The High Court in Accra has dismissed two applications filed by former Chief Executive Officer of the Ghana Infrastructure Investment Fund (GIIF), Solomon Asamoah and former Board Chairman, Professor Christopher Ameyaw-Akumfi, seeking a stay of proceedings in the ongoing $2 million Accra SkyTrain trial.
The court, presided over by Her Ladyship Audrey Kocuvie-Tay, ruled on Thursday that the accused persons had failed to demonstrate exceptional circumstances warranting a stay of proceedings pending appeal.
The applications arose from an order made by the court on October 29, 2026 requiring the first accused person, Solomon Asamoah, to testify first before being allowed to examine his subpoenaed witnesses, with the second accused person, Professor Christopher Ameyaw-Akumfi, to testify after him.
The prosecution was represented by the Deputy Attorney-General, Dr. Justice Srem-Sai. Victoria Barth appeared for the first accused, while Godfred Gyemah Okyere held brief for Yaw Boafos for the second accused.
At the start of proceedings, the court noted that it had received an application for stay of proceedings filed by the second accused with a return date of November 16.
The prosecution informed the court that it had been served, but counsel for the first accused indicated that she had not been served.
The court observed that the substantive business for the day was a similar application filed by the first accused, and that since both applications were the same and stemmed from a ruling of the court, it was only expedient that both be considered at the same sitting.
The court also placed on record that although the Republic had indicated it had been served with both applications, the court had not received any formal response or affidavit in opposition in respect of them.
The court, therefore, directed that counsel for the first accused be served with the application filed by counsel for the second accused, and abridged the time for the second accused’s application so that both could be dealt with together. Since the first accused filed his application first, the court proceeded to receive submissions on it.
Arguing for the first accused, Ms Barth said the application sought an order staying proceedings only in relation to the requirement that the first accused testify first and that the second accused testify after him before the first accused’s subpoenaed witnesses could testify, pending the determination of an appeal lodged at the Court of Appeal against the said orders.
She submitted that applications of this nature required the demonstration of exceptional circumstances, and addressed the court on five grounds.
First, she said the appeal raised serious questions of law concerning a fundamental aspect of criminal procedure and the accused person’s constitutional fair trial rights under Article 19 of the 1992 Constitution.
The issues, she argued, were not frivolous, as they concerned whether a trial court could lawfully compel an accused person to testify before calling other defence witnesses, which in effect determined the order in which the defence organised its case and infringed the right of the accused to elect to remain silent at all stages of the trial despite having filed a witness statement.
Second, she argued that there was a risk of irreparable prejudice if the application was refused. Once the first accused was compelled to testify and cross-examined, she said, his testimony would become part of the record and could not be undone even if he succeeded on appeal and was held to have been entitled to call his witnesses first and to decide whether his testimony would even be necessary. Once compelled to testify, she submitted, he could not be restored by any court.
Third, she said the preservation of the subject matter of the appeal required a stay, as a refusal would render the interlocutory appeal merely academic because the order complained of would have been executed, effectively usurping the jurisdiction of the Court of Appeal.
Fourth, she argued that the interest of justice favoured a stay, as the prosecution would suffer no prejudice if the first accused was allowed to call his subpoenaed witnesses for examination and cross-examination while his appeal was expeditiously prosecuted.
On the contrary, she said, the first accused would suffer an irreparable violation of his right to prepare and present his defence logically, coherently and effectively. She noted that at least five of the persons subpoenaed were witnesses the prosecution had intended to call and on whose representations during interrogations the third prosecution witness had substantially relied.
She questioned why the first accused must testify before having the opportunity to confront his accusers whose accusations formed an integral part of the prosecution’s case which the court had held established a prima facie case against him.
In support, she relied on the case of Republic v. Baffoe-Bonnie and 4 Others, where the Supreme Court emphasised that an accused person must not be impeded in any manner nor suffer any disadvantage in preparing his defence, confronting his accusers and arming himself in defence so that a miscarriage of justice is not occasioned.
She submitted that the court did not impose any restrictions on the prosecution regarding the order in which it called its witnesses or whom it chose not to call, and that in its ruling on the submission of no case, at page 55, the court recognised the prosecution’s prerogative to call whom it deemed fit to prove its case.
A refusal of the application, she argued, would breach the principle of equality of arms, as the court would have descended into the arena of conflict to take over the defence’s strategy.
She also relied on the Court of Appeal decision in Republic v. Stephen Kwabena Opuni and 2 Others, delivered on April 8, 2019, in which Tanko Amadu JA, as he then was, highlighted the court’s discretionary power in considering applications for stay of proceedings in criminal matters but cautioned that the court must be judicious and take into consideration a juridical balancing of any alleged imminent injury to the respective rights and interests of the parties pending the determination of an interlocutory appeal.
In this instance, she said, the prosecution suffered no injury while the first accused faced all the harm and prejudice, with his presumption of innocence at risk of being undermined. The court in that case, she added, defined exceptional circumstances as a situation which is unique and beyond the ordinary course of events and whether a refusal to grant the stay would paralyse one way or the other the applicant’s constitutional or statutory right in the pending appeal.
She submitted that the first accused’s application satisfied that test, given the unique situation in which, for the first time in Ghana’s jurisprudence according to her research, an accused person was being asked to prematurely elect to testify first before being allowed to examine his subpoenaed witnesses.
Counsel for the second accused, Mr Okyere, said he largely associated himself with the submissions of counsel for the first accused. He added that he was mindful of the principle established in Republic v. Kwabena Opuni and 2 Others, and that in performing the judicial exercise of balancing the public interest and expeditious prosecution against the constitutional right of an accused person who is presumed innocent under Article 19(2)(c), the balance tilted greatly in favour of a stay of proceedings.
