IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF
JUSTICE, HELD AT ACCRA, ON TUESDAY, THE 12TH
DAY OF MAY, 2020
BEFORE HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE
COURT OF APPEAL SITTING AS AN ADDITIONAL JUSTICE OF THE
HIGH COURT
SUIT NO. CR/904/2017
THE REPUBLIC
VRS
- EUGENE BAFFOE BONNIE
- MATTHEW WILLIAM TETTEH TEVIE
- DR. OWUSU ENSAW
- ALHAJI SALIFU MIMINA OSMAN
- GEORGE DEREK OPPONG
JUDGMENT
“…the Pegasus as well known is a Greek mythical immortal winged horse endowed with supernatural powers that served as a breakthrough to freedom. My Lord, everybody wants freedom and the name itself suggests that it has very powerful capabilities, that is the Pegasus system”
Per the 4th Accused, Alhaji Salifu Mimina Osman on the 18thday of February, 2020 at page 6 of the proceedings on that day. Indeed Pegasus, the offspring of the Olympian god Poseidon is captured in the image of a visible pure white horse in Greek mythology.
He was caught by Bellerophon and was ridden on to defeat chimera. In an attempt to
reach mount Olympus, this winged horse was transformed into a constellation in the
northern sky.
The manufacture and sale by an Israeli company by name NSO Group Technologies
Ltd (NSO) of a modern equipment, named after this Greek mythical figure having the
functionalities, among others, of monitoring phone calls, including those of Whatsapp
(see page 2 of the proceedings on the 7th of February, 2020): as to whether or not the
Board of the National Communications Authority (NCA) approved the use of its monies
for the purchase of such an equipment or that there was no need for such an approval at
all, whether the accused persons did benefit personally as officers of the public or
otherwise in the purchase, whether the National Security Council Secretariat (NSCS)
had made a request for US$8 Million for such an equipment, are among some of the
issues that are at the heart of the seventeen charges preferred by the Republic against
the accused persons.
The accused persons were arraigned before the court on the 22nd of December, 2017 on
seventeen charges. A1 was charged with eight counts. A2 with eight counts as A1. A3
with six of the counts. A4 with seven of the counts whilst A5 on the other hand was
charged with six of the counts. The charges range from conspiracy to wilfully cause
financial loss to the State, wilfully causing financial loss to the State, conspiracy to steal,
stealing, using public office for profit, contravention of the Public Procurement Act,
Money laundering, intentionally misplaying public property, all contrary to sections
23(1) and 179A(3)(a), 124(1), 179C(a) all of the Criminal Offences Act, 1960, Act 29,
sections 92(1), 14(1)(a), 15(1) of the Public Procurement Act, 2003, Act 663, sections 3
1(1)(c) of the Anti-Money Laundering Act, Act 749, 2007 and finally section 1(2) of
the Public Property Protection Act, 1977, SMCD 140, respectively.
The facts as recounted by prosecution is that the first accused, a former chairperson of
the Board of NCA, 2nd accused, the former Director-General of NCA, third accused, a
Board member and chairman of the Finance sub-committee of the NCA and the fourth
accused, being also a Board member and the former Deputy National Security
Coordinator until December, 2016, all without any provision having been made in the
budget and supplementary budgets of NCA in 2015 and 2016 for the purchase of a
cyber-surveillance equipment, and with the NCA not having discussed and approved
the use of NCA’s money for the purchase of such equipment, A5 was engaged by A1
for A2 to sign an agreement with A5 for the latter to be a reseller of a Pegasus equipment
to NCA. That in the process all the accused persons agreed to act together to steal and
cause the various offences for which they have been charged wherein A4, being the
Deputy National Security Coordinator authored a letter purporting it to have emanated
from the National Security Council Secretariat (NSCS) requesting for an amount of
$US8 Million as institutional support for the NSCS for the purchase of a cyber-
surveillance equipment. That by this letter generated by A4, the Finance Director of
NCA was made to act under the directions of A1 and A2 to transfer an amount of $US4
Million into the account of Infralocks Development Ltd, (IDL) controlled by A5, when
there had also not been any necessary required processes for selection of such an entity
as required by the Procurement laws of the country for IDL to undertake such purchase
of goods. That upon receipt of the monies, A5 transferred an amount of $1 US Million
to an Israeli company, NSO Group Technologies for the purchase of a Pegasus
equipment. That the $3 US Million was kept for the personal use of the Accused
persons, who upon the matter coming to light, an amount of $I US Million was retrieved
from A5. All the accused persons pleaded not guilty for which reason by law prosecution
had to lead evidence against them to establish the charges.
With the Accused Persons having pleaded not guilty to all the charges, prosecution
called six witnesses in support of its case. And these in order of their appearance before
the court were Pw1 – Abena Kwarkoa Asafo–Adjei, Head of Legal and Secretary to the
Board of National Communications Authority, (NCA), Pw2 – Dr. Isaac Yaw Ani,
Director of Finance, NCA, Pw3 – Col. Michael Kwadwo Opoku, Director of Operations
– National Security Council Secretariat, Pw4 – Henry Aplehe Kanor, Director-General,
Technical Operations, NCA, Pw5 – Duncan Opare, Deputy National Security
Coordinator, and Pw6 – D/C/Inspector Michael Nkrumah, a Police detective attached
to the Bureau of National Investigations (BNI).
At the close of the case of prosecution, all the accused persons made submissions of no
case to answer. The court in a ruling delivered on the 23rd of May, 2019 dismissed all
the submissions and invited the accused persons to open their defence with the
exception of A3 who the court found that the prosecution had not been able to establish
a prima facie case against him in respect of counts 1, 2, 7 and 17 out of the six counts.
The court invited A3 to open his defence only in respect of counts 3 and 14. The Court
of Appeal on the 25th of March, 2020 in a ruling delivered in respect of an appeal by the
3rd Accused disagreed with the court on its invitation to A3 to open his defence on the
two remaining counts and accordingly acquitted and discharged A3 on the two
remaining counts. A3 therefore is not part of the proceedings for the evidence that was
led for and against him to be considered in this judgment.
BURDEN OF PROOF
It is apt before I proceed to evaluate the evidence led during trial that I set out the burden
that prosecution bears in a criminal case of this nature. Section 11(2) of the Evidence
Act, NRCD 323 states that in a criminal action the burden on the prosecution of facts
essential to guilt requires the prosecution to produce sufficient evidence so that the court
can find the guilt of the accused proved beyond reasonable doubt.
And section 13(1) states as follows:
‘in any civil or criminal action the burden of persuasion as to the commission by
a party of a crime which is directly in issue requires proof beyond a reasonable
doubt’.
