EXCLUSIVE HIGH COURT RULING: Gavel By Gavel Account of How Martin Amidu Got Thrown Out

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An Accra High Court chaired by Justice Afia Serwah Asare-Botwe yesterday slashed charges slapped on opposition MP, Mahama Ayariga, by the Special Prosecutor.

This was a huge set-back to Martin Amidu in his determination to prove to Ghanaians that he is capable in contributing to fighting graft and corruption in public offices.

The court said the Special Prosecutor, Martin Amidu, is not allowed by its law to prosecute the Bawku Central MP on charges of fraudulent evasion of taxes, fraudulent evasion of customs duties and dealing in foreign exchange without a license.

The full text of the ruling is reproduced below;

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, FINANCIAL & ECONOMIC CRIME DIVISION 2 HELD IN ACCRA ON MONDAY THE 17TH DAY OF JUNE, 2019 BEFORE HER LADYSHIP JUSTICE AFIA SERWAH ASARE-BOTWE (MRS.)

SUIT NO. MSFT/23/2019

THE REPUBLIC

VRS.

  1. MAHAMA AYARIGA _ ACCUSED PERSONS
  2. KENDRICK KWESI MARFO

Al AND A2 PRESENT

COUNSEL: MR. MICHAEL BAAFI FOR THE REPUBLIC PRESENT

  1. DOMINIC AKUTIRINGA AYINE WITH HON. JAMES

AGALGA AND MR. GODWIN TAMEKLO PRESENT FOR Al MR. JOSEPH BENARD ASHALLEY WITH MR. KWEKU

KWAKYE MAMPHEY AND JOSELINE SEIDU FOR A2 PRESENT

RULING

This is a Ruling on a motion to strike out the Charge Sheet filed for and on behalf of the 1st Accused person (hereafter referred to as Al). The 2nd Accused has also had filed on his behalf an application to strike out Count

three of the charge sheet filed on the 29th of March, 2019. CERTIFIED TRUE COPY f Eeraggtecist A” suvevves “ar H COURT aug court

NANCE ECONOMIC CRIME COL , LAW Coat COMPLEX – ACCRA S WIDIGAT VNVHO A

The antecedents of the case are that on the 5th of May 2019, the Office of the Special Prosecutor filed a charge sheet in which the accused persons are being held for the following offences with their particulars;

Count One Fraudulent Evasion of Customs duties and taxes contrary to section 121(2) (f) of the Customs Act, 2015 (Act 891)

Particulars of Offence

Maham Ayariga, Member of Parliament for Bawku Central, aged 44 years in November, 2017 at Tema in the Greater Accra Region did fraudulently evade customs duties and taxes by paying Six Thousand, Sixty Two Ghana Cedis, Eighty-Six Pesewas (GH¢6,062.86) instead of the approved dudties and taxes of Thirty Six Thousand, Five Hundred and Ninety-Seven Ghana Cedis, Fifteen Pesewas (GH¢36,597. 15) to clear three Toyota V8 Land Cruisers.

Count Two Using Public Office for private benefit contrary to section 179C (a) of the Criminal Offences Act, 1960 (Act 29)

Particulars of Offence

Maham Ayariga, Member of Parliament for Bawku Central, aged 44 years in January, 2018 did abuse your office as a public officer for your private benefit by selling three Toyota V8 Land Cruisers with registration numbers GR 2220-18, GR 2221-18 and 2222-28 meant to be used for your official duties as a member of parliament to Kendrick Akwasi Marfo of Atlas- Rent

A- CAR at a price of Forty Thousand US Dollars ($40,000.00). Count Three Fraudulent Evasion of Customs Duties and Taxes contrary to Section 121(2) (f) of the Customs Act, 2015 (Act 891)

Particulars of Offence

Kendrick Akwasi Marfo, Car Rental Dealer, aged 50 years in January, 2018 at Dansoman – Accra did fraudulently evaded customs duties and taxes by purchasing three Toyota V8 Land Cruiser with Registration Numbers GR 2220-18, GR 2221-18 and 2222-28 from Mahama Ayariga, member of parliament for Bawku Central without paying the customs duties and taxes on them knowing that the duties and taxes on them had not been

paid.

