HOME UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2004

IN THE SUPREME COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – GHANA

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CORAM: ATUGUBA J.S.C (PRESIDING)

MISS AKUFFO, J.S.C

MRS. WOOD, J.S.C

BROBBEY, J.S.C

PROF. OCRAN, J.S.C

CA. NO: J3/4/2004

27^TH OCTOBER 2004

TSATSU TSIKATA … APPELLANT

-VS-

THE REPUBLIC … RESPONDENT

______________________________________________________

J U D G M E N T

ATUGUBA, J.S.C.:-

I have had the advantage of reading the learned, brilliant and painstaking judgment of my brother Justice Professor Modibo Ocran J.S.C. It has assisted me a lot. It is a matter of great regret that I have not been able to share some of the conclusions he has reached on some of the issues involved in this case.

The facts of this case can be fairly gleaned from the judgment of my brother Justice Professor Modibo Ocran and being mainly an appeal on questions of law, only such specific facts as are germane to the specific legal questions raised, are necessary.

There has been extensive fighting on constitutional issues, but in view of the conclusion I have reached, it is not necessary to grapple with them. It is a sound principle of constitutional law, owing to the sensitive nature of issues of Constitutionality, that if a case can properly go off on a non constitutional ground one should avoid the constitutional issue. Thus in ENNIN v. THE REPUBLIC (1976) 1 GLR 326 C.A at 334 Apaloo C.J delivering the unanimous judgment of the Court of Appeal said;

“It is not in fact necessary to decide this case on any constitutional grounds because the steps that have been taken to provide for the appellant’s representation and procure medical evidence helpful to him, seem to us more than ample. Nothing has been done which offends our sense of propriety and fairness. Accordingly, we ought to resist the temptation of pronouncing on arid constitutional questions. Perhaps in this, we might take a cue from the United States Supreme Court which has a philosophy that while it has a duty to decide constitutional questions, it must escape that duty if possible. As Frankfurter put it in his Law and Politics 25(1939) (as quoted in Constitutional Law, Cases and other Problems (2^nd ed.) Vol, 1 at p. 108, edited by Freund, Sutherland, Howe and Brown)

But the Court has improved upon the common law tradition and evolved rules of judicial administration especially designed to postpone constitutional adjudications and therefore constitutional conflicts until they are judicially unavoidable. The Court will avoid decision on grounds of constitutionality if a case may go off on some other ground as for instance, statutory construction.”

The policy justification for this philosophy is to avoid the mischief of premature judicial intervention. The United States Constitution has survived two centuries and the Supreme Court has found this a workable rule designed to avoid constitutional conflicts. Both constitutions that we enacted for ourselves, i.e. the 1960 and 1969 Constitutions have been either abrogated or suspended and we think, we more than the United States Supreme Court, should tread warily.”

The issue in this appeal is whether, as it is often said in our courts, a prima facie case has been made out for the appellant to answer and this, in view of my conclusion in this case, can be decided without prejudice to either party in this case, free from constitutional encumbrances.

The first three charges against the appellant allege “Wilfully causing financial loss to the State contrary to section 179A (3)(a) of the Criminal Code 1960 Act 29”. The particulars of those charges commonly allege as follows:

“TSATSU TSIKATA as the Chief Executive of Ghana National Petroleum Corporation (GNPC) in………… 1996 in Accra in the Greater Accra Region wilfully caused financial loss to the State by illegally authorizing and causing to be paid the sum of Two Million Three Hundred and Six Thousand Three Hundred and Seventy-Four French Francs Forty-One Centimes (FRF 2,306,374.41) equivalent of Seven Hundred Seventy-Five Million One Hundred and Twenty-Six Thousand Three Hundred and Ten Cedis (¢775,126,310) from the accounts of GNPC to Caisse Francaise de Development on behalf of Valley Farms Company Ltd., a private limited liability company which had defaulted on a loan it had contracted from the said Caisse Francaise de Development.”

Section 179(A)(3) of the Criminal Code Act 1960,( Act 29) as amended by the Criminal Code (Amendment) Act, 1993 (Act 458) provides, as far as relevant, as follows: “Any person through whose wilful, malicious or fraudulent action or omission…(a) The State incurs a financial loss ….commits an offence”. (es)

In my view, this provision has been correctly construed by the esteemed late Afreh J.S.C in THE REPUBLIC V. IBRAHIM ADAM & ORS. Suit No. FT/MISC. 2/2000 dated 28^th April 2003, unreported.

