Supreme Court shoots down State over its application against conviction of former NIB boss
The Supreme Court yesterday took a State Attorney to the cleaners after rebuking him over the lackadaisical manner in which he handled a case involving a former Managing Director of the National Investment Bank (NIB), Mr Daniel Charles Gyimah.
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According to the court, the lack of seriousness which was exhibited by the State Attorney, who was not named, in the case from the Circuit Court to the High Court did not serve the interest of justice.
It further observed with awe that even on February 27, 2015 when the High Court convicted Mr Gyimah to a fine of ¢500,000, the State Attorney did not show up.
The five-member court, presided over by Mr Justice Julius Ansah, expressed these sentiments after it had struck out an application filed by the State to nullify Mr Gyimah’s conviction by the High Court.
In striking out the application, the court said the law required the State to put in the application to nullify the conviction within 90 days, adding that unfortunately that had elapsed.
“We hope that the State does not repeat such misdeed next time,” a member of the panel, Mr Justice Sule N. Gbadegbe, stated.
Background
The Accra High Court, presided over by Mr Justice Charles Quist, convicted Mr Gyimah 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 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, to a private business, Eland International (Ghana) Limited, in May 2007.
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.
Appeal
But the Attorney-General’s Department filed the application at the Supreme Court to invoke its supervisory jurisdiction to nullify the conviction on the grounds that the trial court erred in law by not serving hearing notices on the parties before passing judgement.
Aside from that, the convict, according to the application, had neither filed a submission of ‘no case’ nor opened his defence before his conviction.
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.
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 claimed 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 either 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.
“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.
Similar application
In a related development, the Supreme Court adjourned indefinitely to give Mr Thaddeus Sory, counsel for Mr Gyimah, ample time to file an application to quash the conviction at the High Court.
That was after the court had also indicated its intention to strike out his application to that effect, pointing out that the 90-day period had elapsed.
But Mr Sorry argued that there had been an amendment of the law, C.I. 24, which stipulated that the ground for application arose on the date of the notice of the judgement was received and not the date of the judgement.
Gyimah’s grounds
The grounds of appeal filed on Mr Gyimah’s behalf 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 Mr 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.
It further submitted that the judgement was against rules of natural justice because Mr Gyimah had been denied the right to be heard.
