IN THE SUPERTOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA-GHANA

CORAM: oFoE,J.A
KORBTEH,J.A
MENSAH,J.A
surT No.H2l 17 lL5
( ,
lOth March 2016

\
\.,'

THE REPUBLIC ... APPELLANT

IfRS

ALFRED AGBESI WOYOME.....RESPONDENT

JUDGMENT

OFOE.J.A:

These are the facts of the case as presented by the prosecution.

Sometime in January 2005, the Government of Ghana invited bids
for the rehabilitation of the Accra (Ohene Djan) and Kumasi (Baba
Yara) Sports stadia and the construction of two more stadia in
 T--

process, a
Sekondi-Takoradi and Tamale. At the end of the bidding
submit
number of companies were short listed and invited to
proposals for the rehabilitation and Constmction of the stadia'

Among these companies was M-Powapak Gmb/vamed trngineering

Finance
Gmbh & Co., KG. At the end of the evaluation process, the
and Evaluation committee declared the financial proposals of M-

powapak/Vamed Engineering as the most responsive and

the
recommended them to the central Tender Review Board. Before
approval could be communicated to the companies, however,
the i
of Ghana terminated the process. Meanwhile, in the
Government
its
course of the tender process, Vamed Engineering had assigned
rights and responsibilities to waterville Holding (BVI) Ltd.

After the termination of the tendering process, waterville, assuming

termination
the place of Vamed engineering, protested against the
it to
and got the Government of Ghana to enter into an MOU with
works on the Accra and trl-wak stadia'
commence rehabilitation
required
The MOU which was signed. on the 30th November, 2O05,
of the
Waterville to engineer the funding for the project on behalf
of Ghana from Bank Austria creditanstalt AG,
Government
guaranteed by the World Bank's Multilateral Investment Guarantee
bridge
A,gency (MIGA). The company was a19o s,YpPosed to arrange
by
financing. Subsequent to the MOU, Waterville was autLlonzed
the site
the Ministry of trducation and Sports (MOES) to move to
and start work pending the signing of a formal contract'
 \

On 19th December, 2OO5, Waterville engaged M-Powapak, led by the

accused Alfred Agbesi Woyome to provide it with financial

engineering services in respect of the projects. A formal contract

for the rehabilitation of the Accra (Ohene Djan) and (trl-wak) stadia
was entered into by the Government of Ghana and Waterville

Holdings (BVI) limited on the 26th Aprll, 2006. However, before the
contract could become effective, the Government of Ghana

terminated same due to Waterville's inability to engineer funding for

the project among others, as contained in the MOU and which
formed a condition precedent to the contract. Waterville, who

initially protested against the termination, eventually accepted

same and proceeded to claim monies for the initial works done

under the MOU. The Government of Ghana paid a substantial

amount of Waterville's claims out of which the company fully paid

M-powapak represented by the accused, for the financial

engineering services rendered under the contact. Payment of the

accused for his services was duly acknowledged by him in a

termination agreement dated 25th November, 2006 which brought

the relationship between the two to an end.

In August, 2OO9 however, the accused person having received all

monies due him under the financial engineering services rendered
to Waterville, took advantage of the change in Government and

falsely represented to Government Officials that the Government

owed him money for financial engineering services rendered to it

under the contract with Waterwilie.
 \

In his claim to Government Officials. the accused who had no

contract whatsoever with the Government, claimed that, as part of
the financial engineering services rendered, he had managed to
r,t
l
arrange total amount of 1,106, 47O,587.00 for the Government of i
:
Ghana through the Bank Austria Credtanstalk, out of which :
a

amount he claimed he was entitled to 2o/oas financial engineering t;

fees.

Investigations however revealed that, there were no such funds

made available for the benefit of the country by Bank Austria as
claimed by the accused. Investigations further revealed that, the
accused had no contract whatsoever with the Government to
provide ar,'y serwices. That the only arrangement on financial
engineering services he had was with Waterville Holdings Ltd. which
services had been fully paid for and acknowledged by him in a
termination agreement. Meanwhile, based on these fraudulent
misrepresentations, the accused got the Government of Ghana to
pay him a total of GH05t,283,480.59, thereby willfully and
fraudulently causing huge financial losses to the State.

On the basis of these facts the accused, now the respondent, was
charged with two offences of defrauding by false pretences contrary
to seetion 132 -ef{he Criminal ffences Act and Causing Financial
Loss to the state, contrary to section 179 A of the same Act. The
particulars of the offence of defrauding by faise pretences read:

UALFKED AGBESI WAYOME. businessrn,o'rr in or abaut

Febntarg 2O7O, with intent to defraud made a false
 r

representation to goaernrnent ofJicials that the

goaernment of Ghana owed gou 2217291471.74 being
2% of the qntount of 7,7061470,587.00 as financial
engineering fees gou were charging on the amount gou
had raised frorn Bank Austria Creditqnsto.lk uthich
representqtion gou knew to be false and based on which
the Ministry of Finance authorized the pagment of a total
annount of GH C5 7,2 83,480. 5E' .

That for causing financial loss to the state reads:

uAlfred Agbesi Wogorne, businessfita;rt, between the rnonth

of Septentber, 2O7O and September 2O77 through Uour
fraudulent action the state incurred a Jinancio'l loss o.,f
GHC57, 2893, 480.59".

It is worth mentioning that the respondent does not agree to the

facts as presented by the prosecution. Since the facts as narrated
by the prosecution does not determine the case, I will not belabour
this point.

The charges and the particulars of offences as mentioned above call

for consideration, primarily, the following sections of the Criminal
Offences Act, Ac"t. 29 which I detail out in this opinion for our
guidance.

Section 732.

" A person defrauds bg fatse pretenees if, bg means of a

fatse pretenee or bg persoftqtion that person sbtsins

 \

the consent of another person to part uith or transfer

the ownership of a thing".

t
;
S e c t i o n1 3 3 ( 1 )
!

"A false pretence is a representqtion of the existence of a 3

state of facts made bg a. person either with the
knowledge that such representqtion is false or without
the belief that it is tt'ue and mqde utith an intention to
defraud".

Section 7794 (3) prouides as follows:

"A person cornrnits q. critninal offence through whose

wilful, rno,licious or fraudulent action or ontission -

(a)The Repubtic incurs a ftnancial loss...

The law in respect of defrauding by false pretence, even though has

been given copious judicial consideration by our law courts, still
present a daunting task for practitioners and operators of the
criminal law as and when new facts call for its application. Some
cases that have considered this offence are Commisioner of Police
vrs Mutari(19601 GLR zOL, Rabbles vrs The State lL964l
GLRS8O, Akowua vrs The Republic (1964}GLR 475, Rep. vrs
Selormey(z0O L-2AA2\2 GLR 424.
 him
The trial judge after going through the evidence placed before
false
found the respondent not guilty of the offence of defrauding by
pretences and acquitted him accordingly. He did likewise in respect
of the offence of causing financial loss to the state. we would
und.erstand. and assess the trial judge's conclusion better if we

acquaint ourselves, even if in brief, with the evidence that was

placed before him.

was Mangowa Ghanney' She

The first witness of the prosecution
the
told the court that somewhere around March 20 1O a letter from
the
Attorney General's department was referred to her by her boss,
Minister of Finance, Kwabena Duffour for payment of 2oh of a

settlement amount of 22rntllton Euros to the respondent. The letter,

the
exhibit 2, gave justification for the payment. Somewhere along
line the order to pay was withdrawn by the Minister of Finance

because the Treasury has raised issue as to who the payment

Not
should be mad.e to. was it to Austro Invest or the respondent?
long after there was a letter from the AG asking that the ministry
judgment the
pay an amount of GH041,81L,48O.59 arising out of a
respondent had got on the 24th of May 2OlO from the High Court
concerning the earlier payment that was queried. This amount was
processed and was eventually paid to the respondent

who
The next witness of the prosecution was Mr. Yaw Osafo Maafo,
and
was at the time of the instant case the Minister for trducation
to
Sports and therefore had a lot to do with cAN 2008. He narrated
the court the tendering processes for the construction of the Stadia
for the tournament and who won the bid. The tender was won by
Vamed led by the respondent. It was through this tender processes
that he got to know the respondent. Witness told the court that the
financial and technical committees which worked on the tender

recommended Vamed and M Powapak as the most responsive and

their documentation was sent to the Central Tender Review Board

and given concurrent approval. This tendering process was however

truncated by cabinet on the grounds that the government finances

cannot meet the cost and the financial proposals supporting the bid
process was not satisfactory. Witness held the view that at the point
where cabinet had to terminate the tendering process there was no
contract with Vamed/Waterville/ M Powapak. After the termination

the state had to go through the steps dictated by the Procurement

Act to sole source for the construction of the Stadia. He told the

corrrt Waterville did not orgar\ze the funding for the construction

and no funds carne into Ghana from the accused or any of his
companies or any company. Witness however admitted there was a
Letter of Support from Bank Austria which formed part of the

financial proposals of M powapak/Vamed and that his trntity

Tender Committee and the Central Tender Board approved

Vamed/ M Powapak for the job. Asked whether he knew the

respondent, witness*answered in the affirmatiVe. He told the Couit

the respondent was involved in building hospitals with Austrian

firms and" therefore dealt with him between the years 2001 to 2005.
In 2001 when his government came to power respondent's firm was
constructing hospitals at Sogakope, Begoro and Bualu Gushiegu.

&
;*
E

*
 with the respondent to Astria
one of the reasons he had to travel
Bank Austria that the change of
was to assure the respondent and
the hospital projects' After the
government was not going to affect
terminationofthetenderingprocess,accordingtowitness,
to the signing of an MOU on
waterville raised an objection leading
the government of Ghana and
the 3Oth of November 2oo5 between
waterville for the funding design and construction of the ohene

DjanSportsStadium.AnotherMoUwassignedforthe
The funding arrangements
rehabilitation of the Baba Yara stadium'
and the construction by Consar
were to be organized by Waterville
ineffective because waterville
and Michiletti. This MOU was made
was not able to fulfil the funding conditions'

Mr.AgyemanManu,asthePw3'wascatledbytheprosecutionto
issued to the respondent to seek
explain a letter exhibit N, which he
project he was bidding for'
for financial support for the stadia
letter was just an introductory
witness explained. that the said
a meeting with the banks and
letter to assist the respondent attend
projects respondent intended
to source for the funds for the Stadia
his evidence that the letter was
bidding for. witness was clear in
in any way to whatever
not intended. to commit the government
to have. It was just to facili-tate
m.eeting the regpgldgn! was going
respondent,SCompanysourcingforfundsinsupportofthestadia
in'
projects his company was interested

YvonneQuansah,Pw4HeadofDebtManagementUnitatthe
no monies were received from
Ministry of Finance testified that
 T-r

outside in respect of CAN 2008. Bank Austria did issue a Letter of

Support on the request of Vamed but no monies came from this
bank in respect of the stadia projects. The PWs, Mr. Van Lare

Dosoo, Deputy Governor of the Bank of Ghana who also testified for
the prosecution acknowledged that there was a letter of support

from Bank Austria which supported the documents submitted by

Vamed who his subcommittee recommended for the job. In cross

examination he admitted that they had no doubt the letter of

support came from Bank Austria. The letter of support, witness told
the court, was not a commitment by the bank but just to the

beneficiary that in case the bid is won the bank is ready to sit with
the beneficiary for further and more detail discussions on the

funding.

Mrs. Lesley Dodoo, is a lawyer at the Public Procurement Authority. ,1

li
tfr

She was called probably to enlighten the court as to the processes #

{,:

in the public procurement. So far as she is aware the tender *r

, i i
process is complete only when the contract is signed. So long as the
*r F l

purchaser has not accepted and signed the contract he is permitted *l

to cancel the arrangement. It needs mention here that she was sent
fr
* l
T I
T I
through intensive cross examination because counsel for the
fil
. I I

respondent disagreed with her interpretation of the Procurement $

,'I
Act as it relates to the point at which the government can back out I
of the procurement process. Counsel's contention was that

government could not back out of the procurement process without

incurring liabiiity in so far as there has been a concurrent approval
from the Central Tender Reviern'Board. Asked whether she knew the $
10
accused, witness answered, yes and that she has had occasion to
travel with him on a government delegation headed by the Minister
of Finance to places abroad, including Bank Austria.

The managing Director of Waterville was a witness for the

prosecution. He narrated how he met the respondent and the
eventual takeover of Vamed by Waterville. Vamed was working
together with M Powapak in respect of the stadia before the
takeover. He told the court that one of the tender conditions was
that bidders provide their source of funding. They got this support,
led by the respondent, from Bank of Austria by its Letter of Support
u'hich they included in the bidding package. They won the bid after
going through the tender processes. After the Central Tender Review
Board had given its concurrent approva-l to their proposal, they
were waiting to be called to sign the contract but rather heard on
the radio that the sports ministry had terminated this international
bidding process and a Chinese Company had been given the job.
For the financial support it was M Powapak that led the discussions
with Bank Austria. They got a lawyer to question the lawfulness of
the termination of the bidding process and that led to the award of
the rehabilitation of the Ohene Djan, Elu'ak and Baba yara stadia
to his company. Two MOU's were signed to that effect on the 30th
of November 2OO5 and a contract signed on tlne 26th of April 2005.
According to witness, Waterville aiso entered into a contract with M
Powapak to financial engineer funds for execution of this contract
arvarded them by the government of Ghana. After the signing of the
MOU they were handed over the sites for the rehabilitation works to

17
begin. Witness told the court that since the government did not
fulfill certain conditions in the earlier Letter of Support from Bank
Austria, the Bank withdrew. Woyome went to the US and got
another letter of support expressing their willingness to finance the
project. This also did not rnatenahze because this bank also
withdrew because they could not get certain information from the
Ministry of Finance. Suddenly on the 1.t of August 2006 they had a
letter again terminating the contract when they were on site
carrying on the work as agreed in the contract. His company,
Waterville also had to terminate the contract it had with M Powapak
on the 25th of November 2006. On an assessment by the
government consultant, B.I.C, the work they had done so far on the
project was valued and his company was paid 25mi11ion Euros.
Waterville in turn paid M Powapak 3.6m Euros. Asked what the
payment to M Powapak was for, witness said it was for the work
that has been procured and the financial engineering by M Powapak
for the jobs it started executing in Accra and Kumasi. In his cross
examination he testified that on the 3'd of February 2O10 there was
a meeting at the Attorney General's Department with the Attorney
General where he admitted that his company's claim against the
government was different from that being made by the accused on
the governrxellt=Ie-had to write- a letter to that effect on behalf of
his company. At this meeting \ rere the AG herself, Mr. Neequaye
Tetteh a chief state attorney, somebody from the Finance Ministry,
two reps from the government Consultants, BIC and Woyome and a
lawyer from Kwame Tetteh and himself.