The case seems to be appellately sub-judice. I therefore naturally had some hesitation in referring to it. But I only refer to some of the principles of law therein enunciated, not the facts or the application in that case of those principles to the facts of that case. As far as points of law are concerned one can scarcely conceive of that limb of the rules of natural justice, namely, nemo judex in causa sua or justice manifestly appearing to be done being infringed, were I subsequently to deal with that or any other cognate case.

I considered such matters at length in THE REPUBLIC v NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS, EX PARTE AMEYAW II (NO. 1) (1998-99) SC GLR 427.

It is also trite law that a decision in a case may be final though subject to appeal. See NOUVION v. FREEMAN (1889) 15 App. Cas. 1.

In any case some of the same questions of law that had to be dealt with in THE REPUBLIC v. IBRAHIM & ORS also arise in the present appeal and have to be unavoidably dealt with ex necessitate, by this court.

After a very able survey of the relevant statutory and judicial considerations Afreh J.S.C handed down the solution to S.179(3)(A) of Act 29, as amended in the following terms. “To sum up, the essential elements of causing financial loss under S.179(3)(A) are:

i. a financial loss;

ii. to the state;

iii. caused through the action or omission of the accused; and

iv. that the accused

(a) intended or desired to cause the loss; or

(b) foresaw the loss as virtually certain and took an unjustifiable risk of it or

(d) if he had used reasonable caution and observation it would have appeared to him that his act would probably cause or contribute to cause the loss”.

I should add to the end of element (d) the factor that the accused nonetheless took an unreasonable risk of it. I was also at first worried about the formulation of element (a) especially as it is related to, “desire”, which would seem to be of no relevance. However it highlights perhaps, the most obvious species of the requisite mens rea, namely that in such a situation the mental frame of the accused in relation to the actus reus, is luce clarius.

It is true that the word “wilful” with regard to the doing of a positive act has often been judicially construed in other jurisdictions and also in Ghana as contemplating only that the conduct concerned was not accidental, that is to say, it has been given a narrow construction. But as Lord Diplock in R. v SHEPPARD (1980) 3 AII ER 899 H.L. said at 904:- “ Although this is a possible meaning of “wilfully” it is not the natural meaning even in relation to positive acts defined by reference to the consequences to which they are likely to give rise; and in the context of the section, if this is all the adverb “wilfully” meant it would be otiose. Section 1(1) would have the same effect if it were omitted; for even in absolute offences (unless vicarious liability is involved) the physical act relied as constituting the offence must be wilful in the limited sense, for which the synonym in the field of criminal liability that has now become the common term of legal art is voluntary”. Further down the same p.904 His Lordship said, in relation to the negative acts involved in the provision he was considering, that the conduct involved would not be “wilful” unless the parent either “(1) had directed his mind to the question whether there was some risk ….that the child’s health might suffer unless he were examined by a doctor and provided with such curative treatment as the examination might reveal as necessary and had made a conscious decision for whatever reason, to refrain from arranging for such medical examination or (2) has so refrained because he did not care whether the child might be in need of medical treatment or not”.

At P.906 Lord Diplock explained why he thought this test he laid down with regard to the word wilful is right. He said, among other reasons: “The climate of both parliamentary and judicial opinion has been growing less favourable to the recognition of absolute offences over the last few decades….”

It would be seen that the construction placed, supra, on S.179(3)(a) of Act 29 as amended is similar to the test of Lord Diplock in R v. SHEPPARD, supra, with regard to the word wilful. Since Lord Diplock’s construction is based, inter alia, on a departure from strict construction or the idea of absolute offences its adoption by Afreh J.S.C in THE REPUBLIC V. IBRAHIM ADAM & ORS, supra, must be right in view of S.4(a) of the Criminal Code, 1960 (Act 29) which forbids strict construction of its provisions. The offence which falls to be considered in this case has of course been inserted into this same Act 29 by the Criminal Code (Amendment) Act, 1993 (Act 458). As Amissah J.A said in STATE v. OBENG (1967) GLR 91 at 101, “I think it proper to draw attention to the fact that if it were one time the law that the provisions of the Criminal Code should be strictly construed … this ceased to be so with the Code of 1960. By section 4(a) which is one of the general rules to be observed in the construction of the Code, it is provided that “ This Code shall not be construed strictly either as against the State or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof”.

