Mr Martin Kpebu, a private legal practitioner, has reacted to the Thursday, June 6, 2024 ruling on the €2.3 million ambulance case delivered by Justice Afia Serwah Asare-Botwe, saying it was written out of hastiness and lacks important ingredients to make it whole.
According to him, the ruling is hollow and that it qualifies as travesty of justice to the accused persons in the trial, Dr Cassiel Ato Forson, first accused (A1), Minority Leader in Parliament and businessman, Richard Jakpa, third accused (A3).
To Mr Kpebu, he would be surprised if the ruling was not challenged because the presiding judge of the Economic and Financial Division of the Accra High Court rushed with the ruling, as if Ghana is coming to an end in just two days.
“I was like where is she in a hurry to go,” he wondered. Mr Kpebu was one of the discussants on Accra based TV3, on Saturday, June 8, 2024 morning political show: “The Key Point”
He said giving a ruling on such a weighty matter in two days would definitely be marred by mistakes and by so doing, Justice Afia Serwah did a lot of injustice to the accused persons.
It was his observation that the judge committed fundamental error in assuming she knows it all and, therefore, refused to take oral submissions from the lawyers in the case, Dr. Aziz Bassit Aziz Bamba for A1 and Thaddeus Sory for A3.
Per his argument, basing the ruling only on affidavits attached to the applications was a No No, especially when affidavits do not address the law but facts, while it is the lawyers who will address her on the law.
The judge could not, therefore, have assumed that she knows what is on the minds of the lawyers not to listen to them. He said it took even the Supreme Court two years to deliver a well thought through judgement on criminal disclosures.
Moreover, he said Mr. Sory brought to the attention of the court an application for prohibition to stop the judge, which she allegedly brushed aside.
According to Mr Kpebu, what has happened goes beyond irregularities on the part of the judge to fundamental error and must not be countenanced.
The ruling, to him, is nothing but a paper weight and it is bad, particularly when Ghana is working to develop its criminal disclosures.
The country, as he noticed, is behind South Africa, The Gambia, Malawi and Kenya in criminal disclosures and efforts being made to build it up to be scattered in this manner is bad.
He couldn’t come to terms with the judge’s assertion that after listening to the secretly recorded tape for 10 times, the Attorney-General was not attempting to coach Mr. Jakpa on how to answer questions.
The moderator, Alfred Ocansey, after playing the tape, asked Mr. Kpabu whether what has been occasioned by Godfred Yeboah Dame, Minister for Justice and Attorney-General, is more than professional misconduct? Mr Kpebu responded that “it is obviously more than that.”
The following is verbatim report of what Mr Martin Kpebu said on the programme.
- You will find the Attorney-General telling the witness…telling the third accused to answer in a certain way the Attorney-General wants him to answer. When he (Jakpa) is not comfortable with what the Attorney-General wants him to say. What’s that? …you mean you want me to answer your way then Dame hesitated a bit and yet said yes let’s take it that way. He ended up saying yes that is the kernel of the matter.
The judge did not refer to it so I’m like ah! Maybe the pressure because to give two days for such a weighty ruling for me, it was too short, so there were bound to be mistakes. I knew it. I was like this thing, two days? are you sure, because it is too much.
What in the process we are not discussing that viewers do not understand so far is that there was a great…travesty of justice. The judge did a lot of injustice to the accused persons.
The ruling itself, I wouldn’t be surprised…they actually would have to go and challenge it. She did something fundamentally wrong. It was so, so wrong that… I was like where is she in a hurry to go. Listen, when you put stuff before the court, this is my application okay. I want you to do stay of proceedings. What you put in there usually you don’t put law in the affidavit except some exception, generally we don’t.
So the arguments of the lawyers are not what she took. So you will come to court to do the arguments. So based on the affidavit, I will say we met here and here, he tried to coerce me to answer in this way… So after saying that, to persuade my lord or lady, I have the following cases. That is when the law…that is where the real meat of the matter is done.
The judge didn’t allow it. I don’t know where she wss rushing to. She didn’t allow it. That is so, so fundamental. Everything about this ruling no no…that is not the best.
Should lawyers of Ato Forson and Richard Jakpa argue out their case?
Yes, that is where they will come with their cases. My lord, this case is like R v Maxwell. In Maxwell this and this prosecutorial misconduct happened and this is what the court in the UK said. This is like R v Mohammed… Those cases are many.
I did a case in that area; criminal disclosures. I started it. There was a high court decision by Justice Ajet Nassam. People did not like it so we decided to go the Supreme Court. Even in the Supreme Court this whole area – prosecutorial misconduct – is critical part of criminal disclosures.
In the Supreme Court, before they came out, it took about two years. They were reading over and over, thinking about it, deliberating carefully, two years. So this prosecutorial misconduct is a huge part of it. So I have been familiar with this area.
