S v Baun and Others ([node:field-casenumber])  SLHC 18 (10 March 2009);
INT HE HIGH COURT OF SIERRA LEONE THE STATE
LUSENIJOE BAUN ALLIEU BADARA KAMASON DESMOND COLE MOHAMED ALIE BANSURA S. JAMIRU Esq for 1st Accused
C.F. MARGAI Esq (with him, C. J.PEACOCK Esq) for 2rd Accused C. J. PEACOCK Esq and M.S. BANGURA Esq for 3rd Accused C.F. EDWARDS Esq for 4th Accused JUDGMENT A.THE CHARGES
1. The 4 accused persons stand charged before me on a 5 Count Indictment, charging the following offences: 2 Counts for the offence of Soliciting an Advantage contrary to Section 8(l)(a) of the Anti-Corruption Act,2000; 2 Counts for the offence of Accepting an Advantage contrary to Section 8(l)(a) of the same Act; and 1 Count for the offence of Misappropriation of Public Revenue contrary to Section 12(1) of the same Act. The Indictment was, on the application of the prosecution, amended on 23 September,2008 in the particulars in Counts 1 and 2: the words in the 5th line in both Counts: "..and Laura Kwon.." were deleted to avoid Duplicity.
2. In Count 1, the 1st accused LUSENI JOE BAUN is charged with the of fence of Soliciting an Advantage. It is alleged that on 6 March,2008 being a Public Officer attached to the National Revenue Authority as a Preventive Services and of the Customs and Excise Department, he solicited an advantage in the sum of Le500,000 from Saidu Papa Sankoh as an inducement to perform an act necessary for the release by the Customs and Excise Department of the container imported by Laura Kwon, to wit: to provide the said Saidu Papa Sankoh with the endorsed N1RA C48A Form required by the Customs and Excise Department.
3. In Count 2 the 1st accused is charged that on 6 March,2008, being a Public Officer he did accept the sum of Le500,000 as an inducement to perform an act, namely to provide both Papa Sankoh and Laura Kwon with the endorsed NRA C48A Form.
4. In Count 3, the 2nd and 3rd accused persons, ALIEU BADARA KAMASON and DESMOND COLE, respectively, are charged with, on the same day, 6 March,2008, misappropriating the sum of Le3,713,150 being Public Revenue due to the Government of Sierra Leone by demanding payment in the sum of Le8,000,000 as the assessed Customs duty from Laura Kwon and Saidu Papa Sankoh and causing to be issued an official receipt of Le4,286,850 thereby depriving the National Revenue Authority of the sum of Le3,713,150. This charge is fraught with some difficulty because, it seems to me, the prosecution is alleging two separate transactions: the demand made by both accused persons for the sum of Le8,000,000 which could be said to be a way of soliciting an advantage for performing an act, assuming that sum was not the true assessed duty payable on the goods imported by Laura Kwon; and depriving the National Revenue Authority of the sum of Le3,713,150 which figure is arrived at, not by direct evidence that this sum was actually misappropriated by the accused persons, but by a notional deduction of the sum of Le4,286,850 from the sum of Le8,000,000 alleged to have been demanded by both accused persons. In other words, if the sum paid i.e. Le4,286,850 was an undervalue of the duty payable, then in the words of Section 12(2) of the Act, the NRA was deprived of the sum of Le3,713,150 which it was due.There are therefore issues of quasi-duplicity and of the true nature of the offence of misappropriation.
5. Count 4 charges the 4th accused that being a Public Officer, on 6 March,2008 he solicited the sum of Le150,000 from Saidu Papa Sankoh as an inducement to abstain from ordering a re-examination of the said container. Count 5 charges the same 4th accused that on the same day, he accepted the sum of Lel50,000 from Saidu Papa Sankoh as an inducement to refrain from ordering a re-examination of the same container.
6. 6 witnesses were listed on the back of the Indictment: Saidu Papa Sankoh, Laura Kwon, Alie Kargbo, John Gbla, Mark Fullah and Foday Kargbo. All of them testified. The prosecution called 6 additional witnesses: Saa Musa Momakoe Tenefoe, David Moses Farma, Felix Lansana Tejan Kabba, Momodu Sittar, Abdulai Charm and Bockarie Benjamin Belewa. The prosecution tendered in evidence, several exhibits lettered "A" to "T".
7. On 17 July,2008 the Attorney-General and Minister of Justice gave his written consent pursuant to Section 48 of the Anti-Corruption Act,2000 for MS
SLENNA THOMPSON, CALVIN MANTSEBO ESQ, and SIMON SEMALEMA ESQ to prosecute this matter on behalf of the State. On the same day, the Attorney-General and Minister of Justice, in exercise of the powers conferred on him by Section 144(2) of the Criminal Procedure Act,1965 (CPA,1965) applied to this Court for the accused persons to be tried by Judge alone, instead of by Judge and jury. Even there, as in the Fiat, there was some error. The application referred to Misappropriation of Public Funds, whereas the Indictment refers to Misappropriation of Public Revenue. However, Section 12(1) of the Act refers to public revenue, public funds or property, though in the Interpretation Section, Section 1 of the Act, only 'public funds' are defined, and not public revenue. It also referred to Section 8(2) of the ACC Act: whereas the Indictment, rightly, refers to Section 8(l)(a) of the Act. Whether these errors vitiate the whole proceedings, is a matter which a Superior Court will have to decide, but for the purposes of this trial, I hold the view that they do not affect the validity of the trial.
8. The trial proper commenced before me on Tuesday 23 September,2008. All the accused persons pleaded Not Suilty to the various charges. MR MANTSEBO for the prosecution drew my attention to the Application for Trial by Judge alone, and I made the Order as of course. PVV1, PW2 and PW3 gave evidence that day.
9. PW1 said he knew all the accused persons. He had had previous dealings with them. On 6 March,2008 one Pa Alie who later testified as PW7 took him to 2nd accused. 2nd accused deputed two persons to accompany him to the place where the container was to be examined. The container was inspected. He locked it again. PW7 took him back to 2nd accused to pay for clearance. 2nd accused told him he had to pay Le500,000 for a piece of paper. He gave PW7 the said sum of Le500,000. PW7 then told him the money was for somebody else. He said he wanted to know who the person was. PW1, PW7 and PW10, GBLA went upstairs. The man they met in the office said that he had given them the document the day before. PW7 put the money in the man's pocket. This man then said PW10 should go and get the document. PW10 got the document; he gave it to PW7 who in turn gave it to PW1. They went downstairs. This transaction was conducted outside the quay area by the hospital. PW10, PW7 and PW1 went down the quay again to see the 2nd accused. 2rd accused wrote on a piece of paper, and told him to take it to 3rd accused. He gave the piece of paper to 3rd accused. PW1 told 3rd accused that he had Le8,000,000 with him. 3rd accused asked him for the money. PW1 said he counted it out and gave it to 3rd accused. 3rd accused then gave him a receipt to remove the container. On going outside, he met 4th accused who told
him the amount on the receipt was incorrect; and that he should give him something, otherwise, he would recheck the container. He gave the 4th accused Le150,000.
