High Court dismisses Forson, Jakpa Applications as AG is “ordered” to Stand Down on Case

Thursday, 6 June 2024

The High Court has dismissed an application  for  mistrial, injunction and stay of proceedings in the ongoing criminal trial involving Minority Leader Dr. Ato Forson and Richard Jakpa.

Dr Forson and Mr Jakpa, 1st and 3rd accused persons respectively filed the application following a leaked tape of a private conversation involving the latter and the Attorney General(“AG”). 

The  application which was heard on Tuesday June 4 2024  sought a determination from the court as to whether  the conduct of the AG-in engaging the 3^rd accused-was prejudicial to the case and whether same amounted to a Mistrial. The application also invited the trial judge to grant an injunction, enquire into the conduct of the AG and a stay proceedings of the trial.

The  AG  in a 28 paragraph deposition opposed  the application. Among others, it was stated for the office of the AG that, the application was unmeritorious as same amounted to an abuse of the court process. It was also contended for the AG that, the application was a veiled attempt to abort a legitimate prosecution of former public official. He further urged the court to dismiss the application  as same was unknown to the laws governing criminal law and practice in Ghana.

In a ruling delivered by Afia Serwaa Asare-Botwe, a Justice of Appeal,  the trial court held that Ghana’s criminal jurisprudence holds no room for Mistrial. She further held that there is  no precedent regarding the concept of Mistrial and same is not provided for in our criminal procedure.

In respect of the conduct of the AG, the learned Justice of Appeal held that same was tangential to the trial, noting  that the matters regarding  the audio falls squarely within the jurisdiction of the General Legal Council but “ordered” the AG to step aside from further prosecuting the matter.

The Court also ruled that no grounds had been established-in line with settled precedents- to warrant the grant of an injunction or stay of proceedings explaining that it is late to do so.

It is instructive to note that the decision of the trial judge- albeit subject to appeal- was not unexpected, especially on the issue of a mistrial, as same is alien to the Criminal law and procedure of Ghana. Beyond that, even in common law jurisdictions that recognise and have  laws on mistrial, it is mostly determined at the conclusion of the impugned trial.

The trial Judge was therefore right on the issue of mistrial when she delivered herself as follows “Mistrials have in our law and practice always and only been relative to hung juries in trial and indictment. There has been no situation where a summary trial being presided over by a single judge has resulted in the declaration of a mistrial and an order for retrial to my knowledge. The applicant has not provided such a precedent in our domestic legal framework either by way of legislation or judicial pronouncement…”

As the matter stands, the trial takes its normal course with the continuation of cross examination of Richard Jakpa by Counsel for 1^st accused.