NEWS FLASH

SUMMARY OF DEFENDANTS’ ARGUMENTS/LEGAL MEMORANDUM IN GLOBAL WITNESS-SABLE MINING CASE

REPUBLIC OF LIBERIA) IN THE FIRST JUDICIAL CIRCUIT COURT,
MONTSERRADO CO ) CRIMINAL ASSIZES “C”, TEMPLE OF JUSTICE


BEFORE HIS HONOR: PETER W. GBENEWULEH …….. ASSIGNED CIRCUIT JUDGE


Republic of Liberia ……………PLAINTIFF)
)
VERSUS )
) CRIMES:
G. Varney Sherman, E.C.B. ) BRIBERY, ECONOMIC
Jones, Christopher Onanugu, ) SABOTAGE, CRIMINAL
Alex Tyler, Sable Mining Inc., ) CONSPIRACY, CRIMINAL
Richard Tolbert, Andrew ) SOLICITATION, CRIMINAL
Groves, Klaus Piprek, Eugene ) FACILITATION
Shannon, Morris Saytumah and )
Willie Belleh of the City of )
Monrovia, Liberia………….DEFENDANTS)


SUMMARY OF
DEFENDANTS’ ARGUMENTS/LEGAL MEMORANDUM

 

I. THE CHARGES AND THE DEFENDANTS’ REPUTATIONS:

1.1. These Defendants, who have gone through a little over three (3) weeks of a second trial, who underwent a first trial during the February 2017 Term of this Honorable Court, and who were indicted in May and June 2016 and in January 2017, are some of the “best” Liberia has produced and has had in its recent history. All of them are professionals; most of them hold graduate degrees from foreign universities; each has held senior positions in Government and in the private sector; each has made enormous contributions to our country. These men are:
(1) Senator Counsellor Varney Sherman, an astute and erudite politician, formerly a presidential candidate for Liberia and political leader of the Liberia Action Party and formerly the National Chairman of the former ruling Unity Party, a sitting Senator, and distinguished and accomplished lawyer;
(2) Hon. E.C.B. Jones, a former Minister for Rural Development, a former Deputy Minister for the Ministry of Lands, Mines and Energy, a professional survey engineer;
(3) Professor Willie Belleh, a former Professor at the Horton Business School, University of Liberia, a former Chairman of the Public Procurement and Concession Commission, former Secretary General of the Liberia Action Party, and founding partner of Subah-Belleh Associates (the oldest management consulting firm in Liberia);
(4) Senator Counsellor Morris Saytumah, former Deputy Minister of the Ministry of Finance, former Minister of State for Finance, Economic and Legal Affairs;
(5) Dr. Eugene Shannon, former Director, Liberia Geological Surveys of the Ministry of Lands, Mines and Energy, former Principal Environmentalist, African Development Bank, and former Minister of Lands, Mines and Energy;
(6) Hon. Richard Tolbert, former banker with Merrill Lynch and UBS Banks for 25 (twenty-five) years and former Chairman of the National Investment Commission;
(7) Hon. Alex Tyler, with eighteen (18) of entrepreneurial experience in the fishing industry under his belt before becoming a member of the House of Representatives, and then being the Speaker of the House of Representatives (the 3rd highest position in the Government of Liberia) for ten (10) years; and
(8) Chis Onanuga, a private businessman and owner of C T Communications.

1.2. These are the eight (8) persons whose civil liberties, reputations and honors are in the hands of this Honorable Court today. For what? For accusations against them by Global Witness, a non-governmental organization, which gets its funding from contributions made by private persons and other civil organizations for making accusations against officials of governments in developing countries. And what are the charges against these eight (8) otherwise reputable Liberians, who have heretofore had impeccable and unimpeachable records of service and contribution to our country? They were indicted for commission of the crimes of:
(1) ECONOMIC SABOTAGE,
(2) BRIBERY,
(3) CRIMINAL CONSPIRACY,
(4) CRIMINAL SOLICITATION, and
(5) CRIMINAL FACILITATION.

1.3. These are crimes, if they are adjudged guilty, would forever destroy the lives of the eight (8) men and destroy their respective families. It is to convince this Honorable Court today that none of the eight (8) men committed any of the five (5) crimes for which they were indicted and for which they have undergone more than three (3) years of gruesome experience and a little more than three (3) weeks of a second trial that we, Cyril Jones and J. Johnny Momoh, Counsellor-At-Law of the Honorable Supreme Court of Liberia, address and plead with Your Honor.

 

II. THE LAW OF THE CHARGES/INDICTMENTS:

2.1. Under Liberian law, a person commits Economic Sabotage if he commits a fraud on the internal revenue of Liberia. Penal Law, Section 15.80. Did any of the three (3) indictments of May and June 2016 and January 2017 alleged that any of these eight (8) Defendants committed a fraud on the internal revenue of Liberia? NO, YOUR HONOR! READ THE INDICTMENTS.

2.2. Liberian law also provides that the crime of Economic Sabotage is committed when a person misuses public money, property or record. Penal Law, Section 15.81. Again, we ask: Did any clause of these indictments say that any of these eight (8) Defendants misused public money, public property or public record? NO, YOUR HONOR! READ THE INDICTMENTS.

2.3. Liberian law further provides that Economic Sabotage is committed by a person for theft and illegal disbursement and expenditure of public money. Penal Law, Section 15.82. We ask again: Did any clause of the indictments allege that any of these eight (8) Defendants stole or illegally disbursed and expended any public money. NO, YOUR HONOR! READ THE INDICTMENTS.

2.4. Liberian law also further provides that a person commits the crime of Economic Sabotage if he possesses, distributes, transports and/or uses tools and materials for counterfeiting purposes. Penal Law, Section 15.83. Again, we ask whether any clause of the indictments accuse any of these eight (8) Defendants of the possession, distribution transportation and/ or use of tools and materials for counterfeiting purposes. ONCE AGAIN, YOUR HONOR, THE ANSWER IS “NO”! READ THE INDICTMENT.

2.5. Liberian also provides that the crime of Economic Sabotage is committed when a banker receives unauthorized deposits of public money or when an individual unauthorizedly makes deposit of public money. Penal Law, Section 15.84). Did any clause of any of the indictments identify any of the eight (8) Defendants as a banker who received unauthorized deposit of public money or did any clause of the indictments identify any of the eight (8) Defendants as an individual, who unauthorizedly made a deposit of public money? AGAIN THE ANSWER IS “NO”, YOUR HONOR. READ THE INDICTMENTS.

2.6. Finally, Liberian law is that a person commits the crime of ECONOMIC SABOTAGE if he or she issues or passes a bad check or forges a check. Penal Law, Section 15.85. Lastly, we ask whether any clause of the indictments alleged that any of the eight (8) Defendants issued or passed a bad check or forged a check. AND LASTLY, THE ANSWER IS “NO”, YOUR HONOR. READ THE INDICTMENT.

2.7. Since no clause of any of the three indictments accused any of the Defendants of any of the elements of the crime of Economic Sabotage, then what was the reason for preferring that charge against the Defendant other than to oppress them, to subject them to punishments for a crime that they did not commit, and to greatly damage their honors and reputations.

2.8. SUCH RECKLESS DISREGARD FOR THE CIVIL LIBERTIES OF THESE EIGHT (8) DEFENDANTS AND THE DAMAGE THAT THESE ACCUSATIONS HAVE DONE TO THEIR HONORS AND REPUTATIONS ARE SOME OF THE REASONS WHY THE DEFENDANTS HAVE LABELLED THIS TRIAL A POLITICALLY-MOTIVATED CASE; A BASELESS AND UNFOUNDED SERIES OF CRIMINAL CHARGES NOT SUPPORTED BY ANY CREDIBLE EVIDENCE.

2.9. Shall we go to the next crimes for which these eight (8) Defendants have undergone more than three (3) years of embarrassment and inconvenience and for which they have been subjected to more than three (3) weeks of trial, coming to this court every day and being the subject of the media speculations about their guilt. The first of these other crimes is BRIBERY.

2.10. Bribery, according to Liberian law, is committed where a person knowingly offers, gives or agrees to give to another, or solicits, accepts or agrees to accept from another, a thing of value as consideration for: (a) the recipient’s official action as a public servant; or (b) the recipient’s violation of a known duty as a public servant. Penal Law, Section 12.50.1. For this crime, Defendants concedes that there are allegations in the indictments, which if proved by the evidence adduced at this trial, would constitute the crime of Bribery; but the Defense submits that the Prosecution did not present a scintilla of evidence that any one or all of the Defendants committed the crime of Bribery.

2.11. As to the other three (3) crimes for which the Defendants have been indicted and tried (Criminal Facilitation, Criminal Solicitation and Criminal Conspiracy), the Defense submits that for these three (3) lesser crimes to have been committed by the Defendants, there should first be proof beyond reasonable doubt that one or more of the Defendants committed the first two primary crimes (Economic Sabotage or Bribery). These three (3) last crimes are what is referred to as inchoate offenses. Penal Law, Chapter 10. An inchoate offense is a step toward the commission of another crime; the step in itself being serious enough to merit punishment. Black’s Law Dictionary, Eight Edition (1999), page 1111. But for the benefit of this Honorable Court, the Defense still feels compelled to discuss what these three (3) lesser offenses are.

2.12. Liberian law is that a person is guilty of Criminal Facilitation, who believing it is probable that he is rendering aid to a person who intends to commit a crime, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony. Penal Law, Section 10.2.1. Liberian law also is that a person is guilty of Criminal Solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to engage in conduct which if committed would be a felony, whether as a principal or accomplice, with the purpose of promoting or facilitating the commission of that crime, and other circumstances strongly corroborative of that purpose. Penal Law, Section 10.3.1. And finally, Liberia law is that 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 of conduct which constitutes the crime, and any one or more of such persons does an act to effect the objective of the conspiracy. Penal Law, Section 10.4.1.

2.13. THE DEFENSE SUBMITS TO YOU, YOUR HONOR, THAT NONE OF THE EIGHT (8) DEFENDANTS COMMITTED ANY OF THE THREE (3) LESSER CRIMES FOR WHICH THEY WERE INDICTED MORE THAN THREE (3) YEARS AGO AND HAVE BEEN UNDERGOING TRIAL THESE PAST THREE (3) WEEKS.

 

III. THE BASIS OF THE INDICTMENTS:
3.1. What is the basis of these indictments – this disgrace the Government of Liberia has brought down on the heads of eight (8) of its prominent citizens. The genesis of these indictments is a report of a purported investigation conducted by Global Witness, a British non-governmental organization, whose main business is to report on what they consider “bad governance” in developing countries and which NGO gets financial contributions from its benefactors based on the number of reports it publishes each year. The Report, which forms the basis of the indictments against the Defendants is entitled “The Deceivers” (with a subtitle “Edmonds and Groves: the former England cricketer, his business partner and their stock market empire built with bribery and scams”). The Deceivers was published on the internet under https://www.globalwitness.org/thedeceivers/ on May 11, 2016. The Deceivers covers business activities of Edmonds and Groves in England, Guinea, Mozambique, Liberia, South Africa and Mauritius. Of the eighty-five (85) pages of The Deceivers, eleven (11) were on the activities of Edmonds and Groves, through their company, Sable Mining Africa Limited (hereinafter “Sable Mining”), in Liberia in 2010. The Liberian media picked up the contents of The Deceivers and, by their publications, some people might have convicted the Defendants of the accusations made against them in The Deceivers.

