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Opuni, Agongo Injured State Financially -Judge

A Supreme Court judge, Justice Clemence J. Honyenuga, sitting as an additional high court judge, has held that the prosecution has been able to convince the trial court that former COCOBOD Chief Executive Dr. Stephen Kwabena Opuni, businessman Seidu Agongo and his Agricult Ghana Limited, ‘willfully caused financial loss’ to the state and have to open their defence respectively to explain their actions.

“Taking a cue from the definition of ‘willful’ and in the circumstances of this case, it is safe to conclude that the 1st, 2nd and 3rd accused intentionally engaged in a conduct which injured the state financially,” the judge held on Page 60 in his 89-page ruling on the respective applications for ‘submission of no case’ filed by the three accused persons.

The high court again held that Dr. Opuni contravened the Public Procurement Act.

Main Action

Dr. Opuni, Seidu Agongo and Agricult Ghana Limited, are before an Accra High Court slapped with 27 charges including 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 Public Procurement Authority (PPA) Act.

Together, they are accused of causing a financial loss of over GH¢217 million to the state through the sale and purchase of the controversial Lithovit Liquid Fertiliser for cocoa, which the prosecution has insisted did not follow the testing standards.

The reason for the judge ordering the accused persons to open their defence on 24 out of 27 charges as pushed by the prosecution are contained in a ruling on their respective submissions of no case filed at the registry of the high court, as indicated by the judge on May 6.

Case Breakdown

At the trial, the Attorney General’s Department has charged Dr. Opuni as the 1st Accused person (A1), while Agongo and Agricult have been charged as 2nd and 3rd Accused persons (A2 &A3) respectively.

There were seven Prosecution Witnesses (PW) in the case.

Undeniable Fact

According to the judge, counsel for Agongo and Agricult had submitted that since there was no evidence that the liquid fertiliser caused low yield and no losses were suffered; and there was no evidence that Agricult failed to deliver any of the liquid fertilisers ordered that COCOBOD had paid for, there was no financial loss to the state.

“With respect to counsel, it is undeniable fact that the said Lithovit Foliar Fertiliser had not been tested and approved and had not the same chemical composition as Exhibit ‘E’ a patented product from Germany,” the judge held, adding “It is on record that Exhibit 4 and 4a which certificates were tendered to show that they were tested and approved were not based on the original product Lithovit® Foliar Fertiliser from Germany but some mixed products to the knowledge of the 1st  (Dr. Opuni), 2nd (Agongo) and 3rd (Agricult) accused taken from the warehouse of the 3rd accused to make it look as if it was the original product.”

The judge said, “It was an adulterated product and therefore could not have been the tested and approved product from Germany. It was an intentional conduct to merit the charge. The prosecution therefore has succeeded in proving the ingredients of causing financial loss to the state. The prosecution has thus made a prima facie case for the accused to answer.”

Powder Vrs Liquid

The judge held that the prosecution needed to prove that Dr. Opuni facilitated or intentionally aided Agongo and Agricult in committing the offence of defrauding by false pretences and they (prosecution) were able to do so and as a result, the accused persons have a case to answer.

“It is on record that the 2nd accused as CEO of the 3rd accused submitted samples of Lithovit Foliar Fertiliser to COCOBOD for testing together with the MSDS which accurately described the sample as powdery. The sample was referred to CRIG by Exhibit ‘A’ for testing and upon a test conducted the final report on the test Exhibit ‘B’ with a covering letter Exhibit ‘8’ signed by PW1 was sent to the Deputy Chief Executive (A&QC),” the judge held, adding, “It is significant that on January 21, 2014, the 1st accused as the CEO of COCOBOD forwarded the final report to the 2nd accused as CEO of the 3rd accused tendered as Exhibit C.”

