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“Where from this one too. Where did you get all these?” This was the jaw-dropping question from Justice Clemence Jackson Honyenuga, when a portion of his own ruling in the same trial was replayed to him in an open court.
The trial judge was visibly shocked that he had actually described Lithovit liquid fertilizer as a “worthless” and “adulterated” product.
Justice Clemence Honyenuga who has been hearing the criminal trial of former COCOBOD boss and two others, used those words in his 89-page ruling on submission of no case filed by the accused persons.
The former COCOBOD Chief Executive, Dr. Stephen Opuni and businessman Seidu Agongo as well as Agricult Ghana Limited, are facing over 25 charges, including defrauding by false pretences, willfully causing financial loss to the state, corruption by public officers and contravention of the Public Procurement Act.
After prosecution had called seven witnesses including a former Deputy Chief Executive of COCOBOD, Dr. Yaw Adu-Ampomah, the accused said they had no case to answer, but that was rejected by the court.
In his ruling on the submission of no case on May 7, 2021, Justice Honyenuga wrote on page 59: “It is in evidence that this colossal amounts were paid through the 1st accused as the CEO of COCOBOD to the 2nd and 3rd accused who supplied Lithovit liquid fertilizer which was not tested nor approved by COCOBOD and which scientific report which PW5 tendered as exhibit H reports from the Ghana Standard Authority and University of Ghana Chemistry Department that the foliar liquid fertilizer is worthless. It is a fact that the state is the owner of those monies paid out and her coffers were depleted without receiving any value for its money.”
On page 60, he further stated that Lithovit “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.”
Interestingly, the Exhibit H Justice Honyenuga relied on above was discredited by the same witness, whom the document was tendered through by the state, when he came under cross examination. He admitted that the Exhibit has been “doctored”. Likewise, a report by Ghana Standard Authority which proved the value and potency of Lithovit and tendered through PW7 by the defence counsel, which is one of the 18 Exhibits which lawyers say exonerate Dr. Opuni but were excluded by the judge in his closet.
Cross examination
In court on Thursday, March 17, 2022 Justice Honyenuga asked Counsel for Seidu Agongo and Agricult Ghana Limited, Nutifafa Nutsukpui the days he needed to cross examine first defence witness, Mr. Charles Tetteh Dodoo.
Mr. Dodoo who is a former Director of Finance at COCOBOD spent five days in his evidence in chief, Nutifafa reminded the court, adding that he would need four days.
Obviously not happy, Justice Honyenuga said he can only give two days, touting how he has been “liberal” and “over tolerated” lawyer Nutifafa and counsel for Dr Opuni Samuel Codjoe.
He pointed out that the two have been “taking advantage” of his decision not to limit them during cross-examination in the past.
But lawyer Nutifafa quickly rebutted, noting that the questions they asked were “relevant” and therefore the judge’s position that they took advantage of the court was a non-starter.
Nutifafa therefore asked that his request for four days for cross examination and the decision of the court be recorded.
Nutifafa: considering that this witness testified in chief for five sittings and has been on the board of COCOBOD for eight years, and the prosecution has called seven witnesses and by reason of the court ruling of the 7th May 2021 where documents that could have helped our case were excluded by the court. And the court found that we have supplied worthless and adulterated product, we need to cross examine this witness extensively.
It was at this point that Justice Honyenuga interjected and asked Counsel where he got those assertions that he, the judge, has said Lithovit was worthless and adulterated.
“It is in your ruling my Lord”, Nutifafa taunted, which elicited brief exchanges between the two.
But for the prosecution represented by Evelyn Keelson, a Chief State Attorney, the two days is enough.
Prosecution: my Lord, section 69 of the Evidence Act gives this court the power to reasonably control proceedings. My lord two days of cross examination from counsel for second and third accused persons will be enough.
Judge: I will give you a maximum of two court sittings to cross examine DW1 which is very reasonable. This is to enable the court to effectively deal with this case .
Budget
Later under cross examination, Mr. Charles Tetteh Dodoo, who is a former board member of COCOBOD as well as a member of its Entity Tender Committee, said COCOBOD never bought and paid for any agrochemical that was not budgeted for and listed in the procurement plan for the cocoa season.
Q: how were board decisions taken on this board that you served?
Ans : when there is an issue, management could be called by the board chair to get an overview of the matters. The board chair will refer the matter to sub Committee and report on the issue at the next board meeting. At the subsequent board meeting, the sub Committee’s report will be presented to be discussed, decisions will then be made and report adopted.
Q: Now that decisions of committee in that report, how is it arrived at by the board.
Ans : more often than not,that decisions are arrived at by concensus.
Q: in the absence of consensus, how did the board make it decisions?
A: My Lord, I do not recollect the time when there have been division that might require a vote.
Q: did that board you served keep minutes?
Ans : yes my lord
Q: From inception of your employment with COCOBOD in 2004, did any of the functions of your office or roles bring you into knowledge of the workings of the board at the time even before you became a board member?
Ans : yes my lord,
Q: what role was this?
A: As audit manager in the head office directly assisting the Director of Audit, there has been a couple of times when the audit has referred the board minutes for ascertaining some facts to assist the audit in their work
……
Q: Now, sir, who had the responsibility for approving the final budget for COCOBOD in any particular year?
Ans : my Lord it is the board after consideration from the finance sub Committee.
Q: under the first board you served on, COCOBOD did not procure any set of goods without board approval. Is that correct?
Ans : I Don’t recall any .
Q: as director of finance in your experience, did COCOBOD pay for any goods that was not approved in the budget in any year?
Ans : my Lord I do not recall but the budget can be reviewed along the line pending management representation.
Q: Sir by the practice of COCOBOD, budget whether original or reviewed does not authorise payment. As director of finance, would you have authorised payment for any such service or goods if it was procured?
Ans : my Lord, the procurement process will require authorisation per the budget and subsequently payment for that goods or services will be made.
Q: so in essence, any procurement must have been authorised by the budget.
Ans : that is correct. Let me add that significant items like fertiliser will be listed and others like normal office equipment may not be itemised, they will be in a group.
Q: sir, where will these significant items be listed? Is it in the budget?
Ans: they will be in the procurement plan attached to the budget.
