Franics Kai Kai v S (COI.APP 64/2020) [2023] SLCA 3 (18 September 2023)

{ithiau® Cy Va

COLAPP/64/2020 IN THE COURT OF APPEAL OF SIERRA LEONE IN THE MATTER OF THE CONSTITUTION OF SIERRA LEONE 1991 (ACT NO. 6 OF 1991) PART IX COMMISSION OF INQUIRY, SECTIONS

AND IN THE MATTER OF THE CONSTITUTIONAL INSTRUMENT NO. 64 OF 2018 IN THE MATTER OF THE COMMISSION OF INQUIRY EXAMINATION, INQUIRY AND INVESTIGATION NOTICE (1) 2018 (HON.DR JUSTICE BANKOLE THOMPSON ) BETWEEN: FRANCIS KAIKAI - APPELLANT AND THE STATE. (Represented by the Attomey-General & Minister of Justice) - RESPONDENT CORAM; HON.MRS JUSTICE FATMATA BINTU ALHADI JA. (PRESIDING) HON.MR. JUSTICE KOMBA KAMANDA JA. HON.MRS JUSTICE TONIA BARNETT JA. ADVOCATES; EEC SHEARS MOSES ESQ - APPELLANT R.B.KOWA ESQ, - a RESPONDENT A,SUWU KENDOR JUDGMENT DELIVERED ON THE 18TH DAY OF SEPTEMBER 2023

The President of Sierra Leone by Constitutional Instrument No. 64 of 2018 pursuant

to Section 147 of the Constitution of Sierra Leone, Act No. 6 of 1991 set up the *) Justice Bankole Commission of Inquiry with the said Judge as Chairman and Sole

~ Commissioner.

The terms of reference of the Commission of Inquiry known as COI were laid down

in Section 4 of the aforementioned Constitutional Instrument thus:

A, To examine the assets and other related matters in respect of;

i. Persons who were President, Vice President, Ministers of State, Deputy

Ministers; and

ii Heads and chairmen of Boards of Parastatals, Departments and Agencies within

the period from November 2007 to April 2018.

b. To inquire into and investigate whether assets were acquired lawfully or

unlawfully

c. To inquire into;

i. Persons who were President, Vice President, Ministers, Ministers of State, Deputy

Ministers; and

ii Heads and chairmen of Boards of Parastatals, Departments and Agencies within

the period from November 2007 to April 2018

d. To ascertain as to whether the Persons referred to in paragraphs a -<

i Maintained a standard of life that which was commensurate to their official

emoluments

ii Owned or were in control of pecuniary resources or property disproportionate to

their official emoluments or there are evidence of corruption, dishonesty or abuse of

office for private benefit by them

iii. Collaborated with any person in respect of such corruption, dishonesty or abuse

of office

iv, Acted willfully or complacently in such a matter so as to cause financial loss or

damage to the Government, Local Authority or Parastatal, including a Public

Corporation

v. Acquired directly or indirectly financial or material gains fraudulently improperly

or willfully to the detriment of the Government, Local Authority or Parastatal.

Including a Public Corporation, statutory Commission, Body or university of Sierra

Leone

vi. To inquire into and investigate any persons or matter as may from time to time

be referred to the Commission by His Excellency, the President.

The Sole Commission Hon. Justice Bankole Thompson during the course of the investigation found the Appellant wanton and therefore made adverse findings recommendations and report against the Appellant.

It is against the background of the aforesaid findings, recommendations, conclusion and report that the Appellant being dissatisfied filed a notice and grounds of appeal on the 11" day of November, 2020. The grounds of Appeal are clearly laid out in grounds A-G thus.

Ground a

The Leamed Commissioner in his report at Pages 28 Paragraph 9 referred to testimony of the Appellant which is not correct as he never testified. He was not a person of interest as listed on Page (ii) Paragraph B. He was not invited to appear before the Commission as a person under investigation, He was the Procurement Officer appointed pursuant to Section 18 of the Public Procurement Act, Act No. 1 of 2016

Ground B

The Leamed Commissioner erred in Law and acted in violation of the Appellant's Fundamental Human Right to the “presumption of Innocence” as provided in Section 23(4) of the Constitution of Sierra Leone, Act No. 6 of 1991 in failing to conduct a “full, faithful and impartial” inquiry as mandated by section 149(2) of the International Convention of Civil and Political Right 1966 by proceeding to make adverse findings against the Appellant.

Ground C

The Leamed Commissioner erred in Law and acted in violation of the Appellants Fundamental Human Right to be examined in person by examining him “On his action as Secretary to the Procurement Committee mandatory trials.” He was never invited to appear before the Commission as a “Person of Interest” or as a “person

under investigation” by the Commission yet the Commissioner proceeded to make adverse findings against the Appellant. How was his culpability in the loss of Le61,061,440,000.00 determined and to what extent is he liable? There was no statement of how the amount was to be shared.

Ground D

The Leamed Commissioner erred in Law and acted in violation of the Appellant's Fundamental Human Right to a “free and fair Trial” in violation of the provision of section 23(1) of the 1991 Constitution Act No. 9 of 1991 and the principle “Audi Alteram Partem” underpinning natural justice. The Commissioner thereby failed to adhere to the mandatory provision of Section 149(1) (a) of the Constitution in failing to conduct a “full, faithful and impartial inquiry” and in violation of Anticle 10 of the Universal Declaration of Human Right 1948, Article 14 of the Intemational Convention on civil and political rights and Articles 3, 7 and 26 of the Africa Charter on Human and Peoples Right, by not according to the Appellant a fair hearing.

Ground E

The Learned Commissioner erred in Law and in fact by ignoring the evidence before the Commission that the decision to procure the fertilizer referred to in pages 28-32 of the report were taken by a strategic management team which the Appellant had no vote in and was only secretary, but proceeded to make finding against him.

Ground F

‘The Leamed Commissioner erred in Law when he failed to categorically state in more equivocal term, that what happened during the strategic Committee meeting ‘were procurement decisions, and failing to decide what the Appellant is liable for whether for taking a decision or participating in a decision making, thus making his findings ambiguous, opaque, uncertain and is bad in Law; yet proceeded to make an adverse finding against the Appellant based on such duplication of facts ambiguously.

Ground G

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