The High Court in Accra has dismissed a preliminary legal objection raised by the Office of the Special Prosecutor (OSP) against the request by Patience Botwe to provide her with information obtained from former Sanitation Minister Cecilia Abena Dapaah and her husband.

This was after the court, presided over by Justice Marie-Louise Simmons, held that the 1st Accused, Patience Botwe (a former maid to the minister), needs adequate time and facilities to mount a proper defence to charges as per provisions under Article 19(2)(e) and (g).

Patience Botwe, 18, and Sarah Agyei, 30, together with Benjamin Sowah, Malik Dauda, Christiana Achab, Job Pomary, and Yahaya Sumaila, have all denied the various charges pressed against them – ranging from conspiracy to steal, stealing, dishonestly receiving, and money laundering.

Despite being granted bail, they have not been able to meet their respective bail conditions and are still in lawful custody.

On Wednesday, July 17, lawyers for Patience Botwe, led by Kormivi Dzotsi, moved a motion for an order directing the Office of the Special Prosecutor to provide them with the investigation cautioned statement, interviews, transcripts, recordings, and/or interrogations of Madam Cecilia Dapaah and Mr. Daniel Osei Kuffour.

This, according to the defence lawyers, was premised on Article 19(2)(e) and (g) of the 1992 Constitution and under the inherent jurisdiction of the High Court.

However, the OSP raised a preliminary objection to the request.

OSP’s Objection:

Esther Fafa Tetteh, a prosecutor from the OSP, raised a preliminary legal objection to the request.

According to her, the OSP was served with a process, which is a Motion on Notice, pursuant to Article 19(2)(e) and (g) and under the inherent jurisdiction of this Court.

“We are raising a preliminary legal objection, first of all, to our capacity in this matter,” she submitted.

She argued that on the face of the process served on the OSP, “we do not see our names at all as a party to this process.”

While recounting that the Court clarified to them at the previous sitting that “the order was made directing counsel for A1 (Patience Botwe) to serve us as what they were seeking was directed at the Office of the Special Prosecutor,” she continued, “that said, we should have been properly brought into the matter by a process that recognises us as respondents to whatever they were seeking.”

“But what we received did not let us know in which capacity we were being served. And so, we did not respond to the process and appeared before this Court to raise this as an objection,” the OSP stated.

“We may be here, but we are not in here properly,” the OSP argued.

Capacity

The OSP, as part of its objection, said the applicant did not properly invoke the jurisdiction of the Court for her request to be granted.

“The inherent jurisdiction of this Court has been invoked without following due process to properly cloth this Court to make orders that counsel for A1 is seeking.”

While pointing to the case of ATTOH-QUARSHIE VS. OKPOTE (1973) 1 GLR AT PAGE 67, the OSP said, “These instances explain where a party may invoke the inherent jurisdiction of the Court.”

It submitted that in that particular matter, “counsel for A1 (Patience Botwe) has jumped the gun because the statute has actually provided for the clothing of this Court with jurisdiction in a matter such as this.”

The OSP contended that “Counsel for A1 (Patience Botwe) wrote to the Office of the Special Prosecutor on June 18, 2024, and has attached the same as an exhibit to the process.”

She submitted that “the letter was seeking information under the Right to Information Act, 2019,” but “the very next day, the Office of the Special Prosecutor responded to this letter, i.e., June 19, 2024, explaining why the request could not be granted.”

“Right afterwards, counsel for A1 (Patience Botwe) filed this motion seeking the Court to order the OSP to produce the documents requested.”

“My Lady, once counsel came under the RTI, he initiated the process that will require him to follow the steps set out in the RTI before coming to the Court,” she stated.

“And counsel would have come to this Court seeking judicial review if his request was not granted.”

“And not asking the Court for an order directed at the OSP to provide the information,” she explained.

“My Lady, due process must be followed,” and “So my Lady on these two grounds, we are stating that we are not properly before this Court to state anything because we could have responded properly but we do not have that capacity.”

Counsel for the OSP said “we insist that we are not the prosecution in this matter. If indeed counsel requires information from us, they should follow due process because the OSP is an institution on its own.”

Opposition

Counsel for Patience Botwe, the Applicant Kormivi Dzotsi, while opposing the objection raised against their request by the OSP, submitted that “these are not matters for preliminary legal objection properly so called.”

“It is therefore not surprising that in the first leg, counsel (for OSP) is unable to cite any legal authority for her proposition,” Counsel submitted.

