S v Sesay ([node:field-casenumber]) [2009] SLHC 19 (03 March 2009);


1. The accused person is charged on a two Count Indictment with the respective offences of Soliciting an advantage contrary to Section 8(l)(a) of the Anti-Corruption Act,2000; and with Accepting an Advantage contrary to the same Section of the same Act.

2. Count 1 reads as follows: ALHAJI ALLIE BADARA SESAY on the 19Th day of March,2008 at Freetown in the Western Area of Sierra Leone, being a Public Officer to wit: Chief Clerk at the Immigration Department at Rawdon Street, Freetown, did solicit a sum of Le300,000 as an inducement to perform an act: to wit, securing a passport for ADAMA KARGBO. Count 2, before its amendment, reads as follows: ALHAJI ALLIE BADARA SESAY on the 2nd day of April,2008 at Freetown in the Western Area of Sierra Leone, being a Public Officer, to wit: Chief Clerk at the Immigration Department, Rawdon 5treet, Freetown, did accept a sum of Le250,000 as an inducement to perform an act: to wit: securing a passport for ADAMA KARGBO.

3.  At the close of the prosecution's case, and after I had overruled a No-Case Submission made on behalf of the accused by his Counsel, and pursuant to Section 148(1) of the Criminal Procedure Act, 1965

(CPA,1965), I Ordered the amendment of the fourth line in the particulars of offence in Count 2, to reflect the evidence which had been led. The evidence led by the prosecution through PW1, and the recorded interview of the accused, tendered as Exhibit"C" showed quite clearly that whatever sum of money was paid to the accused on 2nd April,2008, was paid to him, after the passport in the name of ADAMA KARGBO had been prepared. The accused in his interview said, he merely recouped the amount he himself had paid on behalf of PW1, for an emergency passport PW1's niece, ADAMA KARGBO. PW1 on the other hand said, he handed the money over to the accused because he had demanded it for preparation of the passport. It was, and still is, my considered Judgment, that no injustice was done to the accused by the amendment. The evidence led throughout the trial showed that money only changed hands, when the passport was handed over. The acceptance of the money from

PW1 could not then very well be 'an inducement for performing an act', because the act, that is, the preparation of the passport, had already been done or completed. S.148(1) reads as follows:" Where, before trial upon Indictment or at any stage of such trial, it appears to the Court that the Indictment is defective, the Court shall make such order for the amendment of the Indictment as the Court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice. All such amendments shall be on such terms as to the Court shall seem just" 4. The authorities show, consistently, that if the defect in the Indictment renders it a nullity, an amendment cannot be allowed. For instance, an Indictment which alleges an offence unknown to the Law, is invalid, ab initio, and cannot be cured by an amendment. Where however, a Count describes a known offence inaccurately, that Count is capable of amendment. Here, the particulars of Count 2, described the offence inaccurately, and thus, an amendment was proper and fair. In support of the position I have taken, I cite BLACKSTONE'S CRIMINAL PRACTICE, 2002 Edition, paragraphs D10.34 to D10.38; and to the case cited in D10.34: POPLE[1951] 1 KB 53 at 54 where the Court of Criminal Appeal held that:" The argument for the Appellants appeared to involve the proposition that an Indictment, in order to be defective, must be one which in law did not charge any offence at all and therefore was bad on the face of it. We do not take that view. In our opinion, any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person" The Court upheld the trial Judge's decision to allow an amendment at the close of the prosecution case, to make the property allegedly obtained by deception from a building society a cheque itself, rather than the sum of money for which the cheque was drawn. In JOHAL[1973], the amendment allowed, amounted to addition of new Counts. In our own jurisdiction, there are the cases of KAI KAMANDA v THE STATE Cr App 26/79 C.A.; KAMARA v COMMISSIONER OF POLICE [1964-66] ALR SL 75; FAULKNER v COMMISSIONER OF POLICE [1964-66] ALR SL 378; SHUMAN v R [1937-49] ALR SL 204; BRAVO-JONES v R [1937-49] ALR SL 59. All of these authorities are agreed, that an amendment of an Information or Indictment could be made at any stage, so long as it causes no injustice to the accused. Count 2 as it presently stands, reflects the evidence led at


the close of the prosecution's case. -After the Indictment had been amended, Count Was again read over to the accused, and he pleaded not guilty to it.