The appellant, in respect of the first three counts, contends that the payments covered therein were not made with his authorization and therefore are not his acts. While this argument is not lacking in ingenuity, it certainly cannot hold. Pw4, the Ag Head of Finance and Administration, on the evidence, effected those payments without prior further reference to the appellant.

It is however, clear on the evidence that when Valley Farms defaulted on the payment of the interest on the loan from Caisse Francaise to it, the appellant, per exhibit “C” directed Pw4 to pay same on the basis only that GNPC was liable to do so as per the terms of its guarantee, exhibit 1, which had been given to Caisse Francaise by the appellant on behalf of GNPC. In other words the appellant’s own authority to direct Pw4 to make that payment rested on the said guarantee. The terms of the same guarantee called for the payments made in respect of the default by Valley Farms to pay up on the principal sum of the loan. If the terms of that guarantee were the foundation of the authority given by the appellant to Pw4. for the earlier payments in respect of interest on the same loan, then they naturally were authority for the payments in respect of the principal sums due and covered by the first three counts against the appellant. The authority for the latter payments was res ipsa loquitur and was clearly the act of the appellant. Indeed when Caisse Francaise per exhibit ‘F’ notified the appellant of the payments covered in the first three counts, by Pw4, he did not take any issue nor could he conceivably have taken issue on those payments, which he at no time countermanded but which stood required to be made, at all material times, by the appellant’s own act and ‘deed’ namely exhibit 1, his aforementioned guarantee on behalf of GNPC to Caisse Francaise. I therefore reject his contention that the said payments covered by the first three counts were without his authority and were therefore not his acts.

The fate of this appeal depends on the burden that has to be discharged by the prosecution at the close of its case in a criminal trial viewed against the requisite elements of the offence, involved; in this case, S.179(3)(a) of Act 29, aforesaid.

Section 173 of the Criminal Procedure Code 1960, (Act 30) provides; “At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence …” (e.s). In my view, whether “ a case is made out against the accused sufficiently to require him to make a defence.” depends on S.11 of the Evidence Decree, 1975 (N.R.C.D 323) which provides as follows:

“11(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt”. To my mind this provision means that, a reasonable mind, applying his powers of reasoning to the evidence led by the prosecution at the close of its case, will end in the conclusion that it CAN BE, if no contrary evidence is led, said that the relevant fact which has to be established by the prosecution has been established BEYOND REASONABLE DOUBT.” This certainly calls for an assessment of and not merely a reading of the evidence so led, in a manner consistent with the requisite standard of conviction that must at that stage of the trial be induced in the mind of the reasonable person. Again such assessment must be based “on all the evidence” and not on only parts of the evidence, but where there is a myriad of facts tending to establish the same fact one need not, after considering them, set all of them out in one’s opinion. I would also, say that, applying the maxim expressio unius est exclusio alterius, that S. 11(2) requires and contemplates only one acceptable finding if the prosecution is to qualify from the heats unto the final stage of a criminal competition, (if competition it be) namely, that the reasonable mind COULD find that the essential elements of the offence have been proved beyond reasonable doubt. If the prosecution by this test qualifies for the finals of the competition then it can only succeed for a conviction if on all the evidence, after hearing the version of the accused, if any, a reasonable mind MUST now find that the crime is established beyond reasonable doubt. Thus, if for example, at the end of the prosecution’s case the evidence led points POSSIBLY only to the guilt of the accused but he is able to show that it is a case of mistaken identity of him, the case founders.

There are several authorities dealing with the question of submission of no case, see inter alia, THE STATE v ALI KASSENA (1962) 1 GLR 144 S.C APALOO v THE REPUBLIC (1975) 1 GLR 156, C.A, GYABAAH v THE REPUBLIC (1984-86) 2 GLR 461 C.A, ZORTOVIE v THE REPUBLIC (1984-86) 2 GLR 1 C.A, KOFI @ BUFFALO v THE REPUBLIC (1987-88) 1 GLR 520 even though they deal with jury trials. Some caution therefore is called for.

However, in THE STATE v. ALI KASSENA (1962) GLR 144 S.C Azu Crabbe J.S.C (as he then was) delivering the judgment of the Supreme Court adverted to S. 173 of Act 30 governing summary trials at p.149 as follows:-

“S. 173 is concerned with summary trials where the judge decided both questions of law and fact. It is for the judge in a summary trial to weigh the evidence and then decide whether from the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if uncontradicted will justify a conviction.