3.2. In summary, The Deceivers alleged that Sable Mining’s executives came to Liberia to obtain rights to the “prized iron ore deposit of the Wologizi Mountain”; they engaged the services of Co-Defendant Sherman to provide them with legal services and to assist them in obtaining their objective; and considering that Liberia was in the process of reviewing its 2005 PPCC Act, which provides for competitive bidding for all acquisition of mineral rights, Co-Defendant Sherman proposed a plan to bribe Liberian Government officials so that Sable Mining would get the rights to the iron ore deposit of the Wologizi Mountain without a competitive tender. The Deceivers alleged that on the basis of this Plan conceived by Co-Defendant Sherman, Sable Mining sent funds to the account of Co-Defendant Sherman’s law firm (Sherman & Sherman) from which payments were disbursed to Co-Defendants Richard Tolbert, Alex Tyler, Morris Saytumah and Willie Belleh. In support of these accusations, attached to The Deceivers was a Spreadsheet (statement of account), which ends on 30 June 2010 and a thread of emails. The Deceivers said that their accusations were based on unnamed “sources” and “leaked documents”.

3.3. The Liberian Government, for its part, appointed a Special Presidential Taskforce on May 14, 2016 or thereabouts with the mandate to investigate into the accusations made by The Deceivers and prosecute anybody found culpable. In less than two weeks after The Deceivers was published on May 11, 2016 (specifically on May 24, 2016), the Special Presidential Taskforce obtained an indictment against Co-Defendants Varney Sherman, E.C.B. Jones, Christopher Onanuga and Alex Tyler. The essential allegation of this May 24, 2014 indictment is as follows:
“The defendants used their offices to effect the objective of their plan which was to alter the Public Procurement Concession Commission Law and did succeed in having the law changed to give the Minister of Lands, Mines & Energy the power to declare an area a non-bidding area as reflected in article 75 of the amended PPCC Act”; and that the amended Law contains : “… the provision for the Minister of lands, Mines and Energy to have the power to declare a concession area a “non-bidding area” (Article 75 of the amended PPCC Act) so as to create ease for the awarding of the concession agreement on the Wologizi mines.” (EMPHASIS OURS).

3.4. On June 8, 2016 the Special Presidential Taskforce obtained the second (2nd) indictment; and this time the indictment was against Co-Defendants Richard Tolbert, Mr. Andrew Groves and Mr. Klaus Piprek (these two persons being executives of Sable Mining). The essential allegations of this second (2nd) indictment is:
“The defendants by their acts ....changed and caused to be changed, the PPCC Act and made provision for the Minister of Lands, Mines and Energy to have the power to declare a concession area a “non-bidding area” as found in Article 75 of the amended PPCC Act of 2010 so as to create ease for the awarding of the concession agreement on the Wologizi mine to Sable Mining ..” (EMPHASIS OURS)

3.5. It was on December 23, 2016 when the Special Presidential Taskforce eventually published its thirty-two (32)-page Report (hereinafter the Special Presidential Taskforce Report), which basically confirmed the accusations made in The Deceivers; but in addition to this, the Special Presidential Taskforce Report named Co-Defendant Shannon and Co-Defendant Jones as the two (2) persons described in The Deceivers as “Bigboy 01” and “Bigboy 02”, to whom Sable Mining allegedly gave US$500,000.00 to accomplish the same objective. A third (3rd) indictment was obtained against Co-Defendant Shannon, Co-Defendant Saytumah and Co-Defendant Belleh by the Special Presidential Taskforce on January 3, 2017; and the most important content thereof reads, as follows:
“The defendants were contacted by Cllr. Sherman ...to influence the change in the PPCC Act and to make a provision therein for the Minister of Lands, Mines & Energy to have the power to declare a concession area a “non-bidding area” contrary to best practice of entertaining public bidding , so as to enhance the ease of awarding a concession agreement to Sable Mining for the operation of the Wologizi Mountain..” and that they “...did criminally, purposely, willfully and intentionally strategized, orchestrated and placed into Article 75 of the revised PPCC Act provision for “ non-bidding area” in consideration for cash and other benefits..”.

3.6. With all due respect, Your Honor, these three (3) indictments misstate Section 75 (also described in the Indictments as Article 75) in a maliciously erroneous way. Section 75 of the 2010 PPCC Act is not a provision … for the Minister of Lands, Mines & Energy to have the power to declare a concession area a “non-bidding area” contrary to best practice of entertaining public bidding...”. This Section 75 says a “Non-Bidding Area” is established as to specified mineral when (i) the Minister responsible for Mines determines, based on a reasoned recommendation of the Geological Survey Department of Liberia (or successor institution) that that the available information as to the existence of such Minerals in such area indicates that there is insufficient quantities and/or qualities of such Minerals in such area to support meaningful bidding for the granting of Prospecting or Exploration Licenses for such Minerals in such area, and (ii) such determination has been approved by the Inter-Ministerial Concession Commission (‘IMCC’), excluding the representation of the sector entity. (EMPHASIS OURS)

3.7. From the plain and unambiguous language of the law, no power was vested exclusively in the Minister of Lands, Mines and Energy by Section 75 and because exploitation of the iron ore deposit of the Wologizi Mountain would have meant that the Ministry of Lands, Mines and Energy would be the “sector entity”, approval of a Wologizi Mountain as a “Non-Bidding Area” by the IMCC would have excluded representation of the Minister of Lands, Mines and Energy from the approval process. Now Section 81 of the 2010 PPCC Act provides that the membership of the IMCC shall be, as follows: (1) National Investment Commission Chairman as Chairman; (2) Minister of Justice as member; (3) Minister of Finance as member; (4) Minister of Labor as member; (5) Minister of Planning & Economic Affairs as member; (6) Minister of Internal Affairs as member; (7) Two other Ministers appointed by the President of Liberia; (8) The Head of the Concession Entity. It is the IMCC, not the Minister of Lands, Mines and Energy, who actually makes the decision to declare an area a “Non-Bidding Area” for purposes of acquiring the rights to the minerals in that area.

3.8. It is important to note that even though it is in the Special Presidential Taskforce Report that Co-Defendant Shannon and Co-Defendant Jones were named as the “Big Boy 01” and “Big Boy 02” to whom Mr. Andrew Groves delivered US$500,000.00 to get Section 75 inserted into the 2010 PPCC Act, while the draft of that law was at the Legislature, Co-Defendant Jones was not named as an indictee in this third (3rd) indictment. WHAT A FATAL ERROR INSOFAR AS THE CASE AGAINST CO-DEFENDANT JONES IS CONCERNED!

3.9. On February 8, 2017, the Special Presidential Taskforce filed a Motion to amend and consolidate the indictments; and in that Motion the substantive part reads, as follows:
“H. Varney G. Sherman ….paid out money to several public officials in consideration of their official actions geared to ensuring the passage of the revised PPC Act of 2010 to give undue advantage to Sable Mining over the Wologizi Mountain”. (EMPHASIS OURS).
“Cllr. Sherman … did in fact pay US$440,000 in bribes to influence officials of the Government of Liberia to change the PPCC law (2005)”.

“E. C. B. Jones received US$250,000 .. in consideration of his official action …geared toward ensuring the amendment of the PPC Act of 2005 to give undue advantage to Sable Mining over Wologizi Mountain”. (EMPHASIS OURS).

“Alex Tyler received US$75,000 … in consideration of his official action …geared toward ensuring the passage of the PPC Act of 2010 to give undue advantage to Sable Mining over Wologizi Mountain”. (EMPHASIS OURS).

“Richard Tolbert solicited and accepted US$50,000 .. as consideration of his official action …geared toward ensuring the amendment of the PPC Act of 2005 to give undue advantage to Sable Mining over Wologizi Mountain”. (EMPHASIS OURS).

A substantive difference between the initial three (3) indictments and the amended indictment is, as follows:
(1) In the initial indictments the Special Presidential Taskforce stated that the Defendants: “changed and caused to be changed, the PPCC Act and made provision for the Minister of Lands, Mines and Energy to have the power to declare a concession area a “non-bidding area” as found in Article 75 of the amended PPCC Act of 2010 so as to create ease for the awarding of the concession agreement on the Wologizi mine to Sable Mining ..”. (EMPHASIS OURS)

(2) In the amended indictments, the Special Presidential Taskforce omitted the accusation that Defendants “… made provision for the Minister of Lands, Mines and Energy to have the power to declare a concession area a “non-bidding area” contrary to best practice of entertaining public bidding so as to create ease for the awarding of the concession agreement on the Wologizi mine to Sable Mining” and replaced that by “...official action …geared toward ensuring the amendment of the PPC Act of 2005 to give undue advantage to Sable Mining over Wologizi Mountain” as the crime committed by each of the Defendants.

 

IV. FUNDAMENTAL LAWS WHICH GOVERN CRIMINAL CASES:

4.1. Liberian jurisprudence is replete with the basic and fundamental principle of law that a defendant in a criminal case is presumed innocent until his/her guilt is proved by the State beyond a reasonable doubt. Here are some examples of this basic and fundamental principle:

(1) The Constitution, Art. 21(h)
- In a criminal case, the defendant shall be presumed innocent until the contrary is proved beyond a reasonable doubt.

(2) Criminal Procedure Law, Section 2.1.
- A defendant in a criminal action is presumed to be innocent until the contrary is proved; and in the case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.

(3) Thompson v. Republic, 14 LLR 133 (1960)
- A defendant in a criminal action is presumed innocent until the contrary is proved; and in case of a reasonable doubt as to whether the defendant’s guilt is established, he is entitled to an acquittal.

(4) Tolbert v. Republic, 19 LLR 251 (1969)
- The prosecution … is to prove its case beyond a reasonable doubt upon the total evidence presented, proving each dispensable element necessary to establish the commission of the crime with which the defendant is charged.

 

(5) Koffe v. Republic, 20 LLR 18 (1970)
- The chain of evidence in a criminal case must be forged link by link by the prosecution, so that the mind is led irresistibly to the conclusion of guilt, established beyond any reasonable doubt.

(6) Nimley et al. v. Republic, 21 LLR 348
- The guilt of a defendant must be established beyond a reasonable doubt to justify his conviction.

(7) Jalloh v. Republic, 21 LLR 255 (1972)
- In prosecution for homicide the state has the burden of proving beyond a reasonable doubt all of the essential elements of the crime with which the accused is charged.
- When the defendant asserts a defense of accidental killing to a prosecution for homicide, the burden rests upon the state to show that the killing was intentional.