1-2
Then came Mr. Suleman Ahmed, PWB Acting Chief Director of the
AG department. He narrated the sequence of events after
presentation of the petition by the respondent. On receipt of the
petition the Attorney General convened a meeting of stakeholders to
advise on the claim. The advice from the stake holders was that
respondent was entitled to his claim. The Attorney General
therefore wrote to the ministry of finance recommending payment.
The Finance Minister directed payment but not long after there was
a reversal of the directive by the minister because there was the
need for clarification who to pay the monies to. Before any steps
towards payment could be taken the respondent went to court for
judgment on his claim for GHO 105m. This was negotiated to
GHCS | ,283,480.59 and paid eventually. From the cross
examination of this witness it came out clearly that the then AG
advised the payment to the respondent after she had consulted with
other technical men on the matter. In his cross examination he
answered that the respondent's petition stated that the funds from
Bank Austria has been paid to the government of Ghana.

As an investigator ASP trdward Odame told the court the results of

his investigations which as a matter of fact did not diverge much
from the evidence given by the other prosecution witnesses. In the
coLlrse of the investigations he wrote to Bank Austria who informed
him the letter of support was not binding. As earlier testified to by
the earlier witnesses witness narrated the presentation of the
petition and happenings thereafter and the court processes which
formed the basis for the payment cf the amount of

IJ
GH A5 I ,283,480. 59 to the respondent. He admitted in his cross
examination that the respondent never claimed that the monies
from Bank Austria has been released to Ghana. His investigations
did not also confirm that the letter of support was fraudulent.
Whether before the accused person went to court he had been paid
any monies, witness said no and that he was paid based on the
court judgment.

Arising out of these pieces of evidence led by the witnesses for the
prosecution, the Attorney General's department sought the
conviction of the respondent for defrauding by false pretences and
causing financial loss to the state.

What did the resoondent narrate to the court in its defence to these
charges?

He narrated to the court his involvement with the then Minister of

Sports, Mr. Osei Kwaku and other experts in sports administration
in attracting the hosting of the CAN200B to Ghana and discussions
they had as to how to source funding for the event. He was virtually
the king pin in getting Libya which was also interested in hosting
the tournament to back out. After the removal of Osei Kwaku and
his replacement by Rashid Bawa, there was the understanding to
proceed towards organizing the event. When the decision was taken
to form the Local Orgamzrng Committee (L.O.C) he had to fund
some of its activities. After winning the bid to host the tournament,
there was a tirne table within u'hich several matters concerning the
hosting had to be met. Ghana was then HIPIC and that created a

II
/

herculean task of sourcing funds for the project. According to

respondent he had occasion to deliberate on several issues with
Rashid Bawa and his team, and the LOC which made it necessary
for him to put up a consortium, as he did for the funding of the
Begoro, Gushiegu and Sogakope hospitals. The consortium
comprised mainly Austrian companies, including Vamed. A i

programme was presented to the then Minister for Finance Osafo

Maafo who included a list of other projects so as to achieve the aim
of establishing a sports tourism projects which they had in mind.
For the sites for the stadia he had discussions with Baah Wiredu
and the Chairman of the LOC. Eventually a decision was taken to
adopt international bidding for the award of contract for the stadia.
It was within this background that O. B. Amoah and Agzeman
Manu, all ministers issued him letters to enable him source for
funding for the CAN 2008. To make sure that the funding was made
available he had to do a lot including establishing foreign offices
and engaging experts in the field. The LOC was also conducting a
feasibility and environmental report on the entire project, the type
of report that would be acceptable to the guarantee agency, the
MIGA( Multilateral Investment Guarantee Agency of Washington
D.C). On behalf of the LOC he had to pay for certain projects with
the understanding that when the LO got its budgetary allocation
there will be a refund. Because of funding problems the LOC was
able to refund only part of the expenditure and he had to go to
court before he was paid the difference.

-L.l
I
the court
on the bidding process itself for the cAN 2OO8 he told
to do a 10t of
that deadiines and stiff conditions were set. He had
financial engineering to get support for the funding of the stadia
Austria
project. He led and they got the letter of support from Bank
were
to support the bidding for the stadia project. Two committees
the bids, the Technical Committee and the
set up to evaluate
Finance committee. At the end of the bidding process waterville
from these
was adjudged the best and had won the bid. A report
which gave
committees was submitted to the Central Tender Board
approval. Then came in shanghai Group of
their concurrent
To the
Companies which had not been part of the bidding process'
process
respondent this was a clear interference with the bidding
of it all the
which was governed by the Procurement Act. At the end
international bidding process was abrogated His evidence

continued:

had the permission of MIGA to guarantee the

"We haae
banks for and olt behalf of the Ghana gouernment; the

amount u)a.s issued to the gouernment of Ghana 6ls a

letter of support. Ghana wd.s obliged to accept it on or

before the SOth of September 2OO5. The procurement

authgrttg peing the centra_l T_endel Rguie-yt Board haying

gone through o;tl the Processes and issued a' concrtrrent

dated 'th of August 6rs bg law required tntlg

approaat
d. binding agreement between mgself and
constitute
gouernment of Ghana. The gouernment of Gh(,;na having

16
 terminated it wrongfttllg, I am entitled to the amount of
,noneg I Jinanciallg engineered".

On this belief he wrote a petition to the attorney general making

financial claims against the government. The Attorney General
orgaruzed a stake holders meeting between the consultants, B.I.C,
the LOC, the Ministry of Education and Sports, and the Finance
Ministry to seek a clarification on all the issues raised in the
petition. It was understood that the Financial trngineering portion
he was claiming from the government was different from the other
two contracts subsequently signed by Waterville with the
government of Ghana. It was agreed by all the stakeholders that he
be paid 2oh of the total arranged fund. When he noticed that the
agreed payment was meeting administrative barriers, he had to go
to court for judgment on the amount. Subsequently he negotiated
the judgment debt and the terms of payment and he was paid
accordingly. Concluding his evidence he told the court that he did
the financial engineering for a bid they won so if the contract has
been abrogated he was entitled to be paid for the financial
engineering. In response to the allegation that he fraudulently
stated that the Austrian funds were in Ghana respondent said that
nelther he nor anybo_dy associated with hi14 _",tetgdthat thg monies
from Austria was sitting anl.where in Ghana for use. The monies
are never transferred but are assessed with certificates after
complction of work donc. It is by such proccdurc that monics wcrc
sourced for th. Soc'akone Resoro and Gushiegu hospitals. As
regards Austro Invest, it is a company he engaged to assist in the

L7
financial engineering. They made a claim on him and he paid them
$tm. As regards his entitlement and payment to him, all the stake
holders at a meeting agreed that he was entitled to his claim.
Responding to questions in relation to payments made to him by
Waterville, respondent explained that that payment was in respect
of HSBC in 20O6 and that had nothing to do with the government of
Ghana in 2OO5. The claim he made against the government was
premised on the annulled bid which had received concurrent
approval.

The trial judge relying mainly on documents tendered by the

prosecution found that it was not true that Mrs. Betty Mould
Iddrissu was misled by the respondent. To him the said Attorney
General did not act on her own but on all occasions constituted a
committee of technical persons on whose technical advice she
advised payment to the respondent. These persons the trial judge
identified as the AG herself, Mr. Paul Asimenu, head of legal,
Ministry of Finance, 2 representatives from the government
consultants-B.I.C and Samuel Neequaye Tetteh, Chief State
Attorney. It would be wrong, the trial judge reasoned to blame the
AG for any lapse, if there was any. Again relying on documents
te!{g1ed by the,prosecution,
he concluded llrallbe pa-ymegt made
to Woyome by Waterville was a payment distinct from the claim he
made on the government of Ghana. On the allegation that the
respondent said he had brought monies from Bank Austria, he
found that the respondent never stated in his petition that he hacl
brought any monies lying in any account anywhere in Ghana. He

18
I
concluded that the state had not been able to convince him that the
respondent made any misrepresentation of facts either in writing or
orally. On further consideration of the facts he stated that since the
respondent was not paid on the peti.tion he submitted to the AG but
on a court judgment the charges against the respondent fell flat on
its face. On the same facts he found the charge of causing financial
loss to the state unsubstantiated.

Before coming to these conclusions the trial judge held that the
prosecution failed to cail material witnesses such as Betty Mould
Iddrisu, Paul Asimenu, Neequaye Tetteh, Rex Magnus Danquah,
B.I.C the government consultants and Barton Oduro. He castigated
the state attorneys in the Attorney Genera,l's department, in the
manner of handling this case and other cases that were brought
before the courts.

The Attorney General's Department is not in agreement with these

findings and conclusions of the trial judge and has appealed to this
court on 6 grounds with a plea that the judgment of the trial court
acquitting and discharging the respondent should be set aside and
in its place a conviction substituted. I will reproduce the grounds of
appeal:

"7.The triat judge erred in lqw when he stated that the

prosecution hos woefullg failed to establish a cq.se
against the o,ecused when he had established a
prima facie ed.se against him.

19
 2. That hauing called upon the accused person to open
his defence the judge had estqblished a prima facie
ca.se against the accused Persort qnd his failure
thereon to assess the defence of the a,ccused person
Grs against the euidence of the proseeution utas
wrong in law.
3 . That the judgment cannot be supported hauing
regard to the euidenee adduced at the trial
4. That the Jindings of the trial iudge that persons
such crs Bettg Mould lddristt, Hortourable Barton
Oduro, Sannuel Neequage Tetteh and Paul Asimenu
were rnaterial witnesses and failure to call them
wds fatal to the crr.seof the prosecution was wrong
in laut.
5. That the judge erred bg displaging 4 biased
assessment of the evidence of the prosecution and
rnounting unwarranted atto,cks on the prosecution
6. Thqt the entire judgrnent is wronglrtl in law".

I have read the judgment of the trial court and the proceedings from
Which it emanats and it is my decision to apply secfioRs-31 of the
Courts Act in rearranging these grounds of appeal before their

disposai. The section provides:

?a
 *(7) Subject to subseetion (2) an appellate court on

hearing a.n appeal in a crirninal case shall allow the

appeal if the appellate court considers

(a) That the aerdict or conviction or acquittat ought

to be set aside on the grounds that it is

unrea.sonable or cannot be supported. having

regard to the evidence

(b) That the iudgntent in question ought to be set

aside q.s a. urong decision on a question of law or

fact or
(c) That there wqs a miscarriage of iustice

And in ang other case shall dismiss the appeal

(2) The appellate court sho'll dismiss the appeal if it

consid.ers that a s:.i,bsto;ntio'l ntiscarrtage of iustice has

not achtaftg occurred.. -."

So the grounds of appeal that should engage an appellate courts

attention are those alleging that the judgment is unreasonable or

cannot be supported having regard to the evidence, or the decision

is wrong on the grounds of law. Factual evidence will have to be led
-court to*accept any of these grounds after applying the
entitiing the
statutorily required. standard of prove beyond reasonable doubt

demanded in criminal trials.

The prosecution wiil have to convince me that it has a case that

satisfies the conditions specified in these provisions otherwise I am

2i
empowered by this section to dismiss the appeal. It is in the light of
these provisions that I intend, by re-arrangement to subsume

grounds 1,2 ,4 and 5 und.er grounds 3 and 6, which I consider the

substantial grounds in this appeal. For on reading of the records of
appeal, even if I uphold grounds 1,2,4 and 5 that will not lead to a

complete disposal of this appeal. Ground 3 and 6 allege that the

judgment cannot be supported having regard to the evidence

adduced at the trial and that that the whole judgment is wrong in

law. These are the substantive grounds that qualify for examination
under section 31 of the Courts Act as earlier mentioned'

So what arguments have the appellant in convincing this court that

their grounds of appeal are worth successful consideration by this
court?

The appellant had no doubt as to what ingredients the offence of

defrauding by false pretences is made of. Relying on the unreported

case of Do;niel Abodakpi ars The Republic criminal Appeal No

H2/6/O7 dated 2oth June 2OO8 the appellant itemized the

ingredients of the offence that they have to prove as follows

" 7. Thqt the qccused made a representation of the

existence of a state of facts.

2. That the representation was tnade either in

wrtting or spoken words or bg irnpersona'tion'

27
 I

3. That the representation wa.s rnade with the

knowledge that it was false or made without the
belief that it wa,s tnte.
4. That the representation wq,s rnade with intent to
defraud.
5. That the representation wq.s rnade bg the accused
and that bg that representation he obtained the
consertt of another person to part with
somethirtg".

At this stage we now listen to the prosecution why they consider the
judgment Lrnreasonable or that it cannot be supported having
regard to the evidence or that the decision is wrong in law or fact or
that there has been a miscarriage of justice.