“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

Per Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd. Where, therefore the evidence adduced on behalf of the prosecution fails to take the case out of the realm of conjecture, the evidence is best described as “insufficient”. It is the type of evidence which because it cannot convince, cannot be believed and therefore is incapable of sustaining conviction. In these circumstances it would be wrong in a summary trial to over-rule a submission of no case to answer.”

This passage is further clarified by the judgment of the same judge in THE STATE v. SOWAH AND ESSEL (1961) 2 GLR 743 at 745 when he said: “ it is wrong……… to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed, and which therefore, calls for explanation by the accused”.

It is clear from this that the expression “presumed” is different from the expression “…may be presumed”.

(2) This matter is put beyond conjecture by Azu Crabbe C.J, delivering the judgment of the Court of Appeal in MOSHIE v. THE REPUBLIC (1977) 1 GLR 287 C.A at 290 when he said:

“The law now seems to be that in considering his duty under section 271 of the Criminal Procedure Code, 1960 (Act 30), the judge should not leave a case to the jury if he is of the opinion that (a) there has been no evidence to prove an essential element in the crime charged, or (b) the evidence adduced by the prosecution had been so discredited as a result of cross-examination, or (c) the evidence is so manifestly unreliable that no reasonable tribunal could safely convict upon it, or (d) the evidence is evenly balanced, that is to say, the evidence was susceptible to two likely explanations, one consistent with guilt, one with innocence: see State v. Ali Kassena [1962] 1 GLR 144, S.C; Apaloo v. The Republic [1975] 1 GLR 156, C.A. Where any one of these elements is evident in the case for the prosecution, the judge ought to charge the jury for acquittal and not to leave the matter in such a case to the jury. Section 271 casts a positive duty on the trial judge to ensure that the accused is not deprived of this protection through either mistake or ignorance. And the failure of counsel for the defence to make a submission of no case could not absolve the learned trial judge of his responsibility under the section.” (e.s)

Applying this test to this case, the prosecution’s case as to the element “wilfully”, as shown by the submissions of the learned Director of Public Prosecutions is that the appellant, as far as the first three charges are concerned, namely causing financial loss to the state, “operated outside the core objects and functions of the corporation. PNDCL 64 which established the GNPC confined or limited the functions and objects of the corporation to promote (sic) exploration and development of petroleum, and its core business was petroleum exploration and development but the accused person/Appellant veered off intentionally to undertake cocoa farming. In doing this the accused/Appellant did not seek professional advice, when Mr. Jude Arthur and Merchant Bank were invited to be on the Valley Farms Board they were already faced with fait accompli”. Strictly speaking the appellant never undertook cocoa farming. Valley Farms Ltd, is the company, on the evidence in this case that has undertaken the cocoa farming. But the more important detraction from this argument is that the mere act of cocoa farming or participation therein does not inherently attract a financial loss, otherwise it would not be one of the Key pillars of our national economy. There is no evidence to show that the company, Valley Farms Ltd., was incompetent to undertake the cocoa project in this case. As to not seeking professional advice before investing in Valley Farms, PW1’s evidence clearly shows that a prominent French Aid Agency, namely The Caisse Centrale, “…sent their own experts on how to review the feasibility study and to make a physical survey of the farms”. See P.16 of Vol. 1 of the Record. Continuing at p.17 he said. “The French made their own financial study of the project, which was submitted, and they advised APDF and us that they were interested in investing in the project. Our difficulty, subsequently was finding a guarantor for the loan that would have to be granted for the realization of the project”. This evaluation by Caisse Francaise was known to the appellant. In exhibit “T” his cautioned statement to the police dated the 19^th day of March 2001 the appellant stated: “The participation of Caisse Francaise was the key to my interest since it would clearly assist GNPC if an institution like that would provide finances for the projects GNPC was engaged in. I recall even meeting the Chief Executive of Caisse Francaise who was here in Ghana on a visit and who spoke highly of their technical review of the Valley Farms Project for generating export revenues”. (e.s)

It must also be borne in mind that to the knowledge of the appellant, Merchant Bank Ltd also verified the financial figures of the project.

