Ato Essien Fights Capital Bank
The embattled founder and Chief Executive Officer of the defunct Capital Bank, William Ato Essien, has filed an appeal against the decision of an Accra High Court to admit the minutes of meetings of the Executive Committee and some board members of the bank into evidence.
He as a result filed an application for stay of proceedings in his criminal trial in which he and two other persons have been accused of stealing from the GH¢620 million Bank of Ghana liquidity support given to the bank, leading to its insolvency and eventual collapse.
The court on April 7, 2022, admitted the minutes as well as other documents which were all attached to the witness statement of Fitzgerald Odonkor, a former Managing Director of the bank when he opened his defence in the trial.
But Ato Essien has expressed his dissatisfaction with the court admitting the documents which were not signed, arguing that its admission could be injurious to his (Essien’s) defence.
Moving the motion for stay of proceedings pending the determination of the appeal, his counsel, Baffuor Gyawu Bonsu Ashia, argued that the appeal has a real likely chance of succeeding, and the court in granting an application for stay will not cause any undue delay in the trial.
He said the special circumstance that exists is that the court may rely on the unsigned documents in the final determination of the trial, which may be injurious to the defence of Ato Essien.
“The third accused person in this trial (Rev. Odonkor) has subpoenaed the author of the alleged document. To allow the said witness (Emmanuel Nokoi) to enter the box and corroborate the evidence of the third accused person will be injurious to the defence of the first accused person (Ato Essien),” Mr. Ashia averred.
He added that the appeal has a real chance of success because the unsigned documents were admitted in breach of Section 136 of the Evidence Act.
The court, presided over by Justice Eric Kyei Baffuor, a Court of Appeal judge sitting as an additional High Court judge, in his ruling noted that in spite of the fact that none of the parties in the matter filed an affidavit in opposition to the application, it did imply that they were not opposed to the application.
“All that it means is that the adverse party was not in a position to assist the court in coming to a conclusion in one way or the other. And as the law rests in the bosom of the judge, it will be an abdication of judicial duty to automatically grant an application simply because there was no affidavit in opposition. I will consider it on its merit,” he said.
He cited two decided cases of the Supreme Court – John Tenmottey Affuah v General Development Company Ltd and Oppong Banahene v Shell Company Ltd in which the Supreme Court noted that the validity or otherwise of an unsigned document depends on the circumstances of the case.
Justice Kyei Baffuor, therefore, held that the prospect of the success of the interlocutory appeal is very bleak and subsequently dismissed the application for stay of proceedings.
Mr. Ashia then told the court that they were entitled to seven days’ adjournment, and the court granted his request and adjourned the case to May 5 for continuation.
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