Counsel for former COCOBOD Chief Executive has put forward compelling reasons why a Supreme Court Judge, Justice Clemence Jackson Honyenuga cannot be allowed to continue hearing the case against his client at the High Court, accusing the judge of having a “predetermined mind”.
According to Lawyer Samuel Codjoe, the utterances and actions of Justice Honyenuga have given his client enough reasons to believe that the trial judge is biased and would not give him a fair hearing.
Yet an attempt to get the trial judge to recuse himself on June 9, 2021, was unsuccessful. Justice Clemence Honyenuga dismissed the application asking him to recuse himself, saying it was brought in “bad faith”.
Dr Stephen Opuni together with businessman Seidu Agongo is standing trial for allegedly causing 217 million dollars financial loss to the state.
Prosecution spent over three years making its case, but Mr. Codjoe fears his client would not be able to go the fall haul to extricate himself when he opens his defence due to the position of the judge to hurriedly dispose of the case.
“[Justice Honyenuga] stated in open court that he has to complete the case quickly to enable him [to] concentrate on his duties at the Supreme Court as the case had been pending for the past 3 (three) years thereby affecting his work in the Supreme Court,” Dr. Opuni’s lawyer pointed out on Wednesday.
This, the lawyer said, violates his client’s rights as enshrined in Article 19 (2) (e) and (g) of the 1992 Constitution.
“That I state that the learned judge, having stated in open court that the case has unduly delayed and that he has lots of work to do in the Supreme Court, has made it very clear and manifest to me that I would not be given adequate time for the presentation of my defence, an act which is unconstitutional. This became very clear to me when this court refused my legitimate request for an extra 4 days to enable me [to] prepare. I no doubt believe that I would be rushed into presenting my case so as to enable the learned judge [to] complete the case in order for him to concentrate on his core duties as a judge of the Supreme Court,” lawyer Codjoe mentioned.
He further posited that since this is a criminal trial that has “very serious and dire consequences”, it would be unfair to his client for the trial to be rushed through only because the trial judge intends to complete the case early in order for him to concentrate on his Supreme Court duties.
MIND MADE UP
The trial judge was also accused of making a prejudging Dr. Opuni in his ruling that dismissed submission of no case filed by the accused, at a time when only the prosecution has made its case.
“That the learned trial judge having made these final findings against me and when I have not opened my case yet has shown that his mind is already made up and I would definitely not have a fair trial,” the lawyer cited the motion.
A reference was for instance made to the May 7 ruling in which the judge said Dr. Opuni, who is a medical doctor, should have known the difference between lithovit foliar fertilizer and lithovit liquid fertilizer.
Meanwhile, several documents have been shown in court in which CRIG has referred to lithovit fertilizer as liquid.
For instance, a soil scientist Dr Opoku Ameyaw in his capacity as Deputy Executive Director of CRIG then, in 2014 wrote to Agricult Ghana Limited, demanding a retesting and re-certification of its fertilizer, he also described Lithovit as a liquid fertilizer.
Interestingly, under cross-examination on 19 December 2018, second prosecution witness Dr. Alfred Arthur impugned the integrity of one Rev. Fr. Emmanuel O.K. Oddoye, who in his capacity as the then Deputy Executive Director of CRIG in 2017, referred to Lithovit as a liquid fertilizer. He had signed a letter to Agricult Ghana Limited, producers of lithovit fertilizer for the “Renewal of CRIG certificate for Lithovit liquid fertilizer 2018”.
Dr Arthur told the court that Rev. Fr. E.O.K. Oddoye is an animal scientist and, therefore, may have misconstrued the word “Foliar for liquid”.
It appears the court accepted as fair for animals as well as soil scientists, with many years of experience working at CRIG, to misconstrue foliar for liquid, but a medical doctor with less than a year of experience at COCOBOD can’t be excused for that.
“…yet as a scientist [1st Accused] knew that Exhibit D the certificate clearly stated that the test approved covered Lithovit Foliar Fertilizer yet he went about projecting Lithovit liquid fertilizer in all his dealings at COCOBOD,” the judge concluded on page 53 of his May 7 ruling.
The application also referred: “That on page 59, line 11 from the top of the page, the learned judge makes a final finding as follows: ‘The 1st accused a [trauma] scientist with all his knowledge and skill had the benefit of an original Lithovit foliar fertilizer submitted, tested and approved by him (sic) 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 actions of the 1st, 2nd and 3rd accused were wilful.’”
The Judge’s claim that Lithovit foliar fertilizer was submitted, tested and approved by Dr. Opuni contradicts available evidence even before the court. It was made known in court that when lithovit fertilizer was submitted to COCOBOD for testing, Dr. Opuni was not in employment with COCOBOD. Also, it is only CRIG that is mandated to test and approve fertilizers for use by COCOBOD and not the Chief Executive as suggested by the judge.
The application by the 1st Accused therefore noted: “That the learned judge having made this final determination of fact when I have not yet opened my defence has shown that I would not have a fair trial in that the learned judge has already determined the case against me and I cannot, therefore, get a fair trial. On page 54 of the ruling on the submission of no case, the learned judge makes a final and definite finding of fact as follows ‘…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. But for his request, the 3rd accused would not have supplied Lithovit liquid fertilizer instead of lithovit foliar fertilizer’”.
Another final finding the judge was accused of was captured on page 59 of his ruling, in which he said: “the 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise of defrauding. With all these acts, I am satisfied that the prosecution through its witnesses has proved the ingredients of the offence of abetment in counts one, three and five…”
In opposing the application, Mrs Evelyn Keelson, a Chief State Attorney said, “the applicant has not disclosed any circumstances warranting this application calling in you to recuse yourself”.
According to her, Article 19(1) of the Constitution mandates the court to conduct a criminal trial expeditiously.
“This is actually the first principle of fair trial in our Constitution and there is nothing wrong when a trial judge states that a trial ought to be conducted expeditiously.
Justice Honyenuga said the applicant failed to show that he has been biased and therefore dismissed the application noting that it was made in “bad faith”.
He adjourned the case to June 18, for Dr. Opuni to open his defence.