The Economic and Organised Crime Office (EOCO) could not establish whether any offence was committed in the supply of lithovit fertiliser to Ghana Cocoa Board (Cocobod) by business man, Seidu Agongo.
This is as a result of the security entity’s inability to complete investigation, which was aborted mid-way, for the Ghana Police Service to continue with it.
Giving his evidence-in-chief earlier this week, Paul Agyei Gyang, a senior officer at the Operations Directorate of EOCO, said the investigative team he headed could not get to the bottom of the matter to establish whether an offence was committed or not, before a directive was issued for the case to be transferred to the police.
Paul said this while being led in evidence by Benson Nutsukpui, counsel for Seidu Agongo and his company, Agricult Ghana Limited, before the Land Division of the Accra High Court, presided over by Justice Aboagye Tandoh.
As a subpoenaed witness for Agongo and Agricult, Paul Gyang told the court on Tuesday that EOCO could not draw a conclusion on the matter because two contradictory reports had been produced from the Ghana Standard Authority on the same lithovit product.
The first report from the Drug Forensic and Cosmetic Unit of the Ghana Standard Authority said the lithovit was not a fertiliser, whereas another department from the same institution, Material Science Unit, also established that it is a fertiliser, containing over 10 percent nitrogen and 73.25 percent of Calcium carbonate.
The second report on lithovit came into being after Agongo raised doubts about the earlier test result, that lithovit lacks active ingredients to qualify as a fertiliser.
According to the witness, the sample that tested negative was supplied by Dr Yaw Adu Ampomah, prosecution star witness, and a former deputy Chief Executive of Agronomy and Qualify Control (A&QC) of Cocobod and the other was by personnel from the board and it was handed over to EOCO investigator in the presence of Agongo and others.
The order for a second test by EOCO became paramount as the standard for taking investigative sample for analysis was earlier not followed.
He told the court that the second sample provided by Cocobod also had issues because the seal was reportedly broken, whilst the procedure agreed upon for its selection was not equally followed.
In the witness’ own words: “In every sphere of investigation process, the principles of clarity, credibility and fairness should always be applied. And for that matter, depending on the exhibit to be tested, there is something called chain of custody and should be taken into consideration using what I have already told the court of being clarity, fairness and credibility. Depending on the context and how the exhibit is found, these principles are very important.”
The court for the second time had to deal with challenges counsel for Agongo and Agricult Ghana Limited and Dr Stephen Kwabena Opuni had with the ruling on no case by a retired justice of the Supreme Court, Clemence Jackson Honyenuga.
Lawyer Benson and Opuni’s counsel, Samuel Codjoe, went to town on Honyenuga JSC’s ruling on the GH¢217 million financial loss offence, allegedly committed by Opuni, Agongo and Agricult for the purchase and supply of lithovit to be used on matured cocoa.
Justice Honyenuga was mentioned once again in the course of the trial, as a result of objection raised by the Prosecution led by the Chief State Attorney (CSA) Evelyn Keelson on the tendering of investigator’s statement authored by Mr. Gyang by lawyer Benson.
She said the said document was part of the rejected exhibits by the former judge in his ruling of no case to answer.
Although Lawyer Benson, this time, refrained from giving any name to the ruling as he previously called it judicial chicanery, he said “a ruling in which a judge ruling on a submission of no case set out deliberately to deprive the accused persons of any material and or evidence that is exculpatory of them.”
He urged the court not to be bounded by the wrong judgement of a court of coordinate jurisdiction.
Lawyer Codjoe also rooted his argument on the strength of the fundamental human rights and that there has never been any order from any court prohibiting admission of the rejected document by Honyenuga JSC, who was sitting as an additional high court judge in the case.
Justice Aboagye, after listening to the arguments advanced by both the defence counsel and prosecution upheld the objection, but assured the accused persons that he would endeavour to evaluate the entire evidence including those rejected in his judgement.
Cross examination
Q. Yesterday, we ended on whether a report was prepared and you said the investigation was not completed, so that would be between the investigator and management?
