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CRN 76/08

1 THE HIGH COURT OF SIERRA LEONE

HOLDEN. AT FREETOWN

THE STATE

vs

^{. ',.'} The Accused Francis A. Gabbidon stands charged

• with 1.68 counts of Misappropriation of Public Funds contrary to Section i2(1) of the Anti­ Cor rup t ion Act 2000 (as amended). The charges

ar·e laid under Section 12(1) of the Anti­

Cor rup tion Act 2000 which provides that "any person who misappropriates public revenue, public funds or proper ty is guilty of an offence. " Secti on 12(2) states that: "A person misappropriates pwblic revenue, public funds or property If he wilfully commits an act, whether by himself, with or through another person, by which the Government, a. public corporation or a local 6uthorit y is deprived of any . revenue, funds or other financial interest, or propert;y belonging or due to the Govern m·ent , the publlc corporation or local aut horit y".

The substance of the charges is that the Accused · as the former Om budsm an · of Sierra Leone misappro'priated public funds to the tune of

sevent y million, two ·hundred and twenty six

thousand, six hundred and· forty two Leones

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(l e7,0, 226, 642.00). It is alleged, on each of the said· 168 _c ounts that the Accused, on a date

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_ : · u nkn ov:vn between a t wo·month period, being the Om budsm an, misappropriated a particular sum which had been entrusted to him for payment to

eit her Christopher Peacock or Melron Nicol Wilson as monthly salary having falsely represented that they were both employed by the Office of the Ombudsman.

· The charges were put to the Accused and the plea taken on the 15^th day of July 2008. Thereaf ter,, this .Court made an Order as of cour se for trial· by Judge alone instead of by Ju dge and Jury pursuant to _an application in writing - made by th Attorney-General and Mini$ter of Justice under Section 144(2) of the Criminal Procedure Act NO. 32 of 1965, as

_ repealed and replaced by Section 3 of the Crim inal Procedure Amendment Act N0.11 of · 1981. In the circumstances, therefore, throughout the trial, this Court proceeded both as a Tribunal of Fact and as a Tribunal of Law.

Howeve r, before the trial itself commenced, cert ain preliminary matters had to be dealt with as can be seen from the following sequence of

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proceedings. On the 18^th day of July 2008, Ms

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Glenna Thompson made an opening statement

.for the Prosecution outlining the method of execu tion ·of the Prosecution case. Then Couns el Mr. J. s.·Jenkins Johnston, who led the defence

team, applied for an adjournment on the basis

• that t he· defence team had not had enough time to study all the papers served on them only within the past forty eight hours. The application was gr ant ed and, taking into consideration the long vacation of the Court, the case was

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adjourned to the 18^th .of September 2008. On that day. aforesaid, Dr.Jabbl, · who now led the

_def·ence team, raised a preliminary jurisdictional

objectior1 prernised on the ground that the entire

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.ac tion covering all the 168" counts is entirely and abso lut ely time barred in terms of Section 2 subsections (1) and (2) of the Public Officers Protection Act, Cap. 172 of the Laws of Sierra Leone. • .: Submissions were mad·e by both Dr. Jabbi and Ms Glenna Thompson and the mat t er

.wa s re$erved for Ruling. Oh the 9^th day of Oct ober· 2008, this C9urt delivered a Ruling dismissing the pr elimin ry jurisdict iona l objection on th·.e ground, Inter alia, that the Accused can not take umbrage under the statutory

protection given. to public officers under Sect ion

2 subsections (1) and (2) of the Public Offi cer s Prot ectior_i Act, Cap. 172 of 1960 as amended by the Limit atio n Act, No. 51 of 1961. Thereafter, Dr. Ja_q bl announced their intention to appeal aga in st the Ruling and craved the Court's discretion to grant a stay of proceedings as to the trial pending the hearing and determinat io n of the appeal. Needless to say, the State vehemently opposed the said applicat ion on the ground tbat the High Court does not have an

inherent . jurisdiction to grant a stay of proceedings in criminal matters. ·o the 16 ^th ·da y of October, 2008 I deHvered a Ruling refusing

the - defence application for stay of trial proceedings and I ordered that the case against the Accused Francis A. Gabbidon on charges of misappropriat ion of public funds cont_rary to Section 12(1) of the Anti-Corruption Act , 2000 as am ended, shall proceed forthwith. Therealter, the ·Pr osecut ion began leading evidence on the

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. said 16 day of Octobet, 2008.

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I is the State which bri ng_s

this case and it bears

• the burd n of proving beyond a reasonable cfoubt

ever ·y e_lement of the off ence with whi h the

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Accused. is charged and it is for tfie St at e to s?tisfy t he· Court so that it is sure of the Accused person's guilt. This burden of proving the guilt of the Accused rests with the State and continues throughout.

