In The Superior Court Of Judicature, In The High Court Of Justice Financial Crimes Court II Held In Accra On The 22th Day Of June, 2012 Presided Over By His Lordship, Justice John Ajet-Nasam
Alfred Agbesi Woyomei
Accused Person: Present
Legal Representation: Cynthia Lamptey with Mathew Amponsah, Yvonne Obuobisa and Evelyn Keelson for the republic
Osafo Buabeng with Musah Ahmed and Chris Koka led by
Robertson Kpatsa for the accused person
PW1 REMINDED OF HER OATH FOR CONTINUATION OF CROSS-EXAMINATION BY COUNSEL FOR THE ACCUSED
Q: at the last adjourned date, you were ordered to bring a memo, did you bring it.
Q: Can I have a look at it.
Q: The Legal Division of Ministry of Finance, are you the head.
A: I am not
Q: Who is the head?
A: Mr. Paul Asimenu
Q: Will I be right to say that he is your superior.
Q: Your Division worked on this issue.
Q: Look at this letter, it is coming from your division.
A: It purports to be coming from the Ministry and the Legal Division.
Q: That is Paul Asimenu's signature.
A: It looks like it.
Q: I am putting it to you that it is a letter from Ministry of Finance Legal Division.
A: It appears to be My Lord.
Lamptey: My Lord we object to the tendering of this document. First of all, the witness says it purports and the signature looks like that of one Mr. Paul Asimenu. She never said categorically that it is that of Paul Asimenu whom she works under. The court had not been told that the author of this document is not available to be called to tender his own document. Thirdly, this is a photocopy and no foundation had been laid as to why they wish to tender a photocopy. In view of this we object to the tendering of the document.
Buabeng: In the first place, the original copy is under the control of the prosecution i.e. the Republic of Ghana. Specifically the office of the Attorney General. Secondly, all relevant evidence is admissible except as provided in Section 52 of NRCD 323 (READ OUT). The objection has not raised issue of undue delay etc. thirdly, the witness in the box on oath says that it appears and it purports, later that it comes from the Ministry of Finance. She has admitted that her Division is headed by Paul Asimenu, the author of this letter. Again her Division worked on this matter. What is more relevant for a document coming from the Legal Division of Ministry of Finance. In response to that fact that we have not indicated that whether Asimenu is available or not. For the simple fact that when proceedings under Section 117 of the Evidence Act, it is the proponent of the hearsay evidence, if the accused had been in the box and was seeking to plead hearsay evidence, then he could rely on Section 117 as an exception to the rule and not where a witness from Ministry of Finance and the same Division and were seeking to tender this document through her. It is an official document, and I submit the document is relevant and admissible.
Lamptey: See Section 118 of Evidence Decree, it is a hearsay declaration.
By Court: The document that the defence intends to tender through the PW1 is a public document, it is a photocopy and it is always necessary for an original be compared with the duplicate before it will be accepted in evidence. In this scenario however, it is a document which the defence can't have the original, the original will be with the Ministry of Finance. As said it is an official record, and if asked for it is only a photocopy that can be given to the person or entity that is requesting for it. Under Section 126 of the Evidence Act 1975 NRCD 323, it provides “(1) Evidence of a hearsay statement contained in writing made as a record of an act, event or condition is made inadmissible by Section 117 if
(a) The writing was made by and within the scope of duty of a public officer.
(b) The writing was made at or near the time the act or event occurred or the condition existed and
(c) The source of information and method and time of preparation indicate that the statement contained in the writing is reasonable trustworthy.
(2) Evidence of a hearsay statement contained in a writing made by a public officer who is the official custodian of the records in a public place reciting diligent search and failure to find a record is not made inadmissible by Section 117. With respect to Section 126 (2) even the one in charge of public records can testify as to a writing or statement made by a public officer if he can't find the record after diligent search. Such evidence by the said officer in charge of record can't be made inadmissible.
With the above consideration, I am of the opinion that the document should be admitted in evidence. The witness did not with respect deny categorically that she doesn't know the signature or even might not have chanced on such document in her office. When the witness was been cross-examined on the issue of default judgment on the last adjourned date, and a copy was shown to her, this was what happened:
“Q: Look at this copy and see if it is a copy of the default judgment that you received.
A: I actually don't remember seeing this, what I saw was something like a calculation.
