Court name
Supreme Court
Case number
SC APP 1 of 2020

Emmanuel Ekundayo Constant Shears-Moses v The state (SC APP 1 of 2020) [2022] SLSC 2 (22 May 2022);

Media neutral citation
[2022] SLSC 2
Case summary:

The Appellant being dissatisfied with and aggrieved by the decision/judgment of the Court of Appeal-the Appellant was acquitted and discharged of the two counts of the offence of Abuse of office-All fund Paid by the Appellant was refunded to him.

Coram
Halloway, JSC
Sesay, JSC
Deen-Tarawally, JSC
Sengu Koroma JSC
Sesay, JA

JUDGEMENT DELIVERED this lltk day of    2022

EMMANUEL EKUNDAYO CONSTANT SHEARS-MOSES, the Appellant herein being dissatisfied with and aggrieved by the Decision/Judgement of the Court of Appeal comprising the HON. JUSTICE E. TAYLOR-KAMARA JA. the HON. JUSTICE S.A. BAH JA and the HON. JUSTICE F.B. ALHADI JA delivered by the HON. MR JUSTICE E. TAYLOR-KAMARA JA on the 10lh August 2020, hereby on the 3rd September 2020, appeal the said Decision/Judgement on several grounds. Ground One (1) of which inter alia includes the Grounds that the Learned Justices misdirected themselves in law as to whether the offence charged is laid down by the ANTI-CORRUPTION ACT NO. 12 OF 2008 or by an explanation by the marginal note, misdirected themselves when they stated, that the seal of the ANTI CORRUPTION COMMISSION is not required to indicate that it is the deed of the commission and misdirected themselves when they stated, that there is a distinction between a bill of indictment and an indictment in Section 130 of the CRIMINAL PROCEDURE ACT 1965 and therefore the various authorities on when a bill of indictment becomes an indictment do not apply and that the Learned Justices stated that the offence charged is a specific one different from misconduct in public office and so ignored that the marginal notes in the ANTI¬CORRUPTION ACT NO. 12 of 2008 is a short form of misconduct in office which encapsulates Abuse of Office.

I uphold the view, that of the questions of law which were raised from the Grounds of Appeal aforesaid, at the Court below, Two (2) of them are the same questions of law which have been raised at this Court, these being, that the Anti-Corruption Commissioner is not the proper person to sign an Indictment pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965 and that there is no statutory offence of Abuse of Office created by Section 42(1) of the ANTI-CORRUPTION ACT 2008.
I am of the view, that it would be best to first address the question of law posed, that the Anti-Corruption Commissioner is not the proper person to sign an indictment which has been preferred, pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965. The application of the said Section is subject to Section 136 of the CRIMINAL PROCEDURE ACT aforesaid, the same which provides that no Indictment shall be signed or filed in respect of any criminal offence unless there has been a committal for trial consequent upon a previous preliminary investigation except in case of Indictments which by law may be preferred by the direction of or with the consent in writing of a Judge. Section 130 aforesaid provides that:
‘Subject to Section 136 above of the CRIINAL PROCEDURE ACT 1965 an Indictment charging any person with an offence triable before the High Court may be preferred by any person before a Court in which the person charged may be lawfully indicted for that offence and where an Indictment has been so preferred, a Law Officer shall sign the Indictment and it shall there upon be proceeded with accordingly*

The principal contention of C.F. MARGAI ESQ. of Counsel for the Appellant, is that further to the preferment of the Indictment charging the Appellant of an offence under the ANTI-CORRUPTION ACT 2008 and pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965, the said Indictment should be signed by a Law Officer. C.F MARGAI ESQ. submits, that since the Anti- Corruption Commission is not a Law Officer the signing of the said Indictment by him violates Section 130 aforesaid, the said Section which has not been repealed, nor is a Law Officer signing an indictment as stipulated in Section 130 aforesaid, an act which has been excluded by the ANTI-CORRUPTION ACT 2008. It cannot be disputed, that the whole of Section 89 of the ANTI-CORRUPTION ACT aforesaid, which is relied upon by the Respondents as giving authority for the Anti-Corruption Commissioner to sign an Indictment is completely silent on the signing of an Indictment. It gives authority only for the Anti-Corruption Commission to prefer an indictment. It would seem then that Sections 130 of the CRIMINAL PROCEDURE ACT aforesaid, implies that when an indictment which has been preferred by the ANTI-CORRUPTION COMMISSION, must be signed by a Law Officer before it is filed and served on the Accused person(s). But this position seems to have been contradicted by Section 89 of the ANTI-CORRUPTON ACT 2008 which provides in part as follows:
‘An Indictment preferred by the Anti-Corruption Commission shall be filed and served on the Accused’
The above section of the ANTI-CORRUPTION ACT 2008 amplifies the fact that the whole of Section 89 of the said ACT is silent on the signing of an Indictment preferred by the Anti-Corruption Commission. It cannot be disputed that it would seem as if the above section implies that an Indictment preferred by the Anti-Corruption Commission need not be signed. It shall immediately, after such preferment be filed and served on the Accused person(s). Obviously this cannot be the position of the law. by reason that before an Indictment is filed and served on the Accused person(s) it must not only have been preferred, it must be signed. I hold the view, that it is by reason that it cannot be the law for an Indictment to be filed and served on the Accused person(s) immediately after it is preferred without it been signed and by reason that Section 89 (4) of the ANTI-CORRUPTION ACT 2008 does not fill in that gap requiring a signature is what I feel has provoked C.F. MARGAI ESQ to conclude that this gap which Section 89 (4) of the ANTI-CORRUPTION ACT aforesaid, creates ought to be filled up by the provisions of Section 130 of the CRIMINAL PROCEDURE ACT 1965, in that it is a Law Officer who shall sign an Indictment which has been preferred.

C.F MARGAI ESQ of Counsel for the Appellant, reinforces his conclusion above by his submission that Section 130 of the CRIMINAL PROCEDURE ACT 1965 is still good law and has not been repealed nor is a Law Officer signing an Indictment as instinuated in Section 130 aforesaid an art which has  been excluded by the ANTI-CORRUPTION ACT 2008. I hold the view that the conclusions of C.F MARGAI ESQ. will be upheld if I cannot show anything contrary to the law which he has submitted reinforces his conclusion aforesaid.

In other words, if I cannot show that Section 89 of the ANTI-CORRUPTION
ACT 2008 gives authority to the Anti-Corruption Commissioner to sign an indictment after the same has been preferred and or I cannot show that a Law Officer signing an indictment as stipulated in Section 130 aforesaid is an act which has been excluded by the ANTI-CORRUPTION ACT aforesaid.

