Opuni Case: SC sets October 26 for ruling on AG’s review motion

The Supreme Court has set October 26 to deliver its ruling on a motion of review filed by the Attorney General.

The apex court sat today, October 12, 2021, on a review application filed by the Attorney General relative to a July 28, 2021 decision that saw a 3-2 majority decision by the court.

The AG applied for a review of the said decision which culminated in an order prohibiting Justice Honyenuga from presiding on the Opuni trial per an application filed in June this year by the former CEO of COCOBOD, Dr. Stephen Opuni to that effect.

In moving his motion for a review, the Attorney General contended that the 28th July decision of the Court contained fundamental and grave errors that have resulted in a miscarriage of Justice.

“Attorney General respectfully contends that the earlier decision of the ordinary bench of this honorable Court dated 28th July 2021 contained fundamental and grave errors which have manifestly resulted in a substantial miscarriage of justice impairing the rights of the state to a fair trial,” he said.

Furthermore, the AG argued that “There may be no greater threat to a trial, qua fair trial than the secondary observation of witness accounts artificialized by an impugned ruling.” AG’s statement noted.

Also “The decision of the ordinary bench yields a substantial miscarriage of justice by placing the case before a new judge who has not had the benefit of the full trial, observed the demeanor and composure of the various prosecution witnesses and assessed their credibility.” he noted.

Additionally, the AG averred that the ordinary bench committed a fundamental error in prohibiting the trial judge who only performed his duty as required by law to evaluate the evidence adduced by the prosecution to determine whether a prima facie case had been made against the respondent.

However, the lead counsel for Dr. Opuni, Samuel Codjoe in opposing the AG’s arguments, indicated to the Court that Justice Clemence Honyenuga had a preconceived judgment relative to his client’s case.

He noted that the judge had already made up his mind on Mr. Opuni relative to the case thus was just observing the trial as a ritual to pronounce the sentence.

“He had made his mind and was going through the rituals while waiting to pronounce sentence”, he said to the court.

Mr. Codjoe, therefore, called on the Court not to accede to the AG’s motion for a review.

Background

Mr. Stephen Opuni brought an application before the Supreme Court in July, praying for an order of certiorari directed at the High Court Criminal Division 1, Accra to quash a part of the ruling of the High Court presided over by His Lordship Justice Clemence Jackson Honyenugah, JSC, sitting as an additional High Court Judge and for an order of prohibition to prohibit him from continuing with the case.

This application, according to Dr. Opuni, was informed by a ruling by Justice Honyenuga on his application for submission of no case.

According to Dr. Opuni’s lawyers, the trial judge per his rejection of some witness statements they submitted as evidence, erred in law.

Also, per a given statement given by a procurement officer, Mr. Opuni believed he had been exonerated from any procurement breaches.

Further to the above, there was another statement that indicated that the fertilizer which is the main issue of the trial increased the yield of cocoa farmers.

Mr.Opuni’s lawyers noted that the above statements were only made available to them when they applied for them and withheld by state prosecutors.

He noted that these statements were however rejected by Justice Honyenuga on the following grounds;

“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 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.

However, Justice Honyenugah rejected the above-marked exhibits 71, 72, and 75 describing them as hearsay because the authors were not available to answer questions and also denied PW7 on a scientific test.

On its part, the Supreme Court in its previous decision ruled that the above statements were admissible and crucial and the sitting judge should have given Dr. Opuni a fair hearing before expunging them.

Moreover, Dr.Opuni’s lawyers alleged that in his submission of no case, Justice Honyenugah had made certain pronouncements which they deemed as a clear demonstration of bias.

“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 a fraud on COCOBOD by supplying a different product from what was tested and approved” page 54 of the said ruling quoted.

Also, “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 54 of the ruling quoted.

Additionally, “The 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise of defrauding.” page 55 of the ruling.

However, by a majority decision with the opinion rendered by Justice Pwamang and supported by Justice Dordzie(Mrs) and Justice Tanko Amadu, the Supreme Court made an order prohibiting Justice Honyenuga from presiding on the trial.

Justice Pwamang in that opinion indicated that; “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. Therefore, in conclusion, the application succeeds on both counts and is accordingly granted as prayed.”

Meanwhile, the Attorney General has argued that prohibiting a Judge who has obeyed the judicial precedent of the Honorable Court strikes at the heart of certainty of the law which will have a great consequence of the administration of justice thus called on the Supreme Court to review same.

Notwithstanding, lawyers for Dr.Opuni disagreed with the above assertions stating that those matters had already been rejected by the court thus a review cannot serve as a forum to try to re-spark them.

The Court, therefore, adjourned the proceeding to October 26, 2021, for its ruling.