Q: You are talking about entry of judgment
A: Yes I saw the entry of judgment, I didn't see this one.”
This reference is made to buttress the point that the PW1 could be emphatic about
the signature or letter the defence intend to tender but chose to use the words “it
looks like”, it appears to be My Lord”.
In my considered opinion therefore, I will admit the document in evidence.
Objection therefore overruled.
By Court: Exhibit “7”
Q: This is the memo you submitted to us this morning.
A: Yes it is.
Q: It was authored by you
Q: It is a copy
Q: The original will be with your Ministry
A: I don't know, but it should be.
Q: You made the photocopy yourself.
A: I did not
Q: How did you come by this copy?
A: I requested it from the Budget Division and I was given this.
Buabeng: My Lord we wish to tender this document
Lamptey: No Objection My Lord
By Court: Exhibit “8”
Q: You are at that time the Deputy Director at the Legal Division
Q: There are minutes on Exhibit “8”
Q: Who and who made minutes on Exhibit “8”
A: The Minister, myself and the Director of Budget
Q: The Director of Budget, what did he minute on Exhibit “8”
A: I am not sure if this is the Director of Budget who minuted, but the minutes from Budget says “Please process for payment”.
Q: What of the Minister of Finance
A: It is cancelled out, that is the comments
Q: The Budget Director said process for payment, Minister for Finance's comments cancelled, what about you
A: “Please Director of Budget for your follow up”
Q: But that is not cancelled
Q: The person writing the minute always has his position on top of the minute
A: No, the person to whom it is addressed has the name on top.
Q: Exhibit “8”, Deputy Director Legal Division, what had been written by the Minister is what has been cancelled.
Q: The memo, the last paragraph you recommended payment of 2% of the amount to be paid.
A: It is not a recommendation, the routine is, when you write a memo you submit it for consideration and the follow up requested. That is what it is.
Q: When you wrote to the Minister that it is for his consideration……….
A: I can't instruct the Minister, but it is for consideration.
Q: What do you mean by that?
A: As I indicated, the Attorney General had written a letter asking the Ministry to pay an amount to Mr. Woyome. I summarized the Attorney General's letter, I indicated the amount that was requested to be paid to Mr. Woyome and submitted it to the Minister for his consideration and authorization to do the payment.
Q: Look at Exhibit “7”, the Ministry of Finance in Exhibit “7” wrote to the Attorney General, paragraph 8, 9 and 10 justifying why the accused is entitled to 2% of the total amount.
A: That is what it seems.
Q: Can you read paragraph 8, 9 and 10 only of Exhibit “7” written from your Division, and read also paragraph 12.
A: (8) Regarding the legitimacy of the claim for financial engineering we would like to state that it is a cost that is chargeable internationally and may range from 0.5% - 5% of the contracted sum. The actual fee paid under international best practice however depends on the type of project, its complexity and amount of work involved. This involved retaining insurance companies to underwrite aspects of the cost of the facility.
(9) In the specific case of the financing in question, we have evidence on file which shows that the negotiations leading to availability of the funds which Bank Austria made available involved negotiations with the Multilateral Investment Guarantee Agency (MIGA) of the World Bank Group and other financial institutions.
(10) It is pertinent to state that the amount of credit made available for the Stadia Projects amounted to £764,117,646 for which the claim for financial engineering is being made. It needs to be pointed out however that the financial term sheet reviewed from Bank Austria included financing for other projects namely; £329,411,765.00 for six hospitals and £12,941,176.00 for a Cobalt 60 plant and tissue culture project. The grand total of sums made available by Bank Austria through the Woyome led consortium therefore amounted to £1,106,470,587.00.
(12) It is my considered c view given the complexity of the work involved in securing the financing in question that the claim of 2% is deemed legitimate.
Q: The Ministry of Finance from Exhibit “7 agreed with the 2% being claimed by accused.
A: I can't say the Ministry; it was signed by Paul Asimenu for the Minister.
Q: Mr. Asimenu, is he still at post
Q: Do you still stand by your evidence that it is because of the court judgment before the accused was paid.
A: Yes, no payment was made on this letter.
Buabeng: My Lord that will be all
By Court: Any re-examination
Lamptey: No re-examination My Lord
By Court: Case adjourned to 3rd and 4thJuly, 2012 for continuation.
(SGD) JOHN AJET-NASAM
JUSTICE OF THE HIGH COURT