In considering the submission of C.F MARGAI ESQ, that the signing of an Indictment by a Law Officer that has been preferred by the Anti-Corruption Commission is still good law because Section 130 of the CRIMINAL PROCEDURE ACT 1965 has not been repealed, reference will be made to Section 108 of the CRIMINAL PROCEDURE ACT aforesaid, the same which provides as follows- ‘where a person is before the Magistrate charged with an offence which is triable exclusively by the High Court or in the opinion of the Magistrate ought to be tried by such Court, the Magistrate shall conduct a preliminary investigation into the charge alleged, in accordance with the procedure laid down in PART III of the CRIMINAL PROCEDURE ACT 1965*.
It cannot be disputed that all offences created under the ANTI-CORRUPTION ACT 2008 are criminal offences and that by virtue of Section 89 (1) of the said ACT, the said offences are triable exclusively by the High Court. This being the case, and by the application of Section 108 of the CRIMINAL PROCEDURE ACT aforesaid, a Magistrate should conduct a preliminary investigation into the charge alleged of an offence under the ANTI-CORRUPTION ACT aforesaid, in accordance with the procedure laid down in PART III of the CRIMINAL PROCEDURE ACT aforesaid. It is the case however, that by virtue of Section 89(2) of the ANTI-CORRUPTION ACT aforesaid, an Indictment relating to an offence under the ANTI-CORRUPTION ACT, shall be preferred without any previous committal for trial, meaning thereby, that an exception is made for the compliance of the conduct of a preliminary investigation by a Magistrate in accordance with Section 108 of the CRIMINAL PROCEDURE ACT aforesaid, for all offences under the ANTI-CORRUPTION ACT aforesaid. In this regard, it cannot be disputed that Section 89(2) of the ANTI-CORRUPTION ACT aforesaid, gives authority to the Anti-Corruption Commission to inrefer an Indictment for a criminal offence exclusively triable at the High Court without a Magistrate conducting a preliminary investigation into the charge alleged. It is also true to say that the said Section 89(2) specifically excludes such a criminal offence to be subject to the conduct of a preliminary Investigation by its provision that an offence under the ANTI-CORRUPTION ACT shall be preferred without any previous committal for trial and it shall in all respects be deemed to have been preferred pursuant to a consent in writing by a Judge granted under Section 136(1) of the CRIMINAL PROCEDURE ACT 1965 and shall be proceeded with accordingly.

It should be noted that Sections 108 and 136 of the CRIMINAL PROCEDURE ACT 1965 is still good law and has not been repealed even by the enactment of Section 89(2) of the ANTI-CORRUPTION ACT 2008 All that can be said is. that Sections 108 and 136 of the CRIMINAL PROCEDURE ACT aforesaid will not apply when a criminal offence which is triable exclusively at the High Court are offences under the ANTI-CORUPTION ACT aforesaid, but which said provisions will apply fully when the said offences are ones other that those under the ANTI-CORRUPTION ACT. The above issues regarding Sections 108 and 136 of the CRIMINAL PROCEDURE ACT 1965 have been brought up to establish the fact that criminal offences generally have now been distinguished in that those created under the ANTI-CORRUPTION ACT 2008 are distinct from those other general criminal offences. The procedure adopted in treating general criminal offences in so far as preliminary investigations are concerned, is different from that of offences under the ANTI-CORRUPTION ACT aforesaid.

It cannot be disputed that at the time the CRIMINAL PROCEDURE ACT 1965 was enacted all criminal offences prosecuted in the name of the Republic of Sierra Leone was at the suit of the Attorney-General and Minister of Justice or some other person authorised by him. the same which was reinforced by the provisions of Section 64(3) of the CONSTITUTION OF SIERRA LEONE 1991. In this regard, all criminal offences which were triable exclusively by the High Court, even though they might have been preferred by any person, they shall be signed by a Law Officer after its preferment without any exception. The enactment of the ANTI-CORRUPTION ACT 2000 saw the establishment of the Anti-Corruption Commission, which created several offences separate and distinct from the other general criminal offences. This distinction notwithstanding, interpretation of the applicable law is that these offences were still been prosecuted in the name of the Republic of Sierra Leone at the suit of the Attorney General and Minister of Justine nor some other person like him and in that regard.

Section PROCEDURE ACT aforesaid still had to be complied with The pertinent question is ‘did this position remain the same after the repeal of Section 64(3) of the CONSTITUTION OF SIERRA LEONE 1991’. An answer to this question could be found by considering Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008 which provides thus: •The CONSTITUTION OF SIERRA LEONE 1991 is amended by the repeal and replacement of Sub section (3) of Section 64 thereof by the following sub section (3) that all offences prosecuted in the name of the Republic of Sierra Leone except offences involving corruption under the ANTI¬CORRUPTION ACT 2000 shall be at the suit of the Attorney General and Minister of Justice or some other person authorised by him in accordance with any law governing the same’

It cannot be disputed that the enactment of the above changed the position above, in that all offences under the ANTI-CORRUPTION ACT 2000 prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Anti-Corruption Commissioner. By extension and at the enactment of the ANTI-CORRUPTION ACT 2008 which repealed the ANTI-CORRUPTION ACT 2000, all offences under the ANTI-CORRUPTOIN ACT 2008 prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Anti-Corruption Commissioner. Obviously the position which prevailed before the enactment of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDEMENT) ACT 2008 that all offences under the ANTI-CORRUPTION ACT 2000 prosecuted in the name of the Republic of Sierra Leone at the suit of the Attorney General and Minister of Justice changed thereafter. Obviously, if prosecution of an offence under the ANTI-CORRUPTION ACT 2008 prosecuted in the name of the Republic of Sierra Leone, is at the suit of the Anti-Corruption Commissioner, then it cannot be a Law Officer that would have to sign the Indictment that is preferred by the Anti-Corruption Commission since the autonomy which was given the Anti-Corruption Commission by Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDEMENT) ACT 2008 as spelt out in the ANTI-CORRUPTION ACT 2000 which established it would still be non-existent. Section 130 of the CRIMINAL PROCEDURE ACT 1965 no longer applies in so far as Indictments preferred by the Anti-Corruption Commission are concerned. The same now fully empowers the Anti-Corruption Commissioner to sign all Indictments preferred by the Anti-Corruption Commission.
 

By reason of the above, I hold the view, that by virtue of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDEMENT) ACT 2008. Section 130 of the CRIMINAL PROCEDURE ACT 1965, cannot be applicable to offences created under the ANTI-CORRUPTION ACT 2008 and in this regard, a Law Officer cannot be the one signing an indictment preferred by the Anti-Corruption Commission. The fact that Section 130 of the CRIMINAL PROCEDURE ACT 1965 has not been repealed is immaterial to the non- applicability of rt in so far as offences under the ANTI-CORRUPTOIN ACT 2008 is concerned. Analogous to the situation regarding Sections 108 and 136 of the CRIMINAL PROCEDURE ACT aforesaid, whereas Section 130 of the said ACT have not been repealed, even by the enactment of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008. it will not apply when a criminal offence which is triable exclusively at the High Court are offences under the ANTI-CORRUPTOIN ACT 2008. but the same will still be good law and will apply fully when the said offences are ones other than those under the ANTI-CORRUPTION ACT aforesaid. If it cannot be true that Section 130 of the CRIMINAL PROCEDURE ACT 1965 cannot be applicable to offences created under the ANTI-CORRUPTION ACT 2008 and that it is a Law Officer that would have to sign an Indictment preferred by the Anti-Corruption Commission and it is him that should sign all Indictments preferred by the Anti-Corruption Commission, then Section 130 aforesaid, would conflict with Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008. Consequently. Section 130 of the CRIMINAL PROCEDURE ACT 1965 would be void and of no effect in so far as offences under the ANTI-CORRUPTION ACT 2008 are concerned, by virtue of Section 171(15) of the which provides thus:
'The CONSTITUTION OF SIERRA LEONE 1991 shall be the Supreme law of Sierra Leone and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistencies be void and of no effect’.
I hold the view that even though as stated above, the whole of Section 89 of the ANTI-CORRUPTION ACT is silent on the signing of an Indictment preferred by the Anti-Corruption Commission, it does not make the signing of an Indictment aforesaid, by the Anti-Corruption Commissioner void and of no effect It is an Indictment which has been preferred and not signed before it is filed and served on the Accused person(s) that would be void and of no effect It stands to reason that an Indictment which has been preferred by the Anti- Corruption Commission would eventually be sinned before it IR filed and served on the Accused person, in which case omission of the signing part in Section 89 aforesaid is immaterial. Obviously, since by virtue of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008. all offences under the Anti-Corruption Act 2008 shall be at the suit of the Anti-Corruption Commissioner it can be no other person but him that would have the authority to sign an Indictment preferred by the Anti-Corruption Commission or any other person lawfully authorised by him in that regard In this case, the Indictment herein was signed by the Anti-Corruption Commissioner.