(8) Keller v. Republic, 28 LLR 49 (1979)
- Where a defendant’s plea in a criminal case is “not guilty” the burden of proof shifts to the State to establish the defendant’s guilt conclusively without any rational doubt, otherwise a judgment of conviction will not be sustained by the Supreme Court.
- An accused in a criminal case is presumed innocent until the contrary is proved, and in case of a reasonable doubt he is entitled to an acquittal.
- In criminal cases the burden of proof is upon the state – that is, prosecution must prove beyond a reasonable doubt the facts laid in the indictment.
- In the prosecution for a crime involving monetary transactions, documentary evidence in support of the amount of money involved and connecting the defendant to the loss of that money is of primary importance and must be produced at the trial.
- Where in the absence of account books, a summary of accounts is used in a criminal prosecution, that summary should be signed and testified to both as to the entries made therein and how such entries relate to the funds for which the trial is conducted, how they are connected to the defendant, and how they prove the commission of the crime. The person who made the entries must testify and stand the test of cross examination; but where he is unavailable for good and sufficient legal reason, then someone familiar with his handwriting and the preparation of the summary of account must testify.

(9) Wreh v. Republic, 30 LLR 459 (1983)
- A defendant in a criminal case is presumed innocent until the contrary is proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.
- The burden to prove the guilt of a defendant in a criminal action remains unshakable and rests perpetually on the side of the prosecution to the final conclusion of the case …


(10) Williams and Mulbah v. Republic, 34 LLR 180 (1986)
- … It is the duty of the State to prove its case against the defendant beyond all reasonable doubt.

(11) Bah v. Republic, 36 LLR 541 (1989)
- A defendant criminally charged is presumed innocent until the contrary is proven.


4.2. Another fundamental principal of law which governs this case is the general rules of evidence. With respect to the general rules of evidence, the Defense cites the following:

(1) Criminal Procedure Law, Section 21.1
- The admissibility of evidence … in all criminal proceedings, except as otherwise provided by statute shall be governed by: (b) The applicable rules of evidence in civil actions as set forth in the Civil Procedure Law when the rules set forth in the Criminal Procedure Law are not applicable.

(2) Civil Procedure Law, Section 25.6.1 – Best evidence rule
- The best evidence which the case admits of must always be produced; that is no evidence is sufficient which supposes the existence of better evidence.

(3) Blamo v. Republic, 17 LLR 232 (1966)
- The best evidence of a fact is the testimony of a person with direct knowledge thereof.

(4) Marpleh v. Republic, 19 LLR 335 (1969)
- No evidence should be admitted by the trial court which supposes the existence of better evidence as proof.

(5) Civil Procedure Law, Sections 25.7.1, 25.7.2, 25.7.3, 25.7.3.
- Hearsay evidence is not admissible except where it relates to: (i) declaration of a deceased person concerning family history; (ii) writing or recording, whether in the form of a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event intended as evidence of said act, transaction, occurrence or event; and (iii) the general reputation of a person who has held or holds public office and such evidence is offered to establish evidence of such general reputation.

(6) Wotorson v. Republic, 30 LLR 179 (1982).
- Hearsay denotes the kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the veracity and competency of some other person. Thus hearsay evidence is uniformly held to be incompetent to establish any specific fact which, in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge. Hearsay evidence is totally inadmissible.

(7) Serjleh v. Republic, 20 LLR 371 (1971)
- In a criminal case the prosecution may not introduce in evidence a statement made by an unavailable witness merely identifying the statement as that of an unavailable witness, for such procedure violates the rule against hearsay and the constitutional right of confrontation possessed by an accused.


4.3. Another rule of evidence, which is applicable to the case at bar, is the effect of unrebutted evidence of a defendant in a criminal case.
(1) Dennis and Bloh-Mullehburg v. Republic, 20 LLR 47 (1970)
- Liberian law is that when the testimony of a defendant in a criminal case is not in any respect rebutted by the prosecution, such testimony is entitled to some legal weight in favor of the defendant.

4.4. Still another principle of law which governs this case is the law on obtaining evidence from an unavailable witness.
(1) Criminal Procedure Law, Section 17.1.1
- The law is that if it appears that a prospective witness may be unable to attend a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court, at any time after the filing of a complaint or an indictment, upon motion made upon notice to the other parties, may order that his testimony be taken by deposition and that any designated books, papers, documents or portable things, not privileged, be produced at the same time and place.

(2) Matierzo v. Republic, 34 LLR 791 (1987)
- The law is that if it appears that a prospective witness may be unable to attend a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court, at any time after the filing of a complaint or an indictment, upon motion made upon notice to the other parties, may order that his testimony be taken by deposition and that any designated books, papers, documents or portable things, not privileged, be produced at the same time and place.

4.5. And still another body of laws which apply to this case, especially the documentary evidence introduced by the Prosecution is the law on treaties to which Liberia is a party and the effect of those treaties as domestic laws of Liberia. The relevant treaty and Supreme Court opinion are:
(1) The 1961 Hague Convention on the Authentication of Documents (the “Apostille Convention”)
- Both Liberia and South Africa (the country from where the Prosecution obtained a purported Affidavit, to which was attached purported chain of emails and a Spreadsheet in which the statement of account ends at 30 June 2010) are parties to the Apostille Convention.

(2) SWISSAIR v. Kalaban, 35 LLR 49 (1988)
- The Supreme Court held that the Warsaw Convention to which Liberia is a party is part of the domestic law of Liberia.

(3) Davis v. Republic, 1 LLR 17
- The Supreme Court held that a treaty becomes domestic law when confirmed by the Legislature.

4.6. The Defense submits that applying the principles of law to the evidence adduced at this trial clearly show that the Prosecution did not carry the burden of proving the guilt of any of the Defendants beyond reasonable doubt for the commission of any one or more of the crimes for which they were indicted. The Defense also submits that the application of these principles of law to the evidence adduced at this trial by the Defense show that the Defense introduced sufficient evidence which exonerates them from the crimes charged in the Indictments.


V. Examination of the Quantum of Evidence Adduced by the Prosecution and Juxtaposition of the Prosecution’s Evidence against the Laws Which Govern the Case at Bar.

5.1 The Deceivers
The primary evidence introduced by the Prosecution is The Deceivers, published by Global Witness on the internet on May 11, 2016, eleven (11) pages of its eighty-five (85) pages covering the activities of Sable Mining and Andrew Groves in Liberia and the scams and frauds they allegedly engaged in, which are the origin of the Indictments against the Defendants. Below are some of the material accusations of The Deceivers against the Defendants, as follows:

(a) Page 3 of the introductory portion of The Deceivers reads in part, as follows:
“Global Witness drew on leaked emails and internal company files to map out Edmonds and Groves’ dealings, authenticating material with other sources and analyzing meta-data on the messages. The document cache includes spreadsheet listing bribes to top Liberian officials, …”. (EMPAHSIS OURS).

(b) Page 5 of the introductory portion of The Deceivers reads in part, as follows:
“When the law got in their way in Liberia, they paid bribes to change it.”

(c) Page 19 of the introductory portion of The Deceivers reads in part, as follows:
“Of course, not all of Edmonds and Groves’ corrupt deals were sophisticated market scams. In Liberia, they advanced their business with old-fashioned bribery.” (EMPHASIS OURS).

(d) Page 20 of The Deceivers is where this report actually begins on Liberia and on page 21, The Deceivers summarizes the reportage on Liberia in the following words:
“Edmonds and Groves came to West Africa in 2010, hungry for iron ore. When the country’s public procurement law interfered with their plans, they set out to change it. Leaked documents show how their London-listed Sable Mining spent hundreds of thousands of dollars bribing top officials. Behind the scheme was the chairman of Liberia’s ruling party, who doubled as Sable’s lawyer. (EMPHASIS OURS).

(e) Pages 21 to 22 of The Deceivers reads in parts, as follows:
“When Sable Mining came to Liberia in early 2010, almost all of the country’s most valuable iron ore fields had already been parceled out, Just one prized asset remained. Andrew Groves was prepared to do anything to get it.” (EMPHASIS OURS).
“’Groves became obsessed with Wologizi Mountain,’ an unmined range thought to contain a billon tonnes of ore, said one former colleague.”

(f) Page 22 of The Deceivers specifically reads in part, as follows:
“In his quest for mineral resources, Groves turned to Varney Sherman, Liberia’s best connected lawyer.”
“During 2010, shared his (Varney Sherman) offices as they drew up their plan for Wologizi.”
“One obstacles stood in their (Sable Mining) way. Wologizi had been earmarked for public tender – and in an open auction a smaller company might find itself outbid. But Sherman had a plan: if he could engineer a change in the law, they could circumvent the process. It would mean bribing a lot of people. He drew up a list, according to a source with knowledge of the company, and Sable’s London attorney started transferring the cash. (EMPHASIS OURS).
“By August 2010 Sable had paid out more than $200,000 earmarked for some of the most powerful people in Liberia: the speakers of both houses of parliament, senators, ministerial aides and at least one minister. The payments are listed in a cache of documents leaked to Global Witness, including a spreadsheet from Sherman’s law firm listing many of the biggest sums.” (EMPHASIS OURS).

(g) Page 24 to 25 of The Deceivers reads in part, as follows:
“Big miners like Australia’s BHP Billiton had already done early work at Wologizi, widely considered the country’s richest unattributed iron ore concession, though they had never got beyond the exploration stage. Now, with commodity prices at record levels, it was bound to be snapped up. Sable shouldn’t risk bidding in an open tender, Sherman told them”. (EMPHASIS OURS).
(h) Page 25 of The Deceivers reads in part, as follows:
“Unfortunately for Edmonds and Groves, a new Public Procurement and Concession Act was on its way through parliament. By bribing the right people Sable could get a loophole inserted allowing it to win the mountain without a tender, said Sherman, according to a source familiar with the scheme. The spreadsheet listing outflows from Sable’s client account with his firm Sherman & Sherman, gives details of the pay-offs.” (EMPHASIS OURS).

(i) Page 26 of The Deceivers reads in part, as follows:
“And a separate document shows half a million dollars in payment to ‘Bigboy 01’ and ‘Bigboy 02’ – whose identity Global Witness was unable to establish.” (EMPHASIS OURS).


5.2. The First Two Indictments of May 24 and June 8, 2016
These first two (2) indictments were merely a summation of the contents of The Deceivers; and the records of these first two (2) indictments reveal that it was Mr. Marc Kollie and Mr. D. Blamo Kofa (both of the LACC), who testified before the Grand Jury. Mr. Blamo Kofa later transferred his employment to the Liberia Revenue Authority (LRA). These were the only two (2) general/principal witnesses for the Prosecution at the first trial during the February 2017 Term of this Honorable Court.


