AKWASI OSEI ADJEI & ANOTHER v. REPUBLIC
2012
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU, J.A. (Presiding)
- YAW APPAU, J.A.
- DZAMEFE, J.A
Areas of Law
- Criminal Law
- Evidence Law
- Public Procurement Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appellants were acquitted and discharged on counts 1 and 2 as the trial court erred in holding that a prima facie case had been established. The National Investment Bank (NIB) is not a procurement entity under the Public Procurement Act, 2003 (Act 663), and public funds were not used in the procurement of the rice. The prosecution failed to prove the essential ingredients of the offences charged.
YAW APPAU, J.A.
The first appellant herein was the Minister of Foreign Affairs, Regional Integration and NEPAD during the latter part of the Kuffuor administration while the 2nd appellant was the then Managing Director of the National Investment Bank Limited (NIB). On the 14th day of October 2009, the two of them were arraigned before the trial High Court on four counts of conspiracy charges and four counts of substantive charges all totaling eight (8); contrary to provisions in the Criminal Offences Act, 1960 [Act 29] and then the Public Procurement Act, 2003 [Act 663].
They were said to have conspired contrary to section 23 (1) of Act 29/60 to commit the crimes of: - i. Contravention of sections 92, 40, 41, 42 and 43 of the Public Procurement Act, 2003 [Act 663]; ii. Using public office for profit contrary to section 179C of the Criminal Offences Act, 1960 [Act 29]; iii. Stealing contrary to section 124 of the Criminal Offences Act, 1960 [Act 29] and iv. Willfully causing financial loss to the State contrary to section 179A (3) (a) of the Criminal Offences Act, 1960 [Act 29].
After the prosecution had closed its case with as many as seventeen (17) witnesses, the appellants made a submission of no case to answer in respect of all the charges under the eight (8) counts. The trial court accepted partially the appellants’ call on it and invoked section 173 of the Criminal and Other Offences (Procedure) Act, 1960 [Act 30], by acquitting them on six (6) out of the eight (8) counts.
Section 173 of Act 30 provides: “If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him”.
The trial court in acquitting the appellants on the six counts; namely counts 3 to 8, said the prosecution could not establish a prima facie case against them on those counts. The court, however, called on them to open their defence on counts 1 and 2 since, in the opinion of the trial court; the prosecution was able to establish a prima facie case against them on those counts. It is this ruling of the trial court calling on the appellants to open their defence on counts one (1) and two (2) that has necessitated this appeal.
The counts in question read:
COUNT ONE: Conspiracy to commit a criminal offence namely; contravention of provisions of the Public Procurement Act, 2003, [Act 663]; contrary t