Ato Forson's Ambulance Trial: Justice Srem-Sai breaks down 125-page Court of Appeal 'no case' judgement

The Court of Appeal on July 30, 2024, delivered a 125-page judgment on an appeal challenging the High Court ruling on a submission of no case filed by Minority Leader Dr. Cassiel Ato Forson and businessman Richard Jakpa, who were being prosecuted for causing financial loss to the state in their respective roles in the purchase of some ambulances by the erstwhile Mahama government.

The High Court dismissed the submission of no case, but the Court of Appeal overturned its ruling and acquitted and discharged Ato Forson and Jakpa.

Justice Srem-Sai, a renowned private legal practitioner and law lecturer, has given a breakdown of the 125-page judgment of the Court of Appeal.

In a post shared on Facebook on Tuesday, July 30, 2024, Srem-Sai pointed out that the ruling of the court was based on three key issues, namely: “the effect of a letter of credit (LC)”, “evidence of non-authorization”, and “the obligation of Mr Jakpa under the contract”.

On the LC, he explained that the Court of Appeal judges who sat on the case concluded that Ato Forson did no wrong by granting the LC for the purchase of the ambulances when he was the Deputy Minister for Finance.

The court noted that if someone must be held accountable for the condition of the ambulances purchased, it should be the then Ministry of Health and not Ato Forson.

“The Court of Appeal held that an LC is a guarantee which is redeemable (becomes payable) only when the conditions in it are satisfied. So, it is the person who certifies that the conditions are satisfied (not the person who authorises the LC’s establishment) who made the payment. In this case, it appears that the person should be in the Ministry of Health (rather than Finance). You’ll find this analysis in paragraphs 73 to 76 of the judgement.”

The law lecturer also explained that the Office of the Attorney General was not able to prove to the court that Ato Forson did not have the power to authorise the LC for the purchase of the ambulances.

“The AG’s allegation in the particulars of offence is that Dr Forson (as a deputy minister) was not authorised by the substantive minister (Mr Terkper) when he (Dr Forson) wrote the letter to the Bank of Ghana to have the LC established. The question on appeal is - who (between the AG and Dr Forson) has to prove that Mr Terkper did not authorise Dr Forson (non-authorisation)?

“At paragraph 100 of the judgement, the Court of Appeal held that it is he who alleges (that is, the AG) who ought to prove what he alleges - non-authorisation. In other words, you can’t accuse someone of acting without authority and expect the person, rather, to prove that he’s authorised, when you have the means of proving that he was not authorised. The record, however, shows that the AG did not prove what he alleged. In fact, the AG never called Mr Terkper to testify, even though Mr Terkper is still alive and could be called to testify,” he wrote.

Justice Srem-Sai also explained that the judges in their judgement ruled that Richard Jakpa, the third accused in the case, cannot be charged with causing financial loss to the state because he acted only as an agent in the transactions.

He added that Jakpa, who had no obligation under the contract between the government and the company that supplied the ambulances, cannot be charged with causing financial loss to the state.

“To begin, Mr Jakpa was not a party to the contract. He was an agent of a company called Big Sea. It is Big Sea that has an obligation under the contract. Even though this could have ended the matter, it did not – the issue went beyond this. There was a renegotiated “roadmap” in 2016 under the NDC government where it was agreed between the Ministry of Health and Big Sea that steps be taken to remedy the defects in the ambulances. Again, Mr Jakpa had no obligations under this roadmap either. Rather, the MOH (not Big Sea and, certainly, not Mr Jakpa) reneged on its obligations under the roadmap. The Court of Appeal (at paragraphs 146 and 150) did not see any evidence from the record how Mr Jakpa, a non-party to the ambulance contract, caused the alleged financial loss; more so when the AG chose not to prosecute his principal (Big Sea),” he wrote.

Read Srem-Sai's full post and the full judgement of the Court of Appeal below:

I know you, wonderful people, don’t really like reading, so let me help you with a summary of the 125-page judgement of the Court of Appeal. The judgement turns on 3 key points:

THE EFFECT OF A LETTER OF CREDIT (LC): One could sense the AG’s difficulty on this aspect of the case from the phone call which he (the AG) had with Mr Jakpa. The issue in the case was whether the establishment of an LC constitutes actual payment, so that the person who authorised the establishment of the LC may be held to be the person who made the payment. This issue is relevant because the person who made the payment is the person who caused the alleged financial loss. The Court of Appeal held that an LC is a guarantee which is redeemable (becomes payable) only when the conditions in it are satisfied. So, it is the person who certifies that the conditions are satisfied (not the person who authorises the LC’s establishment) who made the payment. In this case, it appears that that person should be in the Ministry of Health (rather than Finance). You’ll find this analysis at paragraphs 73 to 76 of the judgement.

EVIDENCE OF NON-AUTHORISATION: Note that I used ‘non-authorisation’ (rather than ‘authorisation’). This is because the nature of the allegation played a central role in the analysis. The AG’s allegation in the particulars of offence is that Dr Forson (as a deputy minister) was not authorised by the substantive minister (Mr Terkper) when he (Dr Forson) wrote the letter to the Bank of Ghana to have the LC established. The question on appeal is - who (between the AG and Dr Forson) has to prove that Mr Terkper did not authorise Dr Forson (non-authorisation)? At paragraph 100 of the judgement, the Court of Appeal held that it is he who alleges (that is, the AG) who ought to prove what he alleges - non-authorisation. In other words, you can’t accuse someone of acting without authority and expect the person, rather, to prove that he’s authorised, when you have the means of proving that he was not authorised. The record, however, shows that the AG did not prove what he alleged. In fact, the AG never called Mr Terkper to testify, even though Mr Terkper is still alive and could be called to testify.

THE OBLIGATION OF MR JAKPA UNDER THE CONTRACT: To be held as having caused financial loss, one must have a role to play in the transaction that led to the loss. This will necessarily lead to the question - who has obligations under the ambulance supply contract? The more specific question, however, is - did Mr Jakpa have any obligations under the contract? To begin, Mr Jakpa was not a party to the contract. He was an agent of a company called Big Sea. It is Big Sea that has an obligation under the contract. Even though this could have ended the matter, it did not – the issue went beyond this. There was a renegotiated “roadmap” in 2016 under the NDC government where it was agreed between the Ministry of Health and Big Sea that steps be taken to remedy the defects in the ambulances. Again, Mr Jakpa had no obligations under this roadmap either. Rather, the MOH (not Big Sea and, certainly, not Mr Jakpa) reneged on its obligations under the roadmap. The Court of Appeal (at paragraphs 146 and 150) did not see any evidence from the record how Mr Jakpa, a non-party to the ambulance contract, caused the alleged financial loss; more so when the AG chose not to prosecute his principal (Big Sea).



BAI/OGB

Watch the latest episode of Everyday People on GhanaWeb TV below:

Ghana’s leading digital news platform, GhanaWeb, in conjunction with the Korle-Bu Teaching Hospital, is embarking on an aggressive campaign which is geared towards ensuring that parliament passes comprehensive legislation to guide organ harvesting, organ donation, and organ transplantation in the country.