Koroma v S (CR APP 3 of 2010) [2013] SLCA 19 (19 December 2013)

:f-f. '"- · _,_ .:f-f. ' " . _, .. CR APP 3/2010 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: SHEKU TEJ AN KOROMA - APPELLANT AND THE STATE - RESPONDENT

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICE E E ROBERTS, JUSTICE OF APPEAL THE HONOURABLE MR JUSTICEs A ADEMOSU I JUSTICE OF APPEAL(deceased) COUNSEL: C.F. EDWARDS ESQ (with him, H M GEVAO,ESQ) for the Appellant C T MANTSEBO ESQ for the Respondent , JUDGMENT DELIVERED THE . DAY OF DECEMBER,2012 . . .

Introduction

1. This is an appeal brought by the Appellant, Mr Sheku Tejon Koroma, against his conviction by SEY,J on 11 March,2010 on a 3 Count Indictment charging the offences of Abuse of Office contrary to Section 42(1) of the Anti-Corruption Act,2008; Abuse of Office 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 SEY,J sentenced the Appellant to fines of Le50million in respect of each Count, totalling Le150million, 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, SEY,J Ordered that pursuant to Section 233 of the Criminal Procedure Act,1965, payment of the total fines would be 1- ' ....... . -'r 'f-1 · . ..._ . _, ... f bo deferred for a fortnight with effect from that date , i.e. 11 March,2010. 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 & 48(2) of the Anti Corruption Act,2008 , and therefore fulfilled the legal

requirements. The Learned Trt(Judge erred in Law 'when she' (these two words are missing in the Notice) overruled the defence submission that Count II 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 Trial 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 Notification 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 J / A.. j..J that the Learned Judge shut her eyes to the defence of the ('J:' 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

·.'f-f. ' -.. ' _,_ ""' .;. .... v..~ vJ1 . forgotten, there is action~~~~ i3 irtvttlved: there is a cause or matter . An action, ~ertain~ to civil proceedings. 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 Indictment

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 TEJ AN KOROMA on a date unknown between March ,2009 and May,2009 at Freetown in the Western Area of _ f ( / ... _ Sierra Leone, being the Minister of Health a~d Sanitation, and being a ~ Public Officer, abused his office as Ministe~spect of the award of a contract for the supply of medical consumabfes 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 TEJ AN 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, abused his position as a Minister, in respect of the award . 'f./- . -.. _, .. 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 TEJ AN 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 reagents 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.

Case for the Prosecution

_ (.The case for the prosecution at the trial was that the Appellant was Minister of Health, a part of the Government of Sierra Leone, and was therefore a Public Officer within the terms of the Anti-Corruption Act,2008- ACA,2008. In December,200l 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 documents were tendered collectively by PWl, as ·exhibit A, pages 83-86 of the Record. The Bids were apparently opened on the same 6 October,2008, according to the Ministry's Bid Opening documents, tendered collectively as exhibit B, by PWl also- pages 87-90 ·'f-1. . " . _,_ .'f-f. . " . _,_ \ b3 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 review as evidenced by the minutes of its deliberations dated 31 December,2008, tender ed 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 TEC's 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 :" When I submitted the Technical Evaluation Report in a minute to the Minister he out-rightly objected to the recommendation of Health Care Pharmacy as winner of the bid not-withstanding price differential between the two. He did not do his objection in writing. He did it verbally and kept on insisting that we should not sit as a committee to confirm the recommendation. By me I mean the Procurement Committee membership. He simply demonstrated his preference for cardinal investment but he did not give us any reasons. But we saw it difficult to go by that given the differential in prices and it was contrary to procurement rules. After his objections, as a committee, we waited for his approval and he wanted to ensure that we complied with his instructions that Cardinal Investment should be awarded the contract. When we finally met as a procurement committee and due to the pressure we were getting from the Minister the c~mmittee agreed that Cardinal Investment be awarded the contract for Lot B. After the Committee had agreed I presented a minute to him dated 8 March,2009 .... produced and tendered .... as exhibit G." Exhibit G is actually dated 9 March,2009. It is at page 103 of the Record. Part of this minute reads as follows: " .. .. The Committee was faced with a difficult task in takin51 ~ ~!F#J.~n on Lot B ........ .in respect of which the Technical Evaluation ~mended I\.

