Emmanuel Ekundayo Constant Shears-Moses v The state (SC APP 1 of 2020) [2022] SLSC 2 (22 May 2022)

1 » 2 FO Ey rc SC. CR. APP. NO. 1/2020 fal 3 IN THE SUPREME COURT OF SIERRA LEONE (Sema /7y

IN THE MATTER wtS EMMANUEL EKUNDAYO CONSTANT SHEARS-MOSES - Appellant VS THE STATE - Respondents

Coram

HON. MR JUSTICE ALLAN B. HALLOWAY JSC HON. MR JUSTICE ALUSINE S. SESAY JSC HON. MR JUSTICE MANGAY F. DEEN-TARAWALLY JSC HON. MR JUSTICE SENGU M. KOROMA JSC HON. MR JUSTICE IVAN A. SESAY JA COUNSEL C.F. MARGAI ESQ. & C. VANDY ESQ. for the Appellant O.V, ROBIN-MASON ESQ. for the Respondents

Judgement

DELIVERED this I|Ikday of AP@iL 2022 EMMANUEL EKUNDAYO CONSTANT SHEARS-MOSES, the Appellant herein being dissatisfied with and aggrieved by the Decision/Judgement of the Court of Appeal comprising the HON. JUSTICE E. TAYLOR-KAMARA JA, the HON. JUSTICE S.A. BAH JA and the HON. JUSTICE F.B. ALHADI JA delivered by the HON, MR JUSTICE E. TAYLOR-KAMARA JA on the 10" August 2020, hereby on the 3% September 2020, appeal the said Decision/Judgement on several grounds, Ground One (1) of which inter alia includes the Grounds that the Learned Justices misdirected themselves in law as to whether the offence charged is laid down by the ANTI-CORRUPTION ACT NO. 12 OF 2008 or by an explanation by the marginal note, misdirected themselves when they stated, that the seal of the ANTI CORRUPTION COMMISSION is not required to indicate that it is the deed of the commission and misdirected themselves when they stated, that there is a distinction

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2 te eed ; between a bill of indictment and an indictment in Section 130 of the CRIMINAL PROCEDURE ACT 1965 and therefore the various authorities on when a bill of indictment becomes an indictment do not apply and that the Learned Justices stated that the offence charged is a specific one different from misconduct in public office and so ignored that the marginal notes in the ANTI- CORRUPTION ACT NO, 12 of 2008 is a short form of misconduct in office which encapsulates Abuse of Office. | uphold the view, that of the questions of law which were raised from the Grounds of Appeal aforesaid, at the Court below, Two (2) of them are the same questions of law which have been raised at this Court, these being, that the Anti-Corruption Commissioner is not the proper person to sign an Indictment pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965 and that there is no statutory offence of Abuse of Office created by Section 42(1) of the ANTI-CORRUPTION ACT 2008. | am of the view, that it would be best to first address the question of law posed, that the Anti-Corruption Commissioner is not the proper person to sign an indictment which has been preferred, pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965. The application of the said Section is subject to Section 136 of the CRIMINAL PROCEDURE ACT aforesaid, the same which provides that no Indictment shall be signed or filed in respect of any criminal offence unless there has been a committal for trial consequent upon a previous preliminary investigation except in case of Indictments which by law may be preferred by the direction of or with the consent in writing of a Judge. Section 130 aforesaid provides that: ‘Subject to Section 136 above of the CRIINAL PROCEDURE ACT 1965 an Indictment charging any person with an offence triable before the High Court may be preferred by any person before a Court in which the person charged may be lawfully indicted for that offence and where an Indictment has been so preferred, a Law Officer shall sign the Indictment and it shall there upon be proceeded with accordingly’. The principal contention of C.F. MARGAI ESQ. of Counsel for the Appellant, is that further to the preferment of the Indictment charging the Appellant of an offence under the ANTI-CORRUPTION ACT 2008 and pursuant to Section 430 of the CRIMINAL PROCEDURE ACT 1965, the said Indictment should be signed by a Law Officer. C.F MARGAI ESQ. submits, that since the Anti- Corruntian Commissioner is not a law Officer the sianina of the said

