The Financial and Economic Court 2 of the High Court in Accra will on June 13, 2024 determine whether or not to admit into evidence the audio recording involving the Attorney-General and the businessman charged alongside the Minority Leader, Dr Cassiel Ato Forson in the ambulance case.
When the case was called Tuesday (June 11), the court presided over by Justice Afia Serwah Asare-Botwe, allowed the audio to be played to ensure whether it was the same audio that had been served on all parties, before hearing arguments from both the defence and state attorneys regarding the admissibility of the audio.
Lawyers for Dr Forson are seeking to tender the audio through the businessman, Mr Richard Jakpa, who is currently under cross-examination.
Opposing arguments
However, after the audio had been played, the Director of Pubic Prosecution, Yvonne Atakora Obuobisa, opposed the admission of the audio on grounds that insufficient foundation had been laid for its inclusion into evidence in the ongoing trial.
She argued that the court in its ruling in the application for mistrial only relied on the audio because it wanted to determine whether the Attorney-General sought to implicate Dr Forson through the evidence of Jakpa adding that the judge found it insufficient to end the proceedings or order mistrial.
“My lady puts negligible weight on this recording.
“There’s absolutely no relevance to admit this tape into evidence. It doesn’t assist this court to arrive at a decision regarding the substance of this case,” she said.
The DPP further argued that aside from relevance, the audio failed the constitutional checklist for admissibility.
She added that the audio infringes the right of the Attorney-General to privacy when no crime had been committed adding: “For you to interfere in the right to privacy, you record somebody because you want to prevent the commission of a crime”.
To buttress her point, the DPP made reference to the coup plot trial in which the court admitted an audio because it was recorded to prevent a crime.
“We laid the necessary foundation, we explained what had been done, we showed proper custody and chain of custody and there was basis for admission for the tape. None of that has been done by the lawyers in this matter,” the DPP said.
Defence
Counsel for Dr Forson, Dr Abdul Basit Aziz Bamba, on the other hand, said the argument that the audio was inadmissible was frivolous.
According to him, the content of the audio was relevant to the proceedings because it relates to discussions about subject matter of substantive case including exhibits such as the the supply agreement, the authorization sent by Ministry of Finance to the Bank of Ghana for the letters of credit to be established.
Counsel further explained that since the court considered the audio to be relevant and admitted same to make a determination in the motion for mistrial, the audio was relevant in the substantive matter.
“We say that for the same reasons and more that the court assigned for admitting that evidence into tape in that application those same reasons and more apply to the current trial,” counsel argued.
On the point that no foundation had been laid, Dr Bamba, told the court that Mr Jakpa admitted that he’s had interactions with the A-G and same had been captured.
He added that it was on the basis of that, that the court ordered them to file the tape and make it available.
“If we are seeking to tender this tape, it’s just a natural progression because it’s not coming out of the blue,” he said,
Background
Dr Forson and Jakpa have been accused of causing financial loss of €2.37 million to the state in a deal to purchase 200 ambulances for the country between 2014 and 2016.
They have pleaded not guilty to counts of willfully causing financial loss to the state, abetment to wilfully causing financial loss to the state, contravention of the Public Procurement Act and intentionally misapplying public property.
Per the A-G’s facts accompanying the charge sheet, in 2009, while delivering the State of the Nation Address, the then President, Prof. John Evans Atta Mills, indicated that new ambulances would be purchased to expand the operations of the National Ambulance Service.
Jakpa, who is a local representative of Big Sea General Trading Limited, a company based in Dubai, subsequently approached the Ministry of Health with a proposal that he had arranged for finance from Stanbic Bank for the supply of 200 ambulances to the government.
Parliament approved the financing agreement between the government and Stanbic Bank.
According to the facts, on November 19, 2012, Dr Anemana wrote to the Public Procurement Authority (PPA) seeking approval to engage Big Sea through single sourcing for the supply of the 200 ambulances.
They added that on August 7, 2014, Dr Forson wrote to the Bank of Ghana for letters of credit covering €3.95 million for the supply of 50 ambulances in favour of Big Sea.
The letters of credit were accordingly released to Big Sea.
The facts said 30 ambulances were purchased at a sum of €2.37 million but all were found not to have met ambulance specifications and therefore “not fit for purpose”.
