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A Dubai-based Indian businessman has applied to the Supreme Court of Ghana for an order of certiorari to quash a conviction and sentencing handed him on February 27, 2015 after the High Court tried and convicted him in absentia.

Arvind Kumar Bhatnagar argues in a statement of case that the entire conviction and purported trial should be declared a nullity because it is inconsistent with the 1992 national constitution of Ghana.

Processes filed on his behalf by Fidelity Law Group claim while Arvind Bhatnagar should have been served or notified of the charges against him and the resultant trial in accordance with Article 19 of the Constitution, the provision was not complied with.

“My Lords the legal and factual basis for this application is grounded in our contention that the Attorney General and the Trial High Court acted ultra vires of our 1992 Constitution in particular Article 19 (2) and (3), 23, and 296. As such the trial and the conviction and the sentence that came with it must be declared null and void and of no effect.”

Article 19(3) provides that: The trial of a person charged with a criminal offence shall take place in his presence unless he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified, or he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence.

The High Court in Accra tried and convicted Arvind Kumar Bhatnagar in absentia on the charge of conspiracy to defraud, defrauding by false pretenses and forgery in connection with a Collective Management Agreement at the National Investments Bank and sentenced him to a fine of GH¢500,000.00 or in default 12 months imprisonment.

But counsel says while Arvind Bhatnagar lived in Ghana voluntarily and exited the shores of Ghana on his own volition on January 31, 2007 as a free man, he was never charged with any offence or notified of any trial involving him.

“My Lords, the Applicant left the shores of Ghana on January 31, 2007 as a free man. He has never been arrested for the offences he was charged with in the trial at the High Court. The Applicant has also never been charged with or notified of any prosecution against him.

“The Republic has never issued an arrest warrant for his arrest neither has there been any extradition proceedings to secure his presence at the purported trial.

“From the record of proceedings which is attached as “Exhibit AKB 3” the Republic, was silent on whether the Applicant was duly notified of the criminal action against him or at all. The trial judge also did not take any concrete steps to secure the fair trial rights of the Applicant.”

Counsel argues that the Republic initiated the prosecution of the suit in or about 2010 against the applicant but since no arrest warrant was issued, no criminal summons served on him or was any extradition proceedings concluded, the applicant could not have appeared at the commencement of the trial for him to be duly arraigned before the High Court.