10:Under cross-examination by MR JAMRU for the 1st accused, PW1 reiterated that he put the money in 1st accused's pocket. He however agreed that there was no arrangement between 1st accused and himself. It was PW7 who took him to 1st accused; and it was PW7 who told him he had to give Le500,000 to 1st accused for the document to be used in clearing the container. In these few questions, Counsel got the witness to confirm the prosecution's case,
11. He was also cross-examined by MR MARGAI for the 2nd accused. MR MARGAI's questions were directed to the amount of money given to him by the ACC: and as to whether one HANNAH was with him while he was at the quay; and whether it was this lady who gave the signal to the ACC Officers to pounce on the accused. When cross-examined by MR BANGURA for the 3rd accused, the witness said that there was a cashier in the 3rd accused's office; that the cahier gave him the receipt; and that he counted the money before the cashier. This piece of evidence is crucial because of the defence raised by the 3rd accused that he newer counted the money in the black plastic bag PW1 had put on his table; that it was after the ACC Officers had entered his office that the money was counted by the cashier. During cross-examination by MR EDWARDS for the 4th accused, the witness confirmed that he gave money to the 4th accused, and that that money was part of the amount given to him by the ACC.
12.During re-examination by MR MANTSEBO, PW1 said he gave the receipt to the ACC. Unfortunately, he did not identify it; nor was he recalled later, after it had been tendered, to identify it.
PW1 is clearly an accomplice to the offences charged in the Indictment, in the sense that he paid the sums alleged to have been paid in Counts 1,2,4 and 5; and the sum of Le8m whichjater recovered in a plastic bag in the office of 3rd accused. But Section 44 of the Act, provides that he should not be treated as such in cases brought under Section 8.
13. PW2 was LAURA KWON. She knew all the accused persons. She went to the quay on 6 March,2008 to clear her container. She was with her business partner, PW1. PW7 took her to 2rd accused. She was told to pay Lel5m for the 1st container. On the second occasion, which is probably this particular day, in the light of later evidence, she was asked to pay Le46m. It appears she was not willing to pay this amount, for she says she went home; and then later went to the
ACC. She was told she would be given some money. She signed receiving the money. Under cross-examination by MR MARGAI for the 2nd accused, she said the ACC agreed to give her the sum of Le15m based on her complaint. In answer to MR BANGURA for the 3rd accused, she said she was annoyed when told the amount she had to pay to clear her container.
14. PW3 was FODAY MOHAMED KARGBO. On 6 March,2008 he was on special assignment. Sometime after 6pm that evening, 4th accused gave him the sum of Le150,000 in Le10,000 notes for safekeeping. The 4th accused said he did not want people to know he had money with him. He was about to enter the Baggage Section at the quay, when he was stopped by an ACC Officer. Later, 2nd accused called him in. FELIX KABBA was about to search him, when he took out the sum of Lel50,000 given to him by 4th accused. The serial numbers of the Lel0,000 notes were taken down by an ACC Officer. He told the Officer the 4th accused had given him the money a few minutes before. He called the 4th accused in, and gave him back the money. In answer to MR EDWARDS for the 4th accused, he said 4th accused told him he had given him the money for safekeeping.
15. PW4 was SAA MUSA MOMAKOE TENEFOE, Acting Deputy Director, Human Resources, NRA. He knew the accused persons. He tendered in evidence the letter of appointment of 1st accused as Exhibit "A"; a Memo dated 22 August,2003 from the Commissioner-General, NRA to the Commissioner, Customs and Excise with a staff list attached, showing that the services of 2nd and 3rd accused respectively, had been transferred to the NRA with effect from that date, as "B1-3"; and "C1-3" a letter dated 17 July,2007 showing that the 4th accused had been given a 6 month renewable contract by the NRA. Under cross-examination by MR MARGAI who stepped in for MR EDWARDS, Counsel for the 4th accused, who was absent, PW4 said that 4th accused was not a permanent employee of the NRA.
16. PW5 was DAVID FARMA, Senior Investigating Officer, ACC. He assigned the investigation file to FELIX KABBA in February,2008. He began interviewing 2nd accused on 12 March,2008 and concluded on 13 May,2008. He tendered this interview as "D". He tendered 2nd accused's second interview as "E". He also tendered 4th accused's interview as "F". 4th accused's second interview was tendered as "G".
17 Under cross-examination by MR BANGURA for the 3rd accused, the witness said that the ACC agreed to make available money to PW1 and PW2 to pay for the duty they had been charged for clearing the container.
18. PW6 was FELIX LANSANA TEJAN KABBA, Investigations Officer, ACC. He gave an account of the plan of action agreed between the ACC and PW1 and PW2. ACC would give them the money to clear the container provided the ACC Officers were allowed to monitor the whole process. Lel5m worth of currency notes were photocopied by the ACC, and the whole sum was given to PW1.and PW2. PW1 was also provided with an Olympus Digital Voice Recorder in order to record conversations. On 6 March, 2008 the operation went into top gear. Two teams followed PW1 to the quay. At the quay, PW1 gave the pre-arranged signal indicating he had been issued an understated receipt. PW1 also informed them that he had paid Le500,000 to a man in the PSSD Office. Based on that piece of information, PW8, SITTAR led a team to the PSSD Office, while PW6 led his team to the Baggage Hall. In the Baggage Hall he met 2nd and 3rd accused, and explained his mission; he and others conducted a search. During the search, he found a green Baggage Assessment Book which he tendered as "H". On examining it, he found an entry relating to PW2's container. That entry is numbered 29918, and inexplicably, it is dated 7th not 6th March,2008. The assessment there is Le3,933,000. Just about that point in time, 3rd accused announce that he had money in a black plastic bag which somebody had just paid as Customs Duty in respect of PW2's container. 3rd accused said he did not know the amount in the black plastic bag: he had not counted it. PW6 told him to hand the bag over to the Cashier MARK FULLAH, PW11, for him to count the money. 3rd accused handed the bag to PW8 who emptied its contents on the table. The money amounted to Le8m in Le10,000 and Le5,000 notes. He told those present that he was going to record the serial numbers of the money counted. During this flurry of activity, he received a call from PW1, as a result of which he intercepted PW3, searched him, and found Le150,000 on his person. PW3 said the money was given to him by 4th accused for safekeeping. 4th accused was brought in. He admitted giving the money to PW3 for safekeeping. 4th accused told him also that the money was given to him by ALIE KARGBO for assistance he had rendered in securing a container. PW6 recorded the serial numbers of the sum of Lel50,000. Entries were made in the ACC Search Log, and every one present signed it. This Log was tendered as nJ". The sheets recording the serial numbers of the sum of Le8m were tendered as "K1-15 and those in respect of the sum of Lel50,000 as "L and L1" respectively. The Customs Officers were arrested and taken to the ACC. Photocopies of the sum of Le8m were tendered as "M"; and of the sum of Lel50,000 as "N." Comparison of the serial numbers of the notes found at the quay, with the photocopies of those handed over to PW1 and PW2 was done.
