Monrovia-August 20, 2021:

Here is the full text of the supreme Court, in the case J. Brownie Samukai, Joseph P. Johnson and Nyumah )
Dorkor of the City of Monrovia, Liberia……Appellants )
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Versus ) APPEAL
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The Republic of Liberia…………………………Appellee )
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GROWNING OUT OF THE CASE: )
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The Republic of Liberia……………………….. Plaintiffs

Here is the full text below:

IN THE HONORABLE SUPREME COURT OF THE REPUBLIC OF LIBERIA
SITTING IN ITS OCTOBER TERM, A.D. 2020

BEFORE HIS HONOR: FRANCIS S. KORKPOR, S.R.…………..……………CHIEF JUSTICE
BEFORE HER HONOR: JAMESETTA H. WOLOKOLIE……………ASSOCIATE JUSTICE
BEFORE HER HONOR: SIE-A-NYENE G. YUOH…………….……..ASSOCIATE JUSTICE
BEFORE HIS HONOR: JOSEPH N. NAGBE………………….……..ASSOCIATE JUSTICE BEFORE HIS HONOR: YUSSIF D. KABA…………………….….. …ASSOCIATE JUSTICE

J. Brownie Samukai, Joseph P. Johnson and Nyumah )
Dorkor of the City of Monrovia, Liberia……Appellants )
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Versus ) APPEAL
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The Republic of Liberia…………………………Appellee )
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GROWNING OUT OF THE CASE: )
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The Republic of Liberia………………………..Plaintiff )
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Versus ) Theft of Property, Criminal
) Conspiracy, Misuse of Public ) Money, Economic Sabotage &
J. Brownie Samukai, Joseph P. Johnson and Nyumah ) Money Laundering
Dorkor of the City of Monrovia, Liberia……Defendants )

Heard: November 18, 2020 Decided: February 8, 2021

M.R. JUSTICE KABA DELIVERED THE OPINION OF THE COURT

This case concerns the interest and welfare of men and women in uniform of the Armed Forces of Liberia. Men and women who have sworn an oath to defend the Republic of Liberia’s territorial integrity with their lives, the most precious gift of God. Realizing and in recognition of this ultimate sacrifice these gallant men and women continue to make in defense of the Republic, the Legislature in 2008 enacted into law the New Defense Act of 2008 repealing the National Defense Law of 1956, the Coast Guard Act of 1959, and the Liberia Navy Act of 1986. This New Defense Act of 2008 provides under Section 10.3 as follows:
“10.3 Pension for Veterans of Armed Forces of Liberia

(a) A service member in the Armed Forces of Liberia, who honorably service the AFL up to retirement age, shall be entitled to a monthly retirement pension based on years of active service. The projected costs of annual pensions shall be submitted by the Ministry of National Defense in the annual defense budget for approval by the Legislature, provided that such cost shall not be less than 50% and not more than 60% of the personnel’s last pay during active service.

(b) A service member who incurs a service-connected disability during his or her period of military services shall receive a monthly disability pension; the amount to be determined by the Minister of National Defense, advised by the Chief of Staff of AFL consistent with policy set [by] the Ministry of Defense and approved by the Legislature.”

The undisputed facts culled from the certified records before this Court show that J. Brownie Sumakai, former Minister of National Defense, co-appellant herein, having consulted with the AFL’s high command sometime between July and August 2009, established the compulsory savings scheme for members of the AFL to augment the benefits accruing to service members under the Pension Act. The scheme requires members of the AFL to make compulsory monthly contributions from their salaries. An Ecobank Account No.1092-522-22019 bearing the title “AFL PENSION ACCOUNT” was created for that purpose. Co-appellant Sumukai and former Comptroller J. Nyumah Dorkor, also co-appellant, cosigned the said account as signatory “A” and “B”, respectively. Later, Joseph P. Johnson, former Deputy Minister for Administration of the Ministry of National Defense, also a co-appellant, became the third signatory to the AFL Pension Account and cosigned as an additional signatory “A”.
The purpose of the compulsory savings scheme was to supplement the Government of Liberia retirement benefits to the men and women in uniform at the end of their active service to the country and cater to those who may have sustained disability during active service. This scheme was operationalized by deductions made from the salaries of the rank and file of the AFL service members ranging from US$5.00 to US$75.00 depending on the ranks of uniform personnel from 2009 up to and including October 2017.
The scheme claimed public attention when, in early January 2018, women claiming to be wives of uniform men staged protests for an accounting of the savings scheme. In response, the High Command of the AFL and the Liberia Anti-Corruption Commission (LACC) launched separate and independent investigations at different times. The findings of these investigations as culled from the records on this appeal informed the indictment brought against the appellants at the behest of the Government of Liberia. Pertinent excerpt from the report of the investigation of the LACC reads as follows:
“During the viewing of bank statements, letters of authorization from the Ministry to Ecobank to pay retired soldiers’ benefits and copies of Manager’s checks issued is based on ranks:

1. From the payroll examined, we discovered that the AFL contributory pension plan is based on ranks:
Insert table
Relative to pension policy for this fund, there is a draft policy which we read but is yet to be approved to educate personnel making these contributions.

2. Documents reviewed from August 2009 to March 2014 uncovered seventy six (76) AFL Pension checks remitted by the Ministry of Finance to Ecobank to be deposited into the account amounting to USD1,013,469.68 accruing interest of USD38,473.51 and withholding tax on interest of USD3,140.35 payable to Government of Liberia, Ecobank also charged the account USD60.00 for six (6) checks issued to pay six (6) retired AFL personnel.

