A three-member panel of the Court of Appeal unanimously allowed Sedinam Tamakloe’s appeal, quashed her convictions and sentences, and acquitted and discharged her. The 94-page judgment was delivered by Justice E. Ankamah, with Justices S. Diawuo and E. S. Amedahe concurring.
The judgment can be reduced to the following questions and answers. As always the Without Tears series are offered without opinion or commentary.
- What was the case about? Sedinam Tamakloe, a former CEO of MASLOC, and Daniel Axim, its former Operations Manager, were prosecuted over several MASLOC transactions. The prosecution alleged, among other things, that:
- Obaatanpa Microfinance delivered a GH¢500,000 cash refund directly to Sedinam, which she dishonestly appropriated;
- Sedinam and Daniel Axim misappropriated money released for nationwide sensitisation, monitoring, training and financial-literacy programmes;
- Sedinam misappropriated GH¢579,800 intended for victims of the Kantamanto market fire;
- Sedinam executed a contract for the procurement of 350 vehicles without obtaining the required approval from the Public Procurement Authority;
- the prices quoted for those vehicles were substantially higher than the vendor’s alleged retail prices, even though tax waivers had been obtained;
- MASLOC paid GH¢93,412 for 200 mobile phones allegedly worth GH¢24,400 on the open market; and
- improper ex gratia and leave payments were made to Sedinam and her deputy.
Sedinam and Daniel Axim faced 78 counts involving stealing, conspiracy, wilfully causing financial loss to the State, causing loss to public property, money laundering, improper payment of public funds, unauthorised financial commitments and breaches of the Public Procurement Act.
The prosecution called seven witnesses to make their case. Sedinam attended the greater part of the trial. On 30 July 2021, she obtained the release of her passport to travel abroad for medical review, on condition that she would return to court on 10 October 2021. She did not return.
On 18 January 2022, the High Court held that she had absconded in breach of her bail conditions. Her sureties were directed to produce her, failing which their recognisances would be forfeited. Their bonds were eventually forfeited on 24 January 2023.
The trial continued in Sedinam’s absence. On 16 April 2024, the High Court convicted her on all the counts against her and imposed several concurrent sentences. The effective prison term was 10 years.
On 9th May, 2024, she appealed.
- What did Sedinam argue on appeal? Her notice of appeal contained nine grounds. Ground (a) was the broad complaint that her convictions were unreasonable and could not be supported by the evidence. Grounds (b) to (h) each simply stated that the trial court had erred in convicting her of a particular category of offences. Ground (i) complained that the sentence was harsh and excessive.
Her arguments were essentially that:
- several charges were defectively drafted and did not adequately identify the acts or omissions attributed to her;
- the prosecution failed to prove the essential ingredients of the offences beyond reasonable doubt;
- the trial judge wrongly shifted the burden to her to prove that she had authority, followed the proper procedures or used the money for its intended purposes;
- the evidence did not support the individual convictions; and
- the sentence was harsh and excessive.
- Could she appeal while she was outside Ghana?
The Republic argued that, because Sedinam was a fugitive when she filed the appeal, she should not be permitted to challenge her convictions.
The Court rejected that objection. It held that neither the Constitution nor any Ghanaian authority cited by the Republic deprived a person convicted in absentia of the right to appeal.
Sedinam had filed her appeal within time and in the manner required by law. Her absence from Ghana therefore did not deprive the Court of Appeal of jurisdiction to hear her case.
- What happened to seven of her grounds of appeal?
The Court struck out grounds (b) to (h) because they merely stated that the trial court had “erred” in convicting Sedinam without explaining the alleged errors.
In simple language, it is not enough to tell an appellate court: “The judge was wrong.” The appellant must also explain: “This is precisely what the judge did wrong, and this is why it was legally wrong.”
However, striking out those seven grounds did not end the appeal. The Court still considered ground (a): the broad complaint that the convictions were unreasonable and unsupported by the evidence.
- Were the charges defective? The Court held that several charges were manifestly defective because they did not provide sufficient particulars of the acts, omissions or transactions said to constitute the offences.
This was not simply a complaint about poor grammar or the incorrect numbering of the counts. In a criminal trial, an accused person must be told with reasonable clarity what she allegedly did. A charge should not merely name an offence; it must provide enough factual detail to enable the accused to understand and answer the allegation.
However, the Court did not decide the appeal solely because some charges were defective. It independently examined whether the prosecution’s evidence proved the offences.
- What was the central error made by the trial judge?
The Court held that the trial judge repeatedly reversed the burden of proof. Several charges alleged that Sedinam acted:
- “without authority”; “without approval”; or “without due process.”
The trial judge reasoned that, because the prosecution had alleged the absence of authority or approval, Sedinam had to prove that she possessed the necessary authority or had followed the required procedure.
The Court of Appeal held that this was wrong. A prosecutor cannot shift the burden of proof merely by framing an allegation negatively.
Unless a statute expressly provides otherwise, it remains the prosecution’s duty to prove every ingredient of the offence, including the alleged absence of authority, approval or due process.
An accused person’s failure to testify, return to the country or offer an explanation cannot be used to complete an otherwise deficient prosecution case.
- What did the Court decide about the GH¢500,000 Obaatanpa refund?
The prosecution’s case was that Obaatanpa returned GH¢500,000 in cash directly to Sedinam and that she acknowledged receiving it in a letter.
The Court found serious evidential problems. The original acknowledgment letter was not produced. The document tendered was a copy obtained from Obaatanpa. No corresponding MASLOC copy was produced, even though the reference number on the letter suggested that MASLOC should have retained one.
The MASLOC officials who testified had not seen an original MASLOC copy against which the document could be compared.