On the issue of the signing of the Indictment by the Anti-Corruption Commissioner without affixing the seal of the Anti-Corruption Commission, I hold the view that it is not the seal that makes the signature of the Anti-Corruption Commissioner authentic. It is the signature itself which makes it authentic. Obviously, the signature itself is always authentic, unless evidence is shown that it was not the signature of the Anti-Corruption Commissioner. In this case there is no such evidence that the signature on the Indictment preferred against the Appellant was not that of the Anti-Corruption Commissioner. On the issue of the Anti-Corruption Commissioner bringing its prosecution in the name of the State and not in the name of the Anti-Corruption Commission, it should be pointed out that all criminal offences whether or not they are offences under the ANTI-CORRUPTION ACT 2008 are brought in the name of the Republic of Sierra Leone. It is clear that by virtue of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENET) ACT 2008, all criminal offences except those under the ANTI-CORRUPTION ACT 2008 are at the suit of the Attorney-General and Minister of Justice. For those offences under the ANTI-CORRUPTION ACT 2008, those offences are at the suit of the Anti-Corruption Commissioner. Consequently, the distinction here is that in whose name the offence is brought and at the suit of who. It is the case therefore that all criminal offences in Sierra Leone including those under the Anti-Corruption Act 2008 are brought in the name of the Republic of Sierra Leone.

In this regard, I hold the view that nothing was wrongly done by the Respondents in bringing the offence for which the Appellant is charged herein in the name of the STATE.

I uphold the submission of C.F MARGAI ESQ. that the question whether it is the Law Officer pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965 or the Anti-Corruption Commissioner that should sign an indictment preferred by the Anti-Corruption Commission, for an offence under the ANTI-CORRUPTION ACT 2008 is indeed a very important issue In this regard it  cannot be gainsaid that all possible avenues available within the Law must be explored so that a comprehensive, correct and good law addressing the issue be put in place. C.F. MARGAI ESQ. of Counsel for the Appellant submits that the signing by the Anti-Corruption Commissioner of an Indictment preferred by the Anti-Corruption Commission is wrong in law and since this is what has been done persistently in the past in so far as offences under the ANTI-CORRUPTION ACT 2008, is concerned, this Court now has the opportunity to solve and pave the way for the proper thing to be done since an Indictment signed by the Anti-Corruption Commissioner, even when it is preferred by the Anti-Corruption Commission in respect of an offence created under the ANTI-CORRUPTION ACT aforesaid, would be ineffective and must render a trial on it a nullity.

Even though I have held above that Section 130 of the CRIMINAL PROCEDURE ACT 1965 cannot be applicable to offences created under the ANTI-CORRUPTION ACT 2008 and in this regard, a Law Officer cannot be the one signing an Indictment preferred by the Anti-Corruption Commission. I am particularly swayed by the submission of C.F. MARGAI ESQ. that Section 89 of the ANTI-CORRUPTION ACT 2008 did not make any provision for the Anti-Corruption Commissioner to sign an Indictment and that under Section 89(4) of the said ACT. Parliament significantly omitted to give any such power to the Anti-Corruption Commissioner. In my view, the pertinent question is. ‘was it the intention of Parliament when it omitted in Section 89(4) of the ANTI-CORRUPTION COMMISSION ACT aforesaid, to expressly give power to the Anti-Corruption Commissioner, that it is Section 130 of the CRIMINAL PROCEDURE ACT 1965 that would apply regarding the signing of an Indictment preferred by the Anti-Corruption Commission’? It cannot be disputed that if the answer to the question above is in the affirmative, then the ANTI-CORRUPTION COMMISSION will be placed in real jeopardy as regards all Indictments which have been signed by the Anti-Corruption Commissioner. All indictments, prosecutions and convictions thereof from the day when the Anti-Corruption Commissioner first signed an Indictment preferred by the Anti-Corruption Commission, including the Indictment herein to date could be declared null and void. Consequently, all subsequent prosecutions and convictions stemming therefrom would be questionable and could be the subject to litigation both within and outside Sierra Leone particularly in relation to fundamental Human Rights as contained in Chapter III of the CONSTITUTION OF SIERRA LEONE 1991.

It should be pointed out, that as stated earlier, on the establishment of the Anti-Corruption Commission by the enactment of the ANTI-CORRUPTION ACT 2000, all Indictments preferred by it had to get the consent of the Attorney-General and Minister of Justice and the eventual signing of it by a Law Officer pursuant to Section 130 of the CRIMINAL PROCEDURE ACT 1965, before the prosecution of the offence charged could be proceeded with. The autonomy given to the Anti-Corruption Commission by the ANTI-CORRUPTION ACT 2000 seemed to have been eroded by the above. In order to remedy this mischief. Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008 was enacted paving the way for prosecution of offences under the ANTI-CORRUPTION ACT 2000 to be brought at the suit of the Anti-Corruption Commissioner which by implication as stated earlier gave power to the Anti-Corruption Commissioner to sign all Indictments preferred by the Anti-Corruption Commissioner to sign ail such Indictments. Clearly, if it is the case, that Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008 remedied the mischief mentioned above, the fact that Section 89 of the ANTI-CORRUPTION ACT 2008, which said ACT was enacted after the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008, designed to give effect to the provisions of Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008 and which said ACT did not make any provision for the Anti-Corruption Commissioner to sign an Indictment and that under Section 89(4) of the said ACT, Parliament significantly omitted to give any such power to the Anti-Corruption Commissioner, the said facts would eventually result in prompting what the intentions of Parliament were, by such omission. It has been seen above, that if the intentions of Parliament was to give back to the Law Officer, the power to sign all Indictments, including those that charged offences under the ANTI-CORRUPTION ACT 2008, it shows above what the consequences would be. In the Judgement of this Court in the case between IBRAHIIM SORIE and GENERAL LEGAL COUNCIL SC No 6/2019 in the Supreme Court of Sierra Leone (unreported) the Court held that it should reject a position that will create a disproportionate counter mischief. It referenced the Seventh Edition of BENNION ON STATUTORY INTERPRETATION by DIGGORY BAILEY and LUKE NORBURY on CONSTRUCTION AGAINST ABSURDITY at paragraph 12.7 under the rubric ‘Avoiding a disproportionate counter-mischief’ at page 390 where it is stipulated thus.
‘The presumption against absurdity means that the Courts will generally avoid adopting a construction that cures the mischief the enactment was designed to remedy only at the cost of establishment another mischief
 

