The Supreme Court has thrown out two applications by the accused persons in the $4 million National Communications Authority (NCA) case that sought to quash certain rulings by the trial High Court.
The first application was against the High Court’s decision to allow the prosecution to tender just one page of a dispatch correspondence book at the National Security Secretariat in evidence, while the second was in respect to the court’s decision to grant the prosecution’s request for a witness from the National Security to testify in camera.
But at yesterday’s hearing at the Supreme Court, the legal team for the applicant withdrew the first application, leading the court to strike it out, while the court dismissed the second application.
In a ruling, the five-member panel of the court, presided over by Mr Justice Julius Ansah, held that the application was not one that should warrant the invocation of the court’s supervisory jurisdiction.
“The application is, therefore, dismissed,’’ it ruled.
Other members of the panel were Justices Sule Gbadegbe, Gabriel Pwamang, Agnes M. Dodzie and Nene A. Amegatcher.
The five-accused persons are William Tetteh Tevie, a former Director-General of the NCA; Eugene Baffoe-Bonnie, a former Board Chair of the NCA; Nana Owusu Ensaw, a former board member; Alhaji Salifu Mimina Osman, a former Deputy National Security Coordinator, and a businessman, George Derek Oppong.
They are standing trial for their alleged involvement in the embezzlement of $4 million of state funds during the purchase of listening devices for the National Security which was sponsored by the NCA.
The accused persons have been charged with diverse counts of wilfully causing financial loss of $4 million to the state, stealing, conspiracy, money laundering, among other charges.
They have pleaded not guilty to all the charges and are currently on bail in the sum of $1 million each.
In-camera and tendering of evidence
On October 30, 2018, the third prosecution witness, who works at the National Security, was presented to the trial High Court to testify.
The prosecution, led by the Director of Public Prosecutions, Mrs Yvonne Atakora Obuobisa, prayed the court to allow the witness to testify in-camera because of national security considerations.
Also, the prosecution tendered one page of a dispatch correspondence book at the National Security Secretariat in evidence to support its case.
Lawyers for the accused raised an objection, arguing that the witness should give the testimony in public and not in-camera, on the basis that the prosecution did not provide any facts to support why it should be done in-camera.
They raised another objection against the prosecution tendering just one page of the dispatch correspondence book as evidence.
It was their case that the court should direct the prosecution to tender the whole book and not just one page because other pages in the book could absolve their clients of any wrongdoing.
The High Court, presided over by Mr Justice Eric Kyei Baffour, however, overruled the objections.
Not happy with the trial court’s decision, Oppong’s legal team filed a certiorari application at the Supreme Court challenging the tendering of just one page of the dispatch correspondence book in evidence, while lawyers for Baffoe-Bonnie too filed a similar application challenging the in-camera hearing of the third prosecution witness.
Making his case, lead counsel for Oppong, Mr Osafo Buabeng, argued that per Article 135 of the 1992 Constitution, it was only the Supreme Court that had the power to determine whether or not a document that could have national security implications should be tendered in evidence.
In view of that, he argued that the trial High Court should have halted the trial and referred the objection to the Supreme Court to make a determination.
Views from the bench
At that point, Mr Justice Pwamang told counsel that in the instant case, it was the prosecution that wanted to tender just one page of the book as evidence.
He asked counsel whether it was within his right to tell the prosecution what to tender as evidence, to which Mr Buabeng answered that the other pages in the book were relevant.
That led Mr Justice Pwamang to tell counsel that if the documents were relevant to his case, he should use the right procedure and not come under Article 135 of the 1992 Constitution.
According to Mr Justice Pwamang, the Supreme Court had already given a judgement that made disclosures of documents a must in all criminal trials.
“If you think the whole book is relevant to your case, apply to the trial court for disclosures for the court to make a determination,’’ he said.
Mr Justice Gbadegbe scolded the prosecution for the manner in which it applied to the court to hear the witness in camera.
According to him, the right thing was for the prosecution to apply to the trial judge in chambers for him to make a determination but not apply during the public hearing.
Nevertheless, he said the mistake by the prosecution was not fatal and wondered why lawyers for the accused had made it a point to always run to the Supreme Court to test all points of law.
“If you continue to do this, by the time the trial court gives its judgement, there will be no grounds for you to appeal,” he said.
The other justices on the bench also expressed similar sentiments, leading to Mr Buabeng withdrawing the application.
Counsel for Baffoe-Bonnie, Mr Thaddeus Sory, also argued that the trial court exceeded its jurisdiction and committed a serious error when it allowed the witness to testify in-camera. He, however, failed to convince the court.