Court dismisses Forson, Jakpa applications - Advises A-G to recuse himself

Justice Agbenorsi Jun - 07 - 2024 , 02:49

The High Court has dismissed different applications inviting it to order mistrial, strike out charges and stay proceedings over a leaked audio between the Attorney-General (A-G) and Minister of Justice and an accused person in the case in which the Minority Leader in Parliament, Dr Cassiel Ato Forson, and a businessman are standing trial for allegedly causing a financial loss of €2.37 million to the state.

On the application inviting it to order an enquiry into the alleged conduct of the A-G as captured in the audio, the court held that it had no jurisdiction to undertake an enquiry into the conduct of the Attorney-General.

It instead stated that “jurisdiction in criminal proceedings must not be implied. It cannot be inferred”. In addition, the court said no legal basis had been provided by the applicant.
Dismissing the applications, Justice Afia Serwah Asare-Botwe, a Court of Appeal judge sitting with additional responsibilities as a High Court judge, advised the A-G not to be directly involved in the conduct of the case.

It was the view of the court that after listening to the audio, the allegation that the A-G, Godfred Yeboah Dame, told the businessman, Richard Jakpa, to implicate the Minority Leader did not come with evidence, adding that the statement was rather made by Mr Jakpa since the A-G was heard saying: “I am not asking you to help me”.

The judge said the suggestion by the A-G to the accused person to seek excuse from the court on medical grounds were matters outside the remit of the court, hence the right forum would be the General Legal Council.

Despite the advice by the presiding judge, the A-G continued to prosecute the case.

Applications

The applications ruled on were an order of enquiry into the conduct of the A-G following the allegations made by Mr Jakpa to the effect that the A-G has been calling him at odd hours; an order of mistrial with the aim of terminating the case; a stay of proceedings until the application was determined; and a motion asking the court to strike out charges against the businessman.

The Minority Leader and former Deputy Finance Minister, Dr Forson, filed three of the motions, while the last one was filed by the businessman.

Mistrial

On the issue of mistrial, Justice Asare-Botwe said it was only applied in jury trials or indictable offences, and not summary trials, adding that the applicant did not provide any legislation in the country’s domestic framework to support his application.

“As far as case law is concerned, there’s no provision for a court to declare a mistrial,” she said. The court wondered how the alleged interference by the A-G, which took place only two weeks ago, could lead to mistrial in a case which started more than two years ago, and all parties had admitted that the ambulances were not fit for purpose, and the prosecution and the Minority Leader had closed their cases.

“How can the alleged happenings of the last two weeks render everything that has happened in the last two years void?” she asked.

Restraining order

On the restraining order, it was the considered view of the court that the applicant had not demonstrated any exceptional circumstance to get the court to make such an order.
“Even the alleged error of law was not particularised, no ground of exceptional circumstances has been made,” she said.

Striking out

On the application inviting the court to strike out the charges against the businessman, the judge held that based on the evaluation of the audio recording, fair trial had not been endangered or prejudiced.

“On record, there is no evidence that any promises have been made or that there has been anything that has so undermined the case before the court as to render it void. “In any case, once the accused persons are in court and the evidence being put before the court, it is obvious that it is the duty of the court to assess the evidence and make a decision as to whether the quality of the evidence would be enough to support the charges.

It is not the work of the Attorney-General or any other party to assess the evidence and state that there was no likelihood of conviction,” she said. She said she did not think that a trial that had been ongoing for more than two-and-a-half years was the kind of matter that should terminate without fully interrogating it, adding “it is in the interest of justice and in the public interest that this matter be dealt with to its logical conclusion”.

Forson’s application

In his application, Dr Forson said the uncontested allegations made by Mr Jakpa reflected a collusion between the prosecution and the businessman, adding that it was a calculated agenda to incriminate him and desecrate and pervert the course of justice in the case.

He averred that the conduct of the A-G showed what he described as egregious violations of his right to fair trial, and sought to sabotage the ends of justice, praying the court to restrain the A-G from continuing with the prosecution of the case.

“I believe that the Attorney-General's decision to file the nolle prosequi against a former Chief Director at the Ministry of Health at the time he did and the collusive conduct now revealed by Mr Jakpa are all part of an unwholesome and well-orchestrated scheme or enterprise by the Attorney-General aimed solely at securing my conviction in this matter at all costs.

“That the impugned conduct stated above has caused me great apprehension and shaken my faith in the criminal proceedings, I say that this is an appropriate case for the court to order a mistrial or exercise its powers under its inherent jurisdiction to restrain the prosecution from further prosecuting this case or stay proceedings until the serious matters raised in this case against the A-G are inquired into and resolved,” Mr Forson averred.

Jakpa’s motion

In Jakpa’s motion seeking an order striking out the charges and terminating the proceedings, he argued that the charges and proceedings initiated by the A-G constituted an abuse of court processes and violated the obligations set in the 1992 Constitution.

He contended that the A-G was misusing his constitutional powers by prosecuting him without justification. Mr Jakpa also claimed that in private conversations, the A-G admitted that there was no case against him.

A-G’s response

The Office of the A-G in affidavits in opposition averred that it was in the public interest that the case be brought to a firm conclusion based on the credible evidence before the court.

In the case of Dr Forson, the affidavit in opposition argued that continuing his prosecution to its logical conclusion would uphold the principle of equality of all persons before the law and defeat the perception that the powerful and politically connected could get away with crimes because of undue pressure and false allegations.

Responding to claims by Jakpa, the affidavit in opposition indicated that although he levelled many untrue and wild allegations against the A-G in his affidavit in support, none of them attacked the integrity of the court or questioned any decision or action by the trial court which impeded the capacity of the court to administer justice in this case.

Prosecution’s facts

Mr Jakpa and the Minority Leader have been accused of causing a financial loss of €2.37 million to the state in a deal to purchase 200 ambulances for the country between 2014 and 2016.

They have pleaded not guilty to counts of wilfully causing financial loss to the state, abetment to wilfully causing financial loss to the state, contravention of the Public Procurement Act and intentionally misapplying public property.

Per the facts of the case presented by the prosecution, in 2009 while delivering the State of the Nation Address, the then President, Prof. John Evans Atta Mills, indicated that new ambulances would be purchased to expand the operations of the National Ambulance Service.

The facts said Mr Jakpa, who is a local representative of Big Sea General Trading Ltd, a company based in Dubai, subsequently approached the Ministry of Health with a proposal that he had arranged for finance from Stanbic Bank for the supply of 200 ambulances to the government.

Parliament approved the financing agreement between the government and Stanbic Bank. According to the facts, on November 19, 2012, Dr Anemana wrote to the Public Procurement Authority seeking approval to engage Big Sea through single sourcing for the supply of the 200 ambulances.

The facts added that on August 7, 2014, Dr Forson wrote to the Bank of Ghana for Letters of Credit covering €3.95 million for the supply of 50 ambulances in favour of Big Sea. The Letters of Credit were accordingly released to Big Sea.

It is the case of the prosecution that 10 of the ambulances delivered under the deal on December 16, 2014, were fundamentally defective, with some not even having any medical equipment in them, causing a financial loss to the state.

She added that the discussions captured in the audio were done after the court had established that the two accused persons had a case to answer.