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Introduction
A former Ghanaian deputy Finance Minister, Cassiel Ato Forson, has been acquitted and discharged by the country’s Court of Appeal during a controversial three-year trial dubbed the ‘ambulance trial.’
Court records cited by DUBAWA have revealed that the ex-Ghanaian minister, Mr Forson, and a businessman, Richard Jakpa, were standing trial for three counts of causing financial and economic loss to the West African country.
According to a High Court record, the court discharged the third person, Sylvester Anemana, the then Chief Director of the country’s Ministry of Health, on humanitarian grounds.
The Agreement for the purchase of 200 ambulances
In his first State of the Nation Address in 2009, the late Ghanaian President, Professor John Evans Atta-Mills, promised to improve the country’s health sector by retooling various health institutions, such as the National Ambulance Service (NAS), with the necessary logistics to address citizens’ health needs.
A record at Ghana’s Parliament has revealed that the late Ghanaian President repeated this pledge in his fourth State of the Nation Address in 2012.
“Under the National Medical Equipment Replacement Project, Government is providing life support equipment and medical imaging in selected District Hospitals… [also] The National Ambulance Service will take delivery of 160 ambulances this year to augment the existing fleet,” the late Professor Mills said in pages 12 and 13 of his fourth State of the Nation Address in 2012.
However, after President Mill’s death, his successor, John Dramani Mahama, sought parliamentary approval in 2012 to purchase 200 ambulances for the National Ambulance Service (NAS) worth €15,800,000, a report of Parliament’s Joint Committee on Health and Finance showed.
Parliament’s record has revealed that the approved financing agreement was between the Government of the Republic of Ghana and Stanbic Bank (Ghana) Limited.
The involvement of businessman Richard Jakpa in ambulance deal
According to businessman Richard Jakpa, the late Professor Mills’s address motivated him to assemble a team to establish the state of ambulances across the West African country.
“The first State of the Nation Address (SONA) by Atta Mills spoke about the lack of ambulances in the country. It was serious, and that was one of his priorities. So, as soon as I heard it, as an entrepreneur, I immediately put the team together and tasked them to go across the country to find out the state of ambulances. They went round, they spent some time, and we realised we had about 34 ambulances in the country. And that was serious. So, we put together a proposal,” the ex-military officer told Accra-based Joy News on July 30, 2024.
Mr Jakpa explained that after noticing the logistics deficit at the National Ambulance Service, he secured “suitable financial arrangements” and submitted a proposal to the Health Ministry to supply ambulances.
“Luckily for me, I was able to convince the bank. They sought approval from the underwriters in South Africa. It was approved, and then they ring-fenced the 15.8 million euros for this project. And gave me the term sheets. They signed it nicely, and it was signed. So I attached it to the proposal and then wrote officially to the Ministry of Health… Their own is a technical specification of the ambulance, but the financial term sheet is not within their domain; it’s for the Minister of Finance,” the ex-soldier further revealed.
After presenting the proposal to the Health Ministry, the businessman said he contacted Dubai-based Big Sea Company Limited which agreed to serve as their agent in Ghana and other West African countries except Nigeria.
Court records have disclosed that on Nov. 19, 2012, Sylvester Anemana, the then Chief Director of the Ministry of Health, wrote to the country’s Public Procurement Authority (PPA) requesting approval to engage the Dubai-based Big Sea Company Limited through a single-source process for the supply of the 200 ambulances.
A single-source or sole sourcing is a term in procurement which refers to the purchase of “supplies and materials from a single supplier.”
“The facts further state that by an agreement dated December 19, 2012, the Government of Ghana, represented by the Ministry of Health, formally contracted with Big Sea for the supply of 200 Mercedes Benz ambulances for fifteen million, eight hundred thousand Euros (€15,800,000), with a unit price of seventy-nine thousand Euros (€79,000),” court records showed.
The role of ex-Ghanaian minister Cassiel Ato Forson in ambulance deal
Ghanaian legislator Cassiel Ato Forson served as Deputy Finance Minister from 2013 to 2017, during which time the agreement for the procurement of the ambulances was made.
Court records have revealed that on Aug. 7, 2014, Mr Forson wrote to the Bank of Ghana and requested the country’s central bank to establish “Letters of credit for the supply of 50 ambulances amounting to EUR 3,900, 000 representing 25 per cent of the contract sum, while arrangements are being made to perfect and sign the loan agreement…in favour of Big Sea.”
Again, Mr Forson wrote to the country’s Controller and Accountant-General on Aug. 12, 2014, authorising the release of the sum of GHSȼ806,688 to the Health Minister to enable him to pay the bank charges covering the establishment of the Letters of Credit for the supply of 50 out of the 200 Mercedes Benz ambulances and related services.
