The high court, presided over by Justice Afia Serwaa Asare Botwe, a Court of Appeal judge sitting with additional responsibility as a high court judge, has fixed Thursday 12 October 2023 as the date to rule on a preliminary objection application by lawyers for the Minority Leader, Cassiel Ato Forson, seeking to stop her from hearing a substantive application demanding that she recuse herself from the case completely.
Lawyer Abdul Basit Bamba, in his argument in court today 27 July 2023 pointed out that his client has two applications before the court: first, an application asking the judge to recuse herself and second, an application asking the court to release the passport of the first accused person, Cassiel Ato Forson, to enable him to travel outside the country.
However, Dr Basit Bamba said that even before he moves his application, he is of the considered opinion that if Justice Afua Serwaa Asare Botwe hears the application, she will be serving as a judge in her own cause.
To this end, the defence lawyer submitted that the court must be constituted differently to hear the application for recusal.
AG’s opposition
The Attorney General, Godfred Yeboah Dame, opposed the application, noting that the argument by the defence lawyer is not supposed by the position of the law in Ghana, which was established in the case of Attorney General versus Sallah.
In the said case, Dame told the court, it was pointed out that there must be a real likelihood of bias against the decision-maker (the judge) and that mere suspicion is not enough in the instant case to warrant a trial judge to recuse herself from the case.
By court
Justice Afia Serwaa Asare Botwe noted in her ruling that she would have preferred that the defence lawyers filed an application at the Supreme Court to seek an order to prohibit her from continuing case.
She also said that the grounds stated in the defence lawyers’ application as constituting a real likelihood of bias – namely that when they (the defence lawyers), applied to the court for witness summons to issue directing specific witnesses to come to court and testify on behalf of the first accused person, and that should they fail to come, the court will issue a warrant for their arrest – beat her imagination.
The court concluded that it would like to deliver a reasoned ruling on the application so it will adjourned sitting to the 12 October 2023, which is the first week of sitting for the 2023/ 2024 legal year, in order to do so.
The court furthermore, declined to hear the application for the passport of Cassiel Ato Forson to be released to him because it says it will not go ahead to hear that application until it has given a ruling on the preliminary objection raised by the defence lawyers.
The court before hearing the defence lawyers argument and the AG’s opposing view, concluded the cross examination of Alexander Mould, the second witness of the first accused person (Cassiel Ato Forson). He was subsequently discharged.
Background
Justice Afia Serwaa Asare-Botwe’s court issued a witness summons on Thursday 22 June 2023 to compel Alex Segbefia, a minister of health in the John Evans Atta-Mills government, and two others to appear in court and testify on behalf of the Minority Leader, Cassiel Ato Forson.
Dr Abdul Basit Bamba, lawyer for Forson, the first of three accused standing trial for wilfully causing financial loss to the state, applied to the court on Thursday 22 June 2023 for the witness summons to be issued because, he said, his client is unable to get the witnesses to come to court to testify voluntarily.
Grounds for application
Dr Bamba’s application was based on Section 58 of the Courts Acts 1993 (Act 459), which states that “in any proceedings, and at any stage of the proceedings, a court either on its own motion or on the application of any party, may summon any person to attend to give evidence, or to produce any document in his possession or excerpts from it subject to any enactment or rule of law”.
Summoned witnesses
The two other witnesses who have been summoned by the court in addition to Segbefia are Seidu Kotomah, a former controller and accountant general of Ghana and Patrick Nimo, a former chief director at the Ministry of Health.
Dr Basit Bamba also informed the court that Forson will also call Seth Terkper, a minister of finance in the John Mahama government, and Dr Alexander Mould, a former chief executive officer of the Ghana National Petroleum Corporation (GNPC).
However, he told the court, the two witnesses are out of the country but whenever they return, he will inform the court to make time for them to attend the court and testify voluntarily on behalf of Forson. The court adjourned sitting to Thursday (29 June) for the first witness summoned, Alex Segbefia, to appear and testify.
Seidu Kotomah, the former controller and accountant general, will appear in court on the same day to testify after Segbefia has completed his testimony.
Defence opens
The Minority Leader and MP for Ajumako-Enyan-Esiam in the Central Region, Cassiel Ato Forson, opened his defence in the criminal case the state has preferred against him on charges of wilfully causing financial loss to the state.
Forson called his first defence witness, Henry Myles-Mills, the head of dispute resolution and litigation at Stanbic Bank Ghana Ltd.
Myles-Mills was subpoenaed by Forson’s lawyers to appear in court and testify.
The Minority Leader was expected to call his second witness today, 22 June. However, the counsel for Forson told Justice Afia Serwaa Asare-Botwe’s court that all efforts to get the next witness to come to court proved futile.
Charges
The three accused – Cassiel Ato Forson, Sylvester Anemana and Richard Jakpa – have been charged on five counts in total. These are:
Wilfully causing financial loss to the Republic of Ghana, contrary to Section 179A (3) (a) of the Criminal Offences Act 1960 (Act 29); Abetment of crime, namely wilfully causing financial loss to the state, contrary to Sections 20 (1) and 179 A (3) (a) of the same Criminal Offences Act 1960; Contravention of the Public Procumbent Act 2003 (Act 663), contrary to Section 92 (2)(b) of the said act, and intentionally misapplying public property, contrary to Section 1 (2) of the Public Property Protection Act 1977 (SMCD 140).
Facts of the case
In the year 2009, the then president of the Republic of Ghana announced, in his annual message on the State of the Nation delivered to Parliament, that new ambulances would be procured to expand the existing fleet to enable many districts to be covered by the National Ambulance Service (NAS).
