Edwin Korpoi of the City of Bopolu   Gbarpolu County Liberia, APPELLANT, Versus The Republic of Liberia by and thru  Bob David for the Samaritans Purse, APPELLEE

APPEAL

Heard:  June 6, 2012                                                                                                        Decided: August 16, 2012

MADAM JUSTICE WOLOKOLIE DELIVERED THE OPINION OF THE COURT

Samaritan’s Purse Relief International is a non-governmental organization (NGO) that is engaged in the undertaking of  filtering water  for  rural  inhabitants in  Liberia.  After carrying out an assessment in Gbarpolu  County, the  Organization identified  Kungbor District as a site for carrying out its project of producing safe drinking water for the inhabitants. Appellant was employed by the Organization as a watsan technician and supervisor to   build   water   filters for   the   inhabitants of   the   District.  The private prosecutor accused the appellant of misapplying cement given to him for the project. This matter was brought to the government’s attention which then investigated the allegation   and   proceeded   to   indict   the   appellant   for   misapplication of entrusted property.

The appellant pleaded not guilty to the charge against   him.  A hearing was had in the 16^th   Judicial Circuit sitting in its  November  Term,  A. D.  2009.  After  the  hearing, the appellant   was found guilty   of  misapplication of thirty nine  and  a half  (39.5)   bags  of cement  and sentenced  to four months  prison  term, plus restitution of the  39.5  bags of cement   at  the  cost  when  the  cement   was  purchased.   The  appellant   appealed  the judgment and it is this  appeal  that  is  now  before us for  determination. Our Criminal Procedure  Law,  Section   14.2  requires   that  except   for  petit   larceny  and  other  petit offenses  which are prosecuted by complaint, all other  crimes  shall be prosecuted  by an indictment, which   is  the  formal   accusation  of  a  crime   made   by  a grand  jury   and presented  to the  court  against  the  accused person.  The grand  jury  of a circuit  inquires into  all  indictable offenses  triable  within  the  county  and  which  are  presented  to  it by the  prosecuting   attorney or  otherwise come  to  its  knowledge. If  there  is  probable cause  to believe   a  particular  person  is  guilty   of  such  offense, it shall  charge  him therewith by indictment.

Having been convinced from  all  the  evidence taken  together,  that  there  was a probable cause that the appellant was guilty of the offense of misapplication of entrusted property, the grand jury caused the following indictment to be drawn up:

“The Grand Jurors  for  Gbarpolu County, Republic of  Liberia,  upon  their oath do hereby  find, more  probably  than not, that  the  Defendant Edwin Korpoi, committed the crime of Misapplication of Entrusted Property, a misdemeanour  of the first degree, to wit:

That  based  upon  the  complaint  of  the  private  prosecutor,  Samaritan’s Purse by and  thru  its  Watsan Coordinator,  Mr. Bob David, between  the months of April and May 2009, sixty-five (65)  bags of cement intended to build cement  water  filters  for  Kungbor Community  in the  ratio  of one to one (one bag of cement  to one water filter) were issued to you the within named defendant,  Edwin Korpoi of Samaritan’s Purse, Gbarpolu County, Republic of Liberia, which you defendant received in full according to the waybill.

That according  to  your  Immediate  Boss, Bob David, the  cement  bags in question  were received in the following  manner:  first  five (5) bags to fix the  worksite,  second twenty  (20)  bags for  the  filters, third  twenty  (20) bags for the filters and lastly twenty-five (25)  bags.

That  sixty-five (65)  bags  were  intended  to  fix  sixty-five (65)   cement filters  for

Kungbor  Community. That  you, Edwin Korpoi, claimed  to have received  fifty-five (55) bags instead  of sixty-five (65), even  though  the waybill  showed  that  you Edwin Korpoi  received  or  was  issued sixty-five (65)  bags of cement.

That out of the sixty-five (65) filters that should had been made, you only produced thirty (30) filters; three (3)  for Kungbor and twenty-seven (27) for Borbor Beach.

That it was established by private prosecutor that four (4) bags of cement were  sold to  one Madam Musu of  Kungbor  and  that  you  the  defendant Edwin Korpoi received  L$500.00  (Five Hundred  Liberia  Dollars)  from  one Mrs. Jartu for cement.

That you defendant  decided to bribe your helpers, Mr. Fombah Armah and Francis Johnson along with Samaritan’s Purse Health Educator, Beyan Massaquoi, but they all refused your bribe.

Contrary  to: 4 LCLR Tit. 26, Sec. 15.5l(a);  4 LCLR Tit. 26, Sec. 2.2(b), 4 LCLR Tit. 26,  Sec. 15.6l(b) and (g);  4 LCLR Tit.  26, Sec. 15.54  of the Statutory Laws of  the  Republic of Liberia, and peace and  dignity  of the Republic of Liberia.

When the matter was called for trial by jury, the defense counsel moved the court to waive jury trial, thereby leaving the Judge to be both judge of law and fact. The criminal statute under which the appellant was charged, states:

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

The Liberia Penal Code, Section 15.56.

Setting out to prove its case as charged, the prosecution brought four witnesses to testify.

THE PROSECUTION’S FIRST WITNESS, Mr. James Dayugar, the Based Manager of Samaritan’s  Purse Organization, Gbarpolu County, testified  that  the  Samaritan’s Purse Organization was engaged in  bioscience water filtering  for creeks used by inhabitants in the rural areas. Samaritan’s Purse made some assessment in Kungbor District and came out with a decision to carry out its bioscience water filters project in the District. The Organization sent Edwin Korpoi, the appellant, to the District as the technician for the filters. Sometime later, Mr. James Dayugar said that he got a complaint from his the appellant’s direct supervisor, Bob David, that the sixty-five (65)  bags of  the cement  that  were  sent  to  the  District  were  missing. Having received this report of the missing cement, he called Edwin into his office to Inquire about it.  Edwin told  him that  he knew nothing about the missing cement. When asked how many filters he had constructed, Edwin told him that he had constructed fifty (50) filters. When further asked if, he, the witness went to Kungbor, whether Edwin could show the fifty (50) filters he had constructed. Edwin replied, “yes”. The witness then contacted Bob David to accompany him to the District for the purpose of verifying the fifty (50) filters that Edwin told him he had constructed. On reaching Kungbor, the witness testified that the appellant only showed them thirty (30) filters that had been constructed.