You don’t in two days ‘gidi gidi’, it is as if Ghana is coming to an end, I don’t understand. When you do that you will make mistakes. Can you imagine someone like Thaddeus Sory. You ask any lawyer who has practiced for a few years, they will tell you they know Sory. Sory has done brilliant cases. Stalwart at the bar.
Sory is coming to address you and you will say no, I wouldn’t take anything from you. Aziz Bamba, Edudzi and co, you say no no don’t address me. I know it all, I will do it by myself. That’s not law, that’s a breach of the right to be heard.
You know what happened, Sory even went to the Supreme Court to file application for prohibition to stop the judge. They (SC) should stop the judge so that the judge could take arguments from them. He mentioned it in court and the judge brushed it aside and went on. It was bad. It is really bad. I’m being charitable. We can’t encourage this in our judicial system.
Even the Supreme Court…some years ago, Dame was a… sometime in 2014-15, when the NDC was in office. One case he (Dame) was doing… You know Prof Date-Bah, there was a point where they will ask you, have you given all your arguments…have you presented all your arguments and you want to add even the day you will come to court orally they will take…Dame brought more cases and Prof Date-Bah, old man kept writing…
At a point, I have to skip a few beats, I was like eii! if this man says all these why are you bringing all…but Prof Date-Bah patiently wrote everything down before they adjourned for ruling.
So the haste in this particular ruling is mind boggling, two days! You don’t want to listen to Sory, that’s why I said you ask who is Thaddeus Sory at the bar. No…Sory is not a push over. He has a good track record. Brilliant lawyer. Dr Aziz Bamba, he is lead lawyer for A3 right…supported by Edudzi. Aziz Bamba taught me 20 years ago. These are good good lawyers.
It doesn’t matter, assuming this guys…I will make the same argument even if the lawyers were just two years old at the bar. I will make the same argument because listen…the accused has a right to be heard. It doesn’t matter if the lawyers speak nonsense. Excuse me… assuming what they’re coming to say it’s all wrong, you will hear them, record the arguments and then answer. That’s hearing…she didn’t hear them. They didn’t get to present their cases.
So when you read the judgment it is one sided. As she kept reading the judgment, because I have done research in this area, a decade now, as she read, I also remembered my own cases. I was like ah! you’ve not seen this case…ah you see the thing. So if she had listened to Sory, the cases Sory has, listened to Aziz Bamba and Edudzi and…Dame himself, I’m sure he too would have had cases, etc, the judgement would have been richer. So don’t accept this ruling to be the last… definitely this would be headed to the Supreme Court. Even in the Supreme Court even if they lose, it still doesn’t wipe the fact they suffered great injustice.
Even the judicial review, they can look at many things and throw it out. And I’m saying even if they throw it out, it doesn’t still wipe away the fact that they were never heard. That is a blow, a big blow. Ah such a high profile case, where was the judge in a hurry to go. Why, is Ghana coming to an end in two days, why?
…the judge didn’t do right and there is no way you can defend this… You have to give the lawyers the opportunity to view their submissions. As she read because I also know that area a bit, although I haven’t referred to my manuscript for some years, but you know when you write, you sit down and research, you will still remember a lot of stuff, you can’t remember everything…There are other cases…in the UK, you have …Gefford 4, R v Maxwell, R v Mohammed, so many of them …no no, we will quash this conviction because the prosecutor was engaged in this underhand dealings, because this evidence was suppressed.
This tape is so serious, even I would have expected the judge to say apart from the lawyers in this case, any of you seated here if you have any idea and you want to try amicus curiae, of course I know there are limitations, but I’m just stretching it..in a huge public interest case you can even invite other lawyers, but please be careful that is not my main submission about other lawyers coming in.
We wish the law will develop to that extent in the criminal practice… I’m talking about hearing the lawyers of the accused persons so it is a huge blow on the ruling…as I said it wasn’t rich enough.
I’m not saying by all means the submissions Sory and co would have made would persuade her, but at least she would have seen other perspectives and even if she will throw them out, in the ruling she would have raised them and answered…it would all be richer…, this case we have been reading and thinking this is what it means, the judge saying something different in it. That’s the whole thing about the law, we are always learning.
This ruling is not weighty…it doesn’t carry as much weight as it should because it haven’t been fully been argued. Reading few Canadian cases…as I said it wasn’t rich enough. I will be surprised if none of the lawyers take this matter to the Supreme Court. Even if they go and they lose, it will never wipe the fact that the lawyers were never heard. For decades to come this will be a blow. Ah a blow! It’s not good at all for our justice system.
The judge got it all wrong
When Jakpa said do you want me to answer your way, what did Dame say? He hesitated… he said yes. He ended up agreeing. I’m sure it hit him, but he still wasn’t sure what he was doing because he was in the realm of criminality. This tape has embarrassed us as a nation…
This is a serious matter. The fact is that the accused persons weren’t heard… moving forward they will get justice in another forum. You have to hear the argument of the lawyers, especially we are behind. We are behind in this criminal disclosures etc.
