Ato Forson was criminally reckless; he has case to answer – Attorney-General

The Republic, through the Attorney-General, has stated that the State has succeeded in establishing a case against all the accused persons including former Deputy Minister for Finance, Dr. Cassiel Ato Forson, in the criminal trial involving the supply to the State of vehicles unworthy to be used as ambulances in 2015.

Arguing in written submissions filed on 16th March, 2023, the Attorney-General, Godfred Yeboah Dame, submits that “a consideration of the evidence led at the trial so far by the prosecution should easily lead to the conclusion that the prosecution has satisfied all the elements of the offences” contained in charges preferred against the accused.

The Republic argues further that “the evidence given orally by the prosecution’s witnesses was buttressed by a large volume of documents directly confirming the truth of assertions made by the witnesses”.

The prosecution points out that the actions of the first accused, Dr Ato Forson directly led to financial loss to the State in the purchase of the vehicles purporting to be ambulances. By a letter dated 7th August 2014, signed by Dr Ato Forson, the Bank of Ghana was urgently instructed to establish an irrevocable transferable Letter of Credit (LC) in the sum of EUR 3,950,000.00 in favour of Big Sea General Trading LLC. as payment for the ambulances to the Ministry of Health. This authorisation for the LCs to be established resulted in the payment of €2,370,000 for the supply of vehicles by Big Sea General Trading LLC, which did not meet the description of an ambulance (a fact clearly established from the evidence on record). According to the prosecution, Dr Forson’s actions, judged in light of the terms of the contract governing the transaction, showed that he violated the duty he owed as a public officer with responsibility over the use of the public purse by virtue of his status as a Deputy Minister of Finance in 2014. His actions were criminally negligent and most unwarranted.

Justifying why Dr Forson’s actions were criminally negligent or reckless, the prosecution stated that Dr Forson’s instruction for LCs to be established, were contrary to the terms of the “ambulance contract”, since none of the conditions set out in the contract before payment could be made, had been satisfied.

The Deputy Controller and Accountant-General, relying on Dr Forson’s letters, wrote to the Bank of Ghana for payment to be made. After this, the vehicles were shipped contrary to the terms of the agreement. Unfortunately, when delivered, the vehicles were not fit to be described as ambulances.

“It is indisputable, on the facts established at the trial, that, first accused’s actions and omissions led to the loss to the state”. The State argued.

The Attorney-General further submitted that the first accused’s omission to respect the terms of the agreement between the parties, showed mens rea to wilfully cause financial loss to the Republic. “It can clearly be deduced that he desired to cause financial loss, or he foresaw the loss as virtually certain but took an unjustifiable risk of it, or he could foresee the loss as probable consequence but elected to unreasonably risk same, or he failed to exercise due care and attention and thereby caused a loss”, Mr. Dame argued.

The Attorney-General further submitted that the first accused did his actions without any further “authorisation” from any quarters. A careful examination of the record does not disclose any so-called authorisation by the former Minister for Finance or, indeed, any superior officer. On the contrary, exhibits tendered by the prosecution show that Dr Forson acted on his own and not through any alleged authorisation by his former boss, Mr Seth Tekper. The actions taken by the Controller and Accountant-General as well as the Bank of Ghana, all relied on first accused’s actions, not any action by Mr. Seth Terkper, the prosecution stated.

Further, the prosecution points out that the Republic actually tendered in evidence an internal memorandum from the Ministry of Finance regarding the matters in issue that showed that the Ministry of Finance staff who worked on the transaction relied solely on the authorisation by Dr Forson, and not the Minister, Mr. Seth Terkper.

This exhibit, in the prosecution’s view, gave an insight into the understanding and thinking of the staff of the Ministry of Finance who worked on the authorisation for the LCs to be established. They clearly attributed their action and decision to the direction of first accused, and not the Minister. They were under no illusion that the authorisation for the LCs to be established was coming from first accused, not his boss.

Nowhere in the statement given by Mr. Seth Terkper to the police did he claim ownership of the letters written by Dr Ato Forson.

On the contrary, Mr. Terkper’s actions around the same time that the first accused’s letters were written, showed a completely different inclination, as the Honourable Minister rather was working on reviving the Stanbic facility which was the parliamentary-approved means of payment for the transaction.

It is very obvious therefore, that, the Minister and his deputy, first accused, were doing different things around the same time. Whilst one (the Minister) was working on ensuring a success of the parliamentary-approved facility, the other (first accused), was working to ensure payment contrary to the terms of the contract and from a source that had not been approved by parliament.

The Republic continued that as would reasonably be expected of a person exercising public power over the management of public funds, the first thing to be done when authorizing payment for any kind of item is to check whether the payment was due. This can easily be ascertained from a consideration of the contract regarding the transaction in issue. A cursory examination of the contract by first accused would have disclosed to him that, at the time he instructed Bank of Ghana and Controller and Accountant-General to effect payment, payment was not due at all under the relevant contract.

