• The state has failed a review application for the reinstatement of Justice Honyenuga in the Opuni trial
• Dr Opuni’s lawyers argue that Justice Honyenuga denied their client his right to a fair hearing
• Dr Opuni is standing trial for causing financial loss to the state, among other charges
Legal representatives for former Ghana Cocoa Board (COCOBOD) CEO, Dr Stephen Opuni say Supreme Court Judge, Justice Clemence Honyenuga had made up his mind to pronounce their client guilty.
The lawyers have thus prayed the apex court of the land not to reverse its decision to bar Justice Honyenuga from hearing the ongoing criminal trial involving their client.
According to them the Supreme Court Judge, while sitting on the case, set out to pronounce their client guilty and was only going through the ritual of trial while waiting to jail Mr Opuni.
“He had made his mind and was going through the rituals while waiting to pronounce sentence,” lead Counsel for Dr Opuni, Samuel Codjoe, told the court.
Lawyers for Dr Opuni in July 2021, applied to the Supreme Court to restrain Justice Honyenuga from hearing the criminal case involving the former COCOBOD CEO, which he was hearing as an additional High Court Judge.
In a close call decision, the Supreme Court in July this year ruled a 3-2 decision to restrain Justice Honyenuga from hearing the case.
Dr Opuni’s lawyers, in their application to the Supreme Court, alleged that the judge demonstrated bias against their client and breached his right to a fair hearing.
This allegation came after Justice Honyenuga had ruled on a submission of no case in which Dr Opuni’s lawyer’s contended that the judge committed an error in law when he rejected documents submitted as evidence.
These documents were made up of witness statements said to have been obtained by the state during investigations including a statement by the Head of the Cocoa Research Institute, denying that he had been coerced to do his work.
According to Dr Opuni’s lawyers, the statements, most of which exonerate their client of the charges levelled against him, were withheld by state prosecutors and were only made available when they applied for them.
Justice Honyenuga in response to Dr Opuni’s lawyers said “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’.”
The judge further stated on page 88 of his ruling that;
“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 the 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.”
Dr Opuni’s lawyers however contended that the position taken by Justice Honyenuga was contrary to the law. The Supreme Court later said the statements were admissible.
According to the Supreme Court, the statements were important to Dr Opuni, thus should have been given an audience before the judge ruled to expunge it.
On their allegation of bias against Justice Honyenuga, Dr Opuni’s lawyers said he made 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 perpetrate 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.”
The application for restraining against Justice Honyenuga was heard by Supreme Court Justices Jones Dotse, A.M Dordzie, Amadu Tanko, and Lovelace Johnson and Gabriel Pwamang.
In the ruling of the panel, Justice Gabriel Pwamang, who wrote the lead judgment, concluded as follows
“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.”
Justice Pwamang was backed in voting by Justices A.M Dordzie and Tanko Amadu while Justices Jones Dotse and Lovelace Johnson disagreed.
A review application of the 4-3 ruling filed by the state is being heard by Justices Gertrude Torkonoo and Prof Ashie Kotey, who have joined the original panel.
According to the Attorney General, the decision by the Supreme Court is riddled with fundamental errors of law which resulted in a miscarriage of justice.
Dr Opuni’s lawyers in disagreeing with the state however say the review cannot be a means to re-argue matters that have been canvassed and rejected by the court.
Ruling on the application has been set for October 26.