Court to Ato Forson, Others: State Has Established A Case Against You, Open Defense

The Financial and Economic High Court presided over by Justice Afia Serwah Asare-Botwe, has ordered the Minority Leader in Parliament, and former Deputy Minister of Finance under the erstwhile Mahama administration, Cassiel Ato Forson, to open his defence in a case of “causing financial loss to the state” preferred against him by the state.

The court gave the order after it ruled on Thursday (30 March 2023), that the state has established a prima facie case against Forson and two others (Dr Sylvester Anemana, a former Chief Director of the Ministry of Health and Richard Jakpa, a businessman) for causing financial loss of €2.37 million to the State in an ambulance purchase deal.

Justice Afia Serwaa Asare-Botwe’s court indicated in a ruling on a submission of no case filed by lawyers of three three accused persons that the court is not expected to make any finding of fact at the current stage of the case.

The court further observed that from the evidence before it and the addresses filed by the parties, all sides accept that some ambulances were imported into the country using the resources of the state, which were defective. If that is so, then there is an obvious case for the first and third accused persons to answer on count one and count three.

The court further looked at all the other charges preferred against the accused persons and concluded that the state has established a prima facie case against all three accused persons, and they are therefore ordered to open their defences.

AG’s argument

Attorney General Godfred Yeboah Dame in his address to the Court ahead of the ruling on the submission of no case noted that the Minority leader Ato Forson was criminally reckless as a Deputy Minister of Finance in 2015 and has a case to answer for his role in importing ‘fake ambulances’ into the country under the erstwhile John Mahama administration.

In written submissions filed in an Accra High Court, the Attorney General argued that evidence led at the trial by the prosecutor leads to an irreversible conclusion that Dr. Forson and two others standing trial with him surely have a case to answer.

Portions of the written submissions intercepted by Asaase Radio state 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. It recounts that 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).

“Dr Forson’s actions, judged in light of thee 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” the Republic argued.

To justify the AG’s position, he argued 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.

After his letter instructing the Controller and Accountant General and consequently the Bank of Ghana had been received, the vehicles were shipped contrary to the terms of the agreement, which stipulated pre-inspection in Dubai Upon inspection in Ghana, 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 prosecutions’ case thickens when it argues further 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 the first accused’s actions, not any action by Mr. Seth Terkper, the prosecution stated.

Charges

The three accused persons have been charged with five counts in total. These are: Wilfully causing financial loss to the Republic of Ghana, contrary to Section 179A (3) (a) of the Criminal Offences Act 1960 (Act 29), Abetment of crime, namely wilfully causing financial loss to the state, contrary to Sections 20 )1) and 179 A (3) (a) of the same Criminal Offences Act 1960, Contravention of the Public Procumbent Act 2003 (Act 663), contrary to Section 92 (2)(b) of the said act, and intentionally misapplying public property, contrary to Section 1 (2) of the Public Property Protection Act 1977 (SMCD 140).

Facts of the case

In the year 2009, the then president of the Republic of Ghana announced, in his annual message on the State of the Nation delivered to Parliament, that new ambulances would be procured to expand the existing fleet to enable many districts to be covered by the National Ambulance Service (NAS).

Following this speech, the Ministry of Health (MoH) initiated actions to acquire more of the vehicles. The third accused, using his company Jakpa at Business, presented a proposal and term loan to MoH, which he claimed to have arranged through Stanbic Bank to finance the supply of 200 ambulances to the government.

On 22 December 2011, the cabinet endorsed an executive approval that had been granted for a joint memorandum submitted by the health minister and the deputy minister of finance and economic planning for the purchase of 200 ambulances for the NAS, out of a medium-term loan facility of €15.8 million, to be paid using a credit arrangement between Stanbic Bank Ghana Ltd and the Government of Ghana through the Ministry of Finance.

By a joint memorandum dated 30 April 2012, the then minister of finance, Dr Kwabena Duffuor, and minister of health, Alban S K Bagbin, applied for parliamentary approval for the supply of 200 ambulances at a price of €15.8 million, to be paid using the planned-for credit arrangement involving Stanbic Bank Ghana Ltd.

This memorandum to Parliament did not make reference to any role to be played in the transaction by either Big Sea General Trading Ltd (Big Sea), based in Dubai, United Arab Emirates, or the agents for Big Sea, Jakpa at Business Ltd. Nor did it refer to the terms under which the ambulances would be procured or terms under which the two companies would be involved in the transaction.