Clearly, it is the enactment of Section 89 of the ANTI-CORRUPTION ACT 2008 that was designed to give power to the Anti-Corruption Commissioner to sign all Indictments preferred by the Anti-Corruption Commission and which said power was given by Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008, the same remedying the mischief of eroding the autonomy given to the Anti-Corruption Commission by the ANTI-CORRUPTION ACT 2000 The fact that the ANTI-CORRUPTION ACT 2008 omitted to expressly give power to the Anti-Corruption Commissioner to sign all Indictments preferred by the Anti-Corruption Commission, prompted the determination of what the intentions of Parliament were by omitting to expressly give such power to the Anti-Corruption Commissioner. It has been established that if the intentions of Parliament in this regard was that it is a Law Officer who should sign all Indictments even those preferred by the Anti-Corruption Commission and that such intentions had been misconstrued so that all such indictments preferred since 2008 were signed by the Anti-Corruption Commissioner, the same would put the Anti-Corruption Commission in real jeopardy with devastating consequences, if the intentions of Parliament aforesaid, were to be upheld by this Court. In the circumstance. I hold the view that this Court cannot uphold the construction in Section 89(4) of the ANTI-CORRUPTION ACT 2008, that Parliament intended to allow a Law Officer continue signing an Indictment even if it was preferred by the Anti-Corruption Commission by omitting to expressly give power to the Anti-Corruption Commissioner to sign all such indictment which said power had been given to him by Section 1 of the CONSTITUTION OF SIERRA LEONE (AMENDMENT) ACT 2008 because clearly, it would create a disproportionate mischief than the one which Section 89(4) aforesaid, was designed to remedy. Conclusively, the submissions of C.F MARGAI ESQ. that the Indictment herein should have been signed by a Law Officer rather than by the Anti-Corruption Commissioner is hereby overruled.

I now turn my attention to the second question of law aforesaid, raised at this Court, the same being that there is no statutory offence of Abuse of Office created by Section 42(1) of the ANTI-CORRUPTION ACT 2008 C.F. MARGAI ESQ of Counsel for the Appellant submitted, that Section 42(1) aforesaid is itself void of an offence, as it does not state the offence of Abuse of Office. O.V ROBIN-MASON ESQ. of Counsel for the Respondent submitted, that the offence prescribed is in the body of Section 42(1) of the ANTI-CORRUPTION ACT 2008 and agrees with the Learned Trial Judge when she stated at page 551 — 552 of the Records of Anneal that ‘the provisions of Section 42(1) of the ANTI-CORRUPTION ACT aforesaid, after which reading, no question ought to be asked, as it is clear that the Accused, a public officer using his office to improperly confer an advantage on himself or any other person remains the offence proof of which elements must show a clear sign of an Abuse of Office as referenced in the marginal notes which the Prosecutor captured in the particulars of offence against the Accused' O.V ROBIN-MASON ESQ. submitted that Section 42(1) of the ANTI-CORRUPTION ACT aforesaid, properly creates the offence of Abuse of Office pursuant to which the Appellant was charged, tried and convicted. O.V ROBIN-MASON ESQ. submitted that the glaring indication of the offence of Abuse of Office can be seen in the marginal notes which is an aid to the understanding and interpretation of the said section. O.V. ROBIN-MASON ESQ. submitted that the marginal notes steers the reader to the appropriate section, and it briefly indicates the fundamental part of the section. C.F MARGAI ESQ. submitted that the marginal notes are not part of the section and therefore cannot state the offence. Section 42(1) of the ANTI-CORRUPTION ACT 2008 itself provides thus:
'A Public Officer who uses his office to improperly confer an advantage on himself or any other person commits an offence’.

It cannot be disputed that from the contents of the above section, the separate and distinct elements which are required to be proved includes inter alia ‘the use of the Public Officer's office’ and ‘the improper conferring on the said Public Officer an advantage or the improper conferring on any other person an advantage’. Clearly a Public Officer would have done absolutely nothing criminally wrong by using his office simplifier, otherwise why then was he put in office. Obviously he was put in office to use it. Again I do not know and understand how one can improperly confer on advantage, being that the operative word here is ‘improperly’ In volume I the Third Edition Revised with Addenda, of the OXFORD UNIVERSAL DICTIONARY ILLUSTRATED prepared by WILLIAM LITTLE. H.W. FOWLER and J. COULSON. Revised and Edited by C.T. ONIONS, the word 'improperly' at page 971 means 'wrongly' ‘incorrectly’, 'unsuitably' unbecomingly' Clearly one cannot wrongly confer an advantage, one cannot incorrectly confer an advantage, one cannot unsuitably confer an advantage and one cannot unbecomingly confer an advantage. One can only confer an advantage simpliciter. 

It follows from the above that if a Public Officer would have done absolutely nothing criminally wrong by using his office and could not have improperly conferred an advantage on himself or could not have improperly conferred an advantage on some other person by the use of his office, then no offence would have been created or stated by Section 42(1) of the ANTI-CORRUPTION ACT 2008. However, my conclusion aforesaid, should not be made in isolation of the submission of O.V. ROBIN-MASON ESQ. of Counsel for the Respondents that for the purposes of Section 42{2) of the ANTI-CORRUPTION ACT 2008. the drafters of the said ACT would not have intended to create an offence in vacuum, a submission which I fully uphold. In this regard and to pay heed to the said submission, I had to cautiously consider various rules of interpretation of a statute, one of which, as stated in the case between LUSENI and FOFANA (1970-71) ALR SL 63 at pg 65 is that:
'It is a cardinal rule of Interpretation that in construing an ACT, it is the duty of the Court to read the ACT as a whole including the provisions of any amending ACTS and not read the words of a section in isolation'.

If it is a cardinal rule that in construing an ACT the Court must read it as a whole and not in isolation, it follows that in construing a section of an ACT, the Court must read the section as a whole without isolating parts of it. Authority for this proposition could be found in the case between MOBIL PRODUCING NIGERIA UNLIMITED and FIRS (2021) LPELR-53436 (CA) in the Court of Appeal (ABUJA JUDICIAL DIVISION), where it was stated thus: The position of the Law is, that provisions of legislations are construed holistically in order to garner or reach at the intention of the Legislature. That is to say, provisions of enactments are not to be subjected to fragmentary interpretation'.