Riding on the two letters authored by Mr Forson, the Controller and Accountant-General wrote to the Bank of Ghana on Aug. 14, 2014, to establish an “irrevocable, transferable Letter of Credit for €3,950,000, in favour of Big Sea,” court records have established.
The Agreement between Ghana’s Health Ministry and Big Sea Company Limited
Court records have disclosed that the agreement between the Government of Ghana, represented by the Ministry of Health, and Dubai-based Big Sea for the supply of 200 Mercedes-Benz ambulances worth €15,800,000 entered into force on 19 Dec. 2012.
The country’s second top court has revealed that, as part of the agreement, Ghana’s Ministry of Health was to conduct a pre-shipment inspection of 20 ambulances ready for shipment before payment was made.
However, a consignment of 10 ambulances was shipped from Dubai on Oct. 22, 2014, and arrived on Dec. 16, 2014, without a pre-shipment inspection.
“A post-delivery inspection of the first batch of 10 ambulances revealed various fundamental defects, rendering them unworthy of being described as ambulances [and] these defects were brought to the attention of Big Sea in a letter dated 11th February 2015 written by the second appellant [Sylvester Anemana],” court records have said.
While acknowledging the defects, Big Sea indicated the problems could have been avoided had the Health Ministry conducted the pre-shipment inspection as contained in the agreement, court records have established.
“The company promised to send their technicians to fix all issues relating to the defects and train Ghanaian staff before handing over the ambulances,” court records showed.
The case of the prosecution during the ‘ambulance trial’
Ghana’s Attorney-General (A-G), Godfred Yeboah Dame, arraigned the ex-minister Cassiel Ato Forson, the ex-Chief Director of the Ministry of Health, Sylvester Anemana, and businessman Richard Jakpa on Dec. 23, 2021, a High court records have disclosed.
However, the presiding judge, Justice Afia Serwah Asare-Botwe, said in a preliminary ruling on June 6, 2024, that due to Mr Anemana’s ill health, the trial of the accused persons could not start on Jan. 17, 2022, as planned.
Mr Forson was charged with two counts of wilfully causing financial loss to the Republic and intentionally misapplying public funds of €2,370,000. Also, businessman Mr Jakpa was charged with one count of causing economic loss to the Republic of €2,370,000. The two accused persons pleaded not guilty to their respective counts.
Court records established that Mr Anemana, the 2nd accused person, was discharged on humanitarian grounds.
The prosecution alleged that contrary to the terms of the agreement between the Government of Ghana, represented by the Health Ministry, and Dubai-based Big Sea Company Limited, Mr Forson authorised the release of funds without consent from the substantive Minister of Finance, Seth Tekper.
According to the prosecution, Mr Forson paid €2,370,000 for vehicles that “were falsely claimed to be ambulances from the Health Ministry’s account.”
Records at Ghana’s second top court revealed that the Head of the Trade Finance Unit of the Department of Banking of the Bank of Ghana, Edward Markwei, disclosed the two letters authored by Mr Forson were responsible for the payment of €2,370,000 to the Dubai-based Big Sea Company Limited.
The prosecution argued that Mr Forson’s action failed, contrary to the terms of the ambulance agreement, to uphold the duty he owed as a public officer with responsibility over the use of public funds, and that his duties as a deputy Finance Minister were “criminally negligent and unwarranted.”
On the part of Mr Jakpa, the prosecution contended that the ex-soldier’s business, Jakpa@Business, received €250,000, being part of the loss caused to the state. As court records have shown, Mr Jakpa’s business sued Big Sea Company Limited, its principal, to demand 28.7 per cent of the contract sum per their agency agreement signed in 2011.
The prosecution contended that having “comprehensive knowledge of the contract” and the specifications of the ambulances, Mr Jakpa’s business did not ensure that the vehicles supplied met the specifications in the contract.
The Responses of Messrs Forson and Jakpa during the ‘Ambulance Trial’
Mr Forson maintained throughout the trial at the High Court that he issued those two letters with the authorisation of the Finance Minister, Seth Terkper. Counsel for Mr Forson argued that the ex-minister “did not commit any personal acts, as he did not authorise payments, and did not cause financial loss to the state or misappropriate any property,” records at Ghana’s Court of Appeal have revealed.
The ex-Ghanaian deputy minister further said that he acted in his official capacity as a public officer with the approval of the substantive minister when he directed the two public bodies to establish letters of credit in favour of Big Sea Company Limited.
The lawmaker said the alleged defects with the vehicles shipped into the country had nothing to do with him because he was not a contracting party in the said agreement.
