IN THE HIGH COURT OF SIERRA LEONE ANTI  CORRUPTION DIVISION

 

THE STATE

 

Vs.

 

 

 

ISHA JOHANNSEN CHRISTOPHER ABDUL KAMARA
 

 

1st  DEFENDANT

2"d DEFENDANT

 

 

C Montsebo with him S Harleston and Sow  for the State

• orie Sesay, Brimo Koroma and S. Mon s-Conte h for the Defendants

 

JUDGEMENT  DELIVERED  ON Monday  27th MAY  2019

 

Reginald Sydney Fynn JA

 

 

1.  

The defendant s  were  charged  on  an  eleven  count  indictment  dated 81 September  2017. The indictment was originally six counts but on an application for amendment made and granted  on 301    October 2017 when the trial commenced the number of counts were increased after  which the  charge s were put  to  the defendants. The defendants pleaded not  guilty to  all the  count s.

1. Relying on an instrument dated 26th October 2017 and signed by the Attorney General Jo seph F Kam ar a, th e prosecution applied  for  trial by Judge  alone  pursuant  to  S144(2)  of  the  Criminal Pr ocedure Act  1965 . This application was granted. The defendants were then admitt ed to bail.
2. On Wednesday  1s t November  2017 the  prosecution  successfully applied for the  amendment of count 5 of the indictment so as to be able to replace  the  amount  "$1240"  with  the  amount "$1640".
3. The indictment relates to four primary allegat ion s. Firstly that relating to an amount of $50,000 received by SLFA from CAF. This is the su bject of Counts 1 & 2. Secondly that  relating  to  a cheque in the name of Arn ie Jo hansen issued for Le 24,750,000.00. This is th e subje ct of coun t

3. Thirdl y that relating to Mohamed Ola Marah travelling in an SLFA delegation as well as t he 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 d edicated to this.

1. The indictment charges the defendant s with the following offences Misappropriation of Donor funds (co unt 1), Conspiracy to commit a corruption offence (Count 2), Misappropriat ion of  Publi c Fund s (Counts 3 & 11), and Abu se of Office (Count s 4, 5, 6, 7, 8, 9 &10).

 

 

 

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Presiding)

 

1. The Ext ract s of Findings on which the indictm ent is anchored in brief st at es that the ACC in it s investigations has established that while the defendants were the President and  Secret ary General of  the  Sierra Leone Foo tb all  Association  (SLFA,) the association  received the  sum of

$50,000 from the Confederation of African Football (CAF). CAF had d onated the money to SLAF for the sp ecific purpose of covering costs relat ed to the  National Under  17 team taking MRI  tests in Niger. The team did not travel to Niger for the MRI t est s meanwhile the SLFA Bank account at ECOBANK into which the $50,000 was paid and to which the defendants are the principal signa tories is showing a $9 2.00 balanc e as at 14t h October 2015. (My study of the bank st at ements sho ws t his to be an inaccurate st at ement )

1. The Ext rac t st at es further that an amount of Le 24,750,000 was paid to the spouse of the first defendant s from SLFA funds held in an accoun t to which the defendants are signa t ories . It allegesalso th at the second defendant received without aut horit y the sum of Le 5,500,000 from public funds purportedly as compensation for the  use  of  his  personal  laptop  in  carrying  out SLFA work.
2. Finally the Extr act furt her st at es that one Mohamed Ola Ma rah th e Personal Assist ant of the 1s t Defendant who is not an employee of SLFA and not  entitled  to  payment  or  allowances  from SLFA received a total of $6,507  on the authoriz  ation of the two defendants.

The Testimony  of PWl

1. PWl is Mr Kinny-Ali Brima-Walker  he  was led  in  Chief by Ady M acaul ey  Esq. Com missio  n er  of the ACC. Mr Walker on being sw orn told the court that he is an employee of  the  ACC.  An  Investigation s Off icer. He sends out ACC Not ices, he  rec eives and an alyses the  respo nses to  the not ices, he in t erviews people and  he  writes  investigat ion  report s.  He  told  the  court  that  he know s both defendants. He  came  to  know  them  during  the  investigations  leading  to  this  case. Two sets of st atements were taken from the defendants. His colleague Lucy Kabba and he too k the st at ement  of  the  1s t defendant.  When  he  was unavailab le another  coll eague acted  in  his stead. He says the 1s t Defendant was int erviewed in the presence of her law yer one Drucil Taylor Esq. The 1s t defendant  signe d her 97 page st at ement  on every page ackno wledging it  be her  statement. This was  tendered  and marked  "A 1-97" .
2. PWl Mr Walker told the court that he was part of an ACC team that searched SLFA premises at Kingtom. The search was conducted with SLFA emplo yees being present at every point. Among the SLFA employees present were one Bowen Freeman and one P D Greene. During the search docum ent s and comput ers w ere identifi ed as useful to the invest igat ion . These were inventoried in search logs and taken away by the ACC t eam. PD Greene countersigned the search logs as a SLFA employee present. The search warrant and search logs were tendered into evidence as Exhibi ts " C" t o " J 1 - 9 " . {Full list of prose cution Exhibits is in Annexure 1 of this judgem e n t ).

11 . Mr. Walker  also  tend ered  as  Exhibit  " Kl -4";  SLFA  payment  voucher  (PV)  No .339  "being payment towards  loan  from  Mr.  Arnie  Johan  sen".  It  is made  out  in  the  sum  of  Le  24,750,000. He tende red also PV No .  234  dated  17th July  2015  this was admitted  as " L 1- 3" .  " M l -4"  also  t endered,  are  a set  of four corr espondences between SLFA and  CAF.

 

 

 

The Stat e v. lsha Johann sen & Chri stopher Kamara - High Court - (Fynn JA Presidi ng)

 

1. M r. Walker tendered various documents retrieved during the search  of SLAF premises  as well as several which were notices under the ACC act and the responses  there  to. (All these  are listed in Annexure 1 and reference will be made to them as may be deemed necessary) The  Exhibits  tendered  continue  from Exhibit  "Nl-3"  through  "Exhibit  "Z 1-4" unto Exhibit  "AD"
2. PWl was cross examined by Africanus Sorie Sesay Esq. PW1 confirmed his employment history and that he did not do the  whole investigation  himself.  A team of  investigators  did it.  He told the court that FIFA , CAF and LEOCEM are among SLAF' s sponso rs. Sometimes sponsorship is by direct payment for SLAF activities and not cash. Before CAF sponsorship the SLAF account st ood

at $93. MRI tests were not done. Exhibit "AB 1-2" are a letter from Dr.Prince Sadoke Amuzu of ECOMED. It mentions screening tests. PW1 said 151 defendant told him that they went  to ECOMED to do an MRI to establish the age of the players. Several letters from CAF emphasized the MRI. Any player in the U17 tournament  needs to  satisfy the  age requirement. Failure to  do so may lead to disqualification  .  PWl  was  not  satisfied  with the age testing done.  He did not cont act  CAF as he had enough evidence . He did not  find out  whether age assessment can  be

done by any other means, He does not know whether the tests results from ECOMED were sent to CAF.

