REPUBLIC vs. SELORMEY [2001-2002] 2 GLR 424

CASES REFERRED TO

(1) Commonwealth v Webster, 59 Mass 5 (Cush) 295 (1850).

(2) R v Abisa Grunshie (1956) 1 WALR 36.

(3) R v Ansere (1958) 3 WALR 385.

(4) Akowuah v Commissioner of Police [1963] 2 GLR 390.

(5) Akowuah v Commissioner of Police [1964] GLR 475, SC.

(6) Boahene v The State [1965] GLR 279 SC.

(7) Andoh v The Republic (1970) CC 42.

[p.428] of [2001-2002] 2 GLR 424 (8) Datsa v The Republic [1971] 1 GLR 418.

(9) Osei v The Republic (No 2) [1971] 1 GLR 449.

(10) Darkurugu v The Republic [1989-90] 1 GLR 308.

(11) Kungua v The Republic [1984-86] 2 GLR 489.

(12) Kwashie v The Republic [1971] 1 GLR 488, CA.

(13) R v Blake [1962] 2 QB 377, CCA.

TRIAL of the accused, former Deputy Minister of Finance, on two counts of fraud by false pretences, two counts of conspiracy to cause financial loss to the State and two counts of causing financial loss to the State. The facts are sufficiently set out in the judgments.

Osafo Sampong, Director of Public Prosecutions (led by Gloria Akuffo, Deputy Attorney-General with them A Gyambiby, Principal State Attorney) for the Republic.

Barima Manu (led by Quashie-Idun and Kwaku Baah) for the accused.

Baddoo JA. The accused person, Victor Selormey, a former Deputy Minister of Finance, has been charged with two counts of fraud by false pretences, two counts of conspiracy to cause financial loss to the State and two counts of causing financial loss to the state. He has pleaded not guilty to all the six counts.

In all criminal proceedings in this Republic it is the responsibility and the duty of the prosecution to prove the charges against the accused person beyond reasonable doubt. But what is reasonable doubt? Several definitions have been given by eminent jurists. But I prefer to quote the definition given by Chief Justice Shaw in 1850, during the trial of Prof Webster of Harvard University, for the murder of Dr Parkman in Commonwealth v Webster, 59 Mass (5 Cush) 295 at 320 (1850). He said:

“It is the condition of mind which exists, when the jurors cannot say that they feel an abiding conviction, a moral certainty of the truth of the charge. For it is not sufficient for the Prosecutor to establish a probability, even though a strong one according to the doctrine of chances; he must establish the fact to a moral certainty; a certainty that convinces the understanding, satisfies the reason and directs the judgment. But were the law to go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.”

Another eminent jurist, Chief Justice Kendal Bushe also had this to say

[p.429] of [2001-2002] 2 GLR 424 about reasonable doubt:

“To warrant an acquittal, the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of the whole evidence a rational understanding will suggest to a honest heart the conscientious hesitation of minds that are not influenced by party, preoccupied by prejudice, or subdued by fear.”

This is the standard of proof required in our criminal judicial system and this is the standard of proof that will be applied in this case.

The charge of fraud by false pretences is founded on section 131 of the Criminal Code, 1960 (Act 29) as follows: “Whoever defrauds any person by any false pretence shall be guilty of a second degree felony.” The section 132 of Act 29 defines the offence as follows:

“132. A person is guilty of defrauding by false pretence, if by any false pretence or by personation, he obtains the consent of another person to part with or transfer the ownership of anything.”

For the avoidance of doubt section 133 of Act 29 goes further to define what reality constitutes false pretences as follows:

“133. A false pretence is a representation of the existence of a state of facts made by a person either with the knowledge that such representation is false or without the belief that it is true and made with an intent to defraud. A representation may be made either by written or spoken words or by personation or by any other conduct, sign or means of whatsoever kind.”

Therefore for the prosecution to succeed in proving the charges of fraud by false pretences against the accused person, the law requires that the prosecution must prove by evidence, the following:

(a) That the accused person made a representation either by written or spoken words or any other means whatsoever.

(b) That the said representation was in regard to the existence of a state of facts.

(c) That the said representation was false or made without the belief that it was true.

(d) That by that false representation the accused caused Ecobank to pay out of government funds lodged with the bank, the sum of $1,297,500 to one Dr Boadu.

This is what is required of the prosecution to prove the charges of false [p.430] of [2001-2002] 2 GLR 424 pretences.

Conspiracy to cause financial loss is founded on sections 23(1) and 179(3) of Act 29. The two sections provide that where two or more people act together with a common purpose to commit a crime, they could be charged with conspiracy to commit that particular crime. The prosecution must therefore prove by evidence that the accused and Dr Boadu acted together to commit an offence, which resulted in a financial loss to the Republic of Ghana.

The charge of causing financial loss is founded on section 179)A)(3)(a) of Act 29. The section provides that any person through whose wilful, malicious or fraudulent action or omission the State incurs a financial loss commits an offence. In plain ordinary language, it means any deliberate act or omission of any person which results in a financial loss to the State constitutes an offence. Therefore for the prosecution to succeed in proving this charge against the accused person they must show that: (a) the accused person took certain actions, and (b) those actions resulted in a financial loss to the State

The case for the prosecution was that the accused person was formerly the Deputy Minister of Finance. He has a friend by name Dr Frederick Owusu Boadu, a Ghanaian resident in Texas, USA. In December 1998 the accused authorised Ecobank to pay an amount of $432,500 to Dr Frederick Owusu Boadu in Texas by falsely representing to the bank that Dr Boadu had performed consultancy services, under the court computerisation project, which representation he knew to be false. Again in February 1999 the accused authorised Ecobank to pay to the said Dr Boadu an amount of $865,000 by falsely representing to the bank, that this was the second payment to Dr Boadu for the consultancy services he had rendered under the court computerisation project, which representation he knew to be false. It is the case for the prosecution that no consultancy services have been rendered by Dr Boadu in respect of the court computerisation project to warrant the payment of the total sum of $1,297,500 to him and by this act the Republic had incurred a financial loss of $1,297,500.

In support of these charges, the prosecution called nine witnesses shall now proceed to give a brief summary of the evidence of each witness. In doing so, I shall naturally focus on the more relevant pieces of evidence, so as to save time. The first witness for the prosecution was Mr Kafui Senaya. He was sworn on the Bible and spoke in English. He is a principal economic officer of the Ministry of Finance. He was a project officer handling the Private Sector Development from 1995-98. He was with the secretariat of the round table discussion where they did six studies, namely:

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(1) Production and dissemination of legal information including courtroom recording.

(2) Operations of the judiciary and the Ghana Bar Association.

(3) The Ghana law libraries.

(4) Institutional restructuring of the Ministry of Justice and other government legal offices.

(5) Human resources development and training.

(6) Administrative law procedures, arbitration and other alternative mechanism.

He told the court that the World Bank provided the sum of $824,000 for these projects. The secretariat therefore advertised in the newspapers for those interested to submit letters of interest and capability statements. In response, 45 individuals submitted their applications. An oversight committee was set up to deal with the matter. A committee of seven including the Chief Director of the Ministry of Justice, Nana K E Nsaful and Mr Bimpong-Buta, Director of the Law School was set up to make a shortlist of the applicants after evaluating their qualifications. Finally, the committee awarded the project involving the production and dissemination of legal information, including courtroom recording to VSM International. The witness testified that a joint bid was submitted by LEEBDA and Owusu Adjepong and Co which was successful. But they were not awarded the contract because they wanted to undertake the study and also to supply the equipment. After consulting with the World Bank it was decided that they must opt either to supply the equipment or to undertake the study. LEEBDA was therefore not awarded any contract. Nor was any contract signed with LEEBDA and Owusu Adjepong and Co.