It is the submission of the appellant that the claim of the

respondent that it had a contract with the government is false to
the knowledge of the respondent. That there was no such contract
was testified to by Honourable Osafo Maafo. Appellant's submission
continued that the government of Ghana never engaged the
respondent to conduct any financial engineering on its behalf but
that the financial engineering he conducted was on behalf of M
Powapak for Watervi1le- for which he was paid fuIly by Waterville. Tt
\ /as therefore untme for respondent to state that the government
owed him any such amount for work he had done in connection
u'ith CAN 2AOB. There were contracts signed by the government but
in none was the respondent a party. The parties were the

L}
 I

government of Ghana, Waterville and Michelleti. The submissions

continued that there was further misrepresentation made by the

respondent that he engineered an amount of I,106,47 0,587.00

Buros from Bank Austria for the government of Ghana and that the
said money had been legally offered to Ghana on the basis of which
he claimed 2oh of this amount making 22,129,4II.74 Euros. The

letter of support respondent got from Bank Austria did not

constitute an agreement with the Bank to provide any monies to

Ghana and no monies were provided to Ghana for the CAN 2008. It
was therefore fraudulent for the respondent to claim that the money
he financially engineered had been legally offered to Ghana. The
letter exhibit N issued by Agyeman Manu, then Deputy Minister of
Finance was clear in its import that it was a mere introductory

letter which was to assist respondent source for funds for his

consortirlm's own cause. It was not a letter contracting him to do

financial engineering for or on behalf of the state or any company or
source for funds on government's behalf. In respect of the claim by
the respondent that he won the bid for the construction of the

stadia for CAN 2OO8 and received concurrent approval which was

terminated by the government of Ghana, the appellant argued that

that \ /as also false to the knowledge of the respondent. The

respondent never put in a bid, had no consortium and did not win
any bid for the construction of CAN 2OOB. The bid that the

respondent was associated with was a bid he put in on behalf of

Vamed which never matured into a contract. In the course of

processing the bid the process was truncated by the government of

1 4
Lq
 l
Ghana and no offer whatsoever was communicated to the

respondent or any company for them to accept so as to constitute a

binding contract. Appellant contended that the bidding processes
and the termination was testified to clearly by osafo Marfo, Pw2
and confirmed in by the PW6 from the Procurement. Office- The

appeilant submitted:

.....Once there was no contract with the respondent, the

cancellation of the process had nothing to do with him'

His claim is a false representation which was borne out of

dishonesty. This is because even the Standard Documents

he signed on behalf of M Powapak stated under clause 39
that:

,The purchaser reserues the right to accept or reiect

ang tender and to annul the tendering process qnd

reject atl tenders at ang tirne prior to contract

award, uithout incurring ang liabilitg to tenders'

Clearly the purchaser, the Ministry of Education and

sports, could have at any time before the award of
contract annul the tendering Process without

ingSy_ing any liability whatsoever to waterville or M

powapak. The respondent having personally signed

the document containing this clause on behalf of M

Powapak cannot later on falsely claim compensation
for the annulment of the process. It was rather put in
by vamed and not Alfred Agbesi woyorne" My Lords,
 atthispointintimeVamedhadassignedallitsrights
was clearly
to waterville. Thus his claim on this issue
government which
false and intended to deceive the
he succeeded in doing

,ThatheAtfredAgbesiWogornemadeuarious

inaestment like expenditures olt suruegs'

Jino/ncial
drawingsandfinancialengineeringforwhichhe
should be reimbursed''

is also false cus evident frotn the

This staternent
euidenceofPwT,AndreaMareaorlandi.PwTstated
were done
that the technico;l drawings for the stadia
bgWateruille.Headdedintera|iqthathehadto
backhisbidulitheuidencethathecouldexecutethe
proiectandthisinclud'edsutl'eusandtechnical
drawings"'

the financial engineering

Appellant made further submissions that
was with his company M
that the respondent was associated with
Powapakforwhich,accord.ingtoorlandi,hewasreimbursedby
the respondent to claim
Waterville. Again it was therefore false for
has been reimbursed
any amounts -99.9aratefrom what M Powapak
for.
faise representations he
Appellant argued further that it was these
Attorney General and his
made which were relied on by the then
Deputyresultinginthesaidpaymentsbeingmadetohim.Andit

26
\ ras these same false representations he repeated in the claim

before the court.

The trial judge found that the respondent was not paid on the

petition he presented to the Attorney General but on a court

judgment. It was therefore wrong for the prosecution to claim that

there was a misrepresentation that 1ed to payment. The trial judge

asked whether it can be argued that the respondent misrepresented

facts to the court also. He answered in the negative. It was the state
that failed to defend the action. To the trial judge, it therefore lay
foul in the mouth for the prosecution to submit that Mrs. Betty

Mould Iddrisu was deceived into believing the claims of the r

accused. The response of the appellant to these views of the trial

judge was that, the AG decision not to contest the action was all

informed by her believe in the false representations made by the

respondent in the petition. That officers of high profile should have

seen through the fraud as contended by the trial judge, the

appellant relied on section 133(2)(d) of the Criminal Offences Act,

1960(Act 291 .

Concluding its submission the appellant stated:

,,We haue alreadg discussed strenuouslg the fact that the

respondent knew at the time he tnade those
representqtions both to the AG and the Comrnercial
Court that his sto:tements contained both in his petition,
Exhibit AB, and his statement of claim before the cour-t,
eontained serious misrepresentattons. If the respondent

1-7

*
s
 had not stated that he Alfred Agbesi wogonte had q.
personq.I contract with the gouernment of Ghana separate

from the contract signed between the goaernrnent and

Waterville, he utould not haae been paid ang rnonies. That
he was owed rnonies bg the goaernment for arranging

funding for the goaernment he knew wqs untnte .EIis

intention was to defraud the goaernment ofJicials he

deatt with at the AG depantrnent. He ura.s q.ware that his
contracfital agreefitent was onlg with Wateruille and that
Wateruille had fuftg paid hin but with the intent to
deceiae the ofJicials of goaernment, he wrote <zs if the
goaernrnent hq.d a personal contract with hirn and indeed
owed hirn ffrcneq.....u.

Let's listen to the respondent. His first submission was filed on the
4th of November 2015 and the second one on the l"t of December
20 15. I will quote the substance of the submissions filed in
November 2015. After examining and extracting from evidence of
witnesses of the prosecution his counsel stated:

uMg Lords, it is not in dispute that Alfred wogome was

instntmental in securing fiinding from Bank Austria for
the oAN^OOS tournantent, Iirst for llanned and
subsequentlg fo, waterville. The GoG wrongfullg
terminated the pfocurentent proeess on 22nd August zQAs
and this preuented the funding procured from Bank
Austrta frorn materiatizing. Eaen after the MOU w6;,s

2E
signed between Watervitle and GOG in Noaember 2OO5'

Alfred Wogorne was stitl instntmental in securing funding

Bank Austria. GoG failed to rneet the conditions

from
precedent to the grant of the loan and Bqnk Austria

pulted out. subsequentlg Alfred wogonte's eJfort's in

securing funding from HsBc were again thwartcd bg the

GOG when it failed to meet the conditions precedent to

the grant of the loan. The agreerrtent between Wateruille

and M Poutapak in December in 2OOS uro's in respect of
this Jinancial engineering and Watentille paid a fee of
3.6 nillion Euros upon terrninqtion of the agreement'
This fee is quite distinct from the fees due Alfred Wogome
in respect of the Jinaneial engineering which he did fron
the beginning of the procurement Process until its

wrongfitl terntination bg the Minister for Education and

sports. wogome would haae receiaed between 2%o

Atfred
to 5%oof the funds as fees and therefore he is entitled to
cofftpensation from Goaernrnent from the wrongful

termination.

The euid.ence from the witnesses called bg the prosecution

is ouerq2!19.!tning. Atfred wo,gome plaged a_n integral part
in the procufement Process. Wherein then lies the

contention bg the republie, having regard to all these

pieces of euideltce, that the trtal iudge failed to cssess

the defence 4s against the evidence led bg the
pfosecutian and that the iudgment eannot be supported

29
 hauing regard to the euidence it adduced. It is subrnitted
that the learned judge did assess the defence of the
respondent as against the evidence led bg the prosecution
and found the prosecution's euidence utoefullg
inadequate. Accordinglg ground (ii) should fail. It follows
that ground (iii) also fails because the proseeution did
not adduce ang euidence at the trial to support the
conuiction of the respondent".

In submissions filed on the 14th of December 2O15 the respondent

contends that it is not true that the only financia-1 engineering he
did in respect of the CAN 2O0B was that for Waterville for which it
was paid 3.6m Euros. The allegation that respondent knew he had
been paid for al1 the financial engineering he was involved in but
fraudulently went ahead to make further claim from the
government, it is the contention of the respondent, is a mis-
appreciation of the facts of the case. Payment was indeed made to
him by Waterville but that was for financial engineering of the 19th
December 2005 distinct from what he did in the course of the
procurement process, first to Vamed trngineering and later for
Waterville that was truncated by the government in August 2005.
Respondent submitted that the financial enginee-ring work for the
tender submitted by Vamed/Waterville was not paid for because the
government did not allow the procurement process to conclude for
the letter of support from Austria to mature. He submitted at page
27 of his submission that

3C
 " The respondertt's claim against the goaernment uthich

was clearlg understood bg the forrner AG as reported bg

PW7 in his eaidence, was for compensation for the
wrongful terrnination of the procurement process for

which he lost whateaer comtnission he utould haae gained

frorn the Jinancial engineering work he did through Bank

Austria".

In respect of the Procurement Act and its interpretation as to the

stage at which a contract would be deemed formed with the bidder
the respondent has a different view of the law. His counsel
maintains, relying on sections l7(2),2o(2)(b)and 65(1) and (a) that
the government had no right to terminate the procurement process
the way it did. He argued:

"It is subrnitted that the cornbined effect of sections 65(1)

and (4) of the Procurernent Act is that the CTRB

ascertained the Vamed/Waterville tender c1s the

success.;ftrI tender and dulg notified thetn on the Sth

August 2OO5. Between the tirne when the notice u)q.s

dispatched (Stn August) and the entry into force of the
procurefnent contract, neither the Ministry of Education
and sporf,s (which is the procurernent entitg) and
VamedNlateraitte should take ang action thqt would
interfere with the entry into force of the pfaeurement
contra;ct of with its performance. It is submitted thqt

that wq.s exactlg what the goaernment of Ghana did.

- 4
.l _L
 Cabinet had no business interfering with the process but
it did".

Counsel's argument on behalf of the respondent continued that

assuming the government wanted to rely on section (29lr(1)(2)and

(3) of the Act it was required to give notice of the rejection to the
tenderers within two days. The concurrent approval was given on

the 5th of August 2OO5 and notice of it was dispatched that same
day. The decision to truncate the process was taken by cabinet

between the 3.d and 6th of August 2005 and was commltnicated by a
letter from cabinet on the 22"d August 2OO5. It was not even the
trntity Tender Committee which communicated the rejection but

cabinet. Clearly, counsel argues that the Procurement Act was

breached wrongfully and government is responsible for the

consequences.

In respect to the allegation that respondent had stated that the

monies for which he did the financial engineering was sitting in

Ghana here or had been legally offered to Ghana, the respondent

submitted that nowhere in his petition did he mention that the

monies he sourced with Bank Austria was in Ghana or anywhere in

the custody of the state

The appellant identified from the petition of the respondent the

foilowing as the representations made by the respondent which the

appellant considers fraudulent.

32
 "7.That the goaernment of Ghana owed him (Atfred Agbesi
wogome) a.n q.mount of zz,r2g,4r r.z4 Euros being
professional fees for financial engineering executed
towards sourcing fircneg from Bank Austria for the cup
of No'tions 2oO8 stadia constntction and associated
projects.

2' That his consortiurn won the bid. for the constrttction
of the stadia for cAN zoog and. receiued. eoncurrent
approaa.l from the central Tender Board.. That this
concurrertt approval ura.s wrongfalrg terminated bg the
g oaernrrtent of Ghanq..

3. Thqt he Arfred Agbesi wogome mad. aarious

Jinanciar
inaestments like expendihtres ort suruegs, d.rauings qnd.
financial engineering for which he shourd. be
reimbursed,,.

And it is in these lines that the appellant made his submissions.

I have read the petition and I agree that if there is anything

that can
be described as a representation or misrepresentation
or false
representation then these have been fairly identified
by the
appellant as above.

Now, did the respondent put in any bid for the cAN
2008? The
appellant answers this question in the negative and that to
it forms
one of the accusations of fraudulent misrepresentation against
the
respondent. I find myself differing from this view of the
appeilant.

3_l
On reading the appeal records I formed the opinion, contrary to that
of the appellant, that there is more than sufficient evidence

establishing that the respondent bid for CAN 2008 with VAMED
and subsequently Waterville. The evidence from prosecution

witness Andrea Marea Orlandi was clear that they were working

together and that "when LUesee VAMED it means Wateruille and M-

Powapak" for the construction of the stadia. In the tendering
process it was he Orlandi who defended the projects aspects whilst
the respondent defended the financial support issues that

Waterville had presented to the Finance Committee headed by Mr

Dosoo. Who submitted their bid, witness said it was submitted and
signed by the respondent. Honourable Osafo Maafo was also clear

in his evidence that because the government was insisting on

Turnkey Project bidders came with partners. Vamed and M

Powapak were recommended. I must admit, however, that reading

respondent's petition, one may get a wrong impression that

respondent was making the claim in his personal capacity instead

of his company or companies. And this may be the impression the
appellant carried into its submissions before this court. At least the
last page of the petition makes respondent's capacity for the claim
clearer. He sta|ed-,

"The percentage in the circumstances is nortnallg 4% but

Waterville negotiated it to 2% with the preuious regime.

Half of this antount is due our external partner, Austro

Inaest. The other half of 17,064,705.87 Euros .[ etrcirf?.cft

mg behalf. Attached alsa in exhibit F is tz tetter frorn mg

 group authorizing nte to receiae such monies in mg narne

as Alfred Agbesi Wogome' .

