S v Hamzza Alusine Sesay & Anor [2011] SLSC 13 (10 February 2011)

IN THE HIGH COURT OF SIERRA LEONE HOLDEN AT FREETOWN THE STATE Vs HAMZZA ALUSINE SESAY SARAH FINDA BENDU C MANTSEBO ESQ for the state R S WRIGHT ESQ for the 1st Accused E E C SHEARS-MOSES ESQ and S K KOROMA ESQ for 2nd Accused BEFORE THE HON. JUSTICE N C BROWNE-MARKE JUDGMENT DELIVERED THE 10 DAY OF FEBRUARY, 2011.

Introduction

1. The two accused persons are jointly charged in a 10 count Indictment with various offences under the Anti-Corruption Act, 2008. Both accused persons are charged in Count 1 with the offence of Misappropriation of Public Funds, to wit, the sum of Le419,200,000, Contrary to Section 36(1) of the Act; and in Count 2, with the offence of Misappropriation of Public Revenue, to wit, the sum of Le606,400,000 contrary to Section 36(1) of the Act. The prosecution alleges in Count 1 that on or about 23 July, 2009 at Freetown the two accused persons misappropriated public funds in the sum of Le419,200,000 being monies entrusted to the 1st accused as the Managing Director of Mabella Industries Limited by the Sierra Leone Road Transport Authority (SLRTA) on the authorization of the 1st accused, then Acting Executive Director, SLRTA, as part payment for the supply of one heavy duty tow truck to the said to the said SLRTA. In Count 2, the prosecution alleges that on or about 23rd July, 2009 at Freetown, the accused persons misappropriated the sum of Le606,400,000, being monies entrusted to the 1st accused as Managing Director for Maabella Industries Limited by SLRTA, on the authorization of the 2nd accused, then Acting Executive Director, SLRTA, as part payment for the supply of one Towing truck to the said SLRTA

2. In Counts 3, 4, 5, 6 & 7, the 2nd Accused alone, being the Acting Executive Director of Sierra Leone Road Transport Authority (SLRTA), is charged with various offences under Section 48 of the Act. These offences deal with the matter in which the 2nd accused, in her capacity as Acting Executive Director, and thus the Professional and Administrative Head of SLRTA dealt with the procurement of two tow trucks from Mabella Industries Limited, of which the 1st accused Managing Director. Particular of the Rules allegedly breached by the 2nd accused, were filed by the prosecution of 26 October, 2009.

3. In Count 3, the 2nd accused alone is charged with Making an Excessive payment from Public Revenue for sub-standard goods, contrary to Section 48(2) (a) (i) of the Anti- Corruption Act, 2008. It is alleged that on or about 23 July, 2009 the 2nd accused as Acting Executive Director, SLRTA, made an excessive payment out of public revenues for sub-standard goods, to wit, an excessive payment of the sum of Le419,200,000 out of the funds of the SLRTA, to 1st accused, as Managing Director of Mabella Industries Limited, for the supply of one sub-standard and defective tow truck to the SLRTA. Count 4 charges that the 2nd accused, contrary to the same provision in the Act, made another excessive payment in the sum of Le606,400,000 out of public revenues, i.e. out of funds belonging to the SLRTA 1st accused as Managing Director of Mabella Industries Limited, for the supply of one sub-standard and defective tow truck to the SLRTA.

4. Count 5 and 6 charge the 2nd accused with the offence of making a Fraudulent Payment from Public Revenue for defective goods contrary to Section 48(2) (a)(i) of the 2008 Act. The particulars of the Count allege that the 2nd accused made a fraudulent payment of Le419,200,000 out of the funds of the SLRTA to the 1st accused as Managing Director of Mabella Industries Limited as part payment for the supply of one sub-standard and defective tow truck to the SLRTA. In Count 6, it is alleged that the 2nd accused made a fraudulent payment of Le606,400,000 out of funds to the 1st accused as Managing Director of Mabella Industries Limited, for the supply of one sub-standard and defective tow truck.

5. In Count 7, the 2nd accused is charged with the offence of willfully failing to comply with 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 2008 Act. The Particulars allege that on a date unknown between 18th September, 2008 and 18th September, 2009 at Freetown, the 2nd accused willfully failed to comply with the laws, procedures and guidelines relating to procurement of property, tendering of contracts and management of funds, to wit: she failed to comply with the provisions of the Public Procurement Act, 2004 and Regulations made thereunder, in awarding the contract for the purchase of the two towing trucks to Mabella Industries Limited.

6. On 16 October, 2009 I Ordered the prosecution to provide, and to file particulars of the 2004 Act, and of the Regulations, 2nd accused allegedly willfully failed to comply with. Such particulars were filed on 26 October, 2009 by Mr Mantsebo. Those particulars allege that the 2nd accused failed to comply with Sections 18, 26, 37, 39, 40, 50, 51, and 52-62 of the Act. As regards the Regulations, the prosecution particularises that Regulations 11, 12, 15, 16, 38-46, 51-76, 118-139, 152 and 153 of Public Procurement Regulations, 2006.