More to this, the bank also charged the account of USD60.00 from September 2011 to December 2011 as a maintenance charge.

3. In viewing the bank statements, we discovered that on April 25, 2012, Ecobank wrongly posted USD13,230.50 to the account; this was later reversed because of an overstatement.”

The report of the AFL high command investigation, incorporated in the LACC’s report, found and concluded that a significant portion of the transactions affecting the AFL Pension Account was unrelated to the purpose and intent of the creation of the account. The report recommended that the AFL Pension Account remain separated from the Ministry of the National Defense’s operational expenses and that no withdrawal should be made against the account until a clear policy is adopted to manage the account. Excerpts from the AFL high command’s report are as follows:
“6. The following findings were established during the overview of the bank account statements:
a. That USD account was opened at Ecobank on July 1, 2009, with account number 10929522222019 titled AFL Pension Funds, Saving Account.
b. That the Minister of National Defense and the MoD Comptroller were the signatories to the account up to October 2017 prior to handing over the account to the AFL.
c. That the first deposit to the account was August 26, 2009, with Eleven Thousand Two Hundred and Sixteen United States Dollars Forty Cents (11, 216.40)
d. That apart from the pension fund, there were other funds deposited into the account.
e. That on August 31, 2011, the account number was upgraded from 10929522222019 to 0013174717655601.
f. That from July 2009 to November 3, 2017, a total of 103 deposits for pension fund and other deposits were made into the account in the sum of 1,943,971.99 USD; see details at Annex E.
g. That the balance sum in the account, as at November 8, 2017, is 688,964.96 USD; details are at Annex E.
h. That there were several withdrawals from the account for disbursement to deceased families and retired AFL personnel as well as other withdrawals not meant for the purpose for which the account was intended for. The total amount withdrawn to cater for deceased families and retired personnel was 147,303.20 USD, which is attached as Annex B. Similarly, the sum withdrawn from the account not meant for the purpose the Scheme was created was 1,147,656.35 USD as in Annex D. The total interest accrued in the account from July 2009 to November 3, 2017, is 118,188.15 USD which is attached at Annex C. The summary of all transactions as contained is at Annex E.
i. That there were inconsistencies in the payment into the Pension Funds Account where monies were paid in part and, at times, not within the specified period.
j. That the AFL pay roster did not reflect each personnel contribution to the Scheme. Deductions were usually done by calculating the number of personnel as per rank and deduct the money and pay the cumulative total into Pension Fund Account. Therefore, the MoD does not have comprehensive data of each personnel contribution to the Scheme.
k. That there has been no approved policy governing the management of the said fund. However, Headquarter AFL has submitted a draft policy on the management of the Pension Fund to the Ministry of National Defense for approval.
l. That the payments of funds to the beneficiaries were done at the discretion of the Minister;
m. From the period the AFL took over the account, there has been no withdrawal made from the account.
n. The Eco Bank Statement balance contradicts MoD’s balance statement.
CONCLUSION
Based on the findings, the AFL Pension Account had many transactions other than what it was intended for. Moreso, there has not been comprehensive data of each personnel contribution into the account, but deductions were made as per the number of personnel in rank and paid cumulatively into the account. The Committee also observed that there was no mechanism put in place to inform the personnel of their monthly contributions. Thus, there was no written policy guiding the management of funds in the AFL Pension Account even though troops were aware that the funds were meant for deceased families and those retired personnel. There was, therefore, the need to give appropriate direction on the proper management of the funds.
It is worth noting that co-appellant Samukai, in his capacity as Minister of National Defense, on January 18, 2018, addressed the media and confirmed the foregoing findings and conclusion of the AFL investigation. We quote verbatim the press statement as follows:
“January 18, 2018
STATEMENT BY THE GOVERNMENT OF LIBERIA ON THE CONCERNS RAISED BY FAMILIES OF AFL PERSONNEL ON THE UTILIZATION OF FUNDS IN THEIR WELFARE ACCOUNT READ BY J. BROWNIE SAMUKAI, J.R., MINISTER OF NATIONAL DEFENSE
It has come to the attention of the Government of Liberia that wives of personnel of the Armed Forces of Liberia have raised concerns over the utilization and management of funds deducted from their family members serving in the AFL that were deposited into a pension fund account. They were concerned that funds used from this account on AFL activities should not have been used for that purpose, but that the government should have provided funds in the budget to cater to the welfare of personnel of the AFL.

You may recall that in August 2009, the Ministry of Defense established a contributory savings involving deductions from all ranks of the AFL for their welfare and supplementary pension benefit after their years of honorable service. As of October 2017, the amount of USD2,062,160.14, including accrued interest, was collected and deposited into that account at ECOBANK. It has been established that about USD1,147,656.35 were spent on the AFL, and the balance in the account is USD688,964.96 as of November 8, 2017.