The leading authority is the case of Woolmington v, DPP [ 935] A.C. 462, HL wherein it was stat'ed that " throughout the web of the Englis h criminal law one golde·n t hread Is always to be seen, that It Is the duty of the prosecution to prove the prisoner's guilt (subject to

_the qualification Involving the defence of insanity and to

_ any statutory exception). If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or th e· prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acqult tal. No matter what the

_charge or where the trlal, the ·principle that the prosecution· must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." (per Viscount ankey LC. at pp. 481--t:182).

On the st a n d ar d of p ro o f, Denning J. in Miller v.

Ministe_r of Pensions [ 1947 ] 2 All E.R. 3'72 at pp.

373-374 st9ted that: "I t need no. t reach cert ainty, .but

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it must carry a·high degree of probabili ty. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.· The law will fail to protect the comm unity if it admitted fanciful possibilities to deflect the cours€ of justice. If the evidence is so strong against a man as·t o leave only a remote possibility In his favour which can be dismissed with the sentence 'of course it is

·' p.ossible bu.t not the least probable', the case is proved

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. beyon d r eason able doubt, but nothing short of that will

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evi dence of 9 witrJesses as foll ows: .

. PW1 - Sheku Kamara PW2 - Issa Dauda Kanu· P\/1/3 - James Kamara . .

PW4 - Haroun Al·r asch id Sherfff

PWS - Alieu Badara Gibril PW6 - Marie Elaine Dumbuya PW7 - M. eIr on Nicol Wilson

PW8 - Christopher James Peacock

• p_w g - Victoria Aminata Mansaray

The State also tendered in evidence various docu rn en t s such as Exhibits . Al-A161:The

• r-ecord ed · in terview given by the Accused;

Exhibit_s B1-B 12: Status Report on the office of

the Ombudsman of Sierra Leone; Exhibit C:

Letter ·of: Appoint m en t as Om budsm an·; Exhibit

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Dl -D3·: · urriculum Vitae of Christopher J. Peacock ; . : Exhibit E: Accoun.tant General Vote Serv(ce Ledger; Ex hibit .F: Letter addressed- to

. Mr. M Nicol Wilson Re: Appointment as an I ovestiga or ; Exhibits G1-G62:Salaries of Staff - The Office of the Ombudsman; Exhibits H1-H3:

.Acc,ountant General 's Department - Payment to t t1-e . Office of the Om budsm an; Exhibit s J1 -J18 : Acco unt nt · Ge ner al 's Department - salaries

. verfficati on and approval Form; Exhibit P: Letter

wr•itten· by Christopher J. Pe a co ck· to the Editor

_Pe e p · N ws Magazine; Exhibit Q: Letter from

Francis A. Gabbidon to the Spectator Newspap_er ; Exhib i.t R: Peep· Magazi ne dated Friday November 9, 2007;·Exhibit -S: Letter from C.J, Peaco ck Esq. to Frari¢f.s..A . Gabbidon Re: Demand for a wri tten 'd fscl aim er< in a - local tabla.id having wide

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rrculat i on and readership .- Reply to Le t t e r dated

_ - December 2007; Exhibit· T· : Letter from

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Francis A. Gabbidon to CJ.Peacock; Exhibit U:The $pectator News . Paper dated 21-11-07; Exhl b.i t V: Awoko Newspaper dated Friday November 16, 2007; Exhibit W: Peep newspaper dated Friday D cember 14, 2007; Exhibit X: Recom mendation made by Francis A. Gabbidon on behalf of C.J. Peacock and Exhibit DD which js a Letter from NASSIT to the Ombudsman dated l 9^thAugust 2005 Re: Non Registration of E:m ploy ees for Social Security.

The facts of this case as presented by the Pr osecut ion can be seen through the evidence of

_ PW4, PW5, PW6, PW7 and PW8 together with

t: xhibits Ai -58, B, E, F, G1-62, H and J. Briefly f.) Ut, it is the prosecution's ca_se that Exhibits G1- 621 which are the paid-up salary vo.uchers, were sign ed month after month from 2001 to 2007 with t he names of Messrs Christopher Peacock and Melron Nicol Wilson who were said to have been ernployees at the Office of the Ombudsman

• and with ifn insc'ri pti on to acknowledge receipt of

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the said salaries; that at the end of each month, the Accused will claim to have paid - 9 .fp

F e aco k · and Mr. Nicol Wilson who tte had

. presented to Government were employees of the Office of the Ombudsman; that the Accused would· sign· the paid up salary vouchers,· t her eb y att esting to that fact and by so doing triggering

-the release of quarterly funds to his Offic;::e. Both Messrs· Christopher Peacock and Melron Nicol

Wilson denied ever havi ng seen the vouch e_rs let

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ato n e sig ni_n g t hem . I n s6 far as it was put o the Accuse d· that the signatures were put there by hin1, the Accused denied• it, but went on to state . th t he believ ed they were the signatu res of Messrs Nicol Wilson and Peacock.