19. PW6 tendered in evidence the recorded interview of the 3rd accused as nO"; that of the 1st accused, as "P". He also tendered as "Q", a copy of the Entry for Low Value Goods and Personal Effects Liable to Import Duty, numbered 0001869. The goods are described as personal effects and bed mattresses; no mention of TV sets. On the right of the document, outside the columns, there is the minute, 'pl ensure thorough examination of this container.' It is dated 4 March ,2008. Another interview given by the 1st accused was tendered as "R."
20. On 7th October,2008 PW2 was recalled to identify the Customs Receipt for money paid and five other documents. Under cross-examination, she said she did not receive any documents from 1st accused; she said they were the documents used to clear the goods; she did not know how the goods left the quay. PW5, DAVID FARMA was also recalled for cross-examination by MR O5HO-WILLIAMS for the 2nd accused. Among other things, he said he would not say the ACC lost any money. PW6 was also recalled for further examination-in-chief during which he tendered in evidence, Exhibits "51-6" These are, the Imports official Receipt of the NRA dated 7 March,2008. The total amount paid is Le4,286,850. "52" is the original of the entry in "H"; "53" is the SLPA Delivery Order dated 6 March,2008; "S4" and "S5" are copies of "S3"; "56" is an SLPA receipt dated 6 March,2008 for the sum of Le360,000.
21. PW6 was cross-examined by Defence Counsel. It was established in answer to questions put to the witness by MR OSHO-WILLIAMS for the 2nd accused, that of the amount of Lel5m given to PW1 and PW2, only the sum of Le8m was actually recovered. According to PW5, FARMA when cross-examined by MR OSHO-WILLAIMS, part of the remaining amount of Le7m had been used to pay some other charges at the quay, which have not been questioned in these proceedings. During cross-examination by MR BANGURA for the 3rd accused, PW6 said that no payment was made to the Cashier. He said also that the comparison of the notes was not done in the presence of the 3rd accused; and that the 3rd accused had told him he did not count the money.
22. PW7 was ALIE KARGBO, Foreman at the SLPA in charge of sheds 4,5, and 6. He knew the accused persons. He also knew PW2. He assisted her in clearing her container on 6 March,2008. He asked his Clearing Agent, GBLA to assist. He narrated the process of clearing the container. GBLA told him the Officer doing verification wanted something. He told GBLA he had nothing. He told PW1 and PW2 what was going on. They said they were going home, and would return the next day. They returned after 4 days. PW2 phoned him to say she was coming, as she now had some money. PW1 came with the money. He, PW7 put the sum of
Le500,000 in 1st accused's pocket. 1st accused did not talk to him. He went with PW1 and PW2 and also with GBLA to 2nd accused's office to make payment. He said PW1 refused to allow GBLA to make the payment. He said they made the payment and he later saw them come outside. As he was not actually present when the money was paid, this Court cannot rely on his evidence to support the fact of payment being made; particularly as PW2 has not in her evidence said anything about being present when payment was made. PW7 was cross-examined very briefly by Counsel for the 1st and 3rd accused persons.
23. PW8 was MOMODU SITTAR, Investigator at the ACC. He was part of the team which went to the quay on 6 March,2008, He found Le400,000 on the person of the 1st accused. He tendered the sum as Exhibit "T". The recorded serial numbers were tendered as "U." Under cross-examination by MR JAMIRU for the 1st accused, PW8 said, that he got to know the 1st accused for the first time that day; that the sum of Le400,000 was taken from the pocket of 1st accused.
24.PW9 was ABDULAI CHARM Barrister and Solicitor, Director of Policy and Legal Affairs, and Acting Director Administration and Human Resource Management, NRA. He identified "A". He confirmed that 1st, 2nd and 3rd accused persons were permanent employees of NRA; and that 4th accused was temporary staff. He also identified exhibit C1-3 and their significance. He said "C3" is the Bank payment instruction in respect of the monthly salary of the 4th accused for May,2008. He said 4th accused was employed as an Intelligence Officer by the NRA and that he was not supposed to disclose his identity. NRA Management found out that the identities of some of its Intelligence Officers had been "blown". Management therefore decided not to issue renewal letters to temporary staff any more, though they remained on the establishment. 4th -accused was therefore an employee of the NRA in March,2008. He received salary upto May,2008.
25. He was cross-examined vigorously by MR BANGURA who deputised MR EDWARDS, Counsel for the 4th accused and who was absent. He said that the NRA had payment slips in respect of the 4th accused for the months preceding May,2008, and for succeeding months. He was questioned closely about whether the person he knew as MOHAMED BANGURA was MOHAMED S BANGURA or MOHAMED A BANGURA. His statement to the ACC was tendered as "V". The purport of the cross-examination seems to me to have been that, MOHAMED S BANGURA was not the same person as MOHAMED A BANGURA. In "V" PW9 refers to MOHAMED A BANGURA. In both "F" and "G" the 4th accused describes
himself as MOHAMED ALIE BANGURA. In "C1", he is described as MOHAMED BANGURA. In "C2" he is described as MOHAMED A BANGURA. At the bottom of "C2" there is written in ink, the following: "I do hereby accept the offer of employment as stated above." A signature follows. Then at the bottom, there are the following words: "My account # 02900-01 First International Bank (FIB) Freetown." C3" is a payment instruction from NRA to S.L Commercial Bank Limited to pay MOHAMED S BANGURA, First International Bank, Account No. 02900-01. The date of the instruction is 23 May,2008. The mount to be credited to that account is Le145,000. The account number happens to be the same given by the 4th accused in his indorsement on "C2". 4th accused did not, as he was entitled to, object to the admission into evidence of "C1-3". I am Satisfied that the initial "S" in "C3" was an error, and that the person whose account was credited in "C3" is the 4th accused. I am also satisfied that at the material time, he was an employee of the NRA, and was receiving salary as such.
