The Supreme Court yesterday reinstated Justice Clemence Honyenuga as the judge to preside over the criminal trial of former COCOBOD Chief Executive, Dr Stephen Kwabena Opuni, who has been accused of causing financial loss to the state.
A seven-member review panel in a 4-3 majority decision overturned an earlier decision by the court prohibiting Justice Honyenuga from handling the case.
This was after the court upheld a review application by the Attorney-General (AG), Mr Godfred Yeboah Dame.
The Judges on the majority side were Justices Jones Mawulorm Dotse who was the presiding judge, Prof Nii Ashie Kotey, Gertrude Torkornoo and Avril Lovelace Johnson.
Justices Gabriel Pwamang, Agnes Dordzie and Amadu Tanko dissented.
In a short ruling read by Justice Jones Dotse, the Supreme Court said the review application of the Attorney General has succeeded.
It said the reasons of the apex court will be ready at its registry on Friday 29 October 2021.
The Attorney-General had argued that the ruling of the five-member ordinary bench of the Supreme Court contained fundamental errors that occasioned a miscarriage of justice, and therefore ought to be reviewed.
In his statement of case filed at the Supreme Court Registry on 18 August 2021, the Attorney-General invited the Supreme Court review panel to “make a deep introspection into the soundness of the decision of the Court dated 28th July, 2021 and correct the errors contained therein.
“The Court ought to be guided by the simple question whether the impugned decision, on account of the multiple legal flaws, leads to a miscarriage of justice in the case pending at the High Court”.
Background
On 28 July 2021, a five-member Supreme Court panel presided over by Justice Jones Dotse, and made up of Justices Gabriel Pwamang, Agnes Dordzie, Avril Lovelace -Johnson, and Issifu Omoro Tanko Amadu, in a 3-2 majority decision, granted an application by Stephen Kwabena Opuni, that invoked the supervisory jurisdiction on the Supreme Court, seeking orders in the nature of certiorari to quash parts of the submission of no case ruling of the trial judge which expunged exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72, 73, 74 and 75, as well as an order of prohibition to prohibit the trial judge (Justice Clemence Jackson Honyenuga) from further hearing of the case.
Accused/charges
Stephen Kwabena Opuni, former Chief Executive Officer of the Ghana Cocoa Board (COCOBOD), Seidu Agongo, Managing Director of Agricult Ghana Limited, have been charged by the state and are currently on trial before the High Court (Criminal Division 1) on 27 counts of abetment of crime, namely defrauding by false pretence, wilfully causing financial loss to the state, contravention of the Public Procurement Act and corruption by a public officer.
AG’s argument
In court yesterday, the Attorney-General within the 10-minutes-time frame given him by the Supreme Court, canvassed four main grounds for his application.
First, the Attorney General contends that “the decision of the ordinary bench of this Supreme Court dated 28th July 2021 contained fundamental and grave errors which have manifestly resulted in a substantial miscarriage of justice, as it effectively ignored the time-honoured fundamental and mandatory preconditions for an invocation of the Supreme Court’s supervisory jurisdiction for an order of certiorari to quash an alleged error contained in a decision of a Superior Court”.
Secondly, the Attorney General argues that “a decision which erroneously departs from recognized principles regarding the invocation of this honourable court’s supervisory jurisdiction is bad in law, works manifest injustice and constitutes an exceptional circumstance warranting a review by the court”.
Third, “that the ordinary bench committed a fundamental error resulting in a substantial miscarriage of justice when it wrongly construed sections 118 and 126 of the Evidence Act, 1975 (NRCD 323) on the law on hearsay evidence. The effect of the erroneous construction of sections 118 and 126 of the Evidence Act was to, without compelling reasons, change the law on hearsay. This constitutes an exceptional circumstance resulting in a gross miscarriage of justice”.
Lastly, “that the ordinary bench committed a fundamental error in prohibiting the trial judge who rightly performed his duty as required by law to evaluate the evidence adduced by the prosecution in order to make a determination whether a prima facie case had been made against the respondent. This error has occasioned a substantial miscarriage of justice”.
Concluding argument
The Attorney General concluded his argument indicating it was his “humble submission that a careful application of relevant principles regarding the invocation of both the supervisory and review jurisdictions of the Court will undoubtedly result in a setting aside of the decision complained of. To preserve same will be a bad and dangerous precedent for Ghana law”.
Defence team
The defence lawyer Samuel Codjoe when he took his turn to address the court noted that the application for review did not meet the threshold of the court and the applicants were just rehashing arguments made in the previous application, which was granted.
He told the court that the trial judge was clearly biased as he did not give the accused person the opportunity to open his case but instead predetermined the case in his submission of case to answer ruling.
He concluded that the Supreme Court was right in prohibiting the trial judge from continuing with the High Court trial of his client.
Material facts
After more than two years of trial, the prosecution in the case of former COCOBOD CEO Dr. Stephen Kwabena Opuni and businessman, Seidu Agongo, on the 29th of March 2021, closed its case against the accused persons.
The accused persons have been on trial at an Accra High Court since March 2018, charged with 27 counts, including causing financial loss.
The prosecution led by the Director of Public Prosecutions (DPP), Yvonne Atakora Obuobisa, called seven witnesses to prove the charges against the accused persons who were extensively cross-examined by defence lawyers, spanning about six months in some instances.
The prosecution, at the end of the cross-examination of Chief Inspector Thomas Prempeh Mercer, the investigator, on 29th March 2021, ended its case.
