State vrs Kennedy Agyapong - State loses application

July 5, 2012 (Lead story) THE Supreme Courton July 4, 2012 threw out the state’s application which prayed it to quash proceedings at the lower court hearing the case against the Member of Parliament of Assin North, Kennedy Ohene Agyapong, who is accused of pitting Ashantis against Gas and Ewes. The state moved an application for an order of certiorari to quash all the proceedings in the matter before the High Court, presided over by Justice Charles Quist because according to the state, the court lacked jurisdiction. However, in a unanimous decision, the highest court of the land ruled that the action filed by the Attorney-General (A-G) was “unnecessary and extremely odd” because the law empowered the A-G to file a nolle prosequi to discontinue the processes at the lower court. It further maintained that the court only granted an application for certiorari when an applicant did not have any alternative to remedy a situation but such was not the case in this instance as the A-G reserved the right to discontinue the case against the MP. It also reminded the state that it could without prejudice re-start the case against the MP after discontinuing the trial. The Assin North MP is facing three counts of treason felony, attempted genocide and engaging in terrorism act for allegedly inciting Ashantis against Ewes and Gas, as well as declaring war. He was present in court and later emerged smiling after the court ruling. He is expected to appear before the lower court on Friday, July 6, 2012. Reading the decision on behalf of his colleagues, the presiding judge, Professor Justice S. K. Date-Bah said what the A-G sought to do was wrong in law because the A-G was inviting the Supreme Court to quash a process he had initiated and had the power to discontinue. Other members of the panel were Mr. Justice Julius Ansah, Mr. Justice Annin Yeboah, Mr. Justice N. S. Gbadegbe. Mrs. Justice Vida Akoto-Bamfo, who is also a member of the panel was absent but consented to the unanimous decision of the court. The court held that the prosecution should not be allowed to take advantage of its own wrongdoing and further maintained that the court would not entertain such action. According to the court, it would be inappropriate for it to exercise its discretion by granting the state’s application when the A-G could not exhaust the powers conferred on him by law. It further held that it would be completely unnecessary to go into the merit of the case and subsequently dismissed the state’s application. Citing authorities to bolster its verdict, the court maintained that it had on numerous occasions spelt out the grounds upon which an application for certiorari must be granted and on this specific occasion, the state had failed to lay any foundation for its request to be granted. It said the application for certiorari was a discretionary power which was solely in the court’s bosom and could be granted by the court based on the conduct of an applicant. In this instance, the court held that the state appeared to be forum shopping and thereby, abusing the process. It, subsequently, refused to grant the state’s request but declined to award cost in favour of Agyapong. The Supreme Court was a classic scene of laughter on June 19, 2012 when prosecutors failed in their attempt to convince it on why they filed the application for certiorari to quash proceedings at the lower court. The court questioned whether there was any difference between the order that was being sought and the Attorney-General's power of a nolle prosequi. Prosecutors made several attempts to convince the court but only ended up drawing bouts of laughter from audience in the courtroom. Nevertheless, the court allowed the application to be moved by Mr. Anthony Rexford Wiredu, a Principal State Attorney who said the application for certiorari was grounded on the fact that the lower court assumed jurisdiction in a matter in which it did not have that power but the court reminded the state that it sent the MP to that court. A team of lawyers for the Assin North MP, comprising Mr. Ayikoi Otoo, Mr. Frank Davis and Mr. Ata Akyea, with Mr Otoo as lead counsel, opposed the application describing it as vexatious and an abuse of the court's process and ought to be dismissed. Mr Otoo argued that the state had alternative remedies which could be used to bring the proceedings before the lower court to a close and accordingly prayed the court not to allow the state to take advantage of its wrongdoing to apply for an order of certiorari. The lower court had on April 19, 2012, granted bail in the sum of GH¢200,000 with one surety to be justified to the Assin North MP, who was also bonded to be of good behaviour until the final determination of the criminal action brought against him by the state.