26. PW10 was JOHN GBLA a Personnel Officer at Zac Clearing and Forwarding Agency. He knew the accused persons. He knew PW1, PW2 and PW7. He processed the C48 form, "Q". He said both himself and PW1 went to 1sT accused with "Q". 1st accused signed it and gave it back to him. He said 1st accused told him he was broke; 1st accused asked him for Le500,000; PW10 said he would help him. 4 days later, PW1 came back to him and told him he now had money to clear the goods; PW1 asked for the 'document'. PW10 told him the document was in the office, but that the office was locked. PW10 told PW1 to give PVV7 the money to give to 1st accused. He went back to his office. His boss had returned, and he was able to retrieve the document. He went back to Custom House. He met PW1, PW7 and a lady; he saw PW7 deep his hand into 1st accused's pocket. They left Custom House and went down to the quay to continue the process of clearing the container. He identified "Q" as the document he prepared.
27. Under cross-examination by MR JAMIRU for the 1st accused, PW10 said that after 1st accused had given him the document, he told him he had some problems. His role had been completed. He, PW10 was expecting to give 1st accused part of what he received from PW1. It appears from PW10's evidence that money changed hands after 1st accused had signed the document, and not before.
28. PW11 was MARK FULLAH, the Cashier, Baggage Section in March,2008. He identified "H" as a book he used on 6 March,2008. He said on that day, ACC Officers came to his office; they said they were looking for Le10,000 and Le5 000 notes in connection with a lady called, Laura Kwon. He gave PW6 his receipt book. He went through it, and recognised one of the transactions
recorded in it: that is, the one relating to MS KWON. He identified "S2". During the search, 3rd accused said to him that he knew he had money for him, i.e. 3rd accused. He, the witness, answered "yes" PW6 took a plastic bag from 3rd accused's table and brought it to him, and told him to count the money. He counted Le8m. PW6 took down the serial numbers of the money found in his presence. He identified "S1-6". He prepared "51". The information on "S1" was obtained from Form 8 which he got from 3rd accused. He identified a copy of the Form 8 prepared by the 3rd accused. He also prepared "52". He said further that at the time he made out "S1", he had not received the amount in question. He was asked by 3rd accused to prepare the receipt. He was also asked to identify various stamps which appeared on these documents. When cross-examined by MR BANGURA for the 3rd accused, he said he did not see the 3rd accused count the money in the black plastic bag.
29. The last witness was PW12, BOCKARIE BENJAMIN BELEWA, the Customs Officer in charge of Record keeping. He keeps records of all goods cleared from the quay. As regards the Form 8, he had this to say: nI see Form 8. It is a copy. The original was requested from us by the ACC. It was forwarded through our operations Commissioner. I do not know how the document was transmitted to the ACC. This copy I have is true copy of the Form 8." It was identified as "1". I did not allow the witness to tender the copy, because the prosecution had not offered any explanation for the absence of the original. PW12's account is that it must be with the ACC. PW5, PW6 and PW8 were all ACC Officers. None of them could account for the absence of the original. As I have to hold the balance between the contending sides, and as I have at all times to ensure that the rights of all the accused persons are protected, I had no alternative but to refuse to admit the copy of Form 8 into evidence. In event, the 3rd accused, freely refers to it in Exh "O", and admits he prepared it. At the close of PW12's testimony, the prosecution rested its case.
D. ACCUSES PUT TO THEIR ELECTION - 5. 194 CPA 1965 AND NO-CASE SUBMISSION
30. In accordance with the provisions of Section 194 of the CPA,1965,I put the accused persons to their election. I told them that whichever option each of them chose, they had a right to call witnesses. 1st accused elected to give evidence on oath. His Counsel, at this stage asked for an adjournment to confer with his client. On the adjourned date, 27 October,2008 MR MARGAI, lead Counsel for the 2nd accused, who had been absent at the last hearing, intimated the Court, that notwithstanding the fact that the accused persons had been put
to their election, he wished to make to make a No-Case submission. I allowed him to do so. CJ. PEACOCK ESQ who joined him for the 2nd accused, adopted his arguments in respect of the 3rd accused who was also being defended by MR BANGURA. I reserved Ruling, and delivered the same on 5 November,2008. By then we had lost C A OSHO-WILLIAMS, who was also appearing together with MR MARGAI for the 2rd accused. The reasons for overruling the submission are to be found in the printed Judgment. As I emphasised in that Judgment, proof beyond a reasonable doubt was not required at that stage. I also rejected the legal submissions made by MR MARGAI about the propriety of the title of the case, and about the use to be made of the evidence of an 'agent provocateur' such as PW1.I adopt the reasons I stated therein for rejecting MR MARGAI's submissions in this my Judgment. As regards the other submissions made by him on the evidence led by the prosecution, the position is, as I pointed out, that it is at this stage that proof beyond a reasonable doubt is required of the prosecution.
31. After overruling MR MARGAI'S submissions, I again put the accused persons to their election. All four of them elected to rely on their recorded interviews given to the ACC. In addition, the 4th accused elected to call two witnesses. In the end, he only called one of them, on the next adjourned date, 10 November,2008.
32.That was ABU BAKARR TURAY, DW1. He is presently unemployed, but at the material time, he was a Clearing and Forwarding Agent. He testified that 4th accused was his friend, and that on 6 March,2008 he was present when ALIE, PW7, gave some money to 4th accused. 4th accused in turn gave this money to FM", i.e.PW3. Under cross-examination by MR MANSTEBO for the prosecution, he said that nobody else was present when PW7 gave the money to 4th accused.
32A. My assessment of his evidence, is that it conflicts widely with the evidence for the prosecution. ALIE gave evidence. At no time did he say he gave money to 4th accused. He was not even cross-examined by the late MR OSHO-WILLIAMS who, on that day, 7 October,2008, appeared for the 4th accused. Besides, the money which was found on PW3, and which he said, was given to him by 4th accused, was part of the money made available to PW1 by the ACC. 4th accused himself agreed that the money given to him came from that whose serial numbers were recorded by the ACC. DW1's evidence is therefore, frankly, incredible. After his evidence, 4th accused closed his case.
It was time for addresses. MR MANTSEBO for the prosecution elected to submit a written address. MR MANTSEBO submitted his written address on 14 November,2008; and supplemental submissions on 20 November,2008. On 26 November,2008, MESSRS JAMIRU, BANGURA and EDWARDS addressed the Court on 26 November,2008; and MR MARGAI, on 1st December,2008 on which day Judgment was reserved. The delay in delivering this Judgment has been due to my occupation with the on-going "Cocaine Trial."