It is also to be noted that the prosecution’s evidence shows that the appellant was very jealous and protective of GNPC’s investment in Valley Farms Ltd. He got Merchant Bank to hold that investment as a trustee through their subsidiary, Investments Holdings Ltd. That trustee appointed a director unto the Board of Directors of Valley Farms Ltd., and the appellant saw to it that that Director became the Chairman of the said company instead of leaving Pw1 to hold both that position and that of Managing Director thereof. He scrutinized the draft shareholders protocol and some things on Proparco, the subsidiary of Caisse Francaise. Soon after the guarantee, a status report on the investments of GNPC including Valley Farms Ltd was called for on behalf of the appellant, which described it as a project with “strong prospects”. See Exh. 3. At p. 918, part of this Report states as follows: “MIHL has handled GNPC’s investment at all times in close consultation with officials of GNPC and has representation on the Board of Valley Farms in the persons of Mr. Jude Arthur as Chairman and Mr. D. Addo-Ashong as substitute director for Mr. Jude Arthur to enable us closely monitor the operations of the company. (Copies of minutes of Board Meetings held to date are attached for your perusal)”.

It should be noted that this report was jointly signed by Jude Arthur (Pw5) director and D. Addo-Ashong the alternate director, respectively, on Valley Farms and is dated 5^th June 1992, before GNPC started paying off the guarantee.

In the face of all this evidence from the prosecution, how can the essential element of wilfulness in relation to the investment in Valley Farms be sustained even assuming that a financial loss to the State thereby ensued?

Surely S.179(3)(a) of Act 29 is not and cannot be a crime of strict liability, aforesaid. This sort of evidence shows that the appellant did not willfully, that is to say consciously with a pejorative intent, push GNPC into the investment in Valley Farms Ltd. In his erudite judgment in THE REPUBLIC v. IBRAHIM ADAM & ORS, supra, Afreh J.S.C forcefully stressed the element of blame worthiness in S.179(3)(a) as follows: “ In my opinion the use of the word wilful (or its noun or adverb) in a charge brought under S.179(A)(3)(a) of Act 29 requires proof of mens rea. It is not enough for the prosecution to show that the accused did a deliberate or voluntary act which caused a prohibited consequence. They must also prove that the accused person foresaw the consequence and desired it or took an unreasonable risk of it occurring. I think the context in which the word wilful, is used in section 179(A)(3)(a) shows that it should be interpreted as requiring mens rea. the other words in the section which described mental state, ‘ malicious” and “fraudulent” are undoubtedly mens rea words”.(e.s)

Even at the peak of notions of strict liability in England there were strong judicial outbursts against unjust criminal liability for persons who could not truly be said to have acted wilfully.

I referred to this at length in BONSU @ BENJILLO v. THE REPUBLIC 2000 S.C. GLR 112 when commenting on the English case of WARNER v. METROPOLITAN POLICE COMMISSIONER (1969) AC 256, H.L relating to strict liability in respect of narcotic drugs At pp. 137-138 I said:

“The common theme in Warner was that the element of mens rea must be kept within the limits earlier set out in this judgment since the enactment intended absolute liability for possession of prohibited drugs. But as aptly stated by the Privy Council in Lim Chin Aik v. R [1963] AC 160 at 174.

“…it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, which will promote the observance of the regulations. Unless this is so, there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim” (the emphasis is mine)

And Lord Wilberforce also said in the Warner case at p.391:

“This legislation against a social evil is intended to be strict, even severe, but there is no reason why it should not at the same time be substantially just”. (The emphasis is mine).

Ghanaian criminal jurisprudence shares all the foregoing judicial sentiments and crystallizes them legislatively. Hence section 4 of the Criminal Code, 1960 (Act 29) under PART 1- GENERAL PROVISIONS’ provides, as far as is relevant, as follows:

“4. The following general rules shall be observed in the construction of this Code namely

(a) This Code shall not be construed strictly, either as against the State or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof”. (The emphasis is mine).

Part 1 of Act 29 covers sections 1-29 thereof. Section 29(1) provides:

“ A person shall not be punished for any act which by reason of ignorance or mistake of fact in good faith, he believes to be lawful” (The emphasis is mine).

And section 5 also provides:

“Wherever under the provision of any law for the time being in force other than this Code any offence is created, this Part shall apply, except in so far as a contrary intention appears, to the offence as it applies to offences under this Code”. (The emphasis is mine).

I am constrained to think that if the English Drugs (Prevention of Misuse) Act, 1964 had contained these benign and generous provisions, Warner would have been decided the same way as our courts did in Amartey v. The State, Nyameneba v. The State and Lanquaye v. The Republic (supra). I can find nothing in PNDCL 236 which requires a court to hold that “the legislature imposed strict liability merely to find a luckless victim”. On the contrary, by dint of section 4 of the Criminal Code, 1960 (Act 29), that Law prima facie, cannot be construed strictly”.