5.3. The Special Presidential Taskforce Report of December 23, 2016 and the Third Indictment of January 3, 2017

The only difference between the accusations of The Deceivers and the Presidential Taskforce Report is that:

(i) Persons such as Hon. Sumo Kupee, Hon. Fumbah Sirleaf, Hon. Cletus Wortorson and other Hon. Henry Fahnbulleh, who were accused by The Deceivers as having received bribes, were exonerated, even though no reason was given for the exoneration;

(ii) Dr. Eugene Shannon and Hon. E.C.B. Jones were identified at the “Bigboy 01” and “Bigboy 02”, whom The Deceivers said were given half a million dollars for the same purpose of changing the 2005 PPCC Act to insert a Section 75 in the new 2010 PPCC Act, which provides for “Non-Bidding” process for acquisition of mineral rights in Liberia;

(iii) Mr. Heine van Niekerk, the principal manager for Sable Mining’s activities in Liberia, designated as one of the masterminds for the alleged schemes in Liberia, was not indicted; and

(iv) Dr. Eugene Shannon, Hon. Morris Saytumah and Prof. Willie Belleh were indicted.


5.4. The List of Twenty-Seven Witnesses by the Prosecution to Testify for the State.

As stated above, in compliance with the requirements of the Criminal Procedure Law that the Prosecution shall present to the court a list of its witnesses with copy to the Defense, the Prosecution in this case listed twenty-seven (27) witnesses. Some of these witnesses was: (i) Global Witness; (ii) Mr. Jonathan Gant, principal investigator for Global Witness; (iii) Mr. Heine van Niekerk, the principal manager for Sable Mining’s activities in Liberia; (iv) Mr. Klaus Piprek, an executive of Sable Mining in Liberia; and (v) Mr. Paul O’Sullivan. However, only Mr. Marc Kollie and Mr. Blamo Kofa were the two (2) general/principal witnesses for the State, who testified at the first trial during the February 2017 Term of this Court; and whose testimonies, upon motion of the Prosecution, were made a part of this second trial. It is clear that the Prosecution was aware that The Deceivers would not be sufficient as evidence to convict the Defendants. Under the Best evidence rule and the Hearsay rule cited above, that document was not, by itself, sufficient for a conviction. So, as testified to by Prosecution’s witnesses, Mr. Marc Kollie and Mr. Blamo Kofa, investigators from the Special Presidential Taskforce actually went to London, England to obtain evidence from Global Witness to be used for their investigation; but neither Mr. Kollie nor Mr. Kofa went to London. The person who appeared and testified that he went to London for the investigation to consult with Global Witness is Mr. Aaron H. Aboah, the principal investigator for the Special Presidential Taskforce; he co-signed the Special Presidential Taskforce Report along with Mr, Kollie and Mr. Kofa, but he testified, not as a general/principal witness; instead he testified as a rebuttal witness for the Prosecution. Among other things, Mr. Aboah testified instead of Global Witness giving the investigators the evidence which formed the basis for The Deceivers, Global Witness referred them to a Mr. Paul O’Sullivan, an investigative journalist of South Africa.

5.5. Foreign Witnesses Listed for the Prosecution
Of the twenty-seven (27) witnesses listed by the Prosecution to testify, four (4) should have come from the United Kingdom (including Global Witness itself and its investigator, Mr. Jonathan Gant), apparently to testify to the accusations of The Deceivers; but none of these listed four (4) witnesses testified at the first trial or at this second trial. Of the listed twenty-seven (27) witnesses, seven (7) should have come from South Africa (including Mr. Heine van Niekerk, Mr. Paul O’Sullivan and Mr. Klaus Piprek); but again none of these seven (7) witnesses testified at the previous trial or at this second trial. The Defense submits that assuming that any of these witnesses was unavailable and there was a legal reason for such unavailability, the Prosecution should have obtained their oral depositions and the documents to which they testify at the depositions. Criminal Procedure Law, Section 17.1.1; Matierzo v. Republic, 34 LLR 791 (1987). But the Prosecution did not get the deposition of any of these foreign witnesses. THE DEFENSE SUBMITS IT IS IMPOSSIBLE FOR THE PROSECUTION TO SUCCESSFULLY PROVE THE INDICTMENT BEYOND A REASONABLE DOUBT WITHOUT THE TESTIMONY OF THESE WITNESSES.
5.6. The purported Affidavit of March 7, 2017 purported signed by Mr. Heine Jan van Niekerk, to which is attached a purported thread of emails (apparently the emails referenced in The Deceivers) and a purported spreadsheet (apparently also referenced in The Deceivers).

(i) Well, even though this purported Affidavit was testified by witnesses for the Prosecution, the authenticity and legitimacy of this purported Affidavit for use in this trial was challenged by the Defense on several grounds, as follows:

(a) That the purported Affidavit was not signed by Mr. Heine van Niekerk and various reasons for this submission was testified to by Co-Defendant Sherman and never rebutted by the Prosecution, it being clear that since Co-Defendant Sherman admittedly did business with Mr. van Niekerk, Co-Defendant was familiar with the former’s signature;

(b) That the purported Affidavit was never authenticated for use at this trial or for any official purpose in Liberia, as it should have been authenticated in keeping with relevant requirements of the Apostille Convention, which is part of the domestic law of Liberia pursuant to the holding of the Supreme Court in the case: SWISSAIR v. Kalaban, 35 LLR 49 (1988), as both South Africa and Liberia are parties to the Apostille Convention.

(c) That there were inconsistencies in both the purported thread of emails and the purported spreadsheet, which obviously mean that the Yahoo account for Sherman & Sherman (This email address is being protected from spambots. You need JavaScript enabled to view it.) had been hacked and the emails and documents attached thereto had been doctored and hacked. A strong evidence of hacking and doctoring is that the aforesaid purported spreadsheet, contrary to basic accounting principles, says that it ends as of 30 June 2010 and yet had four (4) entries for July 2010 and four (4) entries for August 2010. This fact is also in light of the information at Page 27 of The Deceivers, which says the purported spreadsheet was emailed to Sable Mining by August 2010.

(ii) Nobody from Global Witness testified for the Prosecution to corroborate any of the accusations of The Deceivers; even the Mr. Paul O’Sullivan, with whom the investigators met in South Africa and who is alleged to have given the investigators evidence, which formed the basis of the Special Presidential Taskforce Report, actually came to Liberia in 2017 to testify at the first trial but when his criminal activities in South Africa were divulged in newspapers in Liberia, he quickly and surreptitiously left and never returned in 2017 or thereafter, not even for this second trial, which this Honorable Court has had docketed for commencement since December 2018. It should be recalled that it is the Prosecution which delayed the trial of this case since that time because, according to the Prosecution, they were trying to obtain their witnesses.

(iii) The Affidavit of March 7, 2017 purportedly signed by Mr. Heine Jan van Niekerk, to which is attached a thread of emails (apparently the emails referenced in The Deceivers) and a purported spreadsheet (apparently also referenced in The Deceivers) had no probative evidentiary value in this case for the reasons already discussed above.

(iv) Another reason why the Affidavit of March 7, 2017 purportedly signed by Mr. Heine Jan van Niekerk, to which is attached a purported thread of emails (apparently the emails referenced in The Deceivers) and a purported spreadsheet (apparently also referenced in The Deceivers) had no probative evidentiary value in this case is the testimony of Mr. Aaron Aboah, the Prosecution’s own rebuttal witness. He testified, among other things, that the investigators went to South Africa to meet Mr. Paul O’Sullivan and Mr. Klaus Piprek but they did not meet Mr. Klaus Piprek. He also testified that the investigators left South Africa with no Affidavit. SO WHAT IS THE SOURCE OF THE AFFIDAVIT WHICH THE PROSECUTION HAD TESTFIED TO BY MR. MARC KOLLIE AND MR. BLAMO KOFA, WHO ADMITTED THAT THEY NEVER WENT TO SOUTH AFRICA FOR THE INVESTIGATION?

(v) The Prosecution had admitted into evidence a document marked by the Court “P/5”, which carries the title: “Companies run by ex-cricketer Phil Edmonds paid bribes to officials”, which said among other things that Mr. Heine Van Niekerk, the alleged writer of the March 7, 2017 Affidavit, denied paying any bribes to anyone in Liberia. This Exhibit “P/5” (the Prosecution’s own document) contradicts the aforesaid March 7, 3017 Affidavit, thereby making both documents a legal nullity.

5.7. The Failure of the Prosecution to Have Other Documents from South Africa Properly Authenticated for Use in this Trial.

(i) The Defense challenged the authenticity of all the documents which the Prosecution obtained from South Africa for reasons: (1) none of the two (2) witnesses who testified to these documents was the person who obtained them; and (ii) the documents were not authenticated for use in a legal proceeding or any other official matter in Liberia pursuant to the requirements of the Apostille Convention. In the face of those challenges, it was necessary for the Prosecution to prove that these documents obtained from South Africa were authentic; but the Prosecution did not. While Rebuttal Witness Aboah testified that the investigators obtained a bulk of documents from South Africa, he also admitted that those documents were never notarized; which failure was a complete violation of the Apostille Convention, which is part of the domestic law of Liberia. SWISSAIR v. Kalaban, 35 LLR 49 (1988).

(ii) Another issue which those documents obtained from South Africa faced is that it is Mr. Marc Kollie and Mr. Blamo Kofa, general/principal witnesses for the Prosecution, who testified to those documents, but neither of them obtained the documents as none of them went to London or South Africa for the investigation. The Defense submits that those documents cannot therefore have any probative value in this trial as the Supreme Court has held that in a criminal case the prosecution may not introduce in evidence a statement made by an unavailable witness merely identifying the statement as that of an unavailable witness, for such procedure violates the rule against hearsay and the constitutional right of confrontation possessed by an accused. Serjleh v. Republic, 20 LLR 371 (1971)

5.8. The alleged separate document which shows half a million dollars in payments to ‘Bigboy 01’ and ‘Bigboy 02’, whose identity The Deceivers was unable to establish (Page 26 of The Deceivers) and the contents of the Special Presidential Taskforce Report (page 12) which identifies Co-Defendant Shannon and Co-Defendant Jones as the recipients of said US$500,000.00.

(i) It should be recalled that Rebuttal Witness Aboah said that the investigators got no evidence from Global Witness when they visited London but that Global Witness referred the investigators to a Mr. Paul O’Sullivan, an investigative journalist, who was identified by the Defense as a criminal forensic investigator. The identification of Mr. Paul O’Sullivan as a criminal forensic investigator was never rebutted by the Prosecution. Rebuttal Witness Aboah, however, also said that another reason why the investigators went to South Africa was to meet and talk with Mr. Klaus Piprek, identified in the Special Presidential Taskforce Report as County Director for Sable Mining in Liberia, but Mr. Aboah testified that they never met Mr. Klaus Piprek. Rebuttal Witness Aboah further testified that the statement they relied on to conclude that US$500,000.00 was given by Sable Mining to Co-Defendant Shannon and Co-Defendant Jones was given to them by the late Counsellor T.C. Gould, who was one of counsel for the Special Presidential Taskforce, but was not an investigator and never went to South Africa for the investigation. This document, like every other document, was not notarized, as required by the Apostille Convention.

