AHMED BAH, Sr., Appellant, v. REPUBLIC OF LIBERIA, Appellee.

Heard: May 22 & 23, 1989. Decided: July 14, 1989.

1. The finding by the grand jury of a true bill and an endorsement thereupon to such effect are not sufficient to render it valid as an indictment, but it is further necessary that the bill/indictment shall be presented or returned by the grand jury in open court.

2. A defendant criminally charged is presumed innocent until the contrary is proven.

3. Where an indictment is defective, a motion in arrest of judgment will be granted.

4. Jurisdiction to try and punish for a crime cannot be acquired otherwise than in the mode prescribed by law, and if it is not so acquired, any judgment is a nullity.

5. The best evidence which the case admits of must always be produced; that is, no evidence is sufficient which supposes the existence of better evidence.

The appellant, Ahmed Bah, Sr. was indicted for the crime of theft of property, the properties being gowns and cash totaling $11,390.00 from the Fulah Community in Liberia. The appellant having entered a plead of not guilty upon arraignment, the trial proceeded in Criminal Court “C”, Montserrado County, at the conclusion of which, a verdict of guilty was returned by the trial jury against the appellant. A motion in arrest of judgment, predicated upon defect in the indictment was made, heard and denied. The trial court thereafter entered a final judgment and sentenced the appellant to restitute $13,830.00 and pay a fine of $500.00. From this judgment, the appellant appealed to the Supreme Court for review and final determination.

In reviewing the judgment and discharging the appellant, the Supreme Court held that the indictment was defective and that the motion in arrest of judgment, as a matter law, should have been granted. The Supreme Court held that the evidence produced by the prosecution was flimsy and insufficient to support the allegations laid in the indictment and to support a conviction. It also ruled that the indictment being defective and wrongly procured, the trial court did not properly acquire jurisdiction over appellant, and so the judgment was legally null and void. The judgment was therefore reversed and appellant was discharged.

Alfred B. Flomo for appellant. A. Cadmus Moore, Sr., of the Ministry of Justice for the Republic of Liberia, appellee.

MR. JUSTICE JUNIUS delivered the opinion of the court.

Ahmed Bah, Sr. was indicted for theft of property by the grand jury of Montserrado County during the August Term A. D. 1988 of Court. During the November A. D. 1988 Term of the First Judicial Circuit Criminal Assizes, Court “C” he was tried and convicted by an empaneled jury which returned in open court with a unanimous verdict of guilt against him.

The jury was polled in open court and the verdict was confirmed. Thereafter the verdict was recorded, and Appellant Ahmed Bah Sr., through his counsel, excepted to the said verdict and filed a motion in arrest of judgment. The motion was heard and denied. Thereafter final judgment was rendered confirming and affirming the verdict of the empaneled jury and ordering that the appellant restitute the $13,830.00 as well as pay a fine of $500.00. He excepted to the judgment, took an appeal and filed an eight-count bill of exceptions which was approved.

The indictment upon which the appellant was tried and convicted read as follows:

“INDICTMENT

The grand jurors for the County of Montserrado, Republic of Liberia, upon their oaths do present: That Ahmed S. Bah defendant of the City of Monrovia, County and Republic aforesaid, heretofore, to wit:

That in violation of chapter 15, section 15.51 (a), and for taking into consideration by the Court of chapter 50, section 50.9 (5) of the Penal Code of Liberia, which states:

THEFT OF PROPERTY: A person is guilty of theft if he:

(a) Knowingly takes, misappropriates, converts, or exercises unauthorized control, over, or makes an unauthorized transfer of an interest in the property of another with the purpose of depriving the owner thereof.

RESTITUTION: ‘Unless restitution has been made prior to sentencing the court shall include in the sentence an order directing the defendant to return the property or pay the person whose property was damaged through the intentional or reckless commission of the offense the amount of loss suffered therefrom.’