Count Four

Dealing in foreign exchange without licence contray to Section 3 (1) and 29(1) (a) of the Foreion Exchange Act 2006 (Act 723)

Particulars of Offence

Maham Ayariga, Member of Parliament for Bawku Central, aged 44 years in October, 2017 at Accra in the Greater Accra Region did deal in foreign exchange with the agent of a supplier in Dubai for the supply of Three Second hand Toyota V8 Land Cruisers vehicles without having the required license to undertake such transaction.

Count Five

Transfer of foreign exchange from Ghana through an unauthorized dealer contrary to Section 15(3) and 29(1) (a) of foreign exchange Act 2006, Act 123 Particulars of Offence

Maham Ayariga, Member of Parliament for Bawku Central, aged 44 years in October, 2017 at Accra in the Greater Accra Region did transfer foreign exchange from Ghana to Dubai for the purchase of three second hand Toyota V8 Land Cruisers through an unauthorized dealer.

The pleas of the Accused persons are yet to be taken as the very charge sheet on which they are before the Court has been challenged. The facts of the case, although attached to the charge sheet as is customary in recent criminal law practice, are yet to be read. No order has also been made regarding the grant of bail or otherwise.

The Accused persons were first arraigned before this Court on the 4′ of June, 2019, but as is noted supra, counsel for Al had, prior to the date of his arraignment (i.e. the 31st of May, 2019)filed an application to strike subsequent to that, Mr. Joseph Bernard Ashalley for the 2.4 Accused also filed an application on the 4t of June, 2019, praying for an order striking out Count three of the charge sheet. It is that count that affects his client.

The grounds for Al’s application as is evident in the affidavit in support and legal arguments filed on the direction of the court, are that;

The Special Prosecutor is disqualified to hold office by reason of his age. They pray that this matter be stayed and referred to the Supreme Court for interpretation. e That in any case, counts one (1), three (3), four and five (5) are offences that are not within the remit or powers of the Special Prosecutor and same cannot be prosecuted by the Office.

On the part of A2, the sole round canvassed for the application to strike out count three (3) of the charge sheet is not within the remit or powers of the Special Prosecutor and same cannot be prosecuted by that office.

This court, due to the exigencies of its diary, directed that each of the parties to the applications file legal submissions while the case was adjourned for Ruling today, the 17t of June, 2019 at 9am.

In view of the fact that this is one of the pioneer cases on trial emanating from the Office of the Special Prosecutor, it is the view of the court that each of the legal points be raised in order to ensure that going forward there will be some judicial decision on the exercise of the mandate of that Office.

In essence then there are overlapping issues raised by both counsel, but at the end of the day, there are two (2) to be determined in this Ruling.

  1. The propriety or otherwise of the position of Special Prosecutor now held by Mr. Martin Amidu;
  2. The propriety or otherwise of counts one (1), three (3), four (4) and

five (5) of the charge sheet.

The issues will be dealt with in the order in which they appear. ON ISSUE ONE (1): THE PROPRIETY OR OTHERWISE OF THE POSITION OF SPECIAL PROSECUTOR NOW HELD BY MR. MARTIN AMIDU;

It is on the record of this Court that the issue of whether or not Mr. Martin Amidu is qualified to be in office is the subject matter of Suit No. J1/5/2018 entitled DR. DOMINIC AKUTIRINGA AYINE v. THE ATTORNEY-GENERAL AND ANOR currently before the Supreme Court. It is also undisputed that the Supreme Court has determined that the 24 Defendant (Martin Amidu) cannot be properly joined to the suit in his personal capacity and he has accordingly been struck out as a party to the action.

It has been proposed that these proceedings be stayed pending the determination of the case before the Supreme Court.

