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DISCHARGED ! Happy Moments for Mama Beach Ruling

The complicated case of ownership of the Mama Beach between Rugiatu Kamara, Defendant and John Koroma as Complainant has concluded at the Freetown Magistrate Court Number Two presided over by Magistrate Wellington last week. It would be recalled that the Accused was charged with One Count of Forgery Contrary to Section 2(1)(a) of the Forgery Act (1913) and One Count of altering a forged document contrary to S6(1) of the Forgery Act 1913.

 

The particulars are that the Accused between 1st July 2007 and 25th July, 2007 in Freetown, with intent to deceive, forged a certain document to wit, one Power of Attorney dated 25th July, 2007 purported to have been issued by Philipe Chapentier, knowing it to be false and that she issued out the forged document knowing it to be false. Seven witnesses gave evidence for the Prosecution.  For factual (including the Complainant, John Koroma)  and three formal (including a handwriting expert from the C.I.D.

 

At the close of the Prosecution’s case, Counsel for the Accused N.D. Tejan Cole made a No Case Submission and A. Sesay for the DPP who took over the Prosecution midway replied in writing. Forgery is defined in Section 1(1) of the Forgery Act 1913 as the making of a false document in order that it may be used as genuine with intent to defraud or deceive as the case may be. A False document is the whole or any material part thereof purports to be made by or on behalf of an event of a person who did not make it nor authorize making, or if made by or on behalf or on account of the person by whom or by whose authority it purports to have been made, the time, place, mark, number or any distinguishing mark identifying the document is falsely stated

 

The particulars of offence, state that the accused forged a Power of Attorney between 1st July, 2007 and 25th July 2007.  Exhibit A1-3 is an unregistered but notarized Power of Attorney dated 17th May, 2007 said to have been forged by the Accused and presented as having been issued by Philip Charpentier to her.  Exhibit G is another Power of Attorney said to have been issued by Philipe Charpentier to Rugiatu Kamara which the Prosecution says it is forged by the Accused.

 

Exhibit A1-3 is the Power of Attorney an issue as per the dates in the particulars of offence.  In his of No Case Submission, Counsel for the Accused said that the Prosecution has failed to prove that Exhibit, A1-3 is a forged document and by the Accused.  He pointed out that the evidence of the Expert witness PW5 has been discredited and should not be relied upon to hold that the document is forged.  This he said is because the Handwriting Expert Report in its findings and conclusion state I quote “Based on the foregoing, it is highly probable that the signature on Exhibit marked A3 could most probably not have been executed by the author of the signatures on exhibits B5, C and D6. Counsel for the Prosecution in reply submitted that Counsel for the Accused did not define the level of probability since it ranges from 0%-100% and he will assign 80% probability to the document.

 

Probable is defined in the Oxford Advance Learner’s Dictionary (6th Ed) as “Likely to happen, to exist or to be true” the word “likely” does not connote certainty.

I must at this stage state that there is a misconception that in a P.I., sufficient evidence to warrant an accused to stand trial the High Court where fundamental principles of law have been breached, means that the matter should be committed in any case and it is at the High Court that it should be sorted out.  In a criminal case however it is a fundamental principle of law be it a P.I. or trial, that there is no place for probabilities as to facts in issue to commit or convict an accused, otherwise the sacred principles in Woolmington vs. DPP which in summary is that it is not for the accused to provide his innocence but for the Prosecution to prove his guilt would be thrown out of the window.  Any conclusion as to probability must be in favour of the accused as it creates doubt.  I therefore hold that the expert report signed by three document examiners and a scientific support Manager is inconclusive and does not specifically states that Exhibit A1-3 was forged and that it was done by the Accused.

 

Quite apart from the report, the second limb of Mr. Tejan Cole’s No Case Submission is to buttress the first that the evidence led by the Prosecution did not show that Exhibit A1-3 is a forged document and that it was forged by the Accused.  He made reference to PW7, Berthan Macauley Jnr., who was the solicitor for the Accused, prepared the Power of Attorney i.e. Exhibit A1-3 and Exhibit G.

PW7, Berthan Macauley in evidence stated that his firm prepared a draft and inserted the final document on receipt from the client and registered that document i.e. Exhibit G.

 

For Exhibit A1-3, he said in evidence at page 22 “Exhibit A1-3 was not prepared by me although the name of Basma and Macauley appeared on it.  It is traced as a draft we prepared.  When we received the copy, I had certain discussions with my client regarding that document”.

PW7 is not wholly denying that his firm had nothing to do with the document. The question is whether from the evidence, the accused made Exhibit A1-3 purporting to have done so by Philipe Charpentier and further forged the signature of Philipe Charpentier and that she used the document with intent to defraud and deceive?  Taking all the evidence in its totality, I hold that the Prosecution has failed to lead sufficient evidence to prove the elements of forgery in this case.

 

The third limb of Mr. Tejan Cole’s submission is that the Accused was wrongly charged under Section 2(1)(a) and not Section 2(1)(d) which makes specific provisions for forging a Powers of Attorney and documents in that class.