7. The Public Procurement Act, 2004 and 2006 Regulations apply to the SLRTA, it being an Agency created by Government through an Act of Parliament, the Sierra Leone Transport Road Authority Act, 1996. See Section 1(1) of the 2004 Act. The SLRTA is also a Procuring Entity to which the Act applies, by virtue of Section 2 of the Act. It states that a Procuring Entity means “ organ of the state ….as well as statutory bodies, public sector corporations which are majority owned by Government, public utilities using revenue collected by the sale of public services, as well as any physical or judicial person to whom public funds have been allocated for use in public procurement.” Sub-section 1(2) makes it clear that all procurement by a body such as the SLRTA is governed by the Act.

8. Section 18 of the Act deals with the establishment and functions of a Procurement Unit. Section 26 provides that the procuring authority shall promptly publish in the Gazette and any news paper of wide circulation notice of each contract award in which the price of the contract exceeds the threshold set in the 1st schedule, indicating the contract price and the name and address of the successful bidder. The 1st schedule sets the threshold for a contract for the procurement of goods, at Le300million. Section 37 deals with the choice of method of procurement. It provides that public procurement shall be undertaken by means of open bid proceedings, to which equal access shall be provided to all eligible and qualified bidders without any discrimination, subject only to the exceptions provided in sections 38,39, 40 and 41 of the Act. Those sections set out the set of circumstances in which it is permissible for a procuring entity to depart from the open bidding proceedings. Section 39(2) expressly provides that the procuring entity is not required to employ national competitive bidding procedures if the estimated contract amount is lower than Le300million. Section 40 on the other hand makes it clear that International Competitive Bidding procedures should be employed where the contract sum exceeds Le300million. But also Section 40 permits restricted bidding in certain circumstances. The conditions for utilising those procedures are spelt out in Section 42.

9. Sole sourcing is permitted in the circumstances set out in Section 46(1). Such circumstances could be where there is an urgent necessity, provided the urgency was unforeseen by the procuring entity and the urgency was not the result of dilatory conduct on the part of the procuring entity. I have referred particularly to this provision, though it is not one of those specified by Mr. Mantsebo, because sole-sourcing was the subject of cross-examination by Defence Counsel, and is an exception to the procedures laid down in Section 37, particularised by Mr. Mantsebo, though not so expressly stated in the provision. Section 47 provides that when a procurement entity engage in sole-sourcing it “..shall prepare a written description of its needs and special requirements as to quality, quantity, terms and time of delivery; and shall request submission of a bid or proposal in writing or both, and shall be free to negotiate with the sole bidder. It also provides in subsection (2) therefore that “publication in the Gazette, a national newspaper ….of a notice of the holding of sole source procurement proceedings is required when the estimated value of the procurement exceeds…..” Le300million – i.e. the threshold set in the 1st schedule for the procurement of goods. Sections 48-62 of the Act deal with the bidding process, but as there is credible evidence before me that there was an open bidding in this case. I shall not dwell further on them.

10. Of the 2006 Regulations, I shall only refer specifically to Regulations 40, 45, and 114 and 115 which deal with emergency procurement and sole-sourcing; and to Regulation 41 which deals with restricted bidding. The limitations on sole-sourcing are clearly spelt out in Regulations 45, 114 and 115, I shall return to them later when dealing with the

Evidence

Regulations 41 merely replicates Section 41 of the Act. I shall also refer specifically to Regulation 135 which deals with advance payment. Regulation 135(3) provides that advance payment shall not exceed 30%of the total cost price. Regulations 135(4) provides for the provision of an advance payment guarantee by the supplier.

11. In Counts 8, 9 and 10 of the Indictment, both accused persons are charged with conspiracy offences contrary to Section 128(1) of the Act. In count 8, the prosecution alleges that both accused persons conspired to misappropriate the sum of 419,200,000; in Count 9, that both accused persons conspired to misappropriate the sum of Le606,404,000; and in Count 10, that both accused persons “on diverse dates between 1st April, 2008 and 18th September, 2009 at Freetown in the Western Area of the Sierra Leone, conspired to make an excessive and fraudulent payment out of public revenues for sub-standard and defective goods, to wit, payment out of the funds of Sierra Leone Road Transport Authority, in the sum of Le1,025,600,000 to HAMZZA ALUSINE SESAY, Managing Director of MABELLA INDUSTRIES LIMITED, as part payment for the supply of two sub-standard and defective tow trucks to the said Sierra Leone Road Transport Authority.”

THE ANTI-CORRUPTION ACT, 2008

12. Section 36(1) of the Act provides that “a person who misappropriates public revenue, public funds or property commits an offence. Sub-section (2) of the Act provides that “a person misappropriate public revenue, public funds or property if he willfully commits an act, whether by himself, with or through another person, by which a public body is deprived of any revenue, funds or other financial interest or property belonging or due to that public body.” As to what a “public body” means Section 1 of the Act, a Public Body is defined, inter alia, as including “…. the cabinet, any ministry, department or agency of Government, a Government Company….a company or other body or organization established by an Act of Parliament or out of moneys provided by Parliament or otherwise set up by partly or wholly out of public funds……” SLRTA is a body established by an Act of Parliament – the Road Transport Authority Act, 1996 and so is therefore a Public Body within the meaning of the Act. It is a body corporate and its “…operations, according to Section 18(1) of the Act, shall be financed by a fund consisting of (a) such portion of the vehicle licensing and registration fees as the Authority is allowed to retain before the payment of such fees into the Road Fund….(b) such moneys appropriated from time to time by parliament for the purpose of the Authority; (c) the monies accruing to the Authority in the course of its operations; and loans raised by the Authority with the approval of the Minister.”

