Defence has no basis for making submission of no case

The prosecution in the case in which Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation (GNPC) is standing trial for causing financial loss to the state on Monday told an Accra Fast Track Court (FTC) that the Defence Team had no basis making a submission of "no case".

Tsikata is alleged to have cause the loss of 2.3 billion cedis to the state during his term of office. Osafo Sampong, Director of Public Prosecutions (DPP), was replying to submissions made earlier by the Defence counsel at the FTC presided over by Mrs. Justice Henrietta Abban, Appeal Court Judge with an additional responsibility on the case as a High Court Judge.

He said neither the Criminal Procedure Code nor the Courts Act make any provision for a submission of no case, but a practice had evolved over the years making it a time honoured tradition. "Making a submission of no case after the close of the case of the prosecution is not automatic", he pointed out.

The Prosecution Team includes Ms. Gloria Akuffo, Deputy Attorney-General (Leading), Anthony Gyambiby, Principal State Attorney and Augustines Obuor, Assistant State Attorney.

Tsikata is charged with four counts of wilfully causing financial loss to the state and intentionally misapplying public property. He has denied the charges and the court, has admitted him to a 700 million-cedis self-recognisance bail.

Tsikata will reappear before the FTC on Monday, 3 March, when Mrs. Justice Abban would give her ruling on the matter. Sampong stated that though the practice by some counsel to make a submission of no case had come up in recent times and that the circumstances under which a submission of no case could be made was when there has been no evidence to prove an essential element in the crime charged and when the evidence adduced by the prosecution has been so discredited as a result of cross examination.

The DPP told the court that "none of the prosecution witnesses was subjected to any rigorous cross examination to warrant claims that he had been discredited", adding that, "the evidence before the court were truthful and reliable and it can not be said that any of them had been so discredited that this court will find it unsafe to rely on".

Commenting on the practice direction, the prosecutor explained that Section 179(3)(a) which formed the basis of the first three counts stated that; "Any person through whose wilful, malicious or fraudulent action or omission makes the State incur a financial loss commits an offence and the penalty is set out in Section 179D".

He stated that Section 179D says "A person convicted of an offence under any of the offences specified in this chapter, is liable on conviction to a fine of not less than five million cedis or imprisonment not exceeding 10 years or both.

According to him, the ingredients of the offence were that 1. There was a loss, 2. The loss was financial and that 3. The financial loss was the result of the wilful act or omission of the accused person.

Sampong said there were pieces of evidence to show that Tsikata's conduct was wilful and reckless, adding that he operated outside the objects and functions of the corporation.

He emphasized that the PNDCL64 establishing the GNPC, confined or limited the functions and object of the corporation to promote exploration and development of petroleum and its core business was petroleum exploration and development, but the accused veered off intentionally to undertake cocoa farming.

He added that no decision in respect of this matter was even discussed at any board meeting of the GNPC, saying, "on the basis of this the accused should be called upon to open his defence, because all the essential elements of the offence have been established".

The DPP also said that the argument by defence counsel that Tsikata had been charged for a conduct, which was not an offence at the time it was committed was not tenable.

He said "this is because the actual payment and the loss to the corporation occurred in 1996 which is reflected in the charge sheet and we submit that all the acts of the accused were done after the amendment to the Criminal Code in 1993". The Prosecutor said "it is therefore, our submission that the investment in Valley Farm is outside the core object of GNPC as outlined by PNDCL64".

Sampong suggested that if the accused was talking about his Fundamental Human Rights, then that was not how it should be invoked, and that he must follow the proper procedure. Sampong said evidence had been led through the fifth prosecution witness in the case that 20 million-cedis that was invested in Valley Farms on behalf of GNPC was a public property.

According to him, the amount was intentionally misapplied and that the accused neither sought any professional advice nor the approval of GNPC Board of Directors. He said there was no doubt that the intentional and wilful action of Tsikata has caused a loss to the state.

The DPP said the minutes in various meeting books, exhibits and Tsikata's refusal to seek professional advice were deliberate and intentional. "Consequently, the submission of no case by the Defence should be overruled and the accused called upon to open his defence".

Earlier in his submissions, Professor Emmanuel Victor Oware Dankwa, counsel for Tsikata, told the court that since the prosecution had failed to establish a "prima facie" case against his client, he should be acquitted and discharged.

"It is our submission that the prosecution has woefully failed to prove all charges levelled against us," he declared. Quoting Article 19, Clause five of the Constitution to support his submission, Counsel pointed out that, "A person shall not be charged with or held to be guilty of a criminal offence which is founded on an Act or Omission that did not at that time take place and constitute an offence".

Counsel told the court that GNPC itself benefited directly from the guarantee agreement, which his client signed on its behalf with officials of Caisse Francaise Development. Counsel submitted further that none of the six prosecution witnesses led evidence to show the wilful action or omission of his client through which the State incurred a financial loss.