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PW4 Haroun Alraschid Sheriff testified that he is a civil servant ·attached to the Accountant­ General's pffice and he confirmed that since the inception of the Office of the Ombudsman sometir:ne around 2001, it received quart erly

_ a llo cations from the Goy er·nm ent of Sierra Leone tnrough his department. He produced in evidence the salary verification and approval forms (Exhibi ts Jl-18) and the -records of payment to

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:•·· the Office : of the Ombudsman (Exhibits Hl-3). He

·stat ed · further that payments were paid into Sierra L o'ne Comm ercial Bank account number 10092·92 which is the account of the Office of the Om·budsman. He said these payments were made on quarterly basis but sometimes when there is a cash prob'lem in the country they pay on a monthly basis. He further testified that in 2006 all four quarters totaling Le129; 000,0.00.00+ were paid and in 2007 for the· first three quarters, the sum of Le108, 139,308.00 was paid as .salary grant to the Office of the Om bud sm an. He gave evidence of other similar payments ma e since 200-1. This evidence shows cat egoricall y that the money used for salaries

was from the Government of Sierra Leone. Further i'n· his evidence he w.as able to explain to

the Court. the process involved in getting the

salary alloc;ation from government. He also

referred o Exhibit J6 and- he stated as foll ows:·

. " Ther e are names o_n t hat document.

• Under Accountant the first name is Mr. Chr istop her Peacock a d a basic salary of Le1, 650,000 is stated. Deductions were m·ade and the net payment is for Lel, 574,313. The name Immediately

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-retired civil servant is Mr. M.

• Nicol . Wilson and his basic salary is

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Le1, 099,998 and . deductions were rrrnde and the net was Le1,188,062. Below Mr. Peacock's name the d·esignation is "Lawyer" and below Mr. Nicol ·_: Wilson the designation is

\'I n·v estigator " and below there is a st am p . and signature of the Ombudsman".

It is pertinent to note that PW4's evidence was not challenged by the Defence at all as he w s not Cr o ss examine d.

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PWS was 'Alieu Badara Gibril the Accountant in the Off ice of the Ombudsman. He was able to

.9ive ari overview of how the accounting system worked in the office. He stated that the office was. ru0 by the Accused who was the vote controller and under whose instructions he operat:eq. He said his responsibility was to sign cheques, prepare- payment vouchers, prepare cornmitment forms and write up payment

·vouchers· for other charges to be taken to he Acco unt ant. General's department. He said he signe_d the cheques together with the Accused

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and that at times the Accused instructed him to just sign blank cheques. He stated that salaries were p_aid to the· staff by the Accused and they were asked to sign on the paid up vo.uchers and

that the names on the vouchers were never rej ect ecj by _the Accountant General's depart ment beca use. the procedure was followed· and they did

t h_\ co r r ect presentation to the Account ant Gener al 's of fice. He referred to Exhibit Gl as the

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paymen·t voucher for the month of March 2003. He said he recognized his name and that he hc;td signed against it. He then stated as follows:

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• Tl)e .n-ame after that ls Mr. Peacock with a basic salary of LeS00,000 and a net pay of Le408,333.

_There is a signature against Mr. Peacock 's salary

and it · implies that he has already received his salary . Number 4 is Mr. M. Nicol Wilson with a basic- salary of Le333, 333. His net pay is Le283, 333· and there is a signature there. ·on the next page the computation for March 2003 amounts to Les, 687,500. I prepared it and it was approved . by the Ombudsman Mr. Francis

.Gabbidon "

Testifying further, PWS said . there were 12

names on the v ouchers . every month and thos·e vouc_h ers included the names of Christopher

Peacock and M. Nico l Wilson. He said he did not

know·these two as staff members in the Office of the Om bu dsm an. He said he had never seen Mr.

Nicol w· ilson or Mr. Peacock· in the Office of the

Om buds m an al th oug_h he knew who they- w· er e.

He stated that neither Mr. Peacock nor Mr. Nicol Wilson operat ed from their·office nor did either of them have any relationship with the office. In fact,· unde r cr o.ss examination he stated that he knew . their names from the salary paid up vouchers. ·He denied ever taking salary to Mr. Nicol Wilson or ever telling the accused that Mr. Nicol ·Wil son had declined his salary and had

.- instead asked for it to be paid to charities. When the Accused put it to ·hi m that every month during. the pe,riod in qu_est _ion he had given him

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^{, r} monies.to give to Mr. Nicol Wilson as salaries,

PWS em phatica ll y yelled out the words " No, not

. in my life". He went on to state that he prepared

• vouchers with their names on it but that it was

the Accused who made al·l the payments and

whenever the Accused paid salaries, he would

. cl_a in, · t h at he was going to pay the other staff c,1t

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thefr· various places of work . He referred to

• ·Exhibit ·G58 and after pointing out the names of Mr Christopher Peacock an.d Mr. M. Nicol Wilson and their salaries he read out the following

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"and I hereby certify that each

of the above positions exist during the period stated and the employ­ ment was duly authorised by the · Ombudsman".

