Richard E. Barlay & 2 Others v S (CR APP 7 of 1988) [2003] SLCA 27 (11 June 2003)

§ [Ho RAPP. 1/88 RAPP. 8/88 |. cR APP. 9/88 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN RICHARD E. BARLAY } | TAMBA DUMBAR MATTURI }—- APPELLANTS GEORGE SAFFA AMARA (Decd.) } AND | THE STATE - RESPONDENT | CORAM: HON, JUSTICE DR. A. B. TIMBO i Gh HON. MR, JUSTICE M. O. ADOPHY - | IC. | HON. MR. JUSTICE N. D. ALHADI - TA

| JUDGMENT DELIVERED ON THE [|oay oF Ore | TIMBo,c. J. a | Theappeltants were charged on a two counts Indictment for:

| ion 40 . false pretences contrary to Regulation

(1) Causing money to be paid to another by f a 1987 (P.N No 25 of 1987) as (a) of the Public Economie emergency Regu amended. ‘

| ae ES” a I4\ ? Conspiracy to procure money to be paid a ‘ ‘be Paid by false pretences contrary to Regulation 44 of Public Emergency Regulations 1987, path offences were alleged to have been committed between the 15* day of February 187 and 31" day of July 1987; and on the 15" day of April 1987 respectively. \jl three appellants were found guilty on both counts by Wright J. (as she then was) and sed Le100,000 or 3 years imprisonment for Count 1 and Le100,000 or 3 years mprisonment for Count

2. The fines were cumulative and the sentences to run concurrently. . The first appellant was represented by Mr. Eke Ahmed Halloway while the second and third were represented by Mr. C. V. M. Campbell and later by Mr. Alusine S. Sesay. The 3" appellant died before the commencement of the appeal proceedings. : | shall confine myself in this judgment to the ground of appeal, which I believe is common to all the appellants. This is frequently referred to as the omnibus ground. It slates that “the judgment/verdict is unreasonable and cannot be supported having regard o the evidence.” If the appellants succeed on this, then in my view, it will no longer be eeessary to consider the other grounds. The case for the prosecution was essentially one involving the supply of various spare A to the total Pats by the Maisa Group of Companies of No. 8 Putney Steet wate = ems ; mi in amount of Le149,200 to the Ministry of National Development eal ved A he f le a ‘or which the Government of Sierra Leone had made payment, but as was yy Prosecution the spare parts were never supplied. Wha its 1 & 2? What evidence did the State advance to support both coun i. aii in so far as such 1 , jn prosecution witnesses in $0 “al sat by examining the evden of M8 ews ‘This is Mr. Thorpe, the former Sldence is relevant, First, the evidence of PNY

r hee yrecror of the then Road Transport Department, This len ; ‘ - ; 1¢SS outlined the procedure fc -jequisition of new vehicles and also for the ae ~ . Procurement and or purchase of for vehicles belonging to Governm Spare pats (0 ent Departments, He " icle i . - He stated the procedure briefly follows: The vehicle is first submitted to the R: ad sction. This is followed by the collecti a Depermest fr inspection. ) lection of the Pro forma invoices. When these have | been obtained a ies form is prepared by the relevant Mini and is then o ih witness for scrutiny and approval, After approval an L P O is prepared by the Ministry concerned. Finally, the L P O required the signature of the Ministry and the Minister of State, Finance. . js important to note that this witness admitted that there were several Government Departments and Ministries which never complied with these procedural requirements to send their vehicles for inspection and also to register those vehicles that have been newly | scquired. Specifically, the witness said the Ministry of Development and Economic | Planning was one such Ministry which consistently failed to adhere to these procedures | and observed further that State House was the biggest culprit in this regard. The practice | of negotiating the procurement of spare parts by the Ministries themselves had gone on forages and is common knowledge that even without the participation of R T. D. in such purchases by the Ministry of Finance, the Treasury and the Bank of Sierra Leone = h - fing dela) always sanctioned such purchases or payments. The hold-ups and unending —_ : B . ‘ . nae | led most Ministries and Departments into the practice of buying their spare parts |) hemselves,

| oc stitute & , . sa with procedure cannot cons! | s practice though not strictly in conformity ———— ‘aioe: the B . fence with which in my opinion, | “iminal offence as such and certainly not the of | Pellants were charged. A which is the intention to let me f the offence in Count 1, es | now tum to the mens rea © for obtaining money by false preten fre . ction for “Sud 1s ite taw that to obtain 8 CORVISHE? TU rane pretence alles t st be established that the money “ “we alleged false pretence operated on the mi 1e "8 to say, the prosecution must prove tm

