Koroma v S (CR APP 3 of 2010) [2012] SLCA 21 (17 December 2012)

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. 1 x CRAPP 3/2010 IN THE COURT OF APPEAL OF SIER R A LEONE BETW EEN: SHEKU T E JA N KOROMA - APPELLANT

AND THE STATE - RESPONDENT

Coram

THE HONOURABLE MR JU S T IC E N C BRQWNE-MARKE, JU S T IC E OF APPEAL THE HONOURABLE MR JU S T IC E E E ROBERTS, JU S T IC E OF APPEAL THE HONOURABLE MR JU S T IC E S A ADEMOSU, JU S T IC E OF APPEAL(deceased) COUNSEL: C.F. EDWARDS E S Q (with him, H M SEVAO .ESQ ) for the Appellant C T M ANTSEBO E S Q for the Respondent JUDGM ENT D ELIVERED T H E ^ A Y OF DECEMBER,2012,

Introduction

1 . This is an appeal brought by the Appellant, Mr Sheku Tejan Koroma, against his conviction by S E Y ,J on 1 1 March,2010 on a 3 Count Indictment charging the offences of Abuse of O ff ice contrary to Section 42(1) of the Anti-Corruption Act,2008; Abuse of O ffice contrary to Section 43 of the same Act. and Wilfully Failing to Comply with the laws, procedures and guidelines relating to the procurement of property, tendering of contracts and management of funds, Contrary to Section 48(2)(b) of the same Act. The appeal against conviction, purports to be on a question, or rather, questions of law, only; but Grounds 4& 5 seem to us to be more of questions of fact than questions of law. On conviction S E Y ,J sentenced the Appellant to fines of Le50million in respect of each Count, totalling Lel50million, with the alternative of a term of imprisonment of 5 years in respect of each Count, the terms of imprisonment to run concurrently. On the same day, S E Y ,J Ordered that pursuant to Section 233 of the Criminal Procedure Act(1965, payment of the total fines would be I

18b deferred for a fortnight with effect from that date, i.e. 1 1 March,2030. The Appellant also appeals against this sentence.

Grounds of Appeal

2. The Notice of Appeal is dated 25 March,2010 and was filed in this Court's Registry, the same day. The grounds are as follows:

(1) The Learned Trial Judge erred in Law in holding that the charges as laid in counts 1-3 inclusive were in conformity with the respective sections namely: Sections 42(1) 43 A 48(2) of the Anti Corruption Act,2008, and therefore fulfilled the legal requirements.

(2) The Learned T rjH Judge erred in Law ‘when she1 (these two words are missing in the Notice) overruled the d efen ce submission that Count I I is bad in law by the omission of the mens rea requirement in the word "knowingly" as enshrined in the statute.

(3) The Learned Trail Judge erred in Law (as she) did not consider the mens rea requirements in all three counts against the Appellant, thereby reaching the wrong judgment against the Appellant.

(4) The Learned Trial Judge erred in Law in ignoring the evidence given by defence witnesses, particularly the evidence of DW2 Edmond Koroma, which said testimony was highly material to the success of the defence.

(5) The Learned Tr'al Judge in evaluating the evidence allowed herself to be carried away by exhibit(s) M and N to the extent that she lost sight of the distinction between a Notif fcation of Award Letter and an award letter which form the basis of the Action, thereby reaching the wrong conclusion (judgment). These words are also added though not numbered (6 ): In coming to the conclusion that the prosecution case has been proved as required by law, on the basis of prosecuting counsel's submission implying that the Learned Judge shut her eyes to the defence of the accused contained in exhibit “C" and also contained in the testimony DW1 and DW2 upon which the defence relied, These grounds are certainly not good examples of clarity. They exhibit obfuscation and confusion of thought. Further, in case Mr Edwards has

forgotten, there is action voii^ji ij Tnvvlved: there is a cause or matter. An action, pertains to civil proceedings. *7b. No grounds of appeal against sentence have been provided by the Appellant. The effect of this is that if the appeal is dismissed, the sentence will remain unchanged. I suspect that Counsel may have been in a desperate hurry when he settled the grounds of appeal - thus the many errors in grammar and syntax and the several ellipses. The Appellant asks that his conviction and sentence be set aside and an acquittal be substituted in their place; and, for such further or other Orders to be made by the Court in furthering justice. What this last bit means, is not quite obvious. This is a criminal appeal, and you can only get what you ask for. The Appellant did indicate that these grounds would be amended or added to, but until the appeal hearing was completed, no additions, nor amendments, had been made to them,