(ii) Rebuttal Witness Aboah also further testified that Mr. Klaus Piprek promised to come to Liberia to testify at the first trial but he did not come then and he never came to testify for the Prosecution in this second trial. Assuming, without conceding, that Mr. Piprek gave documents to the late Counsellor T.C. Gould, which he passed to the Special Presidential Taskforce, in the absence of authentication of those documents pursuant to the requirement of the Apostille Convention or the testimony of Mr. Klaus Piprek at this trial, the Defense submits that those documents have no probative evidentiary value.

(iii) In the face of the laws on hearsay evidence cited above, it is clearly obvious that the Prosecution did not prove beyond a reasonable doubt that Co-Defendant Shannon and Co-Defendant Jones are the ‘Bigboy 01’ and ‘Bigboy 02’ referred to by The Deceivers and there is no conclusive evidence that they received US$500,000.00 or any other amount of money as bribes for the insertion of Section 75 into the Draft 2010 PPCC Act when it was before the Legislature for enactment into law as the 2010 PPCC Act. This means that the question as to whether the Prosecution proved beyond reasonable doubt, as alleged at Page 26 of The Deceivers that: “And a separate document shows half a million dollars in payment to ‘Bigboy 01’ and ‘Bigboy 02’ – whose identity Global Witness was unable to establish” is conclusively settled in favor of the Defendants. (EMPHASIS OURS).

5.9. Did the Prosecution prove beyond reasonable doubt, as alleged in the introductory portion of The Deceivers (page 5) that any law was in the way of Sable Mining and its executives and that they paid bribes to change it? Or did the Prosecution prove that Edmonds and Groves of Sable Mining advanced their business in Liberia with old-fashioned bribery as alleged in page 19 of The Deceivers?

(i) The answer to both question is “NO”! While it is true that the 2005 PPCC Act, especially Part VI thereof provides that all acquisitions of mineral rights shall be by competitive bid and because of the insufficiency of geological information on some mineral deposits it was impossible for the Liberian Government to put out such areas for competitive tender, with the assistance of international experts funded by the European Union, Regulation No. 002 was promulgated in August 2007, which allowed for Exploration Licenses for minerals on a “first come first served principle”; this is the process through which BHP Billiton obtained exploration license for the Wologizi Mountain, which exploration works are referred to pages 24 to 25 of The Deceivers. The Defense submits that Sable Mining could have done just as BHP Billiton did, which the Special Presidential Taskforce Report acknowledges at page 12 thereof that Sable Mining did. This means that there was no incentive or other reason for Sable Mining to bribe anybody to insert a Section 75 in the 2010 PPCC Act while the draft of the law was at the Legislature for enactment as alleged by The Deceivers, the Special Presidential Taskforce Report and the Indictments. The only difference between the information in the Special Presidential Taskforce Report and the evidence adduced by the Defense is that the Special Presidential Taskforce Report erroneously reported that Sable Mining was the third (3rd) company to apply for an exploration license for the Wologizi Mountain while the Defense says that Sable Mining was the eleventh (11th) company.

5.10. Did the Prosecution prove beyond reasonable doubt, as alleged on pages 20 to 21 of The Deceivers that “Edmonds and Groves came to West Africa in 2010, hungry for iron ore. When the country’s public procurement law interfered with their plans, they set out to change it. Leaked documents show how their London-listed Sable Mining spent hundreds of thousands of dollars bribing top officials. Behind the scheme was the chairman of Liberia’s ruling party, who doubled as Sable’s lawyer. (EMPHASIS OURS).

(i) The answer to this question is a resounding “NO”! It is clear from the evidence adduced at the trial, particularly the testimony of Rebuttal Witness Aaron Aboah for the Prosecution that Global Witness never gave the investigator the alleged “leaked document” which were to show how Sable Mining spent hundreds of thousands of dollars bribing top officials of the Liberian Government. What Witness Aboah testified to is that instead of Global Witness giving the investigators the evidence it had (assuming that it had such documentary evidence), Global Witness referred the investigators to a Mr. Paul O’Sullivan, an investigative journalist of South Africa. Witness Aboah also testified that while it is true that the investigators got a bulk of documents from South Africa, none of those documents were notarized or otherwise authenticated; pursuant to the requirements of the Apostille Convention those unauthenticated documents have no probative value in this trial.

(ii) The Defense submits that in the absence of authentication of those “leaked documents”, there is no evidence, absolutely no evidence, which proves that Sable Mining paid any monies to bribe top officials of the Liberian Government.


5.11. Did the Prosecution prove beyond reasonable doubt, as alleged at pages 21 to 22 of The Deceivers that Wologizi was Liberia’s most “prized asset” and Andrew Groves was prepared to do anything to get it.” (EMPHASIS OURS). Did the Prosecution proved beyond reasonable doubt that “’Groves became obsessed with Wologizi Mountain,’ an unmined range thought to contain a billon tonnes of ore, said one former colleague.”

(i) Again the answer to this question is “NO”! The Defense produced evidence which should convince any person that the Wologizi Mountain has never been a prized iron ore assets of Liberia. That evidence was supported by the explorations works conducted in the 1960s and 1970s by the Liberia Iron and Steel Corporation and recently between 2004 and 2008 by BHP Billiton; and none of these companies applied for an agreement to exploit the iron ore deposit in that mountain. As stated earlier, even The Deceivers (at pages 24 to 25 thereof) acknowledged that BHP Billiton, the largest iron ore mining company, conducted exploration works but never asked for an agreement to mine the iron ore in the Wologizi Mountain. So it is not true that the Wologizi Mountain contains a billion tonnes of iron ore; and it is also untrue that Mr. Andrew Groves was obsessed with the Wologizi Mountain and was prepared to do anything to get it, as alleged by The Deceivers.


5.12. Did the Prosecution conclusive prove that Co-Defendant Sherman, as alleged on Page 22 of The Deceivers, draw up any plan for Sable Mining to get Wologizi.? Or did Co-Defendant Sherman identify any obstacle in Sable Mining’s way, which was the fact that Wologizi had been earmarked for public tender and therefore Co-Defendant Sherman hatched this plan: if he could engineer a change in the law, they (Sable Mining) could circumvent the process. It would mean bribing a lot of people. And is it true that Co-Defendant Sherman then drew up a list, according to a source with knowledge of the company, and Sable’s London attorney started transferring the cash?(EMPHASIS OURS).

(i) Again, Your Honor, the answer is a resounding “NO”! The mere fact that The Deceivers acknowledged that the Wologizi Mountain had been earmarked for competitive tender by the time Sable Mining came to Liberia in 2010 contradicts the proposition that Co-Defendant Sherman hatched a plan to circumvent that process. Nobody’s plan could have circumvented that process. According to the evidence adduced at the trial, the Defense introduced into evidence an Technical Evaluation Report prepared by Venmym Rand Limited PTY in May 2009 (funded by USAID and IBI International of the USA), which proposed that the Wologizi Mountain be put out for competitive tender. Also, President Sirleaf’s Cabinet had long before Sable Mining came to Liberia decided that Wologizi Mountain would be put out for tender. So there was no efficacy in any plan to circumvent that process, which had been concluded before Sable Mining came to Liberia. The Deceivers merely created a fiction of its author’s imagination and the Special Presidential Taskforce did not have the courage to tell the truth.

5.13. The Deceivers alleged that “By August 2010 Sable had paid out more than $200,000 earmarked for some of the most powerful people in Liberia: the speakers of both houses of parliament, senators, ministerial aides and at least one minister. The payments are listed in a cache of documents leaked to Global Witness, including a spreadsheet from Sherman’s law firm listing many of the biggest sums.” (EMPHASIS OURS). Was this allegation proved beyond reasonable doubt?

At Page 25 of The Deceivers reads in part, as follows:
“Unfortunately for Edmonds and Groves, a new Public Procurement and Concession Act was on its way through parliament. By bribing the right people Sable could get a loophole inserted allowing it to win the mountain without a tender, said Sherman, according to a source familiar with the scheme. The spreadsheet listing outflows from Sable’s client account with his firm Sherman & Sherman, gives details of the pay-offs.” (EMPHASIS OURS). Did the Prosecution prove this second allegation beyond reasonable doubt?

(i) The answer to both question is “NO”! The purported spreadsheet which The Deceivers relied on was proved by the Defense to be doctored/altered when the Yahoo email for Co-Defendant Sherman’s firm (Sherman & Sherman) was hacked. And confirmation of this change is the accounting inconsistency in the purported spreadsheet, where it says that it is a statement of account that ends on 30 June 2010 but it has four (4) entries for July 2010 and four (4) entries for August 2010. More than this, the Defense introduced into evidence what was referred to as the real and actual spreadsheet, which ends at 31 August 2010 and gives a legitimate business purpose for each entry that the purported spreadsheet gives as payment of bribe to a Liberian Government official.

(ii) Also, the purported spreadsheet submitted by the Prosecution was never authenticated (whether obtained from London or South Africa) pursuant to the provisions of the Apostille Convention and nobody who originally came into possession of it testified to its authenticity. On the contrary, Co-Defendant Sherman personally testified to the authenticity and genuineness of the actual and real spreadsheet which ends at 31 August 2010 and therefore accounts for the four (4) entries of July, 2010 and the four (4) entries of August 2010. Certainly, as between the allegations of the The Deceivers about this purported spreadsheet which says it ends on 30 June 2010, which allegations were repeated by the Special Presidential Taskforce Report, and the spreadsheet proffered by Co-Defendant Sherman, which ends at 31 August 2010 and accounts for each payment therein as legitimate business purpose of Sable Mining, obviously, the 31 August 2010 spreadsheet is proved to be the proper accounting of those funds.

5.14. Did the Prosecution proved beyond reasonable doubt that, as alleged at Page 25 The Deceivers that: “Unfortunately for Edmonds and Groves, a new Public Procurement and Concession Act was on its way through parliament? That … “By bribing the right people Sable could get a loophole inserted allowing it to win the mountain without a tender, said Sherman, according to a source familiar with the scheme?” Or that “… The spreadsheet listing outflows from Sable’s client account with his firm Sherman & Sherman, gives details of the pay-offs?” (EMPHASIS OURS).

(i) The answers to this series of questions is the same “NO”, “NO” and “NO”. Not only for these last series of questions but for each facts averred by and/ or question raised by THE DECEIVERS and the Special Presidential Taskforce Report, not a scintilla of evidence was adduced to prove beyond reasonable doubt that any of the Defendants committed any one or more of the crimes for which any one or more of them was indicted.

5.15. The Defense submits that it is their own evidence, which shall exonerate them from all the crimes for which they were indicted and have undergone trial these past three weeks.

