A seven-member Supreme Court review panel has cleared Justice Clemence Jackson Honyenuga by a majority decision to resume adjudication of the case involving Stephen Opuni, Seidu Agongo and Agricult Ghana Ltd.
In a 4-3 majority decision, the panel, presided over by Justice Jones Victor Mawulorm Dotse, overturned an earlier ruling in favour of Dr Opuni.
The panel members on the majority side included the presiding judge, Justice Jones Dotse, Justice Professor Nii Ashie Kotey, Justice Avril Lovelace-Johnson and Justice Gertrude Torkornoo. The judges who dissented are Justices Gabriel Pwamang, Agnes Dordzie and Amadu Tanko.
In a short ruling read by Justice Dotse, the Supreme Court said the review application of the Attorney General succeeds and that the judges’ reasons will be ready for consultation at the registry of the Supreme Court on Friday 29 October 2021.
Plea for “deep introspection”
It was the contention of the Attorney General that the ruling of the five-member ordinary bench of the apex 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 28 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,” the AG’s statement of case said.
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, granted an application by Stephen Kwabena Opuni, in a 3-2 majority decision, that invoked the supervisory jurisdiction on the Supreme Court.
The application sought 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 (Clemence Jackson Honyenuga) from further hearing of the case.
Accused/charges
Stephen Kwabena Opuni, the former chief executive officer of Ghana Cocoa Board (COCOBOD), and Seidu Agongo, the managing director of Agricult Ghana Ltd, have been charged by the state and are on trial before the high court (Criminal Division 1).
They face 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 today, speaking within the ten-minute timeframe given him by the Supreme Court, the Attorney General canvassed four main grounds for his application.
First, the Attorney General contended that “the decision of the ordinary bench of this Supreme Court dated 28 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”.
Second, the Attorney General argued that “a decision which erroneously departs from recognised 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.”
Last, “… 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.”
Argument of defence team
The defence lawyer Samuel Codjoe, when he took his turn to address the court, argued that the application for review does not meet the threshold of the court and said 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 first accused the opportunity to open his case but instead predetermined the case in his submission of case to answer ruling.
He concluded his oral argument by declaring 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 the former COCOBOD boss Stephen Kwabena Opuni and the businessman Seidu Agongo closed its case against the