“On his part, the Respondent says that there is no basis for staying the = proceedings or making any finding of the propriety or otherwise of the Office he holds since no injunction application has been brought and granted against him.

In my considered opinion, making a pronouncement on the qualification or otherwise of the Special Prosecutor will be an error and would effectively amount to overreaching the Supreme Court, which this Court will definitely not do.

The observation is also made that if the proposal that the instant action is stayed, it would amount to the Special Prosecutor being injuncted. I do not think that granting the prayer of the Applicant in this instance would be a judicious exercise of discretion when it has been held that the Court ought to be cautious in dealing with applications for injunctions (and if I may add, applications whose grant would have the effect of an injunction) when a body or person is entrusted with statutory discretion and not dog its exercise with injunctions.

(See ATTORNEY-GENERAL v. CHRAd [1999-2000] 1 GLR 358)

See also: ENNIN V. AMPIAH [1982-83] GLR 952.

I am of the opinion that this is not the forum for such an application given the fact that the substantive matter is before the Supreme Court which is properly seized with all the facts and the issues.

I would further decline the request to refer the matter to the Supreme Court because it is too late in the day to do so. We shall all await the decision therefrom.

Mahama Ayariga storming out of court with his lawyers and some NDC bigwigs

I therefore hold, on this score that being de facto the Special Prosecutor, and having been duly sworn in as such, this Court will hold Mr. Martin Amidu as the substantive Special Prosecutor until the Supreme Court holds the contrary. The charge sheet is also held to be properly before the court without prejudice to determining the next issue of the individual charges and whether the offences fall within the remit of the Office of the Special Prosecutor. ON ISSUE TWO (2): THE PROPRIETY OR OTHERWISE OF COUNTS ONE (1), THREE (3), FOUR (4) AND FIVE (5) OF THE CHARGE SHEET.

To settle this matter, recourse will have to be had to the legislation under which the Special Prosecutor functions.

Sections 2 and 3 of the Act on the object and the functions of the Office state:

Object of Office 2. The object of the Office is to

  1. investigate and prosecute specific cases of alleged or suspected corruption and corruption-related offences;
  2. Recover the proceeds of corruption and corruption-related offences, and
  3. Take steps to prevent corruption.

SET aaa ===

  • To achieve the objects, the Offence shall
  1. investigate and prosecute cases of alleged or suspected corruption and corruption-related offences under_the Public Procurement Act, 2003 (Act 663);
  2. investigate and prosecute allegations of corruption and corruption- related offences under the Criminal Offences Act, 1960 (Act 29) involving public officers, politically exposed persons and persons in the private sector involved in the commission of the offences;
  3. C) investigate and prosecute alleged or suspected corruption and

corruption-related offences involving public officers, politically opposed persons and persons in the private sector involved in the commission of the offence under any other relevant law;

  1. recover and manage the proceeds of corruption;
  2. disseminate information gathered in the course of investigation to competent authorities and other persons the Office considers appropriate in connection with the offences specified in paragraphs (a) and (b),
  3. co-operate and coordinate with competent authorities and other relevant local and international agencies in furtherance of this Act;
  4. receive and investigate complaints from a person on a matter that involves or may involve corruption and corruption-related offences;
  5. receive and act on referrals of investigations of alleged corruption and corruption-related offences by Parliament the Auditor-General’s Office, the Commission on Human Rights and Administrative Justice, the

Economic and Organized Crime and any other public body; and

  1. fi) Perform any other functions connected with the object of the Office.

Further, section 79(c) of the Act, interprets “corruption and corruption

related offences to mean;

  • Sections 146,151, 179C, 239,252,253,254,256,258 and 260 of the Criminal Offences Act, 1960 (Act 29);
  • Section 92(2) of the Public Procurement Act, 2003 (Act 663); and
  • Existent offences under enactments arising out of or consequent to

offences referred to in paragraphs (a) and (b). Under the Act, “politically exposed person” includes

(a)A person who is or has been entrusted with a prominent public function in this country, a foreign country or an international

organization including

  • a senior political party official, government, judicial or military

official;

  • aperson who is or has been an executive in a foreign country or

a state owned company; (iii) | asenior political party official in a foreign country; and

  • An immediate family member or close associate of a person referred

to in paragraph (a).

