The Accra High Court will on March 30, 2023, decide whether or not the Attorney-General (A-G) has adduced sufficient evidence to warrant a former Deputy Minister of Finance, Dr Cassiel Ato Forson, and two others, who have been accused of causing financial loss to the state, to open their defence.
The former Deputy Minister has filed a submission of no case after prosecution closed its case after calling five witnesses.
Dr Forson, who is the current Minority Leader in Parliament, is standing trial with Sylvester Anemana, a former Chief Director of the Ministry of Health, and Richard Jakpa, a businessman.
The three have been accused of causing financial loss of €2.37 million to the state in a deal to purchase 200 ambulances for the country between 2014 and 2016.
A submission of no case is a right granted to accused persons under Section 173 of the Criminal and Other Offences Act (Procedure) Act, 1960 (Act 30).
It allows accused persons to convince a court that the prosecution had failed to make a prima facie case to warrant them opening their defence.
In the event a trial court finds merit in a submission of no case, the accused persons are discharged, but if not, they are directed to open their defence.
While Dr Forson is of the contention that the prosecution had failed to adduce any cogent evidence to compel him to defend himself, the A-G, Godfred Yeboah Dame, is of the view that he had made a prima facie case against the accused.
He has, therefore, asked the court, presided over by Justice Afia Serwah Asare-Botwe, a Court of Appeal judge with additionally responsibilities as a High Court judge, to acquit and discharge him.
“We state that the weight and quality of evidence adduced by the prosecution falls short of establishing a prima facie case against Dr Forson pursuant to Section 173 of Act 30.
“Consequently, we pray this honourable Court to acquit and discharge Dr Forson on both counts,” Dr Forson said in his submission of no case.
Letters of credit
Lawyers for the accused argued that aside from the fact that their client never conducted any illegality intentionally leading to the alleged financial loss to the state, the claim that Dr Forson authorised or caused irrevocable letters of credit (LC) to be established for the ambulances was also false.
Abdul Baasit Aziz Bamba, head of Dr Forson’s legal team, submitted that the letter bearing the signature of Dr Forson asking for the establishment of the LC were transmitted to Bank of Ghana under the authority of and on behalf of the Minister of Finance, adding that:
“Therefore, assuming for the purpose of argument (which is denied) that Dr Forson authorised or caused the setting up of the LC, the claim that this was done without due cause and authorisation is patently false”.
Counsel added that the then Minister of Finance, Seth Terkper, confirmed in an exhibit before the court that it was the ministry that requested the establishment of the LC.
Mr Bamba further submitted that prosecution witnesses from the Ambulance Service confirmed to the court that the alleged defects on the imported ambulances could be fixed.
Additionally, counsel said, the current Health Minister, who testified on behalf of the prosecution, admitted that it was not unusual for a deputy minster to sign a letter for and on behalf of the minister as the person did not bear personal liability for the contents of the letter.
“We further submit that in the light of the elements of willfully causing financial loss to the Republic as set out in the case of Republic v Ibrahim & Others, the prosecution failed to adduce any evidence that remotely suggested that Dr Forson acted purposely, recklessly or negligently to cause financial loss to the Republic.
“We, therefore, submit that it will amount to a travesty of justice if Dr Forson is held liable for payments he did not make or authorise,” counsel added.
The prosecution, he said, had provided no cogent rebuttal evidence to refute the claim contained in the legal opinion of then Attorney-General that all governmental approvals had been sought for the ambulance contract.
In a response to the submission of no case, the A-G, Godfred Yeboah Dame, argued that evidence produced so far pointed out that the actions of Dr Forson directly led to financial loss to the State in the purchase of the vehicles purporting to be ambulances.
“His actions were criminally negligent and most unwarranted,” the A-G argued.
The A-G stated that Dr Forson’s instruction for LCs to be established were contrary to the terms of the ‘ambulance contract’ since none of the conditions set out in the contract before payment could be made had been satisfied.
“It can clearly be deduced that he desired to cause financial loss, or he foresaw the loss as virtually certain but took an unjustifiable risk of it, or he could foresee the loss as probable consequence but elected to unreasonably risk same, or he failed to exercise due care and attention and thereby caused a loss,” Mr Dame argued.
The A-G further submitted that Dr Forson did his actions without any further “authorisation” from any quarters, adding that a careful examination of the record did not disclose any so-called authorisation by the former Minister for Finance or, indeed, any superior officer.
On the contrary, the A-G , exhibits tendered by the prosecution showed that Dr Forson acted on his own and not through any alleged authorisation by his former boss, Mr Tekper.
“The actions taken by the Controller and Accountant-General, as well as the Bank of Ghana, all relied on Dr Forson’s actions and not the then Finance Minister,” the A-G stated, adding that: “Nowhere in the statement given by Mr Terkper to the police did he claim ownership of the letters written by Dr Forson.”