In his defence, Mr Jakpa said his company was not a party to the agreement entered between the Government of Ghana and Big Sea Company Limited.
Court records have disclosed that the businessman argued that Jakpa@Business only served as an agent for the Dubai-based company in the country and nothing more.
After the prosecution closed its case, the second and third accused persons moved the court to declare that the Attorney-General had not proved the charges levelled against them.
However, in its ruling, the High Court presided over by Justice Afia Serwah Asare-Botwe, disagreed with the accused and ordered them to open their defence, a decision Messrs Forson and Jakpa appealed against.
Leaked audio conversation between Ghana’s Attorney-General and Mr Jakpa
The ‘ambulance trial’ divided opinion in the West African country after the opposition National Democratic Congress (NDC) leaked an audio conversation between the Attorney-General, Mr Yeboah Dame, and Mr Jakpa to the media.
The NDC released the 16-minute audio conversation after Ghana’s Attorney-General denied holding any conversations with the businessman at “odd hours to incriminate the first accused and Minority Leader, Dr Cassiel Ato Forson.”
In the leaked audio, Mr Yeboah Dame was heard discussing the transaction, a trial subject, with the businessman. He later told the businessman to feign sickness to secure an adjournment from the court.
“The difficulty I have with your position is that…frankly speaking, if I agree to your position, how you want to go about it and how you want me to go about my answering questions and things, If I go by that way, frankly speaking, I will be dishonest because I know that is not how it is supposed to be and I will be dishonest in such a way that, I will be assisting for someone I know is completely innocent about this, for example Ato Forson, to be jailed because I knew something was wrong…was not the way and I decided to keep quiet and to answer the question in a way that will make your case better. I will be battling with my conscience,” Mr Jakpa told the Attorney-General in the leaked audio from minutes 09:09 to 09:52.
Reacting to the content of the leaked audio at a press conference held on May 28, 2024, the NDC National Chairman, Johnson Asiedu Nketia, accused the Attorney-General of witness tampering, conspiracy against an accused person [Mr Forson], professional misconduct, and fabrication of evidence to pervert the course of justice.
“Today, Godfred Dame stands exposed as an unethical, scheming and devious Attorney-General who will go to whatever length, including engaging in criminality, to unjustly silence, persecute and imprison critics of his government. Dame is clearly a devious character bereft of integrity, honour and unfit to occupy the high and hallowed public office of Attorney-General,” Mr Asiedu Nketia said.
The leaked audio triggered calls for Mr Yeboah Dame’s resignation as the country’s chief prosecutor.
The Founder and President of IMANI Africa, Franklin Cudjoe, expressed surprise Mr Yeboah Dame was still at post despite “damning content” in the leaked tape.
“Some are saying he hasn’t done anything wrong, some are defending him, let’s stop this. Your Minister of Justice is coaching someone to fabricate a story in order to jail somebody else. Why? He told Jakpa to secure a fake medical excuse. That’s even damning, really?” Mr Cudjoe told Accra-based Joy FM.
However, Ghana’s governing New Patriotic Party (NPP) said the Attorney-General “did and said nothing wrong” in the leaked audio to step down. “You all heard the tape – where did the Attorney-General lure the third accused person to proffer evidence against the first accused? With the load of evidence before the court, how can the Attorney-General?” an NPP lawyer, Frank Davies, quizzed.
Also, reacting to the leaked audio, Deputy Attorney-General Alfred Tuah-Yeboah said nothing untoward was said by Mr Yeboah Dame during the entire conversation. “There is no doubt that the Attorney-General had a conversation with the third accused, as you’ve heard from our spokesperson. Very true, circumstances led to that kind of conversation, and we think nothing untoward was said,” he said.
When he commented on the leaked tape, Mr Yeboah Dame said he would flee from any trap laid against him. “All I can say is that the Lord does not delight in the pleasure of the wicked. Even though they have laid traps for me, I will flee from them. And righteousness will always prevail over evil,” he said.
The Attorney General also tendered in 68 text messages sent to him by Jakpa, insisting it was the second accused person who was harassing him with text messages he barely responded to.
The decision of the Court of Appeal on the ‘ambulance trial’
In a landmark 2:1 decision, Ghana’s second top court acquitted and discharged Messrs Forson and Jakpa on July 30, 2024.
After evaluating the evidence adduced before the trial court and the submission of counsel for Mr Forson, the Court of Appeal said, in its view, the prosecution “failed to provide sufficient evidence that meets the threshold of connecting the 1st Appellant (Mr Forson) with the offences he is charged with.”
The court further held that the Prosecution failed to call the ex-Finance Minister, Seth Terkper, as a state witness to prove that Mr Forson issued the two letters without due authorisation.