The in D Ictm En T

A . I shall now set out the Indictment in extenso: Count 1 Statement of Offence: Abuse of Office contrary to Section 42(1) of the Anti-Corruption Act,2008 Particulars of Offence: SHEKU T E JA N KOROMA on a date unknown between March,2009 and May,2009 at Freetown in the Western Area of Sierra Leone, being the Minister of Health and Sanitation, and being a Public O fficer, abused his office as Ministeryfrespect of the award of a contract for the supply of medical consumables and reagents to the Ministry, by improperly awarding the said contract to the Cardinal Investment Limited, instead of to the Health Care Pharmacy, as the lowest and most responsive bidder based on the recommendations of the Technical Evaluation Committee of the Ministry. Count 2 Statement of Offence: Abuse of Position contrary to Section 43 of the Anti-Corruption Act,2008 Particulars of Offence: SHEKU T EJA N KOROMA on a date unknown between March ,2009 and May,2009 at Freetown in the Western Area of Sierra Leone, being the Minister of Health and Sanitation, and being a Public Of f icer, aoused his position as a Minister, in respect of the award

\ U of a contract for the supply of medical consumables and reagents to the Ministry, by contravening the provisions of the Public Procurement Act,2004, through the improper award of the said contract to the Cardinal Investment Limited, instead of. to the Health Care Pharmacy, as the lowest and most responsive bidder based on the recommendations of the Technical Evaluation Committee of the Ministry. Count 3 Statement of Offence: Wilfully failing to comply with the laws, procedures and guidelines relating to the procurement of property, tendering of contracts and management of funds, contrary to Section 48(2)(b) of the Anti-Corruption Act,2008. Particulars of Offence: SHEKU T EJA N KOROMA on a date unknown between March,2009 and May,2009 at Freetown in the Western Area of Sierra Leone, being the Minister of Health and Sanitation, and being a public officer, wilfully failed to comply with the provisions of the Procurement Act,2004 and the Regulations set out there-under relating to the procurement of property, tendering of contracts and management of funds, in respect of the award of a contract for the supply of medical consumables and repgents to the Ministry of Health and Sanitation, through the improper award of the said contract to the Cardinal Investment Limited, instead of to the Health Care Pharmacy, as the lowest and most responsive bidder based on the recommendations of the technical and evaluation committee of the Ministry. The case for the prosecution at the trial was that the Appellant was Minister of Health, a part of the Government of S ie r r a Leoner and was therefore a Public O fficer within the terms of the Anti-Corruption Act.2008 - ACA.2008. In December,200^, the Ministry invited bids for the supply of drugs and medical consumables. Health Care Pharmacy of 4 Wilberforce Street, (hereafter HCP) submitted a Tender on 6 ^ October,2008.The Bid docunents were tendered collectively by PW1, as * exhibit A, pages 83-86 of the Record. The Bids were apparently opened on the same 6 0ctober,2008, according to the Ministry's Bid Opening documents, tendered collect'vely as exhibit B, by PW1 also - pages 87-90

Case for the Prosecution

. v s n of the Record. Exhibit B item 3 on page 87 shows that in respect of Lot . 8, HCP's Bid was the least in terms of cost. On 15 october,2008, PW1 wrote a minute to the Appellant - exhibit D, page 92 of the Record - in which he informed the Appellant that the bids would be evaluated by the Technical Evaluation Committee (TEC), and that thereafter a Report will be submitted to the Procurement Committee (PC) to review. The TEC did the revfew as evidenced by the minutes of its deliberations dated 31 December,2008, tendered as exhibit E - pages 93-101 of the Record. At page 99, the TEC clearly recommended the acceptance of the bid submitted by HCP in respect of Lot

8. On 5 January,2009 PW1 wrote a minute to the Appellant, exhibit F - page 102 of the Record - forwarding there-under a copy of the TECs Report, and informing him that the PC would have to review the recommendation, and that the recommendation would require his consideration. What followed, according to PW1 whilst giving evidence at pages 13-14 of the Record, was this:" W hen I su b m itted th e T ech n ical Evalu atio n R ep o rt in a m inute to th e M in is te r he o u t- rig h tly o b je c te d to th e recom m endation o f H e a lth C are Pharm acy as w inner o f th e b id not-w ithstanding p ric e d iffe r e n tia l betw een th e two H e d id n o t do h is o b je ctio n in w ritin g. H e d id i t v e rb a lly an d k ep t on in sistin g th a t we should n o t s it a s a com m ittee to co n firm th e recom m endation. B y me I mean th e Procurem ent Com m ittee m em bership. H e sim p ly d em o n strated h is p re fe re n c e fo r c a rd in a l in vestm en t b u t he d id n o t g iv e us an y reasons’ . B u t we saw i t d iffic u lt to go b y th a t given th e d iffe r e n tia l in p ric e s and i t was c o n tra ry to p ro cu rem en t ru les. A f t e r h is o b jectio n s, a s a com m ittee, we w aited fo r h is ap p ro val and he w anted to ensure th a t we com plied w ith h is in s tru c tio n s th a t C ard in al In ve stm e n t sh ould be aw arded th e co n tra ct. W hen we fin a lly m et as a procurem ent com m ittee and due to th e p re ssu re we w ere g e ttin g from th e M in is te r th e com m ittee ag reed th a t C ard in al In v e s tm e n t b e aw ard ed th e c o n tra c t fo r L o t

