Dr. Stephen K. Opuni
Former Chief Executive Officer of Ghana Cocoa Board (COCOBOD), Dr. Stephen K. Opuni and private businessman, Seidu Agongo, have filed separate applications before an Accra High Court asking it to acquit and discharge them in their ongoing trial for allegedly causing financial loss to the state.
The accused persons are before the court accused of causing financial loss of over GH¢217 million to the state through the supply and purchase of the controversial Lithovit Liquid Fertiliser for COCOBOD.
Their lawyers in their respective submission of case applications are arguing that the prosecution at the end of its case failed to adduce evidence to prove any of the numerous charges levelled against the accused persons.
Per the rules, if the accused persons respective applications succeed, the trial will terminate at that stage but if they are not successful, the trial court will ask them to open their defence.
Main Arguments
In Dr. Opuni’s application filed by his counsel, Samuel Codjoe, the first accused person said he has no case to answer on the “basis that no evidence has been led by the prosecution to establish any or all of the ingredients of the offences for which 1st accused is standing trial.”
He further argued that “it is our case that the prosecution has failed to make out a sufficient case to warrant calling 1st accused to open his defence.”
Seidu Agongo and his Agricult Ghana Limited, the company that entered into the Lithovit transaction and for which reason it has been charged alongside the owner (Agongo), are pushing that “while there is generally no evidence against the 2nd accused person (Seidu Agongo), what little evidence the prosecution purported to have offered against the 3rd accused person (Agricult Ghana Limited) on any of the charges had been very much discredited during cross-examination or otherwise so manifestly unreliable, rendering any such evidence of the prosecution unsafe so that this honourable court cannot reasonably or safely rely on same to convict the applicants herein in the absence of an explanation from them.”
End Of Case
The prosecution led by the Director of Public Prosecutions (DPP), Yvonne Atakora Obuobisa, called seven witnesses to testify in the case and were extensively cross-examined by defence lawyers, some spanning about six months.
Om March 29, 2021, the prosecution at the end of the cross-examination of Chief Inspector Thomas Prempeh Mercer, the investigator, said it had ended its case.
Lawyers for the accused persons quickly moved to make a submission of no case, but the court presided over by Justice Clemence Jackson Honyenuga, a Supreme Court judge sitting with additional responsibilities as a High Court judge, asked them to “come” officially by filing their applications before the court.
Opuni’s Submission
Dr. Opuni subsequently filed their motion for submission of no case to answer on April 16, 2021, while lawyers for Mr. Agongo and Agricult Ghana Limited filed their documents on April 19, 2021.
Dr. Opuni is facing charges of abetment crime and defrauding by false pretences, conspiracy to commit and wilfully causing financial loss to the state, contravention of the Public Procurement Act and corruption by public officer.
On conspiracy to commit crime, the former COCOBOD CEO is arguing that the prosecution failed to establish or lead any evidence to show that he “agreed to act with the other accused persons by way of communicating, coordinating and or collaborating with any of them to commit any of the offences he has been charged with, to necessitate applicant to open his defence.”
No Conspiracy
He said the evidence of the prosecution’s first witness, Dr. Franklin Amoah, which was to the effect that the Lithovit that was tested by the Cocoa Research Institute of Ghana (CRIG) was powdery did not establish either an abetment or conspiracy by the three accused persons.
Again, it argues that the evidence of Dr. Alfred Arthur, the second prosecution witness “does not establish any of the ingredients of the offences of conspiracy, abetment, defrauding by false pretences and the offence of wilfully causing financial loss to the state. We add that the PW2’s evidence does not also establish any of the ingredients of the procurement offences and specifically charges relating to Sections 92(1), 40(1)(a) and 41 of Act 663 and or the offence of corruption of public officer.”
Touching on the evidence of Dr. Yaw Adu-Ampomah, the third prosecution witness and the nature and form of the fertiliser tested and purchased, the application averred that he (Dr. Opuni) does determine the quantities and types of fertiliser to be purchased.