According to the Republic, this is because clause 6 of the contract explicitly prohibited advance payment. The goods were to be delivered before the LCs were to be opened in favour of the supplier to pay for them. Pre-shipment inspection of the vehicles was required to be done to ensure that the vehicles met the specification of ambulances stated in the contract. This was not done, but Ato Forson authorised for payment to be done.

Unfortunately for the first accused when the vehicles arrived, they were not fit for purpose. Letters written by Dr Alex Segbefia, former Minister for Health, indicated categorically that the vehicles were “ordinary vans”, and not ambulances). These letters written by Dr. Alex Segbefia were tendered in without objection by counsel for the defence.

It is the first accused’s recklessness in not ensuring that the terms of the agreement were adhered to that caused all the problems and resulted in the institution of the criminal case against him. If he had exercised the requisite ordinary caution and observation in not making advance payment and waited until the goods had been delivered at the Port of Tema, as he was required to do by clauses under the agreement, the defects on the vehicles would have been noticed and the necessary action taken without any payment by the Government of Ghana.

The prosecution further stated that assuming without admitting that the first accused was justified in considering the contract as effective, the action of the former Minister of Health, Madam Sherry Aryittey, when she was called upon to perform the contract, exposed the recklessness of the first accused.

In reaction to the advice of Dr Dominic Ayine, former Deputy Attorney-General, that the contract had become effective and therefore had to be performed, Madam Sherry Aryittey, exercising proper care and caution, indicated to the former Deputy Attorney-General that the Stanbic Facility required for the performance of the contract, had not been secured and therefore, her Ministry did not have budgetary provision for the contract.

However, in complete contrast and in a manner consistent with recklessness, first accused on 7th August 2014 instructed the Governor of the Bank of Ghana to urgently establish the LCs for the supply of the ambulances “while arrangements are being made to perfect and sign the loan Agreement”. Be that as it may, the first accused never followed through with any “arrangements to perfect and sign the loan Agreement” after directing that payment should be made from the MOH’s accounts.

This, in the prosecution’s view, was wholly unwarranted. To make matters worse, he failed to ensure that the terms of payment and delivery of the vehicles under the contract whose performance he directed were complied with.

Regarding the second accused (A2), the State submitted that he was the designer of the scheme to cause financial loss to the state in the matter of the supply of vehicles which did not meet the specification of ambulances. The second accused deliberately laid the platform for the whole illegal enterprise, which assisted the first accused in subsequently carrying out his unlawful actions resulting in financial loss to the state in the sum of €2,370,000.00

The platform designed by A2 to commit financial loss to the Republic consisted of A2’s specific role in making false representations to the PPA Board for the purpose of obtaining the unlawful procurement of Big Sea General LLC for the supply of the vehicles. On the basis of this unlawful procurement of Big Sea, the contract was signed, and this also became a basis for the first accused’s actions resulting in financial loss to the Republic.

The prosecution stated that “evidence led at the trial shows that the letter written by A2 requested approval from the Public Procurement Authority (PPA) to engage Big Sea through a process of single sourcing for the supply of 200 ambulances. It falsely represented to the PPA that Big Sea had arranged for financing for the project. When the PPA was not initially satisfied with the application by second accused, it sought clarification by a letter dated 15th November 2012. By another letter dated 19th November 2012 second accused (A2) continued on his bandwagon of deception of the PPA in a bid to secure the approval as the basis to cause financial loss to the Republic, by making yet another misrepresentation to the PPA.

This time, A2 affirmed the false statement by writing another letter to the PPA to the effect Big Sea had arranged for funding for the project from Stanbic Bank and for that matter “the draft agreement on the project with the Ministry bears the name Big Sea General Trading LLC. This draft contract was subsequently submitted to Parliament for approval.” This was a very material misrepresentation which A2 knew was false because A2 was the Chief Director at the Ministry of Health when the agreement was submitted to both Cabinet and Parliament”. Big Sea was never mentioned in any of the memos to Cabinet or Parliament and was never approved by Parliament. A2 knew that Big Sea’s contract with the Government of Ghana had to be approved by Parliament before same would be valid.

Regarding the third accused (A3), the Republic submitted that he “was the sole shareholder and also a director of the company, Jakpa at Business, the agent for Big Sea General Trading LLC of Dubai. He was responsible for the distribution and sale of the vehicles in Ghana and West Africa. He was, therefore, uniquely aware that the vehicles he imported into Ghana were ordinary vans and not what was contracted for, leading to a loss to the Republic.

For representing Big Sea, A3 received a commission of 28.7% of the contract price. He even issued a writ against Big Sea to ensure that he was paid his commission of 28.7% of €2,370,000. He connived with the principal to unilaterally change the vehicle specifications”. Big Sea admitted in a letter to the Ministry of Health that the version of the vehicles the parties had contracted for was unavailable.

However, without consulting the Ministry of Health, A3, and his principal changed the vehicle specified under the contract. This was done to the knowledge of the accused person. Therefore, A3 was aware that the vans which arrived in Ghana were not the ones contracted for.

The State concluded by asserting that a case raising a presumption of guilt had been made against all accused persons, and therefore the court ought to call upon them to open their defence.

The ruling on the submission of no case has been fixed by the trial judge for Thursday, 30th March 2023.