THE STATE VS. DAVID LEWIS WALKER BEFORE THE HON. MRS, JUSTICE M. SEY J

Thursday 29th January 2009    Case Called Accused present Mr. Semalemba for the State L. Jenkins Johnston for the accused

RULING

This ruling relates to an objection by defence Counsel, to these proceedings on the basis that the entire 33 Counts are time barred as per the provisions of Section 2 of Cap. 172 of the Laws of Sierra Leone, namely, the Public Officers, Protection Act.

Counsel submitted that the accused comes within the provisions of the said section 2 in that he was a Public Officer charged with Public duties and responsibilities, in particular, to co-ordinate the school feeding project for which there was no specific job description given to him.

It is Counsel's further submission that the time frame provided Under Sub-Section (2) of Section 2 is six months after the act complained of. Counsel stated that the indictment is dated 13th May, 2008 and that the charges were put to the accused and the plea taken on 30th May 2008. He further submitted that Counts 1-3 spans from the period of August 2005 through to March 2007 and that in the light of the date on the indictment and the date

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the charges were put, these proceedings fall outside the permitted period of six months and accordingly deprives this Court of jurisdiction.

Counsel went on to further submit that the acts being complained of were not expressly forbidden in any document. He said the school feeding project was a novel idea for which there was no set pattern and for which this accused was expected to develop a working strategy as he saw fit. It is Counsel's submission that the fact that the accused used the project account for personal purpose cannot immediately qualify as a corrupt act. He submitted that it appears that the ACC prosecution team or the investigators were comfortable that cheques were issued to other people but were uncomfortable when the accused issued a cheque to pay for his accommodation at a time when he was clearly employed by the school feeding project and when it could be argued that he was entitled to backlog salaries. Counsel further submitted that a thorough auditing and accounting in the circumstances would have revealed that in fact if there is any debtor in existence or any debts in existence it was a debt owing from the school feeding project to the accused.

Counsel further submitted that if there is any case, that Cap. 172 seeks to prevent, this is the one. He stated that when once judgment or actions are called into question outside the six months limitation period, not because of any scientific or accounting findings, but simply because the Prosecution disagrees with the manner in which the accused executed his duties for which there were no prescribed guidelines, his very judgment is what is being questioned It is Counsel's further submission that the manner of appointing staff and payment of staff was by and large the sole prerogative

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of the accused and that, in fact, he was expected as a coordinator to use his good judgment and keep the project running. Counsel referred to the plan of operation agreed upon by World Food Programme and the government of Sierra Leone and also the letter of readiness to the Government of Sierra Leone dated 18th June 2003. He stated that these were the only two documents that formed the basis upon which this project was implemented and operated. Counsel submitted that the accused was not given a letter of appointment and that he was only given a copy of the letter of readiness by government signed by the Minister of Education Dr. Alpha T. Wurie.

He submitted that careful perusal of these two documents would reveal that nothing has been breached in these documents that conforms with the entire 33 Counts before the Court.

Finally, Counsel submitted as follows: -

Firstly, that the school feeding project under the co-ordination of the accused has been a success and that has been corroborated by PW1 Augustine Songo.

Secondly, that this accused did nothing or signed no cheques by himself but did so together and in conjunction with Cyrillia Hartwell Bell. Counsel submitted that instead of making her the subject of the same charges as the accused because they both signed the cheque the prosecution was now using her to prosecute the accused. Counsel further submitted that the project itself was badly run in that there were round pegs in square holes, no reports and no paper auditing. He submitted that in circumstances where these kinds of complaints are to be brought they must be brought within six

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months after the act complained of because of the simple reason that the accused was doing his job as a Public Officer.

In his reply the state prosecutor submitted that whatever duties the accused was entrusted with as a Public Officer was amplified further in Exhibit "B" which is a copy of the letter of readiness. Counsel referred to paragraph 2 of Exhibit "B" and he submitted that the accused had been appointed as the national Project Co-ordinator to be responsible for the day to day administration of the project.