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Indictment by him violates Section 130 aforesaid, the said Section which has not been repealed, nor is a Law Officer signing an indictment as stipulated in Section 130 aforesaid, an act which has been excluded by the ANTI- CORRUPTION ACT 2008. It cannot be disputed, that the whole of Section 89 of the ANTI-CORRUPTION ACT aforesaid, which is relied upon by the Respondents as giving authority for the Anti-Corruption Commissioner to sign an Indictment is completely silent on the signing of an Indictment. It gives authority only for the Anti-Corruption Commission to prefer an indictment. It would seem then that Sections 130 of the CRIMINAL PROCEDURE ACT aforesaid, implies that when an indictment which has been preferred by the ANTI-CORRUPTION COMMISSION, must be signed by a Law Officer before it is filed and served on the Accused person(s), But this position seems to have been contradicted by Section 89 of the ANTI-CORRUPTON ACT 2008 which provides in part as follows: ‘An Indictment preferred by the Anti-Corruption Commission shall be filed and served on the Accused’... The above section of the ANTI-CORRUPTION ACT 2008 amplifies the fact that the whole of Section 89 of the said ACT is silent on the signing of an Indictment preferred by the Anti-Corruption Commission. It cannot be disputed that it would seem as if the above section implies that an Indictment preferred by the Anti-Corruption Commission need not be signed. It shall immediately, after such preferment be filed and served on the Accused person(s). Obviously this cannot be the position of the law, by reason that before an Indictment is filed and served on the Accused person(s) it must not only have been preferred, it must be signed. | hold the view, that it is by reason that it cannot be the law for an Indictment to be filed and served on the Accused person(s) immediately after it is preferred without it been signed and by reason that Section 89 (4) of the ANTI-CORRUPTION ACT 2008 does not fill in that gap requiring a signature is what | feel has provoked C.F. MARGAI ESQ. to conclude that this gap which Section 89 (4) of the ANTI-CORRUPTION ACT aforesaid, creates ought to be filled up by the provisions of Section 130 of the CRIMINAL PROCEDURE ACT 1965, in that it is a Law Officer who shall sign an Indictment which has been preferred. C.F MARGAI ESQ of Counsel for the Appellant, reinforces his conclusion above by his submission that Section 130 of the CRIMINAL PROCEDURE ACT 1965 is still good law and has not been repealed nor is a Law Officer sioning an Indictment as stinulated in Section 130 aforesaid an act which has

Te RAT \c Weo"e a 4 3 /* Seca ey SUSTRS been excluded by the ANTI-CORRUPTION ACT 2008. | hold the Sa” conclusions of C.F MARGAI ESQ. will be upheld if | cannot show anything contrary to the law which he has submitted reinforces his conclusion aforesaid. In other words, if | cannot show that Section 89 of the ANTI-CORRUPTION ACT 2008 gives authority to the Anti-Corruption Commissioner to sign an indictment after the same has been preferred and or | cannot show that a Law Officer signing an indictment as stipulated in Section 130 aforesaid is an act which has been excluded by the ANTI-CORRUPTION ACT aforesaid. In considering the submission of C.F MARGAI ESQ, that the signing of an Indictment by a Law Officer that has been preferred by the Anti-Corruption Commission is still good law because Section 130 of the CRIMINAL PROCEDURE ACT 1965 has not been repealed, reference will be made to Section 108 of the CRIMINAL PROCEDURE ACT aforesaid, the same which provides as follows: ‘where a person is before the Magistrate charged with an offence which is triable exclusively by the High Court or in the opinion of the Magistrate ought to be tried by such Court, the Magistrate shall conduct a preliminary investigation into the charge alleged, in accordance with the procedure laid down in PART Ill of the CRIMINAL PROCEDURE ACT

It cannot be disputed that all offences created under the ANTI-CORRUPTION ACT 2008 are criminal offences and that by virtue of Section 89 (1) of the said ACT, the said offences are triable exclusively by the High Court. This being the case, and by the application of Section 108 of the CRIMINAL PROCEDURE ACT aforesaid, a Magistrate should conduct a preliminary investigation into the charge alleged of an offence under the ANTI- CORRUPTION ACT aforesaid, in accordance with the procedure laid down in PART Ill of the CRIMINAL PROCEDURE ACT aforesaid. It is the case however, that by virtue of Section 89(2) of the ANTI-CORRUPTION ACT aforesaid, an Indictment relating to an offence under the ANTI-CORRUPTION ACT, shall be preferred without any previous committal for trial, meaning thereby, that an exception is made for the compliance of the conduct of a preliminary investigation by a Magistrate in accordance with Section 108 of the CRIMINAL PROCEDURE ACT aforesaid, for all offences under the ANTI- CORRUPTION ACT aforesaid. In this regard, it cannot be disputed that Section 89(2) of the ANTI-CORRUPTION ACT aforesaid, gives authority to the Anti-Carnuntion Commission to orefer an Indictment of a criminal offence

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exclusively triable at the High Court without a Magistrate conducting a preliminary investigation into the charge alleged, It is also true to say that the said Section 89(2) specifically excludes such a criminal offence to be subject to the conduct of a preliminary Investigation by its provision that an offence under the ANTI-CORRUPTION ACT shall be preferred without any previous committal for trial and it shall in all respects be deemed to have been preferred pursuant to a consent in writing by a Judge granted under Section 136(1) of the CRIMINAL PROCEDURE ACT 1965 and shall be proceeded with accordingly.

