The High Court in Accra has declined an application by former National Food Buffer Stock Company Chief Executive Officer, Hanan Abdul-Wahab Aludiba, to compel the Attorney-General to disclose a number of documents sought by the defence, ruling that the prosecution cannot be ordered to produce materials which are not in its possession or that of the investigating agency.
The court, however, ordered the prosecution to disclose four categories of documents after finding that they were relevant to the charges before it.
The ruling followed an application by counsel for the first accused, Richard Gyambiby, holding brief for Godfred Yeboah Dame, seeking an order compelling the prosecution to make full disclosure of documents which the defence argued were necessary to prepare its case.
Aludiba and his wife, Faiza Seidu Wuni, are facing charges including stealing, causing financial loss to the state and money laundering. The accused persons have denied the charges.
The matter was adjourned to July 30, 2026, for continuation.
Defence application
Moving the application, Mr Gyambiby argued that the prosecution had failed to fully comply with its disclosure obligations.
He told the court that although the Attorney-General had indicated that minutes of NAFCO board meetings from 2017 to 2024 had been disclosed, several years, including 2018, 2019 and 2020, were missing, while only one set of board minutes had been provided for 2023.
He said the defence had also requested schedules of board meetings and waybills retrieved from the Ministry of Education, which he described as potentially exculpatory evidence. According to counsel, the waybills would show that the relevant documents had been verified before payments were made to NAFCO for onward payment to vendors.
He further sought documents obtained from suppliers, internal audit reports for 2017 and 2018, records relating to accounts used in processing cheques and information on the number of secondary schools supplied by NAFCO.
"The documents that we have requested are connected to this case and are necessary for the accused person to prepare his defence. Non-disclosure is a potent source of injustice," Mr Gyambiby submitted.
Prosecution's response
Opposing the application, Deputy Attorney-General Dr Justice Srem-Sai argued that the prosecution had already disclosed all documents in its possession that were relevant to the case.
He submitted that the law on disclosure was intended to prevent the concealment of exculpatory evidence and did not require the prosecution to produce documents that were not in its possession.
"The duty to disclose is not a duty to defend an accused person," Dr Srem-Sai told the court.
He explained that although the prosecution had written to a number of institutions requesting documents, the fact that such requests had been made did not mean the documents had come into the possession of the prosecution.
Dr Srem-Sai added that if the court identified any undisclosed document in the prosecution's possession that was connected to the case, the Republic would disclose it.
Court's ruling
The court held that the prosecution's obligation to disclose documents extended to materials in the possession or control of the Attorney-General, its staff and the investigating agencies, but not to documents held by other public institutions outside that control.
The court observed that although the Ministry of Education had invited the Economic and Organised Crime Office to examine outstanding documents, there was no evidence that the investigators had done so.
The court therefore declined to compel the Attorney-General to disclose documents which the prosecution had consistently maintained were not in its possession or in the possession of the investigators.
Four documents to be disclosed
The court, however, found that four categories of documents listed in the defence application as Items 22, 29, 42 and 43 were connected to the charges before it and ordered the prosecution to disclose them.
The court declined to order the disclosure of other requested documents, including those relating to a GH¢78,000 transaction, holding that they were not connected to the offences charged.
