R v Mpasu (1 of 2009) [2010] MWSC 28 (13 January 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CEIMINAL APPEAL NO. 1 OF 2OO9 (Being LIigh Court Ciminal Appeal No.26 of 2O0B) BETWEEN: SAM JOHN LEMOS MPASU.... .. .. . APPELLANT THE REPUBLiC. .... RESPONDENT AND BEFORE : THE HON. CHIEF JUSTICE MUNLO, SC, JA THE HON. JUSTICE MTAMBO, SC, JA THE HON. JUSTICE TEMBO, SC, JA Chokhotho, Mwakhwawa Counsel for the Appeilant Kayira, Kaiebe, Chiundira, Namanja Counsel for the R.espondent Mwaie, Chief Lain' Clerk/Official Interpreter Singano, Senior Personal Secretary JUDGMENT TEMBO, SC, JA The appellant u'as charged with and convicted of three counts of the offence of aLbuse of office contrary to section 95 of the Penal Code before the learned Chief Resident Magistrate at Lilongu,e. He was sentenced to imprisonment for two years on each cor-lnt and the three sentences wcre Lo run consecutivei)'. The appellant appealed to the High Court against the convrction and the sentence. Upon hearing the appeal. Iearned Man.r,unowa, J, delivered the decision of Lhe High Cor-rrt, confirming both the conviction and the sentence. The appellant is aggrieved b1' that decision hence the jnstant appeal before us, b1' which he nravs for a ouashins o[ the conv.iction on al] the three counts end in the aiternative, a reductior-r of the senlence in each count and further for an order that the sentences should run concurrentiy. (rr.u rr r Lv I vv eMv r 16Ir Lu Llrqr The notice of appeal rs supported bv erght grounds of appeal asainsl convicl ion and Tu'o gror:nds of anneal apainst sentence. These constitute the issues for or-lr consideration and determination as follorn,s: that the learned ludge erred in 1au' (a) in holding that the appellanL \^'as a person emplo1,sd in the pubiic sen'ice; (b) by making inferences u'hich \ /ere not supported by facts; (c) by holding that the annellant did an arhjrran ac1 nreirrdinial tn rhe rishfs of rhe MaiaWi Government urhen there was no evidence before the court shou'rng an]' preludice; (d) in holding thar the appellant did an arbitrary acl pre.ludicial to the rights of the Malawi Government when there was no evidence of any rirrhfs thal were so nreiridiced' /o\ 1-"' fi-li-- that the appellant had some gain, financial or otherrn'ise, in the arbitrary act as the finding \-as not supporLed b1' the charge sheet or the evidence: (f) by "rra-''in- tLo ^lement of abuse from fhe alleged arhitrarv ac.l in the rrarul 11116 rt vrar ahsence of anv evidence to sr rnnorT the elerner' ^r ^L"^^' ^-d lo\ in - holding that the arrangement \^'as conciuded by the appellant single har-ided11, contrary to evidence that sholrred that tt \ /aS someone else that conciuded the contract and that other people worked u'ith the appellant and advised him. It is also the contention of the appellant tl-rat the decision, confirming the conviction of the appeliant, \^/as made against tire u,eight of the evidence. Respecting the sentence. it is contended that ei sentence of six years imprisonment with hard labour \^/as manifestlv excessive un6l q,fong in nrincinle in all the circumstances of the case. Fina1ly, it is contended that the learned Sudge erred in lau' b1' Larking into account irrelevant and ulrsupported facts as aggravaring lacLors. ul ar.uL-l 5c, d.]l_ -.--^.-.tL yr uJ uurvvqt qt JrLl 4tJ --rr-, vrvlrrurrL 4lru6uu qvuo! f llrull ^^*"" LrrL \D' Lrl\ vJ \"i G! -'J vl -) We must acknorn,ledgc both rn'ritten and oral lega1 argrlments of counsel for the appeliant ancl for the respondent to inthich we have had ful1 regard in or-rr consicleration and determination of this appeal- Where necessary, we have; expressil, and specificaliy referred to such 1e ga1 arguments in the cor-lrse of this judgment. Wc norn, musl briefly state the relevant facts in the case u'hich are gleanable from the court record and the iudgment of the High Court placed before us. To begin u'ith it is apposile for us to observe that there rs no controvers)', among the interesled partres to Lhis appeal, as to such facts, u,hich are as follows: The offences under consideration in the instant appeal \I/ere allegedli commiLted bv the appellani in or about August and September, 1994. By then, the appellant \ /as a Cabinet Minister responsibie for Educa[ion, during the reign oI the Ljnited Democralic Front