Attorney General Godfred Dame has said a new trial of ex-COCOBOD CEO Stephen Opuni and businessman Seidu Agongo, following the removal of Justice Clemence Honyenuga from the case by the Supreme Court for expunging witness statements favourable to the accused persons, will be costly to the state.
In an affidavit sworn to by a Chief State Attorney at the Office of the Attorney General, for an application for review of this decision, the AG argued: “That if a trial de novo of the respondent herein results from the decision of this Court dated 28 July 2021, same will occasion a substantial miscarriage of justice as the constitutional requirements of fair and expeditious trial will not only be violated but also, the prosecution will be put to enormous expense, inconvenience and hardship in commencing a new trial.”
The grounds on which the AG is making the request is hinged on what it describes as the erroneous construction of sections 116, 117, 118, and 126 of the Evidence Act without compelling reasons to change the law in hearsay,
“That the gross and fundamental errors contained in the decision of the ordinary bench have resulted in a substantial miscarriage of justice and render the fit and proper case for the invocation of this Honourable Court’s review jurisdiction to rectify the errors contained in the decision of the ordinary bench”, the affidavit said.
In the AG’s view, “justice and fairness require that the decision of this Court dated 28th July 2021 be reviewed.”
The AG argues that Justice Honyenuga’s expungement of the witness statements, if proven to be true, could not have been a basis for the court’s conclusion since, according to him, the judge applied the law, as interpreted by the Supreme Court in various cases.
The AG contends that handing over the case to a fresh judge would be unfair, since the new judge has not had the benefit of the full trial, including assessing and observing the demeanour of witnesses and, thus, pushing for a review of the decision.
The apex court, on Wednesday, 28 July 2021, barred the High Court judge from hearing the case in which the accused persons are being prosecuted for allegedly causing GHS217 million financial loss to the state in connection with the procurement of fertiliser by COCOBOD.
The court also said the issues Justice Honyenuga dismissed while hearing the case will be admitted.
Justice Honyenuga was accused of political bias against the accused persons.
It is recalled that in a video that went viral ahead of the 2020 polls, Justice Honyenuga, in his stead as Torgbui Ashui Nyagasi V of the Nyagbo Traditional area, told president Akufo-Addo during his tour of the Volta Region that “…we wish to congratulate you for the excellent manner you are governing this dear country of ours, it is our hope that with your vision and the gains made in your first term, Ghanaians may consider giving you another four years”.
The lead counsel for Dr Opuni, Mr Samuel Codjoe, raised objections to the judge’s continuous sitting on the case since, in his estimation, the supposedly criminal case has metamorphosed into a political one with some NPP bigwigs including a deputy Attorney General, Mr Godfred Dame, backing the re-election bid of the governing party on the success of this case.
This, he said, made the judge unfit to continue the trial since his comments aligned with the aspirations of the NPP.
Justice Honyenuga, in his ruling on March 16, 2020, dismissed the motion for his recusal describing it as incompetent and misconceived.
He further described the allegations of bias against him as “mere perceptions and exaggerated to suit the first accused and others” adding that “the allegations, the alleged comments are non-judicial and will not constitute bias or any other matter”.
On July 13, lawyers of Dr Opuni told the Supreme Court about how one of two pieces of evidence that gave contrasting accounts on Lithovit fertiliser, was rejected by Justice Honyenuga, as he sought the judge’s removal from the case.
Moving the application, Mr Codjoe argued that a “statement given by a farmer, which said Lithovit fertiliser was good, was rejected and another one which a farmer said Lithovit was bad, was accepted.”
Dr Opuni’s lawyers filed an application at the Supreme Court for Justice Honyenuga’s removal in July in which he alleged that his right to be heard fairly had been breached by the judge, who he averred, had exhibited bias against him in the trial.
In the lawyers’ view, Justice Honyenuga committed an error of law when he rejected some witness statements said to have been obtained by the state during investigations into the matter.
Among those statements were the then-Head of the Cocoa Research Institute’s denial of being coerced to do his work, a procurement officer’s comment that exonerated Dr Opuni of any procurement breaches, and an endorsement of Lithovit fertiliser.
The lawyers said the statements were withheld by state prosecutors and only made available when they applied for them and also rejected by Justice Honyenuga with the following justification: “However, counsel tendered exhibits 71,72, and 73 being statements of Genevieve Baah Mante (Mrs), Fiona Gyamfi and Paula Adjei Gyang, which confirm that there was another test conducted on the Lithovit supplied to GSA for further testing. It is trite that a witness should not talk about something of which he had no personal knowledge but rely upon his own observations and recall of the matters in dispute, and this is the rule against hearsay provided under section 117 of NRCD 323. See Ekow Russel [2017-2020] SCGLR 469 Holding (4). It is also trite that a court could admit documents into evidence and reject same during Judgment. In view of the decision in Ekow Russel v The Republic, a Supreme Court decision, this court was wrong in admitting Exhibits 71,72 and 75 since they offend against the hearsay rule in section 117 of NRCD 323”.
“In the circumstances, this court rejects exhibits 71, 72 and 75 as hearsay since the authors were not under section 117 of NRCD 323 available to answer questions and in the denial of PW7 about another scientific test, these exhibits are hereby rejected as marked as ‘rejected’”.
Justice Honyenuga further said: “Moreover, by the decision of the Supreme Court in Ekow Russel v the Republic (supra) I would reject exhibits 58,59.60,61,62,63,64,65,66,67,68,69,70,71,72,73,74 and 75 as they offend the hearsay rule in Section 117 of NRCD 323 as a court has power to reject evidence during the judgment stage. The exhibits were all tendered through witnesses who were not authors and could not answer questions based on them. Meanwhile, the witnesses are available”.
Concerning the allegation of bias against Justice Honyenuga, the lawyers cited the following statements: “All these were perpetuated to facilitate the 2nd and 3rd accused’s business and defraud COCOBOD. Indeed, these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused to perpetrate fraud on COCOBOD by supplying a different product from what was tested and approved.”
“…However, the 1st accused, although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused to defraud COCOBOD.”
“The 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise of defrauding.”
“The 1st accused, a scientist with all his knowledge and skill, had the benefit of an original Lithovit Foliar fertiliser submitted, tested and approved by him yet, knowingly, he agreed and caused the state to lose millions of cedis in foreign exchange by paying these monies to the 2nd and 3rd accused persons. The 1st accused, thus, caused financial loss through this action”.
By a 3-2 majority decision of the Supreme Court, the prayer of Dr Opuni was granted: “The test is an objective one based on the principle that not only must justice be done, but it must be seen to be done. As the authorities say, bias is so insidious that the judge himself may not even be aware that he has a bias in the matter under consideration. It is for the reasons explained above that I hereby grant the prayer for prohibition in order that justice will be seen to be done in this case. In conclusion, the application succeeds on both counts and is accordingly granted as prayed.”
Justice Gabriel Pwamang wrote the lead judgment and was supported by colleague Justices A.M Dordzie and Tanko Amadu.
Justices Jones Dotse and Lovelace Johnson disagreed.