Following this outcry by families of AFL personnel on the status and utilization of said account, the Chief of Staff of the AFL ordered an immediate investigation by a Board of Inquiry (BOI) to determine the status, utilization, and balances of said account. The findings of the report established the following facts:

1. That the Ministry of National Defense did not establish guidelines nor a clear policy on the utilization of this welfare account;

2. That the Ministry of National Defense did not provide timely information to personnel of the Armed Forces of Liberia on the operation and utilization of said account;

3. That the Ministry of National Defense authorized the expenditure of funds from this account on soldiers’ welfare without the requisite consent of the AFL High Command;

4. That all monies spent on military payment welfare should have been handled by and through the government normal budgetary appropriation and not from the AFL welfare account;

5. That the MOD failed to seek requisite budgetary appropriations for the welfare of the soldiers and the Ministry of National Defense should not have used the funds for the benefit of the soldiers without requisite budgetary appropriation;

6. Documents revealed that expenditures made from this welfare account were for the benefits of AFL personnel and their families but should have never been done so.

7. However, the Ministry of National Defense is responsible for procedural lapses in the management, expenditure, and utilization of said funds.

Consequently, the Government of Liberia has determined that it is appropriate and the right thing to do to restitute or refund the full amount of USD1,147,646.35 that was expended on the AFL for the past several years. This fund shall be immediately provided in the next budgetary appropriation to the AFL by the Government of Liberia.
Henceforth, the AFL shall manage all of its accounts itself, including welfare account, through their chain of command without any hindrance nor interference from authorities of the Ministry of National Defense.

There shall be no further withdrawal from this account until such time when a clear and concise policy is put in place that will articulate the management, procedure, criteria, and authorization for the usage and expenditure of monies from the AFL and welfare account. Also, there shall be no further deduction from the morale and welfare account.

The Ministry of National Defense shall not utilize any funds appropriated for or belonging to the AFL for any purpose absolute whatsoever.”

As indicated supra and based on the foregoing narratives, the appellee, through its Ministry of Justice, requested the special sitting of the Grand Jury during the August Term of the First Judicial Circuit Court for Montserrado County for an indictment against the appellants. The special Grand Jury, having deliberated the appellee’s complaint against the appellants, returned a true bill charging the appellants for the alleged commission of the crime of theft of property, criminal conspiracy, economic sabotage, misuse of public money and money laundering. Considering the voluminous nature of the indictment, which the appellee later amended, we deem it expedient to summarize the various counts as follows:

INDICTMENT

COUNT ONE (THEFT OF PROPERTY)

That, the Special Grand Jurors for Montserrado County, Republic of Liberia upon their oath do hereby find more probably than not, that the defendants, J. Brownie Samukai Jr. former Minister of Defense, Johnson P. Johnson, Deputy Minister for Administration, J. Nyumah Dorkor Comptroller and others to be identified, did conspire, and did commit the Crime of Theft of Property in flagrant violation of 4 LCLR, Title 26, Section 15.51 (a); and 4 LCLR, Title 26, Section 2.2 (a) and (b); and 4 LCLR, Title 26, Section 15.6 (a), (b), (e), (g) and (k); and 4 LCLR, Title 26, Section 15.54,of the Statutory Law of the Republic of Liberia to wit:

1. That during the periods of July 1, A.D. 2009, in the area of Monrovia City, Montserrado County, Republic of Liberia, the Ministry of Defense opened an account named and Styled “AFL Pension Account” at Ecobank Liberia limited with account number 1092-522-22-19. That, said account was based upon salaries deductions and established to provide benefits to pension package to personnel of AFL upon retirement from active service. That, the said account opened under the signatures of Co-defendant J. Brownie Samukai, Jr., former Minister of Defense as “signatory A” and Defendant J. Nyumah Dorkor, former Comptroller of the Ministry of National Defense as “Signatory B” and Defendant Joseph P. Johnson, former Deputy Minister for Administration, Ministry of Defense also a “A”, with no member of the AFL high Command to include: Chief of Staff and Deputy, Brigade Commander, et-al), as signatory to the account.

2. That, personnel of the Armed Forces of Liberia (AFL) salaries were deducted between the period of July A.D. 2009 up to an including October A.D. 2017, for onward deposit in the AFL-Pension account on the basis of rank as showeth in the below chat:

No Rank Amount deducted per month
Private-PVT 5.00
Band Unit 10.00
Private first class PFC/SN 10.00
Coporal/SGT/CPL 10.00
SERGEANT-SGT/PO2 11.00
Staff Sergeant-SSGT/PO1 12.00
First Sergeant-1SGT/Chief 12.00
Master Sergeant-MSG 13.00
Warrant Officer-WO 14.00
2nd Lieutenant-2LT/ENS 22.00
1st Lieutenant-1LT/LTJG 25.00
Captain-CPT/LT 30.00
Major-MAJ/LTCDR 35.00
Lieutenant Colonel-LTC 36.00
Colonel-COL BTL/C 42.00
Brigadier General /CDI 75.00
Deputy Chief of Staff-D/COS 75.00
Chief of Staff-COS 75.00

3. That, during the periods of July A.D. 2009 up to and including November A.D 2017, the total amount of US$1, 943,971.99 (Untied States Dollars, One Million Nine Hundred Forty Three Thousand, Nine Hundred and Seventy one and Ninety Nine cent), was deposited into the said account. Thereafter, you defendants J. Brownie Samukai, former Minister of Defense, Joseph P. Johnson, Deputy Minister for Administration and J. Nyumah Dorkor, Comptroller and others to be identified, by virtue of these positions within said entity, knowingly, purposely, criminally and intentionally, withdrawn and or transferred from the said account of US$1,259,462 (United States Dollars, One Million Two Hundred and Fifty Nine Thousand, Four Hundred and Sixty Two), between the period of September A.D. 2014 up to and including September A.D. 2017, as indicated in the below chat:

No Date Transaction purpose Amount
Approved Joseph F. Johnson
14 June 16 AFL Operation $75,000.00
6-Oct-16 Preparation of Minusma deployment $26,000.00
14-Jul-16 AFL Operation $20,096.00
28-Nov-16 Facilitate AFL Operation $35,000.00
8-Jun-17 Facilitate AFL Operation $2,000.00
15-Aug-16 Facilitate AFL Operation $18,500.00
21-Jul-17 Facilitate AFL Operation $37,200.00
6-Jun-16 Facilitate AFL Operation $16,000.00
14-Jun-16 Facilitate AFL Operation $20,106.00
26-Oct-16 Facilitate AFL Operation $33,000.00
26-Oct-16 Payment for solider in Minusma $23,700.00
24-May-17 Facilitate AFL Operation $100,000.00
Approved by Brownie Samukai Jr.
7-Sep-16 Facilitate AFL Operation $102,000.00
7-Sept-16 Payment for Minusma $369,380.00
5-Sept-16 Facilitate AFL Operation $63,000.00
May 20 & 30, 2016 Transferred Fes $270.00
2016
24-Sept-14 Payment for Minusma $208,656.00
10-Mar-16 Facilitate AFL Operation $59,550.00
2-Feb-2015 Payment to Gen. Abdurrahman death $50,000.00
$1,259,462.00

4. That, of the total amount herein supra, Co-defendant J. Brownie Samukai Jr. the then Minister of Defense, with criminal mind, personally authorized and cosigned defendant J. Nyumah Dorkor, then Comptroller/MOD, thereby causing the direct withdrawal and/or transferred of US$852,860.00 and intentionally expended same basically on activities that were already provided for under the National Budget of the Republic of Liberia, such as AFL Operation. In addition, to the theft Co-defendant J. Brownie Samukai, Jr. illegally paid U$50,000.00 (Fifty thousand United States Dollars), as death benefits to the families of the late, general. Abdurrahman, who did not contribute anything to the fund, while serving as AFL as Chief of Staff, as evidence by the below chat:
Date Transaction purpose Amount
7-Sept.-16 Facilitate AFL Operation $102,000.00
7-Sept.-16 Payment for Minusma $369,380.00
5-Sept.-16 Facilitate AFL Operation $63,000.00
May 20 & 30, 2016 Transfers fees $270.00
24-Sept.-14 Payment for Minusma Personnel $208,656.00
10 mar-16 Facilitate AFL Operation $59,554.00
2-Feb-2015 Payment to Gen. Abdurrahman $50,000.00
5. That, Co-defendant Joseph F. Johnson, serving within the employ of the Government of the Republic of Liberia, as Deputy Minister for Administration, authorized and cosigned defendant J. Nyumah Dorkor, and caused the withdrawal and subsequent transferred of the sum of US$406,602 from the AFL-Pension account, contrary to the intended purpose of the funds which was intended for supplementary pension package to personnel of the AFL, see chart below:

Date Transaction purpose Amount
14-June-16 AFL operation $75,000.00
6-Oct.-16 Preparation for Minusma Deployment $26,000.00
14-Jul-16 AFL Operation $20,000.00
28-Nov-16 AFL Operation $35,000.00
8-Jun-17 AFL Operation $2,000.00
15-Aug.-16 AFL Operation $18,500.00
21-Jul-17 AFL Operation $37,200.00
6-Jun-16 AFL Operation $16,000.00
14-Jun.-16 AFL Operation $20,106.00
26-Oct.-16 AFL Operation $33,000.00
26-Oct.- Payment for Soldier in Minusma $23,700.00
24-May Facilitate AFL Operation $100,000.00
$406,602.00

6. That, all operational funds from the AFL-pension account were authorized to be transferred into the account of the Minister of National, except the amount of US$16,000.00 (Sixteen Thousand United States Dollars) paid directly to one Joseph Gegeh to be identified. As part of the herein named collusion, all authorization letters directly resulting into the commission of the crime of the theft of property (By deception), was done by Co-defendant J. Nyumah Dorkor. At the same time, on the 3rd day of the Month of October A.D. 2017, former AFL Deputy Minister for Administration, Co-Defendant Joseph P. Johnson criminally and intentionally authorized Ecobank Liberia Limited to change the “AFL-Pension account title to AFL Moral and Welfare Account” without any evidence, Consultation, administrative decision, and or will and consent of AFL High Command, [thereby depriving] the owner aforesaid of the use of their property (fund).

7. There and then, the crime of theft of property, you defendants J. Brownie Samukai Jr, Joseph P. Johnson, J. Nyumah Dorkor and other to be identified, while serving within the employ of the Government (GOL), as Minister, Deputy Minister for Administration and Comptroller of the Ministry of National Defense respectively, did do and commit.

8. In relation to the Property and services,” Obtain” means to bring about a transfer or purported transfer of an interest in the property, whether to the defendant or another and secure performance thereof.

9. “Property of another” means property in which a person other than the actor has an interest which the actor is not privileged to infringe without consent regardless of the fact the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in unlawful transaction or was subject to forfeiture as security interest bearing therein even if legal title is in the creditor pursuant to a conditional sales contract of another security agreement.

10. “Owner” means any persons or Government with an interest in the property such that it is property of another as far as the defendant is concerned.

11. A person engages in conduct purposely if when he engages in conduct, it is his conscious objective to engage in conduct of that nature or to cause the result of that conduct.