PartS'led Governmenl (fho Gnrrerr-rrnent) The Government had then adopled a policy for the provision of free prrmary school education (FPE) to ali pupils enrolled in Government Primary Schools in the counlry. vuvullffrr9rlL vvvuf \Llr\ In the course of seeking to effectivel)' and efficienlif implemenL the FPE poiicv. the appeliant and officials of his Mjnislrv carried out consuitations among themseives. It u'as, through such consuitations, rhar thel ascertained and agreed that the Minist4 would require a iot oI insri-uctional materials, inciuding text books, Leacher's guides, exerci.se books, ball pens and pencils, Ior the ensuing primary school academic vear, then scheduied to commence on 26tL September, 1994. Respecting Lxercise books, the quantities requrred q/ere as fol1orn,s: srx miliion for term 1;tweive million for term 2; and three million for term 3. Besides, it was resolved that the number of teachers required for a successful implementation of the policy had greati\- to be incre ased. hence advertrsements urere published to ensure prompt recruitment of such teachers. A survey u,as then conducted by the officials of the Ministryz e1 Education to ascertain the potential of local suppliers to supply the required amouut of instructional materiais. The srlrve)/ results shou'ed that the local suppliers did not then have in stock the required amount of instructional materiais rn'hich. they could readily have sltpphed in time for the commencement of the first term of the academic year in question. What was required ro be suppiied then was a quantity of three million exercise books. However, it rn'as the view of the 1ocal suppiiers, then, that thel' couid mobiiize such quantity of exercise books from their outstations, only if thel' were granted sometime to do so. It \ /as' therefore, put to the appellant to change the time scheduled for the commencement of the first term, nameil', 26u' September, 7994, to some a later date, in order to accommodale the request of the local suppliers. The appeliant declined to accept the request for the postponement of the prim:rr5' school calendar, on accor-lnt of not wishirrg to be frowned upon or iaughed al b1' the Malau'r Congress Party (MCP) ancl the Alliance for Democracl, (AFORD) for failr-rre to irnplement the FPE programme as earlier scheduled. During the second or third u'eek of August, 1994, the appellant convened, in his office, a meeting of all senior staff in the Ministry of trducation. During thc meeting thc appellant informed his officials that Fieldyork lnternational. a U. K. barsed firm. \'as rcad5' and u'illing to srrnn[' a1] the exercise books and nerrcils u'hich \r'arp rcnrrirc6l hr' t he Ministrv. During [hat meeting a caution was sounded. b5 one of the officials. against anv attempted mo\/e in thc procurement of the required instructionai materials rn'hich i,r'ould flout the iaid dou'n Government procuremenl procedures. yuravirL) oqPl./r.l vvur\J LrrL vru\ !/\vr qrr ru ql "Y r \ Briefll' stated, the procuremenl procedures mandated an1, Ministry or deparLment of Government, intending to procure goods or services, to firsl determine the Vpe or kind and quantity of goods or services intended to be procured. Upon doing so. a Ministq- or a department was required to submit a request in u'rrting to the Central Tender Board for authoritl- to procure the goods and sen'ices. On receipt of a request therefor, the Centrai Tender Board u,ould, bf itself u'ithout any prior auLhorrzation from the Ministry of Frnance, approve of any requesl u'hose vaiue did not exceed the amount of four hundred eighfy thousand Kwacha (MK480,000.00). An1' request for the procurement of goods or sen'ices, u'hose value \ /as in excess of that amount could oniy be approt'ed by the Central Tender Board in ith prior approval of the Ministry of Finance. Where and when the Central Tender Board resoived to annrove of anv recuest made rn i1. the Cerrrral Tender Board was fhe onlv aurthority mandated to issue a colnmunication to a supplier, who or ra'hich \ ras successful at tender, notiff ing the supplier of that fact. Thereafter, the Ministry or department concerned would issue an order Lo the suppiier to suppit'. r L2 Lrrv Yy qu Lr r\ Lv tr-l vr ' -:.