In cross-examination, it was suggested to the witness that LEEBDA signed a contract with the Ministry of Finance to put all Ghana statutes, all constitutions, all decrees, all executive instruments, all legislative instruments on a CD Rom. The witness answered that he was not aware of such a contract. It was also suggested to the witness that the reason why the CD Rom had not been installed was because the computers have not been put in place. He answered that LEEBDA demanded $500.000 for the supply of the computers and the Judicial Service rejected the demand and that led to the collapse of the negotiations.

The next witness called for the prosecution was Kwame Akaba, from the Ecobank. He is the operational manager of the bank. He testified that Ecobank manages accounts for various ministries. The bank receives funds from the government through the Bank of Ghana and disburses same by way of loans to exporters of non-traditional

[p.432] of [2001-2002] 2 GLR 424 exports section. On 27 November 1998 the bank received an authority letter from the Ministry of Finance to transfer an amount of US$432,500 to LEEBDA Corporation, Texas, USA for the attention of Dr Frederick Boadu. The accused person signed the letter. The bank effected payment by swift transfer dated 8 December 1998 to First American Bank, Texas for the accounts of LEEBDA. The letter was admitted in evidence and marked exhibit A. It reads as follows:

“Dear Mr Aka, PAYMENT OF CONSULTANCY FEES We should be grateful if you would transfer the sum of US$432,500 to Messrs LEEBDA Corporation of Texas USA being the first instalment payment 30% for a court computerisation project entitled ‘Production and Dissemination of Legal Information Systems in support of the Private sector in Ghana.’ The details of LEEBDA Corporation’s account are as follows …”

This letter was not copied to the Controller and Accountant-General, nor to the Auditor-General nor did it bear any reference number for any future correspondence.

On 12 February 1999 the bank received another instructions from the Ministry of Finance, signed by the accused, to transfer the sum of US$865,000 to LEEBDA. The payments were made by swift transfer to the accounts of LEEBDA in Texas USA. There were seventeen separate transfers beginning from 25 February 1999 and ending 2 October 2000. The total came up to US$865,000. The letter was admitted in evidence and marked C. It reads as follows:

“Dear Mr Aka, PAYMENT OF CONSULTANCY FEES Please transfer the sum of US$865,000 to Messrs LEEBDA Corporation Texas USA being the second and final payment for consultancy services provided under the court computerization project. ‘Production and Dissemination of Legal Information Systems in support of the Private Sector in Ghana.’ The details of LEEBDA Corporation’s account are as follows …”

This letter was also not copied to the Controller and Accountant-General, nor to the Auditor–General. Nor did it bear any reference

[p.433] of [2001-2002] 2 GLR 424 number for any future correspondence. But very significantly, the two letters were copied to: The President, Leebda Corporation, College Station, Texas, USA.

Nana Kofi Ennin Nsaful, the third plaintiff witness, is now a legal and management consultant. He was the Chief Director of the Ministry of Justice from October 1993 to April 2001. He was then a member of the Legal Sector Co-ordinating Committee; that was the body to oversee the legal reform project. Some of the members of the committee were: Dr Obed Asamoah, Martin Amidu, Sam Okudzeto, SY Enim, SY Bimpong-Buta, Ansa-Asare, BT Acromond, Mrs Elizabeth Owiredu Gyampoh, Executive Secretary of the Lands Commission, Ms Mabel Arko, Secretary Co-ordinator, Paul Asamani and Kafui Senaya. The committee awarded consultancy assignments for six studies:

(1) Institutional restructuring of the Ministry of Justice was awarded to Messrs SKB Asante and Associates.

(2) Ghana law libraries and information systems was awarded to Messrs Imai ACS.

(3) Human resource development to Messrs Imai ACS.

(4) Operation of the judiciary and the Ghana Bar Association was awarded to PCL Consultant.

(5) Production and dissemination of legal information including courtroom recording was awarded to VMS International.

(6) Administrative law procedure, arbitration and other alternative dispute settlement mechanisms.

In all these transactions, he signed the contracts on behalf of the Ministry of Justice as the chief director and the Ministry of Justice was the implementing agency. The various companies, which dealt with the ministry submitted bills to him as the chief director of the implementing agency. The bills were then referred to the Legal Sector Co-ordinating Committee who would then discuss the reports. If the reports were accepted then the bills would be paid. He as the chief director would then forward the bills to the Ministry of Finance Project Management Committee Co-ordinator for payment. Dr Boadu did not submit any bills to the committee, nor did LEEBDA submit any bills for payment. VSM submitted a report on the production and dissemination of legal information including courtroom recording. They submitted a bill, which he referred to the Legal Sector Co-ordinating Committee, which approved the bill, and VSM was paid.

In cross-examination he stated that the Ministry of Justice was the implementing agency, while the Ministry of Finance was the disbursing agency, and that he related closely with the co-ordinator at the Ministry [p.434] of [2001-2002] 2 GLR 424 of Finance by name Mr Asimenu. He was not aware that LEEBDA submitted any proposals for the production and dissemination of information for the private sector, nor was he aware that LEEBDA signed any contract with the Ministry of Finance on 25 November 1998. He was also not aware that the purpose of the contract was to put all legislation in Ghana on a CD Rom. He was also not aware that this contract had been executed nor has he seen any demonstration of the CD Rom.

Eva Esselba Mends, the fourth plaintiff witness, is an economic officer at the Ministry of Finance. Her schedule included the management of USAID assisted projects from 1991-98. She was also the desk officer of the World Bank from 1998-2001. They facilitated all USAID assisted projects. But she was not aware of any project relating to court computerisation programme. She was also responsible for the maintenance of all files dealing with USAID programmes. Before any letter is dispatched, she must have a copy placed on file. Before funds are released for any programme a committee must approve of the payment to the budget of the implementing agency. After the approval, the Ministry of Finance will then release the funds to the implementing agency. The Controller and Accountant-General will then be authorised to effect payment. The deputy minister, the accused, signs the authorising payments. They do not operate dollar accounts. Even though she was in charge of the USAID projects, she has never seen exhibit A which was the letter written to Ecobank by the accused, authorising the bank to pay the sum of $432,500 to LEEBDA; attention Dr Boadu in Texas, USA. She had also not seen exhibit C which was another letter written to Ecobank by the accused authorising the bank to pay the sum of $865,000 to LEEBDA; attention Dr Boadu in Texas, USA. In cross-examination, the witness stated that the TIP programme which came to an end in 1997 was extended. She also stated in cross-examination that she was not aware that LEEBDA was paid from the interest generated by the TIP funds.

George Aflah Aryeetey, the fifth plaintiff witness, is the Acting Judicial Secretary and a member of the Legal Sector Co-ordinating Committee. In the course of his duties he has not signed any contract with LEEBDA or Dr Boadu, nor has he recommended that any payment be made to LEEBDA or Dr Boadu. In cross-examination he stated that Dr Boadu came to his office one day and introduced himself as someone living in Texas, US. That he told him he had a son in Texas, US. That was all the contact he had with Dr Boadu.

