The Accra High Court has dismissed an application by former Director-General of the National Signals Bureau (NSB), Kwabena Adu-Boahene, and two others seeking to expunge portions of the prosecution’s written submissions opposing their submission of no case to answer.
The court, presided over by Justice Francis Apangabuno Achibonga, dismissed the application on Thursday (October 29, 2026), holding that counsel could draw its attention to alleged misrepresentations of evidence but that written submissions could not substitute for evidence adduced at trial.
The application was moved by counsel for the accused persons, Samuel Atta Akyea, while the Deputy Attorney-General, Dr Justice Srem-Sai, opposed it.
The accused persons are standing trial over the alleged diversion of GH¢49.1 million intended for a US$7 million cyber-defence system for the state. They have pleaded not guilty to the charges.
Defence’s application
Mr Akyea sought an order to strike out portions of the prosecution’s submissions filed on October 9, 2026, arguing that they contained matters not supported by the record of proceedings.
He said the prosecution had attributed statements to witnesses on matters about which they had not testified and made assertions about an exhibit that were inconsistent with the rules of evidence and professional ethics.
He warned that the disputed material could mislead the court in determining whether the accused persons had a case to answer and result in a miscarriage of justice.
“There is a world of difference between submission based on inferences grounded in the adduced evidence, which we are permitted to make, and submissions which are based on non-existent evidence,” he said.
Mr Akyea cited previous Supreme Court decisions, including Francis Asuming and 640 Others v Divestiture Implementation Committee and Republic v Court of Appeal; Ex parte Tsatsu Tsikata, urging the court to protect the integrity of its records.
He also invoked the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423), in support of his application.
Prosecution’s response
Dr Srem-Sai argued that the court had no jurisdiction to expunge portions of written submissions merely because the opposing party disputed their accuracy.
He said the court was required to assess counsel’s arguments against the evidence on record and determine the matter on its merits.
The Deputy Attorney-General further argued that the accused persons had already addressed the alleged misrepresentation in their reply to the prosecution’s submissions, filed on October 19, 2026.
He therefore urged the court to dismiss the application.
Court’s ruling
In its ruling, the court held that written submissions were intended to assist or persuade a judge on the law and facts but could not substitute for evidence adduced during a trial.
The judge said that even where counsel misrepresented evidence in a written address, such representations had no evidential value in determining the case.
The court further held that counsel who believed an opponent had relied on non-existent evidence could draw the court’s attention to the alleged misrepresentation, as the defence had done in its reply.
The court said it was required to rely on the testimony of witnesses and exhibits properly admitted in evidence to reach a fair and just conclusion.
The court is expected to determine the substantive submission of no case to answer on November 5, 2026, to decide whether the prosecution has presented sufficient evidence to require the accused persons to open their defence.