14 . PWl stated that decisions at SLAF are taken  by  the  Executive  committee.  He  said  that  the  second defendant  had  a  computer.  The  witness  does  not  know  whether  computers  had  been dist ribut ed to SLAF employees before 2°d defendant  joined  SLFA.  2nd  defendant  used  his personal comput er to do SLFA work . The investigation does not show that that the laptop was part  of  SLAF  assets.  PWl   does  not  know  that  SLAF  executive  approved  the  payment  to  2nd defendant.  He admits  he  saw  Nl    and  N2  which  are endorsed  "Payment  in respect  of  refund for

com puter  use from  personal to office property". He does not know how much the  2n d defendant

had paid for his laptop com put er.

1. PWl said SLAF had sub commit tees. He could not name them. He agreed that they  include  a Finance Com m it t ee, Technical Co mmit tee, Women' s Football Com mit t ee, Players Status and Tran sfer Com mit t ee, Youth Football Committee, Ethics and Fair Play com mit tee, M edia,  Marketing & Television, Discipline, Referees and Security. Each committee has at  least  four  members.  PWl  did  not  see  any  document  with  the  name  Ola  Marrah  as  a  member  of   a  comm it tee. He was informed that Ola Marrah is not a SLAF employee . The investigation did not  cover membership of  sub  committees.  Committee  membership  is not  limited to  SLFA  members. He  did   not   see  any  approval  for  Ola  Marrah  to  travel  with  SLAF  and  cannot  agree  that  non­

member s of SLFA can join SLAF travel. Other members of SLFA were spoken to including the Vice President Brima Mazola Kamara, Harold Nat Johnson and Badara Tarrawalie they did not speak of any approval in this regard. PWl saw an approval of $21,000 in respect of a match in Cameroon.

1. PWl agreed that the issue of LEOCEM sponsor ship arose during the invest igat ion s. He denied discovering a $90,000 sponsor ship from LEOCEM in respect of a trip to Sudan . He denied knowing that $25,000 of that LEOCEM sponsor ship was used as allowance s for the player s or that LEOCEM bought the tickets or provided an imprest for the Sudan  t rip . He testified  that during the  search documents were found showing that LEOCEM gave SLAF sponsorship  of    Le

 

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Presiding)

 

24,750,000 towards the Sudan t rip . The witness agreed that Exhibit " AD" is a receipt showing that  one  Arnie  Johansen  gave  $5,000  to  the  SLFA.  He  knows  that  this  person  is  the  1s t defendant's husband. He did not question Mr. Johansen. He did not find any approval of a loan. PWl  is unaware  that  the 1s t defendant  does  not  take  allowances  from  SLAF.  He  agrees that according to "AD" both Arnie Johansen and Chris Kamara knew LEOCEM was about to provide sponsors  hip  to  SLAF. The witness did  not  know that  "AD"  was transacted  on the  day the  team

was to  travel. He agrees that "Kl-4" is payment in respect of a loan  .

17 . Looking at Exhibit "U2" PWl  agreed that the CAF remittance was done on ih July 2014 which is  a  date  after  the  tests  at  ECOMED  had  been  carried  out.  He  said  ECOMED  officers  were

interviewed by the ACC. He was unaware as to whether the test results were sent abroad to India.

1. PWl received information  that  a laptop  comput er  had been  converted  into SLAF property  but he did not ask for an auditor's report or for SLAF's list of assets. He said that the Executive Committee was part of the SLAF  go verning  committee  and  there  meetings  had  recorded  minut es. He did not know that emergency meetings  outcomes  shoul d  be  implemented immediat ely. He saw the voucher relating to payment to Arnie Joh an sen but he did not see the approval of the  same. He did not ask for  such an approval nor was it produced by anybody.
2. Continuing in cross examination PWl testified that he did not see any document resolving that the MRI tests be conducted at ECOMED. He agreed that the 1s t defendant had told him that she and one Yvonne Avery went to ECOM ED. He did not question Yvonne Avery as they had not gone to ECOMED to do MRI tests. He said he did not put the specific amounts mentioned in Counts 4 to 10 (ie the Ola Marrah coun ts) to the 1s    t def endant.
3. Concluding his testimony  in  cross  PWl  said he  knows that  SLAF received  $50,000  from CAF  for the purpose of conducting MRI tests in Niger for  30  players  and  5  Officials,  including accommodation. He said he has looked at the bank  st at ement  into  which  the  money  was deposited and that in about a month $38,000 had been withdrawn therefr om. He did not question the 1s t Defendants on how the  amount was used but  know s sh e was an A signatory to that  account  .  He  did  not  investigate  the  individual disbursements  from the  account.
4. The pro secution re-examined PWl and he testified that Ola Marrah was the Personal Assistant to  the  1s t defendant and his passage was paid from donation s and personal funds.
5. PW2 is Joseph Bockarie Noah and ACC Senior Investigator he  was  led  in  Chief  by  Calvin  Mantsebo Esq. After  being  sworn  on  the  Holy  Bible  he proceeded  to  testify  that  he  supervise s an investigation team of four  (4)  and  that  as  part  of  his  duties  he  investigates  assigned  cases and on conclusion submits  an  investigation  report  and  test ify  in  court  if  need  be.  He provided PWl with support in  the  investigation  of  this  matter.  He  interviewed  2nd defendant.  He  had  a  total of fourteen interview sessions and each time reminded the  defendant  of  his  rights  before starting. During all the sessio n s  he  was  the  interviewer  and  had  alternately  his  colleague s Regina Barrie, Charlotte Johnson or Kinny-Ali Brima-Walker acting as recorder. At almost all the interview sessions M an s-Cont eh Esq was present representing the 2nd defendant. He tendered the  2n d   d efendant' s st atement  which was admitted and marked AEl -106.  He also tendered AD which  it  ti tled  " Receipt "  and  sign ed  by  the  2n d defendant  and  made  in  the  favour  of  Arn ie

 

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Presiding

 

Johan sen. PW2 said AD was submitted to the ACC after the indictment. PW2 was in the team that sear ched SLAF offices. They seized documents they considered relevant to the investigations.

