Appeals Court: COI erred in law, no evidence against Lawyer Francis Kaikai

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By Hassan Gbassay Koroma

“The findings were totally unsubstantiated, baseless, unsupported by law or evidence thereby manifesting erroneous, defamation by virtue of the fact that the Appellant is a qualified procurement officer and the highest standard of probating, honesty, and sterling personal reputation is required at all times and yet proceeded to make adverse findings against the Appellant,” ruled the Appeals Court.

The Court of Appeal presided over by Justice Fatmata Bintu Alhadi, Justice Komba Kamada and Justice Tonia Barnett on Monday granted the appeal application of the then Procurement Officer at the Ministry of Agriculture Forestry and Food Security, Lawyer Francis Kaikai.

The Justice Bankole Thompson COI had recommended that, the applicant been the only Procurement Officer at the ministry, purchased  NPK 20.20.20 instead of NPK 0.20.20 fertilizer, which was stated in the contract  for the ministry to  buy. 

The applicant, who was dissatisfied with the findings had through his lawyer; Shears Moses, filed an appeal against the findings. 

 The Appeals Court says there was no evidence to show that the Appellant benefited personally from the said fertilizer scheme in anyway and that in Commissions of Inquiry, as in the instant case, the burden of proof squarely rest on the state.

The court notes that the respondent herein should bring forth evidence against the Appellant and such legal obligation cannot be whittled down in the absence of compelling evidence, as in the instant case against the Appellant.

“The Appeal is allowed based on grounds E, F and G. The adverse findings, report and recommendations against the Appellant by the sole commissioner Justice Bankole Thompson herein are set aside,” the Appeals Court ruled.

Reading the judgement on behalf of the panel, Justice Komba Kamanda said the Appellant’s appeal is based on various grounds A-G and that ground A w states that the COI Commissioner in his report in Pages 28, Paragraph 9, referred to the testimony of the Appellant, which is not correct as the Appellant never testified.

Justice Kamanda said the Appellant was not a Person of Interest as listed on Page (ii) Paragraph B and that he was not invited to appear before the Commission as a person under investigation.

He was the Procurement Officer appointed pursuant to Section 18 of the Public Procurement Act, Act No.1 of 2016.

He said on ground B, the Commissioner erred in law and acted in violation of the Appellant’s Fundamental Human Right to the “presumption of Innocence” as provided in Section 23(4) of the Constitution of Sierra Leone, Act No. 6 of 1991 in failing to conduct a “full, faithful and impartial” inquiry as mandated by Section 149(2) of the International Convention of Civil and Political Right 1966 by proceeding to make adverse findings against the Appellant.

He further stated that on ground C, the Commissioner erred in law and acted in violation of the Appellants fundamental Human Rights to be examined in person “on his action as Secretary to the Procurement Committee mandatory trials.

“He was never invited to appear before the Commission as a “Person of Interest” or as a “person under investigation'” by the Commission,yet the Commissioner proceeded to make adverse findings against the Appellant. How was his culpability in the loss of Leó1, 06l, 440,000.00 determined and to what extent is he liable? There was no statement of how the amount was to be shared,” the court ruled.

He said on ground D, the Commissioner erred in law and acted in violation of the Appellant’s Fundamental Human Rights to a “free and fair trial” in violation of the provision of Section 23 (1) of the 1991 Constitution Act No. 9 of 1991 and the principle of Audit Alteram Partem” underpinning natural justice.

“The Commissioner thereby failed to adhere to the mandatory provision of Section 149(1) (a) of the Constitution in failing to conduct a “full, faithful and impartial inquiry” and in violation of Article 10 of the Universal Declaration of Human Rights 1948, Article 14 of the International Convention on civil and political rights and Articles 3, 7 and 26 of the Africa Charter on Human and Peoples Right, by not according to the Appellant a fair hearing.”

He also noted that on ground E, the Commissioner erred in Law and in fact by ignoring the evidence before the Commission that the decision to procure the fertilizer referred to in pages 28-32 of the report were taken by a strategic management team, which the Appellant had no vote in and was only secretary, but proceeded to make finding against him.

He said on ground F, the Commissioner erred in Law when he failed to categorically state in more equivocal term, that what happened during the Strategic Committee meeting were procurement decisions, and failing to decide what the Appellant is liable for whether for taking a decision or participating in a decision making, thus making his findings ambiguous, opaque, uncertain and is bad in Law; yet proceeded to make an adverse finding against the Appellant based on such duplication of facts ambiguously.

He said on ground G, the Commissioner erred in law and fact by failing to take into consideration the fact that the evidence led before the commission clearly show that the Appellant only joined the Ministry of Agriculture in May 2016 and only provided secretariat duties to strategic management committee.

The Government of Sierra Leone through the Ministry of Agriculture, Forestry and Food Security Planned to purchase 94,500 bags of 50kg inorganic fertilizer to distribute to about 750,000 farmers in the 13 districts of Sierra and the sum of USD22,367,500 was used for the purchase of 980000 of 50kg bags of fertilizer.

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