D. DEFENCE CASE
33.I shall now turn my attention to the case for the Defence. Essentially, this involves examining and commenting on the recorded interviews of the accused persons. I have already dealt with the only witness called for the Defence. The 2nd and 3rd accused persons, in their respective recorded interviews with the ACC, have denied committing the offence with which they are jointly charged. The 1st accused admits receiving the sum of Le500,000 from PW7, but claims it was given to him for an innocent reason. 4th accused, on the other hand, alleges the money was given to him by PVV7, and not by PW1.
34. 1st Accused
The 1st accused has in his recorded interview, admitted receiving the sum of Le500,000 from Alie Kargbo, PW7, but denies that he solicited the amount for processing a document - the C48A Document - exh "Q". At the bottom of page 9 of Exh "P" he says; "later in the day, one Alie Kargbo a Port worker came up to our office. By then I was standing at the entrance of the office, and Mr Alie asked that we go inside and talk. I told him I was not going anywhere to talk anything and that if he wants to tell me he should do so in the open. Immediately he dipped his hand into my pocket and deposited something in my pocket. I asked him what he had deposited, and he whispered to me that the person he is working for is stingy and that the money he has deposited in my pocket was Le500,000 for safekeeping." He says Alie came up with three other people. He added, that Alie told him he would send one of his boys later, to collect the money. Indeed, later that day, he claims, Alie sent a boy to collect Le200,000, and he gave the boy this amount. Rather interestingly, the 1st accused did not deduct this sum of Le200,000 from the sum of Le500,000 given to him by Alie, but out of the sum of Le1,250,000 he said he had withdrawn from his Bank account that morning. This is why, when he was searched by the ACC Officers, Le400,000 of the marked money was found on his person. He had clearly appropriated the sum of
Le500,000 to his own use and benefit. It follows that his explanation that he held on to the money for safekeeping, is incredulous. We have, of course, Alie's version of why the money was put in 1st accused's pocket by him in the presence of PW1 and of Gbla. The money was an inducement to 1st accused to sign Exh "Q." It was never suggested to, or asked of PW7 whether, at any time, he had given 1st accused money for safekeeping. Gbla collected the document from him after he had signed it. Earlier, he had told Gbla he was broke, and Gbla had promised that he would give him something. Gbla's evidence is that the money was only put in the pocket of 1st accused by Alie, after he Gbla had taken the C48A Form from 1st accused. PW7's evidence indicates that it was after the money was put in 1st accused's pocket, that the C48A Form was handed over to PW7 by PW10, Gbla, who had retrieved it from his office. The money, according to the evidence of PW1, PW 7 and PW10 came from PW1. On the whole, it would appear that the money was not solicited directly from PW1, but rather from Gbla. According to PW1, it was in fact the 2nd accused, who is not facing this charge, who had told him he would have to pay Le500,000 for a certain piece of paper. It was PW7 who told PW1, the money was meant for somebody else. PW1 merely insisted that he wished to see the man to whom Le500,000 was being paid. It is clear however, that 1st accused did receive the sum of Le500,000, and in my estimation, he could not have received it for anything else but for the purpose of facilitating the clearing process for PW2. In addition, Section 45 raises a presumption which has to be rebutted on a balance of probabilities, the civil standard, by the accused. It provides that "where in any proceedings for an offence under this Act, it is proved that the accused........accepted an advantage, the advantage shall be presumed to have been ...accepted as such inducement or reward as is alleged in the particulars of of fence unless the contrary is proved" In exh "R" his second recorded interview, the transaction between himself and PVV7 is rehashed. He maintains his earlier version, that the handing over of the sum of Le500,000 by PW7 was meant as a charade for the benefit of PW7's customer. Crucially, for the success or failure of Count 1, and as to whether the giving of the money could be described as an inducement to do something, or a reward for having done something, he says in answer to Q17 on page 6 that " I said so, but it was meant to cover Alie Kargbo. The examination at the baggage haIl can prove that I had long since released the document...."'The point is, is that the document was not released until he had received the sum of Le500,000. Also, in Bxh "R", he was asked to identify his voice on a recording, but he could not do so as the recording was bad.
35. 2nd Accused - 2nd accused's recorded interview is Exh "D." In it, he denies the charge he is facing. He says he did not misappropriate any money belonging to the NRA. He gives an account of what transpired in his office at pages 7-9 of "D". He got to know that the money in the black plastic bag amounted to Le8m when the contents of the bag were emptied on a table close to the cashier's till, and the ACC Officers asked for AA papers on which the serial numbers of the money found were recorded. He says also that the transaction regarding "S1&2" respectively, had not been completed before the ACC Officers went into their office, and retrieved those documents. Both documents were signed, stamped and dated by him in red ink. The importer should have returned with those documents, to the PSSD office for them to be indorsed, after paying the Port dues of Le360,000. He says he does not examine containers, but verifies the examination. On page 13, he explains how assessment of duty is carried out. In answer to Q56 on page 14, he says that "if even I had second thought, that would have been the correct duty". In answer to Q59 on the same page, he says "I did not charge them Le8m. On page 18, he asserts he has a discretion to reduce the amount of duty payable on imported goods, after listening to the pleas of the importer. This is so in cases of goods imported without invoices, such as used goods. The importer in the instant case, had brought in used TV sets and mattresses, though TV sets are not mentioned in the column headed "Description of Goods on the face of "Q", but rather, at the back. On pages 23 to 24, he admits that the duty originally charged on the goods, may have exceeded Le46m as alleged by PW2.
36. It appears that certain documents were shown to the accused by the ACC Officers during his interrogation, which were not tendered in evidence in Court. For instance, reference is made on page 24 to a document numbered SPS001 which is said to be an AA sheet of paper on which was handwritten the breakdown of the contents of the container. Qs 104 to 116 relate to this document. In answer to Q114, he admits that PVV2 was in his office on Tuesday 4 March,2008 when he carried out the valuation. In Q116, he is questioned about how he arrived at the figure of Le46m plus, stated on 5P5/001. This document, as I have stated above, is not one of the exhibits tendered. In answer to Q118, he says he cannot recall charging PW1 or PVV2, the sum of Le8m as duty. In Q123, he is asked to explain the disparity between the sum of Le46m plus, stated on the absent document SPS/010 and that stated on Exh "51". He says that this was a bargaining chip.' Other documents, numbered FTLK/011 and FTLK/012 were also shown to him, but these were not tendered, as well. He was finally interrogated about the differences between the duty charged on that occasion, and that
charged on goods imported by PW2 in December,2007. In an additional interview, "E", 2nd accused could not identify the voices on a recording played to him. This recording was not tendered in evidence.