8. A f t e r th e Com m ittee had ag re e d I p re se n te d a m inute to him d a te d 8 M arch,2 0 0 9 ....prod uced and te n d e re d ....a s e x h ib it Exhibit G is actually dated 9 March,2009. I t is at page 103 of the Record Part of this minute read s as follows. “.... The Com m ittee w as fa c e d w ith a d iffic u lt ta sk in taking a d ecision on L o t 8.......in re s p e c t o f w hich th e Tech nical Eva lu atio n n ad recom m ended A.

. H o H e a lth C are Pharm acy who o ffe r e d th e b e s t e va lu a ted b id p ric e o f U 5 0 6 6 6 ,407.38, b u t w hich you saw d iffe r e n tly and on a num ber o f occasions you g ave ve rb a l in stru c tio n s th a t th a t decision should be re v e rs e d in fa vo u r o f M e s s rs C a rd in a l In v e stm e n t who o ffe re d a h ig h er b id p ric e o f U S 0 6 8 9 ,5 75.50 w ith em phasis th a t you would n o t s e ttle fo r an yth in g s h o rt o f th a t. In com pliance w ith yo u r in stru c tio n s as th e boss, th e Procu rem ent Com m ittee th e re fo re h ad to recom m end th a t L o t 8 be aw ard ed to C ard in al In v e s tm e n t..." (^ r In the interim, the National Public Procurement Agency - NPPA, had addressed a letter to PW2 on 16 March,2009 - exhibit P , pages 187 A 188 of the Record, requesting the Ministry to reverse the award of Lot 8 to Cardinal Investment Limited. On 30 April,2009 PW2 responded by letter, exhibit Q, page 189 of the Record. In this letter PW2 stated that the Ministry’s PC o f which he was head, had agreed to resubmit the bid made by Healthcare Pharmacy for Lot 8, for approval by the NPPA < ff. According to PW2, once his minute of 9 March,2009 was sent, the v contract was awarded to Cardinal Investment. The National Public Procurement Committee (NPPA) did not approve of this as evidenced in the letter dated 14 May,2009 addressed by the Agency, to PW2 - exhibit H - page 104 of the Record, and copied to the Appellant. According to PW2, the Minister was out of town at the time and on 18 May,2009 he minuted this letter to the acting Minister, as appears on page 107 of the Record. The Acting Minister minuted back on 19 May,2009: *Se e n and hope you w ill take th e n e c e s sa ry a ctio n n eed ed ." 0 . The NPPA remitted the matter to its Independent Procurement Review Panel - IPRP - for determination. This was as a result of a letter of complaint dated 7 May,2009 -see pages 110 & 190 of the Record - sent to it by Health Care Pharmacy. The IPRP's Ruling dated 22 May,2009 on the complaint, was tendered as exhibit J - pages 108 - 113 of the Record. I t was forwarded to the Appellant by PW2 under cover of his minute dated 26 May,2009 - exhibit K page 114 of the Record. The IPRP had ruled that in accordance with the provisions of the Public Procurement Act,2004 and the Regulations made thereunder in 2006, the contract for lot 8, should be awarded to Health Care Pharmacy, and it was to be done within 14 days of 22 May,2009. In exhibit K, PW2 sought the Appellant's approval to implement the decision of the IPRP. The Appellant evidently, did not give