 

VI. EXAMINATON OF THE QUANTUM OF EVIDENCE ADDUCED BY THE DEFENSE TO EXONERATE THEM FOR THE INDICTMENTS

6.1. Witnesses for the Defense
(i) The Defense presented as witnesses for the Defendants the following persons: (1) Co-Defendant Varney Sherman; (2) Co-Defendant E.C.B. Jones; (3) Co-Defendant Alex Tyler; (4) Ms. Mildred Sayon, Chief Clerk of the House of Representatives (a subpoenaed witness); (5) Hon. Joseph Neufville, former Executive Director and former Technical Advisor of the Public Procurement and Concessions Commission (also a subpoenaed witness); and (6) Hon. Emmanuel O. Sherman, former Director of the Liberia Geological Surveys of the Ministry of Lands, Mines and Energy, former Assistant Minister of the Ministry of Lands, Mines and Energy and now Deputy Minister for Operations of the Ministry of Mines and Energy (also a subpoenaed witness). In addition to the oral testimonies of these witnesses, several documents were testified to, identified, marked by the Court, confirmed, ordered confirmed by the Court and admitted into evidence on behalf of the Defense.

6.2. Testimonies of Co-Defendant Sherman and Co-Defendant Jones
(i) Co-Defendant Sherman identified himself as a lawyer who holds the LL.M. degree in the field of International Business Law, with emphasis on trade and investment, and that since obtaining his LL.M. degree in 1982 he has practiced investment law in Liberia and is knowledgeable about the investment laws of this country. He testified about his relationship with Mr. Heine van Niekerk, which started when Mr. van Niekerk’s South African company, Delta Mining Consolidated PTY, was denied the right to conclude negotiations for a Mineral Development Agreement with the Liberian Government after that company had won the bid for the Western Clusters Iron Ore Deposits of Liberia. He said that his firm instituted legal action against the Liberian Government for the wrongful termination of the negotiation process with Delta Mining Consolidated PTY. He testified that this law suit was eventually settled with merely a promise from the Liberian Government that Mr. van Niekerk should let go of the Western Clusters Iron Ore Deposits at that time so that the Liberian Government would offer it for a second competitive bid. In return Mr. van Niekerk could make an offer for any other mineral resource and he would be given a favorable consideration; and Mr. van Niekerk agreed. A few months after settlement of this legal case, Mr. Phil Edmonds and Mr. Andrew Groves, who were doing business under several names, including Sable Mining, approached Mr. van Niekerk with a proposal for a merger of Delta Mining Consolidated PTY into Sable Mining. It is while this proposal was under consideration that Mr. van Niekerk returned to Liberia in late February 2010 to try to make good on the Liberian Government’s promise that it would give him a favorable consideration should he have interest in another mineral resource; and this is when the services of Co-Defendant Sherman’s firm (Sherman & Sherman) was engaged for the second time by Mr. van Niekerk to provide legal services to Sable Mining. This testimony on the origin of the relationship between Co-Defendant Sherman and Sable Mining was never rebutted by the Prosecution.

(ii) Co-Defendant Sherman also testified on the origin of “Non-Bidding Area” provisions of Section 75 of the 2010 PPCC Act. He further testified that the 2000 Mineral and Mining Law provides that any applicant with the financial resources and the technical capacity could apply for a mineral right, which could start with either a prospecting license, reconnaissance license or exploration license for any mineral deposit but the 2003 Comprehensive Peace Agreement established the Contracts and Monopoly Commission and provided that all contracts should be first submitted to a competitive tender. Co-Defendant Sherman also testified that pursuant to the provisions of the 2003 Comprehensive Peace Agreement, the NTGL Government adopted a Procurement Policy based on competitive tender principle, which was given legal effect by an Executive Order No. 3. Thereafter in 2005, according to Co-Defendant Sherman, with the assistance of international experts, the Public Procurement and Concession Act 2005 was drafted and enacted into law in September 2005 (the “2005 PPCC Act”); which mandated competitive tender prior to the award of any contract or concession. Now, there was an inconsistency, according to Co-Defendant Sherman, between the 2000 Mineral and Mining Law and the 2005 PPCC Act, which affected areas of mineral deposits for which the Liberian Government did not have sufficient geological information to put out for a competitive tender. It was to address this inconsistency that international experts assisted the PPCC in promulgating Regulation No. 002 which was the interim procedure for obtaining exploration license for minerals in Liberia on a “first come first served” or “first come first assessed” basis. Again Co-Defendant Sherman’s testimony was not rebutted by the Prosecution; but importantly, his testimony was corroborated by Co-Defendant Jones when he took the stand and testified as the second witness for the Defense.

(iii) Co-Defendant Sherman also further testified that because Regulation No. 002 was inconsistent with the 2005 PPCC Act, it became further necessary to conduct a more comprehensive study of the 2000 Minerals and Mining Law and the 2005 PPCC Act and harmonize these two laws. For this exercise a Ghanaian mineral expert, with funding from USAID, was contracted; and in October 2008 he issued a Report in which he commended Regulation No. 002 as a universally recognized process for obtaining mineral rights where there is insufficient geological information but was concerned that said Regulation No. 002 had no legal effect since it contradicted the 2005 PPCC Act. Mr. Tsikata, according to Co-Defendant Sherman, proposed a complete amendment of the 2005 PPCC Act. Again, this testimony by Co-Defendant Sherman was never rebutted by the Prosecution; instead it was corroborated by Co-Defendant Jones.

(iv) The Defense says that for purposes of debunking the accusation that the idea of a “Non-Bidding Area” in the 2010 PPCC Act was conceived by Co-Defendant Sherman to give Sable Mining a competitive edge to get the mineral rights to the Wologizi Mountain, the basic proposals of the October 2008 Report of Mr. Tsikata on the Harmonization of the Mineral and Mining Law with the Public Procurement and Concession Act are stated below:
(a) First, Section 73 of the 2005 PPCC Act should be amended to give the proper definition for “concessions” and separate definition be included for mineral rights which are not intended to be “concessions”;
(b) Second, there the consultations led to the recognition that for some areas of mineral deposits there was insufficient information for the award of any license on the basis of competitive bidding procedure, as without sufficient information bid proposals could not be formulated;
(c) Third, PPCC Regulation 002, which is the Interim Procedure for Issuing Exploration Licenses and which envisages the grant of exploration license without a bid based on the “first come first served principle” was appropriate and widely practiced but because it was inconsistent with the 2005 PPCC Act, a primary law, said PPCC Regulation 002 had no legal effect and therefore it was necessary to amend the 2005 PPCC Act to include the underlying principles of PPCC Regulation No. 002; and
(d) Fourth, that it was unfair for one applicant to explore for minerals, find information on commercial quantity and have to compete with others who did not make any investment for the minerals that applicant discovered, and accordingly, it was necessary to amend the 2005 PPCC Act to address this anomaly.

(v) The Defense says that the 2008 Tsikata Report, which was vetted by other international experts and local technicians, formed the basis for amendment of the 2005 PPCC Act to the 2010 PPCC Act and for the inclusion of “Non-Bidding Area” as a process for acquisition of mineral rights in Liberia. It was not any Plan hatched by Co-Defendant Sherman and Sable Mining did not pay any bribes for the 2008 Tsikata Report and the subsequent works on the review and drafting of the law as described by the 2007, 2008 and 2009 Annual Reports of the PPCC and as The Deceivers itself admits that Sable Mining did not come to Liberia until late February 2010.

(vi) Co-Defendant Sherman also further testified that the process for review and amendment of the 2005 PPCC Act started in earnest in 2008 and ended in 2009 and the 2007, 2008 and 2009 Annual Reports of the PPCC discussed this process. Eventually in December, 2009, the PPCC issued a working document entitled: “Amendment and Restatement of the Public Procurement and Concession Act, 2005 (hereinafter the “2009 Working Document”). He testified that this 2009 Working Document contained the Section 75, which he and others have been indicted for committing multiple crimes for allegedly inserting in the draft of the 2010 PPCC Act, when this latter document was at the Legislature for enactment into law. The Prosecution never rebutted this evidence; but more than that, this evidence was again corroborated by the testimony of Co-Defendant Jones.

(vii) As testified to by Co-Defendant Sherman and corroborated by Co-Defendant Jones, this 2009 Working Document carried explanatory notes and for each provision the names of those international experts who proposed any revision is included and comments made on the need for that revision of the 2005 PPCC Act is also included.

(viii) The Defense prays Your Honor to take judicial notice that these testimonies are consistent with the documents testified to be Co-Defendant Sherman and Co-Defendant Jones and are true and correct, particularly with respect to Section 75 of the 2009 Working Document and the provision for “Non-Bidding Area” as a new process for acquisition of mineral rights in Liberia. The Defense prays Your Honor to take judicial notice that in that same Section 75, reference is made approximately nine (9) times to “Non-Bidding Area” as a process for acquisition of mineral rights in Liberia and reference is made approximately two (2) times to Regulation No. 002 ( the Interim Procedure for the Issuance of Exploration Licenses). Again, Defense says that the Prosecution did not rebut this testimony and Co-Defendant Jones corroborated it.

(ix) The Defense interposed the rhetorical question on whether Global Witness was unaware of the existence of the 2009 Working Document when it first accused the Defendants of bribery and multiple other crimes to insert this Section 75 in the draft of the law while it was pending before the Legislature. The second rhetorical question is why didn’t the Special Presidential Taskforce discover the existence of this 2009 Working Document and try to determine its implications on the accusations made by Global Witness in THE DECEIVERS against the Defendants, especially when Sable Mining came to Liberia in late February 2010. The third rhetorical question is why didn’t the Special Presidential Taskforce investigate into the process which covered the review of the 2005 PPCC Act and the drafting and enactment of the 2010 PPCC Act as its replacement; all of which information could have been obtained from the 2007, 2008 and 2009 Annual Reports of the PPCC. These rhetorical question, the Defense argues, should reveal to any honest and fair person that the Defendants have been falsely and wrongfully indicted for the commission of the multiple crimes for which they have been subjected to trial.

(x) Co-Defendant Sherman also further testified, corroborated by Co-Defendant Jones, that by a letter dated August 5, 2010, President Sirleaf eventually sent a draft of the Amendment and Restatement of the Public Procurement and Concession Act, 2005 (hereinafter the “Draft 2010 PPPC Act”) to the Legislature for enactment. The Defense prays Your Honor to take judicial notice that the Prosecution had admitted into evidence the aforesaid August 5, 2010 letter from President Sirleaf to the Legislature; but the Defense especially prays Your Honor to recall that both Mr. Marc Kollie and Mr. Blamo Kofa, general/principal witnesses for the Prosecution, testified that they never read the Draft 2010 PPPC Act, which President Sirleaf sent to the Legislature. Well, this same Section 75, which was in the 2009 Working Document, was in the Draft 2010 PPPC Act, which President Sirleaf sent to the Legislature for enactment into law; and this fact was testified to by Co-Defendant Sherman, and was corroborated by Co-Defendant Jones. The Defense urges upon Your Honor to compare the two (2) instruments and you will observe these testimonies to be true and correct. The Defense also prays Your Honor to take judicial notice that the Prosecution never rebutted these testimonies.

