Court Orders Opuni, Agongo To Open Defence

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Dr. Stephen Opuni

A Former Chief Executive Officer of Ghana Cocoa Board (Cocobod), Dr. Stephen Opuni, private businessman Seidu Agongo and his Agricult Ghana Limited, being tried for causing financial loss to the state, have been ordered open their respective defenseby an Accra High.

The court presided over by Justice Clemence Honyenuga, a Supreme Court judge sitting with additional responsibilities as a High Court judge, in a ruling on applications for submissions of no case filed by the accused persons, held that the prosecution was able to establish a prima facie case against the accused persons except the charge of money laundering.

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Acquitted, Discharged

It was the opinion of the court that the prosecution was able to prove the essential ingredients of 24 out of the 27 charges leveled against the accused persons and they ought to open their defense.

The court therefore acquitted and discharged them of the three charges of money laundering which the prosecution could not establish.

Trial

Dr. Opuni, Seidu Agongo and Agricult Ghana Limited are standing trial for 27 charges of causing financial loss to the state, defrauding by false pretences, conspiracy to commit crime, abetment of crime, money laundering, corruption by public officer and contravention of the PPA Act.

Together, they are accused of causing a financial loss of over GHc217 million to the state through the sale and purchase of the controversial Lithovit Liquid which the prosecution says was never tested.

No Case

The prosecution led by the Director of Public Prosecutions (DPP) Yvonne Atakora Obuobisa, had called seven witnesses to testify in the case and they were all extensively cross-examined by defence lawyers, some spanning about six months.

On March 29, 2021, when the prosecution ended its case, lawyers for the accused persons quickly moved to make a submission of no case, but the court asked them to officially file their applications before the court.

Dr. Opuni subsequently filed his 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.

Opuni’s Argument

Dr. Opuni is facing charges of abetment crime and defrauding by false pretences, conspiracy to commit crime, willfully 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 argued 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.”

Again, Dr. Opuni argued that the evidence of the prosecution witnesses did “not establish any of the ingredients of the offences of conspiracy, abetment, defrauding by false pretences and the offence of willfully causing financial loss to the state.”

He further pushed 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 (Dr. Opuni) when he executed the contracts for the purchase of the Lithovit fertilizer 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 had also argued that the prosecution witnesses 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.

He added that 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.

Agongo/Agricult Arguments

In all, Seidu Agongo and Agricult Ghana Limited have been charged with 16 counts of defrauding by false pretences, conspiracy, willfully causing financial loss to the state, money laundering, corruption of public officer, manufacturing fertilizer without registration, selling misbranded and selling adulterated fertilizer.

Benson Nutsukpui, counsel for both Agongo and Agricult, argued that Agricult delivered all the Lithovit Liquid fertilizerCocobod had procured and stressed 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 Lithovitwhich it otherwise would not have purchased.

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 fertilizer 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 accused [Agongo] gave 1st accused person [Dr. Opuni] ‘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 fertilizer without registration, they argued that “by blending or mixing the Lithovit Foliar Fertilizer to produce Lithovit Liquid Fertilizer which COCOBOD has contracted 3rd accused person to supply, the 3rd accused person did not engage in manufacturing of fertilizer 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,” they added.

Prosecution Opposes

The prosecution in its response filed by Mrs. Evelyn Keelson, a Chief State Attorney, contended that state prosecutors were able to prove all the elements in the 27 charges leveled against the three accused persons.

It said it was able to establish a prima facie case against all three accused persons through the seven (7) witnesses they called to testify at the trial.

The prosecution also contended that contrary to assertions made in the accused persons’ submissions of no case applications, the evidences of the prosecution witnesses were not in any way discredited under cross-examination, and their evidence remain credible and reliable.

Defrauding By False Pretences

The prosecution in its submission on the three counts of defrauding by false pretences insisted that they led sufficient evidence to show that Agricult Ghana Limited through its CEO, Seidu Agongo, with intent to defraud, made representations to officials of COCOBOD that they were supplying them with Lithovit Foliar Fertilizer manufactured in Germany by Zeovite, GMBH, “yet when it got to the time to supply the product, they supplied to Cocobod on all three occasions a completely different product manufactured by themselves in Ghana and which had not been tested.”

