NCA trial: Appeals court acquits and discharges 3rd accused

A three-member Court of Appeals panel presided over by Justice Victor Ofoe has upheld an appeal application by the third accused person, Dr Nana Owusu Ensaw, in the case of the Republic versus Eugene Baffoe-Bonnie and four others.

The accused was challenging the ruling of the High Court that ordered him to open his defence in respect of two out of the six charges preferred against him by the state.

The decision of the Court of Appeal essentially leaves the 3rd accused person acquitted and discharged of all charges preferred against him by the State.

The High Court presided over by Justice Eric Kyei Baffour, a Court of Appeal Judge sitting with additional responsibility as a High Court Judge on the 23rd of May 2018, delivered a ruling on a ‘Submission of No Case’ application by defence lawyers in the NCA Case in which it ordered all the accused persons to open their defence because the state had established a prima facie case against them. However, in respect of the third accused person, the court acquitted him of four of the six charges levelled against him but ordered him to open his defence in the remaining two.

High Court on 3rd Accused Person

In the ruling, Justice Eric Kyei Baffour had noted, “The offence of stealing or conspiracy to steal and its symbiotic relationship to the offence of dishonestly receiving under section 147 of Act 29 by virtue of section 156 of Act 30 cannot at this time be lost on the court. Conversely section 148 introduces a dynamic provision which has been called by Justice Twumasi in his work, Criminal Law in Ghana, as the doctrine of ‘recent possession’. The section makes it possible for in a charge of an offence of dishonestly receiving where anything which is reasonably suspected of having been stolen or unlawfully obtained in the possession or custody of an accused, and the accused does not give an account, to the satisfaction of the Court, as to how he came by it, the property may be presumed to have been stolen or unlawfully obtained and the accused may be presumed guilty of dishonest receiving in the absence of evidence to the contrary. The learned author notes that the fact that the person charged is proved to have in his possession any property is evidence from which the court or the jury may but not must, infer guilty knowledge unless the accused gives an explanation in a satisfactory manner as to how he came by that property and must be one that must raise reasonable doubt as to his guilt.”

Justice Kyei Baffour, further stated in his ruling, “A3 (Dr. Nana Owusu Ensaw) is not charged with dishonestly receiving but with the offence of conspiracy to steal and due to section 156 of Act 30, that connects stealing with dishonestly receiving, I deem it necessary that an opportunity be offered A3 to explain further how the $300,000 as obtained and deposited almost contemporaneous to the time that the withdrawals of A5 started.

“Accordingly, I find prosecution has established prima facie case in respect of count 3 against A3. With prosecution having made a prima facie case of the commission of the offence under count 3 against A3,

being a predicate offence which yield proceeds, a prima facie case of money laundering has been established and I invite A3 to also open his defence in respect of count 14. I intend to further deal and expand this technical area of the law in the final judgment of the court. I, however, acquit and discharge A3 in respect of counts 1,2,7 and 17.”

Court of Appeal

However, in the unanimous ruling of the three Court of Appeal Judges, Justice Victor Ofoe, Justice Suurbaareh, and Justice Bright Mensah, the court indicated that clearly from the face of the record before them, the trial High Court presided over by Justice Eric Kyei Baffour did not establish a prima facie evidence against the third accused person and that the High Court misapplied the law when it ruled that same has been established by the prosecution in respect of the two counts, that is three (3) and fourteen (14).

“The criminal appeal succeeds and the order of the High Court directing you to open your defence in respect of count three and fourteen is hereby dismissed,” the Court of Appeal panel ruled.

Effectively, the third accused person, Dr. Nana Owusu Ensaw, has been acquitted and discharged of all the charges against him in the case of the Republic versus Eugene Baffoe-Bonnie and four others and the High Court which is bound by the decisions of the Court of Appeal ought to abide by same when it constitutes to deliver its judgement on the 12 of May 2020.

Substantive Case

The High Court is expected to deliver its judgement in the substantive case on the 12th of May 2020. The trial of the five accused persons, Eugene Baffoe-Bonnie, the former Board Chair of the National Communication Authority (NCA); William Tetteh Tevie, former Director-General of the NCA; Nana Owusu Ensaw, a former board member; Alhaji Salifu Mimina Osman, a former Deputy National Security Coordinator, and a businessman, George Derek Oppong, begun on the 16th of January 2018 when the state called its first prosecution witness, the Director of Legal Administration at the National Communications Authority (NCA), Abena Awarkoa Asafo Adjei, and ended on the 10th of March 2020 after the state, led by the Director of Public Prosecution, (DPP) Yvonne Atakora Obuabisa, concluded her cross-examination of the 5th accused person in the case, George Derek Oppong.

Prosecution Witnesses

The state in all, called six (6) prosecution witnesses. They are the Director of Legal Administration at the National Communications Authority (NCA), Abena Awarkoa Asafo Adjei; Dr. Isaac Yaw Ani, Deputy Director General in charge of Management and Operations at the National Communications Authority (NCA); Henry Kanor, Deputy Director General in charge of Technical Operations at the National Communications Authority (NCA); Colonel Michael Kwadwo Poku, Director of Operations at the National Security; Deputy National Security Coordinator, Duncan Opare, and Detective Chief Inspector Michael Nkrumah, investigator of the case.

Defence of Accused Persons

All the accused persons when they took turns to open their defence testified on their own and none called any defence witnesses in support of their cases.

The Court

Justice Eric Kyei Baffour’s court after the DPP concluded her cross examination of the 5th accused person on the 10th of March 2020, indicated that that the trial had been effectively concluded and instructed that addresses be filed simultaneously by the 20th of April 2020 for delivery of judgment on 12th of May 2020.

Background

According to the facts of the case as presented by the Attorney General, Baffoe-Bonnie, Tevie, Ensaw and Osman were allegedly aided by Oppong to engage in the criminal act. The brief facts state that the previous administration had contracted an Israeli company, NSO Group Technology Limited, to supply a listening equipment at a cost of $6 million to enable the authorities to monitor conversations of persons suspected to be engaged in terror activities. A local agent, Infraloks Development Limited, charged $2 million to facilitate the transaction, bringing the total sum to $8 million. The facts further explained that the National Security did not have the money to fund the transaction and for that reason the NCA, which had supervisory jurisdiction over the use of such equipment, was asked to fund the project.

It said $4 million was withdrawn from the NCA’s account, while $1 million out of the withdrawn amount was deposited into the account of the Israeli company. The A-G explained that the remaining $3 million was lodged in the account of Oppong, who acted as a representative of the local agents, Infraloks Development Ltd.

The State closed its case against the accused persons on the 18th of April 2019, following which the accused persons chose to exercise their rights under section 173 of Criminal and Other Offences Procedure Act (Act 30) to file ‘Submissions of No Case.