Inside Story: How Woyome was freed by Appeal Court
Business man Alfred Woyome yesterday walked out of the premises of the Court of Appeal a free man after the court exonerated him from the charge of causing financial loss to the state in the controversial GH¢51.2 million judgement debt paid to him by the state.
He escaped prison for the second time in a year after the court, in a unanimous decision, declined to grant the state’s prayer for the overturn of his acquittal and discharge granted by the High Court on March 12, 2015.
The High Court, presided over by Mr Justice John Ajet-Nasam, had acquitted and discharged Woyome on two counts of defrauding by false pretences, contrary to Section 131 (1) of the Criminal Offences Act, 1960, Act 29, and causing financial loss to the State, contrary to Section 179 A (3) (a) of the Criminal Offences Act (1960) Act 29.
But the state appealed on the grounds that the trial judge erred in law in not considering the evidence adduced by the prosecution.
“Truth will not die”
“This judgement is comprehensive; take it and read it. It has everything in it. So I’m encouraging you to believe in your God first and also believe in the court system and its affiliates.” — These were the exact words of Woyome to journalists after the three-member panel had thrown out the appeal calling for his incarceration.
“No matter, whatever, truth will not hide. Truth will come up. Today, all those who have insulted me because of falsehood and false information, I have forgiven them,” Woyome added.
The court, presided over by Mr Justice Victor Ofoe, dismissed the state’s appeal over criminal charges against Woyome, pointing out that state prosecutors failed to establish allegations of fraud against the National Democratic Congress (NDC) financier.
The court, which had Mr Justice Francis Korbieh and Mr Justice L. L. Mensah as the other panel members, was also of the opinion that all the grounds upon which the state accused Woyome of causing financial loss to the state failed before them.
Woyome was paid GH¢51.2 million after he claimed he had incurred losses for financially engineering 1.1 billion Euros for the CAN 2008 tournament and other government projects.
However, the Auditor-General’s report released in 2010 said the amount was paid illegally to him.
The report resulted in nationwide controversy, with operatives of the New Patriotic Party (NPP) who were in government during the CAN 2008 tournament claiming Woyome did no work to be paid that whopping sum of money.
The then Attorney-General, Mr Joe Ghartey, said Woyome was contracted to help in raising money for the construction of the stadia but he failed to meet the deadline.
The then NPP government, he said, had no choice but to abrogate the contract with Woyome.
In 2009, when the NPP had left office, Woyome went to court and claimed that his contract had illegally been terminated and demanded a judgement debt from government.
The Attorney-General in Prof. Mills administration, Mrs Betty Mould-Iddrisu, who failed to defend the state, rather negotiated with Woyome for him to reduce his demand on the government.
Woyome then requested for GH¢51.2 million
Later, the Attorney-General’s Department went to court with a consent judgement and the court accepted and asked the Attorney-General to pay the amount in three tranches of GH¢17 million each to Woyome, with a directive that only the first tranche should be paid until after the trial.
The court also asked Woyome to present an undertaking that in the event that he lost the case, he would refund the first tranche of GH¢17 million but that he would be paid the two other tranches if he won.
That notwithstanding, however, the Attorney-General paid all the three tranches.
In 2010, Mr Martin Amidu was appointed Attorney-General to replace Mrs Mould-Iddrisu.
On his appointment, Mr Amidu caused the arrest of Woyome for him to be charged for causing financial loss to the state.
While prosecuting the case, Mr Amidu was sacked from government and replaced with the substantive Attorney-General, Mrs Marietta Brew Appiah-Opong.
Court of Appeal’s decision
In a unanimous decision delivered on behalf of the court by Mr Justice Ofoe, the Court of Appeal held that the High Court was justified in freeing Woyome because the state failed to prove his guilt beyond reasonable doubt.
Refusing to set aside the High Court decision, the Court of Appeal was of the view that Woyome made a legitimate claim after he had procured 1.1 billion Euros for the government from Banc Austria.
It said it was immaterial whether or not the government received the money and especially after the government had failed to accept Banc Austria’s offer by a September 30, 2005 deadline.
Justice Ofoe’s position
Reading the lead judgement of the court, Mr Justice Ofoe said after evaluating the evidence of the prosecution witnesses, “all stakeholders said he was entitled to the claim”.
The stakeholders here are the Attorney-General’s office, the Ministry of Finance, the Bank of Ghana, the Local Organising Committee of CAN 2008 and Building Industry Consultants (BIC).
He said it was also clear from the record of proceedings and the judgement of the High Court that Woyome’s claim was distinct from money paid him by his business partner, Waterville Holdings, over the same project.
Making reference to the Courts Act of 1993 (Act 459), Mr Justice Ofoe said Section 31 (2) holds that “an appellate court, on hearing an appeal in a criminal case, shall allow the appeal if the appellate court considers (a) that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or (b) that the judgement in question ought to be set aside as a wrong decision on a question of law or fact, or (c) that there was a miscarriage of justice, and in any other case shall dismiss the appeal.”
Considering the state’s grounds of appeal which stated, among other things, that the trial judge erred in law when he stated that the prosecution woefully failed to establish a prima facie case against Woyome, Mr Justice Ofoe said that position was flawed.