-|l "b*"'"' The meeting r.r'as. therefore, informed that such procedures had to be foliou'ed in the buf ing of the required instructional materials and that failure to do so u'ouid be inappropriate for the Ministry of Education. Asainsl the recuirement under the nrocrrremenl nrcicedures and the caution earlier on sounded b), the official duriug the meeting, the appellant. on the nexl day follor.r'ing the dat-e of the meeting. gave instructrons for the issuance of a ie tter of intent to Field1.e1i1 lnt-ernattonal for the procuremer'lt of Lhe follou'ing: 2 million 40 paged exercise books airfreight; 3 million 40 paged exercise books sea freight; 3 million 80 naoed exercise books sea frejpht: and B million nencils rarrraf vvvr\u tutto vir qf tv v lJ!r ) airfrerght. After the letter of intent had been faxed ep lllcl August, 1994, the appellant. informed his officiais that Fieldyork International r.r,i]l definitely honour t.he recluest bl the Ministry. He, therellpol'I, instructed Fteldyork International to lreat [he letter of intent eis a binding order. He also called Llpon his officials to treat it likeu'ise; thus, as effectrng a binding contract. However officiais of the Ministry'. nonetheless, insisted on their advice that a submission be made to the Central Tencler Board for authorit5', oil the part of the Mrnistry', to procllre the re qurred tnstructional materials from Fieldyork International and local suppliers. For that purpose, PW1, the Principal Secretary for Education approached the Central Tender Boarcl for approval of the orclers of the Ministry, 1n that regard, He subseeuentl5. traveled to Biantlrre to discuss the matter r'rrith the Central Tender Board. During such dtscussions PWl \^ras informed b), the Central Tender Board that the Mrnistry.'s orders had to be referred to the Ministrl, of Frnance, for the approval of the Minister, in that the orders \^/ere of the vaiue far in excess of the amount of MK480,000.00. PW1 accepted the position of the Central Tender Board on the matter in that proceeding in that wa)' \'as in compliance urith the procurement procedures. On his return trip to Lilongvrs, pV/1 passed through Mangochi urhere the appellant u'as at the time, to brief him accordingil.. Pw1 found the appellant engaged in discussions with officers from Fieldr,'e1[ international. On its part, thereafter, the Central Tender Border indeed referred the matter to and for the approval of the Mrnister of Finance, who approved the orders for procurement from local suppliers on1y. He withheld his approvai of the orders from Fieldyork International due to what u'as saici to be lack of proper anail,sis. In that regard, it was the testimonv of PW 1, that eventua11l, Fieldt'ork internatronal sent a proforma invoice of s1,93o,0oo.oo u,jthout anJ' breakdou,n of hou, Fieldyork International had arrived at that figure. upon receipt of the letter of intent dated 2g,d August, rgg4, Fieldyork Internatioual gave its response on 29th August, tgg+, stating that they u,ould deliver the required instructional materials as follorn,s: two million exercise books b]' arr; three miliron 40 paged exercise books by sea; three million B0 paged exercise books b), sea; ancl three million penciis by air. B], then Fieldyork International also sent a proforma invoice dated 26tr, August, r994, for GBp 1.93 mi1lion. As stated aboye, the invorce did not specrf]', ot have the breakdou,n of, hou, tirat amount \ ras arrl\/ed at. Wiren the Fieldyork Internationerl invo jce was presentecl for pavment, the Reserve Bank tnformed the Ministrlr sf Education that it haLd no forcign cxcharngc resourccs to correr the bill. lnstead the Reserve Bank, through its orn,n initrative, est-ablished that the Malauti Finance Companl in London rn,ould iravc sr-rpplied thc' sarnc' quantjt)' and qualitr of materials at abottl a quarter of the price demanded b), Fieldyork lnternational and on favourable terms of Palrment, given the forex shortage. This fact \ /as communicated to the appcllant bl, Lhe Governor of the Reserve Bank lo no avail. Whilst the Governor of the Reserve Bank was waiting for a response from the appellant on the proposal to have the instructional materials procured from the MaLau'i Finance Companl in London, in that such procurement urould be cheaper and on farrourable payment terms given a severe shortage of foreign exchange then experienced b]' the