Jeff Musore, the sixth plaintiff witness, is an assistant superintendent of police at the CID Headquarters, Commercial Crime Unit,

[p.435] of [2001-2002] 2 GLR 424

Accra. His duties are to investigate crimes that are reported to the police. On 27 April 2002 a special audit was referred to him for investigation. The report was about the court computerisation project, involving the sum of $1,297,500 being payments made to LEEBDA Corporation of Texas, USA; attention Dr Frederick Owusu Boadu. He found in the course of his investigation that no contract was signed, yet payments have been made on the direction and authority of the Deputy Minister of Finance, the accused person before the court. He found exhibit A, a letter written by the accused to Ecobank to pay the sum of $432,500 to LEEBDA Corporation; attention Dr Frederick Owusu Boadu. He also found exhibit C, a letter written to the Ecobank to transfer the sum of $865,000 to LEEBDA Corporation; attention Dr Frederick Owusu Boadu. The two letters were copied to the President, Leebda Corporation, Texas, but were not copied to the Controller and Accountant-General or the Auditor-General. He also found that the two letters had no file numbers. He found out that there was an oversight committee on the Trade and Investment Programme, which was co-chaired by the accused person and Hon Mr Dan Abodakpi, the then Minister of Trade and Industry. That after the programme had ended in 1997, the funds that were unused were left to the discretion of the accused and Hon Dan Abodakpi.

His investigations also took him to the Ministry of Justice and the Judicial Service where he found that no contract has been signed between the Ministry of Justice and LEEBDA or between the Judicial Service and LEEBDA. He also did not find any contract between the Ministry of Finance and LEEBDA about the court computerisation programme. However, he found that a company by name VSM International did sign a contract with the Ministry of Justice represented by the Legal Sector Co-ordinating Committee, to do the court computerisation, production and dissemination of legal information, including electronic courtroom recording. The contract was signed on 12 June 1997 and VSM was paid in full after completing its work. He also contacted Dr Samuel Anyimadu, the head of the Legal Department at the Ministry of Finance and he too did not have any knowledge of any contract signed between LEEBDA and the Ministry of Finance.

Having completed all these investigations he invited the accused person to the Police Headquarters. The accused came, accompanied by his counsel Mr Kwaku Baah. He questioned the accused person about the payments he authorised Ecobank to make to LEEBDA in Texas. The accused person said he was reserving his statement for court. He took a statement from him to that effect on 7 May 2001. The witness

[p.436] of [2001-2002] 2 GLR 424 testified further that his investigations revealed that LEEBDA did not exist. He tried to get in touch with LEEBDA on the telephone, but he had no response.

The cross-examination of this witness was very extensive. In cross-examination, he told the court that LEEBDA stood for Law, Economic, Engineering, Business and Development Associates and not a corporation. He also tendered the audit report, exhibit 6, on behalf of the defence. He admitted that one Bram Larbie who said he represented Dr Frederick Owusu Boadu, said that Leebda had submitted a proposal for the production and dissemination of legal information. He found out that all letters written or signed by the accused person, bear file numbers except the two letters, exhibits A and C, written to Ecobank authorising the bank to pay $1,297,500 to Dr Frederick Owusu Boadu. He contacted the schedule officers responsible for files, Ms Esselba Mends and Mrs Batsa, and they both declared that they had never seen the two letters before, that is exhibits A and C. He found out that under normal circumstances, the beneficiary agencies would write to the Minister or Deputy Minister of Finance, requesting that payment should be made in respect of a particular project. In so doing the beneficiary agency would state the extent to which the contract had been carried out as well as the amount that should be paid. In the case of the two letters, exhibits A and C, he found out that no beneficiary agency wrote to the Minister of Finance or his deputy indicating the extent of the work done and requesting that payment should be made to Dr Frederick Owusu Boadu. He agreed with counsel that the operation of TIP account was different from what the Ministry of Justice was doing concerning the legal sector, since the source of funding was different. He indicated that he was not aware of any contract between the Ministry of Finance and LEEBDA; no such document could be found in the Ministry of Finance. He denied that Hon Abodakpi had the capacity to authorise the execution of a contract between the Ministry of Finance and LEEBDA Corporation.

Dr Kwame Anyimedu, the seventh plaintiff witness, is a lawyer and works at the Ministry of Finance. He is the head of the legal department of the Ministry of Finance. His duties include reviewing all loans, contracts; agreements entered into by the government and advise as to when or whether they should be signed. In the course of his duties, he has had nothing to do with a contract relating to court computerisation project, nor has he seen any contract involving a company called LEEBDA and the Ministry of Finance. In cross-examination he admitted that he had nothing to do with TIP programmes.

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Andrew Kwadzo Kufe, the eight plaintiff witness, is director in charge of final accounts and public debts and investments. He does the recording of the monetary data and accounting for loans granted to the government. He told the court that he was entitled to know when payments are authorised by the Ministry of Finance. He was shown exhibits A and C and testified that the payments authorised by exhibits A and C were never communicated to the Controller and Accountant-General.

In cross-examination he stated that TIP accounts were committed to specific programmes and he was not aware of any excess funds. He stated further that when funds are deposited at Ecobank, the Controller and Accountant-General is not informed of disbursement.

Nana Baah Opoku Agyemang, the ninth plaintiff witness, is an assistant director of audit with the Audit Service. His assignments included the review of activities of the Ministry of Finance and its departments and help the Auditor-General form an opinion about the Ministry of Finance operations. He stated that under the Financial Regulations, all warrants issued for the payments of money should be copied to the Auditor-General. To make sure that warrants and releases are genuine, the Ministry of Finance has introduced a procedure that insists that all releases from the Ministry of Finance should bear a sticker call hologram. By the mere presence of the hologram, which is strictly controlled by the ministry under lock and key, the genuineness of the release can be verified. The witness testified that exhibits A and C, the letters written to Ecobank for the release of the sum of $1,297,500 to LEEBDA: attention Dr Boadu, did not bear this hologram. In cross-examination, the witness admitted that he would not know whether the releases from the TIP accounts should bear this hologram. However, he maintained that the Financial Regulations mandated that any account generated should be given to the Auditor-General.

PRIMA FACIE EVIDENCE AGAINST THE ACCUSED

At the close of the case for the prosecution the following evidence have been led before the court:

(1) That the accused, Victor Selormey, was a former Deputy Minister of Finance.

(2) That Ecobank held funds, including foreign currencies on behalf of the Republic of Ghana.

(3) That these funds are disbursed on the instructions of the Ministry of Finance.

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(4) That the accused, Victor Selormey, was responsible for authorising these disbursements.

(5) That a legal sector co-ordinating committee was set up to oversee the Legal Sector Reform Projects.

(6) That the accused was not a member of this committee.

(7) That this committee was responsible for awarding contracts for the Legal Sector Reform Projects.

(8) That consultancy services for the production and dissemination of legal information including courtroom recording was awarded to a company called VSM International.

(9) That the committee charged with the Legal Sector Reform did not award or sign any contract with LEEBDA or Dr Boadu in connection with any services, or the supply of any equipment.

(10) That on 27 November 1998 the accused, Mr Victor Selormey, wrote to the Managing Director of Ecobank that Messrs LEEBDA Corporation in Texas, USA whose president is Dr Boadu, had provided consultancy services in respect of the court computerization project and therefore the bank should transfer the sum of $432,500 to the corporation in the US.