And there seems to be a further emphasis under section 22 of the Evidence Act which
states that:
‘in a criminal action, a presumption operates against the accused as to a fact
which is essential to guilt only if the existence of the basic facts that give rise to
the presumption are found or otherwise established beyond reasonable doubt…’
As far as the standard of reasonable doubt is concerned there is no room for an accused
to be convicted on the basis that the charges or the allegations against him might be
true. If there is such a possibility then what it means is that prosecution has not made
out a case or has not proved its case beyond reasonable doubt. There could be a doubt
only that the doubt should not affect a reasonable person’s belief regarding the guilt of
an accused. It is on that score that Lord Denning notes in MILLER v MINISTER OF
PENSIONS [1947] ALL ER 372 @ 373 that it is needless for prosecution to attempt to
proof the guilt of the accused beyond a shadow of doubt since that standard will be
impossible to attain and were the law to allow that there will be the admission of fanciful
possibilities to deflect the course of justice. In effect and in simple language the standard
expected of prosecution by reasonable doubt means that by the end of the trial
prosecution must prove all the elements of the offences charged and the explanations
offered by the accused must be one that is not reasonable probably. See Justice Brobbey
in his work Essentials of Ghana Law of Evidence at pages 48-55. Lord Chief Justice of
the King’s Bench from 1822 – 1841, Charles Kendal Bushe put what is reasonable doubt
in a much more elegant language as follows:
‘‘… the doubt must not be light or capricious, such as timidity or passion prompts,
and weakness or corruption readily adopts. It must be such a doubt as upon a
calm view of the whole evidence a rational understanding will suggest to an
honest heart the conscientious hesitation of minds that are not influenced by
party, preoccupied by prejudice or subdued by fear’’.
See also OSEI v THE REPUBLIC [2009] 24 MLRG 203, CA; ABODAKPI v THE
REPUBLIC [2008] 2 GMJ 33; REPUBLIC v UYANWUNE [2013] 58 GMJ 162;
TETTEH V THE REPUBLIC [2001-2002] SCGLR 854; DEXTER JOHNSON v
THE REPUBLIC [2011] 2 SCGLR 601; FRIMPONG A.K.A IBOMAN v
REPUBLIC [2012] 1 SCGLR 297.
Accused however is not under any obligation to prove his innocence as the burden of
proof is on the prosecution throughout the trial. All that an accused is required to do
when invited to open his defence is to raise reasonable doubt regarding his guilt. It is
only when the defence raised is not reasonably probable that an accused would be
convicted. The Supreme Court aptly put it in the case of MALLAM ALI YUSIF v
THE REPUBLIC [2003-2004] SCGLR 174 that:
“the burden of producing evidence and the burden of persuasion are the
components of ‘the burden of proof.’ Thus, although an accused person is not
required to prove his innocence, during the course of his trial, he may run a risk
of non-production of evidence and/or non-persuasion to the required degree of
belief, particularly when he is called upon to mount a defence’’
With the burden of proof satisfied only when it has been proved to the standard required
by law by the prosecution in mind, I proceed to an examination of the evidence led in
respect of each of the counts against the accused persons.
COUNTS ONE AND TWO ON THE CHARGES OF CONSPIRACY TO
WILFULLY CAUSE FINANCIAL LOSS TO THE STATE AND WILFULLY
CAUSING FINANCIAL LOSS TO THE STATE AGAINST A1, A2, A4 AND A5.
A1, A2, A4 and A5 are charged with the offence of conspiracy to wilfully cause financial
loss to the State under count one. They have also been charged under count two for
wilfully causing financial loss to the State. Ghana has reshaped the meaning and scope
of its law on conspiracy through the new formulation as set out by the Statute Law
Revision Commission and as affirmed by Dotse JSC in the case of FRANCIS
YIRENKYI v THE REPUBLIC Suit No J3/7/2015. In the new formulation of
conspiracy under section 23(1) of the Criminal and Other Offences Act, Act 29, 1960 it
has been restated as follows:
“Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without previous
a concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”.
What used to be rendered as two or more persons agreeing or acting together with a
common purpose has now been changed to one of agreement to act together. For
prosecution to be deemed to have established a prima facie case, the evidence led
without more, should prove that:
- That there were at least two or more persons
- That there was an agreement to act together
iii. That sole purpose for the agreement to act together was for a criminal
enterprise.
The new rendition no doubt has narrowed the scope of the law of conspiracy in Ghana.
It is however no defence for an accused to claim when found acting together with others
to contend that it cannot be used as evidence of a prior concert or deliberations. For any
interpretation that appears to ignore the latter part of section 23(1) of Act 29 to the effect
that “… whether with or without any previous concert or deliberation”, would have
missed the import of the offence of conspiracy. Indeed under illustrations to the section
23(1), the subsection (1) illustration is still maintained to the effect that “if a lawful
assembly is violently disturbed (section 204), the persons who take part in the
disturbance have committed conspiracy to disturb it, although they may not have
violently committed any violence and although they do not act in pursuance of a
previous concert or deliberations”. As the illustration cannot be deemed to be part of
the law, as a common law principle of interpretation, it points to a better appreciation
and illumination of our understanding of the provision under consideration, the
explanation provided as quoted above shed light on the ambit of the law on conspiracy.
The Supreme Court has thrown a more searching light to illuminate ones appreciation
of the new law on conspiracy in the case of FAISAL MOHAMMED AKILU v THE REPUBLIC [2017-2016] SCGLR 444 dated 5th July, 2017 wherein Yaw Appau JSC stated on conspiracy under current Ghanaian law as follows:
“From the definition of conspiracy as provided under section 23(1) of Act 29/60,
a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime… However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”.
