Full Ruling; How three Court of Appeal judges arrived at 2-1 victory verdict for Ato Forson, Jakpa

The Court of Appeal on Tuesday, July 30, 2024, delivered a verdict on the case filed by Minority Leader and former Deputy Minister of Finance, Cassiel Ato Forson, and businessman Richard Jakpa, who are standing trial at the Commercial Division of the High Court for their respective roles in the purchase of some ambulances by the erstwhile Mahama government.

Following a leaked tape and the emergence of WhatsApp conversations that implicated the Attorney-General and Minister of Justice, Godfred Yeboah Dame, in what many viewed to be a case of witness tampering, Ato Forson and Richard Jakpa filed a case at the High Court, seeking a discontinuation of the case on the grounds that the state, represented by the Attorney-General, had not established sufficient grounds for the prosecution.

The submission of no case filed by Ato Forson and Richard Jakpa was rejected by the High Court presided by Justice Afia Serwah Asare-Botwe, which compelled the two accused to take the matter up at the Appeals Court.

The Court of Appeal, in a split 2-1 decision, granted the motion of no case filed by Minority Leader Ato Forson and businessman Richard Jakpa in the ambulance procurement trial.

In the ruling, a copy of which is available to GhanaWeb, the three justices made interesting findings and arguments for their respective decisions.

The court, in its decision, invariably ruled that the argument produced by the state, which in this case is the Attorney-General, was not enough for the case to pass the first stage and go to trial.

GhanaWeb gives you the concluding remarks of all three justices.

Justice Kwaku T. Ackah-Boafo

“Based on the above analysis and in fidelity to the law, I am of the opinion that the appeals filed by both the 1st and 3rd Appellants should succeed. In the result, I would allow the appeals, and the ruling of the trial court dated March 30, 2023, calling on the 1st Appellant to open his defence in respect of the charges in counts 1 and 5, is hereby set aside.

“Also, the call on the 3rd Appellant to open his defence in respect of the charge in count 3 is set aside. In their place, an order upholding the submission of no case entered for both the 1st and 3rd Appellants in respect of those three counts in the charge sheet is issued. Consequently, both Appellants are hereby acquitted and discharged.”

Justice Philip Bright Mensah

Justice Philip Bright Mensah made some conclusions, including the fact that the prosecution, which is the Auditor-General, did not establish a prima facie case against Ato Forson and Richard Jakpa, and therefore the High Court erred by upholding the argument of the state.

He rejected the case of the Attorney-General that Ato Forson issued the letters of credit without the authorization of the then Finance Minister Seth Tekper, noting that evidence adduced by Ato Forson and confessions by Seth Tekper indicate that he was aware of Ato Forson’s actions.

Parts of his ruling read: “To succeed on the charge that the 1st Accused/appellant acted without cause and authorization, the best evidence to establish it was for the prosecution to have invited the substantive Minister, Hon. Seth Tekper, having regard to the evidence it was done on his blind side.

“I am of the considered opinion that Seth Tekper was a material witness whose evidence would have decided the case one way or the other. Failure to invite him was fatal to the case of the prosecution.

“For, the law is well settled that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness is a material witness that ought to be called to offer evidence.

“There is that evidence on record in our present case that in the course of investigations into the matter, Hon. Seth Tekper is said to have volunteered a statement to Investigator, PW5 in this case that seems to suggest that the request for the establishment of the LCs was done on behalf of the Ministry of Finance. For purposes of clarity, I reproduce excerpts of the statement, Exhibit 5: upon receipt of the Attorney-General’s opinion, MoF [Ministry of Finance] proceeded to establish the LC. The letter noted that this was a valid contract.

“By this voluntary statement to the Investigator, Mr. Seth Tekper was very much aware of the steps the appellant took in requesting the establishment of the LC to avert the threat of imminent action against the Government of Ghana for breach of contract. There is no iota of evidence on record to show that if indeed, the letters the appellant wrote were done on his blind side, Mr. Tekper repudiated the same or he queried the appellant for what he did. It cannot be lost on this court that it is the Ministry of Finance that has the sole power and or duty to request for or authorize LCs to be established on behalf of government Ministries and Departments. The prosecution witness, PW4 in his evidence to the trial court as appearing on p. 354 VOL 1 [roa] admitted that that was the right procedure to follow.

“Therefore, the presumption is that the appellant had the authority to do what he did and followed the proper procedure.

“In the result, I roundly disagree with the learned trial judge to have rubbished and or rejected Exhibit 5 saying that the author of that statement has not been subjected to cross-examination. I think that the lower court fell into serious error occasioning a gross miscarriage of justice to the appellant because his duty is only to raise doubt in the case of the prosecution. On the authorities, if there was a doubt in the case of the prosecution it shall inure to the favour of the accused.

“It is instructive to observe that Hon. Agyeman-Manu in his evidence to the trial court on 21/07/2022, admitted that the appellant copied Hon. Seth Tekper of each letter he wrote in connection with the request for the establishment of the LC. From these pieces of evidence, it can safely be inferred that the Minister was aware and approved the steps the appellant took. In the circumstances, I disagree with the findings of the lower court that the appellant has the duty to prove the affirmative that he exercised due cause and authorization. Having regard to the above analysis, I do uphold the submissions of learned Counsel for 1st accused/appellant canvassed in respect of Count 1.

Consequently, I allow the appeal on Count 1.”

Justice Alex Poku Acheampong was the one who dissented to the views of the majority and rejected the submission of no case by Ato Forson and Richard Jakpa.

In his judgment, he ruled that the state did not have to prove beyond reasonable doubt for the case to be held. Rather, the state had to establish enough grounds for the trial to kick start, and he believes the High Court made the right decision by rejecting the submission of no case from Ato Forson and Richard Jakpa.

His concluding remarks read: “I conclude therefore that the trial Judge did not err in ruling that 3rd Accused has a case to answer. In my opinion, the submission of no case in respect of 3rd Accused was rightly rejected by the trial Judge. 3rd Accused/Appellant has a case to answer together with the 1st Accused/Appellant. I have in arriving at this decision discussed all the five grounds of appeal of the 3rd Appellant and I conclude that they are not meritorious. In conclusion, the learned trial Judge did not err in her ruling that 1st Appellant and 3rd Appellant have a case to answer.”

Read the full ruling below