The Accra High Court, presided over by Justice Francis Apangabuno Achibonga, has dismissed an application by former Director-General of the National Signals Bureau (NSB), Kwabena Adu-Boahene, and two others seeking to expunge portions of the prosecution's written submissions opposing their submission of no case to answer. The application was moved by counsel for the accused persons, Samuel Atta Akyea, while the Deputy Attorney-General, Dr Justice Srem-Sai, opposed it.
The accused persons are standing trial over the alleged diversion of GH¢49.1 million intended for a US$7 million cyber-defence system for the state. They have pleaded not guilty to the charges. The prosecution's submissions, filed on October 9, 2026, allegedly contained matters not supported by the record of proceedings, according to the defence.
Counsel for the accused, Samuel Atta Akyea, argued that the prosecution had attributed statements to witnesses on matters about which they had not testified and made assertions about an exhibit that were inconsistent with the rules of evidence and professional ethics. He warned that the disputed material could mislead the court in determining whether the accused persons had a case to answer and result in a miscarriage of justice.
The defence cited previous Supreme Court decisions, including Francis Asuming and 640 Others v Divestiture Implementation Committee and Republic v Court of Appeal; Ex parte Tsatsu Tsikata, urging the court to protect the integrity of its records. They also invoked the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423), in support of their application.
However, the Deputy Attorney-General, Dr Justice Srem-Sai, argued that the court had no jurisdiction to expunge portions of written submissions merely because the opposing party disputed their accuracy. He said the court was required to assess counsel's arguments against the evidence on record and determine the matter on its merits.
In its ruling, the court held that written submissions were intended to assist or persuade a judge on the law and facts but could not substitute for evidence adduced during a trial. The judge said that even where counsel misrepresented evidence in a written address, such representations had no evidential value in determining the case.
The court is expected to determine the substantive submission of no case to answer on November 5, 2026, to decide whether the prosecution has presented sufficient evidence to require the accused persons to open their defence. The court further held that counsel who believed an opponent had relied on non-existent evidence could draw the court's attention to the alleged misrepresentation, as the defence had done in its reply.
Key points
- The Accra High Court has dismissed an application by Kwabena Adu-Boahene and two others to expunge portions of the prosecution's written submissions in a GH¢49.1 million diversion case.
- The court ruled that written submissions could not substitute for evidence adduced during a trial.
- The court is expected to determine the substantive submission of no case to answer on November 5, 2026.