:pws explained that this was the endorsement before the words "approved by Francis Gabbidon". He-.t hen refer r ed · to Exhibit G59 and he said the name·s on . number 2 and number 4

are Mr. Chr1stopher Peacock and Mr. M Nicol

. Wil.son · respectivfi:ly. Their sign·atu res are

attached and these. wor d·s appear:

"Also we [ler by certify t_hat each of the above named persons have been emp/oyed in the capacity and during the period stated and that

the emplqyment was duly authorised.

. We will personally be held liable_if a

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Name in the voucher is not a genuine Staff".

PWS said the endorsement was signed by himself and M·r. Francis Gabbidon. He said he signed first and later it was approved by the Accused. He emph·asi zed that the procedure· for approval is that· o·ne _c annot t aki these _vouc'hers down to the

·. · Accountant General's department without both of the:m si'gning and the .Accused· approving ·after ensuring ·that each member of staff h s signed for his/her salary. HE. confirmed that this was the pattern followed·since 2001 to date. .

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^{, ,} Under cross examination, by the Accused in person, PWS m·aint ained that Mr. Peacock had no relations ip with the office. He said he only kno ws that Mr. Peacock's name and that of Mr. Nicol Wil on's were on the vouchers and that that .

. ad been the case for. th·e past eigh. t years. He

categ oricall y denied the. suggestion by the Accused that every month he had given him monies to give to Mr. Nicol Wilson and that Mr. Nicol Wilson had always said he would rather give the alaries to charities.

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Let us pause at this stage and take a brief -look

at Exhi_bits Gl - 6 2 . and .the endorsement at the back · .of each voucher. The following words appear. :

" TOTAL AMOUNTING TO THE SUM OF ..............

AND. I HEREBY CERTIFY THAT EACH OF THE ABOVE .POSITIONS EXISTED DURING THE PERI OD STATED AND THAT THE EMPLOYMENT

• WAS DULY AUTHORISED BY THE OMBUDSMAN".

Below t hese words appear two signat ures: " Pr epar d by A. Gibril" (PWS) and "Approved by

. . F. Gab.bidon" (the a<=:cused).

T h i·s the prosecution submitted shows clearly that

it . was done on the i nst ructi.on s of. the Orn bu ds m·an whose approval not only appeared but·was the most import nt signature _t her e . PWS wor ked under the direction of the Ombudsman· and therefore the vouchers were prepared under his directives.

Pw6 was Ms Marie Dumbuya . She was the

Con Ad ent ial Secretary, first to the Accused

. qu ri ng his legal practice and she was later

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su b su rTied: into the Office of the Om buds·man.

s·he. said she started wor king for the Accused in

1980 ·and in April 2000 the Accused switched

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over· her appointment to the Office of the Om budsman. She testified that she was never given. a letter of appointment by the Office of the Om bud_.s.m an even though· the Accused had given

.her letters of appointments, including hers, to type. She -st at ed further that salary vouchers for

ty'ping we-re given to her by Mr. Gibrll to whom

they ·had been passed by the Accuse·d. As fa·r as

she could recollect, since the Office started in

April

·2 00 0 she could remember the staff as

follows: Mr. Francis Gabbidon was the head of

the Offi c.e and the Vote Controller, Mr. Gibril was

the Accountant, she was the Confidential Secretary, ·Mr. Saidu Bangura the messenger and one Mr. Isdand Baimba whom she said left between 2003 -2004. She said when Mr. Baimba

·.left there we·re only three members of staff until May 2008. PW6 went on to state that she is aware o'f the close personal relationship the Accu sed. has with both Mr. Nicol Wilson and Mr. Peacock, but she· m aintained that they were not

employee·s of the Off ice of the Ombudsrnan. She

said· she was not aware that monies were sent to Mr. Nic:0·1 Wilso n and Mr.' Peacock on a monthly basis .from April 2000 to December 2007. PW6

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inter alia :

\I see Exhi bit G3. My name is there-.

No 2 is Peacock and No 4 is Nicol Wilson; Of the 12 nam es I recogni ze Mr. Gibr il the Accountant, Saidu Bangura the Messenger, Isdand Baimba the other Messenger and my name as Confident ial

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Secretary. These are the people I

.recognize as being staff members of the

. . ·Office of the Om budsman. I see

sl·gnatur es against their names 6ut

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She was rand_omly showed different other

.Exl)ibit s .such as G30, G59, Gl , G60, G2 and G3 and she sa.id these were the sort of vouchers that

. they signed month after month on the receipt of salaries. She further testified that in each case· , eyery month she would see 12 names on the list.

