Lawyer Nutifafa Nutsukpi, counsel for the second and third accused persons in the ongoing trial of Dr Stephen Opuni, former COCOBOD CEO and Seidu Agongo, businessman, says Yaw Osafo-Maafo, the former Senior Minister directed the Criminal Investigations Department (CID) of the Ghana Police Service to take over the investigation because he was displeased about the investigations being done by the Economic and Organised Crime Office (EOCO).

He explained that the former Senior Minister in his quest to get the accused persons prosecuted brought in the CID because the investigations by EOCO did not implicate the accused.

At the final cross-examination of Chief Inspector Thomas Prempeh Mercer, the investigator who doubles as the seventh prosecution witness, Lawyer Nutifafa Nutsukpi indicated that the former Senior Minister did everything within his power to get the former COCOBOD boss and two others prosecuted even though the facts available in the case did not support his cause.

“I put it to you finally that when EOCO concluded their investigations, they had no basis to charge A2 and A3 and this displeased Mr. Osafo Maafo that is why you were brought in to charge and prosecute at all cost,” Lawyer Nutifafa Nutsukpi told witness Mercer.

The witness responded, “My Lord, so far as this investigation is concerned. EOCO had not completed its investigations. And My Lord, it had to take additional work through myself, the Unit Commander and other team members whom I can describe as crack investigators to unravel the mystery behind the investigation of Lithovit foliar fertilizer.”

The lawyer pushed further, “Sir, I put it to you that the only additional work your team did was to fill in the blank statement forms that you had received as part of the docket from EOCO.”

Chief Inspector Mercer countered, “My Lord, that is not correct.”

Dr. Stephen Opuni and Seidu Agongo are facing 27 charges including willfully causing financial loss to the state and contravention of the Public Procurement Act.

They have both pleaded not guilty to the charges and each is on a GH¢300,000 self-recognizance bail.

The prosecution closed the state’s case against the accused persons after counsel for the second and third accused persons ended cross-examination of the seventh prosecution witness, Chief Inspector Thomas Prempeh Mercer.

Read below excerpts of the cross-examination.

Q: Now the mixture you saw at the warehouse was not tested by you as part of this investigation?

A: Yes, My Lord (sic).

Q: Sir, you told this court on the 22nd of March, that all statements in this matter were taken at EOCO, Is that correct?

A: My Lord, that can never be so, I have never said so.

Q: Please show him Exhibits 6, 67 and 74. Sir, what is the date on Exhibit 6?

A: The date on Exhibit 6 is 6 April 2017.

Q: Now by the dates on Exhibits 6, 67 and 74, the FFU had not assumed investigation in this matter. I am putting that to you.

A: That is so My Lord. My Lord, when the Police take over a docket from a station as we have been doing at the CID Headquarters and the Regional Capitals, we own the docket so for instance Exhibit 6 written by Dr. Alfred Arthur a witness. In this case, Exhibit 74 and Exhibit 67 were all obtained at EOCO. But the investigators did not write the station and the unit those portions were blank. So when we take over the docket we are sending it to AG for advice we fill in those columns by writing the name of the station [before] sending it.

Q: Now, please look at Exhibits 71, 72 and 73 by their dates FFU purportedly took over the investigation into this matter. That is correct?

A: 12th of July, 2017 is the day FFU commenced investigation into this case. My Lord, the reason why we have 29th of August, 2017 and 30th of August, 2017 is that EOCO had already had an engagement with the scientists whose only two genuine scientific reports is in evidence had not given statements at the time EOCO was submitting the docket to the CID. So, My Lord, they were asked to follow up and obtain a statement from the scientists. My Lord, that is why we have August on the statement form when in fact EOCO had ceased investigation into this case.

Q: Sir, when you took over investigations EOCO had already had engagements with the staff of Cocobod and the Scientists at CRIG. Is that correct?

A: Yes, My Lord.

Q: But you took further statements from the Scientists that EOCO had had previous engagements with, that is correct?

A: Yes, my Lord.

Q: Similarly, you took statements from the staff of Cocobod that EOCO had had previous engagements with that is also correct?

A: Yes, My Lord.

Q: I am putting it to you that EOCO having had prior engagements with the staff of GSA is not the reason that EOCO continued to be involved in the investigation even after the FFU allegedly took over?

A: My Lord, that is not so. Experts will only give their opinion after the exact work they are asked to do is over.

Q: Sir, you took a statement from Dr. Anim Kwapong that is Exhibit 58?

A: Yes, My Lord.

Q: In his capacity as former Executive Director of CRIG?

A: Yes, My Lord.

Q: And in Exhibit 58 he deliberately wrote his statement under various headings. That is correct?

A: Yes, My Lord.

Q: That covers chemicals and machine testing and issuance of certificates at CRIG. Is that correct?

A: Yes, my Lord

Q: And they included the renewal of certificates at CRIG?

A: Yes, My Lord.

Q: And it ended with the role of the Executive Director of CRIG. That is also, correct?