Following this speech, the Ministry of Health (MoH) initiated actions to acquire more of the vehicles. The third accused, using his company Jakpa at Business, presented a proposal and term loan to MoH which he claimed to have arranged through Stanbic Bank to finance the supply of 200 ambulances to the government.
On 22 December 2011, the cabinet endorsed an executive approval that had been granted for a joint memorandum submitted by the health minister and the deputy minister of finance and economic planning for the purchase of 200 ambulances for the NAS, out of a medium-term loan facility of €15.8 million, to be paid using a credit arrangement between Stanbic Bank Ghana Ltd and the Government of Ghana through the Ministry of Finance.
By a joint memorandum dated 30 April 2012, the then minister of finance, Dr Kwabena Duffuor, and minister of health, Alban S K Bagbin, applied for parliamentary approval for the supply of 200 ambulances at a price of €15.8 million, to be paid using the planned-for credit arrangement involving Stanbic Bank Ghana Ltd.
This memorandum to Parliament did not make reference to any role to be played in the transaction by either Big Sea General Trading Ltd (Big Sea), based in Dubai, United Arab Emirates, or the agents for Big Sea, Jakpa at Business Ltd. Nor did it refer to the terms under which the ambulances would be procured or terms under which the two companies would be involved in the transaction.
On 1 November 2012, Parliament granted approval for the financing agreement between the Government of Ghana and Stanbic Bank Ghana Ltd to procure the ambulances.
By a letter dated 19 November 2012, the second accused, who was then the chief director at the Ministry of Health, requested approval from the Public Procurement Authority (PPA) to engage Big Sea through a process of single-sourcing to supply the 200 ambulances.
The letter falsely stated that the reason for single-sourcing was that Big Sea had arranged funding for the project. By an agreement dated 19 December 2012, the Government of Ghana, represented by the Ministry of Health, then formally contracted Big Sea General Trading llc, based in Dubai, to supply 200 Mercedes Benz ambulances. The contract sum was €15,800,000, at a unit price of €79,000.
According to the terms of the contract, it was to become effective upon the signing of the contract by both parties and when all government and other approvals had been obtained by both.
The terms of delivery, according to the agreement, were that the first consignment of 25 vehicles would be delivered within 120 days of execution of the agreement. The outstanding 175 vehicles were to be delivered in batches of 25 every 30 days thereafter.
Under the agreement, advance payment was prohibited. In addition, payment for the purchase price of €l5.8 million was to be by “raising an irrevocable and transferable letter of credit” from the Government of Ghana’s bankers for the benefit of the supplier.
Upon delivery of every 50 ambulances, 25% of the purchase price was to be paid through confirmed letters of credit (LCs) on sight of goods opened in favour of the supplier, upon submission of a number of documents specified in the agreement.
On 7 August 2014, the first accused, Cassiel Ato Forson, wrote to the Bank of Ghana in his role as the then deputy minister of finance, “urgently requesting … to establish the letters of credit for the supply of 50 ambulances amounting to €3,950,000, representing 25% of the contract sum, while arrangements are being made to perfect and sign the loan agreement … in favour of Big Sea”.
On 12 August 2014, the first accused wrote to the controller and accountant general authorising the release of a sum of GHC806,688.75 to the minister of health to enable him to pay the bank charges covering the establishment of letters of credit (LCs) for the supply of 50 Mercedes Benz ambulances and related services.
Ato Forson further directed that the LCs should be charged to the budget of the Ministry of Health, contrary to Parliament’s approval on the funding for the supply of the ambulances.
The controller and accountant general, on the authority of the letters dated 7 and 12 August 2014, written by the first accused, wrote to the Bank of Ghana on 14 August 2014, authorising it to establish irrevocable, transferable LCs in the sum of €3.95 million in favour of Big Sea.
A consignment of ten ambulances, which was shipped from Dubai on 22 October 2014, arrived on 16 December 2014. Post-delivery inspection of the first batch of ten ambulances revealed that they had no medical equipment. Other fundamental defects included defects to the body of the vehicles and the patient compartment of the ambulances.
These defects were brought to the attention of Big Sea in a letter dated 11 February 2015, written by the second accused, Sylvester Anemana. By a reply dated 19 February 2015, Big Sea acknowledged the defects to the vehicles but said that they proceeded to ship the vehicles when they received the LCs on 18 August 2014.
The company also said that the second consignment of ten vehicles, with the same defects, had been shipped 51 days before the date of the letter from the ministry.
The company promised to send its technicians to fix all problems relating to the defects and train Ghanaian staff before handing over the ambulances.
The third batch of ten vehicles was shipped on 12 February 2015. By this time, the second batch had already arrived at Tema Port. All 30 ambulances bore the fundamental defects described.
A further inspection by Silver Star Auto Ltd at the request of the Ministry of Health showed that the vehicles were not originally built as ambulances and were therefore not fit to be converted for such a purpose. In total, €2.37 million was paid for the 30 vehicles.
The third accused, as the local representative of Big Sea, knowing that the company had not shipped ambulances, still arranged with his principal to supply the purported ambulances and contracted with Big Sea to charge a commission of 28.5% on the proceeds from supplying these 30 vehicles, purported to be ambulances, to the Government of Ghana.
By a letter dated 20 January 2016, the then minister of health, Alex Segbefia, informed Big Sea that the vehicles did not meet the specifications for an ambulance and were not fit for purpose. The minister requested inspection of a well-equipped ambulance vehicle that would meet specifications by 20 February 2016.
Following this, a team led by the chief executive officer of the National Ambulance Service proceeded to Dubai and carried out an inspection on 11 February 2016. After the visit to Dubai, Big Sea undertook to send a technical team to Ghana to rectify the defects. This has not been done.