Counsel further submitted that even though the duties of the accused may lack the specificity that obtained in the case of the State V. Francis A. Gabbidon, there are only two issues to be looked at. Firstly, whether the accused acted in pursuance of his duties and secondly whether the conduct alleged against him fell within the ambit of those duties however broadly defined.

It is Counsel's further submission that all that the Court would be called upon to determine is whether the accused David Walker misappropriated funds and whether that conduct can properly be described as one undertaken in pursuance of his duties. Counsel finally submitted that from the assertions made in the indictment it should be clear to defence Counsel that the conduct alleged in the indictment does not fall under acts done in pursuance or execution of the duties of the accused.

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The question that arises for determination is whether the entire 33 Counts in the indictment are time barred in terms of Section 2 of the Public Officers, Protection Act, Cap. 172 of the Laws of Sierra Leone.

For ease of reference I reproduce here under the said Section 2 as follows: -

"2. (1) Where any action, prosecution or other proceeding is commenced against any person for any Act done in pursuance or execution or intended execution of any Ordinance or of any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority, the provisions of the following subsections shall have effect.

(2) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within six (6) months next after the act, neglect or default complained of, or in case of a continuance of injury or damage, within six (6) months after the ceasing thereof................"

In Counts 1 - 33 of the indictment dated the 18th day of May, 2008 the accused David Lewis Walker is charged with Misappropriation of Public Funds Contrary to Section 12 (1) of the Anti-Corruption Act 2000 as amended. The particulars of Offence allege, inter alia, that the accused, being the national co-ordinator of the school feeding Project at the Ministry of Education Science and Technology misappropriated public funds by depriving the school feeding project of specified sums of money. Learned

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Counsel for the accused, Mr. L. Jenkins Johnston, has submitted that the accused qualifies for the protection accorded to public officers by the provisions of section 2 of the Public Officers' Protection Act and since the action was brought after the expiration of six months prescribed by Law, the action is time barred.

A careful perusal of the section will show that its provisions apply to an action being brought against a Public Office in relation to any act done by the Public Officer either: -

(a) in pursuance or execution or intended execution of any Law. or  (b) in pursuance or execution or intended execution of any public duty or authority; or© in respect of any alleged neglect or default in the execution of any Law, duty or authority.

If the action is brought or commenced after the expiration of six months after the commission of the act being complained against then the action: -

(i) cannot be instituted; and

(ii) if instituted shall not lie;

against the public officer. The same applies to any prosecution or other proceedings against a public officer for any act committed by the public office in any of the circumstances enumerated under (a) or (b) or (c) above.

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In Godwin Nwankwer V. Joseph Ademunmi (1967) N.M.L.R. 45 at P.48 the High Court (Duffus, J.) in his judgment dismissing the appeal from the Magistrate's Court, relied on the English authority of Scammel & Nephew Ltd. V. Hurley (1929) I KB 429 to hold that:

"To require the protection of the Public Authorities Protection Act, the acts must be acts not authorized by any statute or legal justification, but acts intended to be done in pursuance or execution of some statute or legal power".

On a further appeal by Nwankwer to the Supreme Court (Brett, Onyeama and Coker, (J. J.S.C.) the Court dismissed the appeal holding inter alia that -

"The Law is designed to protect the Officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of Legal justification......"

Although the action was instituted after the prescribed three months the defendant was held liable. It was a case of exortion and bribery and the defendant could not claim to have been acting in discharge of a Public duty since such acts were outside the scope of his lawful duties.