In that respect, notwithstanding the removal of the word ‘or’ persons found to have committed or committing a crime together would be deemed to have had previous concert or deliberations to commit the crime because of the words “whether with or without any previous concert or deliberation” which is still part of the definition of criminal conspiracy. Was there an agreement to act together for a common criminal purpose for which each of the persons was a party to? As the scope of our law on conspiracy must require a proof by prosecution of agreement to act together, it would be needful that I set out the ingredients and scope of the substantive offence of causing financial loss to the Republic to discuss the conspiracy and the substantive offence together. The substantive offence states under section 179A (3) (a) of Act 29 as follows:
“A person commits a criminal offence through whose wilful, malicious or fraudulent action or omission – (a) the Republic incurs a financial loss”
Afreh JSC stated the ingredients of the offence of causing financial loss to the Republic in the case of REPUBLIC v ADAM & OTHERS [2003-2005] 2 GLR 661 to be “(a) financial loss (b) caused to the State (c) caused through the action or omission of the accused (d) that the accused (i) intended or desired to cause loss or (ii) foresaw the loss as virtually certain and took an unjustifiable risk of it or (iii) foresaw the loss as the probable consequence of act and took an unreasonable risk of it; or (iv) if he had used reasonable caution and observation it would have appeared to him that his act would probably cause or contribute to cause the loss”
Baddoo JA (as he then was) in the case of THE REPUBLIC v SELORMEY [2001-2002] 2 GLR 429 at 430 in also dealing with the offence of causing financial loss to the State stated as follows:
“In plain ordinary language, it means any deliberate act or omission of any person which results in a financial loss to the State constitutes an offence. Therefore for the prosecution to succeed in proving this charge against the accused person they must show that: (a) the accused person took certain actions, and (b) those actions resulted in a financial loss to the State”
“Loss” as an ingredient of the offence has been interpreted in the Ibrahim Adam’s case as “damage, deprivation, detriment, injury or privation” whiles willful has been interpreted broadly in the case of TSIKATA v THE REPUBLIC [2003-2004] SCGLR 1068 by Modibo Ocran JSC to cover both intentional reckless acts that end in financial loss to the Republic of Ghana as well as acts with such consequences done with a bad or evil motive. It is not necessary, though, for prosecution to demonstrate any evil or bad intent on the part of the accused persons. It is still willful as long as the act was done intentionally or deliberately even if the accused persons did not foresee or intend or desire the consequences of their actions as willfulness connotes an act that is done on purpose or intentionally or knowingly and bring into being the mental element of mensrea that must be established to find a person guilty of an offence in criminal proceedings. The learned Judge concludes on the word ‘willful’ as follows:
“in a criminal statute, the word ‘willful’ could, as a matter of law, cover cases in which a public officer voluntarily engages in a course of conduct which in fact injures the state financially, whether with an evil or malicious intent to injure the state, or simply actuated by a reckless and persistent disregard for laid down corporate and statutory rules, or as a result of sheer obstinacy, or as part of a bureaucratic culture of financial unaccountability. But it is also true that ‘willful’ may be used to describe an act which is done not only deliberately or intentionally, but in circumstances where the doer must also have intended or at least foreseen the probable consequences of their non-action. We are of the view that the first interpretation of “willful” puts more teeth into the effort to reduce corporate lawlessness and lessen the potential incidents of financial loss to the state”.
Indeed the exposition on the word wilful by the Supreme Court is consistent with what Stroud’s Judicial Dictionary of Words and Phrases (5th Ed) defines willful as:
“Willful … as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent and that what he has done arises from the spontaneous action of his will. It amounts to nothing more than this that he knows what he is doing, and he is a free agent”
See also RE YOUNG & HARTSON 31 CH D. 174; LOMAS v PECK [1947] 2 ALL E.R 547 @575. The elements were what prosecution was under duty to prove beyond reasonable doubt under counts one and two against the accused. The substance of the testimony of Pw1, Abena Asafu-Adjei wherein she tendered among others Ex ‘B’, the budget of NCA for the year 2015 where no item was captured by way of institutional support to the NSCS for cyber surveillance or any form of security assistance. She also tendered the various minutes of the Board of NCA during the relevant period as Ex ‘C’ and ‘D’ series and nothing seems to have ever been discussed by the Board by way of support in whatever amount to NSCS. Exhibit ‘E’ series also captures the budget for the year 2016 with nothing combing through that document that shows any industry support for NSCS. It is from this background of the Board not having discussed or approved any monies by way of institutional support that Ex ‘S’ was signed by A2 on behalf of NCA and A5 for and on behalf of Infralocks Development Ltd. (IDL) a company which A5 is the managing director. Ex ‘S’ was signed on the 17th of December, 2015. IDL was to be a reseller for NSO Group Technologies Ltd of Israel of the cyber intelligence equipment by name Pegasus system to NCA, which was described in the document as the ender user of the equipment but not NSCS.
Prosecution further contended that it was in pursuance of this contract which A2, though the Director-General then of NCA signed Ex ‘S’ but which was beyond his approval threshold of Gh?100,000 that made A1 and A2 to invite Pw2, Dr. Yaw Ani, the Deputy Director – Managerial Operations but at the relevant time was the Director of Finance, to the office of A2 where A1, who was present, told him that National Security needed to procure a cyber-security equipment and NCA was to support the purchase of the equipment with US$4Million. That it was at that moment in the early February, 2016 meeting that Pw2 claim he requested for the specific letter from NSCS for the support.
That A2 impressed on him to proceed with the processing whiles steps were taken to procure the letter from NSCS. The transfer letter was what was admitted as Ex ‘F’ and the request that was then deemed to have come from NSCS was Ex ‘G’. Based on that, a transfer of an amount of US$4 Million was accordingly made to the account of IDL, where upon receipt US$1 Million was transferred to NSO Technologies Ltd. Ex ‘G’ is signed by A4 on behalf of the National Security Coordinator and is dated the 24th of February, 2016. Pw3, Col. Michael Opoku had claimed in his evidence that there was no trace of Ex ‘G’ at the NSCS and the dispatch book of the NSCS also had no trace of such a letter having left the NSCS and with the serial No 4240 assigned Ex ‘G’ being actually the number for a letter sent to NCA from NSCS to deploy a transceiver at the Independence Square.
By this prosecution had linked or hooked all the four accused persons to diverse roles for the amount of US$4 Million paid from the account of NCA to IDL. Prosecution further in its case through Pw4, Henry Kanor, Deputy Director, Technical Operations also adduced evidence that sometime in April, 2016 he was invited by A2 to a meeting where A1, A4 and A5 were present and as by law NCA was mandated to inspect all communication equipment imported into the country, he claim that he was tasked to oversee the inspection of the equipment and the site of installation when the equipment that he was told belonged to NSCS arrives. See page 4 of the proceedings of 15th of January, 2016. He supported this claim with Ex ‘M’, the way bill that provides the consignees as the National Security Adviser and the 5th Accused. That it was A1 who later called to inform him that the equipment had arrived in the country and A5 would call him for clearance and inspection and that A5 indeed did so as he accompanied A5 to CEPS office at AFGO DHL together with one colonel. Besides that when the equipment was cleared and sent to the house of Baba Kamara for installation by six Israelis, the equipment after its installation was confirmed to him by A1 that it was successful.
Prosecution’s 5th witness in the person of Duncan Opare, the Deputy National Security Coordinator testified to the fact that the inventory of equipment at the Secretariat did not show that it had such an equipment for cyber security not having received any handing over notes. D/Inspector Michael Nkrumah attached to the BNI crowned the case of the prosecution by testifying as to the extent of his investigations and the documents that came into his custody which he tendered all before the court.