It should be noted that Sections 108 and 136 of the CRIMINAL PROCEDURE ACT 1965 is still good law and has not been repealed even by the enactment of Section 89(2) of the ANTI-CORRUPTION ACT 2008. All that can be said is, that Sections 108 and 136 of the CRIMINAL PROCEDURE ACT aforesaid will not apply when a criminal offence which is triable exclusively at the High Court are offences under the ANTI-CORUPTION ACT aforesaid, but which said provisions will apply fully when the said offences are ones other that those under the ANTI-CORRUPTION ACT. The above issues regarding Sections 108 and 136 of the CRIMINAL PROCEDURE ACT 1965 have been brought up to establish the fact that criminal offences generally have now been distinguished in that those created under the ANTI-CORRUPTION ACT 2008 are distinct from those other general criminal offences. The procedure adopted in treating general criminal offences in so far as preliminary investigations are concemed, is different from that of offences under the ANTI-CORRUPTION ACT aforesaid.

It cannot be disputed that at the time the CRIMINAL PROCEDURE ACT 1965 was enacted all criminal offences prosecuted in the name of the Republic of Sierra Leone was at the suit of the Attorney-General and Minister of Justice or some other person authorised by him, the same which was reinforced by the provisions of Section 64(3) of the CONSTITUTION OF SIERRA LEONE 1991. In this regard, all criminal offences which were triable exclusively by the High Court, even though they might have been preferred by any person, they shall be signed by a Law Officer after its preferment without any exception. The enactment of the ANTI-CORRUPTION ACT 2000 saw the establishment of the Anti-Corruption Commission, which created several offences separate and distinct from the other general criminal offences. This distinction notwithstanding, interpretation of the applicable law is that these offences were still been prosecuted in the name of the Republic of Sierra Leone at the suit of the Attorney General and Minister of .lustice or some other nerson

te baal OED Sy ‘ Ses Sistas. authorised by him and in that regard, Section 130 of the CRIMINAL PROCEDURE ACT aforesaid still had to be complied with. The pertinent question is ‘did this position remain the same after the repeal of Section 64(3) of the CONSTITUTION OF SIERRA LEONE 1991'. An answer to this question could be found by considering Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008 which provides thus: ‘The CONSTITUTION OF SIERRA LEONE 1991 is amended by the repeal and replacement of Sub section (3) of Section 64 thereof by the following sub section (3) that all offences prosecuted in the name of the Republic of Sierra Leone except offences involving corruption under the ANTI- CORRUPTION ACT 2000 shall be at the suit of the Attorney General and Minister of Justice or some other person authorised by him in accordance with any law governing the same’. It cannot be disputed that the enactment of the above changed the position above, in that all offences under the ANTI-CORRUPTION ACT 2000 prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Anti-Corruption Commissioner. By extension and at the enactment of the ANTI-CORRUPTION ACT 2008 which repealed the ANTI-CORRUPTION ACT 2000, all offences under the ANTI-CORRUPTOIN ACT 2008 prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Anti- Corruption Commissioner. Obviously the position which prevailed before the enactment of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDEMENT) ACT 2008 that all offences under the ANTI-CORRUPTION ACT 2000 prosecuted in the name of the Republic of Sierra Leone at the suit of the Attorney General and Minister of Justice changed thereafter. Obviously, if prosecution of an offence under the ANTI-CORRUPTION ACT 2008 prosecuted in the name of the Republic of Sierra Leone, is at the suit of the Anti-Corruption Commissioner, then it cannot be a Law Officer that would have to sign the Indictment that is preferred by the Anti-Corruption Commission since the autonomy which was given the Anti-Corruption Commission by Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDEMENT) ACT 2008 as spelt out in the ANTI-CORRUPTION ACT 2000 which established it would still be non-existent. Section 130 of the CRIMINAL PROCEDURE ACT 1965 no longer applies in so far as Indictments preferred by the Anti- Corruption Commission are concerned. The same now fully empowers the Anti-Corruption Commissioner to sign all Indictments preferred by the Anti- Corruption Commission.

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