The Chairman of Obaatanpa also claimed that he had exchanged WhatsApp messages with Sedinam concerning the refund. Those messages were not produced.
Moreover, after the alleged cash refund, Sedinam continued signing letters demanding interest from Obaatanpa on the GH¢500,000 investment. The Court considered that conduct difficult to reconcile with the claim that she had already received the money in cash.
The Court held that the prosecution had not proved beyond reasonable doubt that Sedinam received the GH¢500,000.
Without proof of receipt, dishonest appropriation could not be established. The conviction and sentence relating to that money were therefore set aside.
- What did the Court decide about the sensitisation, monitoring and training funds?
The prosecution alleged that Sedinam and Daniel Axim stole GH¢1,816,000 released for sensitisation and monitoring programmes, even though the MASLOC Board had approved GH¢1,706,000. Sedinam was also accused of appropriating other amounts intended for training, sensitisation and financial literacy.
The prosecution’s case was that the programmes either did not occur or occurred only on a very limited scale.
The Court held that the prosecution did not prove beyond reasonable doubt that Sedinam stole the money. The prosecution did not call the relevant regional officers or beneficiaries who could give direct evidence about whether the programmes took place.
Instead, the trial judge expected Sedinam to prove that the funds had been properly used. The Court held that this again wrongly transferred the prosecution’s burden to the accused.
- What about the Kantamanto fire-victim funds?
The prosecution alleged that Sedinam dishonestly appropriated GH¢579,800 intended for victims of the Kantamanto market fire.
However, one prosecution witness admitted that enquiries had established that the funds had been distributed to the victims. Another witness had confirmed this to him, although that information was omitted from the report tendered in evidence.
The Court held that this admission struck at the foundation of the stealing charge. If the funds had been distributed to the intended victims, the allegation of dishonest appropriation could not be sustained. The conviction and sentence relating to the Kantamanto funds were therefore set aside.
- What happened to the money-laundering convictions?
They were set aside. The alleged stealing offences were the underlying or “predicate” offences supporting the money-laundering charges. In simple terms, the prosecution first had to prove that the money was the proceeds of an unlawful activity.
Once the prosecution failed to prove the relevant stealing offences, it could not establish that the money was the proceeds of crime. The legal foundation of the money-laundering convictions therefore disappeared.
- What did the Court decide about the ex gratia and leave payments?
The Court set aside the convictions for improper payment of public funds. MASLOC’s Head of Finance testified that his office processed and authorised the payments based on appointment documents issued by the Chief of Staff at the Office of the President.
He said that he found nothing wrong with the documents and authorised the payments on that basis.
There was no evidence that Sedinam personally authorised an improper payment; deceived the Finance Department; made a misrepresentation; presented false documentation; or caused a payment to be made contrary to an identified verification procedure.
The prosecution therefore failed to prove the offence beyond reasonable doubt.
- What about the GH¢61.7 million vehicle commitment?
The conviction for making an unauthorised commitment resulting in a financial obligation for the Government was also set aside. The prosecution alleged that Sedinam made commitments amounting to approximately GH¢61.7 million without authority and without following the proper procedures.
The Court held that the prosecution did not identify the applicable verification procedure or demonstrate precisely how Sedinam breached it.
The evidence also showed that the Ministry of Finance had written to the Public Procurement Authority confirming that the financing arrangements for the vehicles were under consideration.
It was not Sedinam’s responsibility to prove that she had authority. It was the prosecution’s responsibility to prove beyond reasonable doubt that she did not.
- What did the Court decide about the procurement charges?
The procurement convictions were set aside. The Court found that the prosecution did not prove beyond reasonable doubt that the required approval had been withheld.
It also noted that Sedinam did not authorise payment for the 350 vehicles during her tenure. Her successor renegotiated the prices and authorised payments in 2017 and 2018, after Sedinam had left office. The Court therefore held that the prosecution failed to prove the procurement offences charged against her.
- Did the Court merely reduce the 10-year sentence?
No. It went much further. The Court held that all Sedinam’s convictions had to be quashed. A sentence is the legal consequence of a valid conviction. Once the convictions were set aside, there was no lawful sentence left to reduce.
The complaint that the sentence was harsh or excessive therefore became moot, meaning there was no longer any need for the Court to decide it.
- What was the final result?
The Court of Appeal held that:
- the prosecution’s evidence fell short of proof beyond reasonable doubt;
- the trial judge wrongly required Sedinam to prove authority, approval, proper procedure and proper use of funds;
- the manner in which an offence is drafted cannot relocate the burden of proof;
- an accused person’s absence or failure to testify cannot be used to fill gaps in the prosecution’s evidence; and
- the convictions and sentences on all the charges against Sedinam could not stand.
Accordingly, all her convictions and sentences were quashed, and she was acquitted and discharged.
- Does the judgment say that nothing went wrong at MASLOC?
No. An acquittal or the quashing of a conviction does not necessarily mean that every transaction was proper, prudent or administratively defensible. It only means that the specific criminal offences charged against Sedinam were not proved beyond reasonable doubt according to law.
Criminal suspicion, unanswered questions, administrative failures and even financial irregularities are not substitutes for proof of every ingredient of a criminal offence.
- What is the judgment’s central lesson?
The burden of proving guilt belongs to the prosecution. It cannot be shifted merely because an allegation is expressed negatively; information may be more readily available to the accused; the accused does not testify; the accused is tried in absentia; or the accused offers no explanation.
As Justice Ankamah explained, requiring otherwise would mean asking an accused person to complete the prosecution’s unfinished work and then convicting her for declining the invitation.
PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.
Da Yie!
By: Professor Kwaku Asare, popularly known as Kweku Azar, a lawyer and Professor of Accounting.