The prosecution added that the accused person is not exonerated by the argument that if due diligence had been done by the officials of COCOBOD, the fraud would not have been successful.

Abetment of Crime

On the three counts of abetment of defrauding by false pretences leveled against Dr. Opuni, the prosecution contended that they led evidence to show that “Dr. Opuni had shortened the testing period for agrochemicals, claiming monopoly in the system and the fact that the testing period was unduly long.”

It insisted that Dr. Opuni knew about the form and nature of the Lithovit Foliar Fertiliserthat was tested and approved by CRIG but on February 25, 2014 wrote to Agricult through Agongo “requesting for quotation with terms and conditions for the supply and delivery of 700,000 litres of Lithovit fertilizer when he knew that no liquid Lithovithad been tested by CRIG and approved”.

The prosecution also stated how Dr. Opuni on February 25, 2014 wrote to PPA claiming that the Lithovit Liquid Fertilizer Agricult was going to supply to COCOBOD had been tested and tried by CRIG when no such testing had been conducted.

Financial Loss

The prosecution said it led evidence to establish that the actions of the accused persons led to the payments of GH¢217,345,288.72 – GH¢43,120,000 in 2014, GH¢75,289,314.72 between February and November 2015 and GH¢98,934,974 between October 2015 and March 2016 to Agricult Ghana Limited.

The prosecution added that the fact that the various procurements were approved by PPA does not in any way exonerate Dr. Opuni as PPA relied heavily on the false assertions and justifications he made on Agricult and Lithovit Liquid Fertilizer.

On the part of Agongo and his company, the prosecution said that it has led evidence to show that the fertilizer submitted by the two for testing at CRIG was a fine powder and was manufactured by Zeovita in Germany.

It said however, that A2 and A3 marketed a completely different substance called AgricultLithovit Foliar Fertiliser +5% Urea which is different in nature, form and chemical composition.

Contravention of PPA Act

Dr. Opuni has been charged with seven counts of contravention of sections of the Public Procurement Authority (PPA) Act and the prosecution said that contrary to prescribed conditions for single source procurement, Dr. Opuni failed to attach price quotation to his letter dated February 19, 2014, which was seeking permission from PPA to single source the supply of fertilizers including Lithovit.

Corruption
Dr. Opuni has been charged with corruption by a public officer while Agongo has been charged with corruption of a public officer, and the prosecution said there is evidence to show that on October 10, 2014, Dr.Opuni  received a deposit of GH¢25,000 in his Ecobank bank account made by Agongo.

The prosecution said it was able to prove that both Dr. Opuni and Agongo had no reasonable explanations for the deposit which was made at the time Dr. Opuni had awarded Agongo’s company a contract to supply COCOBOD with untested and unapproved fertilizer.

Adulterated Fertilizer

The prosecution said it hadalso provided evidence of how Agongo and his company manufactured fertilizers in large quantities when they are not registered to do so but only registered to import and distribute Lithovit fertilizer in powdered form from Germany.

Ruling

Justice Honyenuga in his ruling held that the prosecution succeeded in proving the essential ingredients in 24 of the charges leveled against the accused persons.

He stated that he was convinced that the matter is very sensitive and the prosecution having made a prima facie case against the accused persons, they ought to be called upon to open their respective defence.

He added that the prosecution failed to prove the three counts of money laundering against the accused person and therefore acquitted and discharged them on that count.

He adjourned the matter to May 17, 2021 for Dr. Opuni to open his defence.

The prosecution team was led by Attorney General, Godfred Yeboah Dame and assisted by the DPP, Yvonne Atakora Obuobisa, Yvonne Keelson, a Chief State Attorney and Stella Ohene Appiah, a Principal State Attorney.

Dr. Opuni was represented by Samuel Codjoe while Seidu Agongo and Agricult were represented by Nutifafa Nutsukpui who held the brief of Benson Nutsukpui.

BY Gibril Abdul Razak

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