Day 3 Of The Trial Of Alfred Woyome

DAY 3 OF THE TRIAL OF AFLFRED WOYOME – The certified court proceedings

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

The Republic

vrs

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.

A: Yes.

Q: Can I have a look at it.

A: Yes.

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.

A: Yes

Q: Your Division worked on this issue.

A: Yes

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

A: Yes

Q: It

is a copy

A: Yes

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

A: Yes

Q: There

are minutes on Exhibit “8”

A: Yes

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

A: No

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.

A: Yes.

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

A: Yes

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 4th July, 2012 for continuation.

(SGD)

JOHN AJET-NASAM

JUSTICE

OF THE HIGH COURT