I therefore unhesitatingly accept the submission of Professor E.V.O. Dankwa, counsel for the appellant’s submission, after referring to a shipload of high ranking authorities from the United States of America, that “the interpretation of wilful as requiring a “bad purpose” is consistent with the context in which wilful is used in S.179A (3) (a) alongside the words “malicious” and “fraudulent”. Noscitur a sociis”.

This being the true nature of the mens rea required by S.179A 3(a)(a) of Act 29 the same must be upheld by this court.

It is non pars judicis to give a statute either an unduly restrictive or over zealous ambit of operation, See REPUBLIC v. JANTUAH (1968) GLR 689 at 702-703, C.A. I hold on the facts of this case that the prosecution has failed to discharge its burden of production with regard to the element of wilfulness in S.179A 3(a) of Act 29.

Next, is there evidence of loss? The evidence shows that as a result of the guarantee provided for the loan of FRF 6,919,123.22 by Caisse Francaise to Valley Farms at the instance of the appellant, GNPC had to pay that amount to Caisse Francaise. However the evidence clearly establishes per exhibit 1, the guarantee agreement, that GNPC after discharging the debt on behalf of Valley Farms, GNPC was to step into the shoes of Caisse Francaise, as lender of that amount to Valley Farms.

That loan has its interest rates attached to it. Further for providing the guarantee GNPC earned a commission thereon which appreciated its shareholding in Valley Farms from 17% to 25%. If things go well GNPC will be repaid its guarantee and GNPC will continue to enjoy its additional 8% shares in Valley Farms. This hardly constitutes extra commercium but rather further investment on the part of GNPC in Valley Farms and not a cessio bonorum.

Whatever irregularities that may be associated with the act of investing in Valley Farms, the latter, on the evidence admits its liability by subrogation to GNPC in respect of the amount of the guarantee. The courts deal with realities within the framework of the law. Thus in THE STATE v. MOSHIE (1960) GLR 222 S.C at 223 Sarkodee-Adoo J.S.C (as he then was) delivering the judgment of the Supreme Court said:

“In the administration of justice, properly so

called, the law must be applicable to the facts

in issue and not to hypothetical

imaginations or illusions”.

It is true that the evidence shows that Valley Farms experienced some problems, including the relations between its farm manager and its employees, the delay in transfer of land title from Cocobod to Valley Farms. But Pw1 has confidence in the project and has invested ¢200,000,000.00 more cedis into it from his pension moneys and says at p. 31 Vol.1 of the Records:-

“Well, we have got a lot of problems. Of course the

money, which was loaned to the Company by the

K-Central was depleted long time ago in late 1994

and since that time I have personally been

keeping the Company and its operations with the

funds of my own, particularly my American

Social Security Pension which I have been

drawing since October 1994. The company is in a

very healthy condition at the moment. In view of

recent Court case in the Western Region where

the lands we had negotiated for around the

town of Dadeaso were illegally sold by an

exiled Chief and after having arrested these

people that conduct the illegal sale, were taken

to Court and after four years in court the

entire area was returned to our company. We

are regularizing that at the moment and

anticipate planting the entire acreage with

the cocoa and we are expecting production

to go up. We believe the company can finance

all this itself at the moment, and we look

forward to profit all our shareholders”..

It is the evidence of the prosecution, their very first witness. It paints a rosy picture of the affairs of Valley Farms.

Continuing, Pw1 at pp. 40-41 of Vol. 1 of the Record testified under cross-examination as follows, between lines 28-33 and 1-4:

“Q …I am saying that this that, this morning you said that the future of the project is bright?

A. Yes

Q. And I am saying that in so saying you were cognizance of the fact there is an improvement in the international price?

A. Yes

Q. And this will obviously affect the further viability of this project?

A. Yes”.

Furthermore the total acreage of the farms of Valley Farms is given at p. 15 of the Record Vol. 1 as “2079 acres”. We all know that landed property keeps on appreciating. Here there is the added value of trees of such high economic standing as cocoa (of a special quality from the evidence on record). Given the admission of liability by Valley Farms to GNPC on the guarantee by subrogation I do not see how, on these facts it can be said that the sum involved has been lost to GNPC.