To date I still owe some local financial institutions to whom I

am directly responsible to refund their lent monies which were

used to pay substantial portions of my foreign partners'
professional fees"

So respondent was making the claim for his group'

It will not be entirely correct, therefore, as the prosecution seems to

contend that respond ent made the claim fraudulently in his

personal name knowing that the government has not dealt with

him, Alfred woyome, in any way. The evidence is profusely interned

in the record that he dealt together with VAMED/WATERVILLtr in

the bidding for the CAN 2OOB. And it was to these entities that the
concurrent approval was given by the Central Tender Board. Indeed
when the Attorney General's recommendation to the Minister of

Finance for payment was being audited it was queried because it

was not clear who to pay the monies to. Was it to be paid to Austro
Invest or M Powapak. The finance ministry understood the claims

were not being made personally by the respondent.

One other area*olseeming disagreerrrent is whether the respondent

got any funds for Ghana in respect of CAN2OOB. Much need not be
said in this area of the dispute because norvhere did the respondent
state, as contended by the appellant, that he has secured monies

35
 \

his petition
for Ghana which can be withdrawn at rn'illby Ghana. In
he stated:

,'Mad.am from the aboae I am formallg demanding from

the government of Ghana the pagment of the financial

arrangement cost which is 2% of a;ll legallg offered

olmounts bg Bank Austria to the gouernrnent of Ghana

announting to 7, 706,470.587.00 Euros equaling

22,729,477.74 Euros (zs contained in the last p^ge of

Waterville s do curnent entitle d " " "

4741 of the
In his evidence before the court he said (found at page
record of aPPeal:

,rThe police constabte testified that no such rnonies were

paid to the accounts of Ghana bg Bank Austriq. That

assertion is incorrect and also pretnised upon an

incorrect letter utritten bg the Attorneg General's offtce

through the Ministry of Fino;nce to the Austrian

which in mg opinion is embarrassing' Mg

authorities
basis is that under no circttmstances u)as angbodg

associa ted to me written or stated aerballg that moneg

had been transferred to Ghana. Mg claim had alwags

been that moneg had. been q.franged and the goaernntent

of
of Ghana wq.s bg taut to accept the offer bg the suh dag
septenber 2oo5. This fact u)q.s knoutn bg the Attorneg

General who incorrectlg wrote d questionn1;;ire whether

36
 I

moneg had been transferred to Ghana. The answer

stronglg was no.

The other aspect theg sought to know wo,s the

authenticitg of the signatl.tres oft the offer letters to the
goaernfttent. The response u)as that those urere the actual
signahtres. One of the signatttres was also patt of those
who signed the offer letter. Gouernment through the
Attorneg General knew that in all circumstances when
these announts q.re arranged it is neuer transferred to
Ghana. It is onlg q.ccessed bg certificate of cornpleted
work done certified bg the authorized signatttres from
the Ministry of Finarrce and the contracting authoritg bg
the contractors inuolaed in the execution of the proiect. In
this instance Bank Austria through nte had Jinanced
Sogakope, Begoro and Gushiegu hospitals which are
completed projects ort the ground. JVo moneu wqs
transferred to the Bqnk of Ghana for these hospitals.
Theg were qccessed bg certiJicate bg the contracting
authorities. Exhibit 4 was a letter written bg Ebo Barton
Oduro to the late President Mills. It stated that it would
haue breyg.ht in funding not that it hos conte-.-".

Pitching the evidence of the prosecution and the respondent I find it

safer to find, as the trial judge did, that nowhere has there been ()-

categorical statement an).where by the respondent that funds has

been transferred over the oceans to Ghana or that the letter of

37
support constitute an agreement that Bank of Austria was to give

funds to Ghana for the Stadia. Having so found I am of the strong

view that fraud or fraudulent misrepresentation cannot be

sustained on this allegation.

should the respondent have made any claim on the government

when he knew that whatever claim he had in respect of financial

engineering for the CAN 2OOB has been paid to him by Waterville?
The appellant thinks he shouldn't and that is why he should accept
the description of a fraud. But what does the evidence disclose in
this area of the trial? That respondent had been paid by Waterville
for any such claim came up during the trial. The evidence on record
is that respondent was paid 3.6m Euros by Waterville and he

issued a discharge letter admitting the payment. Kwame Tetteh who

at apoint in time acted for Waterville wrote to the Attorney General
that the respondent had no claim anymore against the state. But
subsequently at a meeting at which the Attorney General was

present, Orlandi of Waterville, Kwame Tetteh was present, it was

understood that the payment made by Waterville to respondent was

in respect of a different financial engineering done by the

respondent. The then Attorney General asked that, if that is so then

Waterville sho-g.1d,isqug_4letter to that effect which Orlandi issued.
Let's listen to the cross examination of Oriandi by counsel for the

respondent:

a. Mr. Ortandi do gou remember that after exhibit Y

that is the letter from Kuqrne Tetteh and. Co to the

38
 \

Attorneg General there was a round table conference

between gourself Wareuille, the accttsed and the
Attorneg General. Do gou rernember?

A. Yes Mg Lord. The meeting wa.s hetd at the attorneg

general's department ofJice on the 3'd of Febntary
2070, if I rernentber uery well?

a. At that rneeting gou agreed on behalf of Wateruille

that the cla;im,s for Jinancial engineering bg the
o"ccused against the gouernrnent of Ghana was
distinct and independent frorn gour claim, ie
Wateruille cla;inr- against the goaernntent of Ghana,
Is that not so?

A. Yes. Mg Lord. During the meeting ure were asked bg

the Attorneg General to present our docurnentation.
Mr. Wogorne to present his docurnentation in respect
of the financial engineering and our documentation
in respect of work done. At the end of the meeting
the Attarneg General said that now I understand the
positions and asked Wateruille to present the claim

for th3 work done and Mr. Wogorne to present his

clqim for the Financial Engineering

A. In fact gou wrote a letter to this effect on the ZAh of

April 2O1O conftrming the claim of the q.ccused. This
fs rz copu of the letter gou wrote?

39
 \

A. Yes Mg Lord, this is cr copg of the letter I wrote".

This is a prosecution witness'evidence supporting the accused who

has maintained throughout the trial that his claim against
Watervilie for which he was paid by Waterville is completely
different from that against the state. Indeed there were two different
scenarios in this stadia construction. There was one that involved
international bidding in which the respondent was involved with his
financial engineering for Waterville and which went all the way to
concurrent approval by the Centrai Tender Review Board but was
truncated in August 2005. In this particular bidding there was a
letter of financial support from Bank Austria for stadia construction
and other projects. The letter of support was to subsist till 30th
September 2005. Then there was another in support of Waterville
after the second termination of the contract by government when
Watervilie had moved to site and started work. It was this second
one that Waterville paid the respondent, which respondent
acknowledged receipt. The findings of the trial judge that the claims
against Waterville and that of the government of Ghana made by
the respondent are distinct ciaims are supportable on the records.
The prosecutiorrled no other evidence in support of their assertion
that the respondent has been paid by Waterville and therefore has
no basis making any other claim against the government. There was
no contrary evidence against that of the prosecutions own witness,

40
Orlandi. This ground for alleging fraud against the respondent and
charging him for fraudulent misrepresentation also fails.

Probably the most contentious aspect of this trial is whether the

respondent ever had any contract with the government of ghana to
conduct any financial engineering on its behalf and for which he
should be making any claims on the government. On reading of the
records of proceedings and the submissions of both parties to this
criminal trial, the conclusion that one comes to is that the
respondent's claim is based on the tendering process which
Waterville/ M Powapak won but was terminated in August 2005.
Respondent's counsel submitted:

"The respondents clo;irn against. the goaerttntent, which

wa.s clearlg understood bg the former Attorneg General as
reported bg Pw7 in his euidence urq.s for compensation for
the wrongful tertnination of the procurement process for
which he lost whateaer commission he would haae gained
from the financial engineering work he did through Bank
Austria".

The then Attorney General also stated in her letter to the Finance
Ministry on the 29th April 2OIO, exhibit AG as follows;

It will be recalled. that the claim is for project financial

engineering fees by Mr. Woyome and Austro- Invest. The
A A
4 1
 financial arrangements were made in respect of the I

concurrent approval given by the Central Tender Review

Board for the award of contract to Vamed Engineering who

transferred its rights in the project to Waterville Holdings

(copies of letter of transfer and acceptance attachedf and

(copy of letter of central Tender Review Board dated the
sth of August 2OOS attached). It was in these

circumstances that the then government terminated the

entire processt'.

The respondent believed that because of the termination of the

procurement process at the time the Central Tender Review Board

had given concurrent approval he was entitled to claim for certain
expenditures and losses incurred in the financial engineering for

the abrogated tender process. What is it that made this belief

fraudulent? Is it his belief that there was a contract binding on the
government after the concurrent approval? Of course I don't think

we are being called upon to determine whether there was indeed a

contract between the respondent and the government on applying
the Procurement Act. But whether there was a contract or not is not
the immediate and fdally material iSSue in tFris alleged crime of

defrauding by false pretence but rather whether he had genuine

belief that a contract was formed at the stage of the concurrent

approval and therefore entitled to claim against the government-. Is
it that he knew he had no contract with the government but still

42
 \

fraudulently pursued this cause making the claims against the

that
government? I am asking all these questions because proving
beyond
one has committed a criminal offence demands prove
justification for his belief
reasonable doubt. That he did not have
claims
that he had contract with the government and making those
of the
in themselves will not invite criminal sanctions. It is the duty
the
prosecution to lead evidence which when considered in all
circumstances, including this contract or no contract matter' will
that
hold the respondent as having proceeded for the claim knowing
and
it was false or that he did not believe in the truth of his claim
made dishonestly and therefore committed the offence of fraudulent
misrepresentation. Notable also is that his defence when examined
prove
in the light of the evidence led by the prosecution should
offences
beyond reasonable doubt that he committed the offence or
charged.

It is worth mentioning that not only did the respondent's counsel

several
believe the client had a contract with the government but
others well placed in the legal platform, including the Attorney
to
General believed the respondent had a contract and was entitled
his claims against the government. whether at the stage of
binding
concurrent approval by the Central Tender Review Board a
binding
agreement has emerged or that the government had a
obligation not to truncate the procurement process was hotly

appear therefore to be unanimity in the

contested. There d idn't
interpretation cf the relevant sections of the Procurement Act on
to
this issue of contract amongst the lega1 men who had something
43
 \

do with the petition of the respondent. Such divergence in opinion

about interpretation of statutes is rnell known to legal practitioners.
That to me is sufficient indicators for all, including legal

practitioners not to assume the interpretative authority of the

courts in such non pedestrian matters of law in their out of

courtroom discollrse else they mislead the public.

A lot of emphasis appears to have been laid on the fact that the
respondent was paid on the basis of a court judgment and therefore
his innocence should be a certainty. I have a different view' That
one secures a court jud.gment does not in all cases negate the
commission of a crime. Can't a well orchestrated or organrzed fraud
find judgment in a civil law court only for this fraud or crime to be
exposed through an intricate expert investigations subsequently? I

will give an answer in the positive. That the respondent had

judgment and was paid on the basis of this judgment is not all that

is needed in his defence. That he went to court and had judgment

should be part of the evid"ence that should be considered in
determining his fraud,ulent intention or his bona fides in his claim.
In the circumstances of this case, the respondent went to court
believing he was entitled to his claim. What appears to strengthen a
finding of bonafides on his part is the fact that there is
unchallenged evidence that he had once gone to court when the
LOC owed him and was dragging rts feet in paying'

In any case we have heard the respondent's defence. How to assess

the defence of a1 accused person, in this CaSe,the respondent, Lras

.at
 \

been dictated since 1963 to date by the Supreme Court in the case
of Lutterodt ars c.o.P(1963) 2 GLR 429.It is that

,'Where the deterntination of 4 case depends upon the facts

and. the court forms the opinion that a prima facie cc;'sel2.as
been made, the court should proceed to examine the case
for the defence in three stages:

7. Firsttg it shauld consid.er whether the explanation of

the d.efence is acceptable, if it is, that prouides
cornplete d.ftsu)er, and the coutt, should acquit the

defendant.
2. If the court should Jind itself unable to accept, or if
it should consider the explanation to be not tnte, it
should then proceed to consider whether the

explanation is neaertheless reasonablg probable, if it

should Jind it to be, the court should acquit the
defendant.
3. Finolttg quite apart from the defendant's explanation
or defence taken bg itsetf, the court should consider
the defence such as it is together with the whole
gase, ie the prosecution and the defence together,
and.-be satisfied of the guilt of the defendant begond

reasona.ble doubt before it should contfict, if not, it

should acquit" .
Applying these yardsticks in the assessment of the defence story, in
the instant case, I find no difficulty concluding that his defence is
acceptable. trven taking the worse scenario, matching the evidence
led by the prosecution to that of the defence, I am comfortable with
a finding that the prosecution faiied to establish the guilt of the
accused beyond reasonable doubt on this charge of defrauding by
false pretences.