The judge held that the prosecution was able to adduce evidence to the effect that even though the scientists at CRIG tested powdered sample of the fertiliser, the 3rd accused produced liquid fertiliser, saying, “Indeed, Exhibit B, B1, and C described the sample of fertiliser sent in by the 2nd accused as CEO of the 3rd accused as Lithovit Foliar Fertiliser. There was no mention of any Lithovit Liquid Fertiliser.”

“As the procedure required, a certificate was issued to the 3rd accused as evidence of the test of the Lithovit Foliar Fertiliser tested and approved by COCOBOD,” the judge held, adding “it is significant to note that Exhibit B1, the final report on the Evaluation of the suitability of Lithovit® Foliar Fertiliser by PW1 and others was described at page 2 of the Report as Lithovit® Foliar Fertiliser, is a very fine powder created by tribodynamic activation and micronisation.”

Shortening Testing Time

The judge said that “the prosecution led sufficient evidence through PW1, PW2, PW3 and PW7 that soon after 1st accused was appointed, he summoned all scientists at CRIG at various times including January 19, 2014, a day before Exhibit B was submitted to COCOBOD and further directed them on the shortening period.”

The judge said there is evidence that tests must be conducted on fertilisers at CRIG for a minimum of two years but in Exhibit B and F, the tests were done in six months and the prosecution had moved that the process was allegedly shortened at the instance of Dr. Opuni.

Ample Evidence

The judge said contrary to defence counsel’s respective positions, the prosecution was able to submit ample evidence to establish that the actions of the 1st, 2nd and 3rd accused led to the payment of GH¢43,12000 and GH¢75 289,31472 between February and November 2015 and GH¢98 935,974 between October 2015 and March 2016.

He said that “the prosecution has through PW1, PW2, PW3, PWS, PW6 and PW7 led evidence to establish that the state through COCOBOD paid huge sums of money between 2014 and 2016 to purchase a fertiliser that was not tested and approved. In any case Exhibit D, the certificate issued to the 3rd accused for the testing and approval of the Lithovit® Foliar Fertiliser and Exhibits 4 and 4a which are alleged to be the certificates issued to the 3rd accused are substantially different. Both are supposed to have been manufactured by Zeovita GMBH from Germany but the patent sign ® is absent on Exhibits 4 and 4(a) which cast doubt on the existence especially when the chemical composition is different and the reports are said to be based on the Exhibit D test in 2014.”

“In any case the manufacturers in Germany manufacture Lithovit®Foliar Fertiliser in Exhibit E and not Agricult Lithovit or Lithovit Liquid Fertiliser as in Exhibit HH. Exhibit E is the original Lithovit Fertiliser which is powdery but that in Exhibit HH is liquid. However, the 1st accused together with the 2nd and 3rd accused agreed that they were selling and purchasing the same fertiliser from Germany which is substantially different,” the judge held.

He said that “PW6 tendered Exhibits EE and EE1 showing payment of $19,250,000 (GH¢43,120,000) for the supplies of Lithovit Liquid Fertiliser in two tranches of $11,000,000 and $8,250 000 on August 13, 2014 and October 15, 2014. These monies were transferred from COCOBOD’s bank accounts to the 3rd accused’s accounts.”

“PW6 also tendered Exhibits FF, FF1, FF2 and FF3 showing payments of GH¢75,289,31472 to the 3rd accused for supplying Lithovit Liquid Fertiliser. Under the 2014/2015 contract in four tranches on April 21, 2015 for GH¢39,032,118 00, August 6, 2015 for GH¢7,169,113 44, September 17, 2015 for GH¢42,000,000 and the last payment was on October 9, 2015 for GH¢25 275,223 43.

Exhibits FF, FF1, FF2 and FF3 all tendered by PW6 contain swift transfers from COCOBOD accounts to that of the 3rd accused including foreign exchange used.

Moreover, PW6 also tendered into evidence Exhibits GG, GG1, GG2, GG3, GG4, GGS and GG6 depicting payments made to the 3rd accused for a total sum of GH¢498,935,974.50 for one million litres of Lithovit Liquid Fertiliser,” the judge held further.

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