• She said that she typed the salary vouchers and sl,e 9ot he information through Mr. Gibril who in turn •had got the information from the Accused.

Under cr0$S examination the witness confirmed tl at ·t he- office was very tight' and she recalled

that :lette_ rs had been written ·asking for space..

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She said she could recognize Mr. Nicol Wilson and Mr: Peacock; that Mr. Nicol Wilson normafly wen t to the office during· the period the Accused was Om b. udsm an; that as far as she could recollect Mr. Peacock only came to the office

twice; 'that she could not recollect the Accused seri'ding people to Mr. Peacock dl,.Jring his period as Ombudsman although he drd so when he was a·: lawyer. When pressed further by the Accused PW 6 retorted that the Accused had sent mat t e.r s that were riot within their jurisdiction to Mr. Peacock . On being questioned about the

^J relation. ship between the Accused an·d Mr. Nicol

Wilson she said "being the Director of LAWCLA

·anct ' y.ou · being the Ombudsman I believe that was • the relationship you had· wi h Mr. Nicol

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·• w i !"son. · I don't recall your r la ionship wit h Mr. Peacock .¹¹

• On-_ t h"is point, in her closing Address, Ms Glenna

Thon1pson for the Pr osecu t i on submitted that even if Messrs· Nicol- Wilson and Peacock were

employed by the Office of the Ombudsman, but due· to short age of space had to work elsewhere, both_ Mr. Gibril and Ms Dumbuya wo.uld have.

. nown about it. In eight years they must have

t ome across it, di_scusse.d it or at the very least

heard about it. Counsel further submitted that it

is no·t a criminal offence to have such an

arr angem ent and if it did exist there would have been. no reason for any of the witnesses to

.conceal . /t or deny its existence. She submitted

that this arrangement imply did not exist . and

ha·s be n put forward as an explanation by the

_ Accu$ed to explain away his crim in alit y .

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PW7 Melron Nicol Wilson is one of the persons the· Prose cut ion says was falsely inserted as an n1ployee by the Accused and by so doing misappropriated funds belonging to the Gove rn m en t of Sierra Leone. PW7 categorically

·denied any suggestion that he ever worked for the Office of t he Om budsman. He had never seen any 9f Exh ib i ts Gl-62 nor signed any of them. He denied that the signature which appeared against

his na·me was h is . He said he did not receive any

. payrnents from the Office of the Ombudsman and that he did not have a relationship with Mr. Gibril or :any_ ot h e r person- wor king· in· that office. I ndeed; even in cross examination by the Accu·se d, he stated that he was never specifically asked to investigate any ma tt e r by hi m. The Accused has strenuously sought to explain the inclusio'n of Mr. Nicol Wilson as a staff member

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• by sayin g that he used to send him cases whict) fell outside the mandate of the Office of the Ornbudsman. PW7' s response was that In such a case .the modus operandi was normally by a referral- letter written by the Ombudsman to LAWCLA, the organization of which he is Director,

and rio·t to him specifically He said that the letter

: would state that a particular complaint had been

• made ·and the said complaint did not fall within

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the mandate of the Ombudsn1an and for the Centre to assist. PW7 further testified that such con,plaints related to landlord/tenant issues and

. mqintenance and custody matters. He explained further that because the Accused as Ombud?man was Cha.ir man of LAWCLA, the Centre treated

such matters with high priority and on a ·pro

• bona basis and so the question of payment never

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arose.

. The Accused has tendered in evidence the Annual Report 9'f LAWCLA 2()03 (Exhibit N) in· which the Otfice of the Ombudsman is listed amongst the

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_." funders of LAWCLA." This _. Mr. Nicol Wilson

• .explained was a prin ti n_g error

_and should read

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"those LAWCLA cooperated with".

The accused asked for the statement of this

• witne·ss to be tendered and it was tendered as

• Exhibit .k. I have perused the· said statement and

I ffnd that there is no l.nconsistency between the

stat em ent and the evidence given in court, nor

^, .. wa-s that put to the witness. Mr. Nicol Wilson

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both in his statement and. his vidence before the Court described. the relationship he had with the Accused as a "professional relationship for many years" and not' that of an employee/employer

. r·etationship.

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_Under. cross exan1ination_ by the Accused PW7. 9enied the suggestion that monthly payments were made to him through Mr. Gibril for the ervice rendered. He said "monthly payments

wer e not made to me by any official working in

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the Office of the Ombudsman for services

rendered. to that Off ice. " He also denied the sug·gestfo n by the Accused that whenever monies were paid to him he would · decline to accept them but rather make them as donations to

.char i ties . He said he did not recall having such discussions with the official who· has been referred to as- Mr. Gibril and working as Accou ntant in the Office of the Om budsm an. He concluded by stating that the Accused has been

very supportive of LAWCLA but tha.t there has

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neve·r been any fi nancial transaction between the two institutions.