1. Under cross examination by Africanus Sorie Sesay Esq . PW2 testified as to  his qualificat     ion s. He

said the team considered Accounting and Banking issues. Audit reports are considered  where  n ecessary. He in sist ed that "AD" was submi tt ed to the commission after the indictment. He was then on leave and it was submitted through PW l . 2nd defendant had told him about the  loan  from Arnie Joh an sen. PW2 told Mr Brima - Walker who  was leading the  investigations about this. PW2 is aware that SLFA receives sponso rship from LEOCEM  but  he does not  know   that

LEOCEM was buying tickets for players. PW2 said the 2nd defendant said the loan was  for players per diem but does not recall that he was told it was for  travel to  Sud an. PW2 testified  that the defendant told him the loan was given on a weekend and that the money had been passed on to  Brima Mazella Kamara who  was a SLAF executive at the time. PW2 knows that 1st defendant is Head of SLAF and that SLAF has a constitution as well as other executive members. He did not question any other SLFA executive members.

1. PW2 recognized Kl-4 admitted that some Executive committee minutes were produced to the investigat or s. He denied knowledge of the loan to Arnie Johansen being approved by the executive committee. Referring to ABl -2 the witness said part of the invest igation s re lat ed to whether  MRI  tests  were  done  to  determine  the  age  of   the   player s.  He  testified  that  1s t defendant told him they went to ECOMED  for  that purpose. He was unaware that the ECOMED  r esult s were sent to CAF. He said CAF sent $50, 000 for the MRI tests to be done in Niger. He did not contact CAF. He is aware that for some aspect s of the t ests Choithram's Hospital was contacted.
2. The other prosecution witnesses were shor ter witnesses and their testimony will be referred to where necessary in the analysi s of the evidence.
3. Upon the prosecution closing it s case the defence made a no case subm ission . The No case submissio  n  was  ruled  on,  on 15t h October  2018.  The ruling discharged  the  defendants  on  all count s on the indictment but for the  first three. The defendants were put to  their election  and they elected as follows: The first defendant  would rely on her statement to  the ACC and upon  the wit nesses whom they will call joint ly. The second  defendant  will test i fy on oath  and rely also on the wit nesses jointly called with the first.

 

DWl's Testimony

1. DWl   is Christ ophe r Abdul Kamara  the  2nd  Defendant . He is the  SLFA Secretary General coming to the position on  1st  May 2014. He tendered the SLFA constit ut ion  which sets out  his role this was marked APl -3 9. He test ified that there are administrative processes required before withdrawals from the SLFA accounts. He explained that the General Secretary in co ll abo rat ion with the Finance Officer will develop a budget which is then approved by  the  Ex-co.  He  produced AQl -6 which he told the court was the SLFA leone account which is tied to Ex Wl- 9(which is the SLFA dollar account).

 

The State v. lsha Johannsen & Christopher Kamara  - High Court - (Fynn JA Presidi

 

1. He explained that FIFA rules prohibit direct use of monies from the forex account except for international purposes. The procedure is for money to be transferred from the forex account to the  leone  account  for  local  use.  He  test ifi ed that  on 9t h July  2014 before  the  $50, 000  hit  the SLFA dollar account the account s balance stood at $92.3c. On the same date the leone account had a balance of Le71,694.13c.
2. He testified as regards transfers made after  receipt of  the  $50,000 from one SLFA account  to  the other; forex to leone. The first of  these  was  $5000  or  the  equivalent  of  Le  21,750,000 which was for the purpose of operational expenses including t ransport allowances  for  Ul 7 players, utility bills including reconnect ion of water supply. The second  transf er  was $3500 or the equivalent of Le 15 , 260,000 which was used to pay st aff salaries in June 2014.
3. A further  transfer  of  $5,000  or  Le 21,800,000  was made  on  14th July  2014.  This  amount  the witn ess told the court was used to cover travel allowances of one  Mr. Allie Commoner  Kargbo  (Le 4, 300,000) and also to cover SLFA administration expenses (Le 2,162,500). The witness said that after these expenses the  leone account had a balance of Le 16, 051 ,138.13c.
4. On 21s t Jul y 2014 another tr an sfer  was don e. This time in the sum of  $20,000  or  Le 88, 000 ,000 leone s. Thi s transfer raised the balance in the leone account to Le 104 ,051 , 138.13c. The wit ness then recounts how the money on the leone account was spent. Le 6,900 , 000 in respect of U20 leader  Abdul  Kanesero's trip to Ghana,  Le 19, 574,180 .13c refund to  the  witness  in  respect  of t ests conducted at Ecomed( which he insists were MRI tests), Le 5, 000 ,000 for administ rat ive expenses  and petty cash  and  a further  Le 10,000 ,000  being solicitors  retainer  fees.  By   31s t

D ecember 2014 the wit ness said the leone account still ahd a balance of Le 53, 277,138.13c whil st  the  forex account had a credit standing of $16, 580. In total by 21s t Jul y 2014 the  wit ness m aint ain ed that $33,500 had been transferred from forex to leone account  and  not  $38,000  as alleged  by  the  prosecution

1. The wit ness continues to recount withdrawals and or transfers made and the purpo se for which they were made, in 2015. The wit ness explained SLFA's audit regime under the FIFA Financia l Assist ance Program (FAP ). He told the court their auditors are KING Walker  and Associ at es,  pro ducin g letters and financial st at ement s from the latter in respect of the au dits 2013, 2014 & 2015 these were received into  evidence.
2. The witne ss also testified to an on-site visit by FIFA commissioned audit or s Price Water House Coo per, who did a report which is AWl -8. The report had SLFA scoring a  pass  on  all  the required param et ers. The wit ness tendered the FAP gu idelines as exhibit AX 1-153 (empha sisin g page 110)
3. The witn ess explained how he and one Yvonne Avery had gone to Ecomed and met with one Mr Kassim. Test s were done a Ecomed for which the witnesss money was used. This wa s before the CAF transfer. Further tests were done at Choithrams Physical exams and blood and tool test. Invoice s were received from choit hrams and from Ecomed in respect of the  tests. One was for   Le  12.8M  and  the  other  for  Le  44.2M.  There  was  no  money  to  pay  for  the  tests  and   the

 

 

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Pr esiding)

 

President 151 defendant was  not  in  count ry.  The  witness  explained  how  he  had  to  make recour se to his personal fund s (his terminal benefits from a previou s job) to ensure the  test s  were carried out  at ECOMED.

1. The witness recounted the shameful saga of how only 2 of the 32 players tested passed the  age  test the r est shown to have being lying about their age. He explained how SLFA managed that embarrassm ent , the resulting withdrawal from the U17 comp etition ,  the  subsequent  fine imposed on Sierra Leone and how that was later waived  .
2. The wit ness outlined what a trip to Niger for 35 individu als would have cost. He concluded that

$50,000 would not have been adequate to cover such a trip to Niger for  MRI tests.

