On 27th January, 2015, the Supreme Court comprised of five (5) men bench handed down a very important and landmark decision which for the first time had settled some very important confusion on procedural law in this jurisdiction.
The brief factual background of the case is that Eremas Wartoto, through his company Sarakolok West Transport Limited, came up with some scoping to repair and maintain Kerevat National High School. It was a closed tender and the contract valued at K7, 989, 892. 00 was awarded to Sarakolok West Transport Limited through the office of the Department of National Planning and Monitoring. It is alleged that only K700, 000. 00 was used to do repair and maintenance works at Kerevat National High School and the balance of K7, 100, 000. 00 was applied to meet Eremas Wartoto personal and his company’s own expenses which included the payment of bank loans and purchases of other property unrelated to the purposes for which the funds were released. Hence, Eremas Wartoto was arrested and charged with two (2) counts of the offence of Misappropriation contrary to Section 383A of the Criminal Code Act, Chapter 262. Eremas Wartoto has been committed to stand trial at the National Court on these two (2) offences.
The brief facts giving rise to the appeal to the Supreme Court and its subsequent decision (this decision) are that the criminal case of Eremas Wartoto came to the Judge Administrator of Fraud Related Cases, Deputy Chief Justice Sir Gibbs Salika, for directions in preparation for trial (hearing). In the course of the directions hearing, the lawyers from the office of the Public Prosecutor presented a draft indictment (charge) to the lawyer for Eremas Wartoto. Eremas Wartoto then commenced a separate civil case seeking a stay of the criminal proceedings against him on the main premise that the State had no interest whatsoever over monies that were paid to private contractors and hence Eremas Wartoto cannot be criminally prosecuted for such. The National Court presided over by Deputy Chief Justice Sir Gibbs Salika refused the application. Eremas Wartoto appealed that decision to the Supreme Court.
The main issues addressed by the Supreme Court, amongst others and which are important for public consumption were that:
(a) Can a civil proceeding be employed to permanently stay criminal proceedings; and
(b) Does the State loses all its interest or property rights in public funds paid to private contractor for certain public works once it pays the funds over to a contractor?
For issue (a), the Supreme Court held that civil proceeding must not be used to temporarily or permanently stay a criminal proceeding. This, in essence, means that if an accused person is aggrieved by a decision made in the criminal proceedings or if there is a procedural blunder, he/she cannot file a civil proceeding to challenge that decision or procedural blunder and temporarily or permanently stay the criminal proceeding. If the accused person wants to challenge that, he/she should do it at the criminal proceeding. And for clarity, the criminal proceeding starts when information (criminal complaint) is laid at the police station.
In the course of its deliberation, the Supreme Court also said that civil proceedings must not be mounted to challenge and also seek temporarily or permanently stay;
(a) The investigation conducted by the Ombudsman Commission and the referral;
(b) The referral by the Public Prosecutor of the leaders to the Leadership Tribunals;
(c) The Leadership Tribunals;
(d) The commission of inquiries; and
(e) The investigation and proceedings of the Lawyers Statutory Committee.
For issue (b), the Supreme Court held that the State maintains its full and unrestricted interest or property rights on the public funds released to the contractor until the purpose for which the funds have been released are achieved or accomplished.
Now, this is a five (5) men bench of the Supreme Court and the decision was unanimous. The procedural misconception in relation to issue (a) is settled now. This decision has a lot of bearings on current controversial cases before the Courts.
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