A. Yes my Lord.
Q. The court asked you to produce some documents, look at these documents, what do you have in your hand?
A. I have a letter signed by deputy Executive Director in charge of operations of EOCO.
Q. What is the date on it?
A. 30th June, 2017.
Q. What is the reference number?
A. EOCO/EB/OC/156/V1/63
Q. What is the heading?
A. Testing and Analysis of Chemicals.
Q. Is that the forwarding letter you found on the files of EOCO?
A. Yes, this is the letter that was forwarded to the Executive Director, Ghana Standards Authority.
Q. And that is the letter you spoke about that forwarded the chemical picked from the warehouse?
A. Yes my Lord.
Counsel: My Lord, we wish to tender the letter through the witness.
Prosecution: No objection.
A1 counsel: No objection.
By Court: Document admitted and marked the letter dated 30th June as Exhibit 132.
Q. Sir, look at Exhibit 132, please read the very first paragraph?
A. I forward here with DSO Prosper Akresi of this office…
Q. DSO Prosper Akresi mentioned in this letter was the investigator that you assigned the case to?
A. Yes, he was the investigator.
Q. And the Lithovit sample, which was forwarded by this letter is the one you said in your evidence was taken by all the parties together at the COCOBOD warehouse, Spintex?
A. Yes, my Lord that is correct.
Q. The honourable court also asked you if you can find a copy of the report submitted by Standard Authority on this analysis, did you find it?
A. My Lord I didn’t find it.
Counsel: Prosecution has given us a copy of the report.
Q. Sir, you told this honourable court that when you received the report, you put the scientists before the Executive Director that is correct. Please look at this report if that is the report that Ghana Standards Authority forwarded to EOCO?
A. My Lord, the covering letter is correct, but the content, I’m not seeing where it was written that it was fertiliser. My Lord it is here, now I can see it.
Q. That was the document you received based on which you put the scientists together before the Executive Director of EOCO to explain the difference?
A. Yes my Lord, exactly so.
Counsel: My Lord we wish to tender the document
Prosecution: My Lord, we have no objection
A1 counsel: My Lord no objection.
Court: The report dated 26th of July 2017 submitted to EOCO by Ghana Standards Authority adopted and marked as Exhibit 133/A2&A3.
Q. Sir, please look at Exhibit 133/A2&A3, and look at page 1?
A. Yes my Lord.
Q. Go to the table, the report found N for nitrogen as 10.66 percent that is correct?
A. Yes my Lord.
Q. Deep down it also found calcium carbonate (CACO3) 73.25 percent, that is correct?
A. Yes my Lord.
Q. It is true that these ingredients in these proportions were missing in the test conducted by the Drugs Forensic and Comestic Unit of the Standards Authority, that is correct?
A. My Lord, until I see the first one I cannot be sure.
Q. Please show him Exhibit H, look at Exhibit H page 106, the table there did not have the nitrogen and calcium carbonate in the proportions as in Exhibit 133?
A. Yes my Lord.
Q. As a seasoned investigator, tell this honourable court, do both the Ghana Police and EOCO have standards and or procedure for taking investigative sample for analysis?
A. My Lord, in every sphere of investigation process, the principles of clarity, credibility and fairness should always be applied. And for that matter, depending on the Exhibit to be tested, there is something called chain of custody should be taken into consideration using what I have already told the court of being clarity, fairness and credibility. Depending on the context, and how the exhibit is found, these principles are very important.
Q. Sir, it is standard practice in both police and EOCO that the sample must be identified by both the complainant and the accused persons where possible?
A. In this particular case that was what it was supposed to be.
Q. And would I be right in saying that it is to achieve the cardinal principles of investigation that your directorate ordered that fresh samples be taken?
Prosecution: I object to it
Court: Rephrase your question.
Q. Sir, tell this court in line with the principles of investigation, what informed your directorate to order that the two parties to meet at the warehouse of COCOBOD to take new samples?