1. The DWl also testified at length regarding the  impugned $5,000  loan. I shall make references to  his t est im ony on this as may be necessary as I proceed.  Also testifying for  the defence  were Allim ma y Rassin Wurie of King Walker and Asociates - Auditors, Mohamed Bowen Freeman  -  SLFA Referees M anager , Abdul Karim Labe - Medical Officer SLFA, John Jebbor Sherrington­ Technical Director SLFA, Joseph Toby -Technical Assistant , SLFA and Harold Nat Johnson. Relative to DWl these were much shorter witnesses and I will refer  to  their  testimonies  as I proceed as may  be found necessary.
2. In her statement to the  ACC the  1s  t  defendant  denies  the  allegations  and  for  most of  the  factual issue s sh e refers the  inve stigat or s to  the   2n d  defendant for answers.
3. I have read and reviewed all the testim ony and exhibits presented to the court . I find it necessary only to include in this judgement that which are central to the case and  which featured pivotally in in the consi deration s leading to my conclusions.

The Offences Charged

 

1. The ruling on the no case submission left unresolved two issues alleged to be criminal conduct. The first relat es to the $5 ,000 paid to Arnie Johansenn and the second relates to $ 50,000 received from CAF. The indictment has presented them in two offences namely; two counts of 'dishonest appropriation' one for each alleged criminal conduct and one count of "conspiracy to commit a corruption offence. I will now discuss each of these off ences.

 

1. Misappropriation is mentioned in the side notes to Sections 36 and 37 of the AC Act 2008. In Section 37, under which the defendant s are charged the body of the sect ion uses the phrase "dishonestly appropriate" instead of the word "misappropriat e" which is employed by Section

36. The authorities have so far not pointed at a reason for this change in term inology . Both sections have in the past been treated as creating misappropriation offences. I do not intend to depart from this approach. However I will stress immediately that a  key ingredient  of  the offence is " an appropriation " which must be shown to be " dishonest" .

1.  

 

 

In the St at e vs Komeh & M an s,_N C Browne-Marke JA (as he then was) restated the view that misappropriation ".....involves the assumption of the rights of the owner. Here the wilful commission  of  acts  which  result  in  the  owner  losing  funds  belonging  to  it  amounts to

 

misappropriation". The assumption  of the  rights of  the owner  is a pointer to  an appropriation  by the defendants and  it  forms  the  basis  of  that  key  ingredient  of  this  offence:  dishonest  app ropriat ion .

1. .  It  is  clear  therefore  that  the  prosecution  must  prove  that  the  defendant s took  the money alleged to have been "appropriated dishonestly" . Proof of such appropriation can be found in actual taking. This was the case in The State v Komeh & Mans where the money   was actually withdrawn from a government operated bank account and diverted to  an  account over which the defendants had control. " Appropriation" may also be inferred from a failure to undertake a task for which funds had been provided with the funds the mselves proven to have dissipat ed. This latter situa t ion was found in the Alimu Bah case.
2. I will suggest that where the prosecution relies on an inference from the failure to undertake a project or activity, as the proof of the app ropriation, then there must be a complete absence of some other lawful and or authorised use of  the  funds. It  is not  my view that  appropriation  can  be merely technical. It must be supported by evidence of a t aking or a failure to  perform  in circums t ances such  as I have mentioned; anything short  will not amount to an appropriation .
3. I am also mindful of the succinct way in which "mi sapp ropriation " is defined in Black' s Law dictionary as "The unlawful taking of money for an unauthorised purp ose" . Succinct as it is, thi s definition in my opinion encapsulat es both the ingredients of the offence as well as the possible defences. It  suggests clearly that if  money  is taken unlawfully  by a defendant  and he applies  it to an unaut hori sed purpose that would be misappr opriati on. In the  same  vein  it  suggest s I would think that it may not  be misappropriation if  an accused person  took  the money  lawfully  and app lied it to an aut horised purpo se.
4. Where there has been no appro priat ion, or  there  has been no dishonesty  then there cannot  in my opinion have been a misappropriat ion.
5. Conspiracy is provided for in S. 128 of the Ant i-Corrupt ion Act. It is my opinion that  the ingredients of common law conspiracy apply here. It is for  the  prosecution  to  show  the agreement between the conspirators and to prove it to be an agreement to  commit  a cri me.  Whilst proof of an actual agreement is undoubtedly best proof of a conspiracy ,  compelling incidents and circumstances  from  which the  agreement  can  be inferred  has also  been  held to be sufficient  proof of the  conspiracy.
6. The section under which this offence is charged , it has been mentioned before is poorly drafted and cre at es much room for doubt as to whether it does create an offence at all. The Commission should consider pilot ing an amendment to bring certainty to this section, which will no doubt lead to much relief and a possible end to the persistent calls for  a determination of whether an offence is created by it or not.
7. I hold that a charge for common law conspiracy  by the Commission may in  the  meanwhile  be less controversial. I also hold that considering the purpose  of  the  act generally and section 128  in particular the Commission may properly bring on a charge  for  conspiracy  pursuant  to  thi s secti on. I fail to see how an accused person can possibly be prejudiced by such a charge.

 

 

 

The State v. lsha Johannsen & Chr istopher Kamara - High Court - (Fynn JA Pre siding)

 

1. This absence of prejudice therefore makes it important to note that even if I were to conclude that the charge was badly drafted under Section 128, I would have no hesitation whatsoever to grant leave pursuant to S148 of the CPA 1965 for the indictment to be amended even at this stage; substituting statutory conspiracy with common law conspiracy. Either way the result will be the same the defendants being faced with an offence the proof of which requires exactly the

self-same ingredients.

 

The Burden and Standard of Proof

1. It is now established beyond quest ion that in a criminal case it is the duty of the prosecution to prove the case it has brought. That burden behoves the prosecution to bring sufficient evidence to establish that the alleged criminal conduct was done by the defendant . Not only done but also done with the necessary accompanying mens rea. Lord Birkenhead had opined in OPP v Beard (1920) and it is still good law that II a person cannot be convicted of  a crime unless there  was mens rea" to  commit the  crime.
2. It must be added that the standard to which the prosecution must prove its case is one  beyond

reasonable doubt. "Beyond reasonable doubt" it has been said is not the same as "beyond a shadow of a doubt " . It is similarly well established that this burden remains with the prosecution and at this standard throughout the trial. Woolmington v DPP is well known and needs not be aired out all over. Suffice it to say that should the defence bring forth evidence in the course of the trial which tends to impeach the prosecution's theory; the prosecut ion ' s enduring burden to prove its case demands that for the prosecution to succeed it must repair any such damage to its case and restore the case to the standard required -proof beyond reasonable doubt; " .....no matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the common law...and  no attempt  to whittle it down can be  entert ained ."

