AG Thrown Out!

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Saturday December 18, 2010
An Accra Fast Track High Court trying the case of 15 people charge with the murder of Ya Na Yakubu Andani II, overlord of Dagbon in March 2002 says it will not allow the Attorney General’s Department to re-open the trial to enable them call more witnesses to testify.

Justice EK Ayebi, the Court of Appeal judge presiding over the case dismissed a the application to call additional evidence under Section 182 (3) of Act 30, Section 68 (1) of NRCD 323 and Section 58 of Act 459, describing the move as inappropriate and not convincing.

In his 42-minute ruling yesterday, the trial judge said the prosecution at all material times knew about the existence of the audio recording purported to be a confession statement of Braimah and said “they did not make any diligent effort to find Nsor who was keeping the tape.”

Justice Ayebi said the inconsistencies in the affidavit in support of the motion filed by the prosecution made it impossible for the court to consider the prosecution’s case in the category of ‘rare’ situations as the rule of court prescribes.

He said the prosecution could not satisfy the court that the additional evidence they were seeking to adduce was not available to them by the time they closed their case, saying “Anafo knew when, where and how to get Nsor and if the investigators seriously wanted to locate Nsor to get the audio recording from him, they could have done so.”

The court said the procurement of the audio recording two days after closing its case could not be enough to warrant re-opening of the case saying “the prosecution was in the know about the existence of the evidence they were seeking to adduce. According to ACP Ayalingo in the affidavit, the name Nsor kept cropping up during the investigations.”
Justice Ayebi said in
the court’s view, the alleged confession of Braimah to the killing of the Ya Na cannot be used by the prosecution as a confession statement because the accused person was not under any investigation for the murder of the Ya Na saying “mere incriminatory statements are not confession statements. The statement does not corroborate a confession statement.”

The Judge said if the court should allow the prosecution to re-open the case and lead the evidence it is seeking to adduce, it would contradict the evidence that the prosecution has led in the case so far.

The judge stated that the accused person has not been charged with murder but rather conspiracy and therefore the evidence that the prosecution is seeking to lead will not tilt the scales of justice saying “the evidence to be led will suffer the credibility test.”

The court held that Nsor and Anafo were in league to gather evidence just to indict the accused person and said it was bizarre that Nsor whom the prosecution’s affidavit says was training Dagomba youth to defend the Ya Na against Konkomba aggression could wait for eight long years since the incident happened before enquiring about the Ya Na from Anafo.

Before they sought to re-open the trial after formally closing their case the prosecution had called 12 witnesses including two police investigators and the pathologist who performed an autopsy on the body of the Ya Na.

If they court had re-opened the case the prosecution would have called five more witnesses including Nsor, an ex-security officer claiming to reside in Togo who took custody of the recording; Yakubu Mahamadu aka Anafo who did the recording; Mohammed Sumaila the man who translated the content on the secret tape; Robert Ayalingo, the officer in charge of the case and Professor John Peter French a forensic consultant specializing in the analysis of digital and magnetic recordings, speech and sound.

After the ruling, defense counsel reiterated its intention to file a “Submission of no case” and the court asked them to file their written submission by January 10, 2011.

The court also asked the prosecution to file its written response to the defense submission by January 20, 2011 and the case was adjourned until January 31, 2011.

The prosecution had said it was seeking to re-open the case because it has in its possession a secret audio recording of Alhassan Braimah, the sixth accused person confessing to one Ben Nsor aka Atia that he (Braimah) killed the Ya Na.

After failing on three occasions to present more witnesses, the prosecution on November 5, 2010, officially said it had closed it case in the trial prompting the defense to indicate to the court that it intends to file motion of “Submission of No case”, a request which was granted by the court.

The court then ordered the registrar of the court to make available to the defense all the proceedings of the trial before November 12, 2010 and adjourned the case to Tuesday, November 23, 2010 for the defense to prepare the motion for “Submission of No Case” but just as the case was called the prosecution said it had filed an application to re-open its case and call more witnesses.

The defense team led by Phillip Addison told the court that the prosecution’s affidavit supporting the motion did not provide enough information for them to oppose the motion and the prosecution led by Ms. Gertrude Aikins, Director of Public Prosecution (DPP) said they were going to file supplementary affidavit to provide more information about the sort of evidence to be led.

When the case was called on November 29, 2010, the prosecution made a sharp u-turn, withdrawing the entire application but immediately filing new processes, this time around very detailed, to get the case re-opened.

Rexford Anthony Wiredu, a Principal State Attorney moved the motion urging the court to re-open the case on December 10, 2010 while the defense opposed the application on December 13, 2010.