37. 3rd Accused - the 3rd accused's recorded interview is "0". He explained his duties as a Collection Assistant. He reports to the 2nd accused, and to Mr Rashid Noah. In answer to Q11 on page 7, he gives his own version of what transpired on 6 March,2008 when the ACC Officers entered his office. He says, inter alia, that "...I said somebody just paid for Laura Kwon and the money was in the plastic bag. So they took a photograph of the bag on the table and asked that I hand it to the ACC Officers. They then gave the cashier to count. After counting, they took the serial numbers of the money and then asked us to sign the sheet that they have recorded the serial numbers..." in answer to Q16 on page 10, he admits the black plastic bag was on his table. In answer to Q17, he explains how the black plastic bag got to his table: " whilst I was sitting at the Baggage Hall, a gentleman came to me and said he wants to pay for a Laura Kwon. So I asked for the document which had already been valued and I assessed the duty for him. After assessing I asked him if he wanted to pay, and he said yes, and he went out for the money. I then prepared his "Form 8" and I gave it to the cashier to prepare the receipt He then came later and dropped the bag on my table, collected his receipt and went out. That was how the money got to my table." His version differs significantly from that given by PW1 in examination-in-chief. Then, PW1 said:n I gave it to Mr Cole. I told him I had Le8m with me. He asked me for the money. I counted it out and gave it to him. Cole gave me a receipt to remove the container" Since the receipt was issued by the Cashier, PW11 as he testified, it is unlikely that what the 3rd accused gave PW1, was indeed a receipt. Further, under cross-examination by Mr BANGURA for the 3rd accused, PW1 said that nthe cashier gave me the receipt. I counted the money before the cashier." Here, PW1 contradicted himself on the most important issue of whether 3rd accused knew the money in the bag was Le8m. And according to PW11, it was he who counted the money, and not 3rd accused. Significantly also, PW11, said he had not received the amount stated on the receipt before he prepared the receipt. He prepared it on the basis of Form 8, identified as Exh "1" which was sent to him by 3rd accused. Later, at page 23, the encounter between PW1 and 3rd accused is again referred to: Q35: what did he say to you? A: he said "I have come with the money." Q36: did he say how much was in the bag? A: No he did not say. Q37: did you ask him about the amount he brought? A: No, I did not because I presumed it was the duty I told him earlier on to pay for the container. Q39: what did you do
with the money after the gentleman had gone? A: there was no time to hand it over to the cashier, because the ACC Officers came and all work was stopped."
38. In Q25, 3rd accused was asked why he did not hand the money over to PW11. His response was that" there was not enough time and when the ACC entered they asked us to stop all official work. Moreover the document process was not yet complete" The 2nd accused said very much the same thing in his recorded interview. At page 20, 3rd accused admits he did the examination of PW2's container together with Mujiru Kallon and 2nd accused. Valuation was done by 2nd accused. In Q42 he was asked whether the correct procedure was for the consignee to make payment to the person who prepared the Form 8. His response was that" it is not the correct procedure, but the practice, because we are short-staff and anybody can act in any capacity. "He was not contradicted in this assertion by any other official of the Customs Department. He also says, in answer to Q44 that nI told him (i.e. PW11) to prepare the receipt, and that they are coming with the money." At page 55, in answer to Q100 he says: nthe amount of money he finally paid as indicated in the Form 8 ...was what he was asked to pay. I did not go into any negotiation with him ."'The 2nd accused was also shown the document marked by the ACC as SPS/001, but as it was not tendered in evidence, I cannot make any useful comment on the explanations given by the 3rd accused about its contents.
39. Towards the end of the interview, a tape recording of what transpired between 3rd accused and PW1 was played over to 3rd accused. He said he could not make anything out of the recording he heard. It had been suggested to him that he did know that the amount in the plastic bag was indeed Le8m. He denied knowing the true amount. Unfortunately, the recording was not tendered in evidence, and the Court cannot therefore pronounce on its authenticity or efficacy.
40. 4th accused - the 4th accused's two recorded interviews are "F" and "G" respectively. His evidence differs with that of PW1, in that he claims that the sum of Lel50,000 was given to him by PW7. But as I have pointed out above, when dealing with the evidence of his witness, DW1, this position was never put to PW7 in examination-in-chief or in cross-examination, in order for him to deny or confirm it. This being the case, it is the Judgment of this Court that 4th accused is not speaking the truth. Besides, once the acceptance has been proved by evidence, Section 45 cited above, imposes on him the burden of disproving the presumption on a balance of probabilities. When a recording was played to him at the ACC Office, his response to what was said on the recording, in his answer to
Q3 on page 3 of "G" was that "I heard Pa Alie introducing someone by saying thus (DIS NAR DE PSSD INTELLIGENCE OFFICER WAE AR DAE TELL YOU BUT), but I cannot say who he was introducing to whom" This conversation confirms my view that the 4th accused was not speaking the truth when he said the money was given to him by PW7. In any event, the amount recovered from PW3, whom 4th accused gave the money to, for safe-keeping, was clearly part of the total amount handed over to PW1. As pointed out above, PW1 is an accomplice, but in view of Section 44 of the Act, he is not to be treated as such in respect of his evidence relating to the charges 4th accused is facing. I am therefore permitted to convict the 4th accused on his testimony alone, without the need for corroboration.
