AKWASI OSEI ADJEI & ANOTHER vs. THE REPUBLIC [2012]DLCA4472

Date	2012-04-19
Suit No.	SUIT NO: CRIM. APP. No. H2/50/2011
Citation No.	[2012]DLCA4472

MARIAMA OWUSU J.A. (PRESIDING)

YAW APPAU J.A.

DZAMEFE J.A.

MR. GODFRED YEBOAH DAME LED BY COL. ALEX JOHNSON (RTD) FOR THE APPELLANTS

MR. GYAMBIBY (CSA) WITH HIM MR. DOMINIC BAKOMA (ASA) FOR THE RESPONDENT

[2012]DLCA4472
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													<main id="main" class="content" style="min-height: 60rem" >AKWASI OSEI ADJEI &amp;
ANOTHER<o:p></o:p>(APPELLANTS)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO: CRIM. APP. No.
H2/50/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 19TH APRIL
2012<o:p></o:p>

MR.
GYAMBIBY (CSA) WITH HIM MR. DOMINIC BAKOMA (ASA) FOR THE RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT IN APPEAL<o:p></o:p>

</div>YAW APPAU, J.A.<o:p></o:p>The
first appellant herein was the Minister of Foreign Affairs, Regional
Integration and NEPAD during the latter part of the Kuffuor administration
while the 2nd appellant was the then Managing Director of the National
Investment Bank Limited (NIB). On the 14th day of October 2009, the two of them
were arraigned before the trial High Court&nbsp;
on four counts of conspiracy charges and four counts of substantive
charges all totaling eight (8);&nbsp; contrary
to provisions in the Criminal Offences Act, 1960 [Act 29] and then the Public
Procurement Act, 2003 [Act 663]. <o:p></o:p>They
were said to have conspired contrary to section 23 (1) of Act 29/60 to commit
the crimes of: - i. Contravention of sections 92, 40, 41, 42 and 43 of the
Public Procurement Act, 2003 [Act 663]; ii. Using public office for profit
contrary to section 179C of the Criminal Offences Act, 1960 [Act 29]; iii.
Stealing contrary to section 124 of the Criminal Offences Act, 1960 [Act 29]
and iv. Willfully causing financial loss to the State contrary to section 179A
(3) (a) of the Criminal Offences Act, 1960 [Act 29]. <o:p></o:p>After
the prosecution had closed its case with as many as seventeen (17) witnesses,
the appellants made a submission of no case to answer in respect of all the
charges under the eight (8) counts. The trial court accepted partially the
appellants’ call on it and invoked section 173 of the Criminal and Other
Offences (Procedure) Act, 1960 [Act 30], by acquitting them on six (6) out of
the eight (8) counts.<o:p></o:p>Section
173 of Act 30 provides: “If at the close of the evidence in support of the
charge, it appears to the Court that a case is not made out against the accused
sufficiently to require him to make a defence, the Court shall, as to that
particular charge, acquit him”.&nbsp; <o:p></o:p>The
trial court in acquitting the appellants on the six counts; namely counts 3 to
8, said the prosecution could not establish a prima facie case against them on
those counts. The court, however, called on them to open their defence on
counts 1 and 2 since, in the opinion of the trial court; the prosecution was
able to establish a prima facie case against them on those counts. It is this
ruling of the trial court calling on the appellants to open their defence on
counts one (1) and two (2) that has necessitated this appeal. <o:p></o:p>The
counts in question read:<o:p></o:p>COUNT
ONE: Conspiracy to commit a criminal offence namely; contravention of
provisions of the Public Procurement Act, 2003, [Act 663]; contrary to section
23(1) of Act 29/60 and sections 92, 40, 41, 42 and 43 of the Public Procurement
Act, 2003 [Act 663].&nbsp; <o:p></o:p>PARTICULARS
OF OFFENCE: 1. AKWASI OSEL ADJEI, former Minister of Foreign Affairs, Regional
Integration and NEPAD and 2. DANIEL CHARLES GYIMAH, former Managing Director of
the National Investment Bank (NIB), between April 2008 and February 2009 in New
Delhi, India and Accra, Ghana agreed together with Amira Foods Limited of India
with a common purpose to procure 15, 000 metric tons (300,000 bags) of rice for
and on behalf of the Ghana Government without following procurement procedures
thereby contravening the provisions of the Public Procurement Act, 2003 (Act
663)<o:p></o:p>COUNT
TWO: Contravention of Provisions of the Public Procurement Act, 2003 [Act 663],
contrary to sections 92, 40, 41, 42 and 43 of the Public Procurement Act [Act
663].<o:p></o:p>PARTICULARS
OF OFFENCE: 1. AKWASI OSEI ADJEI, former Minister of Foreign Affairs, Regional
Integration and NEPAD, and 2. DANIEL CHARLES GYIMAH, former Managing Director
of the National Investment Bank (NIB) between April 2008 and February 2009 in
Accra in the Greater Accra Region, engaged themselves in the importation of 15,
000 metric tons (300, 000 bags) of rice from New Delhi, India for the
Government of Ghana without following procurement procedures thereby
contravening the provisions of the Public Procurement Act, 2003 [Act 663].<o:p></o:p>I
must say that, in deciding on the submission of no case made by the appellants
at the close of the prosecution’s case, the trial court, in its ruling, did not
make any distinct analysis on each of the eight charges before deciding the
fate of each count. In other words, the trial court did not outline the
ingredients of each of the eight charges for which the appellants were charged
to determine whether or not the prosecution was able to establish all of them
in respect of each charge before concluding the way it did. <o:p></o:p>The
Supreme Court in the case of STATE v ALI KASENA [1962] 1 GLR 144 held that; “it
is for the judge in a summary trial to weigh the evidence at the close of the
prosecution’s case and decide whether from the facts, the guilt of the accused
could be </main>