13. As to what “Misappropriates” and “willfully” amount to in the Act, I adopt my explanation in the case of THE STATE v KOMEH & MANS judgment delivered 18 January, 2011, where I said, inter alia, at paragraph 6 & 8: “As to what Misappropriation is, I adopt my statement of the law in this respect in the case of THE STATE v MANNEH & ANOR Judgment delivered 20 May, 2008. “The term “Misappropriates” in the Act, is not in my view, a term of art. It is akin to “appropriation” in the United Kingdom Theft Act, 1968. Appropriation in that Act involves the assumption of the rights of the owner by the Accused. Here, wilfull commission of any act which results in the owner losing funds belonging to it, amounts to misappropriation. There is Misappropriation also whether the owner of the funds consented or not to the deprivation of funds. In the UK law of Theft, the consent of the owner is irrelevant as was pointed out by the House of Lords in LAWRENCE v METROPOLITAN POLICE COMMISSIONER (1971) 2All ER 1253, and in R v GOMEZ (1993) 1 All ER 1, both of them cases dealing with theft, where it had been argued unsuccessfully by the respective Appellants, based on the speech of LORD ROSKILL in MORRIS(1983) 3 All ER288 at Page 295 (where he appeared to suggest that appropriation in the circumstances of that case involved not just the substitution of price labels by the accused, but also that such an act must also “adversely interfere with or usurp the right of the owner…’,)that the owners in each of those cases had consented to parting with their respective properties. In Lawrence it was an extra sum of 6 Pounds; in GOMEZ, it was the delivery by the owner of electrical goods to a third party, paid for by stolen cheques, to the knowledge of, and through that machinations of Gomez. I also seek to support in the words of SELLERS, LJ in a civil case: SINCLAIR v NEIGHBOUR (1966) 3 All ER 988 at 989 paras C-D. There, the Respondent was dismissed because of dishonest appropriation of money. In considering the right test to apply in these circumstances he said, inter alia, “ it was sufficient for the employer, if he could, in all the circumstances, regard what the employee did as being something which was seriously inconsistent-incompatible with his duty as manager in the business in which he was engaged. To take money out of the till in such circumstances is on the face of it incompatible and inconsistent with his duty.” I shall later in my Judgment have to consider whether authorizing the debiting of one’s employer’s account or balance in the books, without authority, amounts to conduct incompatible with the terms of one’s employment. Of course I fully realise that much more than incompatibility and inconsistency are required in determining the guilt or otherwise of the accused persons on a criminal trial.” Further, the act which causes deprivation of funds, must be willful. The other elements of the offence are that: i) the Accused must have acted willfully, whether by himself, with or through another person; and ii) that these acts must have caused the Public Body to be deprived of revenue, funds or other financial interest, or property belonging to the said public body.

14. As to what “willfully” under the Act amounts to, I shall refer once more to MANNEH’s case where I said, inter alia, “The Learned Editors of the 2002 Edition of BLACKSTONE’S CRIMINAL PRACTICE, have at paragraph A2. 8 suggested that the relevant meaning of ‘wilful.’ They submit that it is now a “composite to cover both intention and type of recklessness.” They cite the explanation given by LORD DIPLOCK in SHEPPARD (1981) AC 394, where, in a case of child neglect, he said the ‘wilful’ in the context of the UK Children and Young Persons Act, 1933 involved the actus reus of failing to provide the child with medical aid; and the mens rea of the parent, that of being aware of the of the risk of the child’s health if not provided with medical aid, or that the parent’s unawareness of this fact was due to his not caring whether his child’s health were at risk or not. The Editors submit further that, ‘wilfulness requires basic mens rea in the sense of either intention or recklessness , and that even in the absence of the word ‘wilfully’ this is the mens rea which will normally be implied by the Courts for serious criminal offences in the absence of any other factor indicating a wider or narrower basis. Though dishonesty is not specifically stated to be an element of the offence under Section 12, it is my view that it would be inconceivable to convict an accused of this offence in the absence of proof of dishonesty. In GHOSH (1982) 2QB 1053; (1982) 2 All ER 689, the Court of Appeal held that dishonesty should be determined in two stages: i) the tribunal of the fact should decide whether, according to the ordinary standards of a reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that should be the end of the matter and the prosecution fails; ii) if it was dishonest by those standards, then that tribunal should consider also whether the Defendant himself must have realized that what he was doing was by (by the standards of reasonable and honest people) dishonest. The Court said further, that “it is dishonest for a defendant for a defendant to act in a way which he knows ordinary people consider to be dishonest to act in a way which he genuinely believes that he is morally justified in acting as he did.”