THE REPUBLIC vs. GABRIEL DIMADO AND 10 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (FINANCIAL DIVISION)
    ACCRA - A.D 2014
THE REPUBLIC
GABRIEL DIMADO AND 10 OTHERS

DATE:  31ST JULY, 2014
CASE NO:  FTRM 135/11
JUDGES:  HIS LORDSHIP MR JUSTICE P. BRIGHT MENSAH
LAWYERS: 
JUDGMENT

Fourteen (14) persons were initially charged and arraigned before this court for various offences. At the close of the case for the Prosecution and pursuant to a Ruling delivered on 18/02/2013, 3 Accused persons, namely: A7 – RocksonApeadu; A9 – L/Cpl Isaac KwakuAsareDarko and A14 – Kofi Aboagyewere acquitted and discharged for lack of evidence. The court held that the Prosecution has been unable to establish a prima facie case against them. Consequently, the other 11 Accused persons were called upon to enter into their defence. It is of great relief that the marathon trial has come to an end and I now set out to deliver my judgment

 

The other Accused persons herein standing trial have pleaded not guilty to8 counts of Abetment of crime ie Unlawful exportation of cocoa contrary to Ss 20(1) and 317(1)(g) of the Criminal Offences Act, 1960 (Act 29) and 5 counts of Corruption by public officer contrary to S 239(1) of Act 29.

 

S.20(1) of Act 29 enacts:

 

“A person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilitates, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act or the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by another person, whether known or unknown, certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting that other person in respect of that criminal offence.”

 

The law also provides in S. 317(1)(g) of Act 29 as follows:-

 

“A person who exports or attempts to export cocoa contrary to the Customs, Excise and Preventive (Management) Law, 1993 (PNDC L 330) (which relates to the exportation of restricted or prohibited goods) commits a misdemeanour……….”

 

S.239(1) of Act 29 also provides:-

 

“A public officer or juror who commits corruption, or willful oppression, or extortion, in respect of the duties of office, commits a misdemeanour.”

 

The particulars of offences as contained in the charge sheet are as follows:

 

COUNT 1

PARTICULARS OF OFFENCE

(ABETMENT OF CRIME)

Gabriel Dimado, Stephen SowahQuaye, between January 2010 and March 2010, at Kunkumso in the Western region did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 2

PARTICULARS OF OFFENCE

ABETMENT OF CRIME)

William Festus Yawson, Frederick Kofiabley, between January 2010 and March 2010, at Bioso border in the Western Region did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 3

PARTICULARS OF OFFENCE

ABETMENT OF CRIME)

Prosper Edze, Eric AppeaduRockson, between January 2010 and March, 2010 near the Boiso border in the Western region did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 4

PARTICULARS OF OFFENCE

ABETMENT OF CRIME)

Adolf NiiArmah, between January 2010 and March 2010 at Ellanda Wharf Post in the Western region did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 5

PARTICULARS OF OFFENCE

(ABETMENT OF CRIME)

James KwekuDzameshie @ Alhaji, Michael Mate-Korle, Kofi Aboagyebetween January 2010 and March 2010, at Dadieso in the Western region did abet members of the Tiger Eye PI Team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 6

PARTICULARS OF OFFENCE

(ABETMENT OF CRIME)

Paul Dzamesi, No. 30825 G/Sgt Samuel Otoo, between January 2010 and March 2010 at Kwesi Nkrumah border, in the Western region did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 7

PARTICULARS OF OFFENCE

(ABETMENT OF CRIME)

Isaac K. Asare-Darko, betweenJanuary2010 and March 2010, at Aberewakrom in the Western region did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

COUNT 8

PARTICULARS OF OFFENCE

(ABETMENT OF CRIME)

No. 42682 Constable Samuel KwasiEkpeagba, between January 2010 and March 2010 at Boiso border, in the Western region did abet members of the Tiger Eye PI teamtounlawfully export cocoa to Cote D’Ivoire.

 

COUNT 9

PARTICULARS OF OFFENCE

(CORRUPTION BY PUBLIC OFFICER)

Gabriel Dimado, Stephen SowahQuaye, between January 2010 and March 2010 at Kunkumso in the Western region agreed to permit your conduct as CEPS Officers to be influenced by the prospects of valuable consideration from the Tiger Eye PI team.

 

COUNT 10

PARTICULARS OF OFFENCE

(CORRUPTION BY PUBLIC OFFICER)

William Festus Yawson, between January 2010 and March 2010, at Boiso border, in the Western region agreed to permit your conduct as a CEPS Officer to be influenced by an amount of GHS 400.00 from the Tiger Eye PI Team.

 

COUNT 11

PARTICULARS OF OFFENCE

(CORRUPTION BY PUBLIC OFFICER)

James KwekuDzamesi @ Alhaji, Michael Mate-Korle, Kofi Aboagyebetween January 2010 and March 2010 at Dadieso, in the Western region agreed to permit your conduct as CEPS Officer and Immigration Officers respectively to be influenced by the prospect of valuable consideration from the Tiger Eye PI team.

 

COUNT 12

PARTICULARS OF OFFENCE

(CORRUPTION BY PUBLIC OFFICER)

Paul Dzamasie, No. 30825 G/Sgt Samuel Otoobetween January 2010 and March 2010, at Kwasi Nkrumah border, in the Western region agreed to permit yourconduct as CEPS and Police officers respectively, to be influenced by the prospect of valuable consideration from one Alhaji, a cocoa dealer in Cote D’Ivoire.