12. “Derived” means to withhold property or cause it to be withheld either permanently or under such circumstances that a major portion of economic value, or its use and benefit has in fact been appropriated, and withhold property or cause it to be withheld with the intent to restore it only for payment of a reward or other compensation and dispose of property or use it or transfer any interest in it under circumstances that make its restoration impossible.

13. And that the value of the property stole was $50,000 or over and the property was acquired or retained by a first or second degree felony.

COUNT TWO (CRIMINAL CONSPIRACY)

18. A person is guilty of conspiracy to commit a crime if, with the purpose of promoting or facilitating its commission, he agrees with one or more persons to engage in or cause the performance or conduct which constitutes the crime, and any one or more of such persons does an act to effect the objective of the conspiracy.

a) If a persons that one with whom he agrees or has agreed will agree with another to affect the same objective, he shall be deemed to have agreed with the other, whether or not he knows the other identity.

b) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

c) A conspiracy shall be deemed to continue until the crime which is its object is committed or the agreement that it be committed is abandoned by the defendant and by those with whom he conspired. A conspiracy shall be deemed to have been abandoned if no other act to effect its object has been committed by any conspirator during the applicable period of limitations.

COUNT THREE (ECONOMIC SABOTAGE)

Fraud on the internal revenue of Liberia

A person is guilty of a first degree felony, if he
Knowingly conspires or concludes to defraud the government of Liberia
Knowingly makes an opportunity for any person to defraud the Government of Liberia or another
Does or omits to do any act with intent to enable another to defraud the government of Liberia
Knowingly make an opportunity for another to defraud government of Liberia having knolwdge of the violation of an y revenue financial law of Liberia or any fraud, fail to report in writing such information commission of internal revenues of the ministry of finance of the republic of Liberia

A person engages in conduct purposely if when he engages in the conduct he knows or has a firm belief unaccompanied by substantial doubt that he is doing so, whether or not it is his purpose to do so

COUNT FOUR (MISUSE OF PUBLIC MONEY, PROPERLY OR RECORD)

A person is guilty of first degree felony, if he:

a) knowingly steals, takes, purloins, or converts to his own use and benefit or the use of another; or without authority, sells, conveys or disposes of any records, voucher, money or thing of value of the government of Liberia or any Ministry, or Agency thereof, or public corporation, or any property made of being made under contract for the Government of Liberia or any Ministry, Agency thereof or public corporation;

b) receives, conceals or retains the same with intent to convert it to his use or gain, knowing it to have been stolen, purloined or converted;

c) disposes of, uses, or transfers any interest in property which has been entrusted to him as a fiduciary, and in his capacity as a public servant or any officer of an institution, in a manner he knows is not authorized and that he knows to involve risk of loss or detriment to the owner of the property or to the Government of Liberia or other person for whose benefit the property was entrusted.

COUNT FIVE (MONEY LAUNDERING)
A person or body corporate or other legal entity commits the offense of money laundering if that person knowing or having reason to believe that is the proceeds of crime:

Converts or transfer the property with the intent of concealing or disguising the illicit origin of the property, or of aiding any person involved in the commission of the criminal conduct to evade the legal consequences of the conduct;
Conceals or disguises the true nature, origin, location, disposition, movement or ownership of the property
Acquires, possesses or uses the property
Engages directly or indirectly in any transaction which involves the property
Receives, possesses, conceals, disguises, transfers, converts, disposes of, removes from or bring the property into Liberia, or
Participates in associates with or conspires to commit, attempts to commit, attempts to commit or aids or facilitate the commission of any of the above acts.”

Consequently, the court issued the writ of arrest for the appellants thereby bringing them under the jurisdiction of the First Judicial Circuit Court Criminal Assizes “C” to answer to the indictment. After the preliminary activities relating to the filing of appearance bond, the trial court arraigned the appellants, and they pleaded not guilty to all the charges made against them. The appellants also waived trial by a jury. The appellants having joined issues with the appellee on all charges of the indictment, the trial court proceeded with a bench trial under the gavel of Judge Yamie Quiqui Gbeisay, Sr.

The records reveal that the appellee paraded two general witnesses, Augustine Mehn and Marc N. Kollie, both investigators of the LACC; three subpoenaed witnesses, Brigadier General Geraldine Janet George, Deputy Chief of Staff of the AFL, Major General Prince C. Johnson, III, Chief of Staff of the AFL and Stephen S. Howard, an employee, and head of Corporate and Investment Banking of ECOBANK Liberia Limited; and one rebuttal witness who happened to be Major General Prince C. Johnson, III aforementioned. The testimonies and documents testified to and produced by these witnesses all tend to support the averments in the indictment.

On the other hand, the appellants produced two general witnesses in persons of co-appellants, J. Brownie Samukai and Joseph P. Johnson; three subpoenaed witnesses, Counsellor Nyenati Tuan, Deputy Minister of Justice for Codification, Dr. Samora P. Z. Wolokolie, Deputy Minister for Fiscal Affairs and Retired Major General Daniel D. Ziankahn, Minister of National Defense. The testimonies of the appellants’ witnesses and the documents introduced did not deny that the appellants made unrelated withdrawals from the pension funds. The appellants’ evidence however tend to establish that the then President of Liberia and Commander-in-Chief of the AFL, Madam Ellen Johnson Sirleaf, authorized the “unrelated withdrawals” from the AFL Pension Account. The appellants justify their reliance on this authorization from the former President on the “Act of the State Doctrine” base upon which they ought not to be answerable criminally.

