Afoko was standing trial before an Accra High Court, for the alleged murder of Alhaji Adams Mahama, Former Upper East Regional Chairman of the New Patriotic Party.
The trial, which started in 2016 and was nearing completion after the prosecution had called 14 witnesses to end its case and the defence counsel called two witnesses and closed its case on January 26, 2019.
Subsequently, the presiding judge, Justice Lawrence L. Mensah, directed the two parties to file their written addresses, and address the court on February 20.
However, on January, 28, 2019, the A-G filed a Nolle Prosequi to discontinue the trial following the arrest of the one other suspect, Asabke Alangdi, who had been at large since the incident occurred in 2015.
Afoko and Alangdi were then put before an Accra Central District Court on provisional charges of conspiracy to commit murder and murder for committal proceedings, which precedes the trial at the High Court.
In his writ at the Supreme Court, Afoko prayed for an order terminating the case at the district court, and to be given an order that the parties go back to the High Court to continue with the case.
It is the contention of Afoko that the AG’s decision was unfair and unjust and that same should be declared null and void.
Additionally, he claimed that the AG per the provision of Article 296 of the 1992 did not exercise the discretionary power given to her office to enter “Nolle Prose qui”, that is Discontinuation of a Criminal Case.
The seven-member panel chaired by Justice Julius Ansah unanimously dismissed the application on grounds that the AG had the mandate to initiate such an action.
The court held that, the power of the AG to enter a Nolle Prosequi forms part of its constitutional mandate and cannot be denied them.
“The fact that the plaintiff’s trial at the High Court was almost at an end did not stop the defendants from entering a Nolle Prosequi.”
It further noted that the discretion to file a Nolle Prosequi was executive in nature and not quasi judicial in nature.
The court was also of the view that Afoko failed to prove that the Nolle Prosequi filed by the AG to discontinue the trial was unfair, arbitrary or capricious.
“We dismiss this application commenced by the plaintiff,” the court stated.