The Supreme Court will on July 13, 2021, hear an application from Dr. Stephen Kwabena Opuni, asking for the removal of Justice Clemence Honyenuga from proceeding with the case on the grounds of bias.
Justice Honyenuga, Justice of the Supreme Court, who is presiding over the case in which the accused persons are standing trial, has been accused by Dr. Opuni for making comments that pre-determined the case before him even before he opened his defense.
Dr. Opuni, a former Chief Executive Officer (CEO) of COCOBOD and Seidu Agongo, CEO of Agriculture Ghana Limited, have been accused of causing financial loss to the state.
They have all pleaded not guilty and denied any wrongdoing and fiercely fighting the case in court.
The case has witnessed some interesting moments, including prosecution witnesses contradicting themselves under cross examination.
Meanwhile, the Chief Justice, Kwesi Anin-Yeboah, has declined the invitation to transfer the case between the state and former COCOBOD CEO, Dr. Opuni to another judge.
Responding to a petition by Dr. Opuni, the Chief Justice said “In view of the fact that no serious allegations of likelihood of bias, has been established, I will decline the invitation to transfer the case to another judge.”
Reading the response from the Chief Justice, Supreme Court Judge sitting in as additional high court judge, Justice Honyenuga, further read, the Chief Justice’s response indicating that; “I have noticed from the petition that the learned has not made any serious prejudicial statements to infer that there is real likelihood of bias against you as an accused person in the case in which you are yet to open your defense.”
The directive of the Chief Justice, the presiding judge read does not preclude the accused in the exercise of his constitutional rights to report to the judicial process for the transfer he is asking for.
Justice Honyenuga, after reading the Chief Justice’s response stated “I must state emphatically that with the direction of the Chief Justice, nothing stops me from continuing this case.”
He said he has also noticed on the docket that Dr. Opuni has filed a motion for discovery of documents fixed for June 29, 2021, but was adjourned to today July 1, 2021.
He further stated, “I have also noticed that the Chief State Attorney has complied and filed all the necessary disclosures asked for by A1, however, out of respect for the Supreme Court, where A1 has filed an application of certiorari (supervisory jurisdiction) of the court, which application was fixed for July 13, 2021, I would in the circumstances adjourned this case to abide with the judgment of the Supreme Court.”
Dr. Stephen Opuni, has taken on the judge, arguing will not get a fair trial because of certain utterances made by the judge which he considered prejudicial.
He also argued that the trial judge had made final determination of fact in his ruling on the submission of no case, a determination which could only be made at the end of the trial after the accused had opened his defense.
Dr. Opuni and the CEO of Agriculture Ghana Limited, have denied charges of causing financial loss to the state and have been asked to open their defense.
Lawyers of the accused according to the court, have also filed a case at the Supreme Court seeking its advisory jurisdiction on the matter. Justice Honyenuga, consequently adjourned the case to July 15, 2021.
The trial judge, was recently accused of having a prejudiced mind, following his description of the trial of former COCOBOD boss and two others as “sensitive” thus incurring the displeasure of lawyers who are questioning the legal basis on which the judge painted that picture.
Nutifafa Nutsukpui, counsel for businessman Seidu Agongo and his company Agricult Ghana Ltd, is for instance wondered why the judge has to order his clients to open their defence based on emotion and not on legal grounds.
Justice Honyenuga, had ordered Dr Opuni to open his defence on Thursday, June 3, and answer to the 27 charges levelled against them.
The over three years trial of Dr Opuni and Seidu Agongo, has been touted as a political trial with many believing the government is just hanging on to the case to justify its cliché that the Mahama-led administration was corrupt.
Ghana’s President, Nana Akufo-Addo, and current Attorney General, Godfred Yeboah-Dame, as well as some top government officials, have on different platforms cited the trial as an effort by the government to validate corruption allegations leveled against the erstwhile administration.
Perhaps, it is in recognition of this that Justice Clemence Honyenuga, described the case as sensitive in his contentious ruling on May 7, that dismissed submissions of no case filed by the Accused.
Justice Honyenuga, a Supreme Court judge sitting as an additional High Court judge, as part of his ruling declared:
“I am convinced that this matter being sensitive and in the interest of justice and with the prosecution having established the ingredients of the offences charged and made a prima facie case against the accused persons, they must be called upon to open their defence.”
The lawyers have since appealed against the May 7, 2021 ruling at the Appeals Court and also made unsuccessful attempts to stay proceedings at the High Court.
Arguing his motion filed to stay proceedings pending determination of the interlocutory appeal on May 26, lawyer Nutifafa Nutsukpui believes the Appeals Court ought to examine the sensitivity of the matter as suggested by Justice Honyenuga.
“The sensitivity or otherwise of a matter is not a legally recognized ground for ordering an accused person to open their defense in a criminal matter, and yet that was one of the reasons the court gave for its order, and we believe the Court of Appeal ought to take a decision on this matter,” he argued.
Rejection of Exhibits suo motu
Meanwhile, counsel has also argued against Justice Honyenuga’s rejection of 18 exhibits which were tendered without objection when he dismissed the submission of no case.
The court rejected exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and 75 which were all tendered by the Accused through the trial investigator, saying they offend the hearsay rule in Section 117 of NRCD 323.
But citing the Edward Nasser and Co. Ltd vrs McVroom 1996-1997 SGLR page 468 and page 477 case to back his argument, Nutifafa noted that the Supreme Court held that exhibits tendered without any objection signified consent of all parties that the hearsay evidence be so admitted.
“Assuming that the honourable court was right in classifying those exhibits as hearsay and for which reason they were rejected, how about similar exhibits tendered by the prosecution? Why and how were they preserved and why did the applicants not benefit from that benevolence of the court? These are matters that we consider exceptional and of legal consequence weighty enough for the Court of Appeal to be granted the opportunity to consider them at least” he argued.
He further posited that the effect of rejecting those exhibits is that they have been put beyond the use of his clients while at the same time they are being called upon to open their defense on the very rejected exhibits which favour them.
Mr Nutsukpui argued, “It will seem therefore that their fate has already been sealed even before they open their mouths to speak, thereby violating their constitutionally guaranteed rights of fair trial. The authority the court relied on in rejecting those documents according to the court itself, may reject evidence at the judgment stage. But in this particular case, the applicants have not even spoken and it was not at the judgment stage, it was at the submission of no case stage.”
He therefore suspects, strongly, that the court “misapplied” the Ekow Russel case.
Samuel Codjoe, counsel for Dr. Stephen Opuni, has also flayed the ruling on the submission of no case.
“The Learned Judge cannot in the same judgement give two different and conflicting reasonings for admissibility of statements and documents to my disadvantage as an accused Person and admit exhibits tendered in identical situations by the Prosecution,” the motion filed by lawyer Codjoe pointed out on the selective rejection of already tendered exhibits.
In moving the motion for the stay of proceedings on Wednesday, which same was dismissed by the court, lawyer Samuel Codjoe argued that the Supreme Court’s ruling in the Ekow Russel case was not applicable to the current situation.
He explained that in that case the superior court held that the witness said he never spoke to Maxwell Antwi, and therefore the statement cannot be tendered through him.
“In our case the investigator specifically stated under cross examination that he interrogates the witnesses before they wrote their statement so it is our submission that the court erred on its own rejected evidence which has been tendered without objection by the same court and not the appellate court like the case of Ekow Russel”.
He has since filed an appeal at the Court of Appeal to quash the May 7, ruling of the High Court that ordered his client to open his defence.