Describing Woyome’s petition to the state claiming the amount as valid, the judge said the money was claimed on behalf of Woyome and his partners, but the letter created the impression that it was for Woyome alone.
“This perhaps informs the state’s position that he was not party in the bid process,” Mr Justice Ofoe noted and argued that it was false for the state to hold that Woyome was not part of the bid process for the CAN 2008 stadia project.
Moving to the defence of Woyome, Mr Justice Ofoe said nowhere did Woyome claim he had secured money which was ready to be withdrawn by the government from the Banc of Austria .
“The government had up to September 30, 2005 to accept the offer from Banc Austria,” he noted, and held that the fraudulent misrepresentation accusation levelled against Woyome by the state could not hold because “it was clear the money was yet to come”.
Contract with government
Touching on the state’s claim that the government had no contract with Woyome, Mr Justice Ofoe was emphatic that Woyome’s claim was based on the tendering process, which was terminated in 2005, as well as his claim for financial engineering and the concurrent approval for his partners by the Central Tender Review Board (CTRB).
Wholly accepting Woyome’s defence that he was, indeed, entitled to make the claim, Mr Justice Ofoe said the state failed to prove Woyome had defrauded it by false pretence.
Disagreeing with the High Court judge that the state should have called Mrs Mould-Iddrisu; her deputy, Mr Barton Odro; a Chief State Attorney, Mr
Samuel Nerquaye-Tetteh, and Mr Paul Asimenu of the Legal Department of the Ministry of Finance to testify, Mr Justice Ofoe said that was not necessary because “it was clear” what Mrs Mould-Iddrisu and co. would have told the court.
That, according to him, was because those officials had all approved payment to Woyome and as result their evidence would not have inured to the benefit of the state in any way.
Justice Ofoe said Mrs Mould-Iddrisu “talked law” when she said Woyome was entitled to his claim.
He said the prosecution failed to meet the legal requirement to prove that Woyome defrauded by false pretence, adding that the acquittal of Woyome on that charge “cannot be reversed by the court”.
He said Woyome was right in his belief that he was entitled to the claim and accordingly dismissed the state’s position that Mr Justice Ajet-Nasam’s judgement was unreasonable.
Justice Korbieh’s position
Describing Justice Ofoe’s decision as “erudite”, Mr Justice Korbieh said Woyome’s guilt was not proved based on the totality of the evidence adduced by the prosecution.
He said Woyome made his claims “as a matter of right”, and for that reason his claim of right was available as a form of defence.
“It beats my mind that the claim of right of the respondent has not occurred to anyone,” Mr Justice Korbieh noted.
He said Woyome was entitled to his claim on “factual and legal basis”, stressing that “Woyome had legal and factual basis to claim the money”.
He explained that Woyome made the claim not based on the contract with government but the work he did in the form of financial engineering.
Betty Mould-Iddrisu was professional
Contrary to the state’s claim that Mrs Mould-Iddrisu was misled into approving Woyome’s claim, Mr Justice Korbieh held that the former Attorney-General was professional in her duties when she sanctioned the payment to Woyome.
According to him, Mrs Mould-Iddrisu did “a lot of consultation” before advising that Woyome be paid.
He disagreed with the prosecution’s argument that Woyome’s claim was “baseless and fanciful” and further went on to state that a prosecution witness,
Mr Yaw Osafo-Maafo, a former Minister of Finance, had approved of Woyome’s claim.
He further argued that Woyome did not obtain his judgement for the payment of the money through fraud, adding that the trial court was right in acquitting and discharging him.
Justice Mensah’s position
Aligning himself with the decisions of his colleagues, Mr Justice Mensah noted that the High Court judge had no choice but to acquit Woyome based on Section 11 (2) of the Evidence Act, 1975, N.R.C.D. 323.
Section 11 (2) of the Evidence Act states: “In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.”
He said the Commercial Court’s default judgement in 2010 which awarded judgement to Woyome after the state had put up a defence was “still valid”.
According to him, it was a “misplaced misconception” when the state claimed it had discharged its burden of proof to prove the guilt of Woyome beyond reasonable doubt.
Taking up the role to explain to the lay person why the Supreme Court had ordered Woyome to pay the GH¢51.2 million, Mr Justice Mensah said the standard of proof in a criminal trial was higher than in a civil trial.
It would be recalled that the Supreme Court recently dismissed Woyome’s request to pay back the GH¢51.2 million in three years after his promise to refund the entire cash by the end of December 2015 had elapsed.
The state has taken steps to attach his assets to recoup the money.
He has also served notice to challenge the Supreme Court’s order to him to pay up the money at the International Court of Arbitration.
• Alfred Agbesi Woyome was picked up on February 12, 2012 for allegedly putting in false claims to receive GH¢51.2 million from the government.
• He was on trial with three others, namely, Mr Nerquaye-Tetteh; his wife Gifty Nerquaye-Tetteh and Mr Paul Asimenu, a Director at the Legal Department of the Ministry of Finance and Economic Planning, but the three were later discharged after the state had filed a nolle prosequi.
• He was subsequently acquitted and discharged by the court on March 10, 2015 but the state challenged the acquittal, which was subsequently dismissed yesterday.