“The agency which determines the fertiliser to be purchased is the CODAPEC and HITECH unit of COCOBOD, 1st accused had no doubt that the user agency was acting properly when it requested for the quantities of Lithovit fertiliser which were purchased by COCOBOD together with other fertilisers between 2014 and 2016,” he pushed.
Offence Ingredients
He said the witness also failed to prove any of the ingredients of the offences for which he is standing trial and said the evidence of fourth and fifth prosecution witnesses did not concern him in anyway.
Touching on the evidence of Peter Osei Amoako, Director of Finance at COCOBOD, Dr. Opuni said that none of his evidence “suggests that 1st accused committed any of the offences he is standing trial for.”
Again, it is the case of Dr. Opuni that the evidence of the case investigator, Chief Inspector Thomas Prempeh Mercer “does not establish that there was any financial loss caused by 1st accused person when he executed the contracts for the purchase of the Lithovit fertiliser for and on behalf of COCOBOD. This is because the evidence is that 1st accused was not the person who prepared the contract and that he only executed same because he was the Chief Executive.”
He said the prosecution failed to prove that the alleged GH¢25,000 that was deposited in his bank account by Seidu Agongo was meant to influence his performance in the execution of the contract.
“In light of the prosecution’s failure to produce sufficient evidence on the offences for which 1st accused is charged, this submission of no case should be upheld by this court and 1st accused acquitted and discharged,” Dr. Opuni’s lawyer pushed.
Agongo/Agricult Case
In all, Seidu Agongo and Agricult Ghana Limited have been charged with 16 counts of defrauding by false pretences, conspiracy, wilfully causing financial loss to the state, money laundering, corruption of public officer, manufacturing fertiliser without registration, selling misbranded fertiliser and selling adulterated fertiliser.
Benson Nutsukpui, counsel for both Agongo and Agricult, argued that the prosecution failed to prove the elements of the offences of defrauding by false pretences as it did not indicate on which of any of the three different occasions that Agricult influenced COCOBOD to purchase Lithovit fertiliser which it otherwise would not have purchased.
“One then wonders how it could ever be suggested that the applicants had obtained the consent of COCOBOD to part with various sums of money between 2013 and 2016 by some false representation in the absence of any evidence at all that any of the applicants fraudulently played any role or in some other form procured the said board approval of the procurement plans for the relevant years with the intent to defraud COCOBOD,” he said.
The applicants added that “there is also no dispute that all the Lithovit Liquid Fertiliser procured by COCOBOD with the approval of its Board of Directors from 3rd accused person had been duly delivered to COCOBOD and used by cocoa farmers even before the investigations began.”
No Loss
The applicants said the prosecution failed to prove the charge of causing financial loss to the state as it could not lead any evidence to show that the use of Lithovit Liquid Fertiliser led to low cocoa yield over the period as it would not have been the sole reason for the said low yield.
On the charge of corruption of public officer, the applicants said “the prosecution has failed to establish by any credible or cogent evidence that 2nd caused gave 1st accused person ‘a valuable consideration’ in the bid to influence the conduct of 1st accused person in the performance of his duties as a Chief Executive of COCOBOD.”
On manufacturing fertiliser without registration, they argued that “by blending or mixing the Lithovit Foliar Fertiliser to produce Lithovit Liquid Fertiliser which COCOBOD has contracted 3rd accused person to supply, the 3rd accused person did not engage in manufacturing of fertiliser without registration.”
“The prosecution had failed to make a sufficient case against the applicants on any of the charges to warrant their being called upon to open a defence. Were the court to disagree with us, it will be our further submission that to the extent that based on the prosecution’s own evidence, 2nd accused had only acted in his capacity as the Chief Executive Officer or Managing Director of the 3rd accused person then it is the 3rd accused person that must be held liable for any of the offences in case the court finds that a sufficient case has been made for a defence to be opened and not the 2nd accused person, based on Section 139 of Act 179.”
BY Gibril Abdul Razak