“The appeal succeeds. The accused persons are acquitted and discharged.” This is how the Minority Leader in Parliament, Dr Cassiel Ato Forson, tasted a major courtroom victory on Tuesday after he was acquitted and discharged by the Court of Appeal of charges of causing financial loss of €2.37 million to the State.
Also set free by the court was Richard Jakpa, the businessman who was standing trial with Dr Forson on a count of abetment to wilfully cause financial loss to the State.
Dr Forson had been on trial for the past two years on various counts of wilfully causing financial loss to the state and misapplying public property in a deal to purchase 200 ambulances for the State from 2014 to 2016 during his tenure as a Deputy Minister of Finance.
The Court of Appeal showed the Minority Leader and Jakpa the door to freedom after it upheld their appeal challenging the trial High Court’s decision to dismiss their “submission of no case”.
In a 2-1 majority decision, the Court of Appeal held that the evidence provided by the prosecution during the trial was not sufficient to establish a prima facie case to warrant the accused persons to answer to the charges levelled against them.
Consequently, the second highest court of the land held that the trial High Court erred in law and had no basis to call the accused persons to open their defence.
“The appeal succeeds. The accused persons are acquitted and discharged,” the Court of Appeal ruled. ustices Philip Bright Mensah and Kweku Tawiah Ackaah-Boafo were on the majority side, while Justice Alex Poku-Acheampong dissented.
Reasoning by the judges
Each of the three Justices of the Court of Appeal read their individual decisions supporting their positions.
Justice Ackaah-Boafo held that there was no link between the evidence adduced by the prosecution and the offence the prosecution claimed to have been committed.
“I am of the view that the prosecution failed to provide sufficient evidence that meets the threshold of connecting first appellant with the offences he is charged with,” Justice Ackaah-Boafo held.
For Justice Mensah who gave a concurring opinion, he wondered why Dr Forson was on trial since the ambulance deal was primarily within the purview of the Ministry of Health.
He said apart from writing to the Bank of Ghana for the letters of credit (LCs) for the purchase of the ambulances, Dr Forson played no significant role for him to be held accountable, and subsequently directed to open his defence.
According to him, the evidence on record showed that it was the Ministry of Health that applied for the LCs, but failed to do the necessary due diligence and the checks to get the country value for money for the ambulance purchase.
“As the applicant and beneficiary of the LCs, it was the duty of the Ministry of Health to do the necessary pre-shipment inspection to be satisfied that the ambulances being imported met the required specifications. It was not the duty of the appellant, Ato Forson, to do so,” Justice Mensah held.
In dissenting, Justice Poku-Acheampong held that the trial High Court did not err in dismissing the submission of no case as the prosecution, indeed, made a prima facie case against the accused persons.
A-G disagrees
Meanwhile, the Attorney-General (A-G) and Minister of Justice, Godfred Yeboah Dame, has disagreed with the decision by the Court of Appeal, vowing to appeal it at the Supreme Court.
In a statement Tuesday, the A-G described the decision by the court as “inimical to the fight against impunity and abuse of public office”.
“The Office of the Attorney-General considers the decision of the Court of Appeal to be perverse in the quest for public accountability and the rule of law.
The decision clearly is heavily against the weight of the cogent evidence led by the prosecution in substantiation of all the charges against the accused persons at the trial,” the A-G said in the statement.
Submission of no case
Under the Evidence Act, 1975 (NRCD 323), the prosecution or any entity that accuses a person of committing a crime, in order to succeed, has a duty to first adduce sufficient evidence in support of the charges to make a prima facie case against that person.
A prima facie case essentially means that on the face of the record, the prosecution has made a case. It does not mean the accused person is guilty since it is a rebuttable presumption, but if the accused person wants to create doubts in the prosecution case and prevent the prosecution from making a case beyond reasonable doubts, which is the standard of proof in criminal trials, it can decide to open his defence to disprove the prosecution’s case.
However, in the event the accused person believes that the prosecution has not made a prima facie against him, he has the right under Section 173 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), to file a “submission of no case”.
Section 173 of Act 30 allows a trial court to acquit an accused person if the court concludes that the prosecution had failed to make a case sufficient enough for the accused person to open his defence.
This was the route Dr Forson and Mr Jakpa chose when they filed a “submission of no case” before the trial High Court, presided over by Justice Afia Serwah Asare-Botwe after the prosecution closed its case.
In a ruling on March 30, 2023, Justice Asare-Botwe, who is a Court of Appeal judge sitting as a High Court judge, dismissed the “submission of no case”, holding the view that it had no merit.
The presiding judge was of the considered view that the prosecution had made a prima facie case to warrant the accused persons to open their defence.
According to Justice Asare-Botwe, the accused persons had acknowledged that the said ambulances imported into the country were not fit for purpose, which was one of the main aspects of the prosecution’s case.
Dissatisfied with the ruling by the trial High Court, Dr Forson and Mr Jakpa both filed appeals at the Court of Appeal, which culminated in yesterday’s decision by the second highest court of the land.
Prosecution’s facts
Jakpa and the Minority Leader were 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 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 was 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 (PPA) 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.
Read the entire ruling below;
Source: www.kumasimail.com
