Documents have been filed on behalf of the Attorney General, urging the Supreme Court to set aside its judgment dated July 28, 2021.
This close call 3-2 judgment restrained Supreme Court Judge Clemence Jackson Honyenuga from hearing the criminal trial of former Ghana Cocoa Board CEO Dr Stephen Opuni.
Justice Honyenuga has since 2017 been hearing the case as an additional High Court Judge.
In July 2021, Dr Opuni’s lawyers filed an application at the Supreme Court asking that it restrains Justice Honyenuga from hearing the matter.
He alleged that his right to be heard fairly had been breached by the Judge aside from a demonstration of bias. The allegations flowed from Justice Honyenuga’s ruling on a submission of no case application.
Dr Opuni’s lawyers contend the judge committed an error of law when he rejected some documents submitted as evidence. These are witness statements said to have been obtained by the state during investigations.
One is that of then Head of the Cocoa Research Institute, denying being coerced to do his work. A procurement officer is said to have given a statement which Dr Opuni says exonerates him from any breaches of the procurement law.
Another statement is said to have indicated that the fertilizer at the centre of the controversy was effective in increasing the yield of cocoa farms.
Dr Opuni’s lawyers say, these statements were withheld by state prosecutors and only made available when they applied for them.
These statements were, however, 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’.
Further at page 88 of his ruling, he said this;
“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 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”.
The lawyers contended that this position taken by the judge was contrary to law. However, the Supreme Court, in its judgment, took the view that these statements were admissible.
The court said these statements were crucial to Dr Opuni, and he should therefore have been given a hearing before the Judge decided to expunge it.
On the allegation of bias against the Judge, the lawyers explained that the Judge made some prejudicial comments in his submission of no case ruling.
“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 perpetuate fraud on COCOBOD by supplying a different product from what was tested and approved.”
Page 54 again. “…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.”
Page 55 of the ruling. “The 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise of defrauding.”
Page 59 of the ruling. “The 1st accused a scientist with all his knowledge and skill had the benefit of an original Lithovit Foliar Fertilizer 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”.
“ 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, who wrote the lead judgment, concluded. He was backed by his colleague Justices A.M Dordzie and Tanko Amadu. Justices Jones Dotse and Lovelace Johnson disagreed.
The Attorney General says this decision of the highest Court of the land contains fundamental errors of law which have manifestly resulted in miscarriage of justice.
The AG says the Judge’s exclusion of the witness statements, if proven to be true, could not have been a basis for the court’s conclusion since the Judge applied the law as interpreted by the Supreme Court in various cases.
The decision to restrain the Judge, the AG says, is unfair in that the case will be entrusted to an entirely new judge who has not had the benefits of the full trial, including assessing and observing the demeanour of witnesses. He, therefore, wants this decision reviewed and set aside.
Dr Stephen Kwabena Opuni and businessman Seidu Agongo are standing trial for charges, including willfully causing financial loss to the state and defrauding by false pretence, in the procurement of fertilizers for farmers by COCOBOD.