Read Time: 3 minutes
I know you, wonderful people, don’t really like reading, so let me help you with a summary of the 125-page judgement of the Court of Appeal. The judgement turns on 3 key points:
THE EFFECT OF A LETTER OF CREDIT (LC): One could sense the AG’s difficulty on this aspect of the case from the phone call which he (the AG) had with Mr Jakpa. The issue in the case was whether the establishment of an LC constitutes actual payment, so that the person who authorised the establishment of the LC may be held to be the person who made the payment. This issue is relevant because the person who made the payment is the person who caused the alleged financial loss. The Court of Appeal held that an LC is a guarantee which is redeemable (becomes a payable) only when the conditions in it are satisfied. So, it is the person who certifies that the conditions are satisfied (not the person who authorises the LC’s establishment) who made the payment. In this case, it appears that that person should be in the ministry of health (rather than of finance). You’ll find this analysis at paragraphs 73 to 76 of the Judgement.
EVIDENCE OF NON-AUTHORISATION: Note that I used ‘non-authorization’ (rather than ‘authorization’). This is because the nature of the allegation played a central role the analysis. The AG’s allegation in the particulars of offence is that Dr Forson (as a deputy minister) was not authorised by the substantive minister (Mr Terkper) when he (Dr Forson) wrote the letter to the Bank of Ghana to have the LC established. The question on appeal is – who (between the AG and Dr Forson) has to prove that Mr Terkper did not authorise Dr Forson (non-authorisation)? At Paragraph 100 of the judgement, the Court of Appeal held that it is he who alleges (that is, the AG) who ought to prove what he alleges – non-authorisation. In other words, you can’t accused someone of acting without authority and expect the person, rather, to prove that he’s authorised, when you have the means 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 called Mr Terkper to testify, even though Mr Terkper is still alive and could be called to testify.
THE OBLIGATION OF MR JAKPA UNDER THE CONTRACT: To be held as having caused financial loss, one must have a role to play in the transaction that led to the loss. This will necessarily lead to the question – who has obligations under the ambulance supply contract. The more specific question, however, is – did Mr Jakpa have any obligations under the contract. To begin, Mr Jakpa was not a party to the contract. He was an agent of a company called Big Sea. It is Big Sea that has an obligation under the contract. Even though this could have ended the matter, it did not – the issue went beyond this. There was a renegotiated “roadmap” in 2016 under the NPP government where it was agreed between the ministry of health and Big Sea that steps be taken to remedy the defects in the ambulances. Again, Mr Jakpa had no obligations under this roadmap either. Rather, the MOH (not Big Sea and, certainly, not Mr Jakpa) reneged on its obligations under the roadmap. The Court of Appeal (at Paragraphs 146 and 150) did not see any evidence from the record how the Mr Jakpa, a non-party to the ambulance contract, caused the alleged financial loss; more so when the AG chose to not prosecute his principal (Big Sea).
Da yie.