The Ya-Na trial • Court declines prosecution's request to re-open its case

Saturday, December 18, 2010 (Page 3 Lead)

THE Accra Fast Track High yesterday refused the state’s request to reopen its case in the trial of 15 persons accused of murdering Ya-Na Yakubu Andani II, the Overlord of Dagbon.
According to the court, the prosecution’s request to lead fresh evidence with the alleged recording of a confession by one of the accused persons, Alhassan Braimah, the sixth accused person who has been charged with conspiracy, did not fall within the law.
It further ruled that the said recording, which allegedly quoted Braimah as confessing to killing the Ya-Na, did not constitute a confession statement, in the first place, by judicial standards because it had been done when the accused person was not under any investigation for the murder of the Ya-Na.
The court further submitted that the accused person had also not been charged with any criminal offence at the time the said recording was done on another person’s handset.
The presiding judge, Mr Justice E.K. Ayebi, held that it was unfortunate for the prosecution to do piecemeal prosecution by not disclosing the full content of Braimah’s alleged confession statement, only to turn around, after closing its case, to request a reopen.
“The prosecution has all along in this trial failed to comply with the rules to make full disclosure. Today, it has inured to its disadvantage,” he held.
Touching on an affidavit in support of the prosecution’s request which stated, among others, that the police, as of October 2010, had the evidence that they were now seeking to introduce, the court queried why the prosecution had not introduced it and rather chose to close its case on November 5, 2010, only to come two days later requesting to introduce evidence it (prosecution) had access to in October 2010.
It was of the view that even if the prosecution’s request was granted, “the new evidence will not tilt in favour of the prosecution. It will also cause further delay in the trial for no reason”.
The affidavit in support of the prosecution’s application had stated, among others, that during investigations, the name of Nsoh kept cropping up and further investigations revealed that Yakubu Mohammed, alias Anafo, had, among other things, recorded a message from Braimah on his handset.
The message was to be given to Nsoh, who Alhassan claimed had given him and Yakubu some military training in Togo, after Yakubu had refused to give him (Alhassan) Nsoh’s phone number.
Questioning the rationale behind the recording, the court wondered why Anafo should record the said confession, instead of taking the said telephone number, adding, “Why did he preserve the message?”
“The police also said in the course of the investigations, the name of Nsoh kept coming up. What did they do about it? I am unable to use my discretion to grant the application. The application is dismissed,” Mr Justice Ayebi pointed out.
According to the court, the police investigators would have located the said Nsoh before starting the trial if they had “really” been interested in doing so, adding that it was obvious the police had access to the said recording well before the prosecution closed its case on November 5, 2010.
It further pointed out that the only evidence the prosecution had against Braimah was the fact that he was alleged to have been seen holding a machete on the day of the violence.
“Was the prosecution saying it was going to prefer murder charges against the accused person?” the court queried.
It said if that was the case, the prosecution knew the procedure, which included amending the charge sheet to lead fresh evidence which would cause more delay, to no avail.
The court, accordingly, upheld the objection of lead defence lawyer, Mr Philip Addison, who stated, among others, that there was complete lack of due diligence on the part of the prosecution because the evidence it now sought to adduce had been available to it at all material times since the trial began.
The prosecution would have called five witnesses, in addition to the 12 witnesses it had already called, if the court had granted its request.
Following the court’s ruling, Mr Addison is expected to file a written submission of ‘no case’ on or before January 10, 2011, while the prosecution is expected to file its response on or before January 20, 2011.
The case has been adjourned to January 31, 2011.
The other accused persons, who are alleged to have played various roles leading to the death of the Ya-Na, are Iddrisu Iddi, alias Mbadugu; Alhaji Baba Abdulai, alias Zohe; Kwame Alhassan, alias Achiri; Mohammed Abdulai, alias Samasama; Sayibu Mohammed; Alhassan Braima and Zakaria Yakubu, alias Zakaria Forest, who is currently on the run.
The rest are Mohammed Habib Tijani, the former District Chief Executive of Yendi; Baba Ibrahim, alias Baba Zey; Alhassan Mohammed, alias Mohammed Cheampon; Mohammed Mustapha; Shani Imoro; Yakubu Yusif, alias Leftee; Hammed Abukari Yussif and Abdul Razak Yussif, alias Nyaa Dagbani.
All the accused persons, except Zakaria Yakubu, have been charged with conspiracy to murder and have pleaded not guilty to the charge. Zakaria has been charged with murder.