In Inspector General of Police V. Olatunji (1955) 21 NLR 52 the accused who was a public officer was charged with the offences of abuse of Office under section 104 of the criminal Code and also with contempt of Court under Section 21 of the native Court Ordinance, Cap 142 1948 Laws of Nigeria. The Magistrate did not hear evidence but dismissed the summons

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on the ground that the prosecution was not commenced within three months as required by the Public Officers protection Ordinance Cap. 186, 1948 Laws of Nigeria. In allowing the appeal and remitting the case to the Court below for trial, Ademola, J. stated: -

"The allegation against the accused respondent in the present appeal was that he has acted in abuse of the authority of his office. On the strength of all the authorities I have referred to, I am of the view that the Learned Magistrate was wrong in not hearing evidence in the case and in holding that the accused respondent can rightly claim the protection of the Ordinance. I therefore allow this appeal. I hereby order that the case be remitted to the Court below and that the trial be re-opened: that the charges be determined on the basis that the Public Officers Protection Ordinance is inapplicable to the Case",

Commenting on this decision, Bello C.J.N. in Egbe V. Alhaji (1990) NWLR at page 573- 574 this to say: -

"It may be observed that although the report did not state the duty of the public officer for the performance of which the Magistrate afforded him the protection of the Ordinance a reasonable tribunal may rightly infer that whatever was his public duty, the commission of criminal offences could not be done "in pursuance or execution of any Ordinance or Law or of any public duty as envisaged by the Ordinance accordingly one may rightly conclude that Ademola J, held that the Ordinance was inapplicable because the accused could not have committed the alleged crimes in the Lawful execution of his public duty".

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Another case which was relied upon by Ademola J. was Commissioner of Police V. Deniss, Gold Coast_, 29th March 1941 (unreported) in which it was held that the accused could not be Protection by the Gold Coast Public Officers protection Ordinance for the crime of "theft". These authorities clearly show that the rationable for the non-application of the relevant statute is that the offences were committed outside the scope of the Lawful duties of the public officers concerned.

In this present case, Learned Counsel has submitted that the acts being complained of were not expressly forbidden in any document. He said the school feeding project was a novel idea for which there was no set pattern and for which the accused was expected to develop a working strategy as he saw fit. In my considered opinion, if a person knows that he has not under a statute any authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing done was done with intent to carry out his public duties. From the evidence adduced so far, it is common ground that the accused was a public officer and that exhibits cl - 23, i.e. all the cheques tendered were drawn on the school feeding project Account number 01.1013765 - 01 being a Public Officer, the question is whether the accused is entitled to the protection of the Public Officers Protection Act, Cap. 172.

To my mind, the acts which are called in question, as alleged by the Prosecution in Counts 1 - 33 of the indictment, are contrary to the duties of the accused (however broadly defined) as National co-coordinator of the School Feeding Project at the Ministry of Education Science and

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Technology. The accused cannot therefore take advantage of the Provisions of Section 2 of the Public Officers protection Act, Cap. 172.

To conclude, I wish to refer to a case in this jurisdiction [before His Honour Sir Ambrose Webb - Chief Justice] dealing with the Public Officers Protection Ordinance 1936. It is that of Samuel Assan Johnson Vs. Paramount Chief Momo BAnya (1938). The defendant a Paramount Chief caused the Plaintiff to be forcibly brought to Court for disobeying a Civil Summons. The Plaintiff was non-native and not under the jurisdiction of the defendant. It was held, inter alia, that the defendant exceeded his authority and cannot claim the Protection of the Public Officer Protection Ordinance, 1936.

As Webb, C.J. put it: -

".................for the defendant to be able to claim the advantage of the Public authorities Protection Ordinance there must be something done that he might  easonably and honestly think was justified by the power or duty which he was seeking to carry out".

In Bomwell V. Hurley (1929) I K.B. 419 Scrutton L.J. said: -

" To require the application of the Public Authorities Protection Act the acts must be acts not authorized by any statute or legal justification but acts intended to be done in pursuance or execution of some statute or legal power. It would appear, therefore, if illegal acts are really done from some motive other than an honest desire to execute the statutory or other legal duty and honest belief that they are satisfied by statutory or other legal authority, if they are done

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from a desire to injure a person, without any honest belief that they are covered by statutory authority.................the Public Authorities Protection Act is no defence

I place reliance on all the authorities cited and for all the foregoing reasons I would reject all the submissions made by Learned Counsel for the defence. In the circumstances, the objection is hereby overruled.

Sgd: M. Sey Judge 29/1/09

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