Outlining  the  number  of  cement  that  had· been  sent  to  the  appellant  for  the construction of the filters, the witness told the court that the cement was sent in three  categories: each category had its  own waybill. That the Organization sent seventy-five (75) bags of cement. Sixty-five (65) of the seventy-five (75) bags were specifically for the filters and the other ten (10) were for other purposes.  Since each filter constructed required a bag of cement, the witness decided that he and Bob David go and inspect the warehouse in which the cement was kept. They noticed that the warehouse had not been broken into, but they did not find any cement in the warehouse and Edwin could not say what had happened to the rest of the cement.

Thereafter, Mr. Dayugar said he went around the District to find out about the missing cement. He came across one lady by the name of Musu who usually cooked for them when they visited the District. She told them that Edwin had sold her five (5) bags of cement. Two other persons came up and told him that Edwin received five hundred Liberian Dollars (L$500.00) from each of them, promising to give them cement. Bob David, Musu, Beyan, the appellant himself and some other people were present when these discussions were going on, but the appellant did not deny any of the allegations. The appellant being the supervisor and the fact that he could not show the fifty (50) filters that he said he had constructed, and based on what others had told him, the witness said he told the appellant that he was responsible for the missing cement. The witness testified further that the appellant himself verbally told him that instead of using one bag of cement to a filter, he used three-fourth (3/4) bag of cement to construct a filter, which meant then that for every four filters the appellant constructed, one bag of cement was left over.  The witness calculated that if the appellant constructed thirty (30)  filters using three-fourth  ( 3/4 ) of a bag for each, then there were some 7.5bags of cement that the appellant kept and sold. The witness testified further that the appellant stated to him that in order to sustain himself, he told the boys that  were working along with him to sell the remaining one-fourth  (1/4) bag  of  cement  from  each bag.  With said investigation and statement from the appellant, the witness said he brought the appellant down from Kungbor to Bopolu City where he got the police involved. The police came to the Samaritan Purse’s Compound and arrested the appellant.

THE PROSECUTION’S SECOND WITNESS, Mr. Bob David, the appellant’s

immediate supervisor who worked with the Samaritan Purse as a watsan technician, confirmed the  first  witness  testimony   when  he  testified  that   he  sent  the  appellant  as supervisor of the project in Kungbor District along with Beyan Massaquoi as health educator. Two other causal workers were sent along to go to Kungbor to produce filters that  would provide  safe drinking  water for  the  people of the District. The witness said, he sent seventy-five  (75)  bags of cement for  the project  and they were sent in three categories. The appellant and the others were instructed to use five (5) bags to build a worksite and another five (5)  bags to prepare a room for keeping  the materials;  the  remaining  sixty-five   (65)   bags  to  be  used for  the  production of the filters.  Witness Bob David told the court that he got a call from Kungbor later in  the month of April 2009 that appellant  was coming to meet him about the project. The appellant came to Bopolu with a report that he had produced fifty (50) bioscience water filters. Witness David said he complained that this was not true  since he had gotten  report  that  there  were thirty-nine  (39)  filters  done instead of fifty  (50). The appellant denied the report and said that it was a lie. So witness said he was asked by the Monitoring Evaluator to go and monitor the work; he took along with him the Based Manager, Mr. James Dayugar. Upon their arrival in the District, they found out that only thirty (30) filters had been constructed and they were not in good condition; they were cracked and leaking. When the appellant was asked why the leakage, the appellant said he used three-fourth ( 3/4  ) bag to each filter. This made the filters substandard. The witness said he then wrote his report and submitted it to the office. The office asked the appellant to replace the cement, or it would get the Criminal  Investigation   Division  (CID)  involved  in investigating the case.

THE PROSECUTION’S THIRD WITNESS, Mr. Beyan Massaquoi, testified that he was the Health Educator assigned with the project. An assessment was carried out in Kungbor District after which, in late April, he and the appellant  were assigned to carry out the water filter  project in Kungbor District. The appellant was selected to head the project. Initially they had taken five bags of cement to construct the work site, after  which they  went  to  Bopolu and took  delivery  of twenty  (20)  bags of cement. Because the appellant was about to take his leave, they agreed that Beyan would go ahead and find two other men to work with them to begin the process until the appellant returned from his leave. Beyan testified that he got two men to help  him  start  the  project  and  they  built nine  (9)  filters  before  the  appellant returned from his leave. When the appellant came, Beyan testified that he opened the warehouse and showed the appellant the eleven bags of cement that were left. Later, they got the consent of Samaritan Purse Office to put a floor in one of the rooms in furtherance of an understanding between Samaritan Purse and the owner of the house. In May, another twenty five (25) bags of cement were brought for the project. Since the appellant was not there, Beyan said he received the cement and upon the return of the appellant, he took him to the warehouse and showed him the cement. After reporting the cement, the witness said he then gave appellant the key and said to him, you can now go ahead with your work, since it’s your job. He stated that he  was there  in  May when twenty  (20)  bags of cement  were again brought for the project. He then decided to plaster his own room.

Testifying further, Beyan said he was going to Bopolu for his pay so he suggested to the appellant that they take stock of the cement and have him take a report back to the main office in  Bopolu. The appellant agreed and they counted thirty two bags which was left In the warehouse.   Before going to Bopolu, Beyan said, they had constructed thirty filters.

After his leave, witness Beyan said he went to Kungbor to do a follow up on the filters. When he got there, he decided to take a rest and while he was sitting on his bed, the appellant came into his room and told him that he had used the cement they had left in Kungbor.  He asked the  appellant  for what  purpose, and  the appellant told him that he was stranded and so he used the cement; that Beyan was not to  worry, he knew how to make his report.  Beyan said he told him, he was afraid. Thereafter,  Beyan called and asked Bob David to  come  to  Kungbor as something had happened and he wanted him to come and ratify;  he also wrote a letter  to  Bob David, and later  went to Bopolu where he met  Bob David and the Based Manager in Gbarma. He told them what was going on and they told him that they were going to visit the District. They all went back to Kungbor that same day. It did not take long when the appellant also arrived in Kungbor.