Obviously, my conclusion aforesaid that no offence would have been created or stated by Section 42(1) of the ANTI-CORRUPTION ACT 2008 was arrived at by reason that Section 42(1) of the ANTI-CORRUPTION COMMISSION ACT aforesaid, was construed in fragments and not holistically, contrary to the position of the law as laid down in the case between MOBIL PRODUCING NIGERIA UNLIMITED and FIRS, cited above, applying the principle as laid down in the said case in order for me to know what the intention of Parliament was, I came to the conclusion that it is the word ‘improperly’ which was misplaced in Section 42(11 aforesaid Consequently when I construed Section 42(1) aforesaid, holistically by putting the word ‘improperly’ where it should be, I came to the conclusion that the offence which Parliament intended to create was, ‘that a Public Officer who uses his office improperly to confer an advantage on himself or uses his office improperly to confer an advantage on some other person, commits an offence', I hold the view that it is the marginal note which tells that the offence committed in this regard is ‘Abuse of Office4. To illustrate how marginal notes are used in this way. reference is made to Sections 27 to 34 of the ANTI-CORRUPTION ACT 2008 It cannot be disputed that in the same way as Section 42(1) of the ACT merely outlines the elements which make up the offence but does not state the offence committed and it is only the marginal note which tells that the offence committed is ‘Abuse of Office' so also is it the case that the contents of Sections 27, 28. 29, 30, 31. 32, 33 and 34 of the ANTI-CORRUPTION ACT 2008, only tells what elements make up the offences committed, but does not state the offence itself, it is the marginal notes that tell that the offences committed are ‘Possession of explained wealth', ‘offering, soliciting, or accepting, advantage’ ‘using influence for contracts', ‘influencing a Public Officer’ and ‘Bribery of a Public Officer to influence decision of Public body’ respectively.

1 hold the view that notwithstanding the fact that Section 42(1) of the ANTI-CORRUPTION ACT 2008 does not state the offence of Abuse of Office’ it cannot be said to be void since it is the marginal note that state that the offence committed by Section 42(1) aforesaid, is ‘Abuse of Office’. The question which should now be of paramount concern and which I have observed has never been brought up neither by the prosecution nor the Defence nor addressed by the Court below and the Court below it, is whether the offence of Abuse of Office which the Appellant was charged with has been disclosed in the Indictment herein preferred by the Anti-Corruption Commission signed by the Anti-Corruption Commissioner against the Appellant herein. In the 35* Edition of ARCHBOLD PLEADING, EVIDENCE & PRACTICE IN CRIMINAL CASES edited by T.R. FITZWALTER BUTLER and MARSTON GARSIA, at paragraph 102 under the rubric STATEMENT AND PARTICULARS OF OFFENCE’ at page 46 and also as provided in Section 51(1) of the CRIMINAL PROCEDURE ACT 1965. it is stipulated thus: ‘Every Indictment shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the Accused person is charged together with such particulars as may be necessary forgiving reasonable information as to the nature of the charge'.


The Indictment herein is found at pages 1 to 3 of the Records’ of Appeal herein. It charges the Appellant herein on Two (2) Counts of the offence of Abuse of Office contrary to Section 42(1) of the ANTI-CORRUPTION ACT 2008. Each of the counts aforesaid, must not only contain a statement of the specific offence with which the Appellant is charged with, it must also state such particulars as may be necessary for giving reasonable information as to the nature of the charges against the said Appellant. In other words each court must give reasonable information as to how the Appellant improperly used his office and separately and distinctly give reasonable information as to the advantage which the Appellant conferred upon himself or some other person by the improper use of his office.

On Count I of the Indictment, the particulars of offence state that the Appellant being Acting Head of the Department of Law in the Faculty of Social Sciences and Law at Fourah Bay College of the University of Sierra Leone on a date between the 1st of July 2015 and the 31s1 January 2016 abused his office to wit: Improperly Conferred an advantage on ALIMATU TITY GEORGE a student of Law by improperly awarding her passing examination grades for the module ‘Dissertation’ when in fact and truth ALIMATU TITY GEORGE did not submit a Dissertation for grading. Clearly sufficient and reasonable information as to how allegedly, the Appellant improperly used his office was given, the same being, by improperly awarding her passing examination grades for the module ‘Dissertation’ when in fact and truth ALIMATU TITY GEORGE did not submit any Dissertation for grading.

On Count II of the Indictment, the particulars of offence state that the Appellant being Acting Head of the Department of Law in the Faculty of Social Sciences and Law at Fourah Bay College of the University of Sierra Leone on a date between the 1s' of July 2015 and the 31sl of January 2016, abused his office to wit: improperly conferred an advantage on JAMILATU ALICIA SESAY, a student of law by improperly inflating her examination grades for the module Jurisprudence and Legal Theory’. Clearly, sufficient and reasonable information as to how allegedly, the Appellant improperly used his office was given the same being by improperly inflating the examination grade for JAMILATU ALICIA SESAY. a student of Law.

As regards reasonable information as to the advantage which the Appellant conferred upon himself or some other person by the improper use of his office. Count I state that the Appellant abused his office by intentionally conferring an  advantage on ALIMATU TITY GEORGE by examination grades for the module ‘Dissertation’ when in fact and truth

ALIMATU TITY GEORGE did not submit any Dissertation for grading and Count II states that the Appellant abused his office by improperly conferring an advantage on JAMILATU ALICIA SESAY by improperly inflating her examination grades for the module 'Jurisprudence and Legal Theory’. Certainly, it cannot be disputed that if as stated above, by improperly awarding ALIMATU TITY GEORGE passing examination grades for the module 'Dissertation’ when in fact and truth she did not submit any Dissertation for grading amounts to the Appellant's alleged improper use of his office, then what the Indictment states in Count I is tantamount to saying that the advantage conferred on ALIMATU TITY GEORGE for the Appellants improper use of his office is the improper use of his office. Likewise, it cannot be disputed also that if as stated above, by improperly inflating the examination grades of JAMILATU ALICIA SESAY for the module 'Jurisprudence and Legal Theory’ amounts to the Appellant's alleged improper use of his office then what the Indictment states in Count II is tantamount to saying that the advantage conferred on JAMILATU ALICIA SESAY for the Appellant’s alleged improper use of his office is the improper use of his office. Surely if in both Counts I and II, the advantage conferred on ALIMATU TITY GEORGE and JAMILATU ALICIA SESAY respectively for the Appellant's improper use of his office allegedly is the improper use of his office, then the particulars of offence has failed to give reasonable information as to the advantage which the Appellant conferred upon some other person by the improper use of his office. In Section 1 (1) (a) of the ANTI-CORRUPTION ACT 2008 advantage includes:

‘any gift, loan, fee, reward, discount, premium or commission, consisting of monies or of any valuable security or of other property or interest in property of any description, or other advantage other than lawful remuneration'.

Clearly, the advantage allegedly conferred on ALIMATU TITY GEORGE and JAMILATU ALICIA SESAY respectively for the Appellant's alleged improper use of his office, the same being the improper use of the Appellant's office cannot in any way be a gift or loan or fee or reward or discount or premium or commission consisting of money or of any valuable security or some other property or interest in property of any description or some other advantage other than lawful remuneration'. It cannot be disputed that in this case the particulars of offence in both Counts does not give reasonable information as to the advantage which the Appellant conferred  himself nor some other person by the improper use of his office. This being the case, the offences of Abuse of Office contrary to Section 42(1) of the ANTI-CORRUPTION ACT 2008 which the Appellant was charged with was not disclosed in the Indictment. Surely, if the offence of Abuse of Office aforesaid was not disclosed in the Indictment then the said Indictment would have failed to charge the Appellant with any offence whatsoever. I hold the view that the only remedy which could have cured such a defect is by amendment of the said Indictment pursuant to Section 148 (1) of the CRIMINAL PROCEDURE ACT 1965 which provides thus: ‘where, before trial upon Indictment or at any stage of such trial, it appears to the Court that the indictment is defective, the Court shall make such order for the amendment of the Indictment as the Court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendment cannot be made without injustice’

Obviously, it ought to have appeared to the Court where the Appellant was arraigned, that the indictment herein was defective as has been shown above, where the possibility of amending the said defect could have been made at any stage of the trial at the said Court. The trial having ended and the Appellant convicted of the offences of Abuse of Office contrary to Section 42{1)of the ANTI-CORRUPTION ACT 2008, it is obvious that the amendment could not now be made without injustice been done. I say so because it is apparent that the entire evidence adduced herein was one which was geared towards proving only one element of the offence, that being the allegation that the Appellant improperly made use of his office, which said allegation I found it unnecessary to determine whether it was proved or not. The evidence of the other element, that being the advantage conferred on the Appellant or some other person as a result of the Appellant's improper use of their office was entirely lacking.