That between the 1st day of December, A. D. 1985, up to and including the 30th day of January, A. D. 1986, in the City of Monrovia, County and Republic aforesaid, Ahmed S. Bah, defendant aforesaid, then and there being while serving as Fulah Governor for Montserrado County, Republic of Liberia, and by virtue of his position as such, did receive into his custody, possession and control, thirteen (13) specially made traditional gowns valuing the total amount of $2,440.00 and cash contributions making a total of $11,390.00 from the Fulah Community in Liberia for the purpose of executing a program in honor of the standard bearer of the National Democratic Party of Liberia, Dr. Samuel Kanyon Doe for his victory in the last general elections in Liberia and his inauguration as the first President of the Second Republic on behalf of the Fulah Community in Liberia, but the defendant aforesaid, becoming unmindful of the trust and confidence thus reposed in him, did unlawfully, wrongfully, knowingly, fraudulently, feloniously and intentionally, embezzle misappropriate and convert the said traditional gowns plus the cash contributions into his own use and benefit thereby depriving the said Fulah Community of the said traditional gowns plus the cash contributions making a total of THIRTEEN THOUSAND, EIGHT HUNDRED AND THIRTY ($13,830.00) DOLLARS, and which amount, the defendant has not restituted up to the finding of this indictment, then and thereby the crime of THEFT OF PROPERTY, the defendant did do and commit, contrary to the form, force and effect of the statute laws of Liberia, in such cases made and provided, and against the peace and dignity of this Republic.

And the grand jurors aforesaid, upon their oaths aforesaid, do present, that Ahmed S. Bah, defendant aforesaid, at the time and place aforesaid, in the manner and form aforesaid, the crime of THEFT OF PROPERTY the defendant did do and commit, contrary to the force and effect of the Statute Laws of Liberia, in such cases made and provided, and against the peace and dignity of this Republic.
Republic of Liberia Plaintiff,
By: Sgd. Marcus R. Jones
COUNTY ATTORNEY,
MONTSERRADO COUNTY, R.L.

WITNESSES: ADDRESSES:
Karamoko Mamadu Bah Ashmun Street, Monrovia
Mohammed B. Jalloh Barnersville, Mont. County
Abubakar Jalloh Front Street, Monrovia
Receipts, et. al.”

When this case was called for hearing, the file revealed that in conjunction with the eight-count bill of exceptions, the appellant’s brief contained four issues which he had requested the Honourable Court to consider and based on which he requested us to reverse the final judgment rendered by the trial court and discharge him without day and to order the return of his appearance bond. The four issues from his Brief are as follows:

“(a) Was the appellant tried upon a valid indictment returned by a competent grand jury within term time as required by statute?

(b) Was the appellant correctly charged?

(c) Did the evidence adduced by the prosecution prove that appellant was guilty of any offense, if so, which offense?

(d) Can a final judgment based upon a verdict not supported by the evidence and the law be upheld by this Honourable Court?”

Appellee, the Republic of Liberia, filed a brief and in arguing the said brief which contains six counts has requested this Court to confirm and affirm final judgment of the trial court. Appellee’s issues which were argued are as follows:

“1. That as to count 1 of appellant’s bill of exceptions, the judge committed no reversible error when he sustained prosecution objections to a question propounded to Witness Abubakar Jalloh on the cross examination. The fact that this witness in response to a previous question on the cross by appellant’s counsel which reads thus: ‘Mr. Witness, from the testimony you have given, you are intelligent; do you read and write the English language? The answer was, “I can read and write small but not much.” Now, for appellant’s counsel to have asked such a hypothetical question was improper, hence objectionable.

2. That as to count 2 of the bill of exception, the judge did not err when he admitted into evidence courts marks A-2 and B-1 thru H-9 being photocopies of letters and money receipts, in that, as a matter of law and fact these documents have been testified to, properly identified, marked by court, confirmed and reconfirmed, so the judge had no option but to admit them into evidence.

