The first accused in The Republic versus Solomon Asamoah and Another (Sky Train Case) has filed an interlocutory appeal at the Court of Appeal, seeking to quash a High Court order directing him to testify first before calling his witnesses.
The accused’s lawyer, Victoria Barth, filed the application on Friday, 30 October 2026, following proceedings at the High Court on Thursday, 29 October 2026. During the proceedings, Lawyer Victoria Barth indicated to the court that his client has filed a list of persons he will subpoena to testify, most of whom were members of the board of directors of Ghana Investment Infrastructure Fund (GIIF) when the sky train project was executed.
The defence lawyer further pointed out that his client would testify after the subpoenaed witnesses had testified. However, the state, represented by the Deputy Attorney General, Justice Srem Sai, opposed the request made by the defence counsel’s request, noting that the state would prefer the accused to testify first before he calls his subpoenaed witnesses, whom the court does not yet know.
In a sharp rebuttal, the defence lawyer, Victoria Barth, noted in Court that “the subpoenaed witnesses have not been subpoenaed because they are unavailable. Secondly, the law does not provide that witnesses may be subpoenaed only when they are unavailable.
“It is also material that the court granted leave in respect of the subpoenas, and there was no objection from the prosecution or request to know what those witnesses would testify about.
“It is noteworthy that at least five of the subpoenaed witnesses are persons for whom the prosecution filed witness statements and chose not to call. These are not willing witnesses for the defence,” the Defence Lawyer, Victoria Barth, stated in court.
However, Justice Audrey Kocuvie-Tay’s court, after hearing both sides’ arguments, stated: “Having listened to both learned counsel, it is the considered opinion of this court that the witnesses are invited to support the evidence of the accused persons or person.
“Therefore, the court will maintain its orders that the accused persons would give their evidence and thereafter give dates and times as to when the subpoenaed witnesses would be invited.”
Aggrieved by the trial court’s decision, the defence lawyer, Victoria Barth, filed an interlocutory appeal. The defence contends that “the Court’s orders directing the order of testimony/evidence to be received from the accused person and his subpoenaed witnesses was an error.”
The particulars of the error, according to the notice of interlocutory appeal filed in court, indicated that first, “the said direction has no basis in law and was not a fair and reasonable exercise of the Judge’s case management powers.
Second, “the direction unjustifiably interferes with the Accused/Appellant’s planned strategy for conducting his case and threatens the Accused/Appellant’s fundamental human right and freedom to conduct his case as he deems fit to meet the prosecution’s case against him.”
Third, “the learned trial Judge’s direction that it would receive evidence from both the Accused/Appellant and the 2nd Accused person before inviting and/or giving dates for the Appellant/Accused’s subpoenaed witnesses to testify, violates the Appellant/Accused’s constitutional right to a fair hearing and to make full answer and defence as guaranteed by Article 19(2)(e), (f) and (g) of the 1992 Constitution.”
Fourth, “the Court’s direction violates the Accused/Appellant’s rights under Article 19(2)(e), (f) and (g) of the 1992 Constitution to be given adequate time and facilities for the preparation of his defence, to be permitted to defend himself by Counsel and to be afforded facilities to obtain the attendance and examination of his subpoenaed witnesses.”
Lastly, “by the said direction the trial judge descended into the arena of conflict and demonstrated clear personal involvement in the matter, especially as the court made no such directions in the case of the prosecution and that “fair trial requires procedural equality between prosecution and defence.”
To this end, the first accused is asking the court for specific reliefs. First is the Court of Appeal to “allow the appeal and set aside the trial judge’s directions that the Appellant (1st accused) testify before the other defence witnesses; and secondly, “make any further orders that the Court considers necessary to secure the Appellant’s constitutional right to a fair hearing.”