Counsel for the prosecution admitted the mistake and conceded in his reply.  What I find amusing however is that he did not stop at conceding but went on to move this Court to commit the Accused to stand trial at the High Court.  I cannot say whether he was making his submission with any degree of seriousness and I hope not.  How can the accused be committed on a count that is wrongly charged? On this ground alone the Accused should be discharged on both Counts because if Count 1 fails, Count 2 will automatically fail I therefore hold that the Prosecution has failed to adduce sufficient evidence in totally to commit the accused to stand trial at the High Court on both Counts and further that the accused was charged under the wrong section of the Forgery Act.  I discharge her on both counts accordingly.

 

J.O WELLINGTON

PRINCIPAL MAGISTRATE

 

I.G.P. Vs RUGIATU KAMARA

REPLY TO SUBMISSION OF NO CASE

My Lord, as a response to Counsel’s submission of no case, I must place emphasis on the standard set by section 118 of the Criminal Procedure Act No.32 of 1965 to which my colleague rightly made reference, that the purpose of a preliminary investigation is not to prove the guilt of the accused beyond reasonable doubt but only to determine whether there is sufficient evidence to show that the accused person has a case to answer for the purpose of committal to the High Court.  Having this in mind, it is my humble submission to this Honourable Court that Counsel’s submission of no case is built on no foundation for the following reasons:

 

Counsel submitted to this Honourable Court that Exhibit F1-2 that is the expert report dated 12/1/2010 has been discredited without stating the parameters used to discredit it and without showing the Extent to which it is discredited.  That limb of Counsel’s submission is vague.  I therefore with respect ask your Lordship to ignore it.

Moreover Counsel further attempted to strengthen his submission by quoting the word “probable” used by the expert witness without making any reference to the level of probability.

 

My Lord the coefficient of probability ranges from 0% to 100%.  The expert witness used the phrase “Highly Probable” connoting that the chance that the author of the specimen signature did not sign Exhibit A1-3, which is the Power of Attorney now in dispute is at least 80%.  Counsel in his submission is therefore suggesting that when a State of Affairs is said to be highly probable the deponent does not know and therefore the state of affairs does not exist.  I wonder what counsel will say if a state of affairs is said to be highly improbable.

 

It is therefore my humble submission that the interpretations of my learned colleague imposed on the word “probable” constitutes violence to Ordinary English Language and a fundamental misinterpretation of expert evidence.  I therefore, with respect ask that your Lordship ignore that part of my Learned Friend’s submission.

 

Considering the second limb of counsel’s submissions, my learned friend, suggested that the evidence of PW7 shows that Exhibit A1-3 is properly executed and registered under the Laws of Sierra Leone.  My Lord it is on record that PW7 disclaimed every responsibility for the drafting of exhibit A1-3 both on his personal behalf and on behalf of his firm.  It is also on record that PW7 denied every responsibility for inserting the name of his firm BASMA & MACAULEY in Exhibit A2.  PW7 further stated that his firm did not register Exhibit A1-3.

 

PW7 however confirmed that Exhibit G that is the power of attorney dated 24th October 2007 which on the face of it appeared to have been notarized was registered by his firm which is not being disputed before this Honourable Court.  It is therefore my humble submission with respect that counsel’s interpretation of PW7’s evidence was calculated to mislead this Honourable Court.

 

My Lord I want to specifically bring to your notice the structure of Exhibit A1-3 that is the Power of Attorney under which the accused claimed to be entitled to the interest of Phillipe Cherpantier in the MAMAH BEACH GARDEN COMPANY LIMITED.  A1 has a phrase boldly written as DATED 25th DAY OF JULY 2007.  A2 has the name of PW7’s firm BASMA & MACAULEY inserted in it which purports that the document was drafted by PW7’s firm which PW7 completely denied in his evidence.

 

The first statement on A3 reads THIS POWER OF ATTORNEY is made the 17th day of July in the year of Our Lord Two Thousand and Seven.  Two critical issues arise (1) the same document has two inconsistent dates and (2) PW7 clearly indicated in his evidence that the document was not prepared by his firm.

I must submit at this point that looking at the entire structure of Exhibit A1-3 that document was not prepared by a lawyer and obviously not by BASMA & MACAULEY.

 

My Lord these inconsistencies should have put my learned colleague on inquiry.  It would be a dangerous precedent both in the legal profession and in ordinary business life if any person in this world would be entitled to an interest in a company on a power conferred by a document such as Exhibit A1-3.

 

Finally and most importantly in the final limb of my learned friend’s submission, he averred that because we charged the accused under section 2(1)(a) of the Forgery Act 1913, the accused has no case to answer.  We concede that it is an error on our part because to err is human.

 

However, the entire set of circumstances of Exhibits A1-3 point to the fact that the accused is involved in some wrong doing which I respectfully submit as a forgery, notwithstanding that we charged under section 2(1)(a) instead of sections 2(a)(d) of the Forgery Act 1913.

 

My Lord it is therefore my humble submission that there is sufficient evidence before this Honourable Court to show that the accused has a case to answer.

 

STATE COUNSEL

ABDULLAH SESAY

LAW OFFICERS’ DEPARTMENT

GUMA BUILDING

LAMINA SANKOH STREET

FREETOWN

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