At the close of the evidence and following the final arguments, pro et con, the trial judge rendered final judgment finding the appellants guilty of the commission of the crimes of theft of property, misuse of public money, and criminal conspiracy. The trial judge also adjudged the appellants not guilty of the crimes of economic sabotage and money laundering, ordered the appellants to restitute the amount of US$687,656.35 to the AFL Pension Account and US$460,000.00 to the appellee, and imposed a suspended jail sentence provided the appellants restitute the sum of US$1,147,656.35. The latter amount of US$460,000.00 is said to be the amount the appellee had refunded the AFL Pension Account in the wake of the protests by wives of the service personnel. Essentially, the trial judge’s final judgment concluded that the AFL Pension Account is a private property entrusted to the appellants as fiduciary such that the appellants could not have expended the funds without the authorization or consent of the AFL service personnel. The trial judge also reasoned that the unrelated expenses or withdrawals made on the account contravened the purpose and intent for which the account was established. The judge opined that the appellants’ conduct could not be justified under the doctrine of the act of the state, reasoning that if the President of Republic had authorized the expenditure and agreed to refund the amount, the appellee should not be prosecuting this case. The trial judge further opined that the repayment of US$460,000.00 to the AFL Pension Account by the appellee during the critical period in the democratic transfer of power in early 2018 did not nullify the criminal conduct of the appellants because a third party made the repayment; in this case, the appellee, in the interest of national security.

We quote excerpt of the trial judge’s final judgment as follows:
From the above facts summary, there are five cardinal issues that this court deem necessary for the determination of this case. They are:

1. Whether or not the expenditures made by the defendants of the AFL pension funds on AFL operation including uniform, International Peace mission, a token to General Abdurrahman family, salary etc., were legal and supported by the intent and purpose of the account?
To intelligently address the question above, one must first clarify the purpose and intent of the AFL Pension account. In other words, one must establish the legal status of the account. According to co-defendant Brownie Samukai Jr. own testimony, he said that between 2006 to 2009, he had series of strategy discussions with the AFL chain of command as a result of the low salary scale of the AFL personnel, and several decisions were taken and recommendations made to the President of Liberia. One of such decision was to establish pension funds for the AFL soldiers who were often sick and those who succumb to their sickness by death and others to benefit from the funds when they retire. In support of this testimony, General Geraldine J. George, Deputy Chief of Staff, told the court in her testimony in chief that their mentor who briefed the unit told them that the money was intended for the men and women who serve the AFL when they reach retirement stage, the money deducted from them will be given to them as a startup…. While waiting for the official government of Liberia’s pension or retirement benefits.
The above testimony was corroborated by General Prince C. Johnson III as a rebuttal witness when he said as far as his memory can serve him, the account was established for retirement and death benefits of the AFL soldiers.

The analysis of the above three testimonies left no doubts in the mind of this court that originally, the intent of the AFL pension saving account was to take care of AFL sick soldiers, dead soldiers, and those soldiers who serve the AFL to their retirement and nothing else. By logical deduction, it goes without saying that any use of the funds for any other purpose other than AFL personnel illness, death, or retirement without reference to the AFL was wrongful and illegal.

When Mr. Samukai took the witness stand in his own defense, he also told the court that the purpose of the funds was not limited to the reason stated above, in that the money was to take care of budgetary constraints as policy evolves and as directed by the Commander-in-Chief of the Arm Forces of Liberia. However, this statement was not corroborated by any other testimony or documentary evidence. In this jurisdiction, the uncorroborated testimony of an accused is never ever sufficient to acquit him. In the case; Charlie Johnson, Appellant vs. Republic of Liberia, Appellee, 31 LLR280, decided July 7, 1983 syl, 1. The uncorroborated testimony of a person accused of a crime is insufficient to rebut proof of guilt.

The Minister went further to defend his action by saying that, he as Defense Minister, was charged with the responsibility for the welfare of the soldiers to include their training, operation, logistics, etc. he further maintains that as a Defense Minister, he was subject to order by the President and that his duty was to implement orders as given by the President. This court says there is no doubt about the Defense Minister’s duty and responsibility, especially a duty to obey the Commander-in-chief. But what the Minister fails to realize is that there is a distinction between public funds and private funds. In the performance of his duty, he is unquestionably required to perform and implement the commander-in-chief orders with public funds as budgeted by the government in accordance with the government budget process. In the instant case, based on the Minister brilliant idea to minimize the poverty stricken condition of the AFL, the government of Liberia elected to increase the earnings and salary of the AFL personnel by injecting a certain amount of funds in their salary account and simultaneously deducting same according to their rank and deposit said money in a special account name and style “AFL pension saving account.”

Let it be noted that once the money departs the public domain and hit the account of the AFL personnel, that money automatically becomes a personal and private income of the AFL soldiers individually and collectively. As such, the Minister’s statutory duty lay down by law, and his special duty as ordered by the President has no bearing on such money. Consequently, the use of the AFL pension funds as done by the defendants for purposes other than the intended purpose is illegal and wrongful, and criminal in nature.

The AFL compulsory contributory funds was logically a form of retirement income insurance. The government agrees to pay an annuity if the insured (AFL) dies in service or reaches the retirement age, or is sick. Premium paid to an insurance company by employers on behalf of employees is by law always for the employees. The name or title of the Account in question is self-explanatory.

