OPUNI BACKED AGONGO TO DEFRAUD COCOBOD- SAYS JUDGE
A Supreme Court judge, Justice Clemence J. Honyenuga, sitting as an additional high court judge, has been explaining his decision to order former Ghana Cocoa Board (COCOBOD) Chief Executive Dr. Stephen Kwabena Opuni, businessman Seidu Agongo and his Agricult Ghana Limited, to open their defence respectively.
He held in his 89-page ruling on the respective applications for ‘submission of no case’ that the prosecution was able to adduce evidence to show that the ex-CEO abetted Agongo and Agricult to defraud COCOBOD, a state agency, and therefore, should open their defence at the ongoing trial.
The accused persons are standing trial for allegedly causing financial loss to the state.
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 filed at the registry of the high court, as indicated by the judge on May 6.
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.
Abetment of Fraud
The judge in his ruling explained on the charge of abetment of fraud that Dr. Opuni was the one that forwarded CRIG’s final report on Lithovit Foliar Fertiliser to Agricult, a report which did not make any references to any Lithovit Liquid Fertiliser and therefore, knew the nature, form and composition of the fertiliser and how it was to be applied.
Justice Honyenuga held that there is evidence to show that Dr. Opuni however on February, 2014, sent quotations to Agongo to supply and deliver 700,000 litres of Lithovit Liquid Fertiliser “when he knew that this liquid Lithovit Fertiliser was not tested by CRIG and approved by COCOBOD and that what was tested was Lithovit® Foliar Fertiliser in powdered form from Germany.”
He added that Dr. Opuni knowingly aided Agongo and his company to defraud COCOBOD as the company could not have supplied the Lithovit Liquid Fertiliser instead of Lithovit® Foliar Fertiliser if A1 had not requested for it.
From pages 52 to 54 of the ruling, the judge held that “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. Prosecution led evidence that the 1st accused is used to giving verbal directives and although some of the scientists stated that they disregarded the directive, the fact is that the 1st accused orally directed the scientists.”
“The prosecution also led evidence that as earlier stated in this ruling it was the 1st accused who forwarded Exhibit B, and F, the Report on the test of the 3rd accused fertiliser and therefore knew the nature, form and composition of the fertiliser and how it was to be applied. It is also on record that it was the 1st accused who approved the Exhibit B, and F and wrote Exhibit C, forwarded the report to the 2nd accused as CEO of the 3rd accused and asked them to contact CRIG for any assistance.”
The court said “The 1st accused from the reports he approved and forwarded knew that the Lithovit® Foliar Fertiliser approved for 2nd and 3rd accused was powdery in form and was manufactured by Zeovita in Germany. From the Exhibit ‘C’ it is invariably clear that immediately the report of the test got to the 1st accused on January 20, he dispatched Exhibit C the next day, January 21, 2014.”
The court said “furthermore, by Exhibit S dated February 25, 2014, the 1st accused sent quotations to the 2nd accused for the supply and delivery of 700,000 litres of Lithovit Fertiliser when he knew that this liquid Lithovit Fertiliser was not tested by CRIG and approved by COCOBOD, and that what was tested was Lithovit Foliar Fertiliser in powdered form from Germany as stated in exhibit B1 and F.”
“PW7, the Police Investigator testified that during investigations Exhibit ‘S’ and all the procurement letters were not generated from the procurement unit and the head of the unit at the time had no knowledge of the procurement of Lithovit Fertiliser Exhibits ‘L’, ‘M’ and ‘N’ written by the 1st accused dated February 11, 2014, February 13, 2014 and February 19, 2014 respectively, wrote to the cabinet, Minister of Finance and to the CEO, Public Procurement Authority for approval of 700,000 litres respectively introducing ‘Lithovit Liquid Fertiliser’ as one of the fertilisers COCOBOD was going to procure.”
The court said also that “in Exhibits L, M and N, the 1st accused quoted the unit price of this Lithovit Liquid Fertiliser and this was before his request to the 3rd accused for 700,000 litres of Lithovit Fertiliser on February 26, 2014 in Exhibit T,” adding “PW6 and PW7 testified that although the PPA required for value for money to be conducted, the 1st accused did not undertake value for money but he informed PPA that it was conducted.”
“In Exhibit ‘U’, the 1st accused awarded a contract to the 3rd accused to supply 700,000 litres of Lithovit Fertiliser for US$19,250,000 yet as a scientist knew that Exhibit D, the certificate, clearly stated that the test approved covered Lithovit Foliar Fertiliser yet he went about projecting Lithovit Liquid Fertiliser in all his dealings at COCOBOD,” it said, adding, “Further, in Exhibit ‘X’ dated December 10, 2014, the 1st accused wrote to PPA for sole source for Lithovit Fertiliser covering 700,000 litres claiming all fertilisers used for production had been tested by CRG and that the 3rd accused’s Lithovit Liquid Fertiliser had been duly tested.”
The court held that “meanwhile the 2nd accused sent a quotation for a unit price of Lithovit Liquid Fertiliser dated November 19, 2014 to supply at $28.50 per unit and based on that the 1st accused signed a contract with the 3rd accused for the supply of 700,000 litres of Lithovit Liquid Fertiliser at $19,950,000 in Exhibit ‘Z’ knowing very well that no test was conducted by CRIG and approved by COCOBOD for any fertiliser known as Lithovit Liquid Fertiliser,” adding “what was tested is Lithovit Foliar Fertiliser.”
“All these were perpetuated to facilitate the 2nd and 3rd accused’s business and defraud COCOBOD. Indeed, these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused to perpetuate fraud on COCOBOD by supplying a different product from what was tested and approved,” the court said.
“There is sufficient evidence from PW6 and PW7 that COCOBOD had no reason to doubt the representations in the various documentations on the supply of Lithovit Fertiliser since the 1st accused is the head of COCOBOD and was in a better position to know what had been tested and approved. It is also on record that PW6, the Director of Finance told the court that only the 1st accused could approve huge amounts and approve payments. However, the 1st accused although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused to defraud COCOBOD.”
The court held that “but for his request the 3rd accused would not have supplied Lithovit Liquid Fertiliser instead of Lithovit Foliar Fertiliser and send strong justifications to the PPA and actually awarded three contracts to the 3rd accused to supply Lithovit Liquid Fertiliser, there was no way COCOBOD would have been defrauded of such huge amounts.”