Upon the inspection of project completed, Beyan testified that their bosses found out that  only  thirty   (30)  filters  had been completed. The appellant could not give account of the balance twenty (20) filters as he had reported  to his bosses that  he had constructed  fifty  filters, and he could not account for the balance cement. All of the employees  then  came back to  Bopolu and those on the  project  were taken to the  police  station   for  preliminary  investigation where  they  were  asked  to  write statements  concerning  the  cement issue. They wrote  their  various  statements  and later they  were invited  to the CID Office which carried  out  their  own investigation. The  witness  said  that  the  appellant  later  stated  that  he  was responsible  for  the cement and that he would work and pay for same.

THE PROSECUTION’S FOURTH WITNESS, Detective  Sgt. Emmanuel

Duewanna, CID Commander for Gbarpolu County, testified that on the 12^th  day of June 2009, at 8:00 p.m., Mr. James S. Dayugar  came and reported  to the police that he sent 65 bags of cement  for  construction   of  water  filters  to  Edwin  Korpoi.  Later, on  June  9, Mr. Dayugar  said he received  Information through  one of the  workers.  Mr. Dayugar, that the cement  was missing from  the warehouse. He then went to Kungbor to find out about the missing cement, and when he asked the appellant  about the cement, he got  no good  explanation  from  him.  Based upon  his  complaint, Edwin Korpoi was accused and invited  at the police charge of quarters.  When Edwin Korpoi was asked at the  police station  about  the  missing  cement, he admitted to  receiving  fifty-five (55)  bags  of  cement,  and  he  showed  the  way  he  used  them.  According to  the information that he gave the CID, the witness testified  that  appellant  told them he used 30 bags, the rest  of the cement  he used for the work  site, for his room, and some for food which he permitted the boys to use.

After its fourth witness, the prosecution  asked to admit  into  evidence both its oral and  documentary   evidence.   Thereafter, the   defense   moved   for   judgment   of acquittal; the defense stated that the State had failed to produce sufficient evidence to sustain and substantiate the allegation contained in the indictment.

This motion was denied by the court who ordered the proceedings proceeded with.

The defense took  the  stand  and  produced  its  lone  witness, the defendant  Edwin Korpoi. In his testimony in Chief, he testified as follows:

This year, 2009, I took a leave. April 27, 2009, this leave ended. May 27,  2009, Samaritan’s  Purse entrusted  me  with  twenty  (20)  bags of cement to go and fix some filters in Kungbo. I carried the cement and fixed the filters  that they told me to fix. When I brought my report, the Based Manager, Mr. James Dayugar, asked me to go to Kungbor to see the work I did.  We  went back; I showed him the twenty  filters for the twenty bags of cement. So we came back. The man brought me to the police and prosecuted me. Up to now I don’t know what he prosecuted me for.  I stop here.

Having listened to both sides of the matter and considering  both documentary  and oral evidence, the Judge ruled  that  the appellant  Edwin Korpoi, did misapply  thirty nine  and a  half  (39.5)   bags  of  cement  entrusted  to  him  for  the  construction  of bioscience filters  for the benefit of the inhabitants  of Kungbor District, and therefore found him guilty, sentencing  him to four (4) months imprisonment and restitution of the cost of the cement considering  the price at the time  of the purchase. Our Penal Law, Section 50.7 provides:

A person  who has been convicted of a misdemeanor  may be sentence to imprisonment for the following terms:

(a)  For  a  misdemeanor   of  the  first  degree,  to  a  definite   term  of imprisonment to be fixed by the court at no more than one year.

Excepting  to  the  Court’s  Judgment,  the  appellant  filed  a  ten  (10)  count  bill  of exceptions as follows:

BILL OF EXCEPTIONS

AND NOW COMES defendant  in  the  above  entitled  cause  of  action  and most respectfully  present his Bill of Exception to Your Honor for approval to enable  him  to  perfect  his  appeal from  the  Honorable  Supreme  Court  of Liberia as announced  following  Your Honor’s final Ruling/Judgment on 18th day of December A. D. 2009 as showeth to wit:

1. That defendant in the above entitled cause of action, being dissatisfied with

Your Honor’s final ruling/judgment and having announced an appeal to the Honorable Supreme Court of Liberia, sitting  in its October Term, A. D. 2009, tender in this Bill of Exception consistent with Section 24.7 1LCLR page 388 for the Supreme Court to take judicial seize In order to review You Honor’s final ruling/judgment.

2. Counsel fordefendant  says  and  submits,  that  in  this  jurisdiction, the burden  of proof  lies solely  on the prosecution  of  what  is alleged  in the complaint/ indictment  against  the  Failure o n t h e part of prosecution to prove what is alleged in the complaint/indictment against defendant,  presents the issues of   insufficiency   of evidence, and reasonable doubt which must be settled;
3. Counsel says and submitsthat in the instant case, all the allegations that are made in the complaint/indictment against defendant were not proven during  the  trial  of  this  case by  prosecution  as  Is required  by    For example:

• In count one (1)of the indictment  it is alleged that sixty-five (65)  bags of cement  were issued and received by defendant  intended  to build cement water filters for  Kungbor Community,  at the ratio  of one cement  bag for one water filter, that  which the defendant received in full according to the waybill. But no waybill to substantiate  the allegation  was attached  to the indictment, nor was any shown to the court  during  the trial  of this case, and Your Honor did not ask for it.
• Then in counttwo (2)  of the same indictment  it Is alleged  that  the same cement   was received  by  defendant  as  alleged  by  Bob  David,  In  the following  manner:  five (5)  bags to fix the work site, second, twenty  (20) bags to fix water filters,  third, twenty (20)  bags for water filters and lastly twentyfive (25)   bags   intended   for   no  purpose,   totaling   altogether seventy (70)  bags, here again no waybill  was attached  to the indictment nor was any shown to court during the trial.

(c)That  during  the  trial  Bob David alleged  that  defendant  sold four  bags of cement  to  one  Madam  Musu  of  Kungbor,  but  during  the  trial  said  Bob David  did  not  make  any  effort   to bring   Madam  Musu  to  prove  that defendant sold four  bags of cement  to her, nor did you yourself do so, so no evidence of the allegation.

