Dr Cassiel Ato Forson, former Deputy Minister for Finance and Minority Leader in Parliament, says the Attorney General (A-G) has not adduced enough evidence to pin him down on €2,370,000.00 ambulance related financial loss to the Republic.
According to him, evidence adduced by the prosecution is not enough to warrant him to open his defence.
In a 38 page of the written ‘submission of no case to answer’ filed by Dr Ato Forson’s legal team, led by Dr Abdul Baasit Aziz Bamba, on March 16, 2023 the Legislator contended that the A-G could not establish prima facie case to back the claim that he caused financial loss to the Republic of Ghana and intentionally misapplied public property.
According to the lead Counsel, the establishment of Letters of Credit (LCs) which has caused the instant trial were not authorised by the first accused (A1), Dr Forson.
He argued that A1 could not have caused financial loss to the Republic, particularly when LCs are not payment by themselves.
Dr Bamba argued extensively on written submission to the Financial and Economic Division of the Accra High Court that the A-G in an effort to pin down A1, attempted to ambush him with the claim that the ambulance contract didn’t receive parliamentary approval.
The Counsel described the A-G’s claim as lacking legal merit and ought to be disregarded by the court, presided over by Justice Afia Serwaa Asare-Botwe, a Court of Appeal justice with additional responsibility of the High Court.
He stated in paragraph 63 of his submission: “The prosecution has provided no cogent rebuttal evidence to refute the claim contained in the legal opinion of the Attorney General that all governmental approvals had been sought for the ambulance contract, which was valid and enforceable.
“If prosecution was desirous of proving the absence of parliamentary approval for the ambulance contract, they bore the burden of providing evidence from parliament to show there was no such approval, but failed.”
Essentially, he asserted that lack of parliamentary approval is not part of the prosecution’s case and, therefore, couldn’t adduce any evidence to that effect.
He further argued that since LCs do not constitute payments, payments under the LC were authorised by the Ministry of Health and not the first accused.
A1 Counsel explained that Ministry of Health (MoH) authorised payments under the LC, after having approved documents submitted to Big Sea, the supplier of the ambulances, by giving Ghana International Bank the green light to pay the supplier.
Dr Bamba further argued that A1 signed the LC in the capacity as a deputy minister, which is recognised by the 1992 Constitution in Article 79(1) which reads: “the president in consultation with a Minister of State and with prior approval of parliament appoint one or more deputy ministers to assist the minister in the performance of his functions.”
Accordingly, he said the then Finance Minister, Seth Terkper, had given a statement to the Economic and Organised Crime Office (EOCO), which acknowledges the Ministry request for the establishment of the LCs for the purchase of the ambulances.
He said Mr Terkper’s statement had been tendered in evidence without the prosecution raising any objection, yet “the prosecution made no attempt to call Seth Terkper as a witness in order to deny the fact that he or the Ministry of Finance authorised 1st accused person to author Exhibit A and B1.”
In furtherance to this, Dr. Bamba told the court: “We submit that, contrary to the assertions in the particulars of offence of Counts 1 and 5 that AI ‘authorised’ or ‘caused’ irrevocable letters of credit to be established, it is clear from the evidence on record that Al never ‘authorised’ or ‘caused irrevocable’ letters of credit to be established nor did AI act in any manner without due cause and authorisation. Exhibits A and B1, which bear the signature of AI were transmitted to Bank of Ghana under the authority of and on behalf of the Minister of Finance, as confirmed by Exhibit 5 for Al.”
Dr Ato Forson is standing trial with two others – MoH former Chief Director, Sylvester Anemana (A2) and businessman and local representative of Big Sea Trading Limited, Richard Japka (A3).
The Lawmaker has been charged in count one, wilfully causing financial loss to the Republic contrary to section 179A(3)(a) of Criminal Offences Act, 1960(Act 29) and counts five, intentionally misapplying public property contrary to section 1(2) of the Public Protection Act, 1977 (SMCD 140).