“AFL Pension Saving Account”. The Black’s Law dictionary abridged eighth edition page 954 defines pension as “a fixed sum paid regularly to a person or to his beneficiaries by employers as retirement benefits.” The type of pension involves in the AFL scenario is referred to as a vested pension. “A vested pension according to black law dictionary is a pension in which the employee has the right to the benefits purchased by the employer contribution to the plan, even if the employee is no longer employed by the employer at the time of retirement.” The AFL funds were indeed an invested pension funds, and only the AFL personnel were entitled to it.

To argue that the funds were used to buy uniform for the AFL is to say that the men and women of the AFL were buying uniforms for themselves, to say further that the funds were used for training and logistics and AFL operation, in general, is to suggest that the AFL was funding its own training and buying its own logistics. How possible can that be? Does that mean that the other security apparatus in Liberia to include the police, the immigration, the fire service, etc., were supposed to buy their own uniform, one wonder? In answer to a question during an argument, the defense agreed that there are possibilities for illegal order from a superior officer or the commander-in-chief, but in the case of an illegal order from the commander-in-chief, the defense maintains that the Minister has no option but to obey the order. This court says it disagrees with such a level of reasoning. Like any other minister in the democratic form of government, the Minister of Defense has two responsibilities as lay down by Marbury vs. Madison, a landmark case decided by the Supreme Court of the United States of America on February 11, 1803. In that case, the secretary of State of the United States of America, in which case the secretary of State refused to deliver a commission which has been signed by an outgoing President Marbury. The Supreme Court of the USA, in addressing the issue, opined that every Minister in government has two categories of responsibility – that is, his statutory responsibility as laid down by statute and a special duty as commanded by the head of state/president. In either case, both duties must have legal reliance and a legal basis.

This court says the Minister of Defense in the instance has an option. If he realized that the alleged order given to him by the ex-president Ellen Johnson Sirleaf to misused the AFL pension funds was illegal, his option was to have advised or cause the Minister of Justice to advise the President. If the President insists on the implementation of the illegal order, the Minister has the option to disobey the President and honorably resigned his position with integrity. This is what men of conscience and patriots do. Because to do otherwise as he did in the instant case was an abuse of his oath of office in which he pledged to protect and defend.

While co-defendant Joseph Johnson was on the stand, he told the court that around 2016 and there about the Defense Ministry operation funds became a challenge. This may be true, but it cannot be a legal justification why funds already earned by the AFL personnel in terms of salary and a portion deducted as their pension benefits should be used for the operation of the Ministry of Defense. To do so would amount to the AFL paying themselves their own salary.

The defense also contends and argues that there was no showing that a dime was converted to the defendants’ personal use. This court is again constrained to disagree with this proposition, in that a document testified to by prosecution witnesses and marked by the court as exhibit 12 in bulk, which is the bank reconciliation statement of the AFL account, established that there are 12 different withdrawals of money from the AFL account for salaries from April 2016 to August 2017, without saying who was paid. And the defendants failed to show that the Ministry of Finance did not credit the regular payroll of the Ministry of Defense for the period they withdrew the AFL funds. There were also several withdrawals for the Ministry of Defense operation, without the defendants saying whether the Ministry of Finance did not credit the Ministry of Defense’s operation account for the period under review. In addition, four manager checks were issued in the name of defendant J. Brownie Samukai, three manager checks issued to unknown businesses, all of which the defendants failed to account for their usage but simply say they were used in the interest of the AFL. The court is left with no choice but to agree with the prosecution that the money rested with the defendants as there are no end-users indicated. The defendants made no efforts to explain and exonerate themselves of these allegations. In Gbedeh of Lofa County, Appellant, vs. the Republic of Liberia, 30 LLR page 144, decided July 8, 1982, Sy 14. The Supreme of Liberia said, “Where the prosecution has offered evidence of defendant guilt, and the defendant fails to refute the testimony of the witnesses or to offer evidence to the contrary, a verdict of guilt justified.

To justify the allegation above, the defendants again attempted to hang on straw by arguing that security expenditure cannot be disclosed. Again, this court agreed with the logic that all expenditures need not be disclosed to the public in security matters, but as stated over again, a security matter or an Act of State must be undertaken with State’s funds.

We reiterate the funds subject of the indictment, not being a public fund, the defendants have an obligation to tell the court how and why it was used for the sake of their own defense; failure of which this court has no alternative, but to agree that the money was converted to the defendants’ pockets.

In Liberia, the power of the President does not extend to private property. Hence, assuming that the past President and the current President ordered the Minister of Defense to use the AFL pension funds without seeking the consent, approval, or acquiescence of the AFL was ultra vara, as no president of Liberia or in any democratic state has such authority to interfere with private property without consulting the legitimate owner.

The second issue is whether or not the Act of Defendants for which they are charged is an Act-of- the State and therefore, it cannot be construed as a crime?

The court says that it has been established sufficiently that the funds that are the subject of this litigation are private funds. Assuming that the act of co-defendant by withdrawing 50,000 was on the order of the ex-President and therefore said Act is an Act of State, this court says an Act of State cannot, should not, and ought not to be performed by private money as in the instant case.

The court perfectly agreed with co-defendant Samukai that had the government failed to make representation at the funeral of General Abdurrahman, who make sacrificial services to Liberia, such failure would have amounted to ingratitude, yes, but such a gesture cannot be implemented with the poverty-stricken AFL pension funds without their implied or expressed consent. More besides, in this jurisdiction, the burden of proof is on one who alleges. Chapter 25, section 25.5 of the civil procedure Law.