• It is very clear  that  all  the  allegations   in  the  Indictment   against  the defendant for which he was tried, convicted, sentenced to four months of imprisonment, were not proven  by best/sufficient evidence by prosecution as  is  required   by  law,   thus   presenting   the  issues  of  insufficiency  of evidence and reasonable  doubt  present  themselves,  that  must  be settled as is required  by law, by whom and how?
• The legal settlement of issues of any kind In all cases including this case is by motions; one  is  by the  trial  court  on its  own,  to  move  to  dismiss on grounds of either  insufficiency  of evidence, or on reasonable doubt, dismiss the charge, acquit and discharge defendant, or by the defendant raising the issues and motion  the court to dismiss, or for judgment  of acquittal all in keeping with law that are on the book;
• Counsel says and submits, that Your Honor knows of this provision of the law, and yet Your Honor is ignored It and when the counsel for defendant raised these issues, throughout the trial and finally motion to dismiss the case on those grounds, prayed for judgment  of acquittal  Your Honor over- ruled it and denied them, thus ground to except to your final judgment and announced an appeal.
• Counsel says and submits that a judge is not to make himself a party to any case before him, but  in  this  particular  case, for  reason known  to  Your Honor,  greater  portion   of  your  ruling,  final  judgment   carries  personal defenses defending Your Honor self and castigating the defendant and accusing him of being trained to come to court and lie etc., as can be seeing on pages 29-32,  of the minutes of the final judgment;  all contrary to the ethic  of  judges  rules  and    Partiality,  and prejudicial   nature  was involved;
• That the main issues at bar in this case were left untouched and Your Honor went on to deal with issues less important in the case, the main issues: that is to say, whether or not plaintiff issues sixty-five (65)  bags of cement to defendant as alleged in the indictment;  whether or not defendant received them  and  misapplied  them,  , and  Your Honor  went  on  to  deal with writing of the defendant, etc., all contrary to law;
• That Your Honor denied appellant/movant, defendant motion to subpoena his material  witness, whose testimony  defendant was relying on, denying such motion was damaging to defendant is contrary to Section 17.3(3)  and

10. Counsel finally says and submits that while the court is only to examine pieces of evidence placed before it by the parties.Your Honor chose to extract evidence from the defendant by ordering him (the defendant) to go into your Chamber and write a paragraph from a book which you gave him. Such act not being in  line  with  Counsel for  defendant  prayed and moved  the court  that  said writing  should not  form  part  of  the  evidence against  the defendant  but Your Honor denied said motion  and refused to note defendant’s exception;  thereby making the court a party  to the case, contrary to law.

WHEREFORE AND    IN    VIEW   OF   THE   FOREGOING defendant/appellant/movant most humbly prays Your Honor’s approval of this  Bill of  Exception  to  enable  him  to  perfect  his  appeal  from  the Honorable Supreme Court of Liberia as the law provides.

The appellant’s  bill of exception  counts 1 through  6 challenge  the conviction  of the appellant  on the ground  that the prosecution did not proved the allegations averred in the indictment. The Supreme Court is called upon to review  whether in fact the prosecution produced sufficient evidence to prove that the appellant did misapplied property   entrusted  to  him  in  violation  of  Section  15.56,  so  as  to  warrant   his conviction.

The  indictment alleged  that  the  appellant   was In  charge  of  a  bioscience  water project and was specifically provided sixty-five (65) bags of cement to carry out construction  of water  filters  in  the  Kungbor Community.  The project required one bag of cement  to a filter.  Provision of the cement  was evidence  by  waybills  which were  signed by  those  working  on the  project  in  Kungbor  and evidenced  by  their signature   attesting   to   receipt   thereof.   Although   the  appellant   claimed  he  had received only fifty  five (55)  bags of cement instead of the sixty-five as evidenced by the waybills, he built only thirty  (30)  filters, three (3) for Kungbor and twenty  seven (27)  in Borbor Beach. When the controversy  began for accountability  of the balance cement, the appellant  attempted to bribe his coworkers of the project  which they refused.   The Indictment   alleged   that the  private prosecutor   established   that appellant  sold  four  (4)   bags  of  cement  to  one Madam  Musu  of  Kungbor  and received Liberia Dollar five  hundred  (L$500)  from  one Mrs. Jartu  for cement. Thus the appellant was charged with misapplication of entrusted property.

In proving  Its  allegation,  the  State  produced  four  witnesses  who  overwhelmingly testified  that seventy  five  (75)  bags of cement  were sent  to the  appellant  for the project  in Kungbor. Sixty  five (65)  bags were to be used to build the water filters at one bag to each filter  and the other ten (10)  were for other purposes, like preparing the warehouse where the cement  was to be stored. There were also overwhelming evidence  produced   by  the  prosecution   that   only   thirty   filters   were   built,   and according  to  prosecution’s   witnesses,  James  Dayugar   and Bob  David  who  left Gbarpolu to inspect  the project  when the complaint  was sent to them, even those thirty  built  were  substandard; they  were cracking  and leaking. They testified  that the  appellant  admitted  to  using  three  fourths  of  a bag of  cement  instead  of one whole bag to a filter.

Besides the  oral testimonies  of  the  prosecution’s  witnesses, voluntary  statements said to  have been  made  by  the  witnesses  and other  employees  working  on  the project  when they were investigated   were introduced into  evidence. These statements   presented   into evidence  included   a statement  from  the appellant himself. Two of the employees, Francis Johnson and Fomba Armah statements are summarized  as follows:

Mr. Francis Johnson, a 26 year old male, who worked with the project, wrote at the police station, that  in May 2009, the project  staff  went to Bopolu to take pay; but before going, Edwin Korpoi, the appellant, and Beyan Massaquoi told them that  the balance bags of cement left were thirty-two (32)  bags. Upon their return, they went to check the warehouse but there were only fifteen (15) bags of cement. One of the employees,   Fomba  Armah,   told   him   that   the   appellant   sent  someone  to  the warehouse  for  cement,  but  he, Armah, refused.  Another  time  the  appellant  sent someone to him  Francis Johnson with a note saying that  he should give the person one  bag  of cement,  but he  again refused and  the appellant  himself   came afterwards. Another time the appellant told him to take two (2) bags of the cement, Fombah Armah two (2)  bags, and three  (3) bags to be kept  for Beyan Massaquoi. Francis said that  his little  brother  told him that  trouble  is coming, so all those that were  told  to  take  the  cement  left  the  cement  in  the  warehouse.  The next day someone came for the  cement  and carried It and offered  Francis Armah L$100.00 but he refused the money. So they started making confusion. Francis Johnson said that his brother advised that they take the balance items from  the warehouse such as Crisco oil, four cups and some empty containers.

