Court rules on Ya Na case

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday December 14, 2010.
An Accra Fast Track High Court will on Friday December 17, 2010 rule on whether or not to re-open the case of 15 persons charged for the murder of Ya Na Yakubu Andani II, overlord of Dagbon in 2002.

After officially closing its case on November 5, 2010, the prosecution returned to the court to say that it had received a secret audio recording of Alhassan Braimah, the sixth (A6) accused person, confessing to killing the Ya Na and therefore wants the court to re-open the case for them to call five more witnesses to adduce additional evidence.

The content of the purported confession statement recorded one by Yakubu Mahamadu aka Anafo and handed over to Ben Nsor, an ex security operative which is urging the prosecution to re-open the case is, “Father you trained us…the chief came to kill us and we killed him and cut off his head”, among other things.

The prosecution led by Anthony Rexford Wiredu, a Principal State Attorney standing in for Gertrude Aikins, Director of Public Prosecutions (DPP) on December 10, 2010 moved the motion, justifying the reasons why the court must to re-open the trial for them to bring more witnesses to testify in the case.

Opposing to the application to re-open the prosecution’s case, Phillip Addison, counsel for the accused persons said the prosecution could not show in the application that they faced any difficulty in getting or locating Nsor to bring the audio recording of Braimah saying “it was complete lack of due diligence on the part of the prosecution that the evidence they are now seeking to adduce was available to them at all material times.”

He said the prosecution called 12 witnesses before closing their case and none of the witnesses was able to point out the sixth accused person as being involved in the murder of the Ya Na, except Iddrisu Mutawakil who claimed he saw the accused shooting towards the palace and added that even at the Wuaku Commission none of the witnesses mentioned the accused as being involved in the murder.

Counsel said what the prosecution is seeking to do is to call five more witnesses to contradict the evidence given by the twelve saying “the sixth accused persons is not on trial for murder therefore additional witnesses will not further the trail but rather it will cause embarrassment and delay to the trail.”

“It is pertinent to note that A6 (Braimah) was not even mentioned at Wuaku Commission. His name did not even come in at all. Mutawakil who testified at the commission never mentioned him. It is our respectful submission that admitting this evidence will lead to matters being at large.”

Citing the celebrated case of the Republic vrs Kwabena Amaning aka Tagor and Alhaji Issah Abass case, Mr. Addison argued that at the time the purported recording was done, Braimah was not under any investigation and so therefore the recording could not amount to a confession statement saying “they are wasting the court’s time in a futile attempt to salvage a case that is lost”.

He said the affidavit in support of the prosecution’s application was not detailed enough to disclose when ACP Robert Ayalingo commenced the second investigation into the murder of the Ya Na saying “it is a pertinent requirement for applications of this nature. All the authorities require that there should be full disclosure.”

“They jumped the gun. They should have satisfied the court that the evidence being adduced is relevant and credible since it is trail by indictment. The affidavit does not meet the test of clarity and precision.”

He said the police abused the right of the accused person by secretly doing a second him saying “they took the recording of A6 for analysis in October 2010, when he was in lawful custody. The accused persons are properly in the custody of the court and could have brought an application to get the recording done but not to illegally get his voice and turn around to use it to prosecute him.”

“The evidence they are seeking to adduce is not credible. It is a set up. They used illegal means to get it. It has no bearing on the charges preferred against the accused person. In fact, it is so vague that it will not establish the guilt of the accused person.”

He said what the prosecution is doing is to punish the accused persons by keeping them in jail and are also delaying justice by seeking to bring witnesses whose evidence will have no probative value.

When he replied on points of law, Mr. Wiredu said all the authorities that counsel cited were heard on appeal and had no bearing on the case.