Cocobod Trial: State challenges Agongo's stay of proceedings motion

The state has filed an affidavit against a motion of stay of proceedings filed by Mr Benson Nutsupkui, the lawyer for businessman Seidu Agongo, the 2nd accused person in the ongoing Ghana Cocoa Board (COCOBOD) trial, to appeal the court's order.

Meanwhile, Mr Sam Cudjoe, the lawyer for the 1st accused person, Dr Stephen Kwabena Opuni, former COCOBOD CEO, has also filed an affidavit in support of Mr Nutsupui’s motion.

However, the defence team has not been served with copies of the state's affidavit filing which was done on 8 March 2019.

The court, during the hearing on Wednesday, 13 March 2019, asked the registrar to explain why the all the interested parties had not been served with copies of the affidavit five days after it was filed.

A delay by the Court Clerk in that regard compelled an adjournment of the case to Monday, 18 March 2019 when the motion for the stay of proceedings will be moved.

Mr Nutsukpui filed the motion to stay proceedings until the determination of an appeal against a ruling that blocked an attempt by the defence team to tender in evidence, the Cocoa Research Institute of Ghana (CRIG) committee’s investigative report through the state's second prosecution witness, Dr Alfred Arthur.

The court ruled previously against Mr Nutsukpui's tendering of the CRIG document at the last sitting before the Monday, 4 March 2019 hearing.

Class91.3FM’s Joshua Qoudjo-Mensah, who was in court on that day reported that Mr Nutsukpui challenged the court’s ruling and wanted the trial halted until the determination of the interlocutory appeal.

He said the Director of Public Prosecutions, Yvonne Atakora Obuobisa, suggested that the hearing proceed since she had not been served with a copy of the motion.

However, the presiding judge, Justice C.Y. Hornyenuga ruled that the Director of Public Prosecutions and counsel for the first accused (Dr Stephen Opuni) be served with copies of the motion.

The court had upheld an objection raised by Mrs Obuobisa against the tendering of the report.

Mr Nutsukpui, in his cross-examination of Dr Arthur on Monday, 25 February 2019, sought to tender the CRIG investigative report on some key missing documents, through the witness.

But this was objected to by Mrs Obuobisa, who argued that the report is hearsay evidence under Section 116 of the Evidences Act since it was made by persons other than the witness, who is currently testifying in court.

In her estimation, it would be unfair to tender the document through the second prosecution witness since he neither appeared before the investigative committee nor knew of the committee's work.

She further cast doubts over the authenticity of the document since, according to her, it was not captured on the official letterhead of CRIG, despite it being filed by the lawyer for the directors of CRIG and the Cocoa Health and Extension Division (CHED).

But in his counter-argument, Mr Agongo’s counsel, Mr Nutsukpui described as unfair, the prosecution’s attempt to taint the credibility of the said document.

Mr Nutsukpui argued that the fact that the lawyer for the directors of CRIG and CHED filed the said document in court pursuant to orders of the presiding judge and on behalf of the directors of CRIG, who are custodians of the document, is enough basis for the court to consider the document as reasonably trustworthy, referring the court to the case of Yeboah v Amofa reported in 1997 - 98 1 Ghana Law Report (1 GLR) Act 647.

He further argued that it will not be the correct position of the law if the court is made to believe, per the argument of the DPP, that since Dr Arthur did not author the report, it could not be tendered through him.

According to Mr Nutsukpui that argument is defeated, since Dr Arthur has tendered, in evidence, official documents he did not author at all.

He added that it is also the right of the accused persons to be able to confront the witness with documentation, which Dr Arthur denies exists, adding that the CRIG document is proper and should be accepted.

Justice Hornyenuga at that hearing upheld the DPP’s objection on the grounds that it would be most unfair to tender a document through a witness who does not appear to know anything about the said document.

He added that it would be appropriate for the counsel for Mr Agongo to seek an order from the court to invite the authors of the report and tender the document through them after scrutiny.

Dr Opuni and Mr Agongo are facing 27 charges of willfully causing financial loss of GHS217 million to the state, through three separate fertiliser supply contracts between 2014 and 2016.

The contracts were GHS43.1million (2013/2014 cocoa farming season), GHS75.3million (2014/2015 cocoa farming season) and GHS98.9million (2015/2016 cocoa farming season) totalling GHS217million through sole-sourcing, the state claimed, adding that procurement procedures for sole-sourcing were not followed.

According to the charges, the consignments of Lithovit Foliar were produced locally, contrary to an agreement between COCOBOD and AgriCult Ghana Company Limited that it be sourced from Germany.