EVALUATION OF THE EVIDENCE ON COUNTS ONE AND TWO IN RELATIONS TO FIRST ACCUSED
As the accused persons are not required by law to prove their innocence, the question is would a critical evaluation of the evidence adduced during trial be sufficient enough to establish the charge of conspiracy to cause and causing financial loss to the Republic against the accused persons. But how is A1 connected with the first two counts? As counsel for A1 submit that being a Board chair who does not hold any managerial position in NCA, he was not involved in the management of the affairs of the entity.
That is true that A1 as a Board chair is not involved in the management of the affairs of NCA. For an examination of Ex ‘S’ or ‘T’ or ‘U’ will show that A1 did not sign them and they were all signed by A2. PW2, Dr. Yaw Ani, he it was in his evidence that first brought into the equation the involvement of A1 as he testified on the 16th of October, 2018. See page 9 of the proceedings on that day. That it was A1 that told him that there was an urgent need for National Security to procure cyber security equipment and NCA was supposed to support the enterprise with an amount of US$4 Million. That it was as a result of that engagement that later produced Ex ’G’. That found corroboration in the evidence of Pw4, Henry Kanor that he was invited to a meeting by A2 where A1, A2, A4 and A5 were present and told of the Pegasus system that was to arrive in Ghana and what he Pw4 was to do by way of inspection. Further roles played by A1 was also recounted by Pw4. See pages 3 and 4 of the proceedings on the 15th of January, 2019.
Much more corroborative evidence was adduced before the court by PW6, /Inspector Michael Nkrumah and supported his testimony with Exhibits ‘Z’, ‘AA’, ‘BB’ that were admitted without any objection. Ex ‘PP’ series that were also admitted after a careful evaluation upon the conclusion of a voire dire, A1 made confessions and provided details of his involvement in the whole deal.
In Exhibit ‘Z’ A1 claim that NCA could not meet the request of Yaw Donkor but he was copied on a second request after a series of terrorists attacks for which he had verbal discussions with A4 wherein a deal was struck for the US$8 Million request to be shared equally between NCA and National Security. That there was no official response to National Security besides the verbal discussions. Further that the US$4 Million was paid directly to IDL. Exhibit ‘Z’ series written by A1 alone provides enough evidence of the level of involvement of A1 and the claim in the submission of learned counsel for A1 that A1 played no role is not a reflection of what is on record. So is the cross examination of PW1 on the 23rd of January, 2018 at page 15 of the proceedings that A1 as Board could not have known of Exhibit ‘S’ as he was not the one whose signature appears on the document. Being aware of the processes leading to how NCA was to pay US$4 Million, it cannot be said that A1 was not aware of Exhibit ‘S’. In Exhibit ‘AA’, A1 states how NSO was selected based on a team decision. Without more it was indeed a correct call made by the court when A1 was invited to open his defence in respect of the first two counts.
DEFENCE OF FIRST ACCUSED
When it comes to the defence of an accused the court is guided by the three pronged approach laid down by the Supreme Court in the case of LUTTERODT v COMMISSIONER OF POLICE [1963] 2 GLR 429 where the court in relying on the old case of REGINA v ABISA GRUNSHIE (1955) 11 W.A. L.R 36 noted at page 439 of the report as follows:
“Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages:
(1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant;
(2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and
(3) Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.
See also AKILU v THE REPUBLIC [2017-18] 1 SCGLR 444. And I think with this guide in mind that would be the approach of the court in testing the counts and the evidence led by prosecution and the defence put up by the accused persons.
Did A1 raise reasonable doubt regarding his guilt in respect of the first two counts applying the test set out in LUTTERODT case supra? In his evidence A1 claim that at the 33rd
meeting of FINCOM, it dealt with the request being Ex ‘6’ and that with the Board’s decision on the request for a contribution of US$4 Million, management executed that decision and he played no role in the payment. Exhibit ‘1’ is clear on how FINCOM treated the request contained in Exhibit ‘6’ written by Mr. Yaw Donkor. FINCOM is only a committee of the Board but not the Board itself. It does not operate independent of the Board and all it does is to deliberate on financial matters and make the appropriate recommendations to the Board. FINCOM never approved NCA’s monies to be disbursed to NSCS. And any attribution of a provision of a green light for payment to either FINCOM or the Board is not only untrue, incorrect but also not reasonably probable.
Besides, in yet the same breath A1 claim that the decision to pay monies to IDL was made on the basis of Exhibits 7, 8, 9 and 10. Exhibit ‘7’ is the 41st minutes of FINCOM held on the 19th of August, 2016. Exhibit ‘8’ is a letter of invitation to members of FINCOM to attend its 42nd meeting which was held on the 18th of November, 2016.
Exhibits ‘9’ and ‘10’ are the NCA’s management accounts, revenue and expenditure report for the quarter ended 30th June, 2016 and 30th September, 2016. As to how mere letters for meeting and management accounts could be the basis of approval was exposed as totally no answer to the charge against A1 in the cross examination done by the DPP on the 16th of January, 2020 at page 6 of the proceedings for that day as follows:
“Q: You also said that Exhibits 7, 8, 9 and 10 were the basis of payment to IDL. Is that 18 right?
A: Yes that is what I said. My Lord I might have misspoken on Exhibits ‘7’ and ‘8’ but I was referring to Ex ‘9 and ‘10’ which were management accounts, revenue and expenditure report.
Q: From Ex ‘9’ and ’10’ can you demonstrate to the court, why the payment of US$4 Million was made to IDL.
A: Once again I might have misspoken. What I tried to refer to was the amount that was captured on page 4 of the management account (page 4 of Exhibit ‘10’) which has Infralocks Development Ltd – Gh?15,498,000 being captured as part of industry support and development.
Q: It is right that the revenue and expenditure report which you have just referred to (Ex ‘10’) is a narration of the revenue and expenditure of the NCA and for Exhibit ‘10’ it reflected revenue and expenditure for nine months ending the 30th of September. Is that right?
A: That is right”.
The exchanges above accordingly exposed the claim of A1 which he had made on the 10th of December, 2019 at page 3 of the proceedings on that day that management executed the approval of the request in Ex 6 and ‘1’ and that Exhibits 6, 7, 8, 9 and ‘10’ are to that effect completely missed the point and made the defence not reasonably probable. Exhibits ‘9’ and ‘10’ that he claim only captured revenue and monies that had gone out and cannot be used to support a defence of an approval having been granted by the Board for the disbursement.