Probably it is at this point that I will briefly comment on the issue of

material witnesses mentioned by the trial judge and stated as one of
the grounds of appeal. Who a material witness is will always depend
upon the facts of the case. Which witness or witnesses is needed in
establishing a particular fact or facts that is required in
establishing, in our case, the charges faced by the accused person?
The authorities have it that such a witness should be the type
whose evidence when put on the scales of judgment will turn the
case one way or the other. It is a person whose evidence on an issue
has the capability of settling that issue one way or the other. Cases
of R vrs Essien(1938)4 WACA LL2, R vrs Ajenjinah lL942l8
WACA 193, Poku vrs The State{1966}GLR 262 and Agyeman vrs
The State(L9641 GLR 681 cited by both counsel are on point. In
the instant case the particulars of the offence of defrauding by false
pretences stated that the false representation was made to
government officials. Who are these government officials? From the
record of appeal they are Mrs. Betty Mouid Iddrisu, Paul Asimenu,
I{eequaye Tetteh, the consuitants of the government (B.I.C) on the
project. Shouldn't they have been called to testify in this case? To
N C
 upon what evidence the
me the answer to this question wiil depend
prosecLttion will requirefromthem.Surelytheprosecutionwill

require that theY testify to horn' they were misled, how the false
the evidence led by the
representation operated on them. But from
prosecution,particularly,thed'ocumentaryevidenceonrecord'
was entitled to his
these persons were convinced the respondent
court the respondent
claim. were they to come to court to tell the
that the prosecution
was entitled to his claim? Is that the evidence I

require from them in establishing the charges

wants or should
no' It is my view that
leveled against the accused person? obviously
that these persons
if the prosecution is of some degree of certainty
by the respondent
would give evidence that indeed they were misled
the matter enters the
but the prosecution fails to call them then
arena of material or immaterial witness. In respect of the court it is
when evidence is being assessed that a
at the end of trial
called because
,Cetermination can be made of rvho should have been
material witnesses
he or she is a material witness. To cali them
court in determining
would mean their evidence was needed by the
absence damaged the
the issue and because they didn't testify their
prosecution had called
case of the prosecu.tion. In other word's if the
But that is not what we
them it would have strengthened' its case'
it
hrrr. here ;;"th. records. At the end of triar in the instant case
judge
was clear on the evidence what these witnesses the trial
told the court' what they
consid"ered material witnesses rnouid have
in the written opinions
wou1d. have told the court we find ciearly
to court, and it is that they
they offered before the respondent u'ent

.11
acted on their own belief and rn'ere not misled. In exhibit AD the
then Attorney General wrote, amongst others:

"The claims dated 76th Febntary 2O1O rnq-de bg Mr. Alfred

wogome and. Austro Inuest...... are with regard to

professional fees qnd recouery of expenditure regarding

the funding and other financial arrangefitents made bg

thern........".

And in exhibit AG she wrote again saying:

"In ntg opinion this letter dated the Sth of August 2OOS

the bqsis of a binding clgreement between Vamed

formed
and the goaernrnent of Ghana and the processes having

been terminated wrongfullg bg the goaernment of Ghana,

the clairnc/lrrts u)ere entitled to compenso:tion for seruices

rettderedt'.

The Honourable woman was talking law here. How could anybody
say she was influenced by the respondent, a lay person in talking
this law? There wasn't therefore any evidence that their absence

from the court disabled the court from coming to its conclusion. I
wouldn't consider these persons mentioned by the trial judge as
material witnesses in the circumstances of this case,

Now the law on defrauding by false pretences demands that the

representations made by the respondent should not oniy be false or

mad.e without belief that it rn'as true but that the representation was
made with intent to defraud. From the conclusions I have drawn

r'1Q
above from the evidence led by the prosecution I am of the opinion
that the prosecution failed to meet these lega1 requirements of
defrauding by false pretences. The verdict of the trial judge on this
charge I am of the view is reasonable and supported by the evidence
on record. There is no legal or factual basis on which his acquittal
of the respondent can be reversed by this court.

Now to the offence of causing finalcial loss to the state. In the case
of Republic ars Adann and others (2OO3-2OOS) 2 GLR 661 the
High Court through his Lordship Afreh sitting as an additional High
Court Judge stated the ingredients of causing financial loss to the
state as follows:

"a. Firtq-ncictl/oss

b. To the state
C. Caused through an q"ctionor omission of the accused
d. That the accused"

" T.Intended or desired to cause the loss or

2. Foresaut the loss as uirluallu certain and took e-rl

unjustifiable nsk of it or

3. Foresau-t the /oss as the probable consequences of his act

snd took an unreasona"ble nsk of it. or

,iO
 4. If he had used reasonable caution and obseruation tt
would haue oppeored to him thctt his act would probablg
cause or contribute to cause the loss".

The court did not only provide these ingredients but went at length
to explain their import. I had the opportunity to read also the case
of The Republic ars Selormeg (2OO1-2OO2)2 cLR 424.

On the facts as narrated in this judgment and the findings I have

made therefrom it appears to me a foregone conclusion that this
charge of causing financial loss to the state cannot be held against
the respondent. The intention for making the claim was not to
cause financial loss to the state. He believed he was entitled to his
claim, he had other technical men agreeing with his claim and same
was paid to him.

From the foregoing opinion I will dismiss the appeal as without

merit.

I am not convinced the judgment of the trial court is unreasonable

or can't be supported having regard to the evidence or that it is
defective in law, neither have I been able to identify any miscarriage
of justice occasioned the appellant.

But let me end this judgment by saying that it rn'ould be unfair to

ignore the complaint of unwarranted attack made by the appellant
against the trial judge. I am in whole agreement that the trial judge
had no reason to descend on the Attorney General's Department the
r,v&yhe did. Little said about it the better. The Attorney General's

50
 \

Department like the Judiciary may have its ou'n internal problems
the
militating against what we may ali expect from that office' on
in attitude
face of it we might find them "lousy and lackadaisical"
the choice of words
but that may not be so after all. May we caution
exalted seat we
in our judgment, bearing in mind that on this
at the choice of
occupy in delivering judgment, persons aggrieved
to respond or
words we use against them may not have opportunity
explain themselves.

Appeal accordinglY dismissed'

a (sgd-)
. L
,. l
\
\IICTOR OFOE
,, ,\-
t
JUSTICE OF APPEAL

F.G. KORBIETIJ.A.
a supplementary
I want to start by making it very ciear that this is
just delivered by
judgment in support of the main or lead judgment
this panel)' I have
my esteemed brother, Ofoe, J.A. (the president of
and thought-
had the privilege of reading beforehand the erudite
provoking judgment of my learned brother and I agree in toto with
conclusions and
all the reasons_le has ldvanced for arriving at his
am only just picking
the ultimate decision to dismiss this appeal. I
points of larn, that, in humble opinion, needs
on two particular
in his judgment
further elaboration. I am so iimiting myself becar-rse
with all the
my learned brother, Ofoe, J.A. has dealt extensiveiv
other issues arising from the appeal. The tu'o issues I shall be

5i
 I

dealing in'ith are: one, the defence of the claim of right and two, the
defence of mistake, both of which surprisingly nobody has
mentioned so far.

The facts of this case have been sufficiently set out in the judgment
of Ofoe, J.A. and so I need not repeat them here. It is also important
for me to state that most of the arguments contained in the written
submissions of learned counsel for the appellant have been
answered by my brother, ofoe, J.A. and so I see no need to repeat
them here. I will therefore go straight to the points that I want
to
make. One of the appellant's grounds of appeal is that the entire
judgment is wrongful in law. This is the criminal law appeal
rendition of the civil law ground of appeal that the judgment is
against the weight of the evidence. That an appeal is by way of re-
hearing is now trite law and so need not detain us any further.
I
have therefore scrutinized the entire record of appeal with a view
to
finding out whether on the totality of the evidence on record the
appellant is entitled to succeed in this appeal. As has already been
said by -y learned brother, ofoe, J.A., the respondent was charged
u'ith the offences of defrauding by false pretences (contrary to
section 13 1(1) bf-the criminal offences Ae t, 1960 (Act zgll and
causing financial loss to the state contrary to section r7g(A)(3)(a)
also of Act 29. The appellant's case was based on three main
arguments; one was that there had been no contract between the
government, two was that no money was ever made availabie to the

ql
 \

government of Ghana by Bank Austria and three was that whatever

to him by
money was due the respondent had already been paid
waterville; hence the respond,ent's claim was made mala fides or
by false
dishonestly and thus constituted the offence of defrauding
was
pretenses. Section 13 1(1) (under rn'hich the respondent
Sectton l2o
charged) comes in chapter one of Part Three of Act 29'
120 as
also comes under the same chapter. It is provided in section
follows:

"(7) An dppropriation of a thing is dishonest

(a)If it is rnad.e with intent to defraud

(b)Ifitismadebgapersonwithoutaclaintofright'
and. with the knowledge or belieae that the

appropriation is without the consent of a person

whom that person is a tt'ustee or who is owner
for
of the thing or that the appropriation would, if

known to the other pefsoft' be without the consent

of that other person." (EmPhasis mine)

cannot be
what this simply means is that an appropriation of thing
of the
dishonest if it is made as a claim of right. From my reading
of appeal, I am of the firm conviction that the
entire record
mad"e his claim as a matter of right' It is rather
respondent
unfortunate that up to this point that issue has not been raised
has not had
directly. I am particularly saddened that the appeilant
was and is
the opportunity to react to the fact that the ciaim of right
said that let
available to the respondent as a defence. But having
hinted at
me hasten to add that learned counsel for the respondent

53
 at
the defence when he made his submission of no case to answer
very
the trial court. He asked these two questions which I consider
relevant to the issue of claim of right'
,rffiow col/t the prosecution lead euidence which

demonstrates that the accused was entitled to the

paurnent and at the so;'ine time want to relg on the

same euidence to support conuictioft oft a charge of

defrauding bg false pretences...How can a. person

who hols taken against the gouernfftent in

iudgment
court and regulartg obtained iudgment fron a court

of cornpetent be charged with the

iurisdiction
offence of defrauding bg fake pretence or

causing Jinancial loss to the state?" -

fraudutentlg
(See page 372 of the RoA) It beats my mind that he failed to raise
the defence of claim of right at that point. But nonetheless the
answer to these rhetorical questions are inherent in the questions

themselves; it was because the accused (or respondent herein) had

made a claim of right. The prosecution (or appellant herein) was
was
therefore put on its guard that the defence of claim of right
open to the respond ent. The appellant should therefore have
ad.vanced argument(s) to rebuff the defence if it could and was

minde,C so to do. In any case the fact that the defence of claim of
right was not mentioned by name does not prevent this court from
of
raising the issue suo motu since it is a legai issue. See the case
Atoo v. Town clerk of sekondi/Takoradi [196u GLR 413 where

the supreme court held that the fact that an objection had not
 the
been raised in the trial and appellate courts did not prevent
It is my
defendant-respondent from raising it in the Supreme Court'
charge
vierv that having regard to the provision of section I2O, the
prosecution
against the accused and the defence put up by him, the
possibiliqy
or the appellant herein was put on their guard as to the
of the accused or the trial court raising the issue and therefore
it' It is
adopting a preventive strateSz by addressing the court on
wrong
also the law that where a judgment is right but given for the
reasons, ?il aPPellate court can assign the correct reasons in

such a judgment. See the case of Mensah Larkai v.

upholding

Ayitey Tetteh (substituted by Tetteh Quarcoo!; Mensah Larkai

SCGLR
v. Tetteh Quarcoo & Ayaa Cudjoe (Consolidated) [2OO9l
by
62L I am by no means saylng that wTong reasons were assigned
reasons
the trial court for its judgment but additional or different
decision to
can be assigned by the appellate court for arriving at its
by
uphold the judgment provided that the reasons can be supported
the evidence on the record. In his invaluable book titled "Criminal
Law in Ghan?", P-K. Twumasi stated at page 381 that:
,rA claim of right is a uatid defence, fto rnatter uthether

it is founded in laut or in fact. The itnportant thing is

that it must be tnade in good faith''

It is therefor" *t considered opinion that the defence of claim of
with any
right is open to anyone, such as the respondent, charged
section I2O
offence that involves dishonesty. i say so because
is dcemed
comes under "General Provisions" in chapter one and so
One' I aiso
to be applicable to all the provisions in the said Chapter

55
find support in an article titled "The Defence of Mistake of Fact and
Claim of Right: Matters Arising From Republic v. Kwadwo II" by
Prof. Henrietta Mensa-Bonsu published in the University of Ghana
Law Journal, Volume XX, 1996-1999. On page 134 of the journal,
the learned author says that:
"The defence of claim of right is also a. cornrrron law
defence to a charge inaoluing the infringetnent of the
propertg rights of another such ors stealing,

defrauding bg false pretences and extortion."

So, the defence of ciaim of right, if made out and sustained,
completely negatives arry dishonest intent on the part of the

accused person. Accordingly it constitutes a complete defence to a

charge of defrauding by false pretences because a very vitai

ingredient of the offence, mens rea, has not been proven. Of course
the claim itself must be made in good faith and there must be
evidence to support the bona fides of the claim. The claim cannot be
just any fanciful, baseless or spurious claim without any factual or
legal basis. Whether a claim of right is fancifui or spurious will

naturally depend on the facts of each case and the evidence

adduced in support of the claim. In the case of the Republic v.

Kwadwo II [199U 1GLR 1, it was held in holding 2 as follows:

' Ui.dei siffiion 29 of the Criminal CodC, 7964 H& 29J

a claim of right in good faith appeared to be a sound

defence if the ertrninal act wqs done tnistakenlg but

the mista,ke wa"s an honest one. But section 29 drew a

rtgid line between a. conviction and punishment- It

56
 conuiction. In so deciding the
w6[s not a shield against
CourtofAppeatsaid'thattheappellant'sdefenceof
clqimofrightwdsbasedona,mistakeoflawandthat
to a defence of
since a mistake of law wo's tantamount
ignoranceofthelaulitwasnotaaa|iddefence,.

for the respondent when he

This case was cited by learned counsel
answer at the trial cou.rt; he
mad.e a submission of no CaSe to
in the case' namely the
however failed. to mention central issure
raised by the accused in that
defence of claim of right which was
article referred to supra, the
case. In prof. Henrietta Mensa-Bonsu's
court on its reasoning' She
iearned author took issue with the
that the claim of right had not
argued that when the court found
ended the matter there' She
been made in good faith, it should have
continued:
went further to link
"The learned judge, howeuer'
and then to declare
that d'efence to a mistake of laul,
defence' The linking
that, consequentlg, there u'ors no
ofthetwounlikesituqtionscreatedtheproblemof
treatingthedefenceofright4saspecieofthetnaxitn
,ignoranceofthe|aulisnoexcuse.,Thereishoweaer

enoughaathoritytostlggestthattheterybesisofthe
haae a' claim not
defence fs that q' Person mag

found'edinlawbutulhichwashonestlgbelieaedtobe
|awfutqtthetimeitwqsmade.Thusitarisesonlg
whenatte'shonestlgheLdbetief6rstoat7!'s

57
 entitlement is, in fact, not baeked bg law. Thus cI

rnistake of law is one of the occasions which could

produce q.n itl-founded but honestlg held belief as to
For this recson, etnphasis is put on
orirerslegal rights.
uthether the clairn is tnade in good faith qnd not on
whether it is founded in laut, since it is appreciated
that were the claim to be so founded, there would

haae been no crirninal charges in the first place."