Opposing both applications, the Deputy Attorney-General said they were based on a severe misapprehension of the law of evidence and of trial. He said the essential depositions in the two affidavits in support of the motions were word for word the same.
He argued that Section 174 of Act 30 makes it clear that there are two types of witnesses, a witness who is present in court and a witness who is absent from court. A witness who is present in court, he said, does not require an order of the court to come and testify, while a witness who is not present requires an order to come and testify, and that is the regulation relating to how such a witness is brought to court.
Accordingly, he said, the accused persons should have first satisfied the court that the 15 witnesses who were not present in court had material evidence to present. Material evidence, he explained, is evidence which will help the court decide one way or the other.
He said the court was faced with 15 persons who were yet to be present in court, whose testimonies no one, not the court, not the prosecution, and, unless there was connivance, not even the second accused person, was aware of, yet the court was being told that there were 15 witnesses who should be heard first before witnesses who are present in court should be heard.
He further argued that Section 69 of the Evidence Act determines the court’s role in trials. He referred to paragraph 11 of the first accused’s affidavit in support, which he said was verbatim paragraph 10 of the second accused’s affidavit, in which both accused persons said the court has no power to determine the order in which they present their defence.
He said he could understand the scope of the law relied upon by the accused persons because they limited themselves to Act 30 only, whereas the law on evidence is the essential law to apply and not Act 30 alone. He invited the court to consider Section 69.
Had the accused averted their minds to Section 69 of the Evidence Act, he argued, they would have known that the court and any other court has a duty to control not just the mode of trial but also the order in which evidence is presented.
There was, he said, no legal basis for the challenge, especially when the witnesses the first accused wished to call were, at the time the order was made and as of Thursday, not present in court.
He added that the law on trial says an application for stay of proceedings should be granted only where there are exceptional circumstances, citing Tsikata v. Republic, 2003-2004 1 GLR 336 at page 338, in which Aban J cited with approval the case of R v. Chairman, County of London Quarter Sessions, ex parte Downes, reported in 1954.
He noted that this was the third application for stay of proceedings in the matter alone, meaning there were three appeals pending, and invited the court to consider the implication if the first application had been granted.
On the right to remain silent, he said Article 19(10) protects the accused person’s right to remain silent, which means the accused person does not want to testify. There is a difference, he argued, between the right not to talk, which is what the Constitution protects, and the right to talk when you wish to talk.
The issue here, he said, was an accused person who says he will testify but wants to testify whenever he feels like testifying, for which there is no constitutional protection. The court, he submitted, has power to order the order in which the accused testifies. He prayed that both applications, which he described as frivolous and based on a misapprehension of the law of evidence and trial, be dismissed.
In reply, Ms Barth said Section 174(3) deals with the situation where a witness who had been notified to appear to give evidence on a particular date fails to appear. Subpoenaed witnesses, she said, do not participate in case management conferences and would have had no reason to have been in court on October 29 when the court made an order that would only invite them after the second accused had testified after the first accused.
For the same reason, she said, they had no business being in court on Thursday when the court was dealing with an interlocutory application, notice of which had not been served on them. No witness, she argued, has the locus to appear in court without being given a date and a time to appear, and the submission on Section 174 of Act 30 was therefore dead on arrival.
She added that there is no legal requirement for an accused person to disclose the nature of the evidence he intends to elicit from subpoenaed witnesses, relying on the Baffoe-Bonnie case. At page 348, she said, the Supreme Court made it clear that its dictum was applicable to all criminal cases including summary trials.
Pursuant to the court’s orders of October 29, she said, the defence filed a list of witnesses and addresses on October 30, 2026, and even before that, the prosecution had received the 15 subpoenas with the same information that the Supreme Court says must be provided and suffices. There was therefore no need to connive as mischievously alleged by the Deputy Attorney-General.
On Section 69 of the Evidence Act, she said the provision states that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. The court does not have unfettered power to dictate the order of interrogating witnesses, she argued, especially when doing so exceeds its case management powers and contravenes the fundamental constitutional right to a fair hearing.
She added that the dominant common law rule is that an accused person may elect to remain silent at every stage of the criminal process unless a statute expressly requires otherwise.
On the status of the other interlocutory appeals, she said the prosecution had provided no evidence that the record of appeal had not been transmitted or compiled in any of those appeals, and had not taken into account the strenuous effort of counsel for the accused in eliciting and getting to tender some of the very documents, the production of which was denied the accused, during the prosecution’s case, thereby impacting the urgency of pushing that appeal.
She said the prosecution had also not considered that the defence had subpoenaed some of these witnesses to produce documents. In all, she submitted, Sections 174 and 69 cannot override Article 19 of the Constitution and there was no merit in the line of law urged on the court by the prosecution.
In her ruling, the judge said that before the court were two applications filed by the accused seeking the same reliefs, that the court order a stay of proceedings pending appeal. While not purporting to decide the case under Section 174, she said that once a prima facie case has been made out and the accused called upon to open a defence, the court informs the accused of his right to be heard or to remain silent.
In Ghana’s jurisprudence, she said, when an accused elects to be heard, they are conventionally expected to be heard first before calling any other witnesses, not the other way round. Under Section 69 of the Evidence Act, she said, it is the power of the court to generally exercise control over proceedings to ensure they remain understandable.
Logically, she held, an accused person opening their defence testifies before calling other witnesses to corroborate their defence.
Directing the accused to testify first before calling their witnesses causes no hardship, she held. She found no exceptional circumstance warranting a stay of proceedings, and accordingly dismissed both applications.
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