Re: Supreme court quashes conviction of former nib Boss

graphic.com.gh Nov - 04 - 2015 , 09:46

We act for and on behalf of Mr Arvind Kumar Bhatnagar and make this rejoinder on his behalf.

We deem it appropriate to preface this rejoinder with the words of Lord Nicholls in the English case of Reynolds v. Times Newspaper that:

“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society, which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for.

Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation.

When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good…”

A story with the above headline on page 47 of the Thursday, October 22, 2015, issue of your newspaper, informed readers about the quashing of the conviction of the former Managing Director of the National Investment Bank (NIB), Mr Daniel Charles Gyimah, by the unanimous decision of the Supreme Court.

We had, like Mr Gyimah, applied to the Supreme Court for Mr Bhatnagar's trial, conviction and sentence to be quashed.

Indeed, Mr Bhatnagar's case was consolidated with Mr Gyimah's case, tried, and ruled upon by the Supreme Court the same day and time. The Supreme Court accepted our client's arguments and quashed the trial, conviction, and sentence.

Background

“Gyimah, who was first arraigned in March 2010, was convicted together with Arvind Kumar Bhatnagar. Bhatnagar has been on the run from the onset of the trial and was, therefore, convicted in absentia” (Our emphasis).

The wrong belief that Mr Bhatnagar has been on the run from the authorities was the basis of our certiorari application in the Supreme Court against the purported trial and conviction of our client in absentia.

The summary of our submission was that our client left the jurisdiction of Ghana in or about 2007 as a free person, three years before the said trial even started in 2010 and could not under any stretch of imagination be labelled a fugitive from justice.

The State conceded this fact, including the fact that the entire trial and conviction in absentia offended Article 19, particularly, 19 (3) of the Constitution on fair trials.

The article was strangely silent on the fact that our client had had the said trial and conviction overturned by the Supreme Court in the same ruling after our previously separate application was consolidated with that of Mr Gyimah.

In the light of the above, the continued casting of our client as a fugitive from justice when that false and ignominious allegation has been unanimously pooh-poohed by the Supreme Court is nothing but a distortion.

Mr Bhatnagar, a director of Eland International Ghana Limited, was tried in absentia and convicted by the High Court presided by Justice Charles Quist on February 27, 2015, for an alleged conspiracy to defraud, defrauding by false pretences and forgery, among other charges.

The case was in connection with a Collective Management Agreement signed between Eland and the National Investments Bank and for which the bank had charged and received collateral management fees of 109,000 dollars. The High Court sentenced Mr Bhatnagar to a fine of GH¢500,000.00 or 12 months’ imprisonment in default on each count.

Fidelity Law Group had argued that long before the criminal trial commenced and ended in his conviction and sentencing, he had relocated out of the country, causing his lawyers, Fidelity Law Group, to file an order of certiorari to quash the conviction and sentence on the grounds that the processes leading to his conviction and purported trial were inconsistent with the 1992 Constitution of Ghana and, therefore, a nullity.

We had submitted that the prosecution had failed to comply with Article 19 of the Constitution which demanded of them to have served or notified Arvind Bhatnagar of the charges against him and the resultant trial.

The legal and factual basis for our application was grounded in our contention that the Attorney General and the Trial High Court acted ultra vires of our 1992 Constitution in particular Article 19 (2) and (3), 23, and 296. As such, the trial and the conviction and the sentence that came with it must be declared null and void and of no effect,” they had argued.

We had argued that per Article 19 (3) of the 1992 Constitution, the trial of a person charged with a criminal offence shall take place in his presence unless he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified, or he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence.

The Applicant left the shores of Ghana on January 31, 2007 as a free man. He has never been arrested for the offences he was charged with in the trial at the High Court. The Applicant has also never been charged with or notified of any prosecution against him.

The republic has never issued an arrest warrant for his arrest neither has there been any extradition proceedings to secure his presence at the purported trial.

From the record of proceedings, the republic was silent on whether or not the Applicant was duly notified of the criminal action against him or at all. The trial judge also did not take any concrete steps to secure the fair trial rights of the Applicant.

The Republic initiated the prosecution of the suit in or about 2010 against the applicant but since no arrest warrant was issued, no criminal summons served on him or was any extradition proceedings concluded, the applicant could not have appeared at the commencement of the trial for him to be duly brought before the High Court.