3.That as to count 3 of the bill of exceptions, the judge did not commit any reversible error, in that one of such witnesses for which an application was made to be subpoenaed in person of Tribal Chief Mohammed Sheriff did testify as a special witness for the defense. Hence, by all parity of reasoning the purpose for which the other witnesses were to depose had been met. Hence, defense rested his case with this witness.

4. That as to count 4 of the bill of exceptions, counsel for appellant miserably failed to put the question in its proper perspective, that is to say, ‘Mr. witness, when Witness Karamoke Mamadu Bah Pallel was testifying for the State, he said that you told him of the amount of cash contributions you have received besides the gowns. Now, being on the stand to testify for yourself, what do you have to say about this? This question was objected to by prosecution on ground of cross examination of one’s own witness and sustained. Appellee maintains and contends that under the rule governing direct examination of a witness, it is improper to ask a witness questions suggestive or leading, hence, the judge committed no reversible error.

5. That as to counts 5, 6 and 7 of the bill of exceptions, it was appellant’s legal right to have excepted to the jury’s unanimous verdict after having been found guilty of the charge preferred against him, if he intended bringing his case up for appellate review and thereafter file a motion in arrest of judgment prior to rendition of the court’s final judgment. However, appellee strongly maintains that the trial judge committed no reversible error when he denied appellant’s motion in arrest of judgment for legal authorities have agreed that except the indictment fails to charge an offense or if the court was without jurisdiction of the offense charged, the court could arrest its judgment but not on evidentiary matters which do not appear on the face of the indictment as have been contended by appellant in his motion in arrest of judgment. Recourse to the indictment shows that same does charge an offense and all prerequisite of a valid indictment have been met.

6. That as to count 8 of the bill of exceptions same should be overruled in that, the trial judge had no alternative but to enter final judgment confirming and affirming the unanimous verdict of the jury after he had denied appellants motion in arrest of judgment in keeping with the evidence adduced at the trial.”

Let us now turn to the evidence in order to determine whether or not the contentions in the bill of exceptions summed up by appellant in the four issues stated supra can be sustained:

A. Witness Bah testified inter a lia that in December, 1985, the appellant, while serving as Fulah Governor, called a general meeting of the Fulah Community in Monrovia and told them that they, members of the community, should make contributions to gown the President of Liberia and other officials of the government elected along with him (the President) for the victory they had achieved. The suggestion was accepted at the meeting and some of the members paid cash and some contributed gowns totaling 13 gowns in all but he did not know how much cash was realized. However, when he made inquiries from appellant and his administrative assistant, he was jokingly told that that was not his business but later on, appellant told him that Fifteen Thousand Dollars ($15,000.00) had been realized. He said after a long while, he called on appellant, even wrote appellant in the Fulah script, to again inquire about the program for which the gowns and cash were contributed as they had not heard anything over the radio nor in the newspapers. He also threatened that if nothing happened, they would report the matter to the proper authority.

B. Witness Mohamed Boyee Jalloh confirmed the testimony of witness Bah to the effect that a general meeting of the Fulah Community convened by the appellant on December 22, 1985, and the agenda of the meeting was to honor the President, First Lady and other officials of government elected on the NDPL ticket at the October, 1985 general elections and in this meeting, Mr. Mohamed Samba Bah, who was special assistant to the appellant, was unanimously appointed or elected as the chairman for the entire program. He testified that it was agreed that only the tribal chiefs should receive or collect donations from members of the Fulah Community and that each tribal chief should collect Six Hundred Dollars ($600.00) from his section. He said he received only Four Hundred Forty Dollars ($440.00) from his people, which he deposited with the chairman for the program, Mohamed Samba Bah and not appellant. He said that the money was intended to purchase the gowns for the honoring ceremony. Then he said that he did not give any money to the appellant neither did he know of any gown being donated as he went out of the country for medical treatment following payment of the Four Hundred Forty Dollars ($440.00). This witness could not confirm nor could he identify the various species of documentary evidence perfunctorily identified by illiterate witness Karamoko Mamadu Bah.