(11) That on 12 February 1999 the accused again wrote to Ecobank, instructing the bank to transfer the sum of $865,000 to LEEBDA, attention Dr Boadu in Texas, USA being the second and final payment for consultancy services provided under the court computerisation project, production and dissemination of legal information systems in support of the private sector in Ghana.

(12) That these instructions to Ecobank to pay LEEBDA in Texas, US the total sum of $1,297,500 were never copied to the Accountant-General or the Auditor-General.

(13) That in response to these orders Ecobank transferred the total sum of $1, 297, 500 to LEEBDA; attention Dr Boadu in Texas, US by swift transfer.

(14) That the representation made by the accused person, Victor Selormey, that LEEBDA Corporation had provided consultancy services was false because the services had already been provided by VMS.

(15) That LEEBDA was initially awarded a consultancy contract, but the corporation wanted to supply the equipment as well.

(16) That when this request was refused and the corporation was

[p.439] of [2001-2002] 2 GLR 424 given the option to either provide services or supply equipment, the corporation rejected the whole contract.

(17) Consequently, the committee for the Legal Sector Reform Project did not sign any contract with LEEBDA or Dr Boadu to provide any services or supply any equipment.

(18) Finally, the prosecution was able to show by evidence that Dr Boadu has not provided any services for which he should be paid the sum of $1,297,500. (See also the audit report, exhibit 6.)

(19) I therefore found as a matter of law and fact that the prosecution have made a prima facie case against the accused person and I called upon him to open his defence.

The accused in his defence gave evidence on oath and stated that he was a former Deputy Minister of Finance. He was familiar with the Private Sector Development Project, which was meant to address specific problems pertaining to certain public institutions, including the legal sector. One of the six studies made, had to do with the production and dissemination of legal information, including electronic courtroom recording. He negotiated a contract with the World Bank and signed a contract on behalf of the Government of Ghana for the sum of $820,000. He negotiated this contract with Mr Paul Asimenu who was in charge of the legal sector of the Ministry of Finance. The implementing agency was the Accountant-General’s Department while the Ministry of Finance was the supervising agency. A legal sector co-ordinating committee was set up and firms who were interested in conducting the studies were invited to submit applications. The accused stated that LEEBDA and Adjapong & Co and VMS came out as the best bidders and they were invited for negotiations.

At this stage counsel sought to tender a document purporting to be a certificate of incorporation of LEEBDA in the USA. This was objected to by the Director of Public Prosecutions and the objection was upheld on the strength of the Evidence Decree, 1975 (NRCD 323) which required that this should be tendered by a representative of the company. The accused continued his evidence that LEEBDA had won the bid, but wanted to conduct the study and implement it as well. The World Bank did not permit this and LEEBDA withdrew. The study was finally conducted by VMS who completed the work in 1999.

The accused then explained how he came to authorise exhibits A and C. According to him, the pace of implementation was slow and there was the fear that the project could be cancelled if the implementation was not quickened. There was available another facility from other sources. In a discussion with the Ministry of

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Finance and then Hon Dan Abodakpi, it was decided that some of these resources could be used to create a favourable environment for the private sector. These resources came from the TIP programme. This was a programme meant to boost non-traditional exports. The contract was for five years involving an amount of US$8 million. At the end of the period of five years, there was an outstanding balance of US$6 million. Since there was no provision in the contract as to what the balance should be used for, it was decided by the Ministry of Finance that the funds should be used to assist the private and public sectors that dealt with investment. Thus, Customs Excise and Preventive Service was provided with some funds, the Trade Fair Authority was also assisted in building a new pavilion and some resources were allocated to address problems in the legal-judicial sector.

He received proposals from LEEBDA to do a turn-key project. This involved the conversion of legal materials, like the Ghana Law Reports, statutes, indexes into computer readable forms, that is called digitisation. It also included the purchase of computer equipment, training of judges and lawyers and the creation of a central database within the premises of the High Court in Accra and then finally the networking with all the regional High Courts and the central location in Accra. It would also involve linkages with institutions like Parliament, the Attorney-General’s Department, Council for Law Reporting, the Law Reform Commission and the law library at the University of Ghana.

After discussions with the Ministry of Finance and Hon Dan Abodakpi, LEEBDA was invited for further discussions, which culminated in the preparation of a draft agreement which was discussed further. First, it was agreed to digitise the legal records of Ghana and to install this in selected courts in Ghana. The cost of this pilot project was agreed upon, as well as the duration, which was to be no more than one year. It was also agreed that the final product and all other records associated with it, would be the property of the Government of Ghana. The contract sum was US$1.1 million.

He was given the go-ahead by the Ministry of Finance and Hon Abodakpi. So he went ahead and had the contract and agreement prepared. According to the accused, part of the work was done and demonstrated to him in December 1998 and a report submitted at the same time. There was an amendment to the original agreement, which expanded the digitisation to cover all statutes of Ghana, all law reports from 1957 to 1991, all Constitutions of Ghana, all West African Law Reports, all executive instruments, all legislative instruments, all

[p.441] of [2001-2002] 2 GLR 424 decrees and ordinances. The work was completed in 1999 and demonstrated to the accused and some members of the judiciary. The CD Rom is available but could not be installed because the computers have not been purchased. The accused told the court that the first batch of work that was submitted, cost $432,500 based on the contract that had been executed. After the contract had been completed he made the second payment. He maintained that there was a contract and the work was executed before payment was made to LEEBDA. The accused explained that court computerisation has several aspects and includes digitisation and the purchase of computers and their installation. The accused claims that he has not deceived anybody. The work has been done for which he authorised payment.

In cross-examination the accused admitted that he knew Dr Frederick Owusu Boadu when they were all attending school at Cape Coast. He told the court that his two children stayed with Dr Boadu in 1996 in the US for a month, before moving into their own apartment. He also told the court in cross-examination that he and his wife paid the fees of their children, which averaged US$15,000 to US$16,000 a year each. The accused maintained that LEEBDA signed a contract with the Government of Ghana and that he left a copy in the office when he left the government. There were no witnesses when the contract was signed. Only the two of them were present. He admitted that the two letters to Ecobank were not copied to the Accountant General or to the Auditor-General.

In the case of the Auditor-General he maintained that this was an administrative lapse, which would be corrected during auditing. With regard to the Accountant-General, he maintained that it was not necessary to copy the department because this was not funds from the Consolidated Fund. The accused admitted that he was familiar with the Financial Regulations set out in SMCD 221 and LI 1234. The accused also maintained that the absence of reference numbers on the letters written to Ecobank, exhibits A and C, was not his responsibility. He denied that he had committed any offence.

The accused person then called the following witnesses: The first defence witness, Mr Kwame Peprah, testified as the former Minister of Finance. He knew that the accused was responsible for the TIP programme. He was only briefed about the programmes. He was briefed about the proposals to digitise the relevant information. He said the accused had power to sign contracts. In answer during cross-examination, Mr Peprah said:

“My Lord the courts computerisation project was a World Bank loan and 1 am not aware that LEEBDA and the government

[p.442] of [2001-2002] 2 GLR 424 signed the contract on that one—I am only aware my deputy briefed me that he had signed the contract on the digitisation of the data-base of the legal system.”