cor-lntry, Fieidyork international sent to Malar.l'i a Russian Chartered plane u,ith a ful1 load of such materiais. The aircraft landed at the Kamuzu lnternational Airport on 23'd September, 1994, prior to any annroval for the nrr\/-rrrFmcnr hejns granled br'1he Central Tender BOafd -l-Y'" and the Ministry of Finance. This was in compiete disregard of the Government procurement procedures then in force . Eventually a payment of G8P300,000 was made in order to allou' the charlered plane to leave Malawi territory so as to avoid any embarrassment being caused to the Government and the peopie of Malawi. The consignment had immediatell' been distributed to all the districts of Malawr b1' uss of ten trucks, hired for the purpose. Since there were no warehousing facrlities at Kamuzu International Airport (KIA), the consignment of such materials could not be checked before disrribution to verif)' the quantlties actuall1' received from Fieldvork International. It is. among other things, against the bacl<ground of the foregoing facts that the High Court confirmed the conviction of the appellant on three counts of the offence of abuse of oflice contrerry to section 95 of the Penal Code, which provides as follou,s - "At^ty person u,,ho, being emploged in the public seruice, does or directs to be done, in abuse of tl'te authority o-f ltis offtce, any arbitratu acl prejudicial to the nghts of another shall be guilty of a misdeffLearlour. If the act is done or directed to be done for purposes of gairu Lrc shall be, guiltg of a felong and shall be liable to impisonment for three Ltears. . ." To begrn u'ith, did the lcarned .judge err in lar,r' in holding that the appellant was a person emplo1,si in the public serrtice? Learued Counsel for the appe iiant have strongil, argued that the learned j udge in fact erred in so holding. In part, thetr harre ci|ed and relied on tu,o decisions of thts court in the cases of The President of the Republic of Malawi and Speaker of the National Assembly -vs- RB Kachere and Others MSCA Civil Appeal No. 20 of 1997; and Fred Nseula -vs- Attorney General and Malawi Congress Party MSCA Appeal No. 32 of 1997. They harte submitted tl-rat the two cascs are authoriw for the viern, lhat the Office of the Minister under our Constitution is not a pubiic office; that the lower court then stated that before emergence of tire two cases, cited hereinabo\/e, on the legal scene , the position at lav, u,'as as provided for under section 4 of the Penal Code, section 2 ol the Penal Code and also section 2 ol the General Interpretation Act. Learned Counsel for the annellant. qf,lJurtqrrLr r,nhen arriving at its decision; that the Kachere and Nseula (supra) cases did not create lau' but rather defined the lau' as provided for in the |gg4 Constitutron. Counsel for the appellant further argued that the 1994 Republican Constitution draws a distinction betu,een political posts held by those urho are elected under the Constitutional provisions as well as the Parliamentary and Presidential Elections Act from persons u'ho hold their posts pursuant to the provisions of the Pubiic Service Act (Act No. 19 of 7994). the.-nrrrt ernnlnrrcrl Frrrrrnc. Irra r fttrther argtted thal rur Lrrur qr 6uuu Lrrqr Ltl(- UULfI L cjllfPlUJ-* 'easonlng !1 -- To begrn q'ith, ure must observe the fact that the two decisions of this court cited hereinabove and relied upon bl. the appellant were made on 20ti'November,7995, and 1Sft March,1999, thus after the date in or about August and September, 1994, u'hen the appellant is alleged to have committed the offences u'ith u,hich he was charged and conrricted of. Besides, the issues before the conrt in both of these cases are not on all fours u'ith those arising in the instant case under section 95 of the Penal Code. In an1' case foliou'ing the making of those decisions b1' this Court, Parliament has passed an Act u,hich essentialiy overrules the effect of those decisions: constitution Amendment Act No. 13 of 2001, amending section 93 (2) of the Constitution as follorn's: "5.93(2) Euety Gouernmertt depantment st:iall be under the superuision of a Pdncipal secretary utlzo shal.l be utzder tlze direction of a Minister or Deputg Ministet' and uLtose office shall be a public office." in considering and determining rhis issue, Lhe learned .ludge in