REPUBLIC vs. CASSIEL ATO FORSON & ORS
July 30, 2024
COURT OF APPEAL
CORAM
- POKU-ACHEAMPONG, J.A. (PRESIDING) MENSAH, J.A. ACKAAH-BOAFO, J.A
Areas of Law
- Criminal Law and Procedure
- Evidence Law
- Contract Law
- Civil Procedure
- Banking and Finance Law
July 30, 2024
COURT OF APPEAL
CORAM
AI Generated Summary
The Court of Appeal of Ghana considered interlocutory appeals by Cassiel Ato Forson, former Deputy Minister of Finance, and Richard Jakpa, Big Seas local agent, challenging a High Courts refusal of their submissions of no case to answer. The prosecution alleged Forson authorized letters of credit without due cause, leading to payment for defective vehicles, and that Jakpa intentionally caused financial loss. The majority (Ackaah-Boafo JA, with Mensah JA concurring) held that letters of credit are guarantees subject to conditions, the Ministry of Health was the applicant and contracting party, and the prosecution failed to prove authorization or mens rea against Forson, notably by not calling the then Minister of Finance as a material witness. As to Jakpa, the Court found he was an agent, not the contracting party, and court-ordered commission payments did not show he caused loss. A minor charging error was deemed harmless. The Court allowed both appeals, set aside the trial courts ruling, upheld the submissions of no case, and acquitted and discharged both appellants; Poku-Acheampong JA dissented.
Ackaah-Boafo, JA
i. Overview:
[1] My Lords, based on the facts presented in this appeal and the question for our determination, I wish to start my opinion with the statement by M. Hor in the article "The Privilege against Self-Incrimination and Fairness to the Accused' 1 to the effect that:
"Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution."
The statement above was adopted and succinctly enunciated by the Supreme Court of Canada per Lamer, C.J., for the majority in the case of R v P. (M.B.), [1994] 1 SCR 555
(M.B.P.) at paras 36 and 37. Domestically, Adinyira JSC also quoted the above statement in her opinion in the case of Michael Asamoah & Another v. The Republic, Suit No. 13/4/2017 dated July 26, 2017. I shall later speak to the quote above in considering the merits or otherwise of this appeal.
[2] The 1st Accused/Appellant, Cassiel Ato Forson, was charged with Willfully Causing Financial Loss to the State, contrary to the Criminal Offences Act, and Intentionally Misapplying Public Property, contrary to the Public Protection Act (Counts #1 and 5). The 3rd Accused/Appellant, Richard Jakpa, was also charged with one count of Causing Financial Loss to the State, contrary to the Criminal Offences Act .(Count #3). Both Appellants pleaded Not Guilty to their respective charges.
[3] The prosecution called five witnesses who testified and tendered many documents as exhibits to help prove its case. At the close of the prosecution's case, Counsel for the Accused persons submitted that their clients should not be called upon to open their defence because the prosecution had failed to discharge its onus in respect of the charges preferred against them. The learned trial judge, by a ruling dated March 30, 2023, dismissed the submissions made and called upon both the 1st and 3rd Accused persons to open their defence.
[4] It is in respect of the decision made by the trial judge that we are called upon to review the record of appeal and determine whether the trial judge's refusal to uphold the submission of no ca·se (called a 'Directed Verdict' in some jurisdictions) is sustainable in law based on the evidence heard.
ii. The Background Facts:
[5] I note that the detailed background facts as presented by the prosecution can be found in the ruling of the trial Judge. Nevertheless, for our purpose I deem it appropriate to also set out the fa