(The emphasis is mine.) Hon Dan Abodakpi, the second defence witness, testified that he knew about the TIP programme. That he knew Dr Boadu. He was told by the accused that a contract had been signed with Dr Boadu. He was to countersign this contract, but he could not because he was out of the country. The contract was awarded for the collation, compilation of court data and dissemination of same and electronic recording of court proceedings. Law of Ghana from independence up to date were to be put into a digitised format. But in cross-examination Hon Abodakpi was not candid with the court. When asked how the fees of his daughter who is now in East London was being paid, he told the court that the fees were being paid by one Moukarzel, but he could not tell the amount that was being paid as fees. He had never seen the contract signed with LEEBDA.

Mr Beecham, the third defence witness, solicitor for Dr Boadu, also gave evidence for the accused. He also maintained that there was a contract between LEEBDA and the Ministry of Finance, but was not able to produce the contract. He sought to tender the certificate of incorporation of LEEBDA as a company. An objection raised by the Director of Public Prosecutions was upheld on the grounds that the document can only be tendered by a representative of the company in accordance with section 149 of NRCD 323.

The defence called Sam Awotwi, Commissioner of Police CID as the fourth defence witness to tender letters written to the police by Bram Larbi, Becham & Co, the solicitors for LEEBDA. Mr Awotwi tendered exhibits 7 and 8. Exhibit 7 was a letter written on 22 May 2001, weeks after the accused had been charged with the offences before the court.

The fifth defence witness, Justice Francis Kpegah, was called to testify that Dr Boadu demonstrated a CD Rom to him, which showed all the decided cases in Ghana, statutes and laws. But he could not testify whether the CD Rom shown to him was the one that was demonstrated to him.

The sixth defence witness, Mrs Sabina Ofori-Boateng, is the Director of Legislative Drafting in the Attorney-General’s Office. She met Dr Boadu in 1999. He demonstrated a CD Rom to her in which she found a judgment written by her husband. She was very impressed. She told the court in cross-examination that she would not know whether Dr Boadu signed any contract with the Attorney-General’s Department of Ministry of Justice. She was not aware of any contract

[p.443] of [2001-2002] 2 GLR 424 with LEEBDA.

Justice George Acquah, the seventh defence witness, also testified that he met Dr Boadu in the company of Justice Kpegah. The CD Rom was demonstrated to the two of them and they were very impressed. He later wrote a letter of commendation for Dr Boadu.

The eight defence witness, Justice Brobbey, also testified that Dr Boadu demonstrated to him a CD Rom on which had been recorded legal materials including legislative instruments, executive instruments and some statutes. Dr Boadu told him he was looking for buyers and so he needed a letter of commendation to present to prospective buyers. So he wrote one for him. He was impressed by the demonstration. In cross-examination he said he did not know whether LEEBDA signed any contract with the Judicial Service.

The ninth defence witness, Nicholas Charles Agbevor, is the Deputy Judicial Secretary. In 1996 he met Dr Boadu who wanted to introduce computer into the courts. He received a letter from Dr Boadu and he replied to that letter on the instructions of the late Chief Justice on 27 July 1996. In cross-examination, he could not tell whether LEEBDA signed any contract with the judiciary. He did not sign any contract with Dr Boadu about the court computerisation programme.

Kojo Bentsi-Enchill, the tenth defence witness, testified that computerisation is a broad term that harbours computers generally. He said computerisation includes digitisation. But he conceded that the term computerisation cannot be used interchangeably with digitisation.

The accused person was recalled on two occasions on application by the defence. The first recall was to enable the accused person to tender the contract which he said he signed with Dr Boadu. The contract, exhibit 13, was signed by the accused on behalf of the Ministry of Finance, while Dr Boadu signed on behalf of LEEBDA. The court was not told where the contract was signed. There were no witnesses to the signing of the contract, only the accused person and Dr Boadu were present when the contract was signed. The second recall on the same day 27 November 2001 was to enable the accused to tender the CD Rom, exhibit 14, which was the subject of the contract. The defence then closed its case on 27 November 2001.

The general defence put up the accused person and his witnesses were that:

(a) The accused signed a contract with Dr Boadu for the production, dissemination of legal information system in Ghana, as evidenced by exhibit 13, a photocopy of the said contract.

(b) That in pursuance of that contract Dr Boadu prepared a

[p.444] of [2001-2002] 2 GLR 424

CD Rom, which contained all the laws of Ghana, all the decrees of Ghana, all the statutes of Ghana and all the Constitutions of Ghana.

(c) That the accused person has not made any false representations to any person, nor caused any financial loss to the state of Ghana.

Mr Quashie-Idun then addressed the court on behalf of the accused person. Surprisingly, his address to the court focused entirely on the particulars of offence contained in counts (1) and (2). He did not address the court on the evidence adduced by the prosecution in support of the charges. The prosecution called nine witnesses in all. Counsel did not make any evaluation of their testimony that will assist the court in determining their credibility or otherwise. Does it mean he accepts as credible the evidence they gave? His evaluation of their testimony would have assisted the court in determining their credibility or otherwise. Counsel submitted that the particulars of offence contained in counts (1) and (2) were defective for the following reasons.

(a) Since the victim of the offence was the Government of Ghana, the false representations must have been made to the government and not to Ecobank.

(b) Since the representation was made to Ecobank who had no proprietary rights in the amount transferred, no offence was committed, unless it could be shown that Ecobank could question the transfer or the instructions.

(c) There was no evidence that the consent of the government was obtained by fraud, which induced the government to part with the amount to its detriment.

(d) The consent was properly obtained to transfer the amount to Dr Boadu.

Counsel further submitted that the court computerisation was not properly established and that consultancy services were provided by Dr Boadu under exhibit 13. That the production of the CD Rom was the result of the contract, exhibit 13. Counsel submitted that since counts (3) and (4) depended on counts (1) and (2) the defect in the particulars of those counts affected counts (3) and (4) and therefore the accused should be acquitted on counts (5) and (6). Counsel submitted that there was no evidence that they were acting together, and that the two counts were effected by the defects in the particulars of counts (1) and (2). Counsel finally submitted that there has been no financial loss to the State, since the CD Rom had been produced. He maintained that the charges were recklessly and inelegantly framed, and the accused should

[p.445] of [2001-2002] 2 GLR 424 be acquitted.

The prosecution, represented by the Director of Public Prosecutions, Mr Sampong led by the Deputy Attorney-General, replied that there was no defect in the particulars and that under section 112 of Act 30 the prosecution is required to indicate the statement of offence, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge to the accused person. He submitted that the particulars in counts (1) and (2) do give such reasonable information of the nature of the charge to the accused person. He submitted that the accused made representation on exhibits A and C to Ecobank that LEEBDA had performed consultancy services. These representations were false, because the consultancy services for the legal reform had been provided by VMS. That as a result of these representations, the sum of US$1,297,500 had been paid to Dr Boadu for which he has not rendered any services. The Director of Public Prosecutions further submitted that there was evidence to support the charges contained in counts (3) and (4) and counts (5) and (6). That the evidence against the accused was overwhelming and he should be convicted. He submitted that the production of the CD Rom had nothing to do with the charges before the court and does not raise any defence worth considering.