A. My Lord, in order that the objection, which was raised by the suspect would not be repeated and to bring in credibility as I said, management deemed it necessary that all parties be present for the selection of the sample.
Q. You told this court your office was asked to hand the investigation to the police?
A. Yes, my Lord that is correct
Q. Was that complied with?
A. My Lord, it was complied with.
Q. So when your team handed over the case, did it go with all the documents on the investigation which were done?
A. Yes please
Q. Did you, Paul AgyeiGyang write a statement on this case?
A. Yes my Lord.
Q. Please at what stage, did you write the statement?
A. My Lord, if my memory serves me right, I was called by the then Executive Director that as the leader of the team and considering my experience, I should rather give the statement instead of the investigator.
Q. Please this statement what is it called in your investigative sector?
A. That is the investigator’s statement.
Q. How do investigators write their investigative statements?
A. From firsthand information gathered during the investigation and facts on statements written.
Q. Tell this honourable court, when the investigators write this investigator’s statement do they have access to the case file.
A. My Lord we deal with case docket, once the investigator writes his statement it means the docket has been called for by any consumer of the docket. It could be the Attorney General, either a superior wants to peruse it or it is to be handed over to a different person so that he can understand what the investigator has done so far.
Q. When the investigator is writing his investigator’s statement he has the docket before him?
A. Yes
Q. In this particular case you wrote the investigator’s statement?
A. Yes, I did
Q. And while writing it, you have access to all relevant materials on the docket?
A. Yes my Lord.
Q. Mr Paul Agyei Gyang, look at this photocopy, that is the photocopy of the statement you wrote on this particular matter?
A. Yes my Lord.
Q. Did you sign it?
A. Yes I did
Q. Is that your signature?
A. Yes my lord.
Q. What is the date written under it?
A. 5th June 2018
Q. At what time in the investigation did you write that statement or period or stage of the investigation?
A. My Lord that was when the docket was supposed to be forwarded to either the CID or Attorney General’s Department.
Q. Have you told the court what you stated in that document?
A. Following from what is going on since yesterday, all the questions you have asked is in my statement.
Q. All you said are in the statement?
A. Yes my Lord.
Counsel: We wish to tender the statement through him.
Prosecution: Objection. This statement is one of the statements, which was rejected in the course of the trial judge’s evaluation of the submission of no case.
My Lord, in line with a decision, my Lord has already given in respect of an earlier statement falling in the same category indicating that your lordship would take a decision on the statement now that the witness has appeared before the court in the course of your evaluation of the evidence.
My Lord, we submit that the same decision be applied to this case. My Lord, this was also rejected and marked as R and my lord earlier decision on a similar statement given by Dr.AnimKwapong should apply.
Benson Nutsukpui: My Lord, my learned has not stated whether she is raising an objection or not
Prosecution: My Lord I have.
Benson: My Lord, the objection raised by the prosecution should be seen and put in the proper perspective. My Lord, the high court is a court of justice, and must always be guided by the principles to do justice to all manner of persons that appear before it. Luckily this court is not bound by that ruling, which I refrain from giving any name today.
My Lord that is a ruling in which a judge ruling on a submission of no case set out deliberately to deprive the accused persons of any material and or evidence that is exculpatory of them. This court should not follow what was done, that court stated that the statements tendered by the police investigator and not objected to by the prosecution was hearsay evidence.
And so without giving a hearing to the parties, that court rejected the evidence and marked it reject in his chambers, nothing can be further from an act of a court not wanting to do justice than that.
Now my Lord, at this point, you have the witness before you, he was the investigator, he wrote the statement, he signed it, it is on the file of EOCO.
The prosecution generously discovered it and gave it to us, there is nothing hearsay about this document. What the prosecution is asking you to do is that the court is bound by the wrong judgement of a court of coordinate jurisdiction.
My Lord, the interesting part of this case is that, if even it was a hearsay, the court never gave the parties the opportunity to bring the person who made the statement.
