The Financial Division of the Accra High Court has rejected an application for stay of proceedings filed by William Ato Essien, the embattled Founder and Chief Executive Officer (CEO) of Capital Bank, which is now in receivership.
The court, presided over by a Court of Appeal Justice who has responsibility of the High Court, Eric Kyei Baffour, dismissed Mr. Essien’s application, which sought to halt the court’s proceedings to await a determination against its decision, on the grounds that the interlocutory appeal was bleak.
Hitherto, Baffour Gyawu Bonsu Ashie, defence counsel for Mr. Essien, argued at length that the instant application was necessitated by the admission of four unsigned documents of the third accused person (A3) in the trial, Fitzgerald Odonkor, which were injurious to the defence of his client.
He, therefore, prayed the court to put its proceedings on hold, as their appeal had a real chance of success on the basis that the exhibits were admitted in breach of section 136 of the Evidence Act.
Argument by Ato Essien
Gyawu: The motion on notice for an order staying proceedings pending a determination of an appeal filed against a ruling of this court dated 7 April, 2022. We have attached and marked as Exhibit A, a copy of the Notice of Appeal which was filed on 22 April 2022. We have raised three grounds of appeal. These grounds of appeal are in relation to the unsigned documents, which were admitted into evidence by this court.
- In an application for Atsu of proceedings pending the determination of an appeal, a party seeking this order ought to demonstrate to this court that special circumstances exist to warrant the grant of such an application.
- The appeal has a real likely chance of succeeding.
- The court in granting an application of this nature will not cause undue delay.
The special circumstance that exists is that this court may rely on these unsigned documents in the final determination of this matter. The admission of the documents may be injurious to the defence of the first accused. As we speak the person who is alleged to have authored is being subpoenaed to speak to the document as a witness for A3. (Minutes of a meeting of the board)
Section 136 of the evidence act makes a precedent of first crossing the authenticity of a document before tendering. To allow the exhibits into evidence e will be injurious to the defence A1.
The third accused person in this trial has subpoenaed the author of the alleged document. To allow the said witness to enter the box (Emmanuel Nokoi) and corroborate the evidence of the third accused person will be injurious to the defence of A1.
Our appeal has a real chance of success in the basis that the exhibits were admitted in breach of section 136 of the evidence act. This appeal will not cause any delay because it is in respect of a ruling.
BC: I have read the application for stay of proceedings pending the determination of the interlocutory appeals filed against the admissibility of exhibits 24, 24a, 24b and 27. I have not seen an affidavit in opposition to the application but it is trite that the fact of non opposition of an application by way of an affidavit in opposition is not an indication that an adverse party was 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.
In an application of this nature the applicant must demonstrate exceptional circumstances to warrant the grant of an order for stay of proceedings of a trial that has taken over two years and is on the verge of completion. For so long I also laboured under the misconception that unsigned document was inadmissible in court as evidence. For this principle had been derived from cases such as Amidu (number 3) v AG, Waterville and Woyome (number 2) 2013/14 2 SCGLR page 606 at page 658.
However, resident authorities from the Supreme Court demonstrate that the admissibility of an unsigned document per-say is erroneous but depends on the circumstances of the case. For in he case of John Tenmottey Affuah v General Development Company Ltd. J4/28/2015 unreported Supreme Court case. 29/9/17. In that suit the trial judge had admitted as exhibit F an unsigned contract into evidence. Benin JSC speaking for the Supreme Court notes that the validity or otherwise of an unsigned document depends on the circumstances of the case.
Oppong Banahene v Shell Company Ltd. J4/34/2016 6/4/2017
I have taken pains to point his out in this ruling asking for stay of proceedings because the likelihood of the success of the appeal plays a role as to whether a court should grant a stay of proceedings or not and in this instance the latest authorities on the admissibility of an unsigned document emanating front the Apex Court as seen in the Tenmottey and Banahene cases has completely appended the rule in Amidu v AG Waterville.
Accordingly the prospect of the success of the interlocutory appeals is very bleak and I have no hesitation in dismissing this application.
The case was adjourn to May 5, 2022 at 11am.