Particulars of Offence under count ‘1’ were that Cassiel Ato Forson between August 2014 and April 2016 in Accra in the Greater Accra Region of the Republic of Ghana wilfully caused financial loss of €2,370,000.00 to the Republic by authorising irrevocable letters of credit valued at €3,950,000.00 to be established, out of which payments amounting to €2,370,000.00 were made to Big Sea General Trading Ltd (sic) for the supply of vehicles purporting to be ambulances without due cause and authorisation.
On count ‘5’, A1 between August 2014 and April 2016 in Accra in the Greater Accra Region of the Republic of Ghana intentionally misapplied the sum of € 2,370,000.00 being public property by causing irrevocable letters of credit to be established against the budget of the Ministry of Health in favour of Big Sea General Trading Ltd (sic) for the supply of vehicles purporting to be ambulances without due cause and authorisation.
In the light of this, his counsel urged the court that Section 173 of Act casts a mandatory duty on the court to evaluate the evidence and determine whether a case has been sufficiently made against A1 to require him to open his defence.
He prayed to the court to discharge A1 because the prosecution has provided pieces of evidence that are not concrete enough to hold water.
A-G’s response
On the part of the Attorney General, Godfred Yeboah Dame, he told the court that the prosecution had laid sufficient evidence incriminating A1 and the other accused persons for them to be compelled to open their defence.
He argued that the prosecution has established a prima facie case through tendering documents and testimonies by witnesses.
According to him, the purchase of 200 ambulances through the MoH for the National Ambulance Service (NAS) received Cabinet blessing on December 22, 2011 through a €15,800,000.00 loan facility from the Stannic Bank.
However, it is contained in the A-G’s written submission that there was no mention of Big Sea General Trading Limited in the United Arab Emirates (UEA) in the memorandum submitted to parliament or its approval for financing agreement between the Government of Ghana and Stannic Bank, for the procurement of the 200 ambulances on November 1, 2012.
He contended that the Public Prosecution Authority (PPA) approved single-sourced engagement of Big Sea to supply the 200 ambulance through Sylvester Anemana’s false representation.
As a result, the Government of Ghana through the Ministry of Health entered into a formal agreement with Big Sea to supply the 200 ambulance at estimated cost €15, 800,000.00.
Establishing the criminal involvement of Dr Forson, he said on August 7, 2014 he wrote a letter to the Bank of Ghana, urgently requesting the establishment of Letters of Credit for the supply of 50 ambulances at the cost of €3,950,000.00, representing 25 percent of the total cost, in favour of Big Sea.
Similarly, A1 was said to have written to the Controller and Accountant General (CAG), authorising it to release GH¢806,688.75 to MoH to enable it to pay bank charges covering the establishment of the LC on August 12 of the same year.
He added that, based on these letters, MoH also wrote to the Bank of Ghana on August 14, authorising it to establish irrevocable transfer of the LC in the sum of €3,950,000.00 in favour of Big Sea.
Contrary to the supply of 50 ambulances agreed between Big Sea and MoH, only 20 were ready for shipment and to make things worse, they were full of defects on arrival in two batches.
Mr Dame indicated that the third batch of consignment was not different from the other two batches, to which then MoH Minister said the vehicles do meet specifications.
On these scores, the A-G urged the court that A1 has a question to answer for authorising irrevocable LC value at €3,950,000.00 and out of it, €2,370,000 was paid to Big Sea, to result in a financial loss to the Republic.
He also stated that A1 caused the establishment of the LCs without any authorisation, saying “We have established clearly, under submissions on count one that Al’s authorisation for LCs to be issued as payment for the vehicles purporting to be ambulances was highly unwarranted and, indeed, reckless, having regard to the circumstances under which the authorisation for payment was made.”
The A-G strongly hold the view that a prima facie case has been established against all the accused persons to be ordered by the court open their defence.