5. The prosecution called 6 witnesses in support of its case, and tendered in evidence, 3 exhibits. PW1 was the Complainant, SAMUEL KARGBO. On 19 March,2008 he went to the Immigration Department at Siaka Stevens Street, Freetown to obtain a passport for his niece, ADAMA KAKGBO, There, he met a young man who took him upstairs to the accused. He paid Le5,000 for an Application form to the accused. The young man filled the form. He said he was working with the accused. He gave the accused the form. To quote his evidence, he said: "he (accused) went through the form. He said the child was under age to be given a passport. I said she was about 15 years oldf and also a citizen. He said it would not be easy. I would need to pay Le350, 000.I said I was unemployed and begged him to help me. I said I only had Lel50,000. He said I was not ready for the passport. He said I needed to attach a photocopy of my passport to the form. I said mine was not with me. He said I would be unable to get the passport for my niece. I continued pleading with him. This was mid-week. He said I should endeavour to bring the photocopy against the following Friday. He said I should come with the sum of Le350,000. He said he was going out. So I had to leave the office. I left the office. I went straight to the ACC I explained to the Enquiry Clerk what had happened." This is the totality of the evidence in support of the charge of Soliciting an Advantage. Section 44 of the Anti-Corruption Act, 2000 as amended provides that "a witness in any proceedings for an offence under this Act shall not be regarded as an Accomplice by reason only of any payment or delivery by him or on his behalf of any advantage to the person accused or, as the case may be, by reason only of payment or, delivery of any advantage by or on behalf of the person accused to him." It follows that this Court can not only convict on his evidence alone, but need not advert its attention to the 'accomplice warning' given and observed in all other criminal cases. 6. PVV1 continued," on 2nd April ,2008 I returned to the ACC with a

photocopy of my passport.. ACC gave me Le300f000.I left with some ACC Officers. The notes were in Le5,000 and Le 10,000 notes. I went back to the Immigration. I went to accused's office; another person was packing files in his office. He asked me to sit down. I gave him the photocopy of my passport. He held on to it He said', "you are later He gave it back to


me. He said I should pay Le300,000.I said I only had Le 150,000 and continued to beg him. He searched his drawer, and brought out the passport. It had no receipt I opened and inspected it He said if I did not have the money, I should return it I refused to hand it over. There was another person in the office. I told him I had only Le300f000 on me. The young man in the office said I should at least give him Le250,000. I gave Le250,000 to accused. He gave the young man to count it. He was counting it when the ACC man entered. I tender the passport of ADAMA KARGBO as "A". I tender the photocopy as "A1"." This is the sum total of the primary evidence supportive of the charge of accepting an advantage.

7.  PW1 was cross-examined extensively by MR KOWA, Counsel for the accused. It was suggested to PW1 that he knew the young man who took him to the accused 19 March,2008. He denied the suggestion. It was suggested also to him that there was some discussion between himself and the accused about a "rush passport." He denied the suggestion. He said he was aware he had to pay Lel00,000 for a passport; but he was not aware of the cost of an emergency passport. He did not know that he had to pay for the passport before it was issued. He confirmed that the accused asked him for Le300,000 (though in examination in chief, he had said Le350,000). He said he counted the money in the presence of the accused before he gave it to him. It was Le250,000. The fair complexioned man was present. He was the one who took him upstairs on 19 March,2008. It was that man who finger-printed the passport.

8.  PW2 was the former Chief Immigration Officer, MS ALICE MARIAN KAMARA. She narrated her duties. She tendered in evidence, the passport application form in the name of ADAMA KARGBO and its attachments as exhibit "B1-4". She saw it for the first time when it was shown to her by the ACC. She said the form was approved by her 3ra-in-command, MR MARAH. She explained the manner in which applications for the different types of passports are processed. She said Exhibit "B1&2" had flaws. There was no proof of identity; there was no statement from the Principal of the applicant's school. There was no document to prove that ADAMA was a pupil. A birth certificate or affidavit is mandatory. There was neither in this case. Significantly, she said that "the signature on the computer form should be the same as on form B - for under-16's. In this case, there was a mix-up the signature column in the computer form, there is a thumbprint; in the signature column in form B there appears the initial and name A Kargbo. This could have been written by


