Komeh & Anor v S (CR APP 1 of 2011) [2012] SLCA 19 (27 November 2012)

IM CR. APP. 1/2011 & 1/2011 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: FRANCIS FOFANAH KOMEH - APPELLANTS JOHN MANS AND THE STATE - RESPONDENT CORAM: HON. MR. JUSTICE P.O. HAMILTON J.S.C. HON. MRS. JUSTICE V.M. SOLOMON J.A. HON. MR. JUSTICE S.A. FOFANAH J. SOLICITORS R.B. KOVVA ESQ. FOR THE 1 st APPELLANT A.S. SESAY ESQ. FOR THE 2 n d APPELLANT R.S. FYNN ESQ. FOR THE RESPONDENT JUDGMENT DELIVERED THIS HAMILTON J.S.C. This is an Appeal against the judgment of the High Court delivered by the Hon Justice N.C. Browne-Marke J.A. on the 18th January, 2011. The 1s t and 2n d accused persons (herein after referred to as the 1s t and 2n d Appellants respectively) were charged on a three (3) Count indictment of Misappropriation of Public Funds and Abuse of Office. Count l(one) which was l Misappropriation of Public Funds contrary to Section 36 o f the Anti-Corruption Act, 2008 related to both Appellants. Counts 2 (two) and 3 (three) which was Abuse of Office contrary to Section 42(1) o f the Anti-Corruption Act, 2008; Count 2 (two) relates to the 2n d Appellant and Count 3 (three) is related to the 1s t Appellant. The l S l Appellant was found guilty on Counts 1 and 3 whilst the 2n d Appellant was found not guilty on Count 1 but found guilty on Count 2. They were convicted and sentenced accordingly. It is against this conviction and sentence that both Appellants have now appealed to the Court of Appeal. The facts of this matter could be summarized as follows: In July and September, 2008 two payment vouchers in the respective sums o f Lel4 million and Le30 million were made in favour o f the Ministry o f Agriculture Food Security and Vulnerability Survey and Mapping Project were sent to Lunyawca Ngegba Kaiwa (PW1) for processing. Later in the same year it was discovered that the respective moneys were paid into the Project. The 1st Appellant who was an employee o f the Accountant General’ s Department was asked to investigate. Early the following year PW1 (L.N. Kaiwa) found out that a re-direction letter had been sent to Bank o f Sierra Leone in his name and that o f the Accountant-General which letter they never signed. He could not tell who signed it on their behalf. However two cheques in the respective sums o f Lel4 million and Le30 million found their way into an account which was opened at the Makeni Branch o f the Sierra Leone Commercial Bank. The said A ccount was opened by the 1st Appellant which Account was authorised by the 2m Appellant who M 2 (t>3 was then the Branch Manager o f the Bank. Later the sum o f Le43, 885,000/00 was withdrawn from this Account by the 1st Appellant and Account Number 613481 was debited in that amount. At the request o f one Tarawallie who is said to be a friend o f the 1st Appellant this money was paid into Account Number 613481 at the Congo Cross Branch o f Sierra Leone Commercial Bank. There was an agreement made about this re­ payment o f the Le43,855,000/00 which stated that the money was to be refunded on the approval o f the 1st Appellant which agreement was signed by Tarawallie, PW8 (Askia MKamara) and PW9 (Mathew Sallu Yokie). The 1st Appellant visited them and thanked them for all what they did. It is against this brief background that the Appellants were charged on a three (3) count Indictment as follows CQTJNT 1 STATEMENT OF OFFENCE Misappropriation of Public Funds contrary to Section 36(1) o f the Anti-Corruption Act, 2008. PARTICULARS OF OFFENCE Francis Mohamed Fofanah Komeb and John Mans on a date unkown between 15th October, 2008 and 6th December, 2008 at Makeni in the Northern Province of the Republic of sierra Leone misappropriated public funds from the Consolidated Fund in the sum of Le44,000,000/00 by diverting it to a Sierra Leone Commercial Bank Account No.006-61348-10-00-01 and later withdrawing it there from. 3 1 bOf COUNT2 STATEMENT OF OFFENCE Abuse of Office contrary to Section 42(1) o f the Anti-Corruption Act 2008. PARTICULARS OF OFFENCE John Mans being the Manager Sierra Leone Commercial Bank L td. Makeni Branch on or about 6th December, 2008 at Makeni in the Northern Province of the Republic of Sierra Leone abuse his office by improperly conferring an advantage on Francis Mohamed Fofanah Komeb to with the withdrawal of the sum of Le44,000,000/00 from Account No.006-61348-10~00-01 without using the usual procedure. COUNT3 STATEMENT OF OFFENCE Abuse of Office Contrary to Section 42(1) o f the anti-Corruption Act; 2008. PARTICULARS OF OFFENCE Francis Mohamed Fofanah Komeh being an Accountant at the Accountant- General's Department on or about 6t i December, 2008 at Makeni in the Northern Province of the Republic of Sierra Leone abused his office by inproperly conferring an advantage on himself to wit: the sum of Le44,000,000/00. On this indictment the Appellants were tried and convicted as follows: COUNT 1: 1s t Appellant - Guilty: Le30 million or 3 years imprisonment. 