(xi) The Defense submits that Co-Defendant Sherman testified that when the Draft 2010 PPPC Act was enacted into law by the Legislature, this Section 75, and its provisions on Regulation No. 002 for exploration license and its provisions for Non-Bidding Area process for acquisition of mineral rights were not disturbed. Again, Co-Defendant Jones corroborated this testimony. And again, the Defense urges Your Honor to make your own comparison of the Draft 2010 PPPC Act with the final Amendment and Restatement of the Public Procurement and Concession Act, 2005 (hereinbefore the “2010 PPCC Act”), and from this comparison you too will confirm this fact to be true and correct. Very importantly, again the Prosecution never rebutted these testimonies.

(xii) The next rhetorical question which the Defense interposes and prays Your Honor to ponder upon as you review the evidence in this case and juxtaposed it against the law controlling is how Global Witness made the accusations in THE DECEIVERS against the Defendants in the face of this overwhelming evidence to the contrary; and how is it that the Special Presidential Taskforce overlooked or ignored this overwhelming evidence?

(xiii) The Defense now prays Your Honor to take judicial notice that all the documents and instruments referred to by Co-Defendant Sherman in his testimony were identified, marked, confirmed, order confirmed and re-confirmed and ordered re-confirmed and admitted into evidence with no objection from the Defense. Those documents were also testified to and identified by Co-Defendant Jones. These documents are all official documents of the Liberian Government and so their authenticity and genuineness are unquestionable.

(xiv) Your Honor, the Defense pleads with you to take judicial notice that, notwithstanding cross-examination, the Prosecution did not discredit the testimonies of Co-Defendant Sherman or Co-Defendant Jones; instead the Prosecution gave notice of rebuttal to some of the answers that the Co-Defendant Sherman and Co-Defendant Jones gave to questions on the cross examination. The two (2) rebuttal witnesses whom the Prosecution brought testified but their testimonies did not discredit or undermine the testimonies of Co-Defendant Sherman and Co-Defendant Jones. THE TRUTH CAN’T BE DISCREDITED IN A COURT OF LAW.


6.3. ADDITIONAL AFFIRMATIVE EVIDENCE ADDUCED BY THE DEFENSE

(i) The Defense prays Your Honor to take judicial notice that additional affirmative evidence was adduced by the Defense against the indictments.

(ii) The Testimony of Co-Defendant Tyler.
(a) Co-Defendant Alex Tyler was Speaker of the House of Representatives during the period of review, drafting and enactment of the law. He denied knowing a Mr. Klaus Piprek, who is alleged in one of the purported emails to have been called by Co-Defendant Tyler, and requested to give US$250,000.00 to assist in the “passage” of the law by the Liberian Senate. That email, which is the evidence of this allegation, says that the bribe would have been used for “passage” of the law at the Liberian Senate, which is headed by a President Pro Tempore, not for “passage” of the law by the House of Representatives, which was headed by Co-Defendant Tyler in his capacity as Speaker at that time. This inconsistency undermines the credibility of the purported email. Besides, Co-Defendant Tyler also denied receiving any money from Co-Defendant Sherman, Sable Mining or anybody else to influence the insertion of Section 75 in the Draft 2010 PPCC Act while it was at the Legislature for enactment.
(b) These denials were not enough for Co-Defendant Tyler; he confirmed that the Draft 2010 PPPC Act, which President Sirleaf sent to the Legislature for enactment carried Section 75; that no change was made to the aforesaid Section 75 when the law was enacted by the House of Representatives and the Senate; and that the Section 75 was part of the law, which President Sirleaf approved and had published in September 2010 (the 2010 PPCC Act).
(c) Again, except for the earlier testimonies of Prosecution’s witness Marc Kollie and Blamo Kofa, who falsely testified that Section 75 was inserted in the Draft 2010 PPCC Act when that law was at the Legislature for enactment, the Prosecution did not otherwise discredit Co-Defendant Tyler’s testimony; instead they gave notice to bring rebuttal witnesses but none of the two (2) rebuttal witnesses who testified for the Prosecution rebutted this specie of evidence.

(ii) Corroboration of Co-Defendant Tyler’s testimony by Subpoenaed Witness Mildred Sayon, Chief Clerk of the House of Representatives
(a) Ms. Mildred Sayon, Chief Clerk of the House of Representatives, who testified that she was Chief Clerk of the House of Representatives when President Sirleaf, by a letter dated August 5, 2010 addressed to Co-Defendant Tyler, transmitted the Draft 2010 PPCC Act for enactment into law. Ms. Sayon, who was subpoenaed by the Defense, also testified that the Draft 2010 PPCC Act was enacted as the 2010 PPCC Act and that no change was made to Section 75, which was in the Draft 2010 PPCC Act.
(b) The Defense prays Your Honor to recall that the Chief Clerk of the House brought with her the original August 5, 2010 letter from President Sirleaf, the Draft 2010 PPCC Act and the enacted 2010 PPCC Act. She compared the originals that she brought with her with the copies which had been testified to, identified, marked by court, confirmed and ordered re-confirmed and she confirmed that they were the same.
(c) The testimony of the Chief Clerk of the House of Representatives was never rebutted or otherwise discredited.
(iii) Corroboration of the Testimonies of Co-Defendant Sherman and Co-Defendant Jones by Subpoenaed Witness Joseph Neufville, former Executive Director and former Technical Assistant of the PPCC
(a) In submitting the evidence gathered from the testimony of subpoenaed witness Joseph Neufville, former Executive Director and former Technical Assistant at the PPCC, the Defense first prays Your Honor to recall that on the cross examination both Mr. Marc Kollie and Mr. D. Blamo Kofa, signatories to the Special Presidential Taskforce Report and who allegedly were also members of the team of investigators, testified that during the course of their investigation into the allegations of The Deceivers they never talked to anybody from the PPCC. WHAT A GROSS NEGLIGENCE! WHAT A GROSS OVERSIGHT!
(b) Mr. Joseph Neufville testified that he was the Executive Director of the Public Procurement and Concession Commission from January, 2006 to February 2009 and was the Technical Advisor to the Public Procurement and Concession Commission from February 2009 to 2013. He also testified that the process of amendment and restatement of the 2005 PPCC Act to the 2010 PPCC Act was under his supervision. And the Defense prays Your Honor to take judicial notice that Mr. Neufville confirmed every aspect of the history of the 2010 PPCC Act, as testified to by Co-Defendant Sherman and Co-Defendant Jones, beginning with the 2000 Minerals and Mining Law and its incompatibility with the 2005 PPCC Act, Regulation No. 002, the 2009 Working Document, the history of the laws as explained in the 2007, 2008 and 2009 Annual Reports of the PPCC, the Draft 2010 PPCC Act and the enacted 2010 PPCC Act. This witness, Your Honor, corroborated every aspect of the testimonies of Co-Defendant Sherman and Co-Defendant Jones, especially the involvement of international experts in the process of reviewing and drafting the amendment to the 2005 PPCC Act to arrive at the 2010 PPCC Act and the fact that it is these international experts who proposed and drafted Section 75, validated the reason for including Non-Bidding Area as a process for acquisition of mineral rights in Liberia. Simply, stated Mr. Neufville confirmed the submission of the Defendants that they did not give or receive bribes to influence the inclusion of Section 75 in the new law.
(c) The Defense prays Your Honor to take judicial notice that on cross-examination the testimony of Mr. Joseph Neufville was never discredited. In fact, each answer to questions on the cross examination only solidified and intensified his expertise and knowledge about the process of amending and restating the 2005 PPCC Act to the 2010 PPCC Act.

(iv) Corroboration of the Testimonies of Co-Defendant Sherman, Co-Defendant Jones and Subpoenaed Witness Neufville by Subpoenaed Witness Emmanuel O. Sherman, former Director of Geological Surveys of the Ministry of Lands, Mines and Energy and now of the Ministry of Mines and Energy; former Assistant Minister for Exploration of the Ministry of Lands, Mines and Energy; and now former Deputy Minister for Operations of the Ministry of Mines and Energy.
(a) Not to bore Your Honor with too much information at this summation, the Defense prays Your Honor to take judicial notice that Subpoenaed Wtiness Emmanuel Sherman confirmed the testimonies of Co-Defendant Sherman, Co-Defendant Jones and subpoenaed witness Mr. Joseph Neufville. Prior to that Co-Defendant Sherman had testified that the same Mr. Emmanuel O. Sherman and a Mr. Carlton Miller, both of whom were senior staff members at the Ministry of Lands, Mines and Energy, served as technicians seconded to the process of reviewing the 2000 Minerals and Mining Law and the 2005 PPCC Act and harmonizing these two laws. These two (2) officials of the Liberian Government testified at their confirmation hearing before the Liberian Senate on February 16, 2018 for their re-appointments at the Ministry of Mines and Energy, that Defendants were not responsible for the insertion of Section 75 in the 2010 PPCC Act but that it was they, at the Ministry of Lands, Mines and Energy, the Public Procurement and Concession Commission, with the assistance of international experts, who made the changes to the law and at that testimony they justified why “Non-Bidding Area” was included in Section 75 as a process for acquisition of mineral rights in Liberia. Newspaper reports of that February 16, 2018 testimony were admitted into evidence without any objection and Mr. Emmanuel O. Sherman basically repeated that earlier testimony.
(b) In addition to that and without specifically saying that Wologizi was a prized iron ore deposit, Subpoenaed Witness Sherman also confirmed the testimonies of Co-Defendant Sherman and Co-Defendant Jones on the history of exploration works done on the Wologizi Mountain for iron ore, beginning from the 1960s and 1970s with the Liberia Iron and Steel Corporation to the 2000s with BHP Billiton, the largest iron ore mining company in the world. He also testified that Venmym Rand Limited, with funding from USAID, conducted an investigation of the Wologizi Mountain and presented a Technical Evaluation Report in May 2009, which recommended that notwithstanding the limited data on Wologizi Mountain it should be offered competitive tender.
(c) The testimony of Mr. Emmanuel O. Sherman was never rebutted or discredited. And Your Honor is requested to take judicial note of the fact that Mr. Emmanuel O. Sherman’s testimony was given in context of admissions made by Mr. Marc Kollie and Mr. Blamo Kofa that the Special Presidential Taskforce never talked to anybody from the Ministry of Lands, Mines and Energy when it conducted its investigation and issued the Special Presidential Taskforce Report. The Defense also prays Your Honor to take judicial notice that both Mr. Joseph Neufville and Mr. Emmanuel O. Sherman identified Regulation No. 002, the 2009 Working Document, the Draft 2010 PPCC Act, which President Sirleaf sent to the Legislature for enactment, and the finally enacted 2010 PPC Act.