1. Regarding  the   standard  where  proof  is  required  of  the  defence,  except  statute  provides

otherwise the standard is on a balance of probabilities. This passage from Archbold provides a guide on how to approach the evidence adduced by the defendants and I will be guided by it:

{The standard of proof is)"that required in civil proceedings ie on a preponderance of (or balance) of prob abilit y. R v Carr-Briant (1943)KB 607. It is usual to tell the jury that the defence will have proved a fact if the jury conclude the  it is "more  probable than not" or  "m ore likely than not" that the fact existed" (see Archbold 2005,  4-386)

The CAF $50,000

 

1. The indictment alleges and it is not in dispute that CAF transmitted the sum of $50,000 to SLFA. I have already found (see my ruling on the no case sub missio n) that the amount was sent for the specifi c purpose set out in the swift documents ie " subvention for MRI tests (30 players 5 Officials flight tickets hotel accommodation)  Niger  2015".  Despite  the  second  defendant ' s prot est ations, I have also found that the defendants did not do an MRI as was expected by CAF.

 

 

9

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Presidin

 

1. I am at a loss as to the reason for the protracted arguments and counter arguments over whether an MRI test wa s done or not. I had ruled in the "no case submission" that I am satis fi ed that no MRI was done. In addition to the reasoning leading to my con clusion in that regard I will now add that the accused persons have come in my estimation to be quite well educated and very int elligent. I cannot believe that two such persons would have gone for  an MRI   and then

received result s for an X- r ay but still leave ECOMED as satisfied cust omers.

1. If they were negligent enough for that to happen ,  after  the  ACC had  tendered  the  ECOMED paper s saying they only condu ct ed X- r ay test s t he defendant s then had ample opportunity to ring up CAF and get them to send the MRI test  result s for  use as part of their defence. Or even    to challenge ECOMED that they (Ecomed) had sent an untrue account to  the  ACC and to  the  court. None of this happened .
2. In support of the unt rue assert ion that an MRI test was done the defendants rely on a webpage put up by ECOM ED. It is my opinion that this amounts to very little if  anything at  all. The websit e of ECOMED advertising MRls though misleadin g at the material time was in truth nothing but an "invit ation to t reat " . A person who actually approached them for the test would have been told that the service was not available as I believe the defendants were told which led the No.2 to write to CAF to say MRI capabilities were not in count ry. The defendants hav e been sha melessly untrue on this issue and this can significantly undermine their credibilit y and claim to integrity.
3. The pro secut ion is emboldened therefore to argue that as long as t h e purpose for which the money was sent had not been carried out automatically it must be inferred that it has been misapp ropriat ed by the defendants who had custody of it . I do not accept this reasoning; nor do I accept that this is the view put forward by the Hon Justice Mary Sey in the Alimu Bah case on which case the pro secut ion relies heavily in support of this proposit ion . In fact Justice Sey was very clear that it was th e ab sence of a plau sible explanation by the defendant in the face of the allegat ions that had impacted her deliberation s. The honorable Lady Judge had this to say:

" I find that  the explanat ions  given by the  accused  in relation  to  the  withdrawal  and use

of the money are peppered with inconsistency. In my considered view the accused has told a number of untruth s in this case and these can be seen as evidence of his guilt............................................................ 11

1. Hon. Ju st ice Browne Marke has said repeatedly in the John Mans case and in the  Bendu case that  for  misappropriat  ion   to  be  complete  there  needs  to  be  not  only  appropriation  but  also so me proof of "dishonest y" . The word "dishonesty " is actually  used  in  the  language  of  the statute in Section 37 which is the section under which this accused is charged . It s proof  is therefore  key and in  my opinion it  forms the  mens rea for  the  off ence.
2. I find that that the $50,000 was sent for an MRI t est and the ancillary matters mentioned in the money t ransf er. However the mere fact that the MRI test was not done does not in my humble  view in and off it self aut omatica lly amount to  a misappropriation  .  Such  a scenario  no doubt puts the   accused persons  who had control  of the  money  on their  defence.  The prosecution has

 

 

 

 

10

 

suggested that the lies told by the defendants with relation to the MRI tests must be seen as sufficient dishonesty to support the misappropriation count as well as to infer a conspiracy to commit the same. If these lies were the only matters standing in the defence of the accused  and if no other test whatsoever had been done the prosecutions submission in this regard  would have been a very interesting and compelling prospect indeed.

1. The testimony of PW8 Jonathan Leigh, SLFA Finance Officer from October 2006 to December 2014 is very important with regards to how the $50,000 was spent. Among the things PW8 told the court was that he had honoured a bill from ECOMED. He testified further that the Ex Co had resolved that the money would be used on "competitions and administration". Referring to his name on exhibit AHl-4 he said it  was he who was mentioned on the minutes.
2. The witness read this portion of the minutes and did not deny the accuracy of the account. In brief the minutes are to the effect that this witness explained the dire financial circumstances that SLFA was facing. He informed the SLFA Ex-Co that salaries were yet to be paid and that the only money in the account was the amount which CAF had sent ie the $50,000. The minutes significantl y sho w that the witness "asked for approval for the use of the  funds as it  was  the  only money available in the FA account.......the Executive approved for the use of the funds." He finished off his testimony by saying that "the expenses listed are the other expenses resolved for the money to be spent on". He was a truthful witness by any account and it  is significant  that he had been called by the prosecution.
3. The recently recounted testimony of PW8 does point at the possibility that though the $50,000 may not have been used for the MRI it may have been used for some purpose approved of by the SLFA Ex Co. this in my opinion presents a hint of a doubt that the money was misappropriated at all.
4. This hint appears to grow when in his testimony the second accused explains in detail the various other expenses on which the money was used.
5. DWl 's catalogue of the various things and expenses on which the money was expended has remained in the main unchallenged the prosecution appearing to base it's whole case on the theory that as long as it was not MRI tests that had been conducted then there must have been "dishonest app ropri at ion " .
6. Leaving DW1's account uncontroverted as such  leaves the  court with little room but to accept it as being meritorious. This is aided further by the fact that a perusal of the bank statements does coincide with the narrative of the witness. Further still the witness has two auditing firms that went through his account s, and to whom, as would be expected in the normal course of an audit, the necessary support documents for these transactions would have been submitted and scrutinized.
7. DW2 Alimamy Rassin Wurie the auditor from King Walker and Associates was resolute about his firm ' s work and their finding no issues to support the prosecution's proposit ions . I note that the audit  reports  were  concluded  and submitted  long before  these  charges were contemplated.

 

1

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Presiding)

 

They were not a r esponse to the ACC in vest igat ion s. In this regard I find  them  to  be independent . I have part icular ly st udi ed the report s for 2014 and 2015 ie AAW 1-17 and AAV 1- 18 wit h the supplement s there to. These highlight the other expenses which DW1 had test ifi ed about.