anyone, as there is clear and credible evidence that ADAMA KARGBO never went to Immigration Headquarters. PW2 said also, that somebody must be the declarant because ADAMA was only 15. There is a thumbprint on the computer form. It should also be imprinted on the left hand corner of form B. There is no thumbprint on form B." She noted several other irregularities which go to show that the whole transaction concerning the passport was fraudulent from the outset. The different dates and different receipt numbers recorded on "B1 & B2" provide further evidence of dishonesty. It appeared from Exhibit "B1" that the passport was paid for on 27 March,2008. But in form B, it appears that payment was made on 3 April,2008, a day after the accused was caught. She said "you should not have a passport before paying for it."

9.   Under cross-examination, she said, inter alia, that the accused had nothing to do with payment of money; and that all monies are paid to the NRA.

10. The next witness wasPW3, ABDUL KARIM BANGURA, presently, regional Immigration Officer, Western Area. He narrated his duties. Among other things, he conducts interviews of applicants. He knew the accused as an Officer in the Immigration Office. He never interviewed ADAMA KARGBO. Her application form never went through the "Inside Investigation Unit" Which it ought to have done.

11. PW4 was MOMAMED ISSA SESAY, an additional witness, notice of whose testimony is dated 4 December,2008. He said the accused was like a father to him. He said: "on 2 April,2008 I was in accused's office at Immigration Headquarters. I went there to collect lunch money. I saw money on the table. I counted the money. ACC off/dais came in and arrested us. I had counted Le266,000. I do not know who owned the money. My father told me to count the money... ACC of ficiais took the money away" Under cross-examination, he confirmed that he did not know who put the money on the table. His appearance in Court must have been very painful to him, bearing in mind his connection with the accused.

12.PW5 JAMES COOPER an Assistant Immigration Officer, was merely tendered by the prosecution. He was not cross-examined.

13. The last witness was EMMANUEL KOIVAYA AMARA, an Investigating Officer at the ACC. He narrated his duties, and the role he played in the investigation of this matter. He confirmed that PVV1 made a complaint to him on 19 March,2008, and that he prepared a plan of action. The plan, included photocopying 50 currency notes of Le5,000 each; and 10 notes


of Le10,000 each. The note themselves were given to PW1 on 2 April,2008. On the same day, he, and some other ACC Officers, followed PW1 to the accused's office where a search was conducted. PW4, and one Mohamed Dumbuya was also in the office at the time. He said "we searched accused and PVV4. A wad of notes was found on them. Le266,000 was found on the person of MOHAMED SESAY i.e. PW4. The serial numbers of the notes were recorded and the recording was indorsed by the accused ...." I have a copy of the notes found on Sesay. However, he did not tender in evidence the notes, nor the recording of the notes. As MR KOWA has rightly pointed out in his address, he ought to have done so. But the matter does not rest there, as I shall shortly show.

14. Later, PW6 interviewed the accused at the ACC. The recorded interview was tendered as nC". He was cross-examined by MR KOWA. He agreed that he did not investigate the complaint made by PW1 in the sense suggested by Counsel. He did not try to prevent the commission of the follow-up offence of accepting the advantage. He prepared a plan of action in response to the complaint. A reading of the Anti-Corruption Act, 2000 shows that its main business is to weed out corruption in the society, and not just only the prevention of the commission of crimes.

15. As I pointed out in my Ruling in the No-Case Submission made by Defence Counsel in the matter of THE STATE v BAUN A OTHERS on 5 November,2008, even if the case before me appears to suggest entrapment or a "sting" operation, I am not bound, on the basis of the existing authorities, to reject such evidence on such grounds. There, I said, at paragraph 13 page 7: "He (i.e. MR MARGAI) cited in support of his argument ARCHBOLD 2008 Edition paragraphs 4-63 - 4-64 at pages 380 to 382. In that citation, the case of R v LOOSELEY; A-G'S REF (NO. 3) of 2000 [2002] 1 Cr App R 92 HL is also cited. There, the House of Lords laid down the ground rules for admission of such evidence. Their speeches were grounded in the Human Rights legislation imported into English Law by virtue of the UK's membership of the European Union, and the application of Human Rights Law by the European Court of Human Rights in the case of TEIXEIRA DE CASTRO v PORTUGAL 28 E.H.R.R 101. What is clear is that evidence of an agent provocateur is not excluded in English Law unless for instance, it amounts to an abuse of process generally, or contrary to the provisions of Section 78 of PACE, 1984 or to the UK Human Rights Act It is admissible, subject to