The learned author therefore concluded that the defence of claim of

right is a defence in itself and only the absence of good faith
undermines its integrity as a defence. It is with great humility that I
associate myself with the position taken by the learned author. I
totally agree that looking at the provisions for the two defences, i.e'
the defence of claim of right and the defence of mistake, they are
not necessarily linked although invoking one may lead to an

incidence of the other. I will proceed to look at the evidence on the

record that I think support my position that the respondent is

entitled to the defence of claim of right. It is my considered opinion

that the respondent had both a factual and a legal basis for making
his claim and it was therefore made in good faith. I will also argue

that even if the claim was mistakenly made but made in good faith,
he still has a defence to the charge of defrauding by false pretences.
I have taken this position because it is trite law that the onus is
always on the prosecution to prove the guilt of the accused person
beyond reasonable doubt. in the case on hand the prosecution had
to prove dishonest intent on the part of the respondent when he

58
 \

had to prove that

made the claim. In other words, the prosecution
basis for making the
the respondent had neither factual nor legal
is nothing in the evidence adduced by the
claim. But there
proved that the respondent made his claim
prosecution that
defraud' As a matter
without believing in it or merely with intent to
demonstrate that the
of fact most the evidence I shall be using to
right is evidence from
respondent made his claim as a matter of
the prosecution
witnesses for the prosecution. The nearest thing
was the allegation
came to saying anything bordering on dishonesty
in government to
that the respondent took advantage of a change
on the part of
make the claim. This alone did not prove dishonesty
to proof beyond
the respondent and by no means amounted
reasonable doubt.

advanced for
As stated earlier, one of the reasons the appellant
is that the
saying that the respond ent's claim was dishonest
The respondent's
respond.ent had no contract with the government'
is that he did not
case, both at the court below and in this court,
any contract with the
make the claim for payment on the basis of
had done for the
government but on the basis of rn'ork he
governmentt_1-:tdlrinSfinancialengineeringservicestothe
engineering services
government itt.t.raittg in particular financial
government to companies
rendered pursuant to an invitation by the
then up-coming African
to bid for the construction of stadia for the
rn'hat the respondent
cup of Nations football tournarnent. In effect
he was entitled so to do'
said was that he made the claim because

59
 differentiated
This therefore makes his claim one of right' He also
the claim he
between the money paid to him by waterville and
is very
made directly against the government. This differentiation
dwelt very much
important as learned counsel for the appellant has
looking at the
on the respondent's contract with waterville without
on earlier and
respondent's assertion that he made the claim based
other services rendered by him to the government.

At this juncture I wili look at some of the evidence proffered by the

prosecution or appellant to prove the guilt of the respondent'

the evidence has already been summanzed by my

Thankfully
learned brother, ofoe, J.A.and so I will only deal with that which
submission of
applies to the points I am making. I agree with the
interesting and
learned counsel for the respondent and say that the
thing is that it is mostly evidence adduced by
rather ironical
out' Take for
witnesses for the prosecution that bear the respondent
Ghanney) in
instance the evidence given by P.W. 1 (Mrs. Mangowa
was that there was
support of the prosecution's case; her testimony
I will deai
no contract between the respondent and the government'
later. Her further
with the issue of the absence of a contract
the settlement
evidence however was that there was an out-of-court
between tn. f"ili." after the respondent had obtained a default
about
judgment against the government. what is also significant
I and 2 (tendered
the evid,ence of P.w. 1 is the fact that exhibits
respondent have
through her) tended to show that not oniy did the
was making but that
a d"emonstrable legal basis for the claim he
seasoned lawyers, including the then Attornev-General, believed 1n
the legal basis of the claim. The then Attorney-General wrote in
exhibit 2 that:

"Furtherrnore to a Ministry of Pinance letter dated 4tn

Mog, 2OO5, Mr. Wogorne made arra.ngements for the
grant of concessional loo,ns for the rehabilitqtion of
the Ohene Djan and Baba Yara sto,dia q.nd the
constnr,ction of three others for the Ghana 2OO8
football tournanttertt, constntction of si-x,hospitals and
the Cobqlt 6O Irradiation Plant, among others.
Mr. Wogorne's role in project engineering is further
euidenced bg a letter frorn the Ministrg of Education
and Sports dated Sth Julg, 2OOS and an eqrlier letter
from the Minister for Environrnertt and Science, Prof.
Kasim Kasanga dated 2&h October, 2OO4. In addition,
Mr. Wogorne together uith Waterville set up ofJices in
Vienna, Austria and Washington, D.C., Italg and
Suitzerland cts pqrt of the project Jinancial
engineering work for the projects in Ghana (copies of
letters attached). It can be seen from the auailable
d.ocumentition attached that Mr. Wogome, As
Alternate Director of M-Powapak at the time, acted as
the principat partg in discussions with goaernment
ofJieiats to faeilitate the financial engineerimg
projects..."

o1
This is the opinion of the person who is aileged to have been
genuine claim
deceived into believing that the respondent had a
itself
against the government. But it is very clear from the statement
was not
that the opinion expressed by the then Attorney-General
were in her
made in a vacrlum; it was based on documents that
record that
possession. Not only that, it is patent on the face of the
had convened a
the then Attorney-General wrote the letter after she
conference of stake-holders who agreed that the
round-table
to be paid for the financial engineering
respond ent was entitled
of P'W'B
services he had rendered to government' (See the evidence
has
Mr. Sulemana Ahmed.) Learned counsel for the appellant
this case' I do
argued in this appeal that section 133(2)(d) applies to
put sub-section
not agree with her. I have to quote section 133(1) to
(2)(d) in context. The two subsections are couched as follows:

*(1) A representation is a rePresentation of the

false
existenceofastateoffactsrnqdebgapersoll,with
knowledge that the representation is false and

the belief that it is tnte, and rnade with an

without
intent to defraud.
(2) For Purposes of subsection (7)'
(d) subiect to paragraphs (a), (b) and (c)' if the

consentofapersonisinfactobtainedbgafalse
pretence, it is irnmaterial that the pretence is of a
kind that would not haue an effect an the mind of
a person using ordinary cq're and' iudgmetat'"

62
The then Attorney-General was not just exercising "ordinary care
and judgment", she \ /as exercising her professional judgment as
Attorney- General based on evidence that she had received that
supported the claim of the respondent. This is confirmed" by the
latter part of exhibit 2 itself where she said that:

,,It is mg opinion that this letter dated 5th August,

2OOS forrned the basis of a binding agreernent between

Vanned and the Gouernntent of Ghana and the process

having been terrninated wrongfuftg bg the Goaernmettt,

the cloiirno;nts u)ere entitled to compensation fo,

services rendered."

The evidence on record is that opinion was divided as to whether

there was a binding contract or not but the then Attorney-General
cannot be faulted simply because she took the view that there was a
binding contract. Her belief that there was a binding contract was
based on the letter from the Central Tender Review Board to P.W.2
(exhibit 1O). It is a notorious fact that lawyers do not always agree
on the meaning and effect of documents. She could have been

mistaken as to the legal effect of this document but she certainly

had a basis 6iTh. opinion which \\/as a legal opinion and not just
any ordinary opinion or judgment. I wili be dealing with the issue of
mistake in due course. For suffice now to say that if the Attorney-
General believed that there \ ras a legal basis for the claim made by
the respondent, can it be said that the respondent himself had no

63
 I
reason whatsoever to believe that he had a genuine claim against
the government? According to the then Attorney-General she
I
believed in the genuineness of the respondent's claim because of
the documents that supported the claim including exhibit 10. She
wrote her letter in response to exhibit AB, a petition sent to her by
the respondent. Exhibit AB itself is a lengthy and quite detailed
letter explaining the reasons for respondent's claim. Learned
counsel for the appeilant simply repeated the mantra that the
representations made by the respondent in exhibit AB were false
but failed to point out the evidence on record that demonstrated the
falsity of the c1aim. It cannot therefore be said that the respondent's
claim was baseless, fanciful or spurious. The trial judge, against
whose judgment the appellant has appealed, went to great lengths
to demonstrate that the then Attorney-General did a lot of
consultations before accepting the respondent's claim. This is borne
out by the record. Also on record is the fact that the respondent
went to court to compel the government to pay his claim when
government reversed the decision to pay him. The question is: was
payment effected because of the representations made by the
respondent or because of the cottrt's intervention. The trial judge
concluded that the payment was made because of the default
judgment. On-my-part, I think the important thing is the fact that
the respondent had such a strong belief in his right to the money
that he was prepared to go to court to enforce it. That is a clear
demonstration of the bona fides of his claim. The fact that the
Commercial Court gave judgment, albeit a default judgment, in
favour of the respondent further confirms that the respondent

presented an arguable case before that court. Had the respondent's

have
case been a spgrious one, the Commercial Court would
for
thrown it out, whether it was defended or not. Learned counsel
the appellant has contended that the judgment was fraudulently
obtained. But her reason is simply a repetition of her contention
of
that the averments in exhibit 29 (the respondent's statement
claim in the commercial court) were fraudulent. How was the judge

in the commercial court supposed to know that these averments

were not rrue or were fraudulent; especially as the appellant (as

the
defendant in that case) made a conscious choice not to defend
judge at the
action. It is pertinent to point out that if the
and so
Commercial Court was convinced of the respondent's claim
was
gave him judgment, then it cannot be said that the claim
there
baseless. The appellant seems to have taken the position that
to
was something untoward resulting in the payment of the money
the respondent. I say this because in her written submissions,
did not
learned counsel for the appellant said that the prosecution
Hon.
believe that people like the Hon. Mrs. Betty Mould-Iddrissu,
Danquah
Mr. Barton-oduro, Mr. Paul Asimenu, Mf. Magnus Rex
(See
and many others wogld not te1l the truth if calied as witnesses.
on
page 17 of her written submissions.) Since there is no evidence
take
the record to sllpport such an allegation, this Court cannot
cognrzarlce of it.

65
 osato-\laafo, M'P' and former
The evidence of P.w. 2 (the Hon'
also bv and large supported the
Minister for Education and Sports)
so as he said that the stadia
respondent's claim. This is particularly
,,tl'trn-key" basis which he explained to mean
were to be built on
the successful bidder should not oniy have the technical
that
but must be able to provide
capacity to design and build the stadia
meant that by virtue of the terms
the funding to d.o so. This in effect
and others were authorized'
of the invitation to bid, the respondent
outside the country' This is
o&y, obliged to go and seek funds from
his team did' He said further
precisely what the respondent and
process' even though in the
that upon the completion of the bidding
(chaired by him) vamed and
eyes of the Entity Tender committee
the contract, ilo contract was
M-Powapak had won the bid for
intervention of cabinet halted
entered. into with them because the
important part of P'w' 2',s
the process. But probably the most
claim was his statement
evid,ence which supported the respondent's
which 100ked at such matters as
that there was a cabinet memo
the source, terms and
assessment of the financial proposals,
in assessing the funds and
credibility of funding, timeliness
The clear inference from P'W'2',s
concessional nafure of the funding.
had been made by
evidence is that some financial arrangements
the
Vamed and Iwl%*apak companies to be able to jointly win
two stadia' Indeed exhibit AB
tenders for the construction of these
the respondent had secured a
(or 17) is testimony to the fact that
which indicated that funding
retter of support from Bank Austria
of the stadia' Learned
could be available for the construction

66
counsel for the appellant appears to have pooh-poohed this letter
but I think it is because she did not take her time to study its effect
on the process. This letter gave the Financial Committee (set up by
P.W.2) the basis for reaching the conclusion that Vamed and M-
powapak had won the bid for the construction of the Tamale and

Sekondi/Takoradi stadia. This evidence was corroborated by the

evidence of P.W.5 (Mt. Lionel Van Lare Dosoo) who said that in a
bid process banks would normally not give a ietter of commitment
but a letter of support. But for the decision of Cabinet to terminate
the process, the letter would have formed the basis for further

processes for the government to access funds from Bank Austria'

Because the tendering process was not allowed to be completed, the
fees that the respondent would have earned from his financial

engineering effort was lost to him. This was the basis of his claim.
So to argue that no funds were made available to the government
from Bank Austria is to miss the point altogether. Altogether,
p.W.2's evidence supports the view that the respondent's claim was

made in good faith. It cannot therefore be said that the claim was
made u,ithout an honest belief in it. That being the case' the
evidence of P.W. 2 advanced the case of the respondent rather than
that of the appellant. In other words his evidence demonstrated that
the respondent had a claim of right against the government. It is my
considered opinion that he made that claim of right in good faith.

Tlie last exampie of evi.dence that supported the case of the

respondent, rather than the appellant, is the evidence of P.W 7 (Mr.