“In my opinion, had Mr Tekper been called as a witness [of the state], his testimony would have, one way or another, helped resolve the contention that he did not claim ownership of the letters dated August 7 and 12, 2014,” the court said.
Although Mr Tekper testified before the court, he was invited as a witness to Mr Forson and not the state. “The letter to the Bank of Ghana requesting the setting up of the LC emanated from the Ministry of Finance and had my full authorisation,” the ex-finance minister clarified to the court.
On the part of Mr Jakpa, the court noted that the businessman played no role in the entire transaction as a contracting party. Court records have indicated that he only served as the agent for the Dubai-based Big Sea Company Limited.
“A review of the record unimpeachably confirms that Jakpa@Business is not contracting to the ambulance agreement between the Ministry of Health and Big Sea, but only the agent for Big Sea,” Ghana’s second apex court has said.
The Court of Appeal rejected the prosecution’s argument that Jakpa@Business sued Big Sea Company Limited for a breach of the agency agreement, which resulted in the payment of €250,000 and caused the country economic loss.
“With respect to the prosecution, I do not see the nexus between the lawsuit between Jakpa@Business and Big Sea and the loss the state contends it has incurred. The evidence establishes that Jakpa@Business had an agency agreement with Big Sea, its principal,” the court noted in its ruling.
Ghana’s Court of Appeal concluded there are “no proved facts from which an inference can be made that Jakpa@Business, as an agent of Big Sea LLC, which agreed with the Ministry of Health, through its actions or omissions or recklessness, caused financial loss to the government of Ghana.”
“In my view, in the absence of any positive evidence, what is left is impermissible speculation and conjecture for some findings to be made against the 3rd Appellant (Mr Jakpa),” the court said.
The decision of the country’s second apex court ends a nearly three-year trial that has seen many twists and turns.
Reaction of Messrs Forson and Jakpa following the court’s ruling
Reacting to the Court of Appeal’s ruling, Mr reaffirmed his innocence during the entire deal, which led to the court action.
“This ruling is a victory for all democracy-loving Ghanaians and those who hold sovereignty to the rule of law. It is a victory for all Ghanaians, not for me alone. It is also a victory for all those trained and saw that we needed integrity in the country and wanted us protected,” the businessman told Accra-based Joy FM.
The ex-soldier said he had been given the justice he had longed for by the “Court of Appeal where there are men of integrity who looked at the evidence as it is.”
When asked if he had plans to leave the country soon, Mr Jakpa said, “I am going nowhere. If I am travelling, it is purely to go and engage my international business partners to see how I can get things back on track.”
The minority leader expressed his gratitude to God for the favourable decision of the country’s Court of Appeal.
Quoting Romans 9:14, the legislator quizzed:
“What, then, shall we say? Is God unjust? Not at all.”
The attorney general’s reaction to the Court of Appeal’s decision
Minutes after the Court of Appeal dismissed the charges levelled against Messrs Forson and Jakpa, the country’s Attorney-General, Godfred Yeboah Dame, expressed his displeasure with the ruling.
Describing the decision as “perverse,” the Attorney-General said it is “heavily against the weight of the cogent evidence led by the prosecution in substantiation of all the charges against the accused persons at the trial.”
“The Office will promptly file an appeal in order to erase the effect of this erroneous decision of the Court of Appeal,” Mr Yeboah Dame said.
Attorney-General files appeal against Court of Appeal decision
Meanwhile, court documents sighted by DUBAWA have revealed that Ghana’s Attorney-General, Godfred Yeboah Dame, has successfully filed an appeal against the Court of Appeal’s decision at the Supreme Court.
See here and here for news reports on the appeal filing.
In the Notice of Appeal filed at the Supreme Court on Aug. 8, 2024, the Attorney-General complains that the majority Court of Appeal decision failed to consider the prosecution’s case as required by law in determining whether a case had been made for the accused to answer.
“The majority on the Court of Appeal unnecessarily dwelt on possible defences for the accused in determining whether a case had been made by the prosecution,” the Attorney-General said.
Also, the state complains that the majority of the Court of Appeal’s decision that the establishment of the letters of credit did not constitute payment under the contract “is contrary to the clear evidence in the case and untenable.”
“The majority’s holding that the Ministry of Health’s default caused financial loss to the state (and not the act of the 1st accused in authorising the establishment of the letters of credit) was laden with fundamental errors and occasioned a substantial miscarriage of justice,” the Attorney-General said.
Conclusion
The successful Notice of Appeal filing makes it unclear when the country’s apex court would hear the appeal. However, the two accused persons or their counsels have yet to be served notices to enable them prepare their submissions in opposition to the appeal.
