Godfred Yeboah Dame
The Attorney General and Minister for Justice, Godfred Yeboah Dame, has filed an appeal at the Supreme Court challenging the decision of the Court of Appeal which acquitted Minority Leader, Dr. Cassiel Ato Forson and businessman, Richard Jakpa in the €2.37 million ambulances trial.
According to the notice of appeal filed yesterday, the decision of the majority Bench failed to give due consideration to the case of the prosecution, as required by law, in the determination of whether a case had been made for the accused to answer.
The notice, which was signed by the Director of Public Prosecutions, Yvonne Atakora Obuobisa, also argues that the decision of the Court of Appeal acquitting the accused is erroneous and “is unreasonable having regards to the evidence on record.”
Acquittal
The Court of Appeal on July 30, 2024, acquitted Dr. Cassiel Ato Forson and Richard Jakpa who were standing trial for causing €2.37 million financial loss to the state in the purchase of 200 ambulances for the Ministry of Health.
The court in a 2:1 split decision upheld an appeal against the decision of the High Court which had held that the prosecution established prima facie against the two, and subsequently ordered them to open their defence.
The majority decision, by Justice Kweku Ackah-Boafo and Justice Philip Bright Mensah, also held, among other things that, the accused were at no fault as it was the Ministry of Health’s default that caused a financial loss to the state and not the accused persons.
Justice Alex Poku Acheampong, who presided, in his dissenting view said the trial judge did not err in her decision and was right in asking the two to open their defence.
Appeal
But the Office of the Attorney General had filed a notice of appeal challenging the decision of the majority, arguing that the court committed an error in law when it held that the accused had no case to answer, hence their acquittal.
According to the grounds of appeal, “The majority on the Court of Appeal misdirected itself in the application of the fundamental principles regarding the standard of proof required in determining whether a case has been made for the accused persons to answer.”
It avers that the majority on the Court of Appeal unnecessarily dwelt on possible defences for the accused in determining whether a case had been made by the prosecution.
“The majority’s consideration of possible defences for the accused persons showed that the accused persons indeed had a case to answer and the trial court was justified in calling upon the accused to open their defence,” it argues.
It further argues that the majority on the Court of Appeal’s consideration of possible defences for the accused persons at the close of the prosecution’s case was unfair to prosecution, since the prosecution had indeed discredited those defences in cross-examination of witnesses called by the accused by the time of the judgment of the Court of Appeal.
“The majority on the Court of Appeal failed to appreciate the relevant factors in determining whether a prima facie case has been established for the accused persons to answer, viz. whether the evidence given by the prosecution satisfied the ingredients of the offences with which accused are charged, and not possible defences for the accused.”
Establishment of LCs
Again, the notice of appeal avers that the holding by the majority on the Court of Appeal that the establishment of the letters of credit (LCs) did not constitute payment under the contract, is contrary to the clear evidence in the case and untenable.
“The majority failed to consider the evidence on record that the Ministry of Health specifically ordered Big Sea General Trading LLC to stop producing the ambulances before the vehicles were shipped,” it stated.
It said the majority failed to consider the fact that the Ministry of Health never requested the Ministry of Finance to authorise Bank of Ghana to establish the letters of credit which were used to pay for the vehicles.
“The majority ignored the fact that the 1st accused (Dr. Forson) without any request from the Ministry of Health wrote to both the Bank of Ghana and Controller and Accountant-General authorising them to establish the letters of credit, which resulted in Big Sea General Trading LLC shipping the vehicles to Ghana,” it disclosed.
It further pointed out that the majority decision failed to appreciate and correctly apply to the evidence, the essential ingredients of the offences with which the accused are charged.
“The position held by the majority that the prosecution ought to have proven that the Minister for Finance, Seth Tekper, did not authorise the establishment of the letters of credit was unjust and unreasonable,” it stressed.
It added that the majority on the Court of Appeal ignored the clear evidence led by the prosecution that the 1st accused’s act in authorising the establishment of letters of credit directly resulted in the shipment of the vehicles into the country.
Parliamentary Approval
The notice of appeal also argues that the holding by the majority of the Court of Appeal that the claim by the prosecution of a lack of parliamentary approval for the transaction was an afterthought is fraught with errors, unfair to the prosecution and has occasioned a substantial miscarriage of justice.
“Lack of parliamentary and other necessary approvals form part of ‘lack of due cause and authorisation’ aptly captured in the particulars of offence,” it pointed out.
It said the prosecution’s evidence led at the trial showed a lack of parliamentary approval for the transaction, which was an international business or economic transaction.
“Prosecution was not required, at law, to explicitly state lack of parliamentary approval on a charge sheet filed in a summary trial when same is contained in the evidence led,” it stressed.
Again, it avers that the majority on the Court of Appeal gravely misconstrued a report on a visit by the National Ambulance Service to Dubai as an addendum to the contract between the Government of Ghana and Big Sea General Trading LLC.
“The Court of Appeal erred when it concluded there was no nexus between the respondents and the offence,” the appeal stated.
The appeal is, therefore, seeking an order of the Supreme Court setting aside the decision of the Court of Appeal which acquitted the two and a further order on Dr. Forson and Jakpa to continue with their defence at the High Court.
BY Gibril Abdul Razak