67
Andrea Marea Orlandi). The evidence of this witness made it very I
clear that the respondent and his company (M-Powapak) did the
necessary financiai
support
engineering to actually
from Bank Austria
secure three letters of
which formed part of the documents
I
used by his company to bid for the building of the stadia. He said
further that Bank Austria gave them three letters, one for hospitals,
one for Cobalt 60 for atomic energ-y and one for the stadia. He
added that the reason why no money came from Bank Austria was
that the government of Ghana failed to meet some conditions set by
that bank. In cross-examination he admitted that the claim made
by Waterville was quite different from the claim made by the
respondent. Exhibit 20 (tendered in evidence through him) bears
this out. It is therefore not quite true, as contended by the
appellant, that any money due the respondent was from Waterville
and that Waterville had paid the respondent off. From the evidence
of another of the prosecution's own witness, it is very clear that the
respondent had the right to pursue his claim against the
government.

Then there is the evidence of the respondent himself, his oral

testimony and exhibits, particularly exhibits 20,22,24 and 25. It
ali leaves me in nb doubt that he made his claim on the firm belief
that government owed him the money he claimed. I have to repeat
that so convinced was he that he was entitled to the money that
when government reneged on its decision to pay him, he went to
enforce his claim in court. I agree rn'ith iearned counsel for the

68
 !
\

appellant that a judgment can be obtained by fraud but in the

circumstances of this case, the defendant in that suit, the appeilant
herein, chose not to contest the suit because it believed, for stated
reasons, in the bona fides of the respondent's claim. It cannot
therefore be said that the judgment was obtained by fraud.

Having regard to the evidence I have referred to so far, the

appellant's argument that because there was no contract with the
respondent, his claim was fraudulent overlooks the legal principle
of quantum m,entif. Under that principle, a person can make a claim
for work done or services rendered provided that he can show that
payment was implied right from the beginning. In the case of
Skanska Jensen International v. Klimatechnik Engineering
Ltd. l2OO3-2OO5l GLR 356, the appellants did some preliminary
work for the respondent in anticipation of the signing of a contract.
The contract \^ras never signed so the appellants sued on quantum
meruit. The Supreme Court (per Twum, JSC) said, that:

"In the circumstatrees, the respondents becanne entitled

to what ute utill describe a.s "orthodox" quantttm mentit,
i.e. req.sonq.ble retnunerqtion assessed bg the court and
not the tgpe cssessed qt the contraet rate."

In Kobaku Associates v Owusu [2OO3-2OO5IGLR 61 1, the Court

of Appeal held that the existence of a contract was not a sine qua
non for rernllneration on quantum meruit. Where. from the

69
sLrrrounding facts, a promise to pay should be implied irrespective
of the intention of the parties at the time rn'hen the work was done
or the service was rendered, the court u'ould imply that the
recipient of the service would pay a reasonable sum. What was a
reasonable amount was a question of fact. In the case on hand, but
for the fact that the government decided to tn-rncate the process,
the respondent and his company would have secured the contracts
for the construction of the Tamaie and Sekondi/Takoradi stadia. So
despite the absence of a contract, the respondent was entitled to
make a claim on quan.tum merull basis. The absence of a contract in
itself did not make the claim of the respondent dishonest. I
therefore hold that the respondent made his claim as of right and so
the defence of claim of right is available to him for the charge of
defrauding by false pretences.

I now come to the defence of mistake. It is provided in section 29(I)

of Act 29 as follows:

"A person shall not be punished for an act which, bg

reasort of ignorance or mista,ke of fact in good faith,
that person belieaes to be lawful."

The locus classicus of the defence of mistake is the case of

Nyameneba v. The State [19651 GLR 72. The facts of that case are
too well known to be repeated here. What is important is that it
reinforced the legai principle that a mistake of fact is a defence to a
criminal charge. In other words if the accused person's plea is such

7A
 made a factual mistake in good faith, then he is entitled to
that he
anacqrrittal.Thepopularviewisthatthemistakemustbeoneof
lau, as the maxim is that "Ignorance of the law is no
fact and not of
is a
the defence is that where there
excuse.,'The phil0sophy behind
mistakeoffact,therecanbenomensreaorguiltymindandso
therecanbenocrime.Ihavealreadysaidthattheevidenceon
record.supportstheviewthattherespond'entmadehisclaimasof
right'Butassuming,withoutadmitting,thathewasmistakenasto
not
backed by the law, would that
the fact that his claim was
charges
which can be a defence to the
amount to a mistake of fact
referred' to above' Prof' Mensa-Bonsu
he was facing? In her article
fact
that a mistake as to the scope of the 1aw is a mistake of
says
went on to say:
and not of law. This is what she
,,There is howeuer eflough authoritg to suggest that the

is that a person mag haae

aery bcrsis of the defence
mad'eaclaimnotfoundedinthelawbutulhichwa.s
honestlgbelieaedtobetawfutatthetimeitwasmqde.
honestlg held belief as to
Thus it arises onlg when ot|e,s
otae'sentitlementisrinfact'notbackedbglaw'Thusa
'nistakeof|awisoneoftheoccasionswhichcould
producecr'-il||.foundedbuthonestlgheldbe|iefasto
ie:ason, emphasts is put on
oni,, i"got ,Aghts. For ihis
in good faith and not
whether the claim is made
it is found.ed in lorut since it is appreciated' that
whether
werethec|gimsofound'ed,thereulou|dhaaebeenflo
place'"
crirzrinc:t eharges in the first

7L
I have already alluded to the fact that the former Attorney-General
(Hon. Mrs. Betty Mould-Iddrissu) could have made a mistake as to
the legal effect of the documents that the respondent presented as
the basis for his claim. The simple question arising is: if she could
make a mistake, why not the respondent? So the respondent could
have made a mistake in believing that he had a right to make his
claim against the government. If it was a mistake it was a genuine
mistake as it is clear from the evidence on record that he had been
led on by the agents of the government. Indeed in the case of the
respondent, the mistake (if any) \ ras not one of law, it was one of
fact. Besides, whether it \rras a mistake of law or of fact is neither
here nor there. What is important is that it was a mistake borne out
of a genuine belief that he u,as entitled to make the claim. In the
circumstances of this case, the defence of mistake was also open to
the respondent. In any case I do not think that the respondent
made a mistake in staking his claim to the money.

I therefore hold that having regard to the fact the respondent made
his claim as of right in good faith, the prosecution failed to prove his
guilt at the trial court and the trial judge was right to have
acquitted and discharged him. I therefore agree that the appeal fails
and should be*disrnissed.

{
\' '\ \ (sgd.)
I r 4r-
i t
f i ' ' !'*'
\ F. G. KORBIEH
JUSTICE OF APPEAL
t=2
 \

I
I
i
i
L. L. MENSAH J.A.
I
I have read beforehand the erudite judgment of my brother Ofoe,

J.A. and the supporting piece of my brother Korbieh, J.A. and I also
think the appeal should be dismissed. However, I wish to touch on
one or two aspects of the evidence.

The offence with which the Respondent was charged is a second

degree felony. The prosecution Appellant was enjoined to lead the
requisite evidence to prove the guilt of the accused beyond all

reasonable doubts under the purview of section II(21 of the

Evidence Act (197 5l I{RCD 323. The Respondent was equally

tasked to lead the requisite evidence to obviate any finding that may
establish his guilt, under section 1 1(3) of the Evidence Act.

Sections ll(2) and (3) are reproduced hereunder:

'Irt q. critninal o.ction, the burden of producing

etidence when it is on the prosecution as to a

fact which is essential to guilt, requires the

prosecution to produce sttfJicient euidence so
that on the totalittt of the euidence. a
req.sono,ble mind could Jind the existence of the
faet begand a reasonable doubt (mg emphasis).

/-)
 And under section 11(3) rn'ehave:

'Irt a, crintinal action, the burden of producing

euidence, when it is on the accused as ta a fact
the conaerse of which is essential to guilt,
requires the accused to produce sufJicient
euidence so that from the totalitu of the
evidence a reasonable rnind could haae q

rea.sonq.ble doubt as to guilt' (my emphasis).

Finatly under section 22 of the Evidence Act under rebuttabie

presumptions, we have the following:-

'Itt d. crintinal action, d presurnption operates

against the accused cs to q. fact which is

essential to guilt onlg if the existence of the

basic faets that giae rise to the prestmPtion are

found or otheruise established begond a

reasonable doubt, antd, in the ca.se of a
rebuttable presumption, the q.ccused need onlg
rqise e. req.sonoble doubt as to the existence of
-the preflnned
fact'.

In her address, the learned counsel for the Appellant found fault

with the trial judge's decision because according to her, the Judge
picked only on the rveaknesses of the case of the prosecution but

7t,
 \

failed to consider the defence of the Respondent which she says was
minimai. But with respect, the learned Appellant's counsel forgot to
admit the fact that the prosecution is expected at all times, to prove
the guilt of the accused beyond all reasonable doubts. What is
more, an accused person, apart from the burden that remains on
the prosecution, has another provision of the Bvidence Act, and his
burden is the burden of persuasion which is only to raise a
reasonable doubt in the case of rebuttable presumption. And I
think in this instant case, the accused has raised such a reasonable
doubt from the evidence of virtually all the prosecution witnesses
whose evidence has been assessed by my brothers in the lead and
supporting judgments. I will therefore touch on only the evidence of
the PW7, PWB and PW9. Indeed, some aspects of the evidence of
these prosecution witnesses have corroborated the case of the
defence. In such a situation, the trial Judge had no choice but to
acquit and discharge the Respondent.

In his evidence-in-chief the PW7 Andrea Marea Orlandi the then

Managing Director of Waterville Holdings (BVI) Ltd. testified inter
alia on page 2O9 of the Record of Appeal that he had fully paid the
Respondent for all the financial engineering which Respondent's M-
Powapak had done for Watervilie,
which payment was
uX'. When under
acknowledged by the Respondent, in Exhibit
cross-examrnation the PW7 confirmed the fact that the Respondent
has a legitirnate claim from the Republic.

75
 1
I
Same is reproduced in part as foiloq's:

Mr. Orlandi, do gou rernentber thqt after Exhibit

"Y", that is the letter frorn Tetteh & Co. to the

Attorneg-General there wq,s a. round table
rneeting between gourself, Waterville, the

accused qnd the Attorneg-General. Do gou

retnetnber?

A. Yes, Mg Lord. The rneeting wqs held at the

Attorneg-General's ofJice on the 3'd of Febntary
2O1O, if I rententber well.

A. At that rneeting gou agreed olt behalf of

Waterville that the clo,irns for Fino,ncial
Engineering bg the accused against the
Goaernment of Ghana was distinct and
independent frorn uour clo:irn i.e. Wateruille
cla;itlt o;aainst the Goaernnaent of Gho,no,. Is
thst not so? (mg emphasis)

-Y?s,
A. mg Lord. During the rneetiig u)e wCre
asked bg the Attorneg-General to present our
docurnentation, Mr. Wogome to present his
docurnentation in respect of the fi.nancial
Engineering and our docttment in respeet of

75
 1
I

uork done. At the end of the rneeting, the

Attorneg-General said thqt now I understand
the positions, and osked Wateruille to present
the claim for the work done and Mr. Wogome to
present his clairn for the Financial Engineering.

A. In fact Uou wrote a letter on 2Uh of April 2O7O,

conJirming the clo:irn of the aceused. This ts a
copg of the letter gou wrote.

A. Yes rng Lord. This is the letter I wrote'.

That letter written by the PW7 was admitted trxhibrt "2O". This is
found on page 11OO of the Record of Appeal. From the above, it is
clear that the PW7 Managing Director of Waterville Holdings BVI
Ltd., admitted that the financia-l engineering claim of the
Respondent against the Government of Ghana is "distinct and
independent" of the claim of the Waterville Company. This is a very

material admission of the witness of a prosecution whose case

should be water-tight.

If the evidence of tfre PW7 took a big chunk from the evidential
credit of the Appellant's case, that of the PWB Sulemana Ahmed,
the Acling Chief Director of the Ministry of Justice and Attorney-
General is worse. From the totality of the evidence of the PWB, the
Respondent did not walk into the office of the Attorney-General,

77
 was
I
presto, the GHCS I,283,480'59
presented his PaPers and heY
detailed and systematic step-by-step
paid to him. The PWB gave a
of the Attorney-General with several
approach bY the office
she meticulouslY examined same'
supporting documents and

the Respondent presented the letter Exhibit "2" to the

For example,
Attorney-Generaldatedl8thAugust2oog'Sheinturnformally
"AA" to present a formal claim'
wrote to the Respondent trxhibit
the Respondent's petition Exhibit "AB" dated 18th
Then followed

February2olo.Therewasameetingofstakeholdersand
were
who advised that the claims of the Respondent
consultants,
on and on'
genuine and legitimate' It goes

the PW8 virtually answered all the

Then under cross-examination
Scoresofquestj'onshurledathimbythedefencecounseltobein
favouroftheRespondent.Thereisahugemassofevidenceon
Record.toconfirmthattheclaimoftheRespondentandtheScores
ofdocumentsexchangedbetweentheRespondentandtheRepublic
to all those who mattered in this intriguing of cases' It
were copied
isnotthatthedecisiontopayRespondentwastakenintheSecrecy
The letters emanating from the Law office were copied
of a closet.
-
only to the- Ministiies of Finance, Controller & Accountant-
not
right
the Solicitor-General and the Bank of Ghana etc., but
General,
of Government. It is very difficult to understand how the
to the seat
by the
for an offence which was blessed
Respondent can be indicted

78
 Or is it a case of boiting the
panoply of government machine4-'
stable after the horses have escaped?

IamawarethatitisnotineveryCaSewhereapartytakesa
jurisdiction that such a judgment
judgment of a court of competent

cannotbeimpeached.AsitisheldinseveralofourCasesa
jurisdiction can be set aside for
judgment of a court of competent
This is because at the time the
fraud. But not in this instant case'
offences at the court below' the
Respondent was charged with the
judgmentoftheCommercialwassubsisting,justasitisnow.

evidence of the pwg followed the pattern of Pw7 and PWB in

The
as rightly found by the trial
bolstering the case of the Respondent
Judge.lnhisevid.ence_in-chief,thePwginvestigatortrdward
of Police at the C.I.D.
Odame okyere, Assistant Superintend.ent
say when led by the prosecuting
Headquarters, Accra, has this to
at page 298 of the
chief state Attorney in his evidence-in-chief
Record of APPeal:

'Mr. ArnPonsah: On gour fi'rst time in 2073, gou

the
totd the Honourable Court that
accused person subrnitted a petition
to the Ministry of Justice and

Attorneg-General in 2O1O for certain

claims; uthat happened ta that cloitn

in vieut of gour inaestigation?