Again, in responding to Exhibit ‘G’, A1 claim that NCA took a decision to pay half of the amount. Nowhere has the court been led by A1 to know in the minutes of the Board how the Board took the decision to pay half of the amount and that claim made on the 14th of January, 2020 is also found not to be reasonably probable. The cavalier response of A1 to the charge of causing financial loss to the Republic that he was not part of the purchase process or the payment of the money is certainly not borne out by the evidence on record. I intend to leave the weightier evidence of his own confessions in Exhibit ‘PP’ series and the lame attempt to recant them and the impact it had on the credibility of his defence to a consideration of the stealing related offences. Suffice to say that contrary to the submission made by his learned counsel that A1 having recanted Ex ‘PP’ series in subsequent statements such as Exhibits ‘Z’, ‘AA’ and ‘BB’ together with his denial in court, the court is bound to make a finding that A1 had recanted his statement.
What is at stake is the implications of inconsistent statements but not A1 having recanted his confession. For that is clear from exhibits ‘Z’, ‘AA’ and others that A1 at a point recanted what he confessed. The law is that inconsistencies in unsworn statements of an accused as against his sworn testimony, does not inure to his benefit. The accused must be able to reasonably account for the inconsistencies. Did he do that? A1’s claim in court as to how Ex ‘PP’ series were taken is exhaustively dealt with infra. However, the inconsistencies, contradictions and ambiguities did his case no good and completely destroyed his credibility as a witness. That was the net effect of Ex ‘PP’ series he wrote when he came from the comfort of his home with his lawyer to write those confessions and having later realized the damage it had done to him turned round to sing a different tune that he was in custody without the necessaries of life. I am satisfied that the evidence led in totality by prosecution proved the first two charges against A1 beyond reasonable.
THE EVALUATION OF THE EVIDENCE AGAINST SECOND ACCUSED
First, that an amount of US$4 Million was caused to be transferred by Pw2 to IDL is not in dispute. See Ex ‘F’ being the transfer letter and Ex ‘H’ being the statement of account of NCA’s dollar account which shows a transfer of US$4 Million on the 11th of March, 2016 to IDL. If this amount was not lawfully ordered to be transferred from NCA dollar account, then all persons who deliberately or intentionally played diverse roles, in the absence of an explanation that must be reasonably probable stands in danger of conspiracy to cause and causing financial loss to the Republic. From the record before the court was there any approval for the disbursement of such monies and if there had to be approval, who or what body was mandated to give that approval? The Director of Finance who had worked with NCA for over eighteen years at the time he testified claim that there were approval limits at NCA and for a Director General of NCA, he could only authorize payment from the coffers of NCA when the money involved was not more than Gh?100,000.00. This claim of an approval threshold limit of Gh?100,000 for the Director-General has stoutly been challenged by learned counsel for A2 that with prosecution not having produced before the court any document in a form of regulations or policy of NCA that document approval levels means that A2’s right as the Director General to spend NCA’s monies was not fettered. See page 20 of the written submission of learned counsel.
It is true that prosecution is under a duty to prove its case beyond reasonable doubt and merely stating that there were approval limits without the necessary policy or regulations from NCA would not suffice to establish that claim. However A2 himself admit or concede that the expenditure within his limit was only in respect of small ticket items like fuel, papers, toners and for big spending items he needed Board approval before making expenditure of that nature. For this was A2’s own admission under cross examination from prosecution on the 30th of January, 2020 at page 12 of the proceedings that:
“Q: As Director-General, can you tell the court what your approval limit was when were at NCA?
A: I did not have a specific approval limit. So long as I got the green light from the Board, the transactions would take place. I cannot show you a particular document which says that the approval limit for the Director-General was ‘x’ amount of cedis.
Q: This would mean that you as Director General could spend with the approval of the Board
A: The Board has to give me directive to spend before I could spend. But for expenses like medical bills, fuel and other miscellaneous items like paper and toner for the printers, I could approve these ones. But for big ticket items I needed explicit approval from the Board”.
From the above I hold that the claim that A2 as Director-General could spend as much as he wanted of the funds of NCA is not correct. For A2 was only limited to spending in small ticket items to ensure the daily running of the administration of NCA but when it came to spending big amounts like the one in contention, A2 definitely needed the approval of the board. What is more, defence tendered through PW2, Exhibit ‘6’ being a letter from the then National Security Coordinator, Mr. Yaw Donkor for institutional support of US$34 Million. The procedure that was used in treating the request at Exhibit ‘1’ provides a deep introspection as to how request for huge sums of money are treated at NCA. The manner that Exhibit ‘6’ was treated is adequately captured in Exhibit ‘1’ also tendered through Pw2. At page 2 of Exhibit ‘1’ it notes the Finance Committee (FINCOM) acknowledgement of Exhibit ‘6’ from Yaw Donkor for financial support for NSCS. The meeting decided that acceding to the demand for US$34 Million was not feasible and management was to take a look at figures that were feasible and capture it in its future budget. From this I am safe to find as a fact that request for support would first be referred to FINCOM. And after its deliberations if same is approved, the Board would be notified of the recommendations of FINCOM for its blessings before any spending of huge amount is made.
Exhibit ‘6’ was shelved by FINCOM on the 8th of June, 2015. However, without any evidence that there had been another request for support for such request to have been deliberated upon by FINCOM for its recommendations to have gone to the Board for approval or rejection, or any evidence that the financial standings of NCA had improved for it to have captured the request in Ex ‘6’ in its future budget for disbursement of monies to NSCS, A2 on the 17th of December, 2015 signed Ex ‘S’ for NCA to part with US$8 Million of NCA’s monies. There is nothing like conditional approval as A2 sought to impress upon the court in Ex ‘6’. It was rejected with a caveat that if the finances of NCA improves in the future, that may be considered and captured in the future budget of NCA. The budget for the year 2015 as seen in Ex ‘B’ did not capture any expenditure for NSCS and neither did Ex ‘E’ series being the 2016 budget capture any such expenditure. And where a budget can be implemented it has to first go before the Board for its approval. A few instances on record will suffice. In Exhibit ‘C’ at page 5 under item 4.4 the Board approved NCA’s budget for the year 2015, in Exhibit ‘C2’, the Board approved some recommendations made by the Management and Projects Management Committee, at page 5 of the same exhibit the Board approved recommendations by FINCOM for sitting allowances, accountable impress and budget for purchase of equipment for the administration of the Electronic Communications Tribunal (ECT). I could go and on into other items as well as Ex ‘D’ series to validate this claim that A2 needed the explicit approval of the Board as he himself admitted and not even just the FINCOM to proceed to spend NCA’s monies.
