Thursday, June 4, 2015

A-G, ex-NIB boss in legal tango

The Supreme Court will, on June 23, 2015, hear two related applications in a dramatic case in which the two main protagonists are invoking the supervisory jurisdiction of the highest court of the land to quash a judgement delivered by the Accra High Court on February 27, 2015.
While the Attorney-General’s (A-G’s) Department is asking the Supreme Court to nullify the conviction of Mr Daniel Charles Gyimah, a former Managing Director of the National Investment Bank (NIB), and order his trial in another court, Mr Gyimah, on the other hand, is praying the court to quash his conviction.
The High Court, presided over by Mr Justice Charles Quist, convicted Mr Gyimah to a fine of GH¢500,000 after finding him guilty of causing financial loss of $60 million to the state. Mr Gyimah was to serve 12 months in prison if he defaulted in the payment of the fine.
Mr Gyimah, who was first arraigned at the court in March 2010, was convicted together with Arvind Kumar Bhatnagar. Bhatnagar had been on the run from the onset of the trial and was, therefore, convicted in absentia.
The former NIB boss was said to have used the bank as a guarantor without the consent of the board of directors and issued 30 promissory notes, valued at $60 million, in May 2007 to a private business, Eland International (Ghana) Limited.
He was said to have conspired with Bhatnagar to commit the offence.
Mr Gyimah was on a GH¢500,000 bail bond after pleading not guilty to charges of conspiracy, attempting to defraud by false pretence, forgery of documents and use of public office for profit.
AG’s beef
But the A-G’s Department claims that the trial judge convicted the former NIB boss without the knowledge of the convict and the state.
Aside from that, the convict had neither filed a submission of ‘no case’ nor opened his defence before the judgement.
According to the state, it also found it unwarranted for the trial judge to fine Mr Gyimah GH¢500,000 for causing financial loss of $60 million to the state. 
The trial judge, it emphasised, erred in not inviting Gyimah to open his defence before delivering the judgement. It also maintained that the trial judge erred in law by not serving hearing notices on the parties before passing judgement.
According to the state, it became aware of the judgement on April 20, 2015 when it enquired about the status of the case and was informed by the trial judge that judgement had been delivered in February.
The state claims that Mr Gyimah, who was billed to open his defence after the court had ordered him, failed to show up to testify, after several adjournments, thereby causing the trial judge to deliver the judgement.
Grounds of appeal
According to the grounds of appeal filed by Mr Matthew Amponsah, a Chief State Attorney, the High Court committed an error of law patent on the face of the record when it proceeded to deliver its judgement without notice to any of the parties to the case and when the interested party had not been called upon to set up a defence.
“Thus, per the state’s arguments, the proceedings of February 27, 2015 were a nullity because the court’s action violated the Audi Alteram Partem rule, which refers to the right of persons to be heard,” it stated.
It said the record showed that to date the interested party had not filed or made his submission of ‘no case’. 
“The trial was plagued by a number of adjournments, and in the process both the accused person and the prosecution stopped attending court.
 “Out of the blue and without notice to any of the parties, the court below, on February 27, 2015, delivered its judgement, even though the court had on no occasion called on the interested party to open his defence, in the light of his failure to make the submission of ‘no case’ that he had indicated he was going to file,” the state said.
It contended that the court below had no jurisdiction to proceed to deliver judgement without notice to any of the parties.
It also said the High Court exceeded its jurisdiction and committed an error apparent on the face of the record in denying the accused person his statutory right to either be heard on his defence or not, after the earlier intimation of a desire to file a submission of ‘no case’.
It further argued that the proper thing for the court to have done was issue hearing notices on the parties, but that did not happen.
“It is utterly incongruous for a judge, when the accused had indicated that he intended to file a submission of ‘no case’, to proceed to deliver judgement without notice to any of the parties in the matter and without first calling on the accused to set up a defence,” it added.
“The Attorney-General thus seeks an order of certiorari to quash the judgement given by the High Court, without an accused person having been duly given the right to open his defence,” a statement of case accompanying the application said.

Gyimah’s grounds
The grounds of appeal filed on behalf of Gyimah by his lawyer, Mr Thaddeus Sory, stated that the Judgement was flawed because it was not based on the face of the court’s record.
According to the defence team, the court lacked jurisdiction to give judgement after it had adjourned the case to allow Gyimah to file a submission of no case.
Counsel further argued that until his client had filed the submission of no case, the court could not proceed to give judgement.
The defence further submitted that the judgement was against rules of natural justice because Gyimah had been denied the right to be heard.

The prosecution closed its case on July 23, 2013, after having called four witnesses.
The court called upon Mr Gyimah to open his defence, but in the exercise of his statutory rights under Section 173 of the Criminal Procedure and Juvenile Justice Act, 1960 (Act 30), Mr Gyimah intimated that he wanted to make a submission of ‘no case’ against him. 
The court obliged his request, but he failed to file it, thereby resulting in the delivery of the judgement.

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