In court on Thursday, 26 October 2023, former Ghana Bar Association (GBA) president Benson Nutsukpui, while arguing in support of an affidavit for a motion of stay of proceedings filed by first accused person Stephen Opuni in the GHS217-million financial trial, said the proceedings adopted by Justice Tandoh did not qualify to be regarded as such.

The motion was filed on notice for a stay and/or suspension of the proceedings by Dr Opuni's lawyer, Mr Samuel Codjoe, pending the determination of an interlocutory appeal filed against his decision dated 12th October 2023.


Mr Codjoe, in his affidavit, had also said: "We have filed an application in the Supreme Court for an order of certiorari to quash the decision of this Court dated 25th July, 2023, in which this court adopted proceedings and we have also applied for a perpetual injunction to restrain and prohibit your Lordship from hearing this matter until the proceedings had been properly adopted".

Mr Nutsukpui, who represents businessman Seidu Agongo and his company Agricult Ghana Limited (second and third accused persons), said "the procedure adopted by this court in adopting proceedings is totally unknown to our law and that the proper procedure and practice for adopting proceedings before our courts was to ensure that proceedings were put together, corrected and agreed upon by the parties before that is adopted", point out that "that was not done in the instant case".

"It is our position that proceedings should ordinarily be the regular and orderly progression of the case, including all acts and events between the time of commencement and adoption so that the parties and the court can easily refer to what has been adopted".


In this case, he noted, "we do not know what has been adopted".

"More seriously", he indicated, "is the fact that this court flouted its own orders to purport to adopt the proceedings which is the subject matter of the 1st accused's appeal".

Mr Nutsukpui also said the court, on the 12th of July 2023, ordered the parties to apply for copies of the proceedings for the proceedings to be adopted on the 25th of July, 2023".

"What transpired is the subject matter of the appeal which is that the court purported to adopt proceedings immediately the court resumes and, thereafter, we took pains to inform the court that we have applied to the registry of the court for the proceedings in respect of the 2nd and 3rd accused persons, as ordered by the court on the 12th of July, 2023, but as of the 25th of July, 2023, the Registry was unable to provide us with the proceedings and, also, we made the court aware that we are unable to say what exactly is the proceedings before the court and what the court was adopting", he noted.

He said "all these are serious exceptional circumstances for which the 1st accused's application has to succeed".


"We wish to state that 'proceedings' is defined in the In-Re Bimbila Skin case, Dawuni and anor. v Dasanam as captured in the the 2017/2018 SCLR (Addare)", pointing out: "And what this court purported to adopt was not qualified for the proceedings".

Mr Nutsupui also said the defence, painstakingly pointed out that "the documents, which [were] put together for the appeal of the prosecution had a lot of mistakes and we even brought same to the attention of the Court of Appeal when they were hearing the matter so that the applicant’s application has a very bright chance of success".

He reminded the court that "not only have we been charged together with the applicant, but also, we were equally affected by this court’s purported adoption of proceedings and, therefore, very much an interested party, that is why we swore to the affidavit in upport of the application".

He said the prosecution, "ordinarily, should not have any interest in this application, as no injustice or hardship would be occasioned them".

"The persons who will suffer hardship are the accused persons and we are the ones who should be more interested in justice and that is why we are", Mr Nutsukpui submittee.

He said the applicant; the first accused person, "did not have the opportunity to conclude his argument", as he had to leave for another engagement in a different court, "but there is one point to make, which is: paragraph 5 of the affidavit in support, which is that the applicant’s affidavit in support on the said 25th July, 2023 and that is the exceptional circumstance which the Court of Appeal will consider".

State's argument

However, Chief State Attorney Keelson, counter-argued: "We are opposed to the application to stay proceedings. We wish to refer the court to the case of Agyemang substituted by Banahene v Anane 2013/2014 SCGLR 241. We wish to submit that the Supreme Court, in that case, overruled the common law position that parties have to agree for the adoption of proceedings".

"We further refer to the decision of the Court of Appeal in the Republic v Stephen Kwabena Opuni and 2 ors. Criminal Appeal H2/25/2023 dated 3rd July, 2023, where the Court of Appeal directed this court to adopt proceedings in the trial of this case before the High Court differently constituted. We submit that there is no legal basis for the parties to go through proceedings together with the court before same is adopted by the court".

"We submit that this court rightly adopted the proceedings in this case once the court was seized with the proceedings and had directed the parties to apply for same", she argued.

The counsel for the Republic insisted "the proceedings, as adopted by this court, are, therefore, the proceedings before the High Court properly constituted".

"We further submit that the applicant has failed to show any exceptional circumstance warranting the grant of the application to stay proceedings", she said while referring to the Supreme Court case of Ali Yusiff Issah v the Republic 2003/2004 SCGLR 174.

She said the "discretion to stay proceedings in the words of th Supreme Court, ought to be exercised judicially based on exceptional circumstances, which are completely missing in the instant case".

She concluded her submission referring to the Republic v Stephen Kwabena Opuni & ors., suit no. H3/32/2019, in which she said the Court of Appeal "repeated the sentiments of the Supreme Court by holding that an order of stay of proceedings in a criminal matter must be granted only where there are exceptional circumstances".

"In explaining exceptional circumstances, the court referred to circumstances or situations that are unique or involve some collateral errors of laws and breaches of the Constitution or statute", she explained. "As I have already indicated, the adoption of proceedings in this particular case, was done openly in court without breaching any statue or constitutional provision" and, thus, urged "this court to dismiss the application as same is without any merit".

Ruling

In his ruling, ajustice Tandoh said "this is a case in which the prosecution has ended its case and the accused persons' counsel cross-examined the prosecution witnesses based on the record of proceedings before this court. In the same vein, the 1st accused/applicant is now prosecuting his case on the basis of the record available".

He continued: "The record of proceedings are all available, the reason why the court urged all the parties to procure copies of the record of proceedings".

He asked: "In this application, is there any exceptional circumstances or arguable point of law so disclosed?"

In his view, "the argument being advanced is based on the old position of the common law, which granted the consent of the parties for the court to adopt proceedings and to continue with the trial", citing Berima v Okyere [1967] GLR 548, Janet Quinn v Owners of Motor Tanker Forestry Lake [1966] 2ERI, and Bolton v Bolton [1942] 2 All ER 908 as authorities to buttress his opinion.

However, he noted, "in the current position of the law, and, as a clear departure of the common law principle in the case of Agyemang substituted by Banahen v Anane [2013/2014] SCGLR 241, the power to adopt the proceedings for a judge to continue with a matter heard previously, is solely the duty of the trial judge".

"From the foregoing and upon consideration of the affidavit evidence filed as well as the respective legal submissions and the authorities cited, this application is devoid of merit and there is no exceptional circumstances to warrant the grant of stay of proceedings".