confirming the position taken bt' tire learned Chief Resident Maqistrate on the matter, reasoned as folloi.r,s - ti "The Lower courl placed reliance on sectiotl 4 of tlrc Penctl Code, an^td found that tlte cLppointmenl. of a Minister, t-ucLs in .fact an ctppointrnent Io ct public office. Section 4 o.f ttte Penal Code, prouides: 'Person emploged in the publ.ic setllice', meaTls an'LA lterson |tolding an. A o.f tlrc follouing offtces or perfonning tlze dutg thereo.f, uJtet'lrcr as deput.y ot' othenuise, namelq; (a/ anA ciui! of.fice includirLg the office of the Presidertt, the pouer of appointing a person to wLtich or of rernouing from ulich is uested in the President or in a Mirtister ot' irt anlJ public Comrnission or Board. ..., Consequently, I find as the learned Magistrate did, that itt 1994 uthich is the time when thtese offences are alleged to haue been. committed, the offtce of a Minister u_tas a public office, and that the alcpellant utas public officer, as enuisaged in section 95 of the Penal Code." We caunot agree more urith both the learned Judge and the Chief Resident Magistrate in that regard. The learned Chief Resident Magistrate made his decision on Stt April, 2008 u,hereas rhe learned Judge did so on 27th March, 2009. B), then, the effect of the decisions in the Kachere and Nseula cases made in 1995 and 1999, respectively, had long been repealed b], the Constitutron Amendment Act NO. 13 oi 2OO1. in the ctrcumstances, the applicable lau' in considering and deciding lhe charge made against the appellant \^/ere sections 95 and 4 of the Penal Code. The learned Chief Resident Magistrate and the learned Judge cannot be faulted in that regard. Consequentiy, we dismiss the aonellant s srorrnd of anneal fhat the le:rrred irrdse errecl rn holriinct thnt urt uLl the appellant u'as a persotl employed in rhe pubiic service. vr q.|/lJvql JuuSu lt\JI*^-- .. " Llrq( ruqr lleu Lrr\ ltl t. Harring so determined are \I/e, nonetheless, of the same lzis\ , \ rhighl the appellant marntains b,t, hrs contention that the learned judge erred (b) by making inferences u'hich \ /ere not supported b). facts; (c) by holding that Lhe appellant drd an arbitrarl, aci prejudicial to the rights of the Malau'i Gorrerument rnrhen tirere \ ras no et,idence before tire court shou'ing an5, pre-judice; and (d) rn holdir-rg tirat the appellant did an arbitrarv act prejuaicial to the rtghts of the Malawi Government u,hen there \I/as 1ro evidence of anv rights thal r.r,ere so prejudiced? we deal '"r'ith these grounds of appeal together because they raise and relate to similar rssues of facl. A glance a1 the facts urhich arc contained in the Court record and indecd outlined in the jr-idgmenl nou' appeeilecl againsl, uthich facts we have partral11' outlined irereinabove, readill' and irresistibiy gives the follou,ing impression on the rssues raised b], those grounds of appeal. Thc appellant rn hrs capacitl' as a Cabinet Minister responsible for Education had the authority to oversee the e ffective and efficient implemenlaLion oI the FPE Polic5' oI the Governmeut. in doing so, he was duty bound to ensure that all laid dou,n Government procurement nror:erl nr-es u/ere frrllv ohserved and comnlied r,l'ith bv all nersons in his Ministry, rncludir-rg himscif, who \^/ere concerned in rht prc.rcurement process. Yr I ur r vuuur v-) t-"' "" ""' Lv ouvtt yr vusr Agarnst express cantron from the officrals of his Ministry, the appellant issued directions to his officials for the procurement of instructional materials from Fieldyorl< International in complete disregard of the existing Gorrernment Procurement procedures. No measures \I/ere taken, at the outset, to have the matter referred to the Central Tender Board, an institution urhrch uras then rnandated to effect procurement of goods and services for the Government. in that woy, Fieldyork lnternational was identified and selected for the purpose b1 Lhe fo qt.