provided no details /no findings ayainst the Appellant

. and did mention in anyway how and why the Appellant's name was mentioned in the table contained in the report fat that would have been ww to the Conmaissioner had the Commissioner called on the Appellants he promised dav the ease af the prvcees ins

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