An Accra High Court trying some former managers of the National Communication Authority (NCA) has slated May 12 to give its judgement but one of the accused persons had secured his freedom from a higher court.

Dr Nana Owusu Ensaw, third accused person (A3), whom together with four others had been put before His Lordship Justice Eric Kyei Baffour for over two years for a $4 million Pegasus equipment deal, application for ‘Submission of no case’ was upheld by the Court of Appeal.

Dr Ensaw’s fate was decided by a 3-member panel, which include Justice Suurbaareh, Justice Bright Mensah and Justice Victor Ofoe as chair.

The panel in a unanimous decision, ruled that the trial High Court failed to establish a prima facie case against the third accused person and in effect, the low court misapplied the law.

This was as the High Court acquitted the third accused person of four charges levelled against him by the state while urged him to answer the two remaining counts that were not criminal in nature.

According to the panel: “The criminal appeal succeeds and the order of the High Court directing you to open your defence in respect of count three and fourteen is hereby dismissed.”

This decision in effect acquitted and discharged Dr Nana Owusu Ensaw of all the charges balled up against him by the state.

High Court on 3rd Accused Person

Meanwhile, Justice Eric Kyei Baffour held that the offence of stealing or conspiracy to steal and its symbiotic relationship to the offence of dishonestly receiving under section 147 of Act 29 by virtue of section 156 of Act 30 cannot at this time be lost on the court. Conversely section 148 introduces a dynamic provision which has been called by Justice Twumasi in his work, Criminal Law in Ghana, as the doctrine of ‘recent possession.

 The section makes it possible for in a charge of an offence of dishonestly receiving where anything which is reasonably suspected of having been stolen or unlawfully obtained in the possession or custody of an accused, and the accused does not give an account, to the satisfaction of the Court, as to how he came by it, the property may be presumed to had been stolen or unlawfully obtained and the accused may be presumed guilty of dishonest receiving in the absence of evidence to the contrary.

The learned author notes that the fact that the person charged is proved to have in his possession any property is evidence from which the court or the jury may but not must, infer guilty knowledge unless the accused gives an explanation in a satisfactory manner as to how he came by that property and must be one that must raise reasonable doubt as to his guilt.

Justice Kyei Baffour, further ruled A3 is not charged with dishonestly receiving but with the offence of conspiracy to steal and due to section 156 of Act 30, that connects stealing with dishonestly receiving, I deem it necessary that an opportunity be offered A3 to explain further how the $300,000 as obtained and deposited almost contemporaneous to the time that the withdrawals of A5 started.

Accordingly, he said “I find prosecution has established prima facie case in respect of count 3 against A3. With prosecution having made a prima facie case of the commission of the offence under count 3 against A3, being a predicate offence which yield proceeds, a prima facie case of money laundering has been established and I invite A3 to also open his defence in respect of count 14. I intend to further deal and expand this technical area of the law in the final judgment of the court. I, however, acquit and discharge A3 in respect of counts 1, 2, 7 and 17.” 

The High Court, nevertheless, will be delivering its judgement in the substantive case on May 12, which the fate of other accused persons -Eugene Baffoe-Bonnie; the former Board Chair of the National Communication Authority (NCA), William Tetteh Tevie, former Director-General of the NCA, a former board member; Alhaji Salifu Mimina Osman, a former Deputy National Security Coordinator and businessman George Derek Oppong- would be decided.

Prosecution Witnesses

The state called six prosecution witnesses- the Director of Legal Administration at the National Communications Authority (NCA); Abena Awarkoa Asafo Adjei, Dr. Isaac Yaw Ani; Deputy Director General in charge of Management and Operations at the National Communications Authority (NCA), Henry Kanor; Deputy Director General in charge of Technical Operations at the National Communications Authority (NCA), Colonel Michael Kwadwo Poku; Director of Operations at the National Security, Deputy National Security Coordinator; Duncan Opare, and Detective Chief Inspector Michael Nkrumah; Investigator of the case.

Defence of Accused Persons

All the accused persons when they took turns to open their defence testified on their own and none called any defence witnesses in support of their cases.

The High Court

Justice Eric Kyei Baffour, a Court of Appeal judge who presided as additional High Court judge on March 10 after the Director of Public Prosecution (DPP) Yvonne Attakorah-Obuobisa finished with cross-examining Mr Oppong, urged lawyers for both accused persons and the state to simultaneously file their submission on April 20.

*Background*

According to the facts of the case as presented by the Attorney General, Baffoe-Bonnie, Tevie, Ensaw and Osman were allegedly aided by Oppong to engage in the criminal act. The brief facts state that the previous administration had contracted an Israeli company, NSO Group Technology Limited, to supply a listening equipment at a cost of $6 million to enable the authorities to monitor conversations of persons suspected to be engaged in terror activities. A local agent, Infraloks Development Limited, charged $2 million to facilitate the transaction, bringing the total sum to $8 million. The facts further explained that the National Security did not have the money to fund the transaction and for that reason the NCA, which had supervisory jurisdiction over the use of such equipment, was asked to fund the project.

It said $4 million was withdrawn from the NCA’s account, while $1 million out of the withdrawn amount was deposited into the account of the Israeli company. The A-G explained that the remaining $3 million was lodged in the account of Oppong, who acted as a representative of the local agents, Infraloks Development Ltd.

The State closed its case against the accused persons on the 18th of April 2019, following which the accused persons chose to exercise their rights under section 173 of Criminal and Other Offences Procedure Act (Act 30) to file ‘Submissions of No Case.’

By Bernice Bessey