the guidelines laid down by the House of Lords. Subject to UK Human Rights legislation and PACE, the position as stated in SANS [1979] 2All ER1222 HL appears to hold to date. There is no general duty, at Common Law, imposed on a Trial Judge to exclude evidence which may have been obtained through an agent provocateur, or by entrapment The Trial Judge always retains a residual authority to exclude evidence, which though not ordinarily inadmissible under one of the exclusionary rules of the Law of evidence, but which ought to be excluded on the grounds of fairness and prejudice to the accused. It follows that I cannot exclude from consideration, nor ought I to have excluded at the relevant time, the evidence of any of the witnesses I have named as possibly falling within this description. * I still hold the same view, and I am still convinced that it is right and proper that this Court should not only, admit, but also rely on the evidence provided by PW1 and PW6 respectively.

16. Before closing his case, MR 5EMALEMBA for the State, applied to this Court for leave to dispense with calling a witness whose name appeared on the back of the Indictment, ANTHONY MICHAEL BORBOR ARUNA. MR KOWA indicated to the Court that he did not wish to cross-examine him. I therefore allowed the prosecution to dispense with calling him. Thereafter, MR SEMALEMBA closed the prosecution's case.

17. As I have stated above, MR KOWA made a No-Case Submission on behalf of the accused. That submission was overruled on 9 February,2009 for the reasons stated therein. Thereafter, I put the accused to his election in accordance with the provisions of Section 194 of the CPA,1965. He elected to rely on the recorded interview he gave the ACC. He had no witnesses. Both Counsel indicated that they wished to submit written addresses. MR SEMALEBA submitted his, dated 12 February,2009; and MR KOWA submitted his dated 20 February,2009.

18. This is a Trial by Judge alone by virtue of the provisions of Section 144(2) of the CPA,1965. The Order for the accused to be tried by Judge alone was made on 3 December,2008 pursuant to an Application made by the Attorney-General and Minister of Justice dated 25 November,2008. MR SEMALEMBA appeared for the State pursuant to a Fiat granted him by the Commissioner, Anti-Corruption Commission, in exercise of his powers under Section 89(1) of the Anti-Corruption Act,2008. This Act came into force before the commencement of the trial. It is trite Law that whereas, an accused cannot be tried for a substantive offence which


was not in existence when the offending act was committed, he can be tried by the procedure which obtains at the time of his trial, and not that which was in existence at the time the offence was committed. Sitting as a Judge alone, I am both the tribunal of fact, and of the Law. Nevertheless, I must remind myself, and keep in view at all times the requirements of the Law: that it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. The prosecution must prove beyond all reasonable doubt, every element of the offence with which the accused the charged. I can do no more than call in aid my own direction on this most important factor in a criminal trial, in the case of THE STATE v MANNEH & ANOR; Judgment delivered 20 May,2008. There, I said, inter alia: 'BURDEN AND STANDARD OF PROOF

19." 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 l 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 STATE Cr. App 31/74 CA unreported - the


cyclostyled Judgement of LIVESEY LUKE, JSC at pages 11-13. At page 12 LUKE, JSC citing WOOLMINGTON 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 C.A. 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; SEISA Y 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 [1960] 1 SLLR 19 at 20-21 per BANKOLE JONES, J as he then was. The point was again hammered home by A WOONOR-RENNER,JSC in FRANKLIN KENNY v THE STATE Supreme Court Cr App 2/82 (unreported) at pages 6-7 of her cyclostyled judgment.

20.I turn now to the matters which the prosecution should prove beyond all reasonable doubt. It should prove that the accused was a Public Officer within the meaning of Section 1 of the Anti-Corruption Act,2000. The Immigration Department is an arm of the Government of Sierra Leone. The accused is an employee in that Department according to the evidence of PW2, his former boss; and of PW3 his former colleague. He admits this In Exhibit "C". True, his letter of appointment has not been tendered in evidence by the prosecution, but I accept on the evidence of these two witnesses, and on the basis of "C" that he was so employed.