On 1 November 2012, the Parliament granted approval for the financing agreement between the Government of Ghana and Stanbic Bank Ghana Ltd to procure the ambulances.

By a letter dated 19 November 2012, the second accused, who was then the chief director at the Ministry of Health, requested approval from the Public Procurement Authority (PPA) to engage Big Sea through a process of single-sourcing to supply the 200 ambulances.

The letter falsely stated that the reason for single-sourcing was that the Big Sea had arranged funding for the project.

By an agreement dated 19 December 2012, the Government of Ghana, represented by the Ministry of Health, then formally contracted Big Sea General Trading llc, based in Dubai, to supply 200 Mercedes Benz ambulances.

The contract sum was €15,800,000, at a unit price of €79,000.

According to the terms of the contract, the contract was to become effective upon the signature of the contract by both parties and when all government and other approvals had been obtained by both.

The terms of delivery, according to the agreement, were that the first consignment of 25 vehicles should be delivered within 120 days of execution of the agreement. The outstanding 175 vehicles were to be delivered in batches of 25 every 30 days thereafter.

Under the agreement, advance payment was prohibited. In addition, payment for the purchase price of €l5.8 million was to be by “raising an irrevocable and transferable letter of credit” from the Government of Ghana’s bankers for the benefit of the supplier

Upon delivery of every 50 ambulances, 25% of the purchase price was to be paid through confirmed letters of credit (LCs) on sight of goods opened in favour of the supplier, upon submission of a number of documents specified in the agreement.

On 7 August 2014, the first accused person, Cassiel A Forson, wrote to the Bank of Ghana “urgently requesting … to establish the letters of credit for the supply of 50 ambulances amounting to €3,950,000, representing 25% of the contract sum, while arrangements are being made to perfect and sign the loan agreement … in favour of Big Sea”.

On 12 August 2014, the first accused wrote to the controller and accountant general authorising the release of a sum of GHC806,688.75 to the minister of health to enable him to pay the bank charges covering the establishment of LCs for the supply of 50 Mercedes Benz ambulances and related services.

He further directed that the LCs should be charged to the budget of the Ministry of Health, contrary to Parliament’s approval on the funding for the supply of the ambulances.

The controller and accountant general, on the authority of the letters dated 7 and 12 August 2014, written by the first accused, wrote to the Bank of Ghana on 14 August 2014, authorising it to establish irrevocable, transferable LCs in the sum of €3.95 million in favour of Big Sea.

A consignment of ten ambulances, which was shipped from Dubai on 22 October 2014, arrived on 16 December 2014. Post-delivery inspection of the first batch of ten ambulances revealed that they had no medical equipment. Other fundamental defects included defects to the body of the vehicles and the patient compartment of the ambulances.

These defects were brought to the attention of the Big Sea in a letter dated 11 February 2015, written by the second accused, Sylvester Anemana.

By a reply dated 19 February 2015, Big Sea acknowledged the defects to the vehicles but said that they proceeded to ship the vehicles when they received the LCs on 18 August 2014. The company also said that the second consignment of ten vehicles, with the same defects, had been shipped 51 days before the date of the letter from the ministry.

The company promised to send its technicians to fix all problems relating to the defects and train Ghanaian staff before handing over the ambulances.

The third batch of ten vehicles was shipped on 12 February 2015. By this time, the second batch had already arrived at Tema Port. All 30 ambulances bore the fundamental defects described.

A further inspection by Silver Star Auto Ltd at the request of the Ministry of Health showed that the vehicles were not originally built as ambulances and were therefore not fit to be converted for such a purpose. In total, €2.37 million was paid for the 30 vehicles.

The third accused, as the local representative of Big Sea, knowing that the company had not shipped ambulances, still arranged with his principal to supply the purported ambulances and contracted with Big Sea to charge a commission of 28.5% on the proceeds from supplying these 30 vehicles, purported to be ambulances, to the Government of Ghana.

By a letter dated 20 January 2016, the then minister of health, Alex Segbefia, informed Big Sea that the vehicles did not meet the specifications for an ambulance and were not fit for purpose. The minister requested an inspection of a well-equipped ambulance vehicle that would meet specifications by 20 February 2016.

Following this, a team led by the chief executive officer of the National Ambulance Service proceeded to Dubai and carried out an inspection on 11 February 2016. After the visit to Dubai, Big Sea undertook to send a technical team to Ghana to rectify the defects. This has not been done.