In BONI v. THE REPUBLIC (1971) 1 GLR C.A at 474, a case involving a provision in pari materia though not on all fours with the present, Azu Crabbe J.A, delivering the judgment of the court said:

“ In this case, can it be said that the money expended on the building is irrecoverable? Certainly not. The money was converted into a building, and exhibit ‘G’ makes it abundantly clear that the building belongs to the government. And if the money expended on it was to be treated as a loan to Madam Susana Boadi, as indeed the first appellant insisted it should be so treated, interest would in accordance with the normal practice, have been charged on the loan. How then could the Industrial Development Corporation have incurred a loss both in the nature of capital and interest, as the learned trial judge seemed to think, albeit erroneously?” I do not see how the equilibrium of this reasoning would be disturbed had the charge there related to financial loss rather than careless dissipation of public property. I would therefore mutatis mutandis adopt and apply this reasoning to the present case. I however hold that reading S.179 A(3)(a) of Act 29160 as amended together with articles 34(1), 36(1) and 2(e) of the Directive Principles of State Policy of the 1992 Constitution relating to the economy of Ghana, the money or other financial item involved, if not to be considered as lost, must be recoverable within a reasonable time, having regard to the particular circumstances of each case. Were this time element an issue in this case, I should have pointed to the copious additional evidence on record that militates against any argument founded thereon.

I could go on and on. But I think I have said enough to indicate why in my humble view the prosecution did not discharge its burden of production at the close of the case for the prosecution in respect of counts 1-3. The case of THE STATE v. ALI KASSENA and others supra, show that even in murder cases, when there is no case to answer the charges ought at that stage to fail and the accused be acquitted. I would therefore allow the appeal in respect of counts 1-3 and acquit and discharge the appellant.

Count 4 charges the offence of intentionally misapplying public property contrary to section 1(2) of the Public Property Protection Decree 1977 (S.M.C.D 140).

The particulars of this charge are as follows: “TSATSU TSIKATA as the Chief Executive of Ghana National Petroleum Corporation (GNPC) in or about March 1991 in Accra in the Greater Accra Region intentionally misapplied the sum of Twenty Million Cedis (¢20,000,000.00) belonging to Ghana National Petroleum Corporation (GNPC) to acquire shares in Valley Farms Company Ltd, a private liability company”. The argument on this charge is based on GNPC’s core business as set out in the GHANA PETROLEUM CORPORATION LAW, 1983 (PNDCL 64). The objects and functions of GNPC are as stated in S.2 of that Law as follows:

“2(1) The objects of the Corporation are to undertake the exploration, development, production and disposal of petroleum.

(2) Without limiting the generality of subsection (1) of this section the Corporation shall:

(a) promote the exploration and the orderly and planned development of the petroleum resources of Ghana;

(b) ensure that Ghana obtains the greatest possible benefits from the development of its petroleum resources;

(d) ensure the training of citizens of Ghana and the development of national capabilities in all aspects of petroleum operations; and

(e) ensure that petroleum operations are conducted in such manner as to prevent adverse effects on the environment, resources and people of Ghana.

(3) Subject to the provisions of this Law and any enactment for the time being in force the Corporation may:

(a) advise the Secretary and the National Energy Board on matters relating to petroleum operations;

(b) engage in petroleum operations, either alone or in association with others;

(c) enter into petroleum and production agreements and other petroleum contracts providing for the assistance, participation or co-operation of contractors in connection with petroleum operations;

(d) either alone or in association with others, buy, sell, trade, store, exchange, import or export petroleum and for this purpose, acquire or operate any installations, facilities or means of transportation;

(e) engage in research and development programme related to petroleum; and

(f) engage in such other activities, either alone or in association with others, as may be necessary or desirable for the carrying out of petroleum operations.

It is clear from the evidence of Pw2, Mr. Opoku Mensah, a former Corporate Planning Manager and Acting Head of Drilling and engineering at pp. 48-49 of the Record (Vol. 1) that GNPC’s objects are foreign exchange intensive and that foreign exchange was a great handicap to the corporation’s operations. To take just one excerpt, at p.50 he testified under cross-examination as to this handicap as follows:-

Q. “Mr. Opoku Mensah you are aware that due to this handicap, the GNPC was on day-to-day basis addressing the issue of foreign currency for the corporation?

A. Yes, we were always looking for funds for our projects”

X X X

Q. Mr. Opoku Mensah, this issue of foreign exchange was always highlited in your projections for the department. That is when you presented your plans the issue of foreign exchange requirement was regularly highlited?

