The Attorney General’s Office (AG) has filed an appeal with the Supreme Court, challenging the appellate court’s decision to acquit and discharge Dr. Cassiel Ato Forson and businessman Richard Jakpa from the ambulance trial.
The AG’s Office wants the Supreme Court to reverse that ruling and subsequent order acquitting and releasing the two on July 30, 2024.
The Office is also seeking an order compelling Dr. Forson, the Minority Leader in Parliament and a former deputy finance minister, and Mr. jakpa to continue with their defence at the trial High Court.
On July 30, 2024, the Court of Appeal acquitted and discharged Dr. Forson and Jakpa of all allegations brought against them by the State during the trial, with a 2:1 majority ruling.
As a result, the Court upheld Dr. Forson and Mr. Jakpa’s submission of a no case filed in the High Court.
The Court ruled that the prosecution failed to produce adequate evidence, that the trial judge erred in ordering Dr. Forson and Mr. Jakpa to open their defense, and that no facts were positively proven.
In March 2023, the High Court ordered Dr. Ato Forson and two others to open their defence after a prima facie case was made against them.
The two were Dr. Sylvester Anemana, a former Chief of Director at the Ministry of Health, and Mr. Richard Jakpa.
Dr Forson, Dr. Anemana and Jakpa were charged with causing financial loss to the State.
The State later filed a nolle prosequi to discontinue the charges leveled against Dr Anemana, who is currently out of the country for medical treatment.
Dr Forson was granted a self-recognisance bail of GH¢3million for allegedly willfully causing financial loss of 2,370,000 euros to the State.
He is also facing an additional charge of “Intentionally misapplying public property contrary to section 1 (2) of the Public Property Protection Act, 1977 (SMCD140).”
The appeal, filed and signed by Mrs. Yvonne Attakora-Obuabasi, the Director of Public Prosecution, argued that the Court of Appeal’s majority decision misapplied the legal standards necessary to determine whether the accused had a case to answer.
The AG’s Office argued that the majority decision failed to consider whether the prosecution had proven a “prima facie case” was the true criteria for determining whether the prosecution had made a case for the accused to answer.
According to the Office, the majority decision did not give due consideration to the prosecution’s case, as required by law, when determining whether a case had been made for the accused to respond.
It said 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 said.
The AG’s Office said the majority of the Court of Appeal’s consideration of possible defences for the accused at the conclusion of the prosecution’s case was unfair because the prosecution had discredited those potential defences in the cross-examination of witnesses called by the accused by the time the Court’s ruling was issued.
The Court also failed to consider the relevant factors in determining whether a prima facie case had been established for the accused persons to answer, whether the evidence presented by the prosecution satisfied the elements of the offenses with which the accused were charged, and whether there were any possible defences for the accused.
The Office argued that most of the Court of Appeal’s decision that establishing letters of credit did not represent payment under the contract was contrary to the clear evidence in the case and untenable.
The majority’s conclusion that the Ministry of Health’s default caused financial loss to the State (rather than Dr. Forson’s act in authorising the establishment of the letters of credit) had fundamental errors and was a major injustice.
The Court ignored the evidence on record that the Ministry of Health directly ordered Big Sea General Trading LLC to stop manufacturing the ambulances before they were sent.
It 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 Court also ignored the fact that the 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.
The majority decision failed to appreciate and correctly apply the evidence, the essential ingredients of the offences with which the accused were charged.
According to the appeal, the majority’s decision that the approval for the Letters of Credit to be granted was regular and that Dr Forson acted in his official role was riddled with mistakes and resulted in a significant miscarriage of justice.
The AG’s Office stated that the Court of Appeal’s decision was based on an appraisal of the facts at a time when Dr Forson had not opened his defence to make his position clear.
The majority on the Court of Appeal overlooked the essential fact that acting in an “official capacity” is not a defence to the charge of willfully causing financial loss to the state.
The AG’s appeal contended that the majority decision failed to recognize that in criminal law, acting under “superior orders” is not a defence accessible to Dr. Forson.
It said the Appeal Court also overlooked the prosecution’s overwhelming evidence that Ministry of Finance staff relied on Dr. Forson’s orders in the process of establishing letters of credit rather than the substantive Minister.
The AG’s Office said the position held by the majority that the prosecution ought to have proven that the former Minister for Finance, Mr. Seth Tekper, did not authorise the establishment of the letters of credit was unjust and unreasonable.
It said the Court erred when it concluded that there was no nexus between the accused persons and the offence.
According to the AG, the judgment was unreasonable regarding the evidence on record.