^L nr^^rrroffian1 nror:edttres of indeed annellant u'i'horr1 rertard qyyvrrqlrL ( u6q1 u vvrLrrvur u'ithout an)' apparent contribution b1' the officjals of his Ministry. Although some senior officials of his Ministq. appear to have carried out some actions themselves, quite apart from the appellant, in the u'hole Drocess of nrocurement of r.nstructional materiais from Freidvork International, it \ /as abundantll, ciear that such officrals did so on express instruclions. and aL the instance. of Lhe appellant.. To that exlent aparL from personalJl' and singularlr' identifl,ing and seiecLing Fieldvork international to be the entitr. to suppl5r the instructional materials in question, Lhe appellanl aiso personaliv drafted lhe ietter of intent in'hich he directed to be issued to Fieldrl,e1ft International b]' his Principal Secretan'. Besides, the appellant instructed Fieldi'ork international and the officials in his Ministry to regard the letter of intent as effecting a binding con trar'1 urif h F-ielrlvork International for the intended procl-lrement. }JrvvvuurvJ I rurvJ !rrrvlrL vr I TLTUJVIA llrLUrllOLlUll(ll VVaJ DLf,UovlfLrurrLrJ It u.as bl r.r'a1 of an afterthought and indeed upon insistence of the officials that tire matter of procurement of rnstructional raaterials from F;^1i"^-r- 1-t^*-at-ional was subsecrlenllv and evenlrraliv referred to the Central Tender Board. Even upon so doing, the appellant conLinued to maintain his di.rect i:usiness lines u'ith Fieldtrork Inte rnational, ^^"^^*-i-^ the arrival of the LUlrLLrlrl.r16 consignment b1' a Russian cargo plane at Kamuzu International Airport, on a date rn'hen the clearance of the procurement had, in accordance r,r'ith Governmellt pr-ocurellelrt procedures. not yet been iinalized u'jth the Central Tender Board and the Minister of Finance. r1-^ irrtended nrncllrement, untii rt.tL\-IlL,{Lu L\vriLuqrr.v rviurl! LrtL qrlu Plu I0 The Governmenl. lhrough the Rcserve Bank and in liaison rn,ith Treasur.l', despitc the foreign exchange shortarge then cxperienced in the r:ottnlrv grttdsinr'lr naid, ro Ficlclvorl< Jnlerrriilion.rl the sum oi GBP 300,000.00 in order to facilitate the departure oI the Russian Cargo plane from the liamuzu international Arrport (lflA) and therebl, 1o avoid an1' etnbarrassment being caused to the Government and the people of Malarn,i. The cost of that consignmerrt. in the vieu' of the Reserve Bank, was sevcral fold higher than Lhe price ar r,r'hich a similar consignmerrt would have been quite cheap11, paid for by the Maiau'i Finance Company; and therefore save the then scarce hard earned foreign exchar-ige for the Government and indeed the Country at largr:. in the circumstances, wi: wouid drsmiss grounds (b)(c) and (d) accordingll'. We so decicje. Next, we must consider u'hether \A/e sharc in the rrieu, of the zrppellant that the learned -1udge erred in finding that the appeilant had some gain, financial or otheru,ise, in the arbitrary act in that the finding was not supported b)' the charge sheel or the evidence. A glance at the charge sheet respecting the three counts of the offence of abuse of office contrarr'r to section 95 of the Penal Code u'ith which the appellant was charged consptcuousll' rerreals the fact that the appellant was merely charged u'ith the misdemeanou.r and not the felony of abuse of office. indeed, the learned Chief Resident Magistrate conceded that fact in his judgment and proceeded accordingil-. It was in our view, therefore, \^/rong for the learned Magistrate and aiso the learned Judge in the High Court to have appeared to have deait rn,ith the appellant as if he had been charged with and convicted of a felon]/ under section 95 of the penal Code. The charge sheet and the evidence on record are silent on the aspect as to i.r,hether the appellant had gain, either financial or othenn'ise. in his or.r'n eloquent tesumoni', the appellanr clearl1' speit out the sole motivating factor behind his actions in the matter; and that the same \4,'as pllrel], and exc1usivel1, political. Thus, the appellant at all cost u'rshed to succeed in the rmplementation of the FpE policy of L'uvcrIuuclrL, or account of not u'jshing to be frou'ned upon or laughed at bt' the Malawi Congress Parh, and the Alliance for Democracy for faiiure Lo implement rhe FPE programme as earlier scheduled. we would accordingly allow this ground of appeal. We so decide. l'^lnrrarrmo^{ ^l- -^. ---i-1^:--- -^ L- f--- ,'^r -- 1 As to q'hether the learned Judge erred in lau' by inferring Lhe element of abuse from the aileged arbitraf, act in the absence oi arry er,idence to support the element of abuse; and in hoicling that the arrangement u'as cotrcluded bi' the appellant