41,I now turn to the Law applicable to this case. I shall start with the burden and standard of proof applicable to all criminal cases, and to this case in particular. I can do no better than to adopt the direction I gave in the case of THE STATE v MANNEH & ANOR. There I said:
BURDEN AND STANDARD OF PROOF
"This Court is sitting both as a Tribunal of Fact, and as the Tribunal of Law. I must thus, keep in mind and in my view at all times, the legal requirement that in all criminal cases, it is the duty of the Prosecution to prove its case beyond all reasonable doubt. It bears the burden of proving beyond a reasonable doubt every element of the offence or the offences, with which the Accused persons are charged. If there is any doubt in my mind, as to the guilt or otherwise of the Accused persons, in respect of any, or all of the charges in the Indictment, I have a duty to acquit and discharge the Accused persons of that charge or charges. I must be satisfied in my mind, so that I am sure that the Accused persons have not only committed the unlawful acts charged in the Indictment, but that each of them did so with the requisite Mens Rea: i.e. the acts were done wilfully as explained earlier in this Judgment. I am also mindful of the principle that even if I do not believe the version of events put forward by the Defence, I must give it the benefit of the doubt if the prosecution has not proved its case beyond all reasonable doubt. No particular form of words are "sacrosanct or absolutely necessary" as was pointed out by SIR SAMUEL BANKOLE JONES, P in the Court of Appeal in KOROMA v R [1964-66] ALR SL 542 at 548 LL4-5. What is required is that it is made clear by or to the tribunal of fact, as the case may be, that it is for the prosecution to establish the guilt of the accused
beyond a reasonable doubt. A wrong direction on this most important issue will result in a conviction being quashed: see also GARBER v R [1964-66] ALR SL 233 at 239 L27 -240 L14 per AMES, P; SAHR M'BAMBAY v THE 5TATE Cr. App 31/74 CA unreported - the cyclostyled Judgement of LIVESEY LUKE,JSC at pages 11-13. At page 12 LUKE,JSC citing WOOLMINSTON v R says, inter alia, that "if at the end of the whole case, there is a reasonable doubt created by the evidence given either by the prosecution or the prisoner,........the prosecution has not made out the case and the prisoner is entitled to an acquittal!' KARGBO v R[1968-69] ALR SL 354 CA. per TAMBIAH, JA at 358 LL3-5: " The onus is never on the accused to establish this defence any more than it is upon him to establish provocation or any other defence apart from that of insanity" There, the accused pleaded self-defence. See further: BOB-JONES v R [1967-68] ALR SL 267 per SIR SAMUEL BANKOLE JONES, P at 272 LL21-39; SEISAY and SIAFA v R [1967-68] ALR SL 323 at 328 LL20-23 and at 329 LL12-18; and SAMUEL BENSON THORPE v COMMISSIONER OF POLICE  1 SLLR 19 at 20-21 per BANKOLE JONES, J as he then was. The point was again hammered home by AWOONOR-RENNER.JSC in FRANKLIN KENNY v THE STATE Supreme Court Cr App 2/82 (unreported) at pages 6-7 of her cyclostyled judgment. I must also bear in mind, and keep in view at all times the fact that though the Accused persons are tried jointly, the case against each of them has to be treated separately. At no time must I treat evidence which is only applicable to, or which inculpates only one Accused person, against the other Accused person. Each Accused person is entitled to an acquittal, if there is no evidence, direct or circumstantial, establishing his guilt, independent of the evidence against his co-Accused." This direction, applies in its entirety, to this case as well, in which 4 accused persons are being tried together.
42.I shall go on to deal with the Law applicable to Anti-Corruption offences. Firstly, whether all the accused persons are Public Officers. Section 1 of the Act defines a Public Officer as the holder of a public office. 'Public Office' includes an office in the service of a Public Corporation established by or under the Constitution or by or under any law or by the Government. The NRA was established by Section 3 of the National Revenue Authority Act,2002. It is a body corporate whose Chairman, and Board of Directors are respectively appointed by the President subject to the approval of Parliament. It is one of the Corporations referred to in Section 70(e) of the Constitution of Sierra Leone,1991.
42A. Section 8(1) describes the twin offences of Soliciting and Accepting an Advantage, respectively. A person solicits an advantage, if being a Public Officer, he Solicits or accepts any advantage as an inducement to, or a reward for or otherwise on account of his (a) performing or abstaining from performing or having performed or abstained from performing any act in his capacity as a Public Officer; (b) expediting, delaying, hindering or preventing ....the performance of an act, whether by himself or by any other Public Officer in his capacity as a Public Officer. In Count 1, the prosecution has alleged, and has set out to prove that 1st accused was a Public Officer; that in that capacity, he solicited the sum of Le500,000 from Saidu Papa Sankoh as an inducement to perform an act necessary for the release by the Customs and Excise Department of the container imported by Laura Kwon, to wit: to provide the said Saidu Papa Sankoh and to Laura Kwon, with the endorsed NRA C48A Form, Exh "Q" required by the Customs and Excise Department. An "Advantage" according to Section 1 of the Anti-Corruption Act,2000 includes any reward or commission consisting of money. In Count 4, the prosecution has alleged and has set out to prove that on 6 March,2008 the 4th accused, in his capacity as a Public Officer, solicited the sum of Lel50,000 from Saidu Papa Sankoh as on inducement to abstain from performing an act necessary for the release of PW2's container, namely to refrain from ordering a re-examination of the said container.
43. Soliciting has not been defined or described in the Act, but its ordinary meaning is to invite, or to importune, or to request earnestly, or to seek. So therefore, when, according to the PW10,1st accused said to him that he was broke, and that he should "help him" with Le500,000 when he went to collect the C48 Form from him, this could amount to soliciting. PW1, according to PW10 was with him at the time. He, PW10 said:" I said I had a job with these people. I would give him something after I had been paid by PW1 and the lady." 1st accused was in effect saying to PW10, this is what I want for signing this Form. In the event, Le500,000 was eventually given to 1st accused by PW7.So also, when PW1 said in evidence that the 4Th accused said to him that he should give him "something", otherwise he would re-check the container, this ultimatum amounted to soliciting an advantage, "something" here meaning nothing else but money or some other gift. According to him, in answer to Q9 at page 6 of Exh "H", his specific duty "was to alert the PSSD Officers who were deployed to a particular Customs post throughout the country whenever a case of smuggling was identified. "In other words, it was his duty to ensure that goods were not imported without passing through Customs inspection. His conduct therefore amounted to requesting PW1 to give him something so that he would not perform
this duty. He was entitled after all, to demand that the container be taken for examination by the PSSD. 2nd accused in answer to Q33 at page 10 of Exh "D" confirms that this was the final stage in the process of clearing goods.
44. "Accepting" has similarly not been defined or described in the Act, so the Court has to give it its ordinary meaning, which is to receive, or to acknowledge the receipt of something. Clearly, on the evidence, Le500,000 was received by 1st accused from PW7 who had been given the money by PW1; also Lel50,000 was received by 4th accused. I accept the evidence of PW1,, PW7 and PW10 that the amount of Le500,000 was given to 1st accused; and of PW1 that the sum of Lel50,000 was given to 4th accused: and that both accused persons individually, accepted these respective sums. I am satisfied beyond a reasonable doubt that 1st accused Solicited, and later Accepted the sum of Le500,000 from PW1 for indorsing Exh "Q." I am also satisfied beyond a reasonable doubt that he Solicited and accepted this amount of money in his capacity as a Public Officer; that based on my assessment of Exh "A", and in accordance with the provisions of National Revenue Authority Act,2002, he is a Public Officer in the service of the NRA. It follows that I find the 1st accused guilty of the charges in Counts 1 and 2 of the Indictment; I am also satisfied beyond a reasonable doubt that 4th accused solicited and accepted the sum of Lel50,000 from PW1.1 am also satisfied beyond a reasonable doubt that he solicited, and accepted the said sum of money in his capacity as a Public Officer in the service of the National Revenue Authority; that based on Exh "C1-3" and the evidence of PW9, he is a Public Officer in the service of the NRA. Even if it could be argued on his behalf, that he could not have performed the duty he put himself out as being authorised to perform, namely, to re-examine the container, this would be of no avail because of Section 43 of the Act. It follows that I find the 4th accused Guilty of the Charges in Counts 4 and 5 respectively.