C. The third and last witness for the prosecution was the Fulah tribal chief for West Point, Monrovia, who told the court that he was at the meeting on December 22, 1985 when the program for honoring the President and other elected officials was discussed and decided. He said the amount decided upon to be raised was Fifteen Thousand Dollars ($15,000.00), but on the 23r d of December, 1985, following this meeting he received a letter from appellant ordering him to collect only Six Hundred Dollars ($600.00) from his section. He said of this amount, he was able to collect a total of Five Hundred Dollars ($500.00) from his people which he took to appellant and appellant told his special assistant, Mohamed Samba Bah, to issue him a receipt which was done. Since then, the program has never been held. As for the 13 gowns, he, Witness Jalloh, only saw seven (7) gowns on that day. This witness spuriously confirmed the photocopies identified by illiterate witness Karomoko Mamadu Bah.

Having given a synopsis of the prosecution’s evidence, we will now look at the testimonies of appellant and his witnesses.

Appellant testified as follows:

A. He told the court that he convened a meeting of the Fulah Community on December 22, 1985, following the general elections and proposed that the Fulah elements in Liberia identified themselves with the Government of Liberia through some sort of a program and in order to carry this out, they should elect their own chairman. Accordingly the meeting elected Mr. Mohamed Samba Bah as Chairman. He said he suggested to the chairman that each tribal chief should collect Six Hundred Dollars ($600.00) from his Section and the idea was accepted but the four (4) tribal chiefs only reported a total of Eight Hundred Forty Dollars ($840.00) to the chairman, out of which ten (10) gowns were purchased at the rate of Sixty-Five Dollars ($65.00) each, making a total of Six Hundred Fifty Dollars ($650.00), and leaving a balance of One Hundred Ninety Dollars ($190.00). This balance was used for transportation.

B. Mr. Abubakar Soe, a representative of the Timbo section of the Fulah Tribe residing in Monrovia, testified substantially that a meeting was held and it was agreed unanimously that the President and other officials elected along with him should be honored and that the meeting elected Mr. Mohamed Samba Bah as Chairman for this occasion. He confirmed that each tribal chief was taxed Six Hundred Dollars ($600.00) but the chairman ordered that the tribal chiefs collect a total of Eight Hundred Forty Dollars ($840.00) only to purchase the gowns. He testified that the appellant played no part in the collection of the money and that ten (10) gowns were purchased by the chairman, Mr. Samba Bah, for the program. He also testified that the program could not be held as appellant said that he would first inform the Minister of Internal Affairs and obtain the Minister’s permission before anything could be done. This witness said also that his personal contribution was not more than One Dollars ($1.00).

C. Mr. Mohamed Boyee Jalloh (not the former senior tribal chief who testified for the State) confirmed the fact that Mr. Sabah Bah was elected chairman of the program who, in a separate meeting, required the tribal chiefs to donate a total of Eight Hundred Forty Dollars ($840.00) only to purchase gowns for the honoring ceremonies. He said after ten (10) gowns were purchased, appellant promised to write and inform the Minister of Internal Affairs before the program could be held. He said that as the elected governor of the Fulah community, he only donated Fifty Cents ($0.50).

D. Mr. Mohamed Sheriff, tribal chief of the Fulah community, who was called as a special witness, confirmed the testimony of appellant to the effect that they went to the Capitol Building and gowned the Vice President, Speaker and President Pro-Tempore of the Senate. He said that only ten (10) gowns were purchased. He said he and members of his section did not make any contribution to the program; he identified the six (6) gowns, as well as the receipt for the gowns and other documentary evidence which were admit-ted into evidence without objection from the prosecution.

We would like to state that this is a case in which appellant was indicted for theft of property, tried and convicted for the theft of money and gowns allegedly given to him for the purpose of honoring the President-elect, Dr. Samuel K. Doe, as well as some officials of government. Let us now see whether the judgment which is now sought to be reversed was founded upon a proper indictment and whether the verdict was substantially supported by the evidence in the case.