Fombah Armah, a 19 year  old male  who also worked  with  the project  wrote  that during  the investigation in  some part  of May 2009, the project  staff returned  from Bopolu and went  back to the  worksite. They noticed that seventeen (17)  bags of cement  that  were left  in the warehouse were missing. Previously, when leaving for Bopolu, they left 32 bags in the warehouse but upon their return, only 15 bags were there. Their landlady  who was in possession of the warehouse key told him that she was instructed  to give four (4)  bags to one man identified  as Dorley. The following day he saw a note signed by the appellant instructing him to give a bag of cement to a man with the note. Thereafter, when the appellant came, Armah said he asked him  about  the materials  that  were leaving  from  the  warehouse, and the appellant told him  that  he was aware; that  Armah should leave it with him  as a boss, as he knew how to make his report. After that, the appellant decided to share the balance 10 bags amongst the staff.  Armah said, the appellant  gave him two bags, Francis, two  bags, the  appellant  himself,  three  bags  and  he  kept  three  bags  for  Beyan Massaquoi. Seeing how the cement was handled, Armah said he decided not to sell his, so he left it in the warehouse. To his surprise, when he came to the warehouse later, Armah said he noticed that the rest of the cement was taken away by the appellant. He got angry and went to inform their landlady and she told him that she was going to meet with the appellant. The following day, he met with the appellant and asked for his share of the money from the sale of the cement that was taken from the warehouse. The appellant gave him $LD100.00, and that made him angry; he threw the money back at him and walked away. The appellant walked behind him and told him not to get angry, that he was going to add his money up later.

To substantiate the number of cement sent for the project, the prosecution’s second witness, Bob David, was asked the  question, on the  direct, how supplies were delivered  from  Bopolu  to  the  project  site  where  the  appellant  carried  on  the construction of the filters. He answered that the Organization has a request book in which all requests are recorded. Items from the warehouse based on the request made were accompanied by a waybill. On the waybill are the names of the item(s), the name of the person who made the request, the name of person who transports the item(s) and the name of the receiver.

The records show that the prosecution presented three waybills evidencing the quantity of cement sent. These documents were testified to, marked and admitted into evidence by the trial Judge. One waybill, dated April 28, 2009, was for twenty five (25) bags of cement, and upon delivery  was signed for by Beyan Massaquoi, the prosecution third witness; the other dated May 7, 2009, for twenty (20) bags of cement, was signed for by Edwin Korpoi, the appellant himself; and the third waybill, dated April 20, 2009, for thirty  (30) bags of cement, was again signed for by Beyan Massaquoi.

Despite the testimonies and evidence of waybills introduced by the  prosecution, the appellant  has alleged  in  Count  3  of  his  bill  of  exceptions  that  no  waybill  was produced to substantiate the allegation by either being attached to the indictment or shown to the court during the trial of the case, and the Judge did not ask for it.

We find this totally untrue as the record is replete of presentation of the waybill into evidence and admission by the trial court. For example, the following shows the production and admission into evidence of three waybills:

DIRECT EXAMINATION OF PROSECUTION FIRST WITNESS, MR. JAMES DAYUGAR:

1. Tell this court, Mr.Witness, the procedure or procedures used in transferring materials from Bopolu to the project site.
2. What we do when materials are requested from the warehouse, we use the waybill system. The person that issued the materials from the warehouse, the date the materials were issued, and the location where the materials are going. Once the materials have been issued on the waybill, the requestor signs for the materials, take into the field and they are received here in the project area. That is the procedure.

1. Mr. Witness, by thatanswer you mean that  any material that  is lifted  from  Bopolu to  the project  site is accompanied by waybill, were you to see the waybill could you identify same?

1. Yes.

1. Mr. Witness, I have in my hand a document, I pass it on to you to identify what this is.

1. Yes, this is our waybill.

At this stage, prosecution passed to the court the waybill that has been identified by the present witness for mark of identification.

The court:   The request by the prosecution for a mark of identification to be placed on the instrument just identified and testified to by the witness is hereby granted and said instrument is hereby marked CT/1, so ordered.

1. Mr. Witness, I again pass you the same document. Look at the signature on that document and tell this court whose signature is that.

1. There are three sets of signature on this document, one signature for the person who issued the materials from the warehouse and the other two signatures are Beyan Massaquoi’s and Edwin Korpoi’s, respectively.

At  this  stage, Your  Honor,  prosecution  requests  the  court  to  put  a  mark  of confirmation on the documents.

The Court: The prosecution’s request is hereby granted.

We also find in the records the following questions posed and answers thereto on the CROSS EXAMINATION:

1. Mr. Witness, do you have any document to prove that sixty-five (65) bags of cement were given purposely for the making of filters?

1. I said on the waybill we sent seventy-five (75) bags of cement to Kungbor; however, sixty-five  (65) bags of those cement bags were intended for filter construction and the other ten (10) for other purposes.

DIRECT EXAMINATION OF PROSECUTION SECOND WITNESS, MR. BOB DAVID:

1. Mr. Witness, in your testimony you mentioned about a waybill that was used whenever materialwas  transferred   from   Bopolu to Kungbor, were you to see the waybill will you identify same?

1. Yes.

At   this  stage, prosecution passes you t h e waybill t o reconfirm the document just presented to you.

The Court:   the   request   by  the   prosecution  to   place  a   mark   of reconfirmation on the document is granted and said Instrument is hereby reconfirmed. And it is so ordered.

The waybills produced into evidence and which forms part of the prosecution proof of cement delivered, show features for the signatures of the recipient, the date the cement and other items are delivered. The waybill of April 20, 2009, confirms that Beyan Massaquoi signed for and received thirty bags of cement on April 21, 2009; another waybill shows that on April 28, 2009, Beya’n Massaquoi again signed for and received twenty-five  bags of cement on April 28, 2009; and on the waybill of May 7, 2009, the appellant himself signed for and received twenty bags of cement on May 17, 2001. Total deliveries of cement to the project  as per the  waybills show that seventy  five  bags  of  cement  were  delivered  for  the project,  contrary  to  the appellant’s testimony on the stand that he received only twenty bags of cement, or his voluntary statement  made at the police station that  he received only fifty  five bags of cement for the project in Kungbor.

