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