A. Yes, My Lord”

Towards the end of p.50 Pw2 testified as follows:-

“Q. Was GNPC ever capitalized?

A. Not to my knowledge, My Lord.”

Similarly in Exh. T, his cautioned statement to the police the appellant stated (see p. 910 of Vol. 3 of the Record) as follows:

“If anything, the State still owes GNPC the capitalization Commitments that were made but not fulfilled. It is in this context that the Valley Farms project and GNPC participation must be seen”.

It is trite law that statutory powers include all such powers as are necessary and incidental to the doing of what is required by the statute to be done. See S.10 of the Interpretation Act 1960 (C.A. 4), and article 296 of the 1992 Constitution. See also RHONE-POULENCE v. GNTC (1972) 2 GLR 109 Abban J. In DEUCHAR v. GAS LIGHT AND COKE CO. (1925) AII ER Reprint 720, a decision of the English House of Lords, it was held, as per the head note that “the company, being expressly authorized to work up or deal with their residual products by converting them into a marketable article, had by reasonable implication a power to provide by the process of manufacture, instead of by purchases, the necessary materials for that purpose”.

In this case PNDCL 64 chose to deal with this aspect expressly in S. 2(3)(6) as follows:

“…(f) engage in such other activities, either alone or in association with others, as may be necessary or desirable for the carrying out of petroleum operations”.

S. 29 defines “petroleum operations” to mean “…exploration, development, production, transportation and disposal of petroleum”. Quite clearly this calls for intensive foreign exchange.

The evidence of Pw1 at P.36 of the Record (Vol. 1) and Exhibit 5A inter alia, that the Valley Farms Project in cocoa is foreign exchange focused, add to this judicial notice of cocoa as a foreign exchange earner in Ghana and the acute need for the same by GNPC (evidence already set out), warrant the investment by GNPC in that project and cannot be a misapplication of the funds involved.

Under S.16 (1) of PNDCL 64 the government of Ghana has only a discretion and not a duty to capitalize GNPC. Were it a mandatory duty I should have held against GNPC ‘s investment in Valley Farms, but it is not. Government did not provide the funds whereas, of course, under S.2(1) the Corporation’s duties which are foreign exchange intensive, are mandatory.

PNDCL 64, itself, in anticipation of such activities in view of the foreign exchange necessarily involved in the attainment of the objects and functions of GNPC, has in S.19 made special provision for GNPC to have a foreign exchange account. It provides as follows:-

(1) “The Corporation shall, with the approval of the Bank of Ghana, open a special foreign exchange account into which shall be paid all moneys received in foreign exchange by the Corporation.

(2) The Bank of Ghana, shall supervise and monitor the operation of the special foreign exchange account by the Corporation to ensure that it is in conformity with the approved purposes for which the account was established.

(3) The purposes for which the special foreign exchange account may be used shall include-

(a) repayment of principal and interest due in foreign exchange on any borrowing made under section 15 of this Law;

(b) payment for goods and services imported from outside Ghana:

(c) such other payments as are required to be made in foreign exchange in respect of transactions related to the objects of the Corporations.

(4) The Corporation shall, at the end of every period of ninety days, transfer to the Bank of Ghana from the credit balance of its special foreign exchange account such sums of money as are not required within the succeeding period of ninety days for the purposes specified in subsection (1) of this section.”

GNPC, is of course an on-going concern.

No canon of construction can correctly stand in the way GNPC sought, through Valley Farms to source foreign exchange funds to carry out their statutory duties and functions. They rightly did so with the investment in Valley Farms under sections 1(3) and 2(3) (f) of PNDCL 64.

Owning to the presumption of innocence, the question whether there is a case to answer at the close of the prosecution’s case is a serious and fundamental matter. As Ollenu J.A delivering the judgment of the Court of Appeal in ATSU v. THE REPUBLIC (1968) GLR 716 C.A at 719 said:

“…it is the prosecution which has the onus to prove the

guilt of the person they accuse of an offence, and not

the accused who should establish his innocence, the

accused should therefore not show his hands until

the need arises.”(es)

The prosecution’s case is heavily riddled with alluvial, exculpatory, evidential bullets and therefore disestablishes a prima facie case against the appellant. I would therefore also allow the appeal with regard to count 4 and acquit and discharge the appellant.

W.A. ATUGUBA