79
 -,1

Witness: Mg Lord, our inuestigation disclosed

that the amouttt inaolaed being

GHC17,283,470.93 was Paid to him'

Mr. Amponsah: Do gou knout the process that led to

the paYment of this annourtt'

Witness: Yes, Mg Lord.

Mr. Amponsah: Tell the Honourable Court'

Witness: Mg Lord, uhen the Attorneg-Genera'l's

Departrnent receiaed the petition, the
Attorney@neral conaeued a tneeting
between the stakeholders who utere

Bornk of Ghana, Ministry of Finance

and Econotnic Planning, the Local

Organizers of Committee of Cann (sic)

2OO8, the Building Industry

Constntction (BIC) and the Attorneg-

General DePartrnent.

Mr. Anponsah: What is the outcome of the meeting?

Witness: At the meetinq all the stakeholders

agreed that Wouome wos entitled to
 t=
/

the claim he was reauestina for (mu

emPho,sis)'

Astheevidencerrnfolded,itwasaSifthePwgwasca]ledto
or at least create a reasonable
strengthen the case of the defence
rn'hich enures to the benefit of
doubt in the case of the prosecution
is because pw9 admitted the availability of the
the accused. This

financialpackagefromBankAustriainwhichtherewastobean
and the fact that the offer had
acceptance by 3oth September 2OO5
the Local organising committee'
lapsed. This is because neither
of Youth and sports accepted the
Government of Ghana or Ministry
facilitY.

evid'ence-in-chief' the PW9

I am aware that in his further

investigatingofficermentionedthattheamounttheRespondent
claimedhebroughttoGhanaintheSumof1,106,478,568.00
*I-rever came to Ghana". But the substance of the Respondent's
amount rn'hich he engineered
claim is not that he has a handsome
Ghana'
sitting the vault of the Bank of

the Pw9 admitted that a1i the

And under cross-examination,
claim
stakehold"r" .o**i"sioned uy trtt Law office to iook into the
that the Respondent indeed has a
of the Respondent all confirmed
do
of Ghana save that they did not
claim against the Govelnment
due diligence.

6l
 -

of the cross-examination of the PWg

Consider this Portton
investigator bY defence c ounsel:

,Q. You totd the court gesterdag that stakehalders

rnet to cottsider this petition; is that not so?

A. Yes, Mg Lord.

Attorneg'General,
a. stakeholders include the

Ministry of Finance, Consultarrts, Local

Organizing Committee of CAN 2OO8 and Bank of

Ghana.

A. Yes, Mg Lord-

a. AttthesepeopleunanimouslgagreedthatMr.
Wogorne ttto;sentitled to his clo:irn'

A. Yes, Mg Lord- Theg unanimouslg agreed that

Mr.Wogomewasentitledtotheclaitnoflthe
presented to them'
face oJ the d.ocurnent he
fn"g aU no,t Ao aig due diligence on

supporting d.ocutnents he added to those

dacutnettts'.

82
 H

is difficult to understand how such diverse persons and

It
institutions of the Republic such as the Attorney-General's officials,
the Ministry of Finance, independent opinion of Building Industry
consultants Ltd., the three-man financial committee, the Local

Organtzrng Committee of CAN 2008 and officials of the Bank of

due
Ghana could all either at one time or corporately failed to do
diiigence as contended bY the PW9'

paid
There is also evidence on record that the Respondent was not
of
the disputed amount based on the petition he sent to the office
Attorney-General. So convinced of his claim was the
the
to
Respondent that the after refusal by the Government of Ghana
pay him what he claimed was due him, h" filed a writ in court to
vindicate his rights. This is confirmed by trxhibit 29. Far from
to
contesting the action, the Republic entered appearance and failed
file a defence. After several going in and out of court, the

Respondent was paid his claim. This amount of GH0SI,283.480.59

was paid under the participation, supervision, control and above
all, the potency of a consent judgment, freely and liberally entered

into by the Appellant and the Respondent'

- of
Indeed when the Appellant tried to set aside the Terms
page
Settlement which was duly executed by the parties found at
and
lI72 of the Record of APPeal, the Commercial Court refused
decreed consent judgment. It was under this judgment that the

Respondent was Paid.

11J
I
Inmyopinion,insteadofinstitutingacivilactionagainstthe
Respondenttoretrievetheamount,ifitwastruethatthe
R e s p o n d e n t i n d e e d d ' e f r a u d ' e d t h e R e p u b l i c , t h e A p p e l l a n t w hblessed
ich
approved', encouraged, and
consciously or rrnconsciously
temerity to turn round
..transaction,, of the Respondent, has the
the
causing financial
the Respondent of defrauding it and'
to accr].se
loss to the State'

ThebehaviouroftheAppellantisreminiscentofamanwhosaw
S o m e o n e h a r v e s t i n g h i s c a s s a v a i n h i s f a r m . I n s t e a d o f r a i s of
i n gthe
him to harvest more
the one, he helps
alarm and arresting
him to carry the booty to the house of the
cassava. He then helps
Supposedthief.Laterthemanreportsthesupposedthieftothe
police.Theevidenceshowsthatthefarmownerwascomplicitin
thestealingofthecassavafromhisownfarm.Thisisexactlywhat
case'
haPPened in this instant

for the
Inherwrittensubmissionthehard-workingcounsel
section 133(2) d of Act 29 cannot avail the
Republic contended that
section as follows:-
It is thus provided under that sub
Respondent'

'(2) the of this section -

Far PurPose

(c}' if the
to pcrf,crgraophs (a)' (Q and
{a}subiect
of 4 person is in fact obtained bg
consent

O 4
 T
pretence, it is irnmaterial that the
false
pretence is of sttch a kind that would haae

had no effect on the tnind of a person using

ordinary care and iudgment'.

what the above means is that an accused who is charged with

defrauding by false pretences cannot argue that his victim ought to
have seen through his deceit and he is not to blame himself for

allowing himself to be defrauded.

However the then Honourable Attorney-General with her Deputy

Honourable Barton-Odro who between them wrote four letters in

support of the Respondent's claim, did not only use their "ordinary
care and jud.gment", but they fell on their legal professional
expertise to assess the claims of the Respondent. And they did this
not in isolation, but with the advice of two other legally professional
brains in the person of Paul Asimenu, Head of Legal for the Ministry
of Finance and Samuel Nerquaye Tetteh, Chief State Attorney'

Although my brother ofoe, J.A. in the lead judgment has already

dealt with the details of what constitutes the two offences, I will
briefly touch on the technicality of the first offence. In the case of
Rabbles u. The State (1964) GLR 58O the Supreme Court has this
at page 585:

E5
 'Again eaen if the oral rePresentation made

bg the Appetlant were capable of the

interpretation the learned iudge placed

upon it, how, on the face of the L' P' O"

corn the Jirst prosecution witness be said to
haue been induced bg it? To induce is to

persttad.e, to preaail uPon q' person to

belieae something and act upon it' In the

to induce is to
ca.se of fatse pretence,
persuade a uictim to accePt a

representation made to him as tnte and to

act upon it to his detriment or the

detrirnent of ottother. such a uictirn rnust

be in a position tholt he cannot of his outn

knou,tledge, or u'tithout reference knout of
thetnfihorfalsitgoftherePresentation.
Therefore if it is within the knowledge of

the person to whom the representation is

made that that representation is false, and

get he aeted upon it, he cannot be said to
haue been induced bg the false
reptreseitation; in such a co'iC, he is not a
uictim of the rePresentation''

who was an
In the Rabbles a. The Republic (supra) the Appellant,
from the UniversitY
independent food contractor received an L.P.O.

B6
 =

The Appellant altered the figure

of Ghana for the suPPlY of rice.
and added two more items' Two of the added items were supplied
the inflated
by the UniversitY. DesPite the fact that they discovered
reported the
items, the UniversitY after the supply of the third item,
by false
Appellant who was later charged for forgery and fraud
court was
pretences. The conviction and sentence of the trial High
overturned by the SuPreme Court.

case' once the

The instant case echoes the substance of the above
legal financial,
whole armada of the Government of Ghana
technical, ministerial or consultancy machinery
administrative,
of the
combined together to act on the purported misrepresentation
the Respondent
Respondent and found the claim to be impeccable,
had blessed all
cannot be convicted of a transaction which the state
to lead
the way. This is because it is incumbent on the Appellant
cogent and compelling evidence to prove that the representations
was made with
made by the Respondent was not only false, but it
the intent to defraud.

which is
unlike the offence involving dishonesty such as stealing,
by false pretence
relatively easy to prove, the offence of defrauding
is much -"i. te.dni;it has many nuances. Its pioof puts a lot
".ta
of burden on the prosecution. The prosecution and the defence
purview of our
have not co-equal burden of proof u'ithin the
criminal jurisprudence. This is why crying defrauding by false

d /
 I
=::-

pretence alone is not enough. The charge must be backed with

fool-proof legal evidence.

In the case of Akowua a. Comrnissioner of Police (1964) GLR 475

SC, the Appellant was convicted by the Circuit Court, Kumasi, of

fraud by false pretences contrary to section 13i of the Criminal
Code, 1960 Act (29). When his appeal to the High Court was

dismissed., he further appealed to the Supreme Court which allowed

the appeal. At page 486, the Supreme Court has this to say:

'The deftnition giaen in sectiorrs 732 and 133(1)

shows that the terms "defrauding", and "false
pretettce", a.re tectrrnical terrns and that for
"false pretence" to constihtte the offence of

fraud bg false pretences" created bg section

7 3 7 , it rnust be a pretence rnade "with intent to
defraud" or "for the purpose of defrauding". ft

follows thqt without intent to defraud, d.

pretence houteaer false, ffidU onlg amount to
deeeit, falsehood, which is not the sa'mc czs

frantd ..."

This aspect of the aPPeal has been handled by -y brother Korbieh

J.A. in his supporting judgment of Respondent's defence of a claim

of right.

(]c
 I:
E

It is in the light of the above explanation of the Supreme Court in

the nuances of the constituent elements of the offences with which

the Respondent is charged in this instant case, that the Appellant is

tasked to prove the offences beyond all reasonable doubt.

The argument of the learned, Appellant's cottnsel that since the trial
judge dismissed the submission of no case filed by the Respondent,
it means the Appellant had produced enough evidence to warrant a
conviction of the Respondent, given the paucity of his defence

material, is with respect, misplaced and a misconception of the

Supreme court's decision on the case of state a. Ali Kassena

(1962) 1 GLR 744 and in Apaloo a. The Reoublic (1975) 7 GLR

756. As the learned Appellant's cotlnsel puts it:

"It is our subrnission that the trial Judge Ajet-Nasam J,

utoefitttg failed to uphold these fandamental principles of

law uthich form the locus clasfczrs of assessing aft

accused person's evidence after a prirna facie case has

been established against /rtirn. Indeed the trial iudge did

not exannine the d.efence of the Respondent at all in his

judgment. It is therefore no legal for h;is decision to

acquit the Respondent on the two counts under which he

-Ea;.gad
',Uola aJter a prima faiie case ha.s been
e stablished ag ainst hint".

And further that

89
 -l

,,whetr the prosecution has established a prima facie

the prosecution ho;s established qll
cq.se, it means that
elernents of the offence charged qnd the witnesses
the
haue not been discredited in anuwcrg under cross-

exannination, or the etidence of the prosecution uitnesses

reliable that nng reasoftfuble tribunal of

is so manifestlg

fact could safetg conuict on it"'

My answer to the above submissions of the learned Appellant's

counsel is that the ratio in the case of the state a- Ali Ka,ssena
(supra\ and, Apaloo u. The Republic (sttpra) have not abdicated
of the
the role of the prosecution to lead evidence to prove the guilt
of
accused beyond all reasonable doubts once the application
submission of no case is dismissed. Indeed what the Appellant's
burden
counsel is arguing in this instant Appeal is transferring the
the
of the parties in a civil case which requires them to discharge
of persuasion by proof of a preponderance of the
burden
probabilities. The burden on the prosecution is constant whether or
not the defence of the accused is weak or not'

Indeed in the instant case, the trial judge should have terminated
because the
the tiial and uptiold the sub'mission of no case. This is
reached the
totality of the evidence 1ed by the prosecution has not
the Respondent within the authority of state
standard to warrant
u. Ali Kassen {supral and, Apaloo u. The Republic (supra} to

open his defence.

qfl
This is because the evidence of virtually all the prosecution

rvitnesses including PWl Mangowa Ghanney through PW9, with the

evidence of the Pw7, PWB and PW9 t]'at I have highlighted on, as
aforementioned, all go to bolster the defence of the Respondent.
Since the lead judgment has touched on the substance of the

evidence of the other witnesses, I think it would only be repetitive to

rehearse them here.

In case any 1ay mind poses the question: If the Respondent is not

found guilty by the trial court, how come that the supreme court in
its judgment asked Respondent to refund the GH051,283,480'59 to
the State? one reason is that the standard of proof in a criminal

trial is higher than in a civil case.

I would confirm the decision of the trial judge and dismiss the

appeal.

$ (sgd-)

rl'.''
{.-
L. L. MENSAH
il JUSTICE OF APPEAL

COUNSEL:
. Yvonne A. Obuobisa (Ag. DP.P) for the Appellant.

. Ken Anku for the ResPondent.

91