The State Isha Johannsen & Another
SIERRALII SUPREME COURT BULLETIN 9/6/2021
The State
V.
Isha Johannsen (1st Defendant)
&
Christopher Abdul Kamara (2nd Defendant)
(001)(2019)SLHC2(28 May 2019)
Court Below
High Court of Sierra Leone, Anti-Corruption Division
Coram
Reginald Sydney Fynn JA
Judgment Dated:
Monday 27th May, 2019.
“Criminal law- (Anti-Corruption Act, 2008 as amended by the Anti-Corruption (Amendment) Act, 2019) misappropriation of public funds-conspiracy to commit a corruption offence-misappropriation of public funds- abuse of office-funds received for MRI tests of under 17 teams-no defense submission-misappropriation requires appropriation and dishonesty-accused acquitted and discharged on all counts”
Action:
The defendants were charged on an eleven-count indictment dated 8th September, 2017. The indictment charges the defendants with the following offences: Misappropriation of Donor Funds (count 1), Conspiracy to commit a corruption offence (count 2), Misappropriation of Public Funds (Counts 3 and 11), and Abuse of Office (counts 4, 5, 6, 7, 8, 9, & 10).
Facts:
To start with, relying on an instrument dated 26th October, 2017 & signed by the Attorney General, Joseph F. Kamara, the prosecution applied for trial by Judge alone pursuant to Section 144 (2) of the Criminal Procedure Act of 1965. This application was granted. The defendants were then admitted to bail.
Furthermore, the indictment relates to four primary allegations.
Firstly, that relating to an amount of $50,000 received by Sierra Leone Football Association (SLFA) from Confederation of African Foot This is the subject of Counts 1 & 2.
Secondly, that relating to a cheque in the name of Arnie Johannsen issued for Le 24, 750,000.00. This is the subject of count 3.
Thirdly, that relating to Mohamed Ola Marah, travelling in an SLFA delegation as well as the expenses related to that travel. This allegation is dealt with in Counts 4, 5, 6, 7, 8, 9 & 10.
The fourth and final allegation relates to a sum of Le 5, 500, 000 paid to the 2nd defendant. Count 11 is also dedicated to this.
Moreover, the indictment charges the defendants with the following offences: Misappropriation of Donor Funds (count 1), Conspiracy to commit a corruption offence (count 2), Misappropriation of Public Funds (Counts 3 and 11), and Abuse of Office (counts 4, 5, 6, 7, 8, 9, & 10).
The extracts of findings on which the indictment is anchored states that the ACC in its investigations found that while the defendants were the President & the Secretary General of the Sierra Leone Football Association (SLFA), the association received the sum of $50,000 from the Confederation of African Football (CAF). The money was donated to SLFA for the covering of costs related to the National under 17 team taking MRI tests in Niger. The team did not travel to Niger. The account to which the money was paid was showing $92.00 balance as at 14th October, 2015 (of which the presiding Judge found to be an inaccurate statement).
Evidence was further adduced that screening tests were done at ECOMED. Other sums were also alleged to have been disbursed illegally by the defendants.
Upon the prosecution closing its case, the defence made a no case submission. The No case submission was ruled on, on 15th October, 2018. The ruling discharged the defendants on all counts on the indictment but for the first three.
In her statement to the ACC, the 1st defendant denies the allegations and for most of the factual issues she refers the investigators to the 2nd defendant for answers.
Analysis
On the offences charged, the ruling on the no case submission left unresolved, two issues, alleged to be criminal conduct. The first relates to the $5,000 paid to Arnie Johannsen and the second relates to $50,000 received from CAF. The indictment presented them in two offences; namely:
Two counts of ‘dishonest appropriation’ (one for each alleged criminal conduct); while on the other one count, was for “conspiracy to commit a corruption offence.”
Findings
On the offence of “Misappropriation,” Fynn JA emphasized that a key ingredient of the offence is “an appropriation” which must be shown to be “dishonest.” "Where there has been no appropriation, or there has been no dishonesty, then there cannot in my opinion have been a misappropriation.” (paragraph 46)
Fynn JA further found that he saw it redundant with regards the protracted argument and counter arguments over whether an MRI test was done or not by Counsel on both sides; as he had ruled in the earlier “no case submission” that he was satisfied that no MRI was done.
He also mentioned a very interesting area of the law by raising the point that the fact that ECOMED had advertised on their website that they did MRI tests, was merely an “invitation to treat (paragraph 57, page 10 of the Judgment).”
Fynn JA also found for the defendants that the $5,000 paid to Mr. Arnie Johannsen (the 1st defendant’s husband and Leocem CEO) was for a loan and so the prosecution’s case with regards the $5,000 loan was fatally undermined.
Decision
From the foregoing, Fynn JA held that none of the charges could stand; neither those brought pursuant to Section 37 for dishonest appropriation nor that brought under section 128 for conspiracy. Thus, the accused persons were acquitted and discharged on all three counts.
With regards cost, the court held that the “prosecution should not be made scared of bringing cases to court, though certainly they should not bring any lightly.”
Thus, he made no order as to costs.
Per Reginald Sydney Fynn JA
Counsel
C. Mantsebo, S. Harleston and Sow for the State.
A. Sorie Sesay, Brima Koroma and S. Mans-Conteh for the Defendants.
Written By
Farouk Sulaiman Taiwo Adedoyin.
Bachelor of Laws with Honours
Edited by
Inge Pap
Senior Content Editor
African Legal Information Institute (AfricanLII)