(Emphases mine).

It is argued by both counsel for the applicants that the Special Prosecutor does not have a blank cheque to investigate and prosecute every case and that bringing the charges in counts one(1) three (3), four(4) and five(S) is tantamount to making forays into areas where he has no jurisdiction.

Without going to any great detail as this is a very preliminary stage of this case, it must be unequivocally stated that the mandate Office of the Office of the Special Prosecutor is, as can be gleaned from the long title of Act 959 is;

…to establish the Office of the Special Prosecutor as a specialized agency to investigate specific cases of alleged or suspected corruption and corruption-related offences involving public officers and politically exposed persons in the performance of their functions as well as persons in the private sector involved in the commission of alleged or suspected corruption and corruption-related offences, prosecute these offences on the authority of the Attorney-General .

From the mandate under sections 2, 3 and 79 of Act 959, the Office may exercise its mandate under the specific Acts quoted therein in addition to “any other relevant law” so long as they are corruption or corruption- related. Clearly then, when charges are laid, the Particulars of Offence must show that the offence arises out of “corruption or corruption-related circumstances or same must fail.

In this case, I have entirely reproduced all offences contained in the charge sheet for ease of reference. The drafting of Particulars of Offence under Counts one(1), three(3) four(4) and five(5), do not make any reference to any part of those offences having been allegedly perpetrated in furtherance of corruption and/or a corruption-related enterprise.

That is a drafting error, which, in my candid opinion, has the effect of exceeding the mandate of the Office of the Special Prosecutor.

The application to strike out Counts one (1), three (3) four (4) and five (5) of the charge sheet filed on the 27th of March, 2019 is accordingly granted.

CONCLUSION:

I shall conclude this Ruling by making a comment on a letter addressed to the Registrar of this Court and authored by the Rt. Honourable Speaker of Parliament on the availability of Al to stand trial. I shall not go into any great detail regarding this letter save to say that the concerns therein contained are very well-noted.

However, in the Ruling of this Court dated 4th June, 2019, in the case of THE REPUBLIC v. HAJIA HAWA NINCHEMA & 6 ORS (SUIT NO. FT012/2019) this Court made a pronouncement on whether or not the Speaker’s Certificate issued on the 4 of June, 2019,would be binding on this Court given the fact that the 1st Accused is not being compelled to appear as a witness but as an Accused Person. Those remarks still hold valid as far as this Court and the law are concerned. There will be no further detail as there is no such need perceived, save to state that in considering how this case will be managed and the trial conducted going forward, the following will be the guiding principles;

  • An accused person, per the Constitution has the right to a speedy trial. Each person is entitled to be dealt with fairly and according to law.

Article 19(1) of the Constitution states;

  • A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.

The law therefore expects that the Court will ensure that the Accused person’s rights are not abused by reason of undue and unreasonable delay.

In the case of NO. 36781 GC/2 TETTEH SAMADZI __v. THE REPUBLIC CRIMINAL APPEAL NO. J3/1/2016 dated 6™ APRIL, 2017 (available on ghalii.org), the Supreme Court per Gbadegbe JSC stated at page 19-20 of the online report: “It is important to observe that ensuring compliance with constitutional provisions engenders in the citizenry, a reciprocal respect for the constitution. On the other hand, when courts do not exercise the authority conferred on them to ensure observance with constitutional provisions, respect for the law, which is a pre-requisite for the rule of law and good governance is eroded.

Although the constitution has not provided what a reasonable time is, it seems to me that pending a clear pronouncement of time frames for criminal trials by the Supreme Court, this can for the time being be determined on a case to case basis having regard to the nature of the offence, the evidence and availability of witnesses. In my view, as many criminal trials have tended to be unduly long with accused persons being prejudiced by the violation of article 19(1), the time has come for us to confront these delays by placing presumptive ceilings on types of cases to be followed by the prosecution and serve as a basis for trial judges to adopt more effective case |management techniques that are designed to ensure compliance with the article under reference.”