1. Whilst  I ha ve been advised that an audit may in the cont ext  of corruption at best be    merely

indicative of corrupt ion I will certainl y expect that an attempt to impeach an audit report which  has not indicat ed corrupt ion sho ul d compri se of more robust and  po sit ive alle gation s other than only the absence of proof that a certain act ivit y has been carried out. Proof of 'dishone st appropriat io n' must go a step further and discredit at the required st anda rd any alt ernat ive expendit ure theory put forward to explain the  alleged " dishonest  appropriat   ion " .

Lack of Authority and or Conflict of Laws

1. The prosecut ion in cro ss examinat ion of the defence witnesses ha s attempted to demolish the defendant s account with a sugg est ion th at even if t hey had act ed as narrated by DW2 they had so act ed without lawful aut horit y. Framing their sub missions as a conflict of laws issue, the prosecution sugg ests further that authority  to  act  as  the  def endant s claim  to  have  acted  ie appl ying specifi c-purpo se fund s to different act ivities , cannot come from FIFA , CAF or FAP guideline s.
2. I do not see a conflict of law issue here at all. This charge does not relate  directly to  failing to follow guidelines or applicable laws. It is a misapp ropriat ion ch arge. Neither the ACC act nor the various FIF A, CAF or FAP guideline s tendered tolerat e misappropr  iation  or  'dishonest appropriat ion".
3. WHILST thanking the defence for the enli ghtening excu rsion into sports law, I do agree wit h the prosecut ion that this case must be decided within the four corners of Sierra Leone law and not an y undo mest icat ed int ernation al st at ut e. However, I do not comprehend the reasoning of a confl ict between our law and the FAP guid elines (which ar e not law as such but part of SLFAs cont ractual r elat ion ship with FIFA.
4. FAP li ke the ACC act seeks to  prevent misappropriation). It  appears that it is the  fact that the

FAP int rod uc es additional report ing regimes and safeguar ds but additionally provide that FAP fund s could be used on football management and administ r ation expen ses that the prosecut ion object s t o. Even if that were object ionab le it is u seful not to confu se S 37 of the ACC act with regulat ion s that prohibit  virement .

1. PW3 Brima Mazella Kamara had put into evidence a cop y of minutes (AHl -4) of  a meeting  at which he was chairman. After  the  document  had  been  tendered  Mazola  then  told  the  court that he had a slightly different recollection of the facts of what transpired at the  meeting. He promised that he would go and look for his own co py of those minutes and will produce them. Whilst it remain s a of w ond er that  a  prosecution  witne ss  would  have  such  an  import ant docum ent and  had  failed  to  produce  it  to  the  inve st igat ors  or  pro secut or s  during  the investi g ati ons  and  preparation s  for   tr ial  it   is  a  greater   wonder  that  unto  the  end  of  his

 

 

The Sta te v. lsh a Johannsen & Ch ristopher Kamara - High Court - (Fynn JA Presidin

 

testimony which lasted several days and even up onto the end of the trial this variation of the minutes for this crucial meeting was not produced at all. The end product therefore  on that  issue will be that the minutes produced by the defence through PW3 Brima Mazolla Kamara remain uncontroverted. This con clusion is not hard to reach. Whilst it is the legal position it also is the factual position because other witnesses including PW8 and other prosecution witnesses have severally referred to these minutes.

1. In the circumstances it will appear that the SLFA Ex Co did in fact resolve that the $50,000 could be applied to expenses other than the stated purpose as already mention in PW8's testimon y.
2. A Final word on the MRI. I have no doubt in my mind that  MRI t est s were  not  conduct ed. However some test s were in fact con duct ed at the ECOMED and at Choithram's Hospital. The evidence shows that these tests had to be paid for. In fact there is evidence that a dispute  may  have arisen between Choit hram's and SLFA over the payment for some  of  these  test.  The account of how the ECOMED t est s were paid  for  at  a time  when  there  was no money  in the SLFA coffers (th e truth of which is borne out by the bank statements) is in  my  opinion  highly plausibl e. Commendation not  condem nation  should be the rewar d.
3. I have found no evidence that these alternative test s were meant to please or in any way gratify the defendants. It is my opinion that the tests were done in furtherance of the  defendant 's  work even though this is not what the money was sent for. SLFA therefore had to spend money on the t est s. This in my opinion cannot be an appropriation as envisaged by Section 37.
4. I will contrast the present circumstances with a situat ion where a loss of revenue or funds will amount to a misappropriation under Section 36. In section 37 the wording is different and "the taking " or " app ropri at ion " must be proved not by a mere loss. Even if this was not the case it is my opinion that value for money was received on the tests as the results from them were not only received but were used for the purpose intended which was to establish the age of the players. Which results sadly was a source of national embarrassment such as aught never to be repeated.
5. What then about the defendant's insistence that they did an MRI when I have found that in fact they did not? What about this untruth? I am "..... mindful of the fact that  people  (may)lie  to bolster up a just cause, out of shame or out of a wish to conceal disgraceful behavior..." (as per Justice Sey in Alimu Bah) . Telling an untruth is not always a necessary indication of guilt. It is especially not so when there exist s also a preponderance of evidence suggesting otherwi se.
6. The prosecution has not disproved the defendant's strong and compelling defence on this issue. Not one of the alternative expenses raised has been disproved. I am reminded that the burden of proof stays with the prosecution throughout the trial. I am now left with the uncontroverted plausible alternative explanations of how the $50,000 was spent . The law demands that I must resolve in favour of the defendants.

 

The $5,000 ( Le 24,750,000) loan

 

1. The prosecution's case is that LEOCEM gave SLFA a donation of Le 24,750,000. An ACC notice (Exhibit R) dated 27th September 2016 and addressed to the Operations Manager of LEOCEM requested a " Record of donations made  to SLFA  for the  period  2013  to date ". The response  to this notice is Exhibit S which in compliance to the  notice  lists  for  every  year  (2013  -2016)  the amount and date of sponsorship  from LEOCEM  to  SLFA.  In  that  list is an entry  dated  l i h  June 2015 described as "Sponsorship Support on Sponsorship {SLFA}" it is in the sum of Le 24,750,000. Wit h Exhibit Kl  - 4  the  def endants  withdrew  the  exact  amount  of  Le  24,750, 000 from SLFA account s.
2. . The  accused persons have  explained  the  withdrawal  of  the  amount  in their  st atement s. Their explanation is that Arnie Johansen had given SLFA a loan and that they were repaying that loan. In  support  of  this explanation  the  2nd  defendant  has produced  Exhibit  AD  which  is  a  rece ipt made by Chris Kamara in favour of Arnie Johansen in the sum of Le 24,750,000. The accused explain that because of  AD they had to  make the withdrawal which is evidenced in K  1-2  which are the payment  voucher approving the withdrawal of the amount  in question  .

