NEC’s case has no legs to stand on
MAGISTRATE KAMANDA RULES AND DISCHARES TWO ACCUSED PERSONS DRAGGED TO COURT BY NEC ON TWO COUNTS OFCONSPIRACY TO DEFRAUD CONTRARY TO LAW AND EMBEZLLEMENT.
The National Electoral Commission, (NEC) late in June 2012 dragged David Cosmass Joel Kenneh, the District Electoral Officer Masanta section, Kailahun and Claude samura Assistant Electoral Officer Masanta Section Kailahun on two counts of Conspiracy to Defrauded Contrary to law and Embezzlement contrary to section 17(1) (b) of the Larceny Act 1916 respectively. The particulars of offence for count one was that both accused persons on diverse dates between Wednesday 15 th February 2012 and Thursday 16th February 2012 at the Sierra Leone Commercial Bank Kenema Branch conspired to defraud the National Electoral Commission (NEC) the sum of one hundred and sixty million, nine hundred and fourty five thousand leones (Lle 160, 945,000) and in count two, the particulars of offence were to the effect that the accused persons embezzled the aforesaid amount, being the property of the National Electoral Commission.
Defended by a season and learned counsel Barrister AUGUSTINE K. MUSA esq, the accused persons were arraigned before magistrate Kamanda of the Freetown magistrate court number two. During the preliminary inquiry, the prosecution called five witnesses. PW1 was the Director of Operations for NEC, PW2 the Chief of Finance for NEC, PW3 the Director of Finance and Strategist at the Sierra Leone Commercial Bank, PW4 the Director of Administration and Finance NEC, and PW5 the D.P.C 8593 Sessay. The evidence led established that the accused persons were signatories to the Kailahun District Account. In fact PW 3 led evidence and tendered swift documents marked A1-A2 that showed LE 164, 945, 000 was credited into the NEC Kailahun District Account and that he did notice there was a duplicated credit. He said the first withdrawal in the sum of LE 227 500 000 was done on February 16th 2012 and the second withdrawal in the sum of LE 150 000 000 was done on the 22nd February 2012 all by the first accused. He testified that the double credit into the NEC account was done erroneously. He tendered in evidence checks marked B and C and copies marked B1 and C1 and also bank statements marked D1-D6. All NEC Officials who testified admitted in cross examination that no one complaint that the Biometric Voters Registration was unsuccessful and neither did any staff complaint about the nonpayment of salaries. PW5, D.P.C 8593 tendered in evidence the voluntary charged statements of accused persons and admitted during cross examination that the complainant in the case was NEC. He also admitted the complaint was to the effect that the accused persons withdrew monies from the NEC account in Kailahun. He further said had he known that the monies withdrawn do not belong to NEC; he would not have charged the accused persons to court. This was the crux of the prosecution case as noted by the magistrate on page 5 of his ruling.
AUGUSTENE K. MUSA Esq , the defence counsel a learned and season lawyer address the court on the evidence led by the prosecution. He observed inter alia that the prosecution has woefully failed to adduce sufficient evidence. After scrutinizing the charges, he said they were bad for duplicity. He submitted that the monies alleged to have been embezzled were not purportedly withdrawn a single day but rather on two separate dates. He submitted that it was not sufficient to prove a general deficiency of money. He relied on the authorities; R V Lioyds Jones, 8C.D P 288 AND PARAGRAPH 1728 of Archbuld pleading Evidence and practice 35th edition and also the case of Soluku Jermill Bockarie V The State C.R. AP 712000 unreported.
A.K MUSA esq also submitted that for the charge of embezzlement contrary to sec 17(1)(b) to succeed, the prosecution must prove that that which was alleged to have been fraudulently embezzled by the clerk or servant is a property of the master and the point of law was Archbuld paragraph 1734. He further stated that the monies in question were the property of Sierra Leone Commercial Bank and not NEC. Moreover, he said he also relies on the evidence of PW5 D.P.C 8593 Sessay when he said during cross examination that had he known the said monies do not belong to NEC, he would not have charged the accused persons to court. A.K MUSA concluded that the court should discharge and acquit the accused persons. The prosecution assisted by associating counsel waved the time given to them to reply merely saying they relied on the evidence that was adduced so far. The ruling of magistrate Kamanda dated 07-02-2013 from pages 7-10 was thus; and I quote.
“I have had the privilege and opportunity of going through the entire evidence before me. I have also perused the address of defence counsel A.K. MUSA esq. and the legal authorities cited. In summary, the crooks of the prosecution’s case is that monies were sent in error by the Sierra Leone Commercial Bank into the Kailahun District account and that the said monies were embezzled by the accused.
The issue before this court for determination is as to whether the monies sent belongs to NEC. If the answer is in the affirmative, then the accused persons have a case to answer particularly when they are employees to NEC. If the answer is in the negative then does NEC have a lucus standi to institute this proceedings? … The case of Suoluku Jermill Bockarie – appellant and the State respondent CR APP 712000 is very illustrative in these kind of cases. The court of appeal held that when monies are deposited into the bank, then it is the bank that owns that money. They are not mere custodians but owners. In the instant case, there is uncontroverted evidence that the money belongs to Sierra Leone Commercial Bank and not NEC. For the purpose of our criminal jurisprudence, NEC does not have lucus standi to institute this matter as complainant. The proper person to have instituted any proceedings if ever they have is the Sierra Leone Commercial Bank. However they cannot also succeed in the present matter because the accused persons are not their employees or servant. On the issue of who should bring these proceedings, NEC has no business in instituting these proceedings neither are they responsible for the said withdrawers.
Fortunately the police during this proceedings were assisted by counsel Associating but unfortunately, Associating counsel did not advert prosecution attention on this important issue of lucus standi even though it came out clearly during cross examination of PW1, PW2 and PW3.
Also, both count I and II that is, conspiracy to defraud contrary to law and embezzlement contrary to section 17(1)(b), the particulars of offence show that the conspiracy and embezzlement were done on the 15th and 16th February 2012. I agree with defence counsel A.K MUSA esq that each acts of conspiracy and embezzlement must be separate counts. The incident of 15th February 2012 must be a separate count and the one on the 16 th another count instead of blending them in one count. The charges before this court are therefore bad in law for duplicity, the case of Lansana and 11 others V. R comes in handy on this view. It is also affirm by the case of Soluku Jermill Bockarie V. The State. CR. APP 712000 unreported.
In conclusion as a result of the submission of defence counsel base on locus standi of NEC, Duplicity and the evidence, THE PROSECUTIONS CASE DOES NOT HAVE A LEG TO STAND ON. These issues raised are so substantial that this court has no alternative but to say the prosecution has failed woefully to lead sufficient evidence against the accused on both counts of conspiracy to defraud contrary to law and embezzlement contrary to section 17(!)(B) of the larceny Act 1916.
Therefore, pursuant to section 118 of the Criminal Procedure Act No 32 of 1965, both accused are discharged on both counts for insufficiency of evidence and I so order.”
by Ransome N Ndikum, CARL-SL
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