By reason that the Indictment failed to disclose the offence of Abuse of Office contrary to Section 42(1) of the ANTI-CORRUPTION ACT 2008 which the Appellant was charged with and that notwithstanding that an amendment to the Indictment was absolutely necessary, but which was not done, even when it ought to have appeared to the Court where the Appellant was arraigned, that the Indictment herein was defective but that the Respondents proceeded with the trial thereof attempting to prove only one element of the offence charged, that being the Appellant’s alleged improper use of his office without adducing any evidence on the other element of the offence charged, that being the advantage which the Appellant conferred upon himself or some other person by the improper use of his office, the Learned Trial Judge presiding over the Court where the Appellant was arraigned ought not to have convicted the Appellant and ought to have acquitted and discharged him. In this regard, there would be absolutely no need to consider all the other grounds of the appeal herein. The fact that the Respondents attempted to prove only one of the elements of the offence, that being the Appellant’s improper use of his office leaving out entirely, the element of the advantage conferred on the Appellant himself or some other person, makes it unnecessary to consider whether the burden and standard of proof were satisfied. It cannot be disputed that if evidence of all the elements of the offence charged were not adduced, it would be impossible to address issues regarding the actus reus and the mens rea of the Appellant’s conduct, together with proof beyond reasonable doubt. Simply put the evidence was just not there to secure a Conviction of the offence charged.

 

  HON. MR JUSTICE'ALLAN B. HALLOWAY

 

 

* "the supreme court of sierra leone

 

CRIMINAL APPEAL

> I I ■ • i   »   v .

Before:

THE HONOURABLE MR JUSTICE A .B HALLOWAY JSC (PRESIDING) THE HONOURABLE MR JUSTICE A.S SESAY JSC

THE HONOURABLE MR.JUSTICE DEEN TARAWALLY JSC

THE HONOURABLE MR, JUSTICE SENGU M.KOROMA JSC

THE HONOURABLE MR.JUSTICE ANSUMANA IVAN SESAY JA

Between:

EMANUEL EKUNDAYO CONSTANT SHEARES-MOSES                 APPELLANT

•and-

THE STATE                                                 RESPONDENT

CHARLES FRANCIS MARGAI Esq of Counsel for the Appellant

OLADIPO V. ROBBIN-MASON SR Counsel for the Respondent

I direct that copies of this version as handed down may be treated as authentic.

The Honourable Mr ANSUMANA IVAN SESAY JA: (Delivering his Judgement of the Court this 11* day of April 2022)

BETWEEN:

EMMANUEL SHEARS-MOSES

AND

Text Box: APPELLANT

THE STATE

Text Box: THE STATERESPONDENT


 

 

Ao



 

 

  1. The Appellant Emmanuel Shears-Moses by an indictment dated 24th day of

July was charged with two counts each on abuse of office contrary to section 42 (1) of the Anti-Corruption Act No. 12 of 2008. Count 1 reads- "that

the Appellant being acting Head of Department of Law Department in the Faculty of Social Sciences and Law at Fourah Bay College of the University of Sierra Leone on a date unknown between the 1sfday of July, 2015 and 31* day of January, 2016 at Freetown abused his office as Acting Head of Department of Law Department to wit>-improperly conferred on advantage on Alimatu Tity George a student of law with registration Ho. 28852 by improperly awarding her passing examination grades for the module "Dissertation ’’ when in fact and truth ALIMATU TITY GEORGE did not submit

any dissertation for grading.

  1. The particulars of offence for Count 2 reads that "the Appellant on the aforementioned dates whilst acting os Head of Department for Law abused his office to wit: • improperly conferred an advantage on JAMILATU ALICIA SESAY, a student of low with registration No. 286684 by improperly inflating her examination grades for one module-jurisprudence and legal theory. He pleaded not guilty on both counts and the trial commenced.
  2. On the 27th day of February, 2019, the (Appellant) was convicted on both counts and sentenced to a fine of Le 30, 000,000.00 (thirty million Leones) fine with an alternative of three (3) years imprisonment on each count.
  3. The Appellant being dissatisfied with the aforementioned judgment filed to the Court of Appeal Registry, a Notice of Appeal dated 5th March, 2019. After listening to the legal submissions and arguments supported with various legal authorities, the Court of Appeal presided over by Hon. Justice
  1. Taylor-Camara and with him Hon. Justice S.A. Bah JA and Hon. Justice
  2. B. Alhadi JA, upheld the judgment of the lower Court and dismissed the appeal.
  1. However, the Appellant being dissatisfied again with the judgment of the Court of Appeal filed a Notice of Appeal to the Supreme Court dated the 4lh



September, 2020. The Appellant filed four (4) grounds of appeal Ground 1 is divided into (a) (b) (c) (d) St (e).

 

  1. On Ground 1, the Appellant appealed on the following grounds:
  1. the learned justices misdirected themselves on the law whether the offences charged is laid down by the Anti-Corruption Act No. 12 of 2008 or an explanation by marginal note.
  2. The Commission’s seal is not required to indicate that it is the deed of the Commission.
  3. There is no distinction between a bill of indictment and an Indictment in Section 130 of the Criminal Procedure Act No. 32 of 1965 and therefore the various authorities on when a bill of indictment becomes an Indictment do not apply.
  4. Learned Justices stated the offence charged is a specific one different from misconduct in public office and so ignored that the marginal notes in the Anti-Corruption Act No. 12 of 2008 is a short form of misconduct in office which is encapsulated abuse of office.
  5. The University of Sierra Leone and the political parties’ registration commission are creatures of statutes and so the learned justices wrongly held that the doctrine of exhaustion does not apply thereby ignoring the diction of Che Supreme Court in SC 2/2005 in Sam Hinga Norman vs Alhaji UNS Jah & others.

GROUNDS 2 & 3

  1. The Court In treating Grounds 2 & 3 (which were argued together) referred to Section 57 of the Court’s Act No. 31 of 1965 in determining whether to entertain the said grounds of Appeal, but was rather ambivalent in its treatment of the grounds (see page 29-41-100-144): thus leaving the issue for determination more confusing than that in the lower Court, hence occasioning grave injustice to the Appellant’s case.