In considering the case for the defence put forward by the accused person the law requires that the court shall apply the principles laid down in the classic case of R v Abisa Grunshie (1956) 1 WALR 36 and echoed in R v Ansere (1958) 3 WALR 385, down the years. The principle is that a court is not entitled to reject the defence of an accused person simply because it does not believe it. Even if the court does not believe the defence the court must still go further and consider whether the explanation being offered by the accused person is reasonably probable. It is only when the defence has been considered in this light, that the court could come to a conclusion as to the guilt or otherwise of the accused person. I shall therefore examine the defences put forward by the accused person in the light of the above principles before reaching a decision.

As I have already pointed out, in his address after the close of the case for the defence, counsel for the accused person, Mr Quashie-Idun, dwelt mainly on the defect contained in the particulars of offence for counts (1) and (2). Counsel did not make any submission on the evidence. He submitted that the particulars in count (1) and (2) were defective, and that the charges were “recklessly and inelegantly framed”, to quote his own words. For those reasons he submitted that the charges against the accused person should be dismissed.

[p.446] of [2001-2002] 2 GLR 424

Under article 19(2)(d) of the Constitution, 1992, the law requires that a person charged with a criminal offence shall be informed immediately in a language he understands and in detail of the nature of the offence. Then under section 112 of Act 30 it is provided as follows:

“112. Subject to the special rules as to indictments herein-after mentioned, every charge, complaint, summons, warrant, or other document laid, issued, or made for the purpose of or in connection with any proceedings before any Court for an offence, shall be sufficient if it contains a statement of the specific offence with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”

When we examine these two provisions of the law, we find that the mandatory requirement of the law is that the accused person should be given reasonable information about the charge he is to face. Thus when the statement of offence had been correctly laid and there is evidence to support the charge, a defect in the particulars of offence, does not render the charge incurably bad or one that is unknown to the law. So in Akowuah v Commissioner of Police [1963] 2 GLR 390 Apaloo I (as he then was) held as stated in holding (7) that:

“By reason of section 112 of the Criminal Procedure Code, 1960 (Act 30), failure to include the words ‘with intend to defraud’ in the particulars of an offence is not fatal as to vitiate a conviction. Particulars of an offence are not expected to set out all the ingredients of the offence, but rather to give an accused person reasonable information as to the legal nature of the charge. In this case the particulars of offence were sufficient as they gave the appellant reasonable information as to the nature of the charge.”

But this decision was overruled by the Supreme Court in 1964 in the case of Akowuah v Commissioner of Police [1964] GLR 475, SC on the grounds that the words “with intent to defraud” should have been contained in the particulars of offence. Then again in 1965 the Supreme Court affirmed the previous decision in the case of State v Boahene [1965] GLR 279, SC maintaining that it was imperative to have the words “with intent to defraud” in the particulars of offence. But in 1970 in the case of Andoh v The Republic (1970) CC 42, the Court of Appeal held that where a statement of offence has been properly stated but the particulars fail to contain any of the essential

[p.447] of [2001-2002] 2 GLR 424 ingredients of the offence, then it becomes a statement of offence with incomplete or defective particulars and not a bad indictment or one that is unknown to the law. The court also held that Akowuah and Boahene cases (supra) decided by the Supreme Court in 1964 and 1965 respectively were decided per incuriam.

To put the matter beyond dispute, it was enacted in section 26(12) and (14)(b) of Act 372 as follows:

“(12) . . . Provided that the said Court shall notwithstanding anything to the contrary in this subsection dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment . . .

(b) where a person is charged with an offence such as defrauding by false pretences or forgery and the particulars of the offence in the charge or indictment omit to allege an intent to defraud or any other intent forming part of the offence but evidence is led of such intent, an appeal based only on the omission in the charge or indictment shall be dismissed.”

This provision in Act 372 has been repealed almost verbatim in the new Courts Act, 1993, (Act 459), 31(2) and (3)(b).

The position of the law therefore is that where the statement of offence is correctly laid, and there is evidence to support the charge, a defect in the particulars of offence does not render the charge incurably bad.

So, Francois I (as he then was) held in the case of Datsa v The Republic [1971] 1 GLR 418 that where no charge is disclosed and the evidence does not show that any crime has been committed, the conviction must be quashed. Then in the case of Osei v The Republic [1971] 1 GLR 449, Hayfron-Benjamin J (as he then was) held that article 20(2)(c) of the Constitution, 1969 (this is similar to article 19(2)(d) of the Constitution, 1992) confers a right on a suspect to be informed in detail of the charge that is brought against him. A failure to set the charges in detail is fatal and cannot be cured by the evidence.

In Darkurugu v The Republic [1989-90] 1 GLR 308, Benin J (as he then was) held that on account of section 26(14)(b) (which is equivalent to section 31(2) and 3(b) of Act 459), the mere omission of the words, “with intent to defraud” in the particulars of the charge of [p.448] of [2001-2002] 2 GLR 424 fraud by false pretences would not per se render the charge bad, so long as evidence was led to prove the requisite intent or the facts presented by the prosecution disclosed the requisite intent. Again in Kungua v The Republic [1984-86] 2 GLR 489 Adjabeng J (as he then was) held that it would seem that defective particulars in a charge might not automatically render that charge incurably bad, especially where the statement of offence was correctly laid out and where the evidence adduced had cured the defect in the particulars charged.

In the light of the statutory provisions, ie Act 459, and the Constitution, 1992 and in the light of the decided cases, let us examine the particulars of courts (1) and (2) to see whether the particulars give the accused person reasonable information of the charge he is to face and whether there is evidence to support the charge:

“Statement of offence:

Defrauding by False Pretences Contrary to section 131 of the Criminal Code, 1960 (Act 29). PARTICULARS OF OFFENCE:

Victor Selormey on or about 8 December 1998 at Accra in the Greater Accra Region and within the jurisdiction of this court, obtained the consent of the government to a payment to Dr Boadu, by making a representation to the Managing Director of Ecobank that consultancy services have been provided under the Court Computerisation Project by Dr Boadu and so payment of US$432,500 was made to Dr Boadu, which representation, you knew to be false.”

The question is, do the particulars in the charge give the accused person reasonable information about the offence he is alleged to have committed? It is my considered opinion that the particulars contained in the above charge give the accused person reasonable information about the offence he is alleged to have committed. Since there is a statement of offence and there is evidence to support the charge, I hold that the charge is not incurably bad, and the charges will not be dismissed. There is evidence before the court that Ecobank holds funds on behalf of the Government of Ghana. There is also evidence that the accused as Deputy Minister of Finance has authority to authorise Ecobank to make payments to deserving persons. There is also evidence that the accused made a representation to Ecobank that Dr Boadu had provided consultancy services for which the bank should pay him the sum of US$432,500. This representation was false

[p.449] of [2001-2002] 2 GLR 424 because Dr Boadu did not provide any consultancy services. The defect in the particulars had been cured by the evidence, and the accused person has been given reasonable information about the charges he was going to face.

