An Appeals Court in Accra presided over by His Lordship Justice B T Aryeetey yesterday granted Daniel Abodakpi leave to amend sections of the ground of appeal and add fresh evidence.
At the last adjourned date, Tony Lithur, Counsel for Daniel Abodakpi moved the motion on notice to amend the grounds of appeal.
He pleaded with the court for leave to amend the original grounds of appeal filed by his client on February 6, 2007, by adding the following grounds of appeal, among other things, that the trial judge in interrupting the delivery of his judgment and rising from the court room to hold a discussion with Her Ladyship Mrs Justice Henrietta Abban outside the court room about the case he was deciding upon, acted in a manner that gave rise to a real likelihood of bias, thus vitiating his judgment.
Mr Lithur said the conduct of Justice Abban in calling out the trial judge out of the courtroom, knowing that he was in the middle of delivering a judgment, and holding discussion with him on the case in respect of which he was delivering the judgment, constituted an interference with the judicial process and an infringement of Article 127(2) of the Constitution of Ghana, thereby rendering the trial a mistrial.
Tony Lithur argued that the conduct of Justices Farkye and Henrietta Abban in relation to the trial and the delivery of the judgment denied Abodakpi his constitutional rights to a fair trial and due process. He said the conduct of the two judges in relation to the trial and the delivery of the judgment occasioned a miscarriage of justice.
But the Acting Director of Public Prosecution, Gertrude Aikins, dismissed Tony Lithur's allegations, arguing that the court should not allow the un-substantiated allegations to be used to tarnish the hard won reputation of the two judges.
The Ag DPP held that Abodakpi's motion is only seeking to introduce un-substantiated fresh evidence into the records. She argued that when the judgment was being read Abodakpi and his Counsel were in the courtroom and therefore there is no way for them to know what was discussed in chambers between the two judges.
Ms Aikins said fairness demands that the two judges involved in the matter should be served for them to admit or deny the allegations leveled against them. She further described the allegations as scandalous and suggested that the appellant be put in the dock to explain the source of his allegations.
Also at yesterday's sitting, Abodakpi applied for bail pending appeal.
According to Mr Lithur, there are exceptional or unusual grounds which justify their application for bail. He said there was an unprecedented aspect of the judgment which indicates that the judge failed to address the case of the defence.
"The judge erred in law when he failed to take in consideration evidence by Mr Abodakpi and his three witnesses," adding, "The learned judge gave no consideration to the defence case."
He said the judge also failed to make reference to issues crucial to their case such as the evidence of the ninth prosecution witness, Mr Bibilazu, an expert who testified about the amount to be paid for work done; and Mrs Agnes Batsa's statement to the police that she had in August 2000 authorized the first payment.
He said the judge is bound by duty and not formality to explain why he thinks the prosecution has been able to prove its case beyond any reasonable doubt.
The case has been adjourned to October 18, for the prosecution to respond to the bail application.