45.I now turn my attention to the case brought against the 2nd and 3rd accused persons respectively, who are jointly charged in Count 3.I have already Ruled that they were properly joined together in that Count, and I adopt that Ruling. They are charged with Misappropriating the sum of Le3,713,150. As I pointed out at the beginning of this Judgment, the amount said to be appropriated creates considerable difficulties for the prosecution. That amount was only arrived at notionally, by deducting the amount paid as Customs Duty and Tax, from the amount of L8m said to have been demanded by the 2nd accused. Regrettably neither the 2nd, nor the 3rd accused has been charged with this offence. If indeed they had told PW1 to come with this amount of money, there was nothing stopping the prosecution charging either or both of them with Soliciting or
demanding an Advantage. Indeed, in the particulars of Count 3, the prosecution avers that both accused persons nmisappropriated the sum of Le3,7 13,150 by demanding payment in the sum of Le8m..." Apart from the obvious criticism that the addition of that averment to the averment "..and causing to be issued..." in line 5, makes the Count Duplicitous by charging two transactions in one Count, it is a tacit admission on the part of the prosecution that without proof of the 'demand, it could not succeed on the misappropriation. That the prosecution did not charge both accused separately for Soliciting or Demanding , in my view, seriously undermines the strength of their case against both 2nd and 3rd accused parsons. The Court is therefore left with only the record of events which happened on 6 March,2008, to judge whether there was an appropriation or not. Section 12(2) tells us what "Misappropriate" means In Section 12(1). It states that: "A person Misappropriates public 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 authority is deprived of any revenue, funds or other financial interest, or property belonging to the Government, the public corporation or local authority." The operative word here is "deprive." Could the NRA be said to have been deprived in any way whatsoever of the sum of Le3,713,150.? If there has been any deprivation, it seems it has been done by the ACC because they have held on to the sum of Le4,286,850 which ought to have been paid to the NRA on the basis of Exh "S1."
46. As I said in MANNEH's case, the term '"Misappropriates" in the Act, is not in my view, a term of art. It is akin to "appropriation"in the United Kingdom Theft Act,1968. Appropriation in that Act involves the assumption of the rights of the owner by the Accused. Here, the wilful commission of any act which results in the owner losing funds belonging to it, amounts to misappropriation. There is Misappropriation also whether the owner of the funds consented or not to the deprivation of funds. In the UK Law of Theft, the consent of the owner is irrelevant as was pointed out by the House of Lords in LAWRENCE v METROPOLITAN POLICE COMMISSIONER  2AII ER 1253, and in R v GOMEZ  1 All ER 1, both of them cases dealing with theft. In the latter case, it had been argued unsuccessfully by the Appellant, based on the speech of LORD ROSKILL in MORRIS 3 All ER288 at Page 295 (where he appeared to suggest that appropriation in the circumstances of that case involved not just the substitution of price labels by the accused, but also that such an act must also "adversely interfere with or usurp the right of the owner..'.') that the respective owners in that case, and in LAWRENCE had consented to parting with their respective properties. In LAWRENCE it was an
extra sum of £6; in GOMEZ, it was the delivery by the owner of electrical goods to a third party, paid for by stolen cheques, to the knowledge of, and through the machinations of Gomez. I also seek support in the words of SELLERS,LJ in a civil case: SINCLAIR v NEIGHBOUR 3 All ER 988 at 989 paras C-D. There, the Respondent was dismissed because of dishonest appropriation of money. In considering the right test to apply in these circumstances he said, inter alia, "it was sufficient for the employer, if he could, in all the circumstances, regard what the employee did as being something which was seriously inconsistent-incompatible with his duty as a manager in the business in which he was engaged. To take money out of the till in such circumstances is on the face of it incompatible and inconsistent with his duty" I said further, the act which causes deprivation of funds, must be wilful. I shall not go into the explanation of what wilful is, in this case, because I deem it unnecessary in view of the conclusion I have reached.
47.Unlike GOMEZ or LAWRENCE, here, there was no delivery or handing over of the sum of Le3,713,150 to either the 2nd or the 3rd accused, or to the 3rd accused, for and on behalf of himself and the 2nd accused. There was no assumption of the rights of the owner by the 3rd accused. Assuming, for instance, that by leaving the plastic bag on the table with the money in it, PVV1 had transferred ownership of the same to the NRA, 3rd accused's action or inaction, depending on the view one takes of his conduct, could not in any wise amount to an assumption of the ownership rights of NRA. Leaving the plastic bag on 3rd accused's table, without more, could not in my Judgment amount to Misappropriation in the manner intended by the Act, and as explained in the cases cited above. In all of those cases, money or the stolen cheques, as in GOMEZ, changed hands. The ACC Officers, in my view, should have waited for 3rd accused to empty the plastic bag on his table, take any part of the money or exercise rights of ownership over any part of it, before pouncing on him. By rushing in as they did, the ACC Officers, as it were, 'beat the gun' and gave the benefit of the doubt to the 3rd accused. In the result I find both 2nd and 3rd accused Not Guilty of the offence charged in Count 3.I have read the additional submissions of MR MANTSEBO. I am not satisfied beyond a reasonable doubt that I could consider the alternative of attempted misappropriation. Apart from the mental gymnastics such an exercise would engender, the provisions of Section 47 of the Act do not assist in this direction. Nor do the provisions of Section 81 of the Criminal Procedure Act,1965. Section 128 of the new Anti-Corruption Act,2008 might have been of assistance, but for the fact that Section 141(4) provides that" all prosecutions and other legal proceedings instituted under the
Act hereby repealed (i.e- the 2000 Act), and which have not been concluded before the commencement of this Act, shall be continued and concluded in all respects as if that Act had not been repealed," I cannot therefore, contemplate in this Judgment, an Attempt to commit the substantive offence of Misappropriation. The facts elicited in evidence do not suffice as, nor approximate to proof of an attempt to misappropriate. If I were to accept M MANTSEBO's submissions, I should ask myself, how much of the Le8m did he intend to misappropriate? That is not a question this Court should be called upon to answer. It is a question the prosecution should answer. It has not been able to answer it. In the result, I find the 2nd and 3rd accused persons Not Guilty of the offence charged in Count 3 of the Indictment. I therefore Acquit and Discharge them.
48.I Order that the sum of Le4,286,850 be deducted from the sum of Le8,000,000 presently in the custody of the Court, and that the same be paid to the NRA in respect of Exh "51". The remaining balance, the sum of Le400,000 nd the sum of Le150,000 should be returned to the ACC.
N . C. BROWNEMARKE Justice of Appeal 10th March 2009