82 .  Additionally there are K3 -4 . These are i) a GT Bank LEOCEM cheque dated lih  June 2015 (the

exact date as the entry in Exhibit S), made out in the name of SLFA and for the exact same sum  of Le 24, 750,000 and ii) An ECOBANK deposit slip made out in the name SLFA dated 15th June 2015. The details of the deposit show that it was done with a GT  Bank  cheque  with  No. 1200741 and in the sum of Le 24, 750,000. The evidence of the GT bank LEOCEM cheque , the ECOBANK deposit slip and the list of LEOCEM sponsor ship to SLFA give an equivocal account about the origin and nature of the Le 24,750,000. Whilst this account  may  support  the  defendant' s explanation and resolve the issue, viewed from the prosecutions perspective it may just as well support a claim for  deprivation  of public  funds.

1. None of the  prosecution  witnesses wavered in relation to their lack of  knowledge in respect of  thi s loan . PW3 when confronted that a thank you letter  was  written  insisted  that  the  letter written was to LEOCEM and in respect of LEOCEM sponsorship. The prosecut ion wit nesses simply did not know that this loan exist ed. The only account of a loan that  has come to  this  court comes either through persons the defendants have told about it, in their st atem ent s or in documents one of them has aut hored . I had ruled that this allegation is intact and taken at its highest the prosecution has here made a case that ought to be answ  ered.
2. In an sw er the  2nd  defendant  whilst testifying has described a set of  circum st ance s that led him to ask for a loan from M r. Arn ie Johan sen the 151 Defen dant ' s h usband. Whilst this is quite an unort hodox manner of carrying on the business of a public office it  does  not  automatically amount to the presence of criminal conduct. I have to make a decision as to  whether  this  account is true and or believable and how such t rut h or otherwise may affect this count if  at  all.
3. The testimonies of Jeboh Sherrington, Joseph Toby and Harold Nat Johnson all point to a time before leaving for Lungi to proceed to  Sudan when the  delegation  just sat  at Kingtom waitin g  for t he Secret ary General to arrive . There was an air of expect ancy . Much needed funds for the trip had not been received. Allowances had not been received nor had the imprest for the trip  been received.

 

 

14

The State v. lsha Johannsen& Christopher Kamara  - Hig h Court - (Fynn JA Presidi

 

1. The tense waiting was brought to a happy end by all the accounts when the Secretary General returned with $5000 which he gave to PW7 Harold Nat Johnson as the imprest for the t ri p. The accounts do not coincide  on where the  money  was handed  over whether  it  was under  the  tree or in the second def endant' s office. What the witnesses are agreed on is that the money was received and on that day, it was brought by Chris  Kamara  and that it  is what  was later  used by  the  Sudan  delegation  during  their  travels  as  imprest.  PW3  also  agrees  that  it  was  the     2n d

defendant who had brought the $5,000 and had handed it to the delegation .

1. What  has become of  crucial importance  though  is the  source of  these  funds. Where  did the 2n  d  d efend ant get this $5,000 from ? DWl as already st ated would have the court believe that this  was a loan from Arnie Joha nnsen . The prosecution denies this but does not  offer an explanation  as to where $5000 had suddenly came from on that  Sunday  aft ern oon. In  cross-examination  PW3 agrees that $5,000 was given to Harold Nat Johnson for the players but he does not  say  where the  money  had come from.
2. Harold Nat Johnson DW7 had more to say about the $5,000 and I will reproduce a portion of his testimony;

As the  Pre sident  was  not  around  accessing  funds  from SLAF accounts  was not  possible.   I

made calls to No .2 (the 2nd  defendant)  prior  to  departure  date  requesting  to  be  kept abreast  of  the  travel  plans .  The VP and  I prevailed  on him  to  go to  the  General  Manager of LEOCEM to assist with the difficulties facing the delegation. On the day of departure  I received a call from  No.  2  informing  me  that  he  had  secured  funds  from  Mr .  Johansen....../ went to Kingtom and the  Sec  Gen  gave  the  VP $5,000  which the  VP handed over  to me"

1. Nat John son' s narrative and his personal involvement and knowledge of how the $5,000 was sourced are credible and were not dented by cross examination at all.
2. The witnesses recounted a lot about what happened during that trip. First in Ghana and later in Sudan I have received all of that as useful background information. It underscores why it was important to have an imprest and how useful and life saving the $5000 turned out to be. This  info rmat ion is however of little value in deciding the truly crucial quest ion here , which is, where did the money come from? The source of the $5,000 will be of some assist ance in deciding whether or not a loan was raised through Mr. Jo hannsen. Similarly so, it is my opinion that the question of whether a loan was approved or not will provide little aid to the  search  for  an answer especially as the scenario we have been presented with was one that allegedly speaks of an emergency.
3. The  defence  witnesses Jeboh Sherri ngt on,  Joseph  Toby  and  Haro ld  Nat John  son  all tend to

agree that a loan was procur ed. It is of particular importance that Harold Nat Johnson already mentioned takes personal responsibility when he testified  that  he was one of those  who had   " prevailed" on the second defendant to approach Mr Johannsen with the problems which they were facing.

1. . The testimony of Mohamed Bowen Freeman DW3 who was also on the Sudan trip is not unlike

the other ot her three. He testified inter alia as follows;

 

 

 

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Pr

 

"...we were at SLFA, Kingtom. Whilst waiting for the tickets. The {LEOCEM Man) who brought the tickets was asked by Brima Mazo/a Kamara about the  imprest  .  Upon  receiving an answer Mazo/a called Chris....when Chris came Mazo/a asked him for the imprest. Chris said he did not have it but they will find a way to get  it.  Chris  then  telephoned Mr. Johansenn and Chris left. He later  returned with an envelope  which  he  gave to Mazo/la. It was on a Sunday, Mazo/a gave  Harold  Nat Johnson  the  envelope telling  him  it  was $5,000."

1. Bowen Freeman and the other defence witnesses give an account of a Sunday emergency which lends added credence to their story, considering the near impossibility to access banks and many offices on a Su nday. They were all credible witnesses and they were all present at Kingtom when the events were played out. I find them to be more credible than Brima Mazolla Kamara who was also present and a participant to the events.
2. Mazola, PW3 though chairman of the meeting to  which it  was reported that the loan had  been

acquired he does not remember the report. He tenders the relevant minutes but argues with  the contents and again fails to produce his own copy that should tell the  story  of  what happened at the meeting differently . I now reproduce an excerpt of his testimony :

" I am aware of a meeting on 2nd July 2015 I was the chairman of the meeting and I want the court to see a copy of the minutes of that meeting. Tendered as AK 1 -4. I am unaware of a loan from Arnie Johannsen. I see page 2 of AKl-4 the secretary General reports the loan to the meeting. I am the Brima Mazo/a Kamara referred to but thef acts are wrong"

1. Regrett ably , Mazola does not offer a different version of the events nor does he produce minutes for the meeting which may offer the court a different set of facts regarding what may have transpired at the meeting especially so about the loan.