 

  1. It is necessary to set out the particulars of the grounds as pleaded.

particulars

  1. The particulars can be summarily set up as follows:

1. The Learned Justices failed to consider whether the burden and standard of proof were satisfied and so failed to address the vital issues of mens rea and proof beyond any reasonable doubt.

The Court erred in holding that the Appellant persuaded Dr. Kamara to award a dissertation grade when there was no evidence before the trial judge.

  1. The Court erred in holding that there is no difference between causing a mark to be awarded and physically awarding a mark which by any reasoning can only be two distinct acts of offences, if at all.
  2. The Court was wrong to hold that the judge could ignore the standard of proof and withdraw her own inferences.
  3. The Court misunderstands the evidence on record by saying that the Appellant by himself upgraded the jurisprudence grade for two students, while ignoring that the two students protested and asked for a remark of their scripts.
  4. The issue before the Court was over the grade of one student, Jamilatu Sesay which the Appellant stated was a mistake in the entry and without meeting the standard of proof ignoring the case of Samuel Benson Thorpe vs the Commissioner of Police arrived at a wrong decision.
  5. The Court wrongly applied the case of Seymour Wilson vs Musa Abess CIV APP 6/79.

 

GR0UND4

  1. The Court erred in overlooking the fact that the Appellant being represented by counsel had to follow his decision not to object to the judge and therefore it was not his free will decision not to object in open Court and failed to consider how an ordinary person will view the matter, rather it went into a treatise on the oath and training of judges while ignoring well settled authorities on the subjects of apparent bias. The Court did not do justice to the Appellant in addressing the ground of appeal and took out of context the question of waiver In such instances and therefore placed an undue burden on the Appellant in negating same.

LEGAL ARGUMENTS

  1. Both counsel representing the Appellant and the respondent relied on their respective written synopsis filed and supported with vast legal and factual authorities.

EVALUATION OF BOTH LEGAL ARGUMENTS

  1. have had the opportunity to read the written synopsis of the respective parties and the case law relied upon Including the oral arguments submitted by C.F Margai counsel for the Appellant. I will at this juncture examine and evaluate the legal arguments and submission advanced and contained in the respective synopsis with more particularity on Grounds 2 & 3 and if I hold otherwise there will be no need to consider the other grounds of appeal.

13. It is crystal clear that the cardinal principle in ad criminal matters is that it is the duty of the prosecution to prove their case beyond reasonable doubt subject of course to the defence of insanity and other statutory defences. See the case of Woolmington v DPP [1935] A.C 462.

  1. have referenced this leading case to help me determine whether the lower courts in their respective judgements consider this most vital principle of law in all criminal proceedings in the light of grounds 2 and 3. What then is  proof beyond reasonable doubt? In the case of Miller vs Minister of Pensions Lord Denning had this to say: -

"That degree is well settled. If need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course’ it is possible but not probable the case is beyond reasonable doubt; nothing short will suffice. ”

  1. H could be deduced from this dictum that the burden in criminal law rests on the Prosecution. It is therefore the duty of the Prosecution to prove all the essential elements that constitute the offence or offences charged and in this case, Section 42 (1) of the 2008 Act.

SECTION 42 (1) OF THE ANTI-CORRUPTION ACT 2008

It reads: •

“Any public officer who uses his office to improperly confer an advantage on himself or any other person commits an offence. "

  1. The particulars of offence read that the Appellant on a date unknown at Freetown between the 1st of July, 2015 and 31* of January, 2016, abused his office as acting Head of Department to wit: “improperly conferred an advantage on Alimatu Tity George a student by improperly awarding her passing examination grades for the module Dissertation when in fact she did not submit any dissertation for grading. This is for Count 1.
  2. The legal argument raised by C.F. Margai counsel of the Appellant is that the Court erred in holding that there is no difference between causing a mark to be awarded and physically awarding a mark which by reasoning can only be two distinctive acts or offences if at all.

18.In my judgement, the particulars of offence alleged the Appellant to have awarded passing examination grade to ALIMATU TITY GEORGE for dissertation she did not submit. This signifies a conduct crime. For the Prosecution to succeed, they must satisfy the court of the actus reus of the offence. They must adduce evidence that it was the Appellant who awarded the grade of dissertation to the student. And it was that grade that amounted to an advantage, having so improperly being conferred- From the totality of the Prosecution’s evidence, it is clear that there was in existence a dissertation committee whose duty it was to confer marks with respect to dissertations on students, regardless of which mark was submitted to the committee. It was one Dr. Binneh Kamara (PW 8) as a member of the dissertation committee that awarded the grade to the student and certainly not the Appellant.

  1. A case in point is R v White 2 KB 124. The court established the 'but for’ test of causation, according to which the defendant could not be convicted unless it could be shown that ‘but for’ his actions the victim would not have died. On the facts of this case the test was not met, therefore the defendant could not be convicted of murder. In simple terms, the prosecution cannot establish and have not been able to establish that "but for” the actions of the appellant, the marks would not have been conferred. Had the dissertation committee rejected the marks submitted to them by the appellant, those marks would not and could not have been conferred upon the student.
  2. This would have taken a different turn if the Appellant would have been charged with “causing to award” rather by the use of the phrase “improperly awarding”. The meaning of the words is quite plain, clear and has no ambiguity. These two legal phrases are different and could not have been Intended by parliament to be the same thing because they indicate that there are two separate and distinct criminal offences. The former connotes an indirect act done by a person in committing an alleged offence whilst the latter connotes an act personally and physically done by the person in the commission of an alleged criminal offence. The evidence in the court below supports the former.
  3. The actus reus for the latter Is lacking in this case. The court below ought to have evaluated the evidence properly to ascertain the presence of the act of the awarding followed by the mens rea of "improperly awarding" which connotes dishonesty. To my mind in the absence of both the act and the necessary intention criminal liability cannot hold.

At page 561 paragraph 4 of the Courts records, the trial judge had this to say: -

"it is the Court’s position that the award of 55% by PW 8 to Alimatu Tity George as in Court 1 of the indictment herein could only have been caused by the information the accused passed on to PW 8 and rather dishonestly. The word “award” in the particulars of offence should not be read as if the accused physically inscribed the grade 55% on Exhibit K. Certainty, he caused it to be awarded and that is how the Court understands the evidence.”

  1. This was affirmed by the Court of Appeal. Causing to be awarded as the Court of Appeal found is not the same as simply awarding a mark. The Court of Appeal was plainly wrong in this regard. In this regard the Court in pronouncing its judgement held that there is no difference between causing a mark to be awarded and physically awarding a mark. With respect to the lower court, these can only be two distinctive acts or offences If at all. The prosecution was at liberty to have used the words cause to have awarded in the particulars of offence in count 1 rather than the word *’ award" or in the alternative they could have amended the particulars of offence in the light of the evidence before the court.
  2. The evidence before the court supports the former and certainly not the latter. The lower court in their assessment of the evidence failed to consider this. Probably what could have been most appropriate with regards the evidence before the court Is section 43 of the Anti corruption Act of 2008. It reads:

"A. public officer who knowingly abuses his position In the performance or failure to perform an act, in contravention of any law, in the discharge of his functions or duties is commits an offence and shall on conviction be liable to a fine not less than thirty million Leones or to imprisonment for a term not less than 3 years or to both such fine and imprisonment”

Z4.lt is my judgement, the evidence adduced was scanty and not sufficient to have found the Appellant guilty on Count 1. The Court of Appeal ought to have reversed and or set aside the judgement of the High court.

