The Accra High Court has held that it will disregard any portions of the prosecution’s, the Deputy Attorney-General, Dr. Justice Srem-Sai, written submissions that are not supported by evidence on record in the trial of former National Signals Bureau (NSB) Director-General, Kwabena Adu-Boahene, and his co-accused. The court stressed that written submissions are not evidence and cannot be used to introduce facts that were never established through witnesses or exhibits properly admitted during the trial.
This followed the Court's dismissal of an application by Adu-Boahene, his wife, Angela Adjei-Boateng, and Advantage Solutions Limited seeking to expunge portions of the prosecution’s submissions alleged to contain fabricated evidence and misrepresentations of witness testimony. The dismissal came despite the Deputy Attorney-General, who signed the disputed submissions, failing to file an affidavit in opposition to controvert the specific allegations raised by the defence.
In a ruling delivered on Thursday, October 29, 2026, the presiding judge, Justice Francis Apangabuno Achibonga, held that the court was not required, at the interlocutory stage, to investigate whether the Deputy Attorney-General, Dr. Justice Srem-Sai, had relied on non-existent evidence or attributed statements to witnesses that they never made. The judge said doing so would amount to determining issues that properly belong to the substantive submission of no case to answer.
The application, filed on October 19, 2026, through lead defence counsel Samuel Atta Akyea, challenged portions of the prosecution’s October 9 written submissions opposing the accused persons’ submission of no case to answer. The defence alleged that the prosecution had introduced material not supported by the court record, misrepresented witnesses’ testimony and misstated the contents of exhibits tendered in evidence.
Despite the allegations, Dr. Srem-Sai, who signed the prosecution’s written submissions, did not file an affidavit in opposition to specifically controvert the factual claims contained in paragraph 10 of the supporting affidavit. When the application was heard on October 29, he instead raised a preliminary legal objection, arguing that the court was the custodian of its own record and that an affidavit was unnecessary where the evidence was already before it.
Moving the application, Mr. Atta Akyea argued that the failure to file an affidavit in opposition meant the factual matters deposed to by his clients remained unchallenged. He cited the Supreme Court decisions in *Francis Assiaming & 640 Others v. Divestiture Implementation Committee* and *Republic v. Court of Appeal, Ex-parte Tsatsu Tsikata*, submitting that uncontroverted affidavit evidence is deemed admitted. He accused the prosecution of importing material not borne out by the record and warned that allowing such statements to stand could mislead the court and occasion a miscarriage of justice.
He further invoked Rule 63(2)(e), (f) and (j) of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423), which regulate counsel’s professional obligations, including the duty not to mislead the court or present unproven matters as established facts. Citing *Living Faith World Outreach Church International v. Registrar General*, he urged the judge to protect the integrity of the court record and prevent lawyers from introducing their own material through written submissions.
Counsel Atta Akyea insisted in his rejoinder that the court had inherent jurisdiction to protect its records from what he described as pollution from the Bar.
In dismissing the application, Justice Achibonga held that written submissions are intended to assist or persuade the court based on evidence adduced at trial. He acknowledged that reliance on non-existent evidence would be a serious matter but stressed that the court was bound to determine the case solely on the testimony of witnesses and exhibits properly tendered and admitted in evidence. He stated that inaccurate representations in written submissions could not add to or vary the evidence on record and would be of no consequence to the court’s determination.
The defence had identified six categories of alleged misrepresentations in paragraph 10 of its supporting affidavit. They included the prosecution’s assertion that two witnesses had testified that the purchase agreement marked Exhibit X and an invoice relating to the cyber-defence system were not genuine, which the defence disputed. It also challenged the claim that the second prosecution witness had testified that the NSB had no contract with ISC Holdings Limited, arguing that she had instead acknowledged processing and paying an invoice covering delivery and acceptance milestones.
The other complaints concerned the prosecution’s interpretation of the second witness’s lack of knowledge of an operations account, its description of a March 2020 invoice as covering a one-time purchase, and its assertion that the entire GH¢49.1 million was spent on the accused persons, their friends, associates and families without any official purpose. The defence maintained that the third prosecution witness had identified ISC International Security Consultants Holdings Limited as a beneficiary of payments connected with the procurement of the cyber-defence system. It also challenged the prosecution’s reliance on Exhibit H to suggest that Advantage Solutions Limited’s account financed a building project in Kumasi, arguing that the exhibit was merely a photograph and contained no banking information. The defence further cited the fourth witness’s admission that there were no direct payments from the accounts analysed towards Dorchester Heights.
The court ultimately held that it was not its duty, at that interlocutory stage, to investigate and expunge portions of a written address on the ground that they did not accurately reflect the record. It noted that the defence had already addressed the disputed matters in its reply to the prosecution’s submissions. The judge, however, assured the parties that in determining the substantive submission of no case to answer, the court would rely strictly on the evidence on record and disregard any arguments unsupported by that evidence.
The ruling leaves the disputed portions of the prosecution’s written submissions intact, although the court has made clear that their inclusion does not make them evidence. The substantive submission of no case to answer, which will determine whether Adu-Boahene and his co-accused must open their defence, was scheduled for November 5, 2026. However, the ongoing strike by the Judicial Service Staff Association of Ghana (JUSAG) has affected court proceedings, with the delivery of the ruling subject to the court’s sitting arrangements.
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