The best evidence rule which is universally  accepted normally  applies to writings and is evidence of the higher quality available as measure by the nature of the case. We are  convinced by  the  waybills  produced  into  evidence that  the  quantity  of cement sent were seventy five bags. It remained for the appellant who said that he received only twenty bags of cement to deny knowledge of the other fifty five bags sent  and  signed  for  by  his  co-worker  Beyan  Massaquoi which  Beyan said  he reported  to  the  appellant.  Failure  of  the  appellant  to  deny  Beyan’s testimony resulted  to  sufficient  proof  that  indeed seventy-five  bags of  cement was indeed dispatched to kungbor for the project.

Overwhelming testimonies were that only thirty  of the filters  were built, and even appellant’s bosses testimonies stated that  these filters  were substandard because appellant caused the filters  to be built  using 3/4  bag each instead of the one bag required  for each; that  the  appellant  admitted  to  them that  he had the balance cement sold to feed the workers. There is nothing in the records showing an understanding that the appellant was responsible to feed the workers of the project. On the contrary, they all testified that they went to Bopolu at some point to receive their salaries.

The appellant maintained on the stand that he was given only twenty (20) bags of cement for the project in Kungbo, out of which he molded twenty (20} filters for the District  Kungbo but below is the voluntary statement  said to have been made by him at the police station in Bopolu:

I was assigned in Kungbor District along with three (3) boys, namely: Beyan Massaquoi, Francis and Fomba. When I was on my leave, Beyan Massaquol was in charge; he received and signed for cement. In the first instance, I know about fifty-five (55) bags of cement of which five (5) bags to be used for the floor on the worksite. After  my  leave, I went back to Kungbor and met fifteen (15)  filters  on ground along with five (5) bags of cement and (20) bags which Beyan had  received, making it twenty-five  (25)  bags of cement which was reported to me. Thirty-one (31) filters were constructed. Five (5) bags of  cement  were used for floor. Beyan used two (2) bags for his room’s floor. I used two (2) bags for mine also, and another one (1)  bag was taken by Beyan that I was never informed of. One (1) bag was taken by the boys, which I was not informed of. But for the condition in the area where we were, I told my boys  to  be  keeping  half  (1/2)  bag  of  cement  for  our  sustenance whenever they  work. They kept  the  cement  for  two  (2)  to  three  (3) weeks, and we were able to get about 5-7 bags of cement. When I returned, they asked me for sale of the cement and I allowed them. Later Beyan came to the office for his share of the money because he did not get his, but he himself used to be a part of the mission for our food money.

The appellant in his statement wrote, accounting for the fifty five bags of cement as follows:

Five (5) bags for floor to the worksite

Two (2) bags for the floor in Beyan’s room

Two (2) bags also for the floor in the guest’s room

One (1) bag of was taken by Beyan

One (1) bag was also taken by the boys

Thirty-two (32) bags were used to construct the filters

Five (5) bags were used for plastering the guest house

I gave them permission to sell the half (1/2) bag of cement that was saved by them.

On the  direct  examination   regarding  the  voluntary  statement   said  to  have  been made  by the  appellant  at  the  police station,  the  appellant’s  counsel posed these questions to him:

1. Mr. Witness, please refresh your memory and  tell  this  court,  whether you ever  made any statement  written or oral  at  the police headquarters?

1. yes, Sir.

1. How did you make this statement?

1. I gave the statement at the police station.

1. Mr. Witness, by  that  answer  we  want  you  to  please  tell  this  court whether  you wrote the statement.

1. I gave the statement and It was written.

1. can you remember ever signing said statement Mr. Witness? A. Yes, I signed it.

At this stage the counsel for defendant rest with the witness on the stand with the usual reservation for redirect if the need exist. And submit.

There is inconsistency in the testimony and the voluntary statement that  appellant said he dictated and  signed. In his  testimony  on the  stand  he said that  he  was entrusted  with  only  twenty  bags of cement, but In his statement  to the police, he said, I know  of fifty  five (55)  bags of cement.  He then outlined how he used the fifty five bags.  The Supreme Court has held that conflict in testimonies  goes to the weight of the evidence, Forleh  et al vs. R.L, 42LLR 23,

39, (2004); This Court in the  case, Kpolleh  et  al vs. Republic,  36LLR 623

(1990)  ruled  that  an accused who when he takes the stand fails to explain Incriminating facts and circumstances in  evidence, takes the  chance of reasonable inference  of guilt  which the jury  may properly  draw from the whole evidence. Besides, the uncorroborated evidence of an accused is insufficient   to establish his innocence, especially where the evidence against him is clear and convincing. Toe vs. Republic, 30LLR 491 (1983); Davies vs. R.L. 40LLR 659, 683 (2001). Besides his lone testimony  that  he had received only twenty  bags of cement  and had constructed  twenty filters,  appellant made no attempt  to dispute the allegations made against him by his co-workers, that he had misapplied  the cement  given for the filter  project  and had tried  to bribe them  and prevail  on them  that  he could handle the issue and they  were not to worry. Beyan Massaquoi, prosecution third witness, testified  that  when he received  the  cement delivered for the project  in the appellant’s  absence, upon the appellant’s  return, he took him to the warehouse and accounted to him for the cement received. This was not denied by the appellant. ·

The  appellant  in  count  3(c)  of  his  bill  of  exception  states  that  Bob  David, the prosecution second witness, alleged that the appellant  sold four bags of cement to one Madam Musu but  during  the  trial  the prosecution  did  not  make any effort  to bring Madam Musu to prove that the appellant  sold four bags of cement to her, nor did the Judge do so.

Firstly It is not the prerogative of a judge to cite a witness to prove a case brought before him as he is to exercise neutrality and impartially In all matters before him. It is encumbered  on a party  who alleges a crime  to prove  it and the judge  sitting without  a  jury  is  only  to  determine   the  issues of  fact  presented  and  make  a determination thereon. Our Criminal Procedure Law, Section 20.3. states, “Issues of fact shall be determined by  the court  in cases in which trial by the jury  has been waived. In a case tried without jury, the court shall make a general finding.