2n d Appellant - Not Guilty COUNT 2: 2n d Appellant - Guilty: Le30 million or 3 years imprisonment. 4 COUNT 3: 1s t Appellant - Guilty: Le30 million or 3 years imprisonment. It 13 against this conviction and sentence that both appellants have each appealed to the Court of Appeal on the following grounds: The 1s t Appellant’s appeal is on three (3) grounds and the 2n d Appellant is on six (6) grounds; The grounds of appeal of the 1s t Appellant are as follows:- 1. The Learned Trial Judge erred in overruling the defence’ s submission that the T Accused had no case to answer and held that the essential elements o f the offences charged in the indictment have been established by the prosecution and both accused persons have no case to answer. 2. The Learned Trial Judge erred in Law in convicting and sentencing the 1st accused on the indictment since the signing o f the indictment contravenes Section 130 n Part IV o f the Criminal Procedure Act No.32 o f 1965 by the Commissioner o f the anti-Corruption Commission (ACC) signing the Indictment instead o f a Law Officer. 3. The Learned Trial Judge in evaluating the evidence allowed himself to be carried away by the testimony o f PW8 and hence basing his judgment on circumstantial evidence which does not point to the accused thus lacking the required evidence supportive thereof The grounds of appeal of the 2n d Appellant is a follows:- (l)The Learned Trial Judge erred in Law in failing to properly consider the ingredients o f the offence o f Abuse o f Office and consequentially failed to 5 \ bb consider whether the essential ingredients o f the offence were proved by the prosecution , (2) The Learned Trial Judge erred in Law in failing to evaluate the evidence as adduced in respect o f the Count o f Abuse of Office and to apply the appropriate law to such evidence and thereby effectively denied the Appellant the prospect o f being acquitted o f the offence as charged in the indictment. (3) The Learned Trial Judge erred in Law in failing to consider adequately or at all the role played by the Appellant and the legal effect and consequences o f the role in the opening o f the account and the withdrawal o f money from the ve?y account in relation to the count o f Abuse o f Office. (4) The Learned Trial Judge erred in Law and fact by stating that the Appellant facilitated the opening o f the account and the withdrawal o f money from same and that the Appellant's conduct was “ clear evidence o f a dereliction o f duty ” (5) That the verdict is unreasonable and cannot be supported having regards to the evidence adduced. In this appeal the grounds of appeal will be dealt with as they are contained in the Notice of Appeal and the submitted synopsis. The grounds of appeal will be dealt with separately as they affect each of the appellants. 6 lb • ? I shall now consider the grounds of appeal in relation to the 1s t Appellant Francis Fofanah Komeh. Counsel in his synopsis of argument abandoned ground one. G ROUND 2 The Learned Trial Judge erred in Law in convicting and sentencing the 1s t accused on the indictment since the signing of the indictment contravenes Section 130 in Part IV o f the Criminal Procedure Act No. 32 o f 1965 by the Commissioner o f the Anti-Corruption Commission (ACC) signing the indictment instead of Law Officer. Counsel for the Appellant quoted Section 5 o f the Anti-Corruption Act 2008 which defines the functions of the Commissioner and submitted that it excludes the signing of indictments. Learned Counsel further submitted that Section 7(1) and (2) o f the Anti-Corruption Act, 2008 gives the Commissioner the power to investigate and prosecute offences under the Act. Counsel went on to ask - “Does this authority to prosecute means signing of indictments when there is a specific Act (Criminal Procedure Act 1965) which provides for that or can prosecution include the signing of indictments?” Counsel went on to refer to Section 2 o f the Criminal Procedure Act , 1965and Section 89(1) and (2) o f the Anti- Corruption Act No. 12 o f2008 directs and gives power to the Commissioner to prosecute under the Act. Counsel further submitted that an indictment may be deemed to have been preferred without a previous committal for trial. Counsel asked is “preferred” synonymous with “signing”? Learned Counsel then submitted that Section 89 does not derogate in any way from the Criminal Procedure Act, 1965 particularly in criminal trials unlike Section 89 o f the Anti-Corruption Act, 2008 which only gives 7 \ the Commissioner Anti-Corruption Commission the right to prosecute offences under the Act. Learned Counsel for the State/Respondent submitted that for purposes of prosecution of offences under the Anti-Corruption