single irandedlS' contrary to the evidence that showed that rt \^/as someone else that concluded the contract and that otl-rer people u,orl<ed u,ith the appellant and advised him; u'e have this to sa\.: our discussion above respectrng gror-rnds (b)(c) and (d) fu111, covers and appljes to both of these grounds as u,ell. we, have shor.t'n. hcreinabovc, thal thc appcllarnl singlc' handedh and rndeed u,ithout an\r apparenl contribution from his officiais, rdentrfied and seiected Freldyork International for Lirc' procr-rrement of the instructional maleriais in question. Besides, the appcllant personalll' drafted a letter of rntent rn,hich he direcLed l-ris Principal SecrcteLrl' to issue to Fieldyorl< internatronal. Again \ /e have pointed out that the appeliant had communicated trr F ieldyork Internationai and senior officials in irts Mrnistrl for them to regard the letter oI intent as effecting a binding contract between Fieldyork Internatroual and the Government. We have eLlso pointed it out, herei.nabove , that although some senior officierls from Lhe Ministry appeared to havr carrjed oul some actions. [hemselves, ^,,;.^ ^6arl {*^'- in rhn rphr,16' nr-qlggS flf nrOCt:rement Ol lll insLructional maLerials from Fieldyork lnternaLional. it u'as abundantly clear that such officials did so on express instructions, and at the instance, of the appellant. To that extent, we have demonstrated above hou' that was so. ln the circumstances, we u'ould equaliy dismiss both of those grounds accordrngllr. tLo ^^^-ll-'-r lJr v\ qr u ]JI UvsrJ (]PIJaILA v\ IIUIL rl UiLl YUrLL qlJAl ll Lt Ll lL LliL vr t ln the rcsult. \ /e' dismiss the appeal against convjction in its etrlirefv exr-enl rrith.eoa-d thc !f rLrt uL_v. w^Uvy( Lrrw D^ - ---- hnding that tire appellant had some gain, financial or otherwise, u'hich we harre alloured, in the crrlttnd rtf nr-',npnl /e) rcenentino LU *yyuar r UJPUULarr6 I LSql u v\ lLll (L/ *- We nou' must revert to the appeal against the sentence rn regard to r,r'hich the appeilant has raised two grounds of appeal. It is contended that a sentence of six )rears imprisonment u'ith hard labour is manifestll' excessive and u,rong in principle in all the circumstances of the case. We have alreadv allou'ed the annellant's anneal asainst his conviction oI the offence of abuse of office contrary to section 95 of the Penai Code, as a felon1'. Where a person is charged u'jth an offence, as a felonv, under section 95 of the Penal Code she or he is liable to imprisonment for three years. Whereas, if he or she is charged irurth a misdemeanour, he or she rs hable to imprisonment for turo years under section 34 of the Penal Code. urhich piovides as follows - "W71en in this Code no purtisltmetfi is specially prouided. for any misdemeetrour, it shall be punishable utith a fine or uith impisonment J'or a tertn 716{ gynoorlittn rtt;n lto.ctrs or utith both...." We observe that in the instant case, Lhe appellant u,as sentenced on each count tO tu'o )/ears imprisonment rn'ith hard iabour. This means that the appellant was sr,rbjecr-ed to the maximum purrishment ^.o.^-il-o.l 1." fLe lau,'fOr the Offences in crtestiOn. It iS trite larnr that a maximum penaltv prescribed under an)- penal provision is usualh' and ortlt, reserrzed for imnosition in resoecf of the urorst case scenario of the vlaurrvv9 YuvJLr\ rqvv ruvv Llru Lrr\ rvr vJ flf IL offence. In the ir-rsteir-rt case, rve do not share in the viern' of the learned Judge and the learned Chief Resident Magistrate in regarding the circumstances of the instant case as providing or representing a worst case scenario of the offence under section 95 of the Penal Code. We are of the firm vieu' that, the learned ;udgc erred in iau' in imposing a miu:imum pcnaltl in the ctrcutmstanCes. W(', therefore. pursuelnt to sectron Il (2) of the Supremc Court of Appeal Act set aside a sentence of rmprrsonment for two years on each count ernd substitute for each count a sentence of fourteen months imprisonment, accordingll', to run consecutivell' with effect frorn Btl, day of Apri1, 2OOB, the date of conyiction of the appellant by the Chief ps5jdent l\/lqoiqirqle We So order. DELMRED in Open Court on this 14th d21, of January,,2O1O, at Blantt're. Hon. Chief Justice L. G. Munlo. SC. JA Sionerl Hon. Si on crl Hon. Justice A. K. sc, JA