On the issue of the indictment, our statute defines an indictment, as follows:

“Every indictment found shall be endorsed as a ‘true bill’ and signed by the foreman and returned to the judge in open court. Several indictments may be returned at the same time. They shall be filed with the clerk of the court and remain in his office as a public record. If the defendant has been held to answer, but no indictment is found against him, the foreman shall indorse `ignoramus’ on the back of the indictment and shall return it to the judge in open court. If for any reason the investigation of a case, where the defendant has been held to answer is not completed, this fact shall be reported to the court by the foreman.” Criminal Procedure Law, Rev. Code 2: 15.12.

The records reveal that certificates of the signature of the clerks of both Court “A” and Court “C” and the date of the filing of this indictment in Court “C” are proof that no indictment was found and returned in open court by the grand jury for Montserrado County during the August A. D. 1988 Term of Court “A” or Court “C”, even though we have seen an endorsement that one Doe Fanyeah signed as foreman and the indictment was filed on August 20, A. D. 1988. There was showing in the records that the grand jury for Montserrado County was in session at the time the indictment was found and filed because, according to the records, the grand jury got out of session on September 26, 1988. There are also no records that a special grand jury sat to have found this indictment. The finding by the grand jury of a true bill and an endorsement thereupon to such effect are not sufficient to render it valid as an indictment. It is further necessary that the bill or indictment be presented or returned by the grand jury in open court. The general rule requires that this must appear on the records of the court and the records in this case failed to show such presentment or return. Also the records do not show that the indictment was presented in open court and was later presented to the clerk of the court who would then be ordered by the judge presiding over that session of the court to have the necessary precepts issued and placed in the hands of the sheriff and/or ministerial officer for service.

Let us digress a for a moment. The procedure which is known in Montserrado County is that there is only one grand jury of Montserrado County and this is the one for the Criminal Court, which is called First Judicial Criminal Assizes, and which has three divisions – “A”, “B” and “C”. Indictments are returned to Court “A” by the grand jury and later distributed or forwarded to the proper division (“A”, “B” or “C”) that is responsible or has special jurisdiction to handle that particular offense.

In the instant case, we see that the indictment was found before Judge Joseph L. Barchue, who presided over the First Judicial Circuit Court, Criminal Assizes “C” and that it was filed by the clerk of that court. This practice is strange and it throws some light on the point raised by appellant to the effect that the prosecution manipulated the foreman of the grand jury. Moreover, the certificate referred to supra supports the contention of appellant that the indictment was found long after the discharge of the grand jury. Therefore the indictment upon which appellant was tried and convicted was not a valid indictment and as such the issues raised by counsel for appellant as to whether appellant was correctly charged and whether the court below had jurisdiction over him and the case are all tenable and well taken.

Since there is only one grand jury provided by law to sit in session in Montserrado County during a term and there are three sub-divisions of the First Judicial Circuit Court Criminal Assizes responsible to try special cases, to avoid a recurrence of the dubious practice experienced in this case, the prosecuting attorney for Montserrado County should be vigilant in seeing to it that whenever a defendant is to be indicted, the witnesses that will appear before the grand jury to testify must be qualified in that court, which has jurisdiction over the subject matter and the indictment must be returned in the court that has jurisdiction to try the subject matter.

Turning to the body of the indictment and the evidence adduced at the trial, we emphasize that there is a cardinal principal of law that must always be adhered to. A defendant is presumed innocent until the contrary is proven beyond all reasonable doubts. This presumption gives the benefit of the doubt to the accused and it cannot be repelled by any evidence which is not sufficient to establish the fact of criminality with moral certainty.