At the time we were going to ask for criminal disclosures in the Supreme Court in 2016, Yahya Jammeh’s The Gambia, they were ahead, South Africa, 20 years, because South Africa their decision was in 1995, Namibia 1993, you will come to Kenya 2003. Can you imagine Malawi…we used to laugh at countries like that not knowing when it comes to criminal disclosures they are way ahead.
So this area is not developed in Ghana…there was a requirement to listen to the lawyers in the case that wasn’t done. They didn’t get to present their arguments so how can the judge know what’s on their heads and then answer in the ruling.
The affidavit doesn’t say all of it. It doesn’t at all….the judge could have said submit your written submissions. Even in law, if today somebody is building on your land, and you go to court that you want injunction….there is part of the injunction application, you have to argue your law, it is called statement of case.
Even in injunction applications where you have statement of case, most judges will still give you the opportunity to address on law, maybe there’s anything further beyond what’s in your statement of case.
That’s the practice at the bar. So for such a sensitive high profile matter for the judge to assume she knows it all, she doesn’t need the submissions of the accused lawyers, ‘Charley Charley’ don’t play, it has drawn us back.
….What the applicant (A3) is seeking is not known to our case law or other domestic legislations…
That part, no no…I don’t agree. It is part of our law, the court has an inherent jurisdiction. So if you seek to abuse the processes of the court by using criminal prosecution to intimidate your political opponent as political vendetta, as a witch-hunt, etc. If there’s clear evidence, you see the part that the witness was saying that Dame said it was President Akufo-Addo and the Finance minister Ofori-Atta who were pushing him.
If they’re able to prove it, yes, you will stop the trial because that is not what criminal prosecution is about, right. You have to stop it, it is an inherent powers of the high court, jurisdiction of the high court to grant stay of proceedings. It is part.
We use the common law in the UK and the common law is provided for in Article 11. And that the UK cases when you’re reading, they tell you how to stop the trial on the grounds…by saying it is an abuse, it is an inherent jurisdiction. We copy those things from the UK. So it’s the same thing…
Even in Ghana, there are cases, Sampayin, etc which the court always talks about its inherent Jurisdiction. That part when I heard it, I said ha! perhaps if she had heard arguments from other lawyers, it would have been raised. Stay of proceedings is done as part of the inherent jurisdiction of the court.
In the Baffour Bonnie case it was raised, stay of proceedings. It is there. Stay of proceedings, the Supreme Court was saying when you are granted a disclosure and there’s a fail, don’t just rush to the stay of proceedings, look at granting adjournment.
So when she said it’s not known, I said even in Baffour Bonnie, stay of proceedings is mentioned. So you see the haste, the haste didn’t allow for all the arguments to be brought. That is the first part.
The second part when you’re reading about the evidence that Jakpa should bring evidence. You know they wanted to give oral testimony, all of those were shut down…that is why I said we have lost a lot.
…Is it irregular for a judge to make a decision on application and affidavits presented by the parties…
The word is not even irregular. Irregular is too mild…hah…I said it’s fundamental right to be heard. There are cases the Supreme Court has quashed the ruling because the other side wasn’t heard. So irregular is not the word, it goes to the roots of the matter. We call it ‘ audi alteram partem’ (hear the other side).
So irregular is understatement. It is different when the case is called, let’s make this distinction, if the court says we are starting at 9 am and you and your lawyer were not there and that side is there and they argue, that one… There was a time, given you didn’t send anybody… even if you were dying and you have not brought evidence before the court before 9:00 or at 9:00, that one the court can go ahead without you.
The lawyer knows the case of Eastern Alloys, but that is different. But when lawyers have come and I’m telling you that at the bar when you hear the name, Thaddeus Sory, they tell you, Sory is in this case, you want to pay close attention because he is one of great guys at the bar… Aziz Bamba (PhD), Ghana, we like Harvard… Harvard trained, if I may add.
He is coming to give you argument…as I said forget about those things that is not the point. Even if the lawyers were just one year old at the bar, as long as they’re lawyers and they’re representing the accused, you will then say their unwise submission, so to speak.
Assuming the submissions are not wise ones. You let them say it. Their unwiseness, you will appreciate how they think. The way you will write the ruling will be different. Excuse me if somebody tells you things that are unwise it makes you appreciate how they think so you will address him accordingly.
The way you will write the ruling because from the things he said, if he lacks basic knowledge in everything, it means in the ruling you, will even take time, step by step – 1, 2, 3.
So that you know that ‘esimesi’ when he was speaking, he didn’t seem to understand anything, let me not use big words, let me break everything down. So the ruling will be richer. As for that one there’s no way, once Sory and others were not heard (clinging) this ruling doesn’t carry the weight that it deserves at all. It doesn’t matter
Others on the TV panel were Lawyer Kingsley Amoakwa Boadu, for NPP, Nana Ohene Ntow, representing Movement for Change and Alhassan Sayibu Suhuyini, MP for Tamale North.
