Court dismisses OSP’s objection not to provide Cecilia Dapaah and husband’s information to accused
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 defense 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 defense 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 recognizes 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 afterward, 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