Next to take the stand was PW8 Mr. Christopher Peaco c . He gave.evid.ence and, like Mr. Nicol

. Wilson, he denied ever being an employee of the Office of the Ombudsman. By way of backgr ou nd, the Prosecution tendered various

newspaper articles and exchange of letters between the Accused and Mr. Peacock. These are

·Exhi bi t s P to X. The .accused has sought to main t ain that payment was made because he sent cases to Mr. Peac.ock . Mr. Peacock denied ever r·ecei ving cases from the. Accused and went on tt> say" that he was consulted and his services paid for by the clients. He gave a narrative of his

. .rea ction and what transpi red alter he becarne wa_r e _v ia a newspaper article that his name had been used as an employee of the Office of th·e Om bu dsm an . This culmi_ n at ed in the letter of

disclaim e·r written by the accused. This letter was

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• ad1Tlit t ed in evidence as Exhibit P. The Accused in

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his tj f nce explained that Mr. Peacock was annoyed because he had broken a promise he.

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_ .m_ ade at· the time of employing .hi m that he will

:no reveal that he, Peacoc.k, . worked for the

• Office of the Ombudsman. The Prosecution subm!tted that even allowing for the possibility

• that this statement might be true, how practical was it if the accused sent "many cases" to Mr. Peac_oc k in secret. Surely, those people who were

:referred to. him would have known that Peacock

wa·s working for him. Secondly, it is not a crime

to wor k, so why would Mr. Peacock ask for the

-· gr eement to be kept confidential. The "Prosecution further submitted that the Accused would have included that in Exhibit P because wit hout it, it gave the impression that there was som e· dishonest wrong doing on the part of the Accused. Counsel further submitted that the

Accu sed. would not have lef·t himself open to a

. ...

crif0inal charge to honour- a confidentiality agr eem.ent he made with Mr. Peacock. Like PW7; PW8 also denied ever seeing Exhibits Gl-62 or ever ·signing any of the vouchers. He did not recognize the signature appended against his name. · PW8 was very emphatic in his denial and he had this to say:

'.'I have never in my.life received any form of emolurnents from that office

in the form of salary, wages, honorarium,

.consultancy fees, retainer ship fees or aJlowances or end of service benefits.

• 1· have never signed any form

of documents as a recipient of any form of moneys relating to that office.

·.I have never part icipat ed·in any form·

.of activities organized by the Off ice· of . the Ombudsman."

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as k _ed the Court to believe that Mr. Christ opher Peacock was an employee of the Office of the Ombudsman. He said that this arose by an agreement betwe-en him and Peacock. He

submitted further that as the Office of_.. the

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Ombudsman generally operates on the principle

• of confidentiality and in order for Peacock's

cHent s generally not to know, and also for tax

: avoidance reasons, it' was agreed for it not to be

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in writing or formal. He said that·this might be

improp r but it was not •i ll egal or cri m in al.

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It i · pertinent to note that the Accused himself

condu cted the cross examination of PWS Alieu Badara Gibril, PW6 M rie Elaine Dumbuya, PW7 Melron Nicol Wilson and PW8 Christopher James Peacock. In my considered view nothing in the cross examination by the Accused could dent thes witnesses' evidence. They all came across as credible and reliable witnesses and the Court accept s -their evide nce. In any event, it se ms to me, and my view is buttressed by the questions put to these witnesses by the Accused, that the

_. cross examinat ion w.as reduced to ·get t ing the

witnesses to confirm the good relationship they had enjoyed with the Accused and the fact that

·. h e· had always been ·good to them and had help d them to further their careers.

• The last witness for the Prosecution was PW9 Vi.cto-r-ia Am inat a Mansaray, a NASSIT Of fi cial who gave evidence on the.15^{t h}January 2009. She conffrmed that the Office of the Ombudsman did not register its employees for NASSIT payment.

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She pr'oduced and tendered Exhibit DD which she said was a let ter· written formally to the Office of the Onib d rnan after several oral reque$ts to

hem to register their employees and to regist er

their \nstitution. Under cross examination the · Accused put it to the witness that they never

: i ec eived Exhibit DD. She answered that they did

and to this letter was attached the registrat io n form for the employees. .

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At tt,e close of the Prosecut ion 's case, the • Accused ( who by then was un represent ed) on the . 29^th· day of January 2009 made a no case subm is ion premised on the following grounds:

• . The Court has no jurisdiction to try the case. The proper forum for this matter should be a Tribunal appointed by the President to investi gat e allegations of

_misconduct s, to wit, acts of a-ll eg e q

corrupt ion and misappropriation by him

• as the fon11er Ombudsman.