Act the Commissioner is a Law Officer under the Constitution. Section 2 o f the Criminal Procedure Act\ 1965 defines a Law Officer to mean the Attorney-General, Solicitor-General, Parliamentary Counsel or State Counsel and the effect of the Anti-Corruption Act, 2008 was to invest in the Commissioner some of the powers in respect of criminal prosecutions from the Attorney-General and Director of Public Prosecutions to the Commissioner. Counsel further submitted that the 2008 amendment of the Constitution was intended to act in the capacity of a Law officer for purposes of prosecution under the Anti- Con'uption Act. Firstly, it must be noted that Section 2 o f the Constitution o f Sierra Leone (Amendment) Act, 2008 (Act No.9 o f2008) provides: “The Constitution o f Sierra Leone, 1991 is amended by the repeal and replacement ofparagraph (a) o f Subsection (4) o f Section 66 thereof by the following paragraph:- “ (a) to institute and undertake Criminal Proceedings against any person before any Court in respect o f any offence against the Laws o f Sierra Leone except any offence involving corruption under the Anti­ Corruption Act... ” 8 This Constitution o f Sierra Leone (Amendment) Act, 2008 (Act No.9 o f2008) was signed on 22n d July, 2008 and did commence on 31s t July, 2008. It is trite law that the Constitution is the Supreme Law of the land and if this is read properly the Commissioner was then authorized to sign indictments as of 31s t July, 2008. Similarly, Section 89(1), (2), (3) and (4) in my humble opinion does give the Commissioner of the Anti-Corruption Commission the right to sign indictments. I shall quote in full Section 89(1), (2), (3) and (4) o f the anti-corruption Act 2008: (1) Where the Commissioner is o f opinion that the findings o f the Commission on any investigation warrant a prosecution under the Act, he shall do so in Court. (2)An indictment relating to an offence under this Act shall be preferred without any previous committal for trial, and it shall in all respects be deemed to have been pre ferred pursuant to a consent in writing by a judge granted under Subsection (1) o f Section 136 o f the Criminal Procedure Act, 1965 and shall be proceeded with accordingly. (Emphasis added) (3) On a trial on indictment preferred under this Subsection, an extract o f the findings o f the Commission, signed by the Commissioner to the effect that a particular person or particular persons are implicated in any offence under this Act shall, without more, be sufficient authority for preferring that indictment in respect o f such offence as is disclosed in or based on the report o f those findings. (Emphasis added) (4) An indictment preferred under this section shall be filed and served on the accused together with the summary o f the evidence o f the witnesses which 9 1^0 the Commissioner relies on for the proof o f the charge contained in that indictment and the names o f such witnesses shall be listed on the back o f the indictment ”. (Emphasis added) In my humble opinion reading Sub-Section 2, 3 and 4 o f Section 89 o f the Anti­ Corruption Act, 2008 clearly shows that the Commissioner is given power not only to prosecute but also to sign indictments by the use of the word " preferred” n the various Sub-Sections. The requirement for the Attorney-General and Minister of Justice to give his consent to institute prosecution in corruption matters is now obsolete. This ground lacks substance and is accordingly dismissed. GROUND 3 The learned Trial Judge in evaluating the evidence allowed himself to be earned away by the testimony of PW and hence basing his judgment on circumstantial evidence which does not point to the accused thus lacking the required evidence supportive thereof. Counsel for the 1s t Appellant in his synopsis asked what are the compelling circumstantial evidence linking the 1s t accused with Counts 1 and 3 of the charge? Learned Counsel then submitted that from what the Learned Trial Judge highlighted in his judgment and relied on to convict nothing circumstantial and compelling have been cited. The Learned Trial Judge went on to say that because the name of the 1st accused appeared on Exh. H1 & 2 it is conclusive that he opened the account though the 2n d accused said he wrote the name on it. 10 The Learned Trial Judge at Page 231 paragraph 49 of the records in dealing with this issue of circumstantial evidence said: “.... 