Court of Appeal dismisses Abodakpi's application to introduce fresh evidence in his appeal

By William Yaw Owusu

Thursday December 6, 2007
THE Court of Appeal has unanimously dismissed an application that sought to ask the court to allow fresh evidence in the substantive appeal of Daniel Kwasi Abodakpi, Member of Parliament for Keta, who is challenging his 10-year sentence by an Accra Fast Track High Court.

He had claimed that he has evidence that a Court of Appeal judge, Mrs Justice Henrietta Abbey, placed a call to the trial judge, Justice Stephen Twerefuor Farkye, also of the Court of Appeal, to “deal” with him while judgement in the case was being delivered.

But the panel of the Appeal Court ruled that the application to add fresh evidence, has no merit.

Justice Apau who read the three member panel’s decision, said “the application to add fresh evidence to the substantive appeal has no merit. The allegation he is seeking to introduce makes no sense to us”.

The court held that Abodakpi himself had admitted in his application that what he sought to do was unusual, and added that “going by Rule 26 of the court’s orders, the appellant was bound to satisfy the court beyond reasonable doubt that the fresh evidence is credible and has a bearing on the appeal”.

With this development, Abodakpi, a former Minister of Trade and Industry, will have to move his appeal application against his conviction at a date yet to be fixed without the fresh evidence.

Abodakpi is contending his conviction by the Fast Track High Court on February 5, for causing financial loss to the state.

The court said Abodakpi could not convince the panel that what he sought to do had a bearing on the charges based on which the trial court convicted him and could also not place anything before the court that there was a third party who heard Justice Abban and Farkye in a conversation once Abodakpi himself was not present at the meeting.

“It is only in exceptional circumstances that this court can allow fresh evidence to be adduced in a substantive appeal but this application is totally misplaced and without merit.”

He was said to have illegally authorised the payment of 400,000 dollars to Dr. Owusu Boadu, a Ghanaian consultant in Texas, United States, from the TIP fund.

The eight million dollar TIP fund was set up by the NDC government to promote the non-traditional export sector.

Abodakpi was originally charged together with Victor Selormey, former Deputy Finance Minister, who died in the course of the trial.

Abodakpi, 57, filed an application for bail pending appeal at the trial court but it was dismissed by Justice Farkye.

He then filed a fresh application for bail at the Court of Appeal which was moved on October 11, by his counsel, Tony Lithur, before Justices B.T. Aryeetey, Samuel Marful-Sau and Mariama Owusu and this was also dismissed on November 2.

On November 3, his counsel, Tony Lithur, was in court to argue the motion for leave to adduce fresh evidence in the substantive appeal while Ms Gertrude Aikins, acting Director of Public Prosecutions (DPP) represented the state; Mr William Addo represented Justice Farkye and Mr Frank Davies for Justice Henrietta Abban.

They argued before Justices S.E. Kanyoke, presiding; Yaw Apau and Francis Kusi Appiah.

Mr Lithur said the specific evidence being sought was to prove that Justice Abban directed Justice Farkye whom she caused to be called out during the delivery of the judgement in the case to impose a sentence of 10 years instead of the intended four that Justice Farkye had planned.

He said if the court allowed the evidence to be adduced before the court it will enhance the applicant’s chances of success in the appeal.

Responding, Ms Aikins said the incidence of the trial judge leaving the court room in the middle of the judgement was not unusual; as judges are human beings and suffer from all human frailties.

She said neither counsel nor his client were in the room where the two judges allegedly held discussions to overhear what transpired between them, adding “it is unclear under what order or authority the applicant is bringing the application”.

She said Abodakpi’s claim were allegation which did not exist during the trial and could not now come to say that he wants to introduce it.

When Mr Addo took his turn, he said Justice Farkye’s judgment in the trial was not in any way influenced by the collection of the said acts from Justice Abban and could be attested by the flow of the language in the judgement.

He said the applicant did not raise the issue of bias at any stage of the trial and could not turn around to introduce it now, adding that “the allegation that there is a real likelihood of bias on the part of Justice Farkye which occasioned a miscarriage of justice to the applicant is not true”.

Mr Davies who did not file any response but observed proceedings said “the piece of allegation that Justice Abban whispered to Justice Farkye to increase the sentence to 10 years instead of four is rather scandalous”, adding “counsel for the applicant is being speculative”.