'f-1· . " ->- .'f../- . " ->- Health Care Pharmacy who offered the best evaluated bid price of USD666,40738, but which you saw differently and on a number of occasions you gave verbal instructions that that decision should be reversed in favour of Messrs Cardinal Investment who offered a higher bid price of USD689,57550 with emphasis that you would not settle for anything short of that . In compliance with your instructions as the boss, the Procurement Committee therefore had to recommend that Lot 8 be awarded to Cardinal Investment .... " ~In the interim, the National Public Procurement Agency- NPPA, had addressed a letter to PW2 on 16 March,2009- exhibit P , pages 187 & 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 of which he was head, had agreed to resubmit the bid made by HealthCare Pharmacy for Lot 8, for approval by the NPPA ~· According to PW2, once his minute of 9 March,2009 was sent, the ·l 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: "Seen and hope you will take the necessary action needed" 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. It 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 ,y._,. . '-.. . _,... ,y._,. . '-... _,... f b5 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 Manager, Cardinal Investment Limited, exhibit M pages 117-118 of the Record. There, he said, inter alia, "I refer to your Bid for the supply of Laboratory Reagents (Lot B) and to inform you that the Ministry of Health and Sanitation, acting for and on behalf of the Government of Sierra Leone, has approved the award of the contract to your company ..... You are requested to contact the office of the Minister of Health and Sanitation at your earliest convenience to sign the requisite contract documents .... " The date of the letter, and its contents are of immense significance, 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 . tt. As to why the contract was signed by the Appellant , PW3 Mohamed Kallon, Acting Procurement Manager in the Ministry sa id at page 19 of the Record," ... The award letter was signed by the Minister and the contract was also signed by the Minister. Usually, it is not the Minister who signs the award letters . For Lot 8 it was the Minister who signed the letter and the contract . I have got a copy of the contract .... " At pages 30 and 31 of the Record, the Appellant, whilst giving evidence in his own behalf, agreed that he s igned exhibit M. In answer to Q30 in his recorded 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 : II Yes, it has been verbally awarded to Cardinal Investment Limited" Also, on pages 31 & 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. Significantly, at the end of his testimony, SEY,J at page 34 of the Record, put these three questions to him, and he gave the answers following each question : II What is the date on exhibit M,· 27h May,2009; What is the date on exhibit N · 23 June,2009; Apart from these two documents were there any other letters of award to Cardinal Investment? No." \1l.:rhese were the facts which the prosecution alleged, and were successful in proving, that the Appellant had abused his position and his office , and :-f-1· ' -... _,.. .'f-f· ' -... ' _,.. .:f-f. ' -... ' _,.. 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 closi~ address, Mr Edwards, Counsel •- \ l

for the Appellant submitted that there~O'written evidence to support ~ PW2's allegation of pressure. The Learrll'tTrial 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 decide whether PW2's allegation was true or otherwise. However, Mr Edwards conceded that the Appellant signed exhibits M &N though he argued, that mens rea could not be implied on the part of the Appellant by this official act. GROUND 1 Vj. We shall now proceed to deal with the grounds of appeal seriatim: In Ground 1, the Appellant submits that: "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 & 48(2) of the Anti-Corruption Act,2008, and therefore fulfilled the legal requirements." SECTIONS 42(1), 43 & 48(2)(B) OF THE ACA,2008 ~We have set out Counts 1-3 above. We shall now set out the relevant Sections. They read as follows:" Section 42:(1) A Public Officer who uses his office to improperly confer an advantage on himself or any other person commits an offence;