The High Cloister absolved the acquiescence of no case, but the Cloister of Address chaotic its cardinal and acquitted and absolved Ato Forson and Jakpa.
Justice Srem-Sai, a acclaimed clandestine acknowledged practitioner and law lecturer, has accustomed a breakdown of the 125-page acumen of the Cloister of Appeal.
In a column aggregate on Facebook on Tuesday, July 30, 2024, Srem-Sai acicular out that the cardinal of the cloister was based on three key issues, namely: “the aftereffect of a letter of acclaim (LC)”, “evidence of non-authorization”, and “the obligation of Mr Jakpa beneath the contract”.
On the LC, he explained that the Cloister of Address board who sat on the case assured that Ato Forson did no amiss by acceding the LC for the acquirement of the ambulances back he was the Abettor Abbot for Finance.
The cloister acclaimed that if addition charge be captivated answerable for the action of the ambulances purchased, it should be the again Ministry of Health and not Ato Forson.
“The Cloister of Address captivated that an LC is a agreement which is redeemable (becomes payable) alone back the altitude in it are satisfied. So, it is the being who certifies that the altitude are annoyed (not the being who authorises the LC’s establishment) who fabricated the payment. In this case, it appears that the being should be in the Ministry of Health (rather than Finance). You’ll acquisition this assay in paragraphs 73 to 76 of the judgement.”
The law academician additionally explained that the Office of the Attorney General was not able to prove to the cloister that Ato Forson did not accept the ability to authorise the LC for the acquirement of the ambulances.
“The AG’s accusation in the particulars of answerability is that Dr Forson (as a abettor minister) was not authorised by the absolute abbot (Mr Terkper) back he (Dr Forson) wrote the letter to the Bank of Ghana to accept the LC established. The catechism on address is - who (between the AG and Dr Forson) has to prove that Mr Terkper did not authorise Dr Forson (non-authorisation)?
“At branch 100 of the judgement, the Cloister of Address captivated that it is he who alleges (that is, the AG) who care to prove what he alleges - non-authorisation. In added words, you can’t allege addition of acting after ascendancy and apprehend the person, rather, to prove that he’s authorised, back you accept the agency of proving that he was not authorised. The record, however, shows that the AG did not prove what he alleged. In fact, the AG never declared Mr Terkper to testify, alike admitting Mr Terkper is still animate and could be declared to testify,” he wrote.
Justice Srem-Sai additionally explained that the board in their judgement disqualified that Richard Jakpa, the third accused in the case, cannot be answerable with causing banking accident to the accompaniment because he acted alone as an abettor in the transactions.
He added that Jakpa, who had no obligation beneath the arrangement amid the government and the aggregation that supplied the ambulances, cannot be answerable with causing banking accident to the state.
“To begin, Mr Jakpa was not a affair to the contract. He was an abettor of a aggregation declared Big Sea. It is Big Sea that has an obligation beneath the contract. Alike admitting this could accept concluded the matter, it did not – the affair went above this. There was a adjourned “roadmap” in 2016 beneath the NDC government area it was agreed amid the Ministry of Health and Big Sea that accomplish be taken to antidote the defects in the ambulances. Again, Mr Jakpa had no obligations beneath this roadmap either. Rather, the MOH (not Big Sea and, certainly, not Mr Jakpa) reneged on its obligations beneath the roadmap. The Cloister of Address (at paragraphs 146 and 150) did not see any affirmation from the almanac how Mr Jakpa, a non-party to the ambulance contract, acquired the declared banking loss; added so back the AG chose not to arraign his arch (Big Sea),” he wrote.
Read Srem-Sai's abounding column and the abounding judgement of the Cloister of Address below:
I apperceive you, admirable people, don’t absolutely like reading, so let me advice you with a arbitrary of the 125-page judgement of the Cloister of Appeal. The judgement turns on 3 key points:
THE EFFECT OF A LETTER OF CREDIT (LC): One could faculty the AG’s adversity on this aspect of the case from the buzz alarm which he (the AG) had with Mr Jakpa. The affair in the case was whether the enactment of an LC constitutes absolute payment, so that the being who authorised the enactment of the LC may be captivated to be the being who fabricated the payment. This affair is accordant because the being who fabricated the acquittal is the being who acquired the declared banking loss. The Cloister of Address captivated that an LC is a agreement which is redeemable (becomes payable) alone back the altitude in it are satisfied. So, it is the being who certifies that the altitude are annoyed (not the being who authorises the LC’s establishment) who fabricated the payment. In this case, it appears that that being should be in the Ministry of Health (rather than Finance). You’ll acquisition this assay at paragraphs 73 to 76 of the judgement.
EVIDENCE OF NON-AUTHORISATION: Note that I acclimated ‘non-authorisation’ (rather than ‘authorisation’). This is because the attributes of the accusation played a axial role in the analysis. The AG’s accusation in the particulars of answerability is that Dr Forson (as a abettor minister) was not authorised by the absolute abbot (Mr Terkper) back he (Dr Forson) wrote the letter to the Bank of Ghana to accept the LC established. The catechism on address is - who (between the AG and Dr Forson) has to prove that Mr Terkper did not authorise Dr Forson (non-authorisation)? At branch 100 of the judgement, the Cloister of Address captivated that it is he who alleges (that is, the AG) who care to prove what he alleges - non-authorisation. In added words, you can’t allege addition of acting after ascendancy and apprehend the person, rather, to prove that he’s authorised, back you accept the agency of proving that he was not authorised. The record, however, shows that the AG did not prove what he alleged. In fact, the AG never declared Mr Terkper to testify, alike admitting Mr Terkper is still animate and could be declared to testify.
THE OBLIGATION OF MR JAKPA UNDER THE CONTRACT: To be captivated as accepting acquired banking loss, one charge accept a role to comedy in the transaction that led to the loss. This will necessarily advance to the catechism - who has obligations beneath the ambulance accumulation contract? The added specific question, however, is - did Mr Jakpa accept any obligations beneath the contract? To begin, Mr Jakpa was not a affair to the contract. He was an abettor of a aggregation declared Big Sea. It is Big Sea that has an obligation beneath the contract. Alike admitting this could accept concluded the matter, it did not – the affair went above this. There was a adjourned “roadmap” in 2016 beneath the NDC government area it was agreed amid the Ministry of Health and Big Sea that accomplish be taken to antidote the defects in the ambulances. Again, Mr Jakpa had no obligations beneath this roadmap either. Rather, the MOH (not Big Sea and, certainly, not Mr Jakpa) reneged on its obligations beneath the roadmap. The Cloister of Address (at paragraphs 146 and 150) did not see any affirmation from the almanac how Mr Jakpa, a non-party to the ambulance contract, acquired the declared banking loss; added so back the AG chose not to arraign his arch (Big Sea).
BAI/OGB
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