(v) Other Affirmative Evidence Adduced by the Defense
(a) The Defense prays Your Honor to take judicial notice that evidence was adduced and never rebutted or discredited; and this evidence proved that the Wologizi Mountain does not have “prized iron ore deposits” as alleged by THE DECEIVERS. This specie of evidence was first introduced by Co-Defendant Sherman, who testified and introduced exploration reports which show that in the 1960s, 1970s and as recently as 2004 to 2008 exploration licenses had been issued and exploration works conducted for iron ore in the Wologizi Mountain but no agreement was entered into for its exploitation. Co-Defendant Jones corroborated this testimony and subpoenaed witness Mr. Emmanuel O. Sherman also corroborated this testimony. The reports for these explorations were testified to, identified, marked, confirmed and admitted into evidence. Clearly, this specie of evidence debunks the conclusion of Global Witness in THE DECEIVERS that the Wologizi Mountain has “prized iron ore deposits”.

(b) Your Honor is also requested to take judicial notice that in addition to the evidence narrated above, Co-Defendant Sherman, Co-Defendant Jones and subpoenaed witness Mr. Emmanuel O. Sherman further confirmed that with USAID funding a firm, called Venmym Rand Limited PTY, conducted a geological evaluation of the Wologizi Mountain for iron ore and in its Technical Evaluation Report of May 2009 recommended that even with the limited data on the Wologizi Mountain it should be offered for competitive tender. Co-Defendant Sherman and Co-Defendant Jones also further testified that in early 2010, President Sirleaf’s Cabinet made a decision to offer Wologizi Mountain for competitive tender and so these Defendants could not have could not have bribed Liberian Government officials or received bribes to insert Section 75 in the finally enacted 2010 PPCC Act merely to give Sable Mining a competitive edge to obtain rights to the iron ore deposit of said Wologizi Mountain through the declaration of that Mountain as a Non-Bidding Area. They further testified that considering that Non-Bidding Area process of acquisition of mineral rights is based on the “first come first serve” or otherwise called the “first come first assessed” principle and considering that Sable Mining was the eleventh (11th) applicant for exploration license, there was no incentive for Sable Mining to pay bribes to get the Non-Bidding Area process incorporated in the 2010 PPCC Act. This evidence was never rebutted or discredited by the Prosecution and the documents in support thereof were all testified to, marked, confirmed and admitted into evidence.

6.4. The Real Deceivers, a publication of a report of an investigation into Global Witness’ The Real Deceiver.
(i) The Real Deceivers is the report of an investigation into the accusations levied in The Deceivers by Global Witness; this task was performed by Globe Afrique Communication LLC of the United States, which is a communications firm owned by non-resident Liberians, and they worked in collaboration with Global News Network Liberia, which is a resident communication firm in Liberia. The Defense prays Your Honor to take judicial notice that while the Special Presidential Taskforce and the Prosecutor relied substantially on the eleven (11) pages of allegations of THE DECEIVERS published on the internet on May 11, 2016, The Real Deceivers (a 91-page publication), which totally debunked those accusations, was testified to by Co-Defendant Sherman, identified, marked, confirmed, re-confirmed and admitted into evidence; but the Prosecution merely ignored it. The Defense requests Your Honor to take the time and read THE REAL DECEIVERS; your conclusion will be that the writers did a thorough job in debunking THE DECEIVERS’s accusations against the Defendants.


VII. THE REBUTTAL WITNESSES FOR THE PROSECUTION
7.1. The Prosecution introduced and had them to testify two (2) rebuttal witnesses in persons of Mr. Fred Snorton, an IT Specialist, and Mr. Aaron H. Aboah, one of the signatories to the Special Presidential Taskforce Report and who was the principal investigator for the Special Presidential Taskforce.
7.2. Rebuttal Witness Snorton came to rebut Co-Defendant’s Sherman’s testimony that his firm’s Yahoo email account had been hacked and the contents of emails and documents attached to emails had been hacked and altered. Instead of a rebuttal, Mr. Snorton confirmed that an email can be hacked and its contents and the contents of data attached can be altered and changed. Mr. Snorton went on the testify that with the appropriate software he could stay at home and hacked into four (4) or more computers, enter email accounts and alter their contents. The Defense submits that Mr. Snorton’s testimony corroborated Co-Defendant Sherman’s testimony.
7.3. As to the testimony of Mr. Aaron H. Aboah, who was actually a reluctant witness, given that he was the lead investigator but refused to appear to testify until he was compelled to do so by a subpoena ad testificadum, the Defense prays Your Honor to take judicial notice that apparently Mr. Aboah came to testify in an attempt to rebut Co-Defendant Tyler but the evidence he gave actually strengthened the Defense’s affirmative evidence to exonerate them from the crimes for which they were indicted. For example, rebuttal witness Aboah admitted that even though the investigators went to South Africa to, among other missions, meet with Mr. Klaus Piprek, they never met him; and he did not say why they never met Mr. Klaus Piprek. He also testified that it is the late Counsellor T.C. Gould, a lawyer for the Special Presidential Taskforce who never went to South Africa, who gave the investigators emails purported to be sent by Mr. Klaus Piprek, which named Co-Defendant Tyler as having asked for US$250,000.00 for passage of the draft 2010 PPCC Act through the Liberian Senate. Rebuttal witness Aboah also said that the same late Counsellor Gould gave the investigators a written statement purported to be written by Mr. Klaus Piprek, which alleged that Co-Defendant Shannon and Co-Defendant Jones are the ‘Bigboy 01’ and ‘Bigboy 02’ who received US$500,000.00 from Mr. Andrew Groves for commission of the crimes for which the Defendants were indicted. While such written statement is not in evidence, the Defense prays Your Honor to question how the late Counsellor Gould, who was not one of the investigators and who did not go to South Africa to obtain evidence, got emails and written statement from Mr. Klaus Piprek, which implicate Co-Defendant Tyler for commission of these crimes? Why did the investigators use these emails and such documents, given to them by the late Counsellor T.C. Gould, as a basis for the Special Presidential Taskforce Report? Without the testimony of Mr. Klaus Piprek and in the absence of proper authentication of the documents as per the Apostille Convention, these purported emails and whatever statement was allegedly written by Mr. Klaus Piprek have no probative or other evidentiary value for this case.


VIII. Is Section 75 A Bad Law For Liberia?
8.1. Finally, the Defense prays Your Honor to once again take judicial notice of the testimonies of both Co-Defendant Sherman and Co-Defendant Jones that the provisions of Section 75 in the finally enacted 2010 PPCC Act is not a bad law; it is a universally recognized process and practice where the country does not have sufficient geological information on its resources. Both Mr. Joseph Neufville and Mr. Emmanuel O. Sherman corroborated these testimonies. Again, the Prosecution did not rebut or discredit this evidence.
8.2. The Defense submits that, assuming without admitting, that President Sirleaf did not intend to have Non-Bidding Area in the finally enacted 2010 PPCC Act, it would stand to reason that she would have discovered this inclusion (consisting of six (6) pages of the law) before she signed the enacted 2010 PPCC Act, and would have exercised her power to either veto the entire law or veto Section 75. The Defense also submits that alternatively, after Global Witness revealed in May 2016 the alleged “fraudulent” insertion of that provision on “Non-Bidding Area” in the enacted 2010 PPCC Act, President Sirleaf would have had an amendment immediately made to remove such “fraudulently inserted, obnoxious and unacceptable provision” from the 2010 PPCC Act. But the fact of the matter is that up to the time of her departure from office in January 2018 (more than nineteen (19) months after THE DECEIVERS was published on May 11, 2016), the law was not amended. And since President Weah assumed office in January 2018 (approximately sixteen (16) months ago), the Defense submits that this law has still not been amended to remove this allegedly “fraudulently inserted, obnoxious and unacceptable” provision on “Non-Bidding Area” as a process for acquisition of mineral rights in Liberia. The obvious inference from these incontrovertible facts is, the Defense also submits, that “Non-Bidding Area” process for acquisition of mineral rights in Liberia is a good law and was properly a part of the Draft 2010 PPCC Act which President Sirleaf submitted to the Legislature for enactment into law and was eventually enacted as the 2010 PPCC Act. The Defense says that no other conclusion can be reasonably and creditably reached.

IX. Conclusions
9.1. The evidence adduced by the Prosecution is not sufficient proof of guilt of any of the Defendants for any one or more of the crimes allegedly committed by any one of them. The falsehoods and untruths which pervade the testimonies of the Prosecution’s principal/general witnesses, Mr. Marc Kollie and Mr. Blamo Kofa (persons who testified based on the clear presumed knowledge of other people) and information contained in The Deceivers, which was never double-checked to determine its truthfulness and authenticity make the application of the falsus in uno doctrine to this case. This doctrine is the simple principle that if the court or jury believes that a testimony on a material matter is intentionally deceitful, the entire testimony should be disregarded. Black’s Law Dictionary, Eight Edition, page 637. FOR THIS AND OTHER REASONS, THE DEFENSE PRAYS YOUR HONOR TO ADJUGE THE DEFENDANTS “NOT GUILTY”.

9.2. Besides, the Defense submits that sufficient evidence was adduced by the Defense which exonerates all the Defendants from all of the crimes for which they were indicted. AND FOR THIS REASON, THE DEFENSE AGAIN PRAYS YOUR HONOR TO ADJUDGE THE DEFENDANTS “NOT GUILTY”.

9.3. Finally, the Defense has submitted the total evidence adduced at this trial to you, analyzed and reviewed it and juxtaposed it against the controlling law and the Defense is convinced that the Prosecution has not proved the guilt of any of the Defendants beyond reasonable doubt for commission of any of the crimes for which they have been charged. And the Defense prays that Your Honor to similarly so find.

9.4. The Defense believes that Your Honor knows the law and will apply it to the evidence adduced at this trial and adjudge the Defendants “NOT GUILTY”.

X. Prayer
Wherefore and in view of the foregoing, the Defense prays Your Honor to adjudge “Not Guilty” and to discharge them from the Indictments without any delay, restore to them their civil liberties, honors and reputations, and return their Criminal Appearance Bonds as though the aforesaid Indictments were never preferred against any and all of them.

Respectfully submitted:
G. Varney Sherman, E.C.B. Jones, Alex Tyler,
Richard Tolbert, Eugene Shannon, Morris Saytumah,
Willie Belleh and Christopher Onanuga
DEFENDANTS

By and Through Their Counsels:

SHERMAN & SHERMAN
17th Street & Cheeseman Avenue
Sinkor, Monrovia


_______________________ ___________________________
Albert S. Sims Golda A. Bonah-Elliott
COUNSELLOR-AT-LAW COUNSELLOR-AT-LAW


____________________________
G. Moses Paegar
COUNSELLOR-AT-LAW

AND

JONES & JONES LAW FIRM
Randall Street
Monrovia, Liberia

_____________________
Cyril Jones
COUNSELLOR-AT-LAW
AND


J. JOHNNY MOMOH & ASSOCIATES LEGAL CHAMBERS
8th Street, Sinkor
Monrovia, Liberia
__________________________ ________________________
Amara Sheriff J. Johnny Momoh
COUNSELLOR-AT-LAW COUNSELLOR-AT-LAW
DATED THIS 22ND DAY OF JULY 2019

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