Without more, it could be seen that by the time Exhibit ‘G’ arrived, in March, 2016 it was only due to the that PW2 as the Director of Finance had requested for such a letter without which for best financial practices he would not have acted. The processes for spending of NCA’s money had been initiated but it was not the one based on which A2 acted in Exhibit ‘S’ as A2 could not have acted on the basis of a non-existent letter for support for US$8 Million. An examination of the investigative cautioned statement of A2 would provide further illumination. In Exhibits ‘DD’, ‘EE’ and ‘FF’ admitted with any objection, being a statements given by A2 wherein he claimed that approval was given by the Board for monies to be paid to help fund equipment to combat counter terrorism. With the relevant minutes of the Board in evidence and no such letter or request having come to the attention of the Board for its deliberations and approval as prosecution have shown, I think the onus therefore fell on A2 to discharge the claim that the Board approved monies of either US$4 Million being monies paid out or US$8 Million, if one were to go by Exhibit ‘S’ for spending on a standard that is expected to be one of reasonable probability.
Besides, in the three exhibits just referred to, that is Exhibits ‘DD’, ‘EE’ and ‘FF’, A2 noted that A4 brought the request. And that request can only be Ex ‘G’ authored on the 24th of February, 2016, more than two months after A2 had signed Ex ‘S’ to commit NCA to the payment of not US$4 Million as he claim but US$8 Million from Exhibit ‘S’. There is heated controversy on Exhibit ‘G’ regarding its origin as it was not recorded in Exhibits ‘L’ and ‘K’. In view of the fact that the admitted author is A4, I intend to suspend further evaluation of Exhibit ‘G’ to revisit and deal with it when I am assessing the evidence for and against A4. It was on the gamut of a consideration of all these evidence and factors evaluated that I felt impelled to call on A2 to open his defence in respect of the charges of causing financial loss to the Republic as monies belonging to NCA, and therefore the Republic had been paid and constituted a loss to the Republic.
DEFENCE OF SECOND ACCUSED ON THE FIRST TWO COUNTS
A2 in his defence as found at pages 3 and 4 of the proceedings on the 23rd of January, 2020 claim that before he took over as Director-General at NCA, a letter had been sent to NCA by NSCS for help to combat threats from the cyber space. And because of that request the NCA decided to go into the market to look for vendors who could provide the solutions they were looking for. And it was that when they (NSCS) wrote again that he was invited to NSCS to watch some demonstrations. That NCA told NSCS that NCA was not in a position to give out all the monies it had requested but would provide half of the amount. A2 further claim that there were minutes of the Board that showed the discussions about the purchase of the Pegasus equipment. In fact there is no such discussions captured in any Board minutes of NCA. The request in Exhibit ‘6’ did not even get to the Board as FINCOM dealt with it and shelved it for future consideration depending on the improved finances of NCA. Those claims accordingly are found not to be reasonably probable defence to the charge.
As Director-General, he wrote on Exhibit ‘G’ to PW2 to pay the monies by noting that the Board chair had approved. If it was true that Board chair approved, then again as Director-General he knew that A1 alone could not in his position as Board chair make any such approval without same having gone to the Board. And the claim that Board chair approved is contrary to Exhibits “DD”, “EE” and “FF” that he wrote that the Board gave approval. Another claim that FINCOM approved the purchase is also not only untrue but not reasonably probable. The defence of conditional approval granted in Exhibit ‘1’ is wholly factually incorrect and not borne out of Exhibit ‘1’. Whatever source Exhibit ‘G’ came from, the way Exhibit ‘6’ was treated should have been the same way, Exhibit ‘G’ should have been treated. The claim that there could also be variations in the budget as it is not cast in iron and stone is correct only that anytime there was variation, management would come up with a supplementary budget or that kind of spending would receive the necessary ratification from the Board. There is no such supplementary budget made to accommodate the use of such monies by NCA for payment to IDL for cyber security equipment as shown in Exhibits ‘B’ and ‘E’. And there is nowhere in the minutes as captured in Exhibits ‘C’ and ‘D’ series that the Board ever met to engage in any form of ratification.
Again, A2 as part of his defence of causing financial loss to the State claim that NCA gave a number of support to institutions such as the Ministry of Communications, the Ghana Broadcasting Corporation (GBC), Attorney-General’s Office to help fund some State-Attorneys to undertake courses in England and other places. That NCA and the Attorney-General’s Office worked together on the Global Action Against Cybercrime (GLACY) and that there was another workshop that was attended in Strasburg. That is not in dispute. It was in that line of defence that Exhibits such as Exhibits ‘33’ ‘34’ were put in. I have taken a careful look at Exhibits ‘33’ and ‘34’ and they are totally irrelevant as an answer to the case against A2. A2 himself admit and state that when the various agencies communicate their needs to NCA, they are all tabled before the Board at a meeting as he A2 alone cannot approve same. See the record at page 3 of the proceedings on the 28th of January, 2020. The forwarding in January, 2020 by one Etta Mensah of official correspondences between NCA and the Attorney-General acting by the DPP has no probative value at all and that also should not have been the manner an employee working for NCA should have acted in providing any information if any to the accused persons if any needed such information. The procedure is now obvious given the decision of the Supreme Court in this case on disclosure. The dragging of the name of the DPP and the Attorney-General’s office on conferences on GLACY in Strasbourg and other places were all no answer to the first two counts as they failed to raise reasonable doubt as to the guilt of A2. Prosecution proved the first two counts against A2 to the standard of reasonable doubt required by law.
EVALUATION OF THE EVIDENCE ON COUNTS ONE AND TWO IN RELATION TO FOURTH ACCUSED
A4 was first introduced in the evidence of the prosecution in the testimony of PW2 when he claimed he requested for a letter from NSCS as an authorization to enable him effect the transfer of US$4 Million. What was brought to him dated the 24th of February, 2016 was Exhibits ‘G’ which was authored by A4 wherein a request for US$8 Million was sought. The letter sought for funding to be given some companies that were in a position to support NSCS. For this is what paragraph 5 of the letter requested:
“…we wish to solicit the support of the National Communications Authority (NCA) to provide funding to selected companies, which have the capacity to support the NSCS to develop the capability to ensure the safety of Ghana’s cyberspace”.
Pw4 also testified that in a meeting for which he was invited and instructed about the Pegasus that he said had been bought and was to arrive, he met A4 in the company of the other accused persons. With the evidence of investigations that Pw3, Col Michael Opoku claim to have conducted regarding how Exhibits ‘G’ was generated that there is no such record of that document at NSCS and the reference number provided Exhibit ‘G’ is for a different letter not related to a demand for monies as Exhibits ‘L’ and ‘K’ being extracts from the ledger book that record all correspondence to and from NSCS had no record of Exhibit ‘G’, a case was made for A4 to answer to the claims made.