 

Exhibit S - LEOCEM Sponsorhip

1. All the witnesses who testified in relation  to  LEOCEM  acknowledge  that  LeoCEM  provided  support to SLFA. SLFA in turn adverti sed LEOCEM products on its jersey etc. Exhibit S was produced into evidence by the prosecution. It catalogues impressively the support that SLFA received from LEOCEM over a period.  Listed in the exhibit  is a payment  of  Le 24,750,000 which   is the same amount as the questioned SLFA cheque made out to Mr. Johansen and which is the equivalent of the sum Mr.  Johansen was alleged to  have given to SLFA as a  loan.
2. OW 1 testified interestingly that LEOCEM never in all its sponsorship ever gives money to SLFA directly. After  attaching  value  to  their  intended  sponsorship  LEOCEM  would  identify  what aspect  of the SLFA project  it  is that they wished to  support and LEOCEM would usually proceed  to implemen t the project themselves direct ly. Thu s if they are paying for flight ticket s SLFA w ill give them the names of  the  players  and LEOCEM will then  deal with the travel agents  and pay  for those tickets directly. Another example; if  LEOCEM  is  paying player  allowances  the  court was told they will settle  a list and a LEOCEM official will then pay the      allowances  directly to  the

players.

16

The State v. lsha Johannsen & Christopher Kam ara   - High Court  - (Fynn JA Pre·   1

 

1. I have pondered over why this time LEOCEM had to make a cheque to SLFA for this part icu lar amou nt . This amount it is agreed was part of sponsorship relating to the Sudan t rip . In all the sponsor ship amounted to $90,000 or Le 4 45,500,000 (by my calculation). However no other cent of this amount was sent into the SLFA account but for this Le 24,750,000. I have looked through the SLFA bank statements carefully and it is this one payment only that I find in the whole of 2015 from Leocem to SLFA . One must pause to ask why this one payment had to be made to the account varying the LEOCEM policy of direct implementation. I have had to consider whether it was not because direct implementation was no longer possible.

99 . I have had to conside r and it does appear plausible and in keeping with the evidence, that if LEOCEM had not provided the imprest at the time of travel but  being committed  to  pay  it LEOCEM then had no other recourse this time but to pay the amount to SLFAs account. IF  LEOCEM  did not  pay the imprest for  the trip at the  time of the trip who could have done so.   It   is not far-fetched to infer that SLFA needing the imprest at the time of travel must have made  some arrangements  as narrated by the defence witnesses.

1. This appears a plau si bl e possibility to me. LEOCEM was committed to  buy the tickets, pay players allowances and provide an imprest for the Sudan t rip . By some sloppy management (we do not know if this was on the SLFA side or LEOCEM side) up on to the day of travel which day was a Sunday nothing was certain but LEOCEMs  commit ment. So it  turned out that when  the tickets arrived that Sunday they came without the imprest and the allo wances. Whilst the allowances coul d be transferred later the imprest  was needed for travel  exigencies  and had to  be sourced immediately. It was a Sunday and LEOCEM was inaccessible.
2. .          Taking a loan from a willing benefactor  to  cover  the amou nt,  of course to   be offset when LEOCEM made good their commitment could have been a way out. This loan could have been taken from anyone but it was taken from Arnie Johansen who is not only LEOCEM CEO but also husband to SLFA Pr esid ent. Whilst these relationships may have made negotiating the loan easier they similarly pot entially fueled suspiciou s minds. Once the trip was done and over LEOCEMwould have found that it st ill had with it committed funds for an imprest for the Sudan trip . However it could no longer directly implement because the trip had happened. SLFA would have found that it owed money to Arnie Johannsen because that's where they got money for the imprest on loan when LEOCEM did not come through.
3. Resolving this situation required two cheques : one from LEOCEM to SLFA and the other from SLAF to  Arnie Johannsen no surpri  se that both cheques had to  be in the same amount of  Le 24,750 ,000

103 .          This is the  story that has emerged after I have pieced the evidence  together.    I have relied on Exhibit AK 1-4 and on the testimony of DWl , Fre eman, Nat Johnson, Joseph Toby, and Jebbor Sherrington in this regard . It is regrettable that the court did not have the benefit of  test imony from the maker of Exhibit " AD". Arnie Johannsen could have spoken conclusively to the receipt alleged to be his. It is similarl y regrettable that the maker of Exhibit S did not testify bringing more clarity his d ocument.

1. In the  absence of  a firmer theory  from the prosecut ion  it  is my consid ered  opinion that

the  defence has been able on a balance  of probabilities  to  offer  an explanation      which  is

 

 

 

7

The State v. lsha Johannsen & Christopher Kamara

 

...
 

 

 

acceptable to the cou rt as being more likely than not. I find that Chris Kamara on behalf of SLFA t0 ok a loan from Mr. Arnie Johannsen and I so hold. I hold further that SLFA had to pay that loan back. I find that Exhibits K 1 & 2 were made pursuant to repaying Mr. Arnie Johannsen . The prosecution's case in regard to the $5,000 loan is therefore fatally undermined.

1. The Conspiracy charge relie s solely on the evidence provided for in the allegation on the CAF $50,000. No actual agreement was alleged nor has any evidence of such an agreement been led by the prosecution. The prosecution relied on the alleged "dishonest appropriation" of the $50,000 being proved to infer the conspiracy from it. The court having found the opposit e, the conspiracy count must therefore succumb to the same fate as the other count relating to that amount. I hold that there is no evidence before me which will support a charge for conspiracy to commit a corruption offence.

Conclusion

1. .      It  follows from my forgoing considerations therefore that none of   the present charges can stand; neither those brought pursuant to Section 37 for dishonest appropriat ion nor that brought under section 128 for conspiracy. I therefore acquit and discharge the accused persons on all three counts.

 

Costs

 

Even though the defendants have been acquitted and discharged, these were by no means fr ivolous charges. The defence could have been more cooperative during investigation s. Also, had different management practices been employed by SLFA less excitement may have been generated in the minds of persons with fertile imagination. The prosecution should not be made  scared of  bringing cases to  court though certainly they should not bring any lightly. As I do not think that  this  case  was brought lightly. I make no order as to cost s.

. ......Reginald Sydney Fynn JA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18

The State v. lsha Johannsen & Christopher Kamara - High Court - (Fynn JA Presidi ng)