Accra, June 23, GNA - The Defence Team for Tsatsu Tsikata, a Former Chief Executive of the Ghana National Petroleum Corporation (GNPC), on Friday called on Accra Fast Track Court to acquit his client because the prosecution had failed to prove charges levelled against him.
Major Roland Agbenoto (rtd), a member of the defence team told the Court: "My Lord, our submissions have been rooted in the Constitution and the law of the land which we believe is what must guide the judicial process.
"In conclusion, we submit that on the basis of evidence before this court, none of ingredients of the offences, however defined, have been established." Maj Agbenato said that acquittal of Tsikata was, therefore, the just conclusion of the case.
He was addressing the Court at the close of the case Tsikata is charged with three counts of wilfully causing financial loss of about 2.3 billion cedis to the State through a loan he guaranteed for Valley Farms, a private concern, on behalf of the GNPC. The accused is also charged with misapplying public property.
The trial judge, Mrs Justice Henrietta Abban, an Appeal Court Judge with additional responsibility as a High Court Judge, admitted him to a self-recognizance bail after he had pleaded not guilty.
Prof Emmanuel V O Dankwa (Leading Counsel), and Major Rowland S. Agbenato are representing Tsikata, while Mrs Gertrude Aikins, Chief State Attorney and Mr Augustines Obour, State Attorney, are appearing for the Republic.
Maj. Agbenato told the Court trying his client that the Prosecution had woefully failed to discharge the burden of proof. He contended that the presumption of innocence was a matter of fundamental human right, provided for in Article 19(2)(c) of the Constitution. He said that also reflected in the fundamental rule of criminal law that the guilt of an accused must be proved beyond reasonable doubt.
Citing Section 11(2) of the Evidence Decree 1975, (NRCD323), to buttress his point, he stated: "In a criminal action the burden of producing evidence, when it is on the Prosecution as to any fact which is essential to guilt, requires the Prosecution to produce sufficient evidence, so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt." Counsel pointed out that in respect of all the ingredients of the offences charged therefore, it was for the Prosecution to discharge this burden.
In respect of the requirement of a "wilful act or omission," Maj. Agbenato, submitted that no act or omission of the accused, beyond the signing of the Guarantee Agreement was shown to have been done, that led to the payments charged.
Counsel argued that his client was not shown, in any way to have been connected with the making of the payments beyond his signing of the Guarantee Agreement, which was expressed as the basis for the demand and the payments. He said that on any interpretation of the word 'wilful act or omission' either designed to make the State incur loss or undertaken with a recklessness as to loss being incurred by the State.
He said the evidence from the Prosecution, far from suggesting recklessness on the part of the accused as to the State incurring loss, rather showed him as intent on creating gain for the corporation and indeed for the country.
Maj Agbenato stated: "He was very much interested in the project because we both saw that it was for the benefit for the country and I must not allow time to pass without saying that because the new technique we were using in cocoa cultivation would have been very positively implemented throughout the cocoa in the country."
Counsel averred that the Prosecution, replying to the submission of no case, suggested that the failure by accused to refer the matter to the GNPC Board of Directors for discussion was proof of wilfulness. He said: "With respect - this is absurd," adding even if it were true that the accused did not refer the matter to the Board, this would not show wilfulness in relation to the State incurring financial loss.
Counsel contended that no evidence was even led on any 'financial loss,' however defined. Counsel said on the contrary, a witness for the prosecution, decisively refuted any loss, which also emphasised that all the proceeds of the Caisse Francaise loan were absolutely used for the farms.
Maj Agbenato said there was no evidence from the Prosecution in any way suggesting that the debts of Valley Farms had been written off or could not be recovered from Valley Farms or, in any sense, lost. He said there was rather evidence to the contrary, mostly from the prosecution itself.
Maj Agbenato said no evidence whatsoever was led that could possibly be a basis for a finding of financial loss having resulted. He argued that the mere payment of monies from GNPC accounts could not by any stretch of the imagination constitute 'loss,' saying but that was essentially the submission of the prosecution.
Counsel stated that in all the circumstances of the first three counts -'loss to the State,'- an essential ingredient of the claimed offence was not even reflected in the charge sheet, namely that the financial loss was incurred by the State. He said reference was only made to the public corporation, GNPC, which the accused was Chief Executive of.
Counsel noted that in the particulars of offence all that was alleged against the accused was to do with sums of money being paid 'from the accounts of GNPC.' He stated: "It is also significant that in defining 'the Public Services of Ghana' the 1992 Constitution excluded public corporations set up as commercial ventures, such as GNPC."
Maj. Agbenato said in replying to the submission of no case, the Prosecution did not even list loss being incurred by the State as an ingredient of the offence.
Referring to 'Count Four' of the charges preferred against Tsikata, Counsel argued that there was no evidence of intent on the part of the accused to misapply any public property. He said there was no evidence throughout the trial, whatsoever, that in or about March 1991 in Accra, in the Greater Accra Region, his client intentionally misapplied 20 million cedis belonging to GNPC, to acquire shares in Valley Farms Company Ltd., a private limited liability company.
Counsel said the charge sheet before the court was the only basis on which the accused was being tried but the evidence clearly contradicted the particulars of the offence as charged. He prayed the court not to, at this stage, alter the charge or the particulars on which the charge has been laid, adding: "The Prosecution has had every opportunity to amend the charge sheet in the light of the evidence adduced, if that was their intention, but they have not."
Counsel contended that on the evidence of the Prosecution Witnesses themselves, the transaction that took place in June 1990, was an authorisation to a bank which the Board of GNPC had authorised management to establish an account with and transact business with, in accordance with the mandate.
Maj. Agbenato stated that the authorisation the accused gave was within the terms of the mandate and was of the purposes of the Corporation, and was reflected in the books of the Corporation and benefited the Corporation.
Mrs Justice Abban directed the defence to furnish the prosecution with copies of the address, to enable it to also prepare its reply. The court adjourned to Wednesday, July 5, this year.