1st accused in his testimony maintains his stance o f complete innocence. In exhibit "L” he denies complicity in the Commission o f the charges in the Indictment He had nothing to do with any o f the transactions in question. He did not open the Food Security Project account numbered 613481, he did not per exhibit “ f " the letter to the Bank o f Sierra Leone authorizing the crediting o f account numbered 613481, Sierra Leone Commercial Bank Ltd., Makeni; nor did he sign or participate in the making o f exhibits “ H1 '3 ” Lastly, that he did not withdraw the sum o f Le43,855,000/00from that account; nor did he in any way participate in its withdrawal. It is true there is no direct evidence linking him to exhibit “ f ” but the circumstantial evidence linking him with it is compelling. The circumstantial evidence points to him, and to him alone. Circumstantial evidence could in many instances such as this one, be more compelling and convincing than direct evidence. I f I believe the circumstantial evidence leads to no other conclusion than that 1st accused is responsible for the events in Makeni ....” It is trite law that where there is no direct evidence, circumstantial evidence is the best to be relied upon. However, such evidence must be narrowly examined, to be sufficient for a conviction since such circumstantial evidence must point to only one conclusion and that it was the accused who had committed it - R v. Tapper {1952) A.C. 480. In order to drawr an inference of the accused persons guilt from circumstantial evidence, there must be no other co-existing circumstances which would weaken or destroy the inference. The Court should not hesitate to draw such presumption or inference- so long as it is cogent and compelling as to convince a jury no rational hypothesis other than the inference that the fact can be accounted for see R v. Tapper Supra. The Learned Trial Judge did at Pages 231 to 2 ? o f the records at paragraphs 49 to 51 of his judgment fully dealt with the legal issues and the facts especially the circumstantial evidence and alibi raised by the 1s t Appellant in detail. After a full and clear evaluation of the evidence or record the Learned Trial Judge did rightly find the 1st Appellant guilty and convicted him. The Court of Appeal will not interfere with the findings of fact of the Learned Trial Judge except there is established a miscarriage of justice, a perverse decision or a violation of some principles of law or procedure. In this appeal there is nothing that was urged by learned Counsel for the 1s t Appellant to bring the findings of guilt based on the facts within the ambit of the exceptions. The appeal of the 1s t Appellant fails and is accordingly dismissed. I shall now consider the grounds of appeal in relation to the 2n d Appellant John Mans whose conviction is on one count of Abuse of Office contrary to Section 42 o f the Anti-Corruption Act, 2008. The five grounds of appeal raised could be summarised as follows:- That the Learned Trial Judge — (i) failed to properly consider the ingredients o f the offence o f abuse o f office (ground 1); (ii) failed to evaluate the evidence in respect o f the offence o f abuse o f office and apply the appropriate law to such evidence (ground 2); 12 . (Hi) failed to consider adequately the role played by the Appellant and the legal effects and consequences o f opening the account and the withdrawal o f money (ground 3); (i) erred in law and fact by stating that the facilitated the opening o f the account and the withdrawal o f the money from the same and that the Appellant’ s conduct was “ clear evidence o f a dereliction o f duty” (gi'ound 4); (v j The judgment is unreasonable and against the weight o f the evidence (ground 5). The grounds of appeal would be considered together as the essence of the entire grounds as a whole is whether the conduct of the 2n d Appellant in the opening of the account and the withdrawal of money from the said account by the 1s t Appellant was such that it amounted to an abuse of office by the 2n d Appellant and also whether his conduct was dishonest according to the ordinary standard of reasonable and honest people. It is for the appellate Court to determine whether the findings of the Learned Trial Judge is unreasonable and cannot be supported having regard to the evidence. Counsel for the Appellant in his synopsis cited the case of R vs. W (2010) EWCA Crime 372 and the submitted that the Appellant may have compromised certain procedures in the opening of the account but had no fraudulent corrupt or oppressive intent in doing so. He further submitted that the appellant's conduct does not fall within the threshold set in the case of R vs. W , 13 R U ; The Learned Trial Judge in his judgment at Page 234 Paragraph 54 did admit that the Appellant had no fraudulent, corrupt or oppressive intent to amount to an abuse of office when he said: “ As regards the 2n i accused I have to consider both his statement, and his evidence on oath Apart from minor discrepancies, his version o f events remains the same. He was concerned with and participated in, however passive a manner, the opening o f the account. He was concerned with, and participated in authorising the withdrawal o f the sum o f Le43,855,000/00. He was clearly