11o As a matter . of public policy, the Ombudsman, like a Judge, when performing his functions should not be sued or prosecuted In the Courts of Law.

• No consent or fiat has been proved in Court as part of the p_roceedings.

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In t he Prosecution's response, ·Counsel Glen na

Thori)pson pointed out that the issues which form the basis of the submissions of the Defence are a repeat of the issues.contained in th submission·s 111ade by Counsel for the Accused at the beginni·ng of this trial in their preliminary jurisdi.ctio ·nal objection, the subj ect of whi.ch is th e basis of an appeal before the Court of Appeal and an application for a stay of proceeding s· befor e the Supr eme· Court. Counsel further

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s·ubm itt ed that in no case submissions the g idelines laid down In the case of R v. Galbraith

(73 c_. Ap p. R. 124, CA) sho-uld be used and

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since those guidelines have not been the subject o_f t h i s n.o case submission, it should be taken that . the Defence does not' challenge the facts of this case as being capable to be put before the

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Ju'dge to det er m in e guilt or innocence.

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Suffice it to say that after careful consideration of II the submissions made by the Accused. as "Defence Reply to close· of Prosecution's case" I delivered a Ruling on the 9^th day of February 2009 in which I held· that the Accused has a case

to answer.

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On .th e .11^{t h} day of February, 2009 the Ace.used was put to his election in accordance with the provisions of Section 194 of the Criminal Procedu r e. Act, 1965. He was also informed of his

: r i gh t t o witnesses on his behalf, irrespective of wh ich ever opt ion he chose in presenting his case: The Accused elected to give evidence on oath and to call witnesses. On that day th

/.\ccused . was represented QY Counsel Leon

Jenk ins Johnston.

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The Accused testified that he is a Barrister and Solici tQr with 37 yea s post call experience having been called to the Bar at Gray's Inn on

h.e 2^{n d} day of July 1972. He gave a brief

• overview of the v·ar iou s positions he has held; name-ly, that he is a member of the· Sierra ·Leone Bar: Associ at io n of which he was President twice; a member of Commonwealth Lawy ers Associat ion; the first ·Si•er r a Leonean to be a

rnern ber of the International Bar Asso ci t ion of which he was an executive member; also a

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6. em ber of the West African Bar Association; a Notary Public; a Commissioner of oaths; the Chairm an of the Committee of Lawyers that

draf t_ed tt)e Legal Pr act it i on er 's Act; that he was

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also te·aching at the Sierra Leone Law School and

• he al·so taught Media Law Et.hies and Law of Intetnational .Property at Fourah Bay College for four: ano a half years w•thout· salary b t that he was asked to stay away until after this case ends.- He stated that being a Notary Pu blic ent ai ls n ota ri zing documents and affidavits especialIv those used outside the country; that in the case of being a Com missioner of Oaths when l1e appends his signature and notarizes these

docum nts it means everything has been properly and regularly done and that it is a mark

- qf honour for anybody to perform that role in

terms of trust and confidence.

The Accused further testified ·t hat he was

ppoi nt ed as Ombudsman in April 2000. Prior to

_ that he said he had been informed by the then

Government of Sierra Leone that they wou_ld like

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to· promote him to the Bench or make hi.m the flrst Ombudsman of Sierra Leone. He. said he opte8: b be the first Ombudsman because he felt it was a challenging job. He identified Exhibit C

. as his appointment tetter and he stated that even though· it. was dated 21s ^t De cem b er 2000 he act uall y_ start ed work on 1^st April 2000: He referred to the 2^nd paragra ph of Exhibi t C where there is reference to office accom m odatio n an d

he said there was no office all ocat ed to hin1 and

so he had to resort to using his own priv ate office at No. 84 Dundas Street, Freetown. He said this was unlike the Human Rights

Commissio_. n_, the ACC and the IMC which were all

provide.d with offices. He said he complained

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. about ,this··on severally occasion$ yerbally and in writing but. they sHd n ot h i n g virtually. He

• pr o duced ·and tender·ed a' l etter dated 10/5/1001

. wri'tten· by one Mr. Wellington who was ? Ct i ng as

Permanent .Secreta ry · at the time he was

complainl ng about · accom modation .and office

_ spac . the said letter was a9mitt d as Exhi bit

. EE. .The • Accused also tendered as Ex hib it ' FF a le t te r· dated 1/10/02 which he had written to the then Minister of Housin g. · He said it was a

: not orious fact that his office was the only one

that was not given the· seriousness that it

·.deserved.