In that case, the trial judge was reproved for supervising a trial in a manner which seemed as though the court’s control had been lost.

The same observation was made by the Supreme Court in the case of THE REPUBLIC VS. HIGH COURT (CRIMINAL DIVISION) ACCRA, EX PARTE FRANCIS ARTHUR (APPLICANT), ATTORNEY- GENERAL (INTERESTED PARTY) Civil Motion No. J5/29/2016 dated 28th July

2016 (the decision is available on ghalii.org) . In that case, the Court observed that the court had overly indulged counsel for the accused person observing that: «.. the learned Judge had in the course of the proceedings before him in relation to the applicant unduly indulged Counsel for the applicant, who regularly asked for adjournments on grounds of attending to Parliamentary duties. A person, who has freely chosen to perform the dual roles of a legislator and a legal practitioner, should endeavour to strike a balance so as to ensure that the practice of one does not unduly suffer at the expense of the other. The learned trial judge, we think has himself to blame for conducting the business of the court as though it is secondary to that of counsel for the applicant. The constitutional obligation imposed on courts under article 19 to try criminal cases within a reasonable time imposes an onerous responsibility to ensure timely disposal of such cases, and, to accede to adjournments simply for the reasons stated by counsel appears to us to be a shirking of the responsibility imposed on judges by the said Article. The trial of criminal cases affect the liberty of the individual and as such efforts should be made to minimize the incidence of adjournments in order to have the trials expedited. This calls for sound judicial case management by our judges and we make the unhappy observation that the hearing of a criminal matter which was commenced in 2013 should not still be doing the rounds in the Courts in the year 2016.”

The difference between this case and the Ex Parte Francis Arthur Case cited immediately above are quite clear, but, the bottom line is that the Judge is expected to exercise such judicial control over the court in a manner as not to unreasonably delay the trial. It must be put on record, as observed in the Francis Arthur case, while appreciating the very

important duty these most respected lawyers are engaged in as legislators, that, there will be no situation, to borrow the words of Justice Adinyira JSC in the Ex Parte Francis case, of “conducting the business of the court as though it is secondary to that of counsel” or anyone else for that matter, within the confines of the proper exercise of judicial discretion. The Court will be sure to deliver on its mandate to preside over this trial (like all the others before it) in a fashion that would terminate it timeously.

  • This Court, in furtherance of the intention to preside over this case expeditiously restates for the avoidance of doubt what has always been the law regarding adjournments that “Adjournments are largely within the discretion of the Court and applications should be considered with the primary object of ensuring a speedy hearing and determination, a presiding judge has to have control over his court;..”
Martin Amidu with President Akufo-Addo and Vice at the Jubilee House

(See the EX PARTE FRANCIS ARTHUR CASE supra).

See also:

e SASU v. AMUA-SAKYI [1987-88] 2 GLR 221

REPUBLIC v. HIGH COURT (FAST TRACK DIVISION), ACCRA; EX PARTE SIAN GOLDFIELDS LTD. (AUREX MINING AND INVESTMENT, AG/SA_ LTD, INTERESTED PARTY [2009] SCGLR 204.

  • I would finally enjoin all the lawyers (both for the prosecution and the defence), as well as the accused persons, to assist the Court, when it gets to case management in order to accommodate all concerns within the confines of both statute and case law and for the matter before us to be expeditiously dealt with. The motion to strike out the charge sheet are dismissed. By reason of the finding of the impropriety of Counts one (1), three (3), four (4) and five (5), A2 is discharged. The plea of A1 will be taken without further ado.

(SGD) AFIA SERWAH ASARE-BOTWE (MRS.) (JUSTICE OF THE HIGH COURT)

CERTIFIED TRUE COPY

 

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