Foday Sawi v S (SC CR APP 1 of 1993) [2000] SLSC 16 (24 October 2000)

cae Lae Blo 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 « cl. HON. MR. JUSTICE A. B, TIMBO. - isc HON. MR. JUSTICE H. M. JOKO-SMART 7 ‘IS.C. HON. MR, JUSTICE S. C. E. WARNE =4 Se HON. MRS. JUSTICE V. A. D. WRIGHT od I 0.V. Robin-Mason Esq., for the Appellant S. A. Bah Esq., for the Respondent JUDGEMENT DELIVERED THE 24" DAY OF OCTOBER 2000 TIMBO, J.S.C. The Appellant was arraigned on a two-count Indictment in the Freetown High Court presided over by William Johnson J (siting 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)

(2) Fraudulent Conversion of property contrary to Regulation 39(b) of the Public Economic Emergency Regulations 1987 (P.M. < No.25 of 1987).

iyo Bt a 2 . At the end of the trial the appellant was found guilty on both counts and sentenced to: Le400,000.00 fine or 10 years imprisonment on Count 1 and Le40,000.00 fine or 1 year imprisonment on Count 2, both terms of imprisonment to run consecutively.

Being dissatisfied with the decision of the leamed trial judge, the Appellant appealed on both counts. The court of Appeal unanimously allowed the appeal in respect of the second count and accordingly quashed the Conviction and sentence. The court was, on the other hand, divided as to the first count. | Thompson-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 Appellant was equally not guilty on this Count and ought to be acquitted and discharged. So we are here 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 Doru 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 official 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 hhim 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.

In his statement to the police the Appellant sald among other things, that he had kept 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 hairs to Daru on loan for the official opening of the Daru Rural Bank (another Project partly funded through his efforts) by His Excellency the President with specific instructions that they should be put in a secluded area after the opening ceremony.

s The Appeliant filed three grounds of appeal to this court. When the

hearing commenced before us, counsel for the Appellant sought and was

. granted leave to argue only the third ground thus abandoning the other two

Grounds

Ground three states:

“The Court of Appeal did not apply the proper legal test relating

+ to intent to deprive permanently in so far as it relates to the

charge of Larceny with which the Appellant was convicted and

ae RBIs

‘ thus wrongly held that the essential ingredient of the offence charged that is, the intent to deprive permanently was proved directly or inferentially by the prosecution’. > More particularly, counsel submitted that the test as laid down by the Court of Appeal was incomplete in so far as it failed to address the issue as to the time the intent to deprive permanently if any, was formed. This was what Adophy J. A. (as he then was) said in reading the judgment of the Court at age 177 of the typed record. “It is accepted that to sustain this element, the thief must intend to deprive the owner not temporarily but permanently of his property. Regrettably, there seems not to be any statutory definition of the words “intention of permanently depriving”. In respect of this, the learned trial 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”. Regulation 38(a) under which the Appellant was charged in Count 1 stipulates, “38 Every person who-

(1) Steals any chattel money or valuable security belonging to or in the possession of the Government, Local Authority or @ Public Corporation or entrusted to or received or taken into possession by such person by Virtue of his employment ...1..1.u» Shall be guilty of an offence”, And by Section 1(1) of the Larceny Act, 1916, “a person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, Permanently to deprive the owner thereof”. It is remarkable that at no time did Adophy J. A. (as he then was) x stress that the intent permanently to deprive the owner must be formed the time at which the taking away occurs as stated in Section 1(1) of the Larceny . ‘Act 1916. This point is also emphasised in Archbold Criminal Pleading Evidence and Practice 35 Edition paragraph 1471 at page

596. There is no doubt that there was an asportation of the furniture by the + Appellant. But was. the necessary animus furandi (the mental element) Present at the time of such taking or for that matter, at any other time? The

sot Bla

: evidence indeed disclosed that the Appellant gave orders for the delivery of the furniture to his quarters rather than to a Government store. He however explained the reasons for doing so. In his evidence in-chief he stated thats “From experience, alot of thieving shad: beeni-going. on in. < Government stores and quarters, For Dane Se Highway Store, a lot of thieving was done there. I had to draft in the Military to provide twenty-four hours security. The Lodge 3¢ Hill Station 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... 1 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. 4 and stores. "Under cross-examination by Mr. Terrence Terry, Counsel forthe 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, “if the goods are delivered to the stores and they are stolen, the Permanent Secretary and’ the Storekeeper would take’ full responsibility therefor”. 33 She even went further to say that if she was Permanent Secretary her | first and foremost task would be to ensure the ‘safety of goods ordered, and that the burden was especially heavier when the goods had to leave Freetown for Daru. Concluding her testimony she agreed It was not unusual to keep Government property temporarily before eventual delivery to: their final destination, Turning to the crucial question whether the Appellant had the necessary intention permanently to deprive the Government of Sierra Leone of the ownership of the furniture at the time ‘he received them or more accurately when he caused them to be delivered at his residence, we will clearly see from the evidence that there was no such intention on the side of . the Appellant. This is supported by the story of the Area Engineer, Ishmael Kebbay the third prosecution witness who said during his examination in- : chief, “I recall March, 1987 — I heard from the accused in connection with the furnishing of the repaired building. He told me that he had Pa ‘secured some furniture for the building (Rest House), which would

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