21. The prosecution must also prove beyond a reasonable doubt that the accused solicited the sum of Le300,000 as an inducement to secure the passport for PW1; and that he accepted the sum of Le250,000 as a reward for securing the passport. Though dishonesty is not a requirement for guilt in both cases, I dare say, I would not find my way to convicting an accused person of both offences, where there is no proof of dishonesty. The evidence of both PW2 & 3 respectively, and exhibits "B1-4" provide ample evidence of the accused's dishonesty. The girl ADAMA KARGBO never appeared before him; she newer went to the Immigration Office; she was never interviewed by PW3 or anybody else in the Inside Investigation Unit; her passport bore a thumbprint, though as a school girl, it is assumed she would be literate. One can well imagine the


problems she would get into, if for instance, the transaction had been unreported, and she had attempted to secure a visa to a country, where fingerprints are required before a visa is issued. Clearly, the finger print on "A" is not hers.

22.Coursel for the accused has complained about the inconsistency in PW1's evidence. PW1 spoke about the respective sums of Le300,000 and Le350,000; the charge in Count 1, alleges that the sum involved was Le300,000. PW6 said he gave Le300,000 to PW1. As I said in my earlier Ruling, "it is my view that, this being so, the difference in the amount alleged to have been solicited does not really matter. l am also entitled, as a Judge sitting done, to accept without more, the evidence of PW1 that some amount of money was solicited by the accused, be it Le300,000 or Le350,000. The absence from the witness box, of persons who may have been present when this transaction was being done between the accused and PW1 does not detract from the strength of the prosecution's case. It does not necessarily follow that, because other persons were present in the same room, that these persons were paying rapt attention to what was going on between the accused and PW1."

23.Also, MR KOWA drew the Court's attention to the fact that the money recovered by the ACC had not been tendered in evidence. It is true that the money has not been tendered in Court, though I accept the evidence of PVV6 that it was recovered. Again, I do not believe this detracts from the strength of the prosecution's case. In "C", the accused admits, at page 6, that money was found on his person; at page 9, he admits that" I gave a passport to the said gentleman, but I neither asked for nor received money from him. I had paid for the passport out of my own pocket" This is evidence, which I believe, at the end of the day, suffices to prove that the money given to PW1 by PW6 was the money found on the person of PW4, who says he was asked by the accused to count the money.

24Xn my Ruling on the No Case Submission, I have made known my views on the case of THE STATE v AVRIL CUMMINSS cited to me by MR KOWA. I here adopt those views. As I stated there, ADEMOSU, J was far from saying that the Court cannot convict on the evidence of one witness alone. His dicta applied to the facts which he had found as proved or not proven in that particular case.

25. The accused's defence is that stated in "C". He claims that he did not demand nor solicit money from PW1. He does not deny that PW1 went to


his office; nor that he handed over the passport to PW1 - a passport which never went through the normal and proper processing - page 15 of "C". Of course, the hidden hands of some of the of the officials at the Immigration Office, could be seen at work; noticeably, MR MARAH who signed the passport. I have no reason to doubt the evidence of PW2 that the whole transaction relating to the passport was not authorised. What the accused has not been able to explain away, is why he paid for a passport in respect of someone he had newer seen; and for or, on behalf of someone he had never known before, namely PW1. At page 17 of "C" he says "No, I have never seen nor known her." At the top of page 18, he explains how it is he able to prepare passports without seeing or knowing the applicants; "knowledge and experience on my jub."

26. He says in "C" that he paid Le200,000 for the passport, but could not produce any receipt to support any such payment. He said it must be attached to the application form and other documents relating to the said passport. No such receipt has been tendered in this Court.

27 .I have no doubt in my mind that the accused solicited the sum of Le300,000, and that he accepted the sum of Le250,000 as a reward for securing the passport. The fact that the passport was handed by him to PW1, convinces me beyond a reasonable doubt that he accepted the sum of Le250,000 as a reward for securing it. In the result I find the accused guilty on both Counts 1 and 2 of the Indictment

N C BROWNE-MARKE Justice of Appeal 3 March,2009.