Pw5, Duncan Opare being the current Deputy National Security Coordinator having claimed that the inventory taken at NSCS did not reveal any Pegasus system as having been handed over. What is more Pw6, as an investigator threw further light on Exhibit ‘G’ on the 26th of February, 2019 that there was no record of Exhibit ‘G’ at NSCS registry, that the file number exist but the reference number correspond with another letter. Also that the inventory of the equipment of NSCS did not show that the NSCS was in possession of any cyber security device in the form of Pegasus. Further that Exhibit ‘V’ series being exchanges between BNI and NCA show that there was no trace of any such transaction in NCA. It is in that light that PW6 claimed to have elicited Ex ‘W’ from Mr. Yaw Donkor, the former boss of A4, where Mr. Yaw Donkor makes a claim that he was not aware of any such equipment. The admission of Ex ‘MM’ series, being out of court investigative statements of A4 made it legally imperative for A4 to have been invited to raise reasonable doubt as to his involvement in a conspiratorial enterprise with A1 and A2 to cause financial loss to the Republic.
And did he do that? In his defence, A4 claim that he was in charge of all National Security Council operations and represented it on Boards and organizations. And one of such was the Joint Intelligence Committee (JIC) and it was during that time that there were emergence of cyber security issues not only of national in character but global in nature coupled with threats off terrorism from the Sahel countries. The solution to A4 was to create a cyber- surveillance space to confront the problems. And because of an earlier request by Yaw Donkor, then his boss from NSCS to NCA for which NCA agreed to help if its finances improved, it had deep throat intelligence of the amazing surveillance that the state of the art technology of NSO of Israel was doing and they had to follow up. That he was enthused and contacted NCA officials who bought into the idea. A4 claim he had further discussions with Yaw Donkor and some security bosses at the Presidency, the top management of NSCS for the purchase. That NCA being an independent institution fitted what NSO wanted as the host of the equipment. And it was in that context that a lady called him from NCA that the Director of Finance, being Dr. Yaw Ani had requested for a support letter for an institutional support of US$8 Million to NSCS and that is how he authored Exhibit ‘G’ on behalf of Yaw Donkor. He also claimed that NCA had the mandate to transact on behalf of NSCS and there was no need for the money to have been sent through the Ministry of Finance or government budgetary allocation nor was NCA acting for NSCS required to go through procurement processes as Yaw Donkor had exemption from Public Procurement Authority in respect of procurement by NSCS.
First, I accept the claim that the then National Security Coordinator was fully aware of the threats of terrorism, cyber security in the sub region and discussions on how to combat it in Ghana. And that claim is wholly found to be reasonably probable. Second I reject the claim by A4 that NCA as far as this transaction was concerned had the mandate of NSCS to transact on its behalf. Merely stating that in court would not be
enough to meet the threshold standard of reasonable probability and there is no scintilla of evidence before the court to that effect or anywhere including the National Communications Authority Act, 2008, Act 769. All the claims including what is on the face of Exhibits ‘S’, ‘T’ ‘U’ as well as even Exhibit ‘G’ itself shows that NCA was not acting as a conduit for NSCS. For NCA to act as a conduit for NSCS cannot only exist in the mind of A4. One Sheini of NSCS, who was present during the demonstration by NSO cannot be taken as the evidence that NSCS knew of this transaction as the demonstration was only a display engaged in by NSO as a seller to whet the appetite of potential entities interested in its product. As to a defence of a blanket immunity granted by Public Procurement Authority (PPP) to NSCS which invariably clothed NCA with the mandate not to undertake any procurement would be appropriately dealt with when I come to the procurement charges.
But was Yaw Donkor, the boss at NSCS at the time aware of the specific demand contained in Ex’ G’ to NCA. In view of the stout challenge to the authorship of Exhibit ‘W’ as not being the signature of Yaw Donkor more especially when compared with Ex ‘6’ which is widely acknowledged as his signature, and given the remarkable difference between the signatures on the two documents coupled with the fact that with such a challenge, the presence of Yaw Donkor in court to authenticate Exhibit ‘W’ would have been the right path that prosecution should have travelled on. Exhibit ‘W’ has been attacked especially by counsel for 2nd and 4th Accused persons as being hearsay evidence. Being an out of court statement of a person who did not appear in court to testify may or may not be hearsay depending on the circumstances. If Exhibit ‘W’ was offered as evidence of the truth of the contents of that statement, then the author not having testified in court would be a hearsay statement. However, if it was offered as evidence only in proof that the statement was made, irrespective of it being true or false, then the statement is admissible. See section 116 (c) of the Evidence Act, NRCD 323.
Pw6 under cross examination on the 4th of April, 2019 at page 12 of the proceedings admitted that as an investigator he believed in the truth of the contents of Ex ‘W’. Even though I admitted the document but will place scant probative value on Exhibit ‘6’ as that document for the reason for which it was tendered was to show the truth of its contents.
I however do not find attractive the defence that it should have been Evelyn Akrasi Sarpong who should have come to court to tender Exhibit ‘G’ and speak to matters on Exhibits ‘L’ and ‘K’. Pw3 as Director of Operations, I find was competent to speak to the documents and Evelyn Akrasi Sarpong was not such a material witness where in the absence of her testimony in court, the claim regarding Exhibits ‘G’, ‘L’ and ‘K’ should collapse. What is important is the relevance of the testimony of the witness and as to whether it meets the standard of proof beyond reasonable doubt required by the court.
If that were not so then it would mean that if such a particular person was no longer in the employment of NSCS or was unavailable due to sickness or any other tragedy, prosecution will not be able to tender those documents. Witnesses are weighed and never counted. See G/CORP VALENTINO GLIGAH v THE REPUBLIC [2010] SCGLR 870; TETTEH v THE REPUBLIC [2001-2002] SCGLR; DEXTER JOHNSON v THE REPUBLIC [2011] SCGLR 60.
In evaluating whether Exhibit ‘G’ did emanate from NSCS and whether A4 raised reasonable doubt with his claim that he was not responsible for assigning serial numbers to dispatches at NSCS and could not be blamed as to why there is no record of Ex ‘G’ at the registry, a recourse to Exhibit ‘MM’ tendered by Pw6 being statements of A4 would be material in the resolution. In Exhibit ‘MM’, A4 claim that in his capacity as the representative of National Security at NCA Board, he in 2016 initiated the process for acquiring tracking equipment for National Security for counter terrorism. That he initiated the process through NCA by requesting for institutional support. In Exhibit ‘MM1’, A4 recounts how in a sub-committee meeting of the Board of NCA, in an informal discussion, the name of the Israeli company came up as dealing in counter terrorism. And that is when he expressed interest to meet the company for a presentation for which A1 and A2 liaised for such presentation at NSCS. So the demonstration that was done by NSO cannot be used as evidence that Yaw Donkor and other high ranking officials of NSCS knew of the purchase as A4 provided a detail reason why NSO came to do the demonstration. For this is what A4 further wrote in Exhibit ‘MM1’ at page 2:
“I was enthused and expressed the need for it. In a later discussion between me and the NCA Board chairman and the Director-General in my office that same day, it came out that I could write to NCA requesting for institutional support since an earlier request was one sent to them but could not be met”.