Various oth r issues which the Accused brough t

. up in his d fence can be summarized as follow s:

• That the Office of the Ombudsman was

  • not provided with space by the Government of Sierra Leone;

• That the Office was not provided

with staff by the governn1ent of Sier ra

. - Leon e ;

. • That the office was inadequat ely

funded by the government of · Sierra Leone;

• That neither . PWS nor PW6 ever

complained or put any disclaim er on

any financial matter;

• That he used to help both PWS and

PW6;

• That the office was never que; stion ed

by Parliament or by the Acco'un t ant

- General's Offi ce;·

• ·That there was no Perm anent

·· Secr et ar y ;

• That there was no Vote Controll er ;

• That PW6 left his employment In 2008

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• That he was not sworn in as Ombudsman after the first term can1e to an end in 2004 and that since there was a violation of the Om budsm an ' s Act and the Parliamentary Procedure and Approval, all acts and things done by him after that period was

. unconstitutional, void and of no effect.

It is· my v iew, however, that none of these issues raise d . address the fundam ent al. questi,on of whet her the accused is guilty of the offences ·

charged . Moreover, the Court has take·n judicial

notice that, notwfthstanding the fact that he had not b en sworn In, the Accused at all material

time·s acted as Ombudsman (including signing

cheques and letters from the Office). Unc.ler cross exan"li n ation the accwsed accepted that he was

• o· m bu dsm an for the entire period. He continued

to perform the functions of On1budsm an, to refer to himself as such and to answer to the title. He annot how, out' of convenience, claim not to have been Ombudsman at the mat eria l time. J

. find that ·he was at all times the Om budsm an of the Rep blic of Sier ra Leone and I so·Hold.

• ^{, '} The Accused also tendered a number of

documents namely:

Exhibit K: The recorded interview given by

• Melron Nicol Wilson

Exhibit L: Letter from Francis Gabbidon to Melron Nicol -Wilson

Exhibit M·:

Eighteen Month Report - Lawyers Centre for Legal Assistance

Exhibit N:· Annual Report 2003-The Lawy ers Centre for Legal Assist ance.

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Exhibit O:· Donation to Cent re· from Peter

Harrison

_.. Exhibit Y:

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Peep Maga.zi ne dated Wednesday November 21, 2007

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Exhibit Z: Handwritten Pro'file of CJ .Peacock .

Exhibit AA: Writ pf Summons attached to lett er from C.J. Peacock to Mr. Gabbido n

Exhibit 8B1- 8B2: Letters from C. F. Peacock

• dated 24lh J a nua ry , 20 02 to the

Attorney General..

Exhibit CC1-CC2: Let ters. from C.F. Peacock

dated 27^thAugust 2001 Re : Sale of Blue Mercedes Benz 230

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Exhibit Ff:

Exhibi t GG:

Ex hi it HH:

• Exhibi t JJ:

to Mr. Lansana R_ogers

Letter from the Ministry of Presidential Aff airs to Francis Gabbidon dated 10/ 5/ 01 Letter from th·e Om budsm an · to the Mi.nist er of Hous.ing and Environment dated 1/ 10/ 02

Letter from the Ag. Permanent

Secretary to t h e Secretar y to the

President dated 11/ 2/ 02 Letter to Mr. Fran cis Gabb idon

From Ms Marie Dumbuya dat ed 20/5/08

Letter from the Secretar y to

Ombudsmar\ to the Financial

Secretary .dated 4/ 6/ 01

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Exhib it .KK1 - KK2 : Om budsm an Annual Rep ort s

Dated 1/1/02 and1/ 1/ 03

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E.xhibit LL :·

Letter from Mathias Tumwesigye Director Education & Prev ent ion of Cor ru pt io n, Ins pe cto rat e of

of Gov er nment , Kam pala,

Uganda

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I · hav e perused all of t em and wish to st ate that, for an i nt ent and purposes, the majority of these

docu.m ents were intend·ed to show the constraints

wnd ·'r which the Off ice of ·the Ombudsman worked.

The Accused has put a lot of emphasis on Exhibit LL

t h

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^' . which is a letter dated 26

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June, 2002 from a

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Co0sult ant sent by the Commonwealth Secr etariat

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to assess the office of the Om bu dsn, an. his

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. clo ing .argu m en t s, the Accused . s ated that he

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. Report of Mathias Tumweslgve clearly • stated that there were· t wo Lawyers in the staff of the Office of the Ombudsman in Sierra Leone. He further submitted that the- two Lawyers referred to are

Chri st opher' Peacock and Melron Nicol Wilson and

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t h at they h.ad to work elsewhere. In any event,

none of this was put to either Mr. Nicol Wilson or Mr. f: e acock. Counsel for the Pro sec ut ion ·has urged t11e Cour t to conclude that the contents therein of E_xhibit LL could only have come from the .Accused

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hirn self and. is further evidence of the elaborate and expansive web he weaved in order to deprive the

$tate and now deceive the Court. ·

• The Accused has denied all 168 counts against him and -h e said he did not r:nisappropriate public funds because he had no reason to do so. He said·he paid