 

COUNT 13

PARTICULARS OFFENCE

(CORRUPTION BY PUBLIC OFFICER)

No. 37316 L/Cpl Isaac K. Asare-Darko, between January 2010 and March 2010 at Aberewakrom, in the Western region agreed to permit your conduct as a Police officer to be influenced by an amount of Gh¢400.00 from the Tiger Eye PI team.

 

BRIEF FACTS OF THE CASE:

The facts are simply that Ghana Cocoa Board somewhere in December, 2009 contracted the ace undercover journalist AnasAremeyawAnas and his team to conduct investigations into why Ghana was still losing cocoa across the western frontiers due to smuggling although the Board had always sent the Police, the Immigration Service and the National Security to the place to ensure that no cocoa was smuggled across into the La Cote d‘Voire. Consequently, between January and March, 2010 Anas and his team set out to carry their mandate of investigations into activities of smugglers across Ghana’s frontiers with Ivory Coast.Their undercover investigations took them to places like Dadieso, Enchi, Omanpe, Boiso, KwesiNkrumahkrom and NkraNkwanta where the Accused persons were stationed as Customs, Excise & Preventive Service (CEPS) officers, Police and Immigration Officers respectively.

 

It is alleged that all the Accused persons compromised their positions and negotiated and took various sums of money from Anas and his team thus paving the way for the team to smuggle cocoa from Ghana across the border to the La Cote d’Voire. According to the Prosecution, the Accused persons were positioned at various check points and border posts where Anas and his team operated. The Accused persons in their capacity as security personnel played diverse roles in assisting and facilitating the team to smuggle some cocoa to Ivory Coast.

 

It is further alleged that Anas filmed his negotiations with the Accused persons who were captured in the filming taking money from the team as fees to allowing them to smuggle the cocoa. The team had presented themselves as cocoa smugglers to the neighbouring Ivory Coast.

 

When the team had wound up its activities and returned to Accra, it presented its findings including the filming to the Ghana Cocoa Board. The matter was subsequently reported to the Police and the Accused persons were invited for interrogation after which they were variously charged with these offences. Upon their arraignment, all the Accused persons pleaded not guilty which meant that burden was cast on the Prosecution to prove their guilt beyond reasonable doubt.

 

It recalls that the court by its Ruling delivered on has held that the Prosecution at the trial established a prima facie case against these 13 other Accused persons. In that ruling I did also state the principle that at the end of the case of the Prosecution the court did not have the mandate to make findings of fact at that stage of the trial when the Accused has not otherwise been given the opportunity to state his defence. That will amount to mistrial and or miscarriage of justice. Now that the full trial has come to an end I proceed to make my findings of facts by evaluating the evidence offered by the Accused persons in response to the prima facie case already established by the Prosecution.

 

The law of duty on the Prosecution:

 

Both under statute and at common law, the Prosecution carries the burden of establishing the guilt of the Accused beyond reasonable doubt. It is enacted in S.13(1) of the Criminal Offences Act, 1960 (Act 29):

 

Denning J (as he then was) has postulated:

 

“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of courseit is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”[1]

 

But whereas the Prosecution carries the burden of proving the guilt of the Accused beyond reasonable doubt, the Accused carries no such burden of proving his innocence. At best he has to raise a doubt in the case of the Prosecution. Of course the settled rule is that that doubt ought to be reasonable and not fanciful. The standard in doing so is on the preponderance of probabilities. Preponderance of probabilities has defined by Section 12(2) of the Evidence Act, 1975 (NRCD 323) as follows:

 

“…………..that degree of certainty of belief in the mind of thetribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than itsnon-existence.”

 

THE CASE AGANST GABRIEL DIMADO (AI):

 

Gabriel Dimado faces 2 counts of Abetment of Crime and Corruption of Public Officer.

 

In the case of the offence of Abetment it is alleged that between January 2010 and March 2010, at Kunkumso in the Western Region he did abet members of the Tiger Eye PI team to unlawfully export cocoa to Cote D’Ivoire.

 

It is also alleged that between January 2010 and March 2010 at Kunkumso in the Western Region Gabriel Dimado agreed to permit his conduct as CEPS Officers to be influenced by the prospects of valuable consideration from the Tiger Eye PI team.

 

The lead and star witness for the Prosecution, AnasAremeyawAnas (PW1) is an undercover journalist working with the New Crusading Guide Newspaper. According to him, he has been an undercover journalist 12 years as at the time he was first offering his evidence in this case on 02/06/2011. He undertakes under-cover journalism with a team labelled“Tiger Eye”.

 

In his sworn testimony to the court on the said 02/06/11 PW1 did indicate that he was contacted by the Ghana Cocoa Board to undertake the exercise that initiated the prosecution of the Accused persons herein.He did explain that the Ghana Cocoa Board had given the basis for contacting him that they (Cocoa Board) had previously sent personnel from the Ghana Armed Forces, the Ghana Police Service, Ghana Immigration Service as well as some security operatives from the National Security to Ghana’s frontiers with La Cote D’voire to check cocoa smuggling. Yet cocoa smuggling across the borders continued to flourish. In the strength of that he was contacted to do some undercover investigations into the concerns raised. He agreed to undertake the exercise.

 

He continued that he together with his team pitched their camp at Enchi and used that place as their headquarters from where they moved to other places. The investigations took them to such places as Bioso, Dadieso, Abrewakrom, Nkrankwanta, and Kunkumso.