Minority Leader, Dr. Cassiel Ato Forson has been ordered by an Accra High Court to open his defence in the ambulance case.
Two others, former Chief Director at the Health Ministry Seth Anemana, and businessman Richard Jakpa have also been directed to do same.
All three are facing various charges including willfully causing financial loss to the state in the purchase of some ambulances prosecutors say are unfit for purpose.
Court ruling
The Court in its ruling noted that every party in the case admits in one way or the other
that the ambulances that were imported were defective.
“If you have spent money on a vehicle that cannot be used, then there is a case to be answered,” Justice Asare Botwe stated.
On the question of whether Dr. Forson was authorised to write the said letter, Justice Asare Botwe said lawyers for Dr. Forson seem to have misapprehended the law.
“It is a misapprehension of the law to state that the AG should have called Seth Terkper to prove that Dr. Ato Forson did not have authorisation to write the said letter.”
The court said once the AG stated that Dr. Forson did not have such authority and Dr. Forson replied that he had authority, the responsibility was on Dr. Forson to show that he had authority. Evidence before court, she noted shows that Seth Terkper even told prosecutors he did not have enough information when he gave his statement.
All three accused persons have been ordered to open their defence. The case is back in court on April 13.
The Ambulance saga
The case borders on a series of events that happened between 2013 and 2017. Top on this narrative is a 2009 Presidential decision to acquire new ambulances for the country.
The AG says the cabinet in December 2011 endorsed an Executive approval for the purchase of 200 ambulances out of a loan facility of €15.8m to be paid out of a credit arrangement between Stanbic Bank and government.
The Health and Finance Ministers are said to have put in an application for parliamentary approval to reflect this decision.
This approval was granted on November 1.
The AG contends nowhere in the request to Parliament nor the approval made reference to any role to be played by either Dubai-based Big Sea General Trading Limited or Jakpa at Business Limited.
A Chief Director at the Ministry of Health is alleged to have requested approval from the Public Procurement Authority (PPA) to engage Big Sea through a process of single sourcing for the supply of 200 ambulances.
The Attorney General describes this letter as falsely representing that “the reason for the single sourcing was that Big Sea had arranged for financing for the project.”.
The PPA is reported to have approved the engagement of Big Sea by a single-source method of procurement for the supply of the 200 ambulances.
Court documents filed by the AG show that the Ministry of Health in December 2012 contracted with Big Sea to supply the ambulances at a price of €15.8 million.
The agreement stipulated that 25 ambulances were to be delivered within 120 days of execution of the agreement.
The remaining were to be delivered in batches of 25 every 30 days thereafter.
Advance payment according to the AG was prohibited and payment was to be by “raising an irrevocable and transferable letter of credit” from the Government of Ghana’s bankers.
The case against Dr Forson
Dr Forson is alleged to have contrary to the terms of the agreement, written to the Bank of Ghana “urgently requesting…to establish letters of credit for the supply of 50 ambulances amounting to €3,950,000 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”.
He is also alleged to have written to the Controller and Accountant General authorising the release of the sum of GH¢806,688.75 to the Minister for Health to enable him to pay the bank charges covering the cost establishment of the LC for the supply of 50 Mercedes Benz Ambulance and Related Services”.
The Ministry of Health, the AG says failed to conduct a pre-shipment inspection of the 20 ambulances which were ready for shipment before payment was made.
This he argues is contrary to the contract. 30 ambulances said to have fundamental defects and declared not fit for purpose were shipped into the country.
A total amount of €2,370,000 has been paid for these 30 vehicles.
The Attorney General called five witnesses including Health Minister Kwaku Agyemang Manu to testify in support of the case.
He believes the testimony so far shows that there was a financial loss to the state, that the loss was caused through the action or omission of Dr Forson and that he should have foreseen such a loss as being probable.
On the thorny issue of whether Dr Forson’s request for letters of credit meant an authorisation of payment, the AG describes the argument against it as “mind-boggling”.
The AG says the evidence so far shows that the letters of credit were irrevocable and once established, payment was guaranteed.
Another issue that forms a key aspect of Dr Forson’s defence is that he wrote the letters on behalf of the substantive Minister for Finance Seth Terkper. The AG argues the letters were written without any authorisation from any quarters.
“A careful examination of the record does not disclose any so-called authorisation by the former Minister for Finance. On the contrary, exhibits tendered by the prosecution show that A1 (Dr Forson) acted on his own and not through any alleged authorisation by his former boss.
“The actions taken by the Controller and Accountant-General as well as the Bank of Ghana all relied on A1’s actions, not any action by Seth Terkper,” the AG stated.
He insists evidence tendered including an internal memorandum from the Ministry of Finance shows that the staff who worked on the transaction relied solely on Dr Forsons’ authorisation and not the Minister.
The AG points out that his witness, police investigator Rockson Gyamfi said; “…in the course of our investigation, the team spoke to the then minister of finance, Seth Terkper and he stated in his statement given to the office that upon the assumption of his office, there was a moratorium on the loans including the loan contracted for the ambulance.
“The team also got a letter from the Ministry of Finance addressed to Big Sea where the Minister was informing them that the loan agreement had lapsed and efforts are being made to operationalise the loans which had been approved by Parliament as the source of funding for the procurement of the 200 ambulances.
“Investigators further obtained a letter from MOD which indicated that the then deputy minister of finance had instructed that the LC be charged against the MOH budget”.
The AG maintains the investigator did not admit at any point during cross-examination that Seth Terkper told them he authorised the writing of the letters.
“Having clearly showed that he was acting on his own and not on the authorisation of a superior authority…the prosecution has strongly established a case under count one levelled against A1, we invite the court to call on A1 to open his defence.”
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