Godfred Yeboah Dame
A High Court in Accra yesterday dismissed all three applications seeking to terminate the trial of Minority Leader, Dr. Cassiel Forson and businessman, Richard Jakpa, in the ongoing €2.37 million ‘defective’ ambulance case, holding that there is no legal basis for the grant of the applications.
The court, presided over by Justice Afia Serwah Asare-Botwe, also dismissed application for an order of enquiry into alleged misconduct by the Attorney General and ultimately declared a mistrial in the case.
The judge’s decision was based on three principal grounds – the court’s lack of jurisdiction, lack of legal basis and the absence of exceptional circumstances in the applications filed by the accused persons.
The court after listening to the secretly recorded tape, which was the basis of the applications, stated that the alleged claim that the Attorney General was seeking help from Mr. Jakpa was made by the accused and not the Attorney General and Mr. Dame was heard saying, “I’m not asking you to help me.”
Dr. Ato Forson and Richard Jakpa, are standing trial for willfully causing financial loss of €2.37 million to the State, through a contract to purchase 200 ambulances for the Ministry of Health, among other charges.
Applications
Dr. Ato Forson’s lawyers had filed an application asking the court for order of injunction against the Attorney General or his office from further prosecuting their client.
He was also seeking a mistrial which will essentially terminate the case and also a stay of proceedings pending an appeal.
Mr. Jakpa, on the other hand, is asking the court to strike out the charges against him on ground that it violates his right to fair trial.
Opposition
The applications are grounded on claims by Jakpa that the Attorney General has met with him and impressed on him to incriminate Dr. Ato Forson in order to secure his (MP’s) conviction.
The Attorney General has opposed the applications, describing them as frivolous and that, “the accused persons are bent on using any means necessary, fair, or foul, to abort their legitimate prosecution for crimes committed against the Republic, and must not be aided in that illegitimate endeavour through a grant of the instant application.”
The affidavit in opposition avers that it is in the public interest that the case be brought to a firm conclusion based on the credible evidence before the court.
Ruling Ato Forson’s Applications
Justice Asare-Botwe in her ruling on the application for enquiry and an order for mistrial held that there is no rule of law or practice that allows the enquiry as the court was being asked to do, particularly when the alleged conduct was not done in the courtroom.
The court held that mistrials in Ghanaian law have always and only been relative to hung juries in trials on indictment, and there has been no situation where a summary trial being presided over by a single Judge has resulted in the declaration of a mistrial and an order for retrial.
She held that the MP did not provide such a precedent in Ghanaian domestic legal framework either by way of legislation or judicial pronouncement, except to state the broad principles of the Constitution and “inherent jurisdiction”.
The court wondered how the alleged happenings of the last few weeks can render the jurisdiction of the court and the charges against the accused persons void, particularly when the court had found that a prima farcie case was made against accused person, hence, an order on them to open their defence.
Justice Asare-Botwe, therefore, held that “In our body of laws, as far as the legislation or case law is concerned, there is no provision for the court to declare a mistrial on the basis of the alleged misconduct of a lawyer, either for the prosecution or the defence.”
On the application seeking to injunct the Attorney General and his office from continuing the trial against Dr. Ato Forson, the Judge held that no exceptional circumstance had being raised by the accused to injunct the AG and his Office from performing their statutory duty at this late stage of the trial, especially when the Court has ordered the MP to open his defence which he has done.
She also found that the circumstances of the case do not merit a termination of the proceedings to its logical conclusion.
She, however, indicated that it is prudent that the Attorney General be strongly advised not to be directly or personally involved in the further prosecution of the case.
This, she indicated, is not in any way, shape or form making a value judgment on whether the Attorney General was right or wrong in holding a conversation with Jakpa outside the courtroom regarding the trial, although she described it as a “discomfort and discomfiture.”
Ruling On Jakpa’s Applications
Justice Asare-Botwe, in her ruling on the application filed by Richard Jakpa, found that he did not attach the secretly recorded telephone conversation with the Attorney General which generated the controversy.
She said the accused, who has to prove every assertion he makes of having been interfered with, must put forward every evidence in proof of what he alleges, adding that bare assertions without more cannot stand up to the evidential test, especially as those assertions are denied.
“On the 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,” the court held.
Justice Asare-Botwe said she did not think that given the circumstances of this case, in which the accused are alleged to have caused a financial loss of €2,370,000, it is the kind of matter that should be terminated without fully interrogating it.
“It is in the interest of justice and in the public interest that this matter be dealt with to its logical conclusion,” she added.
BY Gibril Abdul Razak