Foday B.M. Sawwi v S (SC CR APP 1 of 1993) [2000] SLSC 21 (24 October 2000)

IN THE SUPREME COURT OF SIERRA LEONE SC.CR.APP.NO.1/93 BETWEEN FODAY B. M. SAWI - APPELLANT ‘AND THE STATE = RESPONDENT

Coram

HON. MR. JUSTICE D. E. F. LUKE ent CIs HON. MR. JUSTICE A.

8. TIMBO - 1S. HON. MR. JUSTICE H. M. JOKO-SMART - Ise HON. MR. JUSTICE S. C. E. WARNE oshee: SCs HON. MRS. JUSTICE V. A. D. WRIGHT sene lA: 0.V. Robin-Mason Esq., for the Appellant S. A. Bah Esq., for the Respondent \UDGEMENT DELIVERED THE 24™ DAY OF OCTOBER 2000 TIMBO, J.S.C.

The Jlant was arraigned on a two-count Indictment in the Freetown High Court presided over by William Johnson J (sitting alone) with the following offences:-

(1) Larceny contrary to Regulation 38 (a) of the Public

Economic Emergency Regulations 1987 (P.N. No.25 of 1987) version of property contrary to Regulation 39(b) 2) Fraudulent Con ae emergency Reguations 1987 (PM, No.25 of 1987).

At the end of th and sentenced to: Levon gn ppelant was found quity on both counts and Le40,000.00 fine or 1 year im or 10 years imprisonment on Count 1 Imprisonment to run conseeuay)mmrsonment on Count 2, both terms of

Being dissatisfied with Appellant appealed on both pals orcon roe , nai sul ohne the appeal in respect of tie weg ne Court of Appeal unanimously allowed conviction and sentence, “Theron Count and accordingly quashed the Halil bardancd rt was, on the other hahd, divided as to the

rst COL mpson-Davis JSC and Adophy JA (as he then was) while

dismissing the appeal, Taju-Deen J.A. on his part, was of the opinion that the

Soranea a vhemei guity on this Count and ought to be acquitted and . concerned with only Count 1.

‘The circumstances, which gave rise to Count 1, were briefly as follows: the Appellant was at all material times Permanent Secretary in the Ministry of Works, Freetown. He had pioneered a building project known as the Daru Rest House Project. While the building was still under construction he managed to (procure certain items of furniture for the said house. He directed that the said furniture should be delivered to his offical residence at Kingharman Road, Brookfields instead of to the Government Store in Freetown. This was sometime in March 1987. Inside the same month the Appellant wrote to the Area Engineer in Kenema informing him of the acquisition of the furniture and promised that he would be sending them to him for safekeeping to await the completion of the Daru Rest House, He had not done so up till August 1987 when the matter was reported to the police in Freetown. The C. I. D. subsequently found the furniture in a house the Appellant was erecting not far away from his official quarters where the furniture had originally been off-loaded. All the pieces of furniture were however untouched. None had been installed in the Appellant’s new house.

to the police the Appellant said among other things, that heed sept the furniture in his house because he was afraid that they Would be stolen if left in any of the designated Government stores. Furthermore, he told the police that he had in fact dispatched eight of the chairs to Daru on loan for the official opening ofthe Daru Rural Bank (another broject partly funded through his efforts) by His Excellency the President with Specific instructions that they should be put in a secluded area after the Pening ceremony. inds of appeal to this court. When the bean Appelt Oe, ounsel for the Aplin sought and was Granted leave to Grgue only the third ground thus abandoning the other two Grounds, Ground three states: . the proper legal test relatin ~The Court of Appeal did Mo EN ee relates to the to intent to deprive he ‘which the Appellant was convicted and charge of Larceny wit

thus wrong ly held charged that is, the tn essen ingrecent ofthe offence directly or inferentially oy the aeirive Permanently was proved rosecution”, More particularly, cou Court of Appeal was Incomplete hoot that the test as laid down by the the time the intent to corre of st fale to address the issue as to ‘Adophy