Counsel, in his submission, drew the Court’s attention to the point that counsel for OSP “conveniently ignores the fact that the application is brought pursuant to both Article 19(2)(e) and (g) and the inherent jurisdiction and clutches unto inherent jurisdiction which is concurrently invoked together with the statutory provision and the authority for this is that the inherent jurisdiction may be invoked together with statutes.”

On the second leg of the objection, Counsel for Patience Botwe submitted that “it would appear that OSP misconceives the nature of the application.”

Counsel stated that the application is in the nature of disclosure except that the party who has custody of the information sought is not directly a party and indeed cannot be a party.

“This is a criminal matter between the State and persons alleged to have committed criminal offences.

“One is at a loss as to whether they are supposed to have been named as the ninth accused person or co-prosecutor.

“My Lady, in any case, it is clear that it is not the Right to Information Act request for information procedure that is being invoked in this Court.

“Rather, it is the right guaranteed under the Highest Law of the land, the Constitution, and so assuming without admitting that their submission about judicial review and the procedure under RTI have not been followed, it would still not be a basis for a proper preliminary legal objection, and there are a host of legal authorities, but I believe the locus classicus is the TUFFOUR VS. THE ATTORNEY GENERAL (1978) GLR 637.

“We therefore humbly pray that the Court dismisses the ill-fated preliminary legal objection and allow A1’s application to be moved,” Counsel submitted.

No comments:

Assistant State Attorney, Christable Selma Anafure, said, “since we are dealing with preliminary matters, we believe that the motion filed is not intended for us.”

“We, the prosecution, rely on the police for investigation support,” adding, “the police have supplied all the relevant documents of their investigations with respect to this case, and we have disclosed all the relevant documents in our possession and control.

“Therefore, we have no comment on the motion and the preliminary matters existing before this Court,” she submitted.

OSP Can’t Deny Information

For his part, Counsel for the 7th Accused, Yaw Dankwah, submitted that the OSP cannot deny the accused persons the information needed to mount their defence.

“My Lady, they have the facilities we need; they have the information counsel needs to prepare for his client, and they cannot come here to say that they will not give that information.

“Finally, the submission by my friend is suggesting that the powers of the High Court have been ousted and do not have the power to entertain this application.

“My Lady, we know that is far from the truth, especially when it concerns administrative exercises and anything administrative; the High Court has supervisory jurisdiction over that.”

He submitted that, for the OSP “to say that they will not provide that information, in essence, is seeking to deny the accused person the facility to prepare his defence.

“My Lady, given Article 140, the High Court has jurisdiction, and my learned friend should be allowed to move his motion,” he concluded.

By Court

Justice Marie-Louise Simmons, the presiding judge, after hearing submissions from the parties, overruled the objection.

“Indeed, as stated by counsel for A1, this is a criminal case between the Republic and the accused persons, and no other agency can be a party.

“And as it is required under the Constitution under Article 88, the Attorney General is the prosecutor herein.

“However, even prior to, during, or after a criminal trial, applications for information, search, seizure disclosures, etc., can be made either by the prosecution or the accused person through the Courts to any state institution or even a private one such as the banks and the telcos to provide the information needed either for investigations, for the conduct of the case or to help the accused.

“This constitutional provision, i.e., the right to adequate facilities of an accused person, was explained and interpreted in the case which was cited by counsel for the OSP herself, which is the Eugene Baffoe Bonnie case.

“And on page 17 of the said decision, adequate facilities were interpreted to include exculpatory materials which the prosecution may not even use, but the accused person may use to establish his or her innocence.

“And it is not only the police who are required per this decision to provide information to the accused persons when they need them; any state or private institution that has information that may be relevant to the case of the accused that can aid the accused to defend his case can be ordered to produce the same,” the Court said.

However, the Court said, “the Supreme Court made exemptions which a party can raise in order not to provide such information.”

“And such exemption or exceptions to disclose must include grounds of immunity, privileges, state secrets, interest of national security, protection of witnesses, and others.

“In the absence of such exemptions, I do not believe that any agency or institution in this country can refuse or fail to provide such information to an accused if they have it.

“This Court, as the trial Court and a High Court as such, has the capacity to entertain this application and also has the jurisdiction to do so,” Justice Simmons stated.

“And the OSP, as it is not pleading grounds of immunity or privilege or national security or any of those exemptions, cannot state that because they are not a party to this case, they cannot provide the information.

“Indeed, in a criminal trial, every person can be a party by way of providing testimony or provision of information as long as they have the relevant information that could aid to uncover crime, protect the rights of the accused, or support public safety or security.

“In the circumstance, the preliminary legal objection is overruled,” Justice Simmons ruled.