The Contract

One of the issues which this court must resolve is whether or not there was a contract between the Ministry of Finance and LEEBDA represented by Dr Boadu. This issue can be resolved by considering the evidence that has been adduced before the court. The prosecution led evidence to show that a committee was set up specifically to deal with the legal sector reform. This committee was made up of the former Attorney-General, Dr Obed Asamoah, Mr Martin Amidu, former Deputy Attorney-General, Mr Sam Okudzeto, Mr Ben Kumah, Mr S Y Bimpong-Buta, Director of Ghana Law School, Mr Ansa-Asare, Mr B J Acromond, Mr Paul Asomani, Mr Kafui Senaya, Nana Nsaful and Mrs Owiredu Gyampoh. The Ministry of Justice was the implementing agency, charged with the responsibility of overseeing the production, dissemination of legal information including courtroom recording. There was also evidence before the court that consultancy services contract for the Legal Reform Project was awarded to VMS. The procedure for the payment after the contract performance was that bills would be submitted to the co-ordinating committee. The committee would then discuss the report and if the output was accepted, the committee would then approve the bills. The bills and a covering letter would then be sent to the project management committee at the Ministry of Finance for payment. There was also evidence before the court that LEEBDA was awarded a consultancy contract, but the corporation wanted to supply the equipment as well and so the contract was not executed. This was not permitted and the corporation therefore withdrew. Exhibits 1, 2, 3, 4, and 5 refer to this evidence. Thus no contract was awarded to LEEBDA by the committee charged with implementing the Legal Sector Reform Project, nor was any payment recommended to LEEBDA by the committee because LEEBDA had not executed any contract.

The accused person on the other hand testified that there was a contract between LEEBDA and the Ministry of Finance while Dr Boadu signed for LEEBDA. That there were no witnesses present, only the two of them. The contract document itself could not be produced before the court at the beginning of the trial because no copy could be found at the Ministry of Finance, although the accused said he left the contract at the ministry when he left office. At the latter end of

[p.450] of [2001-2002] 2 GLR 424 the trial, the accused person tendered a photocopy of the said contract as exhibit 13. The question is, was there a contract or not? In view of the evidence adduced before the court, it is my considered opinion that there was no contract between the Ministry of Finance and LEEBDA and that the contract document, exhibit 13, tendered by the accused is self serving, calculated to throw dust into the eyes of the court. This finding is supported by the following evidence before the court:

(1) The Minister of Finance, Mr Kwame Peprah, in his evidence before the court said he had never seen the contract document.

(2) Hon Mr Abodakpi who said he was to co-sign the contract but could not, because he was out of the country, said he had not seen the contract.

(3) The legal officer for the Ministry of Finance whose schedule it is to prepare legal documents and contracts testified that he had never seen any contract between the ministry and LEEBDA.

(4) None of the members of the committee charged with the Legal Sector Reform Project has seen this contract.

(5) The Ministry of Justice, which is the implementing agency for the whole Legal Sector Reform Programme, is not aware of any contract between the Ministry of Finance and LEEBDA.

(6) The judiciary, which is supposed to be the beneficiary of the whole Legal Sector Reform Project is not aware of any contract between LEEBDA and the Ministry of Finance.

(7) The two letters, exhibits A and C, written by the accused to Ecobank, authoring the payment of US$1,297,500 to Dr Boadu, do not bear any reference numbers to any file, an indication that no file has been opened for any transaction.

(8) Again the two letters, exhibits A and C, authorising payments to Dr Boadu amounting to US$1,297,500 were never copied to the Auditor-General or Accountant-General, but were copied to the President, LEEBDA Corporation, Texas.

(9) The two payments on exhibits A and C were for consultancy services provided under the court computerisation project, production and dissemination of legal information system. There was no mention of the production of a CD Rom or digitisation programme.

(10) There is evidence before the court that consultancy services are different from the supply of equipment and the

[p.451] of [2001-2002] 2 GLR 424 payments on exhibits A and C were for services and not for the supply of CD Rom.

At this stage, I have to refer to exhibit 6, which was tendered by the accused person. This is a document tendered by the accused person himself, which must be referred to. Exhibit 6 is an audit report on the Trade and Investment Programme accounts for the period 1997 to March 2001. This is an audit report prepared by a private company in response to a request by the Office of the President to audit the transfer of funds from the TIP Accounts managed by selected banks participating in the disbursement of TIP funds to non-traditional exports. On pages 5 to 9 the report says:

“We noticed that two separate payments (US$432,500 and US$865,000) totalling US$1,297,500 had been transferred to Dr Frederick Owusu Boadu in the USA for consultancy services provided under the court computerisation project.

Our examination of available documentary evidence and interviews with the World Bank Desk Officer, Ministry of Finance revealed the following:

(a) There was no contract for any services under the court computerization project between the Ministry of Justice and Messrs LEEBDA.

(b) LEEBDA initially rendered for and was awarded the contract for providing consultancy services on the court computerization project. However, LEEBDA was also interested in implementing legal information system in Ghana as evidenced by .a proposal dated 15 November 2000 addressed to Nana Nsaful, Chief Director of the Ministry of Justice. As the two projects were mutually exclusive and against World Bank procedures, Dr Frederick Boadu pulled out of the court computerisation project and opted to implement the legal information system in Ghana which is yet to commence. In fact a contract for dissemination of legal information system has been drafted between the Ministry of Justice and Messrs LEEBDA, dated February 2001 but has not been signed.

(c) The contract sum in the unsigned contract document for the dissemination of legal information system in Ghana between the Ministry of Justice and Messrs LEEBDA was only US$70,000. The sum of

US$1,297,500 paid to LEEBDA far exceeds what he proposed in the unsigned contract.

[p.452] of [2001-2002] 2 GLR 424

(d) There was no performance of service to warrant the transfer of money to the corporation for the two projects.

(e) LEEBDA has not performed any service under the court computerization programme.

(f) We could not sight any contract between the Ministry of Justice and Messrs LEEBDA under the court computerisation project.

(g) We did not sight any invoice or receipt from the consultant to indicate payment for the services provided Procurement of services does not seem to be adequately streamlined.

(h) There was no evidence of prudent public procurement processes and procedures being followed.

(i) It is interesting to note that for most payments authorised by the Deputy Minister of Finance, the Auditor-General was copied. However, for payments made under the court computerization project the Auditor-General was not copied. Neither was any other public official copied.

(j) Under the Ghana Income Tax Law, every person who is responsible for paying money to any person for services provided or similar payment shall deduct tax at the rate of 5 per cent from such payment, and pay the amount deducted forthwith to the Commissioner. The full contract sum was transferred to Dr Fred Boadu’s First American Bank Account in the USA without deducting the 5 per cent withholding tax.”

Looking at exhibit 6, in addition to the evidence that had been produced before the court, I came to the conclusion that there was no contract.

For these reasons I find that there was no contract whatsoever between the Ministry of Finance and LEEBDA for the provision of any services.

The contract, exhibit 13, and the CD Rom, exhibit 14, tendered by the accused person are self-serving, calculated to mislead the court.

FRAUD BY FALSE PRETENCES.

Another matter that must be resolved is whether the accused made any false representation and whether these false representations resulted in the bank transferring government moneys to Dr Boadu in Texas.

The second prosecution witness, Paul Akaba, the Ecobank representative told the court that the accused person wrote exhibit A on

[p.453] of [2001-2002] 2 GLR 424

27 November 1998 to the bank, authorising the bank to transfer the sum of $432,500 to LEEBDA, attention Dr Boadu in Texas, being 30 per cent payment for a court computerisation of legal information system in support of the private sector in Ghana. But the third prosecution witness, the former Chief Director of the Ministry of Justice, testified before the court that the committee which was charged with the responsibility for the production and dissemination of legal information including courtroom recording had already awarded a contract to VMS International and the contract had been executed and the company paid the sum of $169,554 as evidenced by exhibits J and K. Therefore the representation made on exhibit A for the payment of $432,500 to LEEBDA, attention Dr Boadu was false. Similarly the representation made on exhibit C for the payment of $865,000 to LEEBDA, attention Dr Boadu, being the second and final payment for consultancy services provided under the court computerisation project production and dissemination of legal information system in support of the private sector in Ghana, was also false, because the consultancy services for the project had been awarded and executed by VMS as evidenced by exhibits J and K. As a result of these false representations, the sums of $432,500 and $865,000 were paid to LEEBDA, attention Dr Frederick Boadu in Texas, USA.