3. A. (as he then was) sad ee if any, was formed. This was what page 177 of the typed record, in reading the judgment of the Court at “It is -aci fens accepted that to sustain this element, the thief must prive the owner not temporarily bi is property. porarily but permanently of . Regrettably, there seems not to be definition of th “intenti ae definition of the words “Intention of permanently depriving”. In respect of this, the lesrned tral Judge said inter alia “these issues can only be resolved by inferences to be drawn from the evidence adduced herein”. Learned counsel for the State dealing with this submitted and quite rightly that to prove that ingredient one can only infer whether the accused had the intention to permanently deprive”. or Regulation 38(a) under which the Appellant was charged in Count 1 ulates, "38 Every person who- (1)~ “Steals any chattel money or valuable security belonging to or in the possession of the Government, Local Authority or a Public Corporation or entrusted to or received or taken into possession by such person by Virtue of his employment ....-.m» Shall be guilty of an offence”. i 1) of the Larceny Act, 1916, ~ by Section 1 2 eals who, without the consent of the owner, Bul tly and without 2 claim of right made in good faith, fraudulently ore away anything capable of being stolen with iran and fe time of such taking, permanently to deprive the ‘owner thereof”. ime did Adophy J. A. (as he then was) tt fg remarkable that at no time did AAOPIY ©, A i formed the deprive the ow! mess that the Chel permanent kg as erated in Section 11) of the Larceny ie oe ns no ovals emphasised, In ‘Archbold Criminal Pleading t 1916. This point Is @ ragraph 1471 at page

596. Evidence and Practice 35 Edition pa de op a asportation of the furniture by the There is no doubt that there was ane furandi (the mental element) Appellant. But was the eorne for that matter, at any other time? The Present at the time of such taking

evidence indeed disclosed th;

a

the furniture to his quarters athe Appetient gave orders for the delivery of explained the reasons for doin 'an to a Government store, He however 9 SO. In his evidence in-chief he stated that: “From experience, a lo ;

a tof thieving had been going on in penis Stores and quarters, For example, at the Kissy second pag lres lot of thieving was done there. I had to draft in Stay ry to provide twenty-four hours security. The Lodge at Hill

i lon was vandalised and the case was in court. P. K. Lodge was also vandalised and had to be refurbished. At Kissy Central Stores, several battery chargers were stolen. The Government stores were. Not safe because I was promoting the Daru Rest House through the Area Engineer and the Daru Rural Bank through the promoters of which I was one, I decided to keep the items MYSelF «veneer E kept the furniture to make sure they were safe. The items would have gone if the project had been completed”,

Mrs. Kona Koroma his deputy also ‘said in her evidence that during this period they had reports of in-sufficiency of security in some of their quarters. and stores. Under cross-examination by Mr. Terrence Terry, Counsel for, the Appellant in the High Court, she admitted that she raised no objections when the Appellant instructed her to convey the furniture to his residence. In answer to another question by defence counsel, she told the court that,

‘i ‘ods are delivered to the stores and they are stolen, the permanent Secretary and the Storekeeper would take full responsibility therefor”. t further to say that if she was Permanent Secretary her first ae eat task ‘would be to ensure the safety of goods ordered and © especialy heavier when the goods had to leave Freetown ‘that the: burdenwe fectimony she agreed It was not unusual to keep aban Concur Nemporarily before eventual delivery to their final Government prope! destination. , tion whether the Appellant had the Turing to the crude doe eprve the Government of Sierra Leone Necessary Intention permanert '® oe'the time he recelved them or more ihe ownership of te them to be delvered at his residence, we wil clearly 38 ped the evidence that there Was pe sch res Engineer “shmeel ne Aopellant, “This is supported by the story hn te mination Inrehbpeliant 73 prosecution witness who said during

ay the thir

chief, F — heard from the accused in connection with

“recall March, 1987 — 1 pulang. He told me that he had

the furnishing of the pr the building (Rest House), which would secured some furnl

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