involved in, and facilitated both transactions. Unfortunately, there is no evidence before me that he partook o f the loot, or in any way derived any material or monetary benefit from these transactiom . The act which results in the misappropriation ofpublic funds, must be done willfully in the sense I have described above. I f there had been such evidence, I would have unhesitatingly concluded that he had the required intent to misappropriate. I have no alternative but to give him the benefit o f the doubt in this respect ” Counsel for the Appellant submitted that the conduct of the 2n d Appellant was not improper within the meaning of Section 42 o f the Anti-Corruption Act, 2008 although he may have compromised certain procedures in opening the account and withdrawal from it without having any willful conduct. Learned Counsel for the Respondent submitted that the meaning of “improperly” in Section 42 o f the Anti-Corruption Act, 2008 comprises conduct which is willful and which constitutes a high degree of mi sconduct amounting to an abuse of public trust and in the instant case which involves the acquisition of property by fraud the 14 misconduct must involve dishonesty. In R vs. W (2010) EWCA Crime 3R Penry - DaveyLC.J. said: “The prosecution had to prove that the Appellant willfully - that is to say, deliberately misconduct himself to such a disgrace as to amount to an abuse o f the public trust in that office holder, without reasonable excuse or justification .... the prosecution must prove misconduct o f a high degree . We are not talking here o f a mere bending o f rules or Cuttins Corners....to amount to an abuse o f public trust a mistake, even a serious one, will not suffice either: The prosecution must prove that the office holder has fallen wav below the standard expected o f him (Emphasis added). The Learned Trial Judge in his judgment at Page 234 Paragraph 54 of the records stated: “.... Unfortunately there is no evidence before me he took part o f the loot or in any way derived material or monetary benefit from these transactions ... ” In my humble opinion therefore the 2n d Appellant had no fraudulent, corrupt or oppressive intent which amounted to an abuse of his office. In dealing with culpability in relation to the conduct of any person in a public office Lord Widserv CJ. in Rv. Dvtham (1979) 69 Cr. Add R. 722 at 727-728 whilst dealing with culpability in abuse or misconduct in public office said: “When misconduct in a public office is alleged to have been committed in circumstances which involve the acquisition o f property by theft or fraud, and in particular when the holder o f a public office is alleged to have made improper claims for public funds in circumstances which are said to be 15 lit criminal, it must be proved that the accused acted dishonestly. It is not enough that his behavior was irregular or improper . (Emphasis mine) Similarly the Court of Appeal in Hong Kong in the Final Appeal case of Shurn Kwok Sher v. Hksar (Final Appeal No. 1 o f2002) at Paragraph 56 of the judgment Sir Anthony Mason said: “ There must be very serious departures from proper standards before the criminal offence is committed and a departure not hereby negligent but amounting to an affront to the standing o f the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse o f the public's dues in the office holder. A mistake even a serious one will not suffice .... There must be a serious departure from proper standards before the criminal offence is committed .... the motive with which a public officer acts may be relevant to the decision whether the public’ s trust is abused by the conduct. ” (Emphasis Added) From the totality of evidence as contained in the records against the 2n d Appellant the basic question was whether the evidence establishes an intention that he used his office for a purpose other than the public good, for example, for dishonest, partial, corrupt or oppressive purpose. The evidence in the records clearly gives a negative answer. Having considered in detail the grounds of appeal of the 2n d Appellant and having regard to all what has been said, there is a doubt as to the guilt of the 2n d Appellant which must be resolved in his favour. The totality of the evidence before the Court has not established the charge beyond reasonable doubt in relation to the Count for which he was found guilty. 16 m On the whole and having regard to all what has been discussed above I hold that the appeal of the 2n d Appellant succeeds and is accordingly allowed. His conviction and sentence are hereby set aside and in substitution therewith I enter judgment for his acquittal and discharge. If any fine was paid that it be refunded to the 2n d Appellant. HON. MR. JUSTICE P.O. HAMILTON J*S.C HON. MRS. JUSTICE V.M. SOLOMON J .A . HON. MR. JUSTICE A .S. FOFANAH J.A . REF: POH/HJ 17