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mind of the person alleged to have by . mind een defrauded and induced him either wholly or ily to part with the money. See R , voys} 30 Cr Ap. R. 13 ¥ Grail [944] 30 Cr. App. R. 81; R v Sullivan 945] 30 Cr. App. R. 132; Regina A . 1945) gina v Amadu Bunduka Chirm Cr. App. 29/63; Welham v p.p.P. [1960] 2 W LR

66. The prosecution tried to establish that the Maisa Group of Companies had no intention to supply the spare parts, procured to the Government of Sierra Leone. For an offence to be committed, the mens rea must precede and or run in conjunction with the clus reus of that offence. In other words, what the prosecution must prove is that before at the time they obtained the payment for the spare parts the Maisa Group had already formed the mens rea i.e. the intention not to supply and this, the appellants knew. From the evidence of Amadu Bangura P. W. 7, ie. an Accountant in the Ministry of Development and from the statement of the 1* Appellant it is manifest that contrary to Government regulations on procedure Ministries had inculcated the habit of completing al the necessary paper work thus creating the impression that the supply had already been made thereby causing payment to be effected to the supplier even though in =~ fact no such supply had been received. Because of bad experiences in the past “ _ . fused to ly goods unless with Government Ministries suppliers had repeatedly re orev! ised by the 1* Appellant in his statement when had actually been paid. This was emphasised bY joods to our Ministry before payments are he said — “no business concern ever supply 8: iver" ivery. nade. The practice had always been “payment before delivery. 9 tion to establish that | i. -e-nat impossible for the prosecut | _ Deing the case, itis canal at the Maisa Group ‘of Companies they had

| before or at the time when payment was mace "0 intention to supply. | the offence in count] had not | mens rea | IMthese circumstances, I therefore hold that the eet ae appellants. The 7 tus Fel i "een proved by the prosecution nor the act arts rested entirely on the supplier Company {Uestion whether or not to supply the spare Pa 8nd not the appellants.

f i . on the second count 0! conspiracy, for a conspiracy charge to hold, the ama ¢ s an a} rove that there Was an agreement of two or more persons to do an unlawful act or to do a awful act bY unlawful means - R. v Thompson. 50 Cr. App R 1. | Here, in my considered opinion all that the appellants were doing in signi vouchers was tO comply with the procedure prescribed by the Ministry for the procurement of the spare parts. . They were simply executing their legitimate duties. Each person was doing exactly what he was authorized to do. The prosecution must prove that the alleged conspirators were acting in pursuance of a criminal purpose held in common between them and that each conspirator knew that there was in existence or oming into existence a scheme which went beyond the illegal act which he agreed to do. To quote the exact words of Paull J inRv Griffiths and ors [1965]2 All ER 448 (the “time fraud” case) “in law all must join the one agreement, each with the others in Mejpsied constitute one conspiracy: They may join in at various cow af the attaching himself to that agreement; any On€ of them may noth ae oa other parties, but only that there are other parties; ay om pimeelf cat pao know the full extent of the scheme to which he attaches his. i heme t W nto existence, oF is in existenes, a each must know is that there is coming hich he to do” (at PPscheme which goes beyond the illegal act whic! grees

| 7 pound to succeed and I In view of what I have said aboves ih? appeals are DO ai . ashed and if ny fines have been paid, they so hold, The convictions are 4 | should be refunded. 4S he C B. TIMBO, C- J. HON. JUSTICE DR. A. B. » - JSC. layers ¢ & MR ystice M-0- ADOPHY ree, RNS FT as eeON DAHA LA ‘eee meen ON MR SUSTICE :D.