The charge contained in counts (3) and (4) being conspiracy to cause financial loss to the State is founded on the same facts as the charges contained in courts (1) and (2).

Therefore once the charge in counts (1) and (2) have been proved, there is sufficient evidence to sustain the charges in counts (3) and (4). There is clear evidence that the accused and Dr Boadu were acting together. It is sufficient to note that only the two of them signed the contract, exhibit 13, with no witnesses present and only the two of them appeared to have seen this contract, a contract worth $1,297,500.

The charge contained in counts (5) and (6) being causing financial loss to the State is also founded on the same facts as the charges in counts (1) and (2). Since no services were rendered by Dr Boadu to warrant the payment of $1,297,500 to him, this has caused a financial loss to the State.

What is the response of the accused person to all these six charges? His defence is that he and Dr Boadu signed a contract for the production of a CD Rom, which has been delivered in exhibit 14. But exhibit 7 tendered by the defence themselves which is a letter written by Messrs Bram Larbie, Beecham & Co, solicitors for Dr Boadu in May 2001 reads in some paragraphs as follows:

“The Law Reform Group in the Attorney-General’s office

[p.454] of [2001-2002] 2 GLR 424 objected to the purchase of the computers by LEEBDA. Our client therefore offered to give them the computers specifications, invoice, etc and have them buy the same and deliver to our client for the installation of the software on them. The group also rejected this. This is the point where the parties got stalled and could not arrive at any meaningful solution.”

This paragraph is self-explanatory and shows that there has been no contract between LEEBDA and the Attorney-General’s Office as at May 2001. Why then did the accused write or represent in exhibits A and C that LEEBDA had provided consultancy services for which it had been paid $1,297,500? The last paragraph of exhibit 7 is even more revealing. It reads:

“We have our client’s instructions to propose that once the ministry has procured the computers or made them available , he would load the software on them and deliver all the copies of CDs contracted to be delivered to the ministry.”

So as at May 2001 Dr Boadu had not delivered the CDs contracted to be delivered to the ministry and yet as far back as February 1999, he has received the sum of $1,297,500 being full payment for consultancy services. It is clear from exhibit 7 that there has been no contract between LEEBDA and the Ministry of Finance. If there was any such contract, it would have spelt out the details as to who should provide what. There would have been no dispute as to who should provide computers. It must be pointed out that the charge against the accused person was that he had made two false representations to Ecobank that Dr Boadu had provided consultancy services for the court computerisation programme and that he had been paid the sum of $1,297,500, when he had done no such work.

The first question then is: “Did the accused person make any such representation?” The answer is yes, he made these two representations on exhibits A and C. The question is: “Was the representation false?” The answer is yes, the representation was false because Dr Boadu has not provided any such services. The consultancy services was provided by VMS. The question is “Was money paid to Dr Boadu as a result of these false representations?” The answer is yes, the sum of $1,297,500 was paid to Dr Boadu as a result of these representations. So what was the purpose of the production of the contract, exhibit 13, and the CD Rom, exhibit 14? Their production before the court did not provide an answer to the charge of false representation brought against the accused person, because consultancy services has nothing to do with CD Rom.

[p.455] of [2001-2002] 2 GLR 424

The first plaintiff witness, Kafui Senaya, Principal Economic Officer at the Ministry of Finance, told the court that consultancy services involves a study in the Production and Dissemination of Legal information including electronic courtroom recording and the submission of a report . After every consultancy services, a report is produced. The accused person has not produced any report submitted by Dr Boadu in respect of any consultancy services. The CD Rom is not a consultancy services. The defence offered by the accused person does not answer the charges brought against him nor does it raise any reasonable doubt, which should inure to his benefit. The explanation he offered is not reasonable probable. I find as a matter of fact that the accused made two written representations on Exhibits A and C, that these representations were false and that the sum of $1,297,500 was paid to Dr Boadu as result of these false representations. I therefore find the accused person guilty on all the six counts. I find the charges proved beyond reasonable doubt and I convict him on all the counts accordingly.

In passing sentence the court must always have in focus the four classical principles underlining sentencing and to apply them to the facts of the case, bearing in mind which of them has the greatest importance with regards to the case before the court.

The four principles are: (1) retribution; (2) deterrence; (3) prevention; and (4) rehabilitation. In the case of Kwashie v The Republic [1971] 1 GLR 488 at 493, CA the Court of Appeal held that in determining the length of the sentence the factors which the trial judge is entitled to consider are:

“(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) Mitigating or aggravating circumstances such as extreme youth, the health, the good character and the violent manner in which the offence was committed.”

In R v Blake [1962] 2 QB 377 at 381, CCA, Hilbery J, delivering the judgment of the court in which an appeal against a maximum sentence had been dismissed said: “It has been said, rightly, that in passing sentence a judge has to consider the offence and the offender, but he has also to consider the interest of society.”

Thus, though there is no scientific scale by which punishment is

[p.456] of [2001-2002] 2 GLR 424 measured a sentence must be imposed to fit the offender and at the same time to fit the crime. The amount involved in this case is $1,297,500. It is a very substantial amount by any currency. It comes to over ¢9 billion at the bank rate. Therefore, the punishment must be severe to act as a deterrent to others. At the same time the court must take into consideration the health of the accused person. It is not the desire of the court to destroy the accused person. But he could have taken advantage of section 5 of Act 459 and avoided going to prison by admitting and then paying reparation. Considering his condition, having a pace maker in his heart, it is likely that a long term of imprisonment will jeopardise his health. Yet the court is bound to impose a sentence to mark the disapproval of society to such a conduct. After a very serious consideration, the court shall impose the following sentences: for count (1), the sentence shall be four years imprisonment in hard labour; for count (2) the sentence shall be four years imprisonment in hard labour. Both sentences shall run consecutively so the accused shall serve a total of eight years for counts (1) and (2). For count (3) the sentence shall be a fine of ¢10 million. For count (4) the sentence shall be a fine of ¢10 million. Both fines shall run concurrently so the accused shall pay a total fine of ¢10 million or in default 12 months imprisonment in hard labour. For count (5), the sentence shall be a fine of ¢10 million. For count (6) the sentence shall be a fine ¢10 million. Both fines shall be concurrent so the accused shall pay a total fine of ¢10 million for counts (5) and (6) or in default twelve months imprisonment in hard labour. In addition the accused person, Victor Selormey and Dr Fredrick Owusu Boadu, shall jointly and severally refund to the Republic the sum of $1,297,500 being the total amount transferred to Dr Boadu under false pretences.

This order is made under the powers conferred on the court by section 147A of Act 30. It shall be deemed to be an exercise of the civil jurisdiction of the court in an action between the State as plaintiff and Victor Selormey and Dr Frederick Owusu Boadu as defendants and it shall be enforceable in the same manner and subject to the like appeal as ordered for the return of money.

Accused convicted.

F G A