We agree that the testimony  of Musu herself would have been given a greater weigh in the determination of the evidence produced by the prosecution, but that did not rule  out  the testimony  given  by Bob David, that  upon his  own investigation,  one Madam Musu told  him  in  the  presence of the  appellant  and others that  appellant sold her four bags of cement. He testified to what was told him, and any evidence that assist in getting at the truth of the matter is relevant a nd admissible unless because of some legal rule, it is declared incompetent. The appellant did not deny this allegation when he took the stand. In fact the prosecution witness, Dayugar, said on the stand that the appellant was present when the statement was made by Musu and he did not deny it. Failure by a party to dispute a claim amounts to an admission. Civil Procedure

Law Rev. Code 1:  9.8 Defenses and objections; Inter-Con Security  Systems vs Miah and Yarkpawolo, 38LLR 633, 650  (1998). The Judge was therefore  to weigh and determine  the credibility  of this testimony  along with  other  evidence  produce  by  the  state  and  make  a  determination   as to  the greater  weigh and  sufficiency  of the evidence produced, and determined  whether there  was preponderance  of  evidence  which left  no doubt  as to  the  guilt  of  the appellant.  It is  the  law  extant  that  the  evidence  to  obtain  conviction  in criminal cases, there must be proved beyond all reasonable doubt as to guilt of the accused. Tolbert vs R.L, 19LLR 251, 263 (1969)

Counts 7, 8, and 10 of appellant’s  bill of exceptions accuses the judge of spending greater  portion  of  his  ruling  on defending  himself  and  castigating  the  appellant, based on the  counsel for  appellant’s  objection  to  the  admission  of writing  of the appellant  that  had been extracted  from  the appellant  when the Judge request the appellant  to go into  his Chambers and write  a paragraph  from a book in which he gave him.

A review  of  the  record  in  the  file shows the  following  after  the  close of  crossed examination of the appellant by the prosecution:

Court Questions:

1. Mr. Witness, duringyour  testimony  in chief,  you did say that  you made  a statement at  the  police  station  and  that  you  submitted same to the officer Interrogating  you. My question is whether or not the statement were made by you or written by you?

1. The statements were made orally by me.

1. By that answer Mr. Witness, the court wants to know whether or not you can write.

1. Yes, Sir.

1. Do you also read?

1. Yes, Sir.

1. Who then did the written statement in your behalf?

1. The investigation officer investigating me at the police station.

1. By that answer Mr. Witness, did you read the statement after it was written?

1. Yes.

1. Mr. Witness, I hand you one clean sheet of paper and a paragraph taken from one  book,  please  go  in  my  chamber  and  sit  there quietly  and have said paragraph  written  in your own penmanship. You may now proceed.

At this stage, counsel for the defendant prays to inform court and his Honor that he has rested with the production of oral testimony, by that [appellant] has rested in toto with the production of evidence with the usual reservation to produce rebuttal evidence, and faithfully submits.

As can be read from the records, counsel for appellant did not object to the action of the judge handing the sheet to the appellant to go into the Judge’s Chambers to write a paragraph. In fact, after the presentation of the sheet to the witness, the judge proceeded to further question the witness and after the court rested with the witness the counsel for appellant rested evidence in toto. The matter was then assigned for final argument the next day. It was upon the appearance for argument by the parties that the counsel for the appellant raised the issue of the Judge request to have the appellant write in his chambers and challenge the admissibility of the writing into evidence.

Portion of the Judge’s ruling referring to this issue reads:

This Court want to inform the parties, both defendant and prosecution that the Judge who is presiding over this case is not a nonsense lawyer or Judge. To be specific, this Judge is a trained security one who had gone through security training for two consecutive years in the white man land and at the university level as part of his legal training. And therefore will not allow any party litigant or lawyers, to mislead the Court. This Judge shall use all his expertise to render a fair transparent judgment that comes before him. To be specific, after the two lawyers, prosecution and defense rested in total with the production of both oral and documentary evidence, direct and cross, it was left with the Court under our procedure, to ask questions to the defendant. And one question that was posted to the defendant was whether or not he can read and write, and he said yes. It was from this question that the Court asked him to go into the Judge’s Chambers to write a single paragraph so as to convince the Court whether he actually wrote the purported voluntary statement at the police station.

After he [appellant] returned in thirty minutes time, he served the Judge with the copy of the paragraph in his hand writing. The Judge being a criminal lawyer, did compare the writing of the defendant with that of the voluntary statement that was made at the police station. We shall return to that specific later.

Regarding this issue of admissibility of the writing of the appellant ordered by the

Judge, we look at the following answers to questions put by the Judge to Sgt.

Emmanuel Duewanah.

1. Mr. Witness the voluntary statement that you alluded to have been written by the defendant, who wrote the statement?

1. The statement was written by the defendant himself.

The Judge acting as both judge and jury, alleged in his ruling that he had gone through security training for two years as part of his legal training and he could use his expertise to render a fair and transparent judgment of matters that come before him.

We wonder why the Judge needed to go through such great length to find out whether the appellant wrote the voluntary statement. The Judge’s request that the appellant write a paragraph to inform his decision in this matter, we say, was unnecessary in determining the truth of whether or not the statement was made by the appellant. Looking at the questions posed to the appellant by his own counsel on the direct examination, written supra, the appellant admitted to making a statement at the police station. He said that he gave the statement and it was written. He also admitted that he signed it. In answer to the Judge’s question whether he could read and write, he answered, yes.

A party’s admissions are always competent evidence against him or her, and they may be used either as substantive evidence or for the purpose of impeachment. Voluntary statement which was not denied by the appellant must be deemed as admitted. The Judge’s attempt to establish that the appellant indeed wrote the statement himself did not have any bearing on the appellant’s testimony which admitted that the statement was dictated and signed by him; and his admission that he could read. This Court has said admissions made by a party are admissible against him. Republic vs. Tolbert et al., 36LLR 739 (1990).