l « U the required approval. His thoughts could be deduced and his actions could be determined from the contents of his letter dated 27 May,2009 addressed to The M anager, Cardinal Investment Limited, exhibit M pages 117-118 of the Record. There, he said, inter alia," I r e f e r to yo u r B id fo r th e supply o f L a b o ra to ry R eag en ts (L o t 8 ) and to in form you th a t th e M in is try o f H e a lth and S a n ita tio n , a ctin g fo r and on b e h a lf o f th e G overnm ent o f S ie r r a Leone, h as approved th e aw ard o f th e c o n tra c t to y o u r com pany.....You a re re q u e ste d to co n ta ct th e o ffic e o f th e M in is te r o f H e a lth and S a n ita tio n a t yo u r e a rlie s t convenience to sign th e re q u isite c o n tra c t docum ents,..." The date of the letter, and its contents are of immense signif icance, given the arguments advanced by Appellant's Counsel during the course of the appeal. Less than a month later, the Appellant executed the contract on 23 June,2009 - exhibit N pages 120 150 of the Record. ^ As to why the contract was signed by the Appellant, PW3 Mohamed Kallon, Acting Procurement Manager in the Ministry said at page 19 of the Record,"... The aw ard le t t e r was signed b y th e M in is te r and th e c o n tra c t was also signed b y th e M in is te r. U sually, i t is n o t th e M in is te r who signs th e aw ard le tte rs . F o r L o t 8 i t was th e M in is te r who sig n ed th e le t t e r and th e co n tra c t. I have g o t a copy o f th e c o n tra c t..." At pages 30 and 31 of the Record, the Appellant, whilst giving evidence in his own behalf, agreed that he signed exhibit M. In answer to Q30 in his reco rd ed interview, exhibit 0, at page 167 of the Record, the Appellant identified the signature on exhibit M, as his. In answer to Q56 at page 180 when asked whether the contract for Lot 8 had been awarded, he said: "Y e s, i t has been ve rb a lly aw ard ed to C a rd in a l In ve stm e n t Lim ite d ." Also, on pages 31 A 32 of the Record, the Appellant admitted that he awarded the contract to Cardinal Investment Limited, though he did not explicitly admit, signing the contract exhibit N which bears his signature. Signif icantly, at the end of his testimony, 5 E Y ,J at page 34 of the Record, put these three questions to him, and he gave the answers following each question: * W h at is th e d a te on e x h ib it M , 27th M ay,2009; W h at is th e d a te on e x h ib it N ; 23 Ju n e ,2009; A p a rt from th ese two docum ents w ere th e re an y o th e r le tte r s o f aw ard to C a rd in a l In v e s tm e n t? N o ." \flL-Ihese were the facts which the prosecution alleged, and were successful in proving, that the Appellant had abused his position and his office, and

. \<{Z~ had wilfully failed to comply with the laws and regulations applicable to the award. The Learned Trial Judge accepted, and relied on these pieces of evidence in her judgment. In his closina address, Mr Edwards, Counsel for the Appeflant submitted that there nPwritten evidence to support PW2's allegation of pressure. The LearnlfcfTrial Judge rejected this submission, and we think she was right in doing so. She heard PW2 give evidence, and also heard the Appellant testify in his own defence. She was in a position to deciae whether PW2's allegation was true or otherwise. However, Mr Edwards conceded that the Appellant signed exhibits M AN though he argued, that mens rea could not be implied on the part of the Appellant by this official act. GROUND 1 ify . We shall now proceed to deal with the grounds of appeal seriatim: In Ground 1, the Appellant submits th a t:" The Le arn ed T ria l Ju d g e e rre d in Law in holding th a t th e ch arg es a s la id in counts 1-3 in clu sive w ere in co n fo rm ity w ith th e re s p e c tiv e se ctio n s nam ely: S e c tio n s 4 2 (1 ) 43 & 4 8 (2 ) o f th e A n ti-C o rru p tio n A c t,2008, and th e re fo re fu lfille d th e leg a l re q u ire m e n ts." SEC TIO N S 42(1), 43 A 43(2)(B) OF THE ACA.2008 KJLW e have set out Counts 1-3 above. We shall now set out the relevant 'Sections. They read as follows:" S e c tio n 4 2 :(1 ) A P u b lic O ffic e r who uses h is o ffic e to im p ro p erly c o n fe r an advantage on h im s e lf o r an y o th e r person com m its an o ffe n c e ; (2 ) A Person g u ilty o f an o ffe n c e under su b sectio n (1 ) s h a ll on convictio n be lia b le to a fin e o f n o t le s s than Le30m iHion o r to im prisonm ent fo r a term o f n o t le s s than 3 y e a rs o r to both such fin e an d im prisonm ent. S e c tio n 43: A P u b lic O ffic e r who know ingly ab u ses h is p o sitio n in th e p erfo rm an ce a ffa ilu r e to p erfo rm an a c t. in co n trave n tio n o f an y taw, in th e d isch arg e o f h is fu n ctio n s o r d u tie s com m its an o ffe n c e and s h a ll on con victio n b e lia b le to a fin e n o t le ss than Le30mHHon o r to im prisonm ent fo r a term n o t le s s than 3 y e a rs o r to both such fin e an d im prisonm ent. S e c tio n 4 8 (2 )(b ): A Person whose fu n ctio n s concern th e ad m in istratio n , custodym an agem ent■ re c e ip t o r use o f an y p a r t o f th e p u b lic revenue o r p u b lic p ro p e rty com m its an o ffe n c e i f he - (a )....(b ) w ilfu lly o r n eg lig en tly fa ils to com ply w ith any law