Justice Afia Serwah Asare-Botwe, Court of Appeal judge with additional responsibility of the High Court, has dismissed applications for mistrial and others filed by Dr Cassiel Ato Forson, the first accused person (A1) in the ambulance trial, ruling that they have no root in Ghanaian laws.
According to the court, the order for enquiry into the conduct of the Attorney-General (A-G) and an order for mistrial applications, filed by the accused person, who is also the Minority Leader in Parliament, had no legislation in the country backing them.
The court gave rulings on four applications – an Order for Enquiry into the conduct of the Attorney-General, Stay of Proceedings, an Order for Mistrial and an Order to strike out charges. Three of these applications were filed by Dr Ato Forson and one by Mr. Richard Jakpa, third accused (A3), a businessman.
According to the court, an enquiry into the conduct of the A-G, “unfortunately there is no rule of law or practice that allows the enquiry, as this court is being invited to do, particularly when the alleged conduct was not done in court.”
According to her, even though the allegation made by A3 was meant to hurt the case of the A-G and the prosecution, the court had no powers to make such an order
“I hold that there is no legal foundation for a court in the course of the proceedings to order an enquiry into the conduct of the prosecutor. There may be procedures for this, but this cannot be the case in this matter,” she ruled.
She continued that an order for mistrial was only relative to hung jury and that there has never been a summary trial presided over by a single justice, where a mistrial has been declared.
The court also argued that the applicant did not refer to any specific law except to make a general reference to the constitution, for “there is no specific law demanding a mistrial, based on an allegation of the conduct of a lawyer. In the absence of a specific statute, no mistrial can be declared.”
The court noted that mistrial could be entertained in other jurisdictions, but not in Ghana and made references to such cases held in Canada and Britain.
Furthermore, the allegation that the AG has occasioned, happened after Dr Ato Forson had closed his case.
Her ladyship indicated that on submission of no case to answer ruling, the court established that the prosecution had established prima facie case against A1 and A3. In her view, therefore, the current issues cannot negate the matter before the court.
Again, the court cannot injunct a public officer from going about his official duties. The last motion by Dr Forson to stay proceedings was equally dismissed by the court
On the admission of the pen drive containing the secretly recorded telephone conversation between Mr. Jakpa and Attorney-General, Justice Afia Serwah Asare-Botwe said after carefully listening to its content, she could not find where the A-G engaged A3 to implicate A1.
The judge said it was rather A3 who made the comment and the A-G stated at minute 10:30 that he was not asking Mr Jakpa to help him.
However, where the court took critical notice is where the A-G urged Mr. Jakpa to procure excuse duty to deceive the court, saying “what might cause some discomfiture is having the conversation in the first place and the Attorney-General asking the third accused to seek a medical excuse so as to be absent from the proceedings.”
Nevertheless, the court said it was not the appropriate forum to handle the matter and that it fell under the ambit of the General Legal Council (GLC) and other institutions.
The court, dismissing the application by A3, stated that the A-G had not demonstrated the trial of A1 was in jeopardy.
According to her, A3 was still in the box and had mounted a spirited defence and currently being crossed-examined by counsel for A1.
Again, A3 did not attach evidence to prove his allegations against the Attorney-General that he promised to drop the charges against him, like A2, Dr. Sylvester Anemana, former Director of Ministry of Health.
“What the applicant is seeking is not known to our jurisdiction,” she stressed.
Per public interest in the case, the Attorney-General was strongly advised to avoid direct involvement in the case.
The case is adjourned to Tuesday, June 11, 2024.