A: Yes, My Lord.

Q: Sir, I am putting it to you that nowhere in Exhibit 58 did the former Executive Director of CRIG who was writing on the testing of chemicals and machines at CRIG mention a two- or three-year testing period.

A: My Lord, that is not so. My Lord, the testing period has always been between two and three years. And My Lord, CRIG had issued a press release in 2013 in the Daily Graphic.

Q: I am putting it to you that CRIG issued no such press release.

A: My Lord, that is not correct.

Q: And I put it to you finally that when EOCO concluded their investigations, they had no basis to charge A2 and A3 and this displeased Mr. Osafo Maafo that is why you were brought in to charge and prosecute at all cost?

A: My Lord, so far as this investigation is concerned, EOCO had not completed its investigations. And My Lord, it had to take additional work through myself, the Unit Commander and other team members who I can describe as crack investigators to unravel the mystery behind the investigation of Lithovit foliar fertilizer.

Q: Sir, I put it to you that the only additional work your team did was to fill in the blank statement forms that you had received as part of the docket from EOCO?

A: My Lord, that is not correct.

By the Court: Any re-examination?

Prosecution: Chief Inspector Prempeh, you told this court under cross-examination that as part of your investigations, you took statements from two farmers on the use of Lithovit liquid fertilizer on the cocoa plant, one of the statements was tendered as Exhibit 69. The other statement is that of Nana Obeng Akrofi which you already answered a number of questions on. Now take a look at this statement and indicate to the court if this is the statement and answered questions under cross-examination. Is it the statement?

A: Yes, My Lord.

Lawyer Nutifafa: Respectfully My Lord, I refer to Section 73 from the Evidence Act which provides the scope of re-examination. Respectfully, My Lord, it is not being suggested that this statement just came into the possession of the Prosecution. My Lord, this statement is not a new matter. The questions asked about the farmer's statement admitted of no ambiguity at least the Prosecution pointed to none which they are seeking to address by tendering this statement. Prosecution proceeds as though it is a matter of right to tender document that has always been in their keeping after cross-examination. My Lord, it is our humble submission that the honourable court ought to frown on that approach as a breach of Section 73 of NRCD 323.

Prosecution: My Lord, I still rely on Section 73 (2) of NRCD 323 to affirm the position that a proper foundation has been laid for re-examination in respect of this statement. My Lord, if I may read, (counsel reads). My Lord. this is an entirely new matter that did not come up in the evidence-in-chief of the witness but only came up under cross-examination. And My Lord, under Section 73 (2) such new matters raised under cross-examination which creates ambiguity must be re¬-examined. My Lord, it is on record that Counsel for the 2nd and 3rd Accused asked questions on this particular statement and My Lord. even went into the content of this statement which is not in evidence. My Lord, clearly this then is a statement which must be admitted into evidence to give the court the opportunity to have a look at it and be able to make a finding on it. My Lord, it is a proper ground for re¬-examination and must be allowed.

By Court: Upon hearing the DPP and Counsel for the 2nd and 3rd Accused persons in their arguments for and against the submissions, it is on record that Counsel for the 2nd and 3rd Accused persons cross-examined the PW7 on a statement that was not in evidence. Now there is no doubt that re-examination is all about a situation where ambiguity rises and this is governed by Section 73 of NRCD 323. A reading of Section 73 (2), reveals that on the first part of this subsection the rule requires the court discretion for re-examination. However, a perusal of the second part of the same subsection 73 (2) did not require the leave of the court and that any new matter raised in cross-examination could be a subject matter of re-examination. A perusal of the cross-examination by Counsel for 2nd and 3rd Accused persons leaves no doubt in my mind and in the interest of substantial justice the application to tender the statement ought to be allowed. Indeed, the tendering of this statement will clear the air surrounding the cross-examination on this statement. Consequently, I will allow the application to tender the statement in re-examination, so the statement is tendered admitted and marked as Exhibit PP.

By Court: Chief Inspector Prempeh you are discharged.

Prosecution: My Lord. the Prosecution at this stage closes its case against the accused persons.

Lawyer Cudjoe (Counsel for Dr. Opuni): My Lord, we will like to make a submission of no case against 1st Accused.

Lawyer Nutifafa: My Lord, we also have our clients’ instructions to make a similar application to the honourable court on behalf of A2 and A3, we will abide by the guidance that the court will provide.

By Court: Under Section 173 of the Criminal Offences Procedure Act, (Act 30) I am required to decide whether the accused persons have a case to answer. However, with Counsel having decided to submit a no case to answer, I will defer my ruling. In the circumstances, Counsel for the 1st accused and that of the 2nd and 3rd accused persons are to file their written submissions by three weeks that is 19 April 2021. Upon service of the written submissions of Counsel for the 1st and 2nd and 3rd Accused persons on the DPP, the DPP should file their written submissions within two weeks upon service of the submissions on her that is 3 May 2021.

The case is adjourned to 6 May 2021.