In Count 9 of appellant’s bill of exceptions, he also states that the Judge denied the appellant’s motion to subpoena his material witness whose testimony defendant was relying on, denying such motion was damaging to defendant contrary to section 17.3 of our Criminal Procedure Law.

We must rule out the claim by the appellant that the Judge denied his request to produce a material witness to testify on his behalf. We must emphasize here that we have read and re-read the records in this case thoroughly in order to substantiate this claim of appellant from the records and nowhere have we seen that the appellant’s counsel requested for subpoena of a witness, likewise a material witness, after he rested with the appellant on the stand. The records reveal that immediately after the appellant lone testimony, the cross examination and the court’s question posed to him on the stand, the appellant’s counsel rested with evidence. We have quoted this portion of the record above. Also in appellant’s brief and argument before this Bench, this issue was never brought up. This Bench frowns on a counsel which tries to mislead the court charging in his bill of exceptions an issue that was never part of the proceedings below. RULE 4 of our code for the moral and ethical conduct of lawyers states that a lawyer’s word of honor is sacred and his dealings in all matters and on all occasions should not be such as repugnant to his oath, and degrading to his profession. The deliberate inclusion of counsel of appellant’s Count 9 in the bill of exception was highly unethical and we must warn the counsel that any repeat by him in the future to deliberately include untruth in his bill of exception with the aim to mislead this court will lead us with no alternative but to take disciplinary action against him.

We are however surprised that the Judge who granted the appeal did not make any reservation on the bill of exception when it was presented to him to be signed. Our Civil Procedure Law Rev. Code, 1: 51.7 states.  The appellant shall present a bill of exceptions signed by him to the trial judge within ten days after rendition of the judgment.

The judge shall sign the bill of exceptions, noting thereon such reservations as he may wish to make. The fact that no reservation was noted to the appellant’s Count 9 of his bill of exceptions is a clear indication of our judge’s failure to read and attach importance to issues raised and papers filed before them, especially when this court has ruled that an approval of a bill of exceptions by a judge without expressly noting reservation admits to correctness of the bill of exception and adopts material statements which precede his signature. Wilson vs. Firestone Plantation Company and the Board of General Appeals, 34LLR 134, 148-149 (1986).

Having reviewed the records in the file brought before us„ we disagree with the appellant in this matter that the allegations in the indictment against him were never proved. There were overwhelming evidence produced by the prosecution that Samaritan Purse delivered sixty five bags of cement for construction of sixty five filters; that only thirty filers were constructed; that the appellant who was in charge of the project could not account for thirty-five bags of the missing cement; that the appellant sold some of the cement to the inhabitants of the district where the filters were being constructed; that the appellant cause the workers on the project to used 3/4 of each bag to a filter instead of the full one bag required and sold the balance 1/4 of each bag; thereby, causing even the thirty filters that were constructed to be substandard as the full amount of cement was not used; that the appellant tried to bribed the workers when questions were raised about the disappearance of the cement in the warehouse.

Principle of criminal procedure law is that the State must prove defendant’s guilt beyond reasonable doubt. Overwhelming oral and documentary evidence were produced and corroborated by all of the prosecution witnesses in support of the indictment. The uncorroborated testimony of the appellant was insufficient to establish his innocence where evidence against him was clear and cogent. This Court has said a defendant may not be set free on the strength of his lone testimony as against those given by two or more witnesses. Republic, Forleh et al. vs 42LLR 23, 38 (2004).

There is no doubt in our minds from the records in this case that the prosecution proved that the appellant misapplied the cement entrusted to him to construct water filters to ensure the provision of safe drinking water to the inhabitants of the Kungbor District, in Gbarpolu County. From our calculation of the sixty-five bags allocated for the construction of the filter, the appellant could not account for thirtyfive, bags of cement, since only thirty filters were constructed. That from each filter, the appellant told the workers to save 1/4 bag to be sold for food; this amounted to the savings of seven and a half bags of cement from the thirty bags used to construct the cement. Therefore, the total bags of cement misapplied were forty two and a half (42 1/2) bags.

Let us interject that the Samaritan Purse Relief International is a non-governmental organization operating in Liberia, developing bioscience water filters which are constructed in areas where the inhabitants use creek water for drinking. Like other international non-governmental organizations, Liberians are usually employed to carry out the activities of these organizations. We need not emphasize the health hazard of rural inhabitants whose drinking water is taken from creeks. It is therefore disheartening that a fellow Liberian working with this Organization and who has an opportunity to ensure better health for his people by providing safe drinking water could be so dishonest as to use up the materials given for such a project, much to the detriment of his fellow citizens.

This case presents a case of the overwhelming impunity prevailing in our society, where Liberians who have an opportunity to work with international organizations to carry out various social activities for the development of our people, particularly in the rural areas, have misapply materials and other resources intended to carry out these projects. This Court frowns on such behaviour and will not condone any of such behaviour when brought before it, particularly where there is overwhelming evidence produced as to the dishonesty of the accused, and we are left with no doubt about the commission of the crime by the accused.

This Court having found on the basis of the evidence presented that the appellant did indeed commit the crime of misapplication of entrusted property as charged, hereby confirms the judgment of the trial judge as herein modified: that the jail term of (4) months, the appellant Edwin Korpoi was ordered to serve, be increased to six (6) months as a deterrent to others likewise to desist from carrying out similar act; that restitution be made for forty two and a half (42 1/2) bags of cement as deduced from the evidence presented, instead of thirty-nine (39.5) bags as erroneously adjudged by the trial court.

 It is further ordered that where appellant fails to restitute the forty two and a half (42 1/2) bags of cement, or the value thereof calculated at US$10.00 (ten United States dollars) per bag, or its equivalent in Liberian dollars, the appellant, Edwin Korpoi, shall serve one month for every US$25.00 (twenty five United States dollars) as prescribed by statute until the full value of the forty two and a half (42 1/2) bags of cement is liquidated. AND IT IS HEREBY SO ORDERED.

The appellant was represented by counsellor Elijah Y. Cheapoo, Sr., of the office of the Public Defender for Montserrado County, and the appellee was represented by counsellors M. Wilkins Wright, Solicitor General of the Republic of Liberia, Samuel K. Jacobs, Senior Legal Counsel, Ministry of Justice and E. Boakai Harvey, Legal Counsel, Ministry of Justice.