  1. However, by way of analogy let me cite Section 18 of the offences against the person Act 1861. It reads: *

"Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony".

  1. In the above section the words "wound” and •‘cause’’ do not have the same meaning and that was why the drafters put them in the alternative. In effect the evidence led in this case do not support the particulars of offence in Count 1. The Court below fell into error in failing to take this issue into consideration. For this reason, I will allow the appeal with regards to this Count.
  2. Let me now turn my attention to what constitute the offence as laid down in Section 42 (1) of the Anti-Corruption Act of 2008. As I have said earlier, in any criminal proceedings or trial, for an accused person to be found guilty of an offence the prosecution must establish the actus reus and the necessary mens tea. The actus reus in Section 42 (1) supra is that the Prosecution must prove that “an advantage” was conferred on himself or any other person. The mens rea is the word “improperly” which connotes dishonesty.

 

  1. The question I need to ask myself is what was it lhatwSs improperly conferred to the advantage of the Appellant or to some other person? The prosecution must show not only that it was conferred but that it was improper to his advantage or another person. It is that improper conferment to his advantage or that of another person that could not be found in the records of the court below. It is so unfortunate that the lead witness in this case Alimatu Tity George did not testify to assist the Court in arriving at a decision devoid of doubt. As I can see from the totality of the evidence there was a gap which the Prosecution never filled to warrant a conviction. That gap could have been cleared if the university had been given an opportunity to do their internal investigations or the person upon whom the advantage was improperly conferred. No doubt they would have or ought to have reached out to ALIMATU TITY GEORGE as she may have unearthed certain vital information that may have been relevant and useful to the prosecution’s case.
  2. To my mind PW 8, from the records {Dr. Binneh Kamara) certified the grade that was awarded to ALIMATU TITY GEORGE for dissertation she did not write. The Appellant could therefore not be found wanting for an act he never did. The University procedures for good reason, provides for an extra layer of supervision, which is the dissertation committee. This committee is charged with ensuring that marks awarded are properly awarded. The fact that they certified the marks is clear evidence that they agreed with the marks submitted by the appellant and in those circumstances, there could be no improper conferment either as a matter of fact or law.

30Jn other words, the concept of vicarious liability is rarely found if at all in the criminal law. The trial judge and the Court of Appeal ought to have evaluated the evidence properly before it before reaching their conclusion. To cherry pick vital and important evidence before it is a monster In the eyes of the criminal law. Their failure to do just that will leave me with no alternative but to set aside the conviction and allow the appeal as justice demands it to be.

  1. To my mind the University Act 2005, the University Handbook anocoSeof discipline and conditions of service for senior members of staff Exhibit "M" should-have been utilized. Tendering these documents without utilizing the provisions contained therein did not help the prosecution’s case.

COUNT 2

  1. Let me now turn my attention to Count 2 where it is alleged in the particulars of offence that the Appellant improperly conferred an advantage on Jamllatu Alicia Sesay, by improperly inflating her examination grades for the module ‘Jurisprudence and Legal Theory'. I still maintain my analysts as to what need to be proved by the Prosecution with regards Section 42 (1) of the Act supra.
  2. Be that as it may, it is clear in the evidence adduced contained in the oral testimony of the Appellant and his statement to the Commission that he did not deny awarding the student 52/70 but gave an excuse or explanation which appeared substantially factually correct even from the prosecution’s point of view. The Appellant called DW 2 who testified that similar mistakes with regards entering wrong grades for him was done by the Appellant but when he raised it, it was corrected. He relied on mistake.

At page 562 paragraph 2 of the Court records, the trial judge had this to say:

The Court agrees ‘mistakes’ could happen during the insertion of student’s grade". See Exhibits F 1-20 and Exhibit E.

  1. To my mind even the trial judge acknowledges the fact that mistakes could be done whilst entering examination grades. If the mistake succeeds, then that will vitiate the dishonesty element (i.e. mens rea). In the absence of dishonesty the burden and standard of proof has not been discharged. This is more the reason why the University should have investigated this matter to ascertain whether the Appellant flouted procedures relating to the same. This to every stretch of imagination represents an essential gap in the prosecution's case and in the absence of this, it starts to linger in the mind of a right thinking tribunal whether the Appellant ought to have been found guilty and why did the Court of Appeal uphold the conviction.
  2. Where an accused person advances a defence which might reasonably be true, a judge sitting alone as in this case may not convict merely because he disbelieves his explanation. The real point is not whether the Appellant have proved his innocence but rather the prosecution has proved their case. The trial judge ought to have made specific findings of fact as to why she disbelieved the appellant’s version of events.
  3. Mistakes happen in entering grades but does that mean that one has conferred advantage improperly? There must be a legal link to justify the act itself. The lower Court ought to have paid attention to that ground of appeal. It is therefore very difficult to uphold the conviction of the Appellant in this regard.
  4. On this ground alone, the Appellant must succeed. As to the other grounds of appeal i.e. grounds 1 (a) (b) (c) (d) & (ej and 4, I do not feel myself called upon to consider them in consequence of my findings in the second and third ground. It follows that the appeal must be allowed and I order that the conviction be set aside and the Appellant be acquitted and discharged.

 

I have read in draft, the Judgment of my learned brothers, Halloway JSC and A.I. Sesay JA and I agree that the Appellant be acquitted and discharged.

However, as regards the conclusion reached by Halloway JSC in respect of the powers of the Commissioner of the Anti-Corruption Commission to sign an indictment, though I would with hesitation agree with him, it is my view that Parliament must enact an express provision in the enabling Act clarifying the position instead of relying on purely judicial interpretation. The reason being that another panel of the Supreme Court might depart from the current interpretation which would invariably lead to inconsistency and uncertainty in the law.

In his statement, the HON. MR. JUSTICE ALUSINE S. SESAY JSC stated that he has read in draft the Judgement of the HON. MR. JUSTICE ALLAN B. HALLOWAY JSC and the HON. MR. JUSTICE ANSUMANA 1 SESAY JA He states that he AGREES with their conclusions contained therein and accordingly AGREED that the Appellant be AQUITTED and DISCHARGED.

The HON. MR. JUSTICE MANGAY F. DEEN-TARAWALLY JSC made similar statements to the one above made by the HON. MR. JUSTICE ALUSINE S. SESAY JSC.

 

Consequently and by reason of the above, the appeal herein is allowed, the Conviction is hereby set aside and replaced with the orders as follows:

  1. That EMMANUEL EKUNDAYO CONSTANT SHEARS-MOSES, the Appellant herein is hereby ACQUITTED and DISCHARGED of the Two (2) Counts of the offence of Abuse of Office contrary to Section 42(1) of the ANTI-CORRUPTION ACT 2008 which he was charged with.
  2. That all Fines paid by the said Appellant to satisfy the Sentence of him on his Conviction of the offence aforesaid, at the High Court shall be refunded to him forthwith.

 

 

 

 

 

  

 

HON. MR JUSTICE ALLAN B. HALLOWAY

 

  

 

HON. MR JUSTICE ALUSINE S. SESAY