A former Chief Executive Officer (CEO) of the Ghana Cocoa Board (COCOBOD), Dr Stephen Kwabena Opuni’s application to change the judge handling his trial will be decided by the Supreme Court on July 28.
A five-member panel of the apex court, presided over by Justice Jones Dotse, fixed the date for the ruling yesterday July 13, 2021, after hearing arguments by lawyers for the former COCOBOD boss, and a Deputy Attorney –General (A-G), Alfred Tuah-Yeboah.
Other members of the panel were Justices Gabriel Pwamang, Agnes Dordzie, Avril Lovelace -Johnson and Issifu Omoro Tanko Amadu
Dr Opuni, and Seidu Agongo, CEO of Agricult Ghana Limited, an agro-chemicals company, are on trial on accusation of causing financial loss of more than GH¢271 million to the state.
Mr Agongo is accused of using fraudulent means to sell substandard fertiliser to the COCOBOD for onward distribution to cocoa farmers, while Dr Opuni is accused of facilitating the act by allowing MrAgongo’s products not to be tested and certified as required by law.
The two have denied any wrongdoing and have pleaded not guilty to all the charges.
Dr Opuni’s application at the Supreme Court is his fourth attempt to have Justice Clemence Jackson Honyenuga, a Justice of the Supreme Court, with additional responsibility as a High Court judge, taken off his trial.
He invoked the supervisory jurisdiction of the apex court, seeking an order of certiorari to quash Justice Honyenuga’s ruling dismissing his submission of no case.
He is also seeking an order of prohibition to have Justice Honyenuga removed from the case, with an accusation that the judge had been bias towards him.
Moving the application yesterday, lead counsel for Dr Opuni, Mr Codjoe, argued that Justice Honyenuga violated the Evidence Act, N.R.C.D 323 (1975) when he rejected an exhibit during the ruling on the submission of no case.
It was his contention that per Section 8 of the Evidence Act, before the judge could reject the exhibit, there was supposed to have been an objection from the prosecution.
“In our case, there was no objection and the judge went ahead to reject the exhibit,” counsel argued.
He said the lack of objection also meant that his client was not given a hearing to enable his lawyers to respond before the said exhibit was rejected.
On the issue of bias, Mr Codjoe accused Justice Honyenuga of making final findings in the ruling of submission of no case as if his client was guilty, although he was yet to open his defence.
“The trial judge has made predetermined findings and should be prohibited from presiding over the trial,” counsel added.
In response, Mr Tuah -Yeboah urged the court to dismiss the application, arguing that Dr Opuni had failed to meet the requirement for the invocation of the court’s supervisory jurisdiction.
The Deputy A-G argued that the trial judge did not violate any law when he rejected an ‘illegal evidence’ and that before the judge could decide on whether or not a prima facie case had been made against the accused persons, he must evaluate the evidence on record.
“In evaluating the evidence, he must consider legal and not illegal evidence,” he said.
Mr Tuah-Yeboah further argued that even if the trial judge erred in rejecting the exhibit, the remedy available was an appeal at the Court of Appeal and not a judicial review application at the Supreme Court.
With regard to the allegation of bias, the Deputy A-G said all that the judge did was to establish whether a prima facie case had been made against the accused persons.
That, he said, did not mean Justice Honyenuga had determined the guilt of the accused persons, adding that the accused persons would have their day in court when they opened their defence.
“If we accept what the applicant is saying, it means anytime a judge rules that a prima facie case has been made against an accused person, the judge must recuse himself,” the deputy A-G added.