The co-defendant content and argued that he was ordered by the ex-commander in Chief to use the AFL funds in the manner and form as he did, but failed miserably to cause former President Ellen Johnson Sirleaf, who is right here in Monrovia to appear or representative of the current President to testify to the truthfulness of this contention. The court says that the President would have loved to send one of his agents to clarify the issue. And the court also believes that the ex-President would have been glad to appear in person to throw light on the issue.

The only form and manner in which a government can legally interfere with private property in this jurisdiction is by condemnation proceeding otherwise known as eminent domain, in which case the owner of the property is given an opportunity for the property fair market value to be paid to him. Therefore act the money was credited, as implied by the defendants, one cannot credit without negotiating with the owners.

The third issue of interest to this court is whether or not changing the name of the AFL account by the defendants without consulting the rank and file of the AFL was legal? The court is again constrained to answer in the negative. The court says that none of the defendants charged is a member of the AFL because, by law, the AFL starts from private soldiers and ends up with a Chief of Staff. However, in a civilian government like ours, the Minister of Defense managed the affairs of the Arm Forces of Liberia. The Minister, therefore, served in a fiduciary capacity for the AFL personnel when he opened the AFL pension account and made him and his principal deputy signatories A of the account. In the mind of the court, the Minister serving as the signatory to the account was not wrongful or illegal, because as stated supra, he was performing a fiduciary duty for and on behalf of the entire AFL. But the power of a fiduciary has a serious limitation, and a breach thereof carries serious multiple civil and criminal consequences.

In his opening statement, the Minister told this court that he had a series of consultation and strategic meetings with the AFL chain of command, which led to recommendations that resulted in the opening of the AFL pension account. By that reasoning, the Minister knew or had reason to know that the money in the AFL pension account. By that reasoning, the Minister knew or had reason to know that the money in the AFL pension account was not budgeted for the Ministry of defense operation, and by that parity of reasoning, every cent in that account belongs legally to the men and women of the AFL. Therefore, the Minister was under a legal duty to have consulted the rank and file of the AFL as he did from the beginning if he had a tangible reason to change the name of the account.

The court says that it appeared that the sole purpose for changing the account title was to widen the scope of operation of the account so as to enable the account to cover all illegal withdrawals that were made not within the perimeter of the objective of the account as named. Even at that, the court observed that by the time the name of the account was changed in October 2017, most of the illegal withdrawals had already been made. The court note that the intention of the change of the AFL account from AFL pension and saving account to AFL morale and Welfare account has criminal motives and intended to camouflage, disguise, and concede the misapplications by the defendants.

The fourth issue which court considers gamine to the resolution of the contention, in this case, is, Whether or not the alleged commitment by the past and present President of Liberia to pay, and partial payment made by the current government to the AFL, dismisses the alleged criminal conduct of the defendants?

The court again answers No, never. It has been established that money deposited in the AFL’s pension account was deducted from the AFL members’ salaries and deposited for their benefit upon sickness, death, or retirement. The court has sufficiently explained that the defendants lack the legal authority to have expanded the money purposes other than the intended objectives. The defendant agreed that yes, we expanded the money but relied on the law and the authority of the commander-in-chief. So far, this court has said that both the Constitution, the executive law, and the financial management Act referenced by co-defendant, Samukai have no chapter, section, or clause that authorizes a Minister to interfere with private funds. Money intended for the operation of all ministries are budgeted by the Executive branch of government annually and passed into law by the National Legislature and approved by the President. The funds subject of the indictment against the defendants is not a budget line in the Defense Ministry budget nor a budget item in the Ministry of State budget. In spite of these, co-defendant Samukai contends that the past and present government committed themselves to pay the money and that partial payment having been made, assuming there was criminality said criminality had been made null and void by the partial payment.

First of all, the court says, assuming arguendo that ex-president Sirleaf made a commitment to pay, and President Weah also made a commitment to pay, the Act of an individual president is not the Act of the government of Liberia. The government of Liberia is a Republican form of government that consists of three branches, the Executive, the Legislature, and the Judiciary branch. To legally obligate the government of Liberia financially, that obligation must be sanctioned by both Executive and legislative branches of government. More besides, the court says, ordinarily, criminal conduct is nullified when a part payment or partial payment is made by the person who commits the crime. But on the contrary, it is the government of Liberia, which is prosecuting the defendants that made a partial payment to the AFL account and not the defendants.

The rationale for the nullification of crimes when the person committing the crime made a partial payment is that the person has admitted and repented and the person against whom the crime was committed has accepted and forgiven him. But in the instance case, it is a third party, the government of Liberia, who made the partial payment for a reason best known to itself. This cannot be construed as having nullified the criminal conduct of the defendants.
In fact, when the Deputy Minister for Fiscal Affairs at the Ministry of Finance and Development Planning testified before this court, as the defendants own witness, he indicated that the misused of the AFL funds caused unbearable embarrassment to the new incoming government when families of the AFL soldiers set a roadblock and issued threats to the government and the peace and security of the people of Liberia; as a consequence of which a national security council meeting was convened, and the government was advised to make some payment to the soldiers.

This testimony was never rebutted and therefore taken as facts. Such circumstances cannot erase criminal conduct.

Courtesy of FPA