The indictment states or charges appellant with having received 13 gowns and a cash contribution totaling $11,390.00 into his custody from the Fulah Community in Liberia for the purpose of executing a program in honor of the standard bearer of the National Democratic Part of Liberia, then President-elect Dr. Samuel K. Doe, now President of Liberia, between the 1′ day of December, A. D. 1985 up and including the 30t h day of January A. D. 1986. The evidence adduced by the prosecution’s witnesses fell short of establishing what the indictment has alleged. Not only that, but the judgment rendered by the trial court affirming and confirming the verdict of guilt of appellant and sentencing appellant to make restitution of $13,830.00 and pay a fine of $500.00 is also inconsistent with the indictment.

The evidence of the prosecution’s first witness, whom we noted was the State’s star witness, Karamoko Mamadu Bah, placed on record that gowns and $15,000.00 were donated to the program and that it was appellant who told him that $15,000.00 was realized but that he did not know for certaint that $15,000.00 was realized. He further went on to say that during the investigation held at the NDPL headquarters appellant admitted receiving 10 gowns and not 13 gowns. The testimonies of the other witnesses also raised doubts in our minds because none of them testified that appellant received 13 gowns and cash in the amount of $11,390 into his custody and that those items were converted by appellant into his own use. The entire evidence also revealed that taken for granted that the 13 gowns were received by appellant, 4 of the gowns were properly utilized for the purpose for which they were donated. Not only that, the evidence further showed that Witness Mohammed B. Jalloh and Witness Ahmed Jalloh stated that the amount charged in the indictment and the gowns were never donated. The respective figures, gowns and cash, testified to by them fell far short of what was charged in the indictment. Consequently, the averments or allegations of the indictment have not been proved by the evidence at the trial. As a matter of both fact and law, the indictment does not conform to the crime charged: theft of property.

We do not find it fit to elaborate upon the other issues but rather to pass upon this main issue, which we consider as germane; and this relates to the legal effect of an indictment. The law is that where an indictment is defective, a motion in arrest of judgment should be granted. Gibson v. Republic, 11 LLR 379 (1954). This holding of this Court is supported by the common law which provides that jurisdiction to try and punish for a crime cannot be acquired otherwise than in the mode prescribed by law, and if it is not so acquired any judgment is a nullity. Therefore it was a reversible and prejudicial error and also a miscarriage of justice for the court to have denied appellant’s motion in arrest of judgment.

The Penal Law, Rev. Code 26: 15.51, defines theft of property as follows:

“A person is guilty of theft if he:

(a) Knowingly takes, misappropriates, converts, or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with the purpose of depriving the owner thereof;

(b) Knowingly obtains the property of another by deception or by threat with the purpose of depriving the owner thereof, or purposely deprives another of his property by deception or by threat; or

(c) Knowingly receives, retains or disposes of property of another which has been stolen, with the purpose of depriving the owner thereof.”

Another related provision of the Penal Law is Misapplication of Entrusted Property. Section 51.6 says as follows:

“A person is guilty of a misdemeanor of the first degree if he disposes of, uses or transfers any interest in property which has been entrusted to him as a fiduciary, or in his capacity as a public servant or an officer of a financial institution, in a manner that he knows is not authorized and that he knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted.”

The evidence presented by the prosecution doesn’t fit any of the elements of theft of property; it does not even fit the related offense of misapplication of entrusted property. We are therefore puzzled by what means the jury arrived at a verdict against appellant.

In a criminal case, the trial judge has the responsibility to critically examine what is stated in the indictment and compare it with what is actually testified to at the trial or during the hearing. His instructions to the jury must dwell on any material variance between the indictment and the evidence and he must instruct that the accused is entitled to a verdict of acquittal if there is such material variance.

The evidence produced by the prosecution, being flimsy and at variance with the indictment, and the indictment itself being illegally obtained, the verdict of the trial court and the judgment thereon are fit subject for reversal. Accordingly, we hold and deem it necessary to reverse the judgment of conviction and order appellant discharged. And it is so ordered.

Judgment reversed.