Again from this the conspiracy in the purchase of the equipment is stated. A4 as a representative of NSCS on the Board of NCA was not to take unilateral decisions without recourse to National Security Council Secretariat. The letter being Exhibit ‘G’ emanated or was generated because A4 had discussions with A1 and A2 as he himself stated in Ex ‘MM1’, I so find and hold. The claim made by prosecution that the letter could not be traced at the Registry of NSCS, would be found to be very credible and I reject the defence in court of A4 that he was not the one that could explain as to how a copy of the letter cannot be traced at NSCS. It could not be traced because per Exhibit ‘MM1’ the idea for the request for US$8 Million did not even come from NSCS but the meeting of these triumvirate on the very day NSO did their demonstration. A4 in Ex ‘MM1’ claim that he left a copy of the letter, being Exhibit ‘G’ on float and that is the only reason he can say that it could be taken that his boss, Yaw Donkor saw it. That means he never discussed the contents of Exhibit ‘G’ with Yaw Donkor before it was written and after it was written. Just by claiming a copy was left on float, Yaw Donkor might have seen it, does not answer or raise reasonable doubt to the claim of prosecution. It is also at variance with his own evidence in court that Yaw Donkor knew of Exhibit ‘G’ and all those that mattered in security knew of it as A4 claim in his answers to questions on the 20th of February, 2020. See pages 7, 8, 9, 10, 11 and 13 of the proceedings on that day.
The rule as reiterated by Brobbey JA (as he then was) in the case of ODUPONG v THE REPUBLIC [1992-93] VOL 3 GBR 1028 that:
“The law is now well settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn, is not worthy of credit [emphasis mine] and his evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction”.
See also the case of GYABAAH v REPUBLIC [1984-86] 2 GLR 461; STATE v OTCHERE [1963] 2 GLR 463. The attempt made by defence that Exhibit ‘J’ also emanated from NSCS but had no serial number to my mind is misconceived. Exhibit ‘J’ is not a letter or a correspondence but an inventory of items taken. It was not addressed to a recipient in the manner characteristic of a letter. And the claim based on Exhibit ‘J’ that there are letters without serial numbers that leave NSCS registry is neither here nor there. I accordingly make an emphatic finding of fact that Ex ‘G’ was solely generated by A4 following the discussions in his own office as narrated in Exhibit ‘MM1’. And the non-tracing of a copy at NSCS registry and the assignment of a different serial number can directly be attributed to A4 due to the revelations he willingly made in Ex ‘MM1’. The claim also in the submission of learned counsel for A4 that the finances of NCA improved and A4 as a Board member was made aware that NCA was proceeding to support NSCS and hence called for another letter is also not borne out from the record. There is nowhere that it was captured in the budget of any support for NSCS. And the claim also in the address that it was needless for approval to have been given by the Board is also not a reflection of the right procedure for approval and disbursement of huge monies at NCA. FINCOM never approved any money and no matter how one stretches Ex ‘1’ it fails to meet any claim of approval for any of the accused to stand on to argue that it was right for monies to be disbursed.
One more matter on A4 before I deal with A5. A4 tendered Exhibit ‘36’ being the handing over notes he claim he left behind in his attempt to raise reasonable doubt that there was no evidence of the Pegasus system when he left office. Observing Exhibit ‘36’ and the evidence of A4 at page 11 of the proceedings on the 18th of February, 2020, at first glance may easily lead one to conclude that it is reasonably probable that A4 left Ex ‘36’ behind and it might have been lost. But that is not so. Handing over is not done with the items listed on paper for the paper to be left in an office whiles the items stated on the paper are left in the hands of private persons. For in Exhibit ‘36’ under Items in Custody are listed ZTE Gotta phones, vehicles and special equipment for cyber security operations. I do not think that Exhibit ’36’ was handed over with ZTE Gotta phones and vehicles left in the house of A4. The Pegasus system remained in the house of Baba Kamara until the day they were taken to the warehouse of PSB belonging to one Boateng on the very day that A4 was made to lead a team to retrieve the equipment.
That cannot be said to be hand over and I find the claim of prosecution that there was no trace of evidence of the existence of this equipment as the property of National Security credible. Or was A4 saying when he stated items in custody he meant not the custody of NSCS but his personal custody having possessions of state property when he was not in office? That cannot affirm a claim of having handed over. I also find A4 guilty on counts 1 and 2.
THE EVALUATION OF THE EVIDENCE ON COUNTS ONE AND TWO IN RELATIONS TO FIFTH ACCUSED.
A5 is not a public servant but a private businessman. The ambit of section 179 (3)(a) under which he has been charged together with the rest in respect of counts 1 and 2 is wide enough is to cover him as long as there is proof of financial loss committed to the Republic by a willful act of the accused through which the Republic is deprived of
finances due it. And therefore one’s position as being in the employment of the Republic or not may not be material. What is material to establish the offence is the ingredients that have been distilled supra before the discussion of the evidence in relation to each accused person. What evidence was adduced against A5 by the prosecution? Pw2 only said in his evidence that that by Exhibit ‘F’ signed by himself and A2 he was made to transfer an amount of US$4 Million to IDL. The next witness whose evidence involved A5 was Pw4 who claimed that when he was invited in April 2016 to an ongoing meeting he met all the accused persons including A5 there. He spoke of how A5 contacted him after the arrival of the equipment and the steps that were taken to clear the equipment.
That the way bill being Ex ‘M’ had the National Security Adviser and A5 as consignees of the equipment. It was in the evidence of Pw6 that further flesh was provided by prosecution as to the level of involvement of A5. That Exhibit ‘S’ was signed between A2 and A5 at a time when nothing had been done for the engagement of any reseller for an equipment by NCA. And so also was Exhibit ‘T’ on the 17th of December, 2015 and Exhibit ‘U’ dated the 25th of January, 2016. That Exhibit ‘QQ’ shows how the US$4 Million was paid to IDL on the 11th of March, 2016 after which US$1 Read Full Story
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