Having tied our hands, we have brought the person who made the statement, he has not denied it, he has admitted it, and to say that sometime ago it was rejected by a court of coordinate jurisdiction is totally unacceptable.
My Lord, there is no law of practice which states that a document rejected suo moto by a judge in his chambers cannot be readmitted. The new normal is that a document that has been rejected for a purpose, can be readmitted for another purpose.
So my Lord, what we are saying is that the position of the prosecution is not the law, and this court should not be persuaded by that.
And I will finally say, that a court of law in a criminal matter must made the findings of exculpatory evidence its priority and should not under any circumstance seek to gag the accused persons for the benefit of the prosecution.
Samuel Codjoe: my Lord it’s our position that a court seeking to do justice in a criminal matter is required to allow evidence and or exhibit, which do not under any circumstance take the prosecution by surprise, especially if it is exculpatory.
Indeed the Supreme Court in the reference case of the Republic vrs Baffoe Bonnie and four others, which is reported in 2017-2020 1SCGLR, it’s clear that the job of a prosecutor under the provision of the 1992 Constitution and specifically under the fundamental human rights provision Article 19 is to provide all documents, and more especially exculpatory evidence which shows that the accused person is not liable of the offence.
Adinyira JSC who read the unanimous decision of the court quoted with approval the English case of Republic vrs Boucher, where the court held that the duty of a prosecutor is not to win the case by all means, theirs is a public duty to lay the evidence equally before the court for the court to make a decision. In this case, the exhibit sought to be tendered was given to us by the prosecution, the element of surprise to the prosecution is non-existent.
This is an exculpatory evidence which this court has to admit. We will add further that there has never been any order from any court prohibiting admission of the rejected document by Honyenuga JSC who was sitting as an additional high court judge in the case. I will end my statement that justice demands that this document be admitted especially when we are dealing with a criminal case. I’m done.
By court: The statement or document counsel for A2 and A3 is seeking to tender is already on record marked as rejected R2O, DW1/A2&A3 in his evidence in chief in this court, has stated before this court that all that is in the statement to the court in answer to the question that have you told the court what you stated in the document, the answer was, owning from what is going on from yesterday I have told the court everything in the statement.
In order to avoid the tendency of having the same exhibit being marked as Rejected (R) and later as admitted especially when the content is on record, the same has been repeated in DW1/A2&A3 examination in chief.
In my candid view, a court has the opportunity to evaluate the totality of the evidence at the end of the trial and the issue of whether or not an exhibit was rightly or wrongly admitted or rejected will come to the fore for a determination. See section 124 of the Evidence Act, accordingly, the objection is upheld and the exhibit is rejected and marked as R23.
Q. Mr. Paul Agyei Gyang, EOCO, your institution and its investigators had access to all the reports, is that correct?
A. Yes my Lord.
Q. Sir, please tell this honourable court, did your institution EOCO represented by its investigative team and its directorate reach any conclusion that Lithovit is fraudulent fertiliser?
A. My Lord as I have told this court earlier, the office did not complete the case, we had directive to transfer the case to the CID headquarters.
Q. As at the time you transferred the docket, did your office and its investigative team reach any conclusion on the lithovit product?
A. I would not call it conclusion, but we have received two separate reports on the Lithovit.
Q. Did the office in line of the two reports it received on lithovit reach any conclusion on the allegation that Lithovit was a fraudulent fertiliser?
A. My Lord we did not get to that end.
Q. When you said you did not get to that end put it in a layman’s language for us?
A. My Lord what it simply means is that we didn’t not get to the end to establish whether an offense was committed or not.
Q. Do you know Chief Inspector Prempeh?
A. My Lord, I have not met him in person but I was told he was the one who was asked to continue the investigation at the police headquarters
Q. Did your investigative team meet with Chief Inspector Prempeh to your knowledge?
A. My Lord I did not but DSO Akresi met him
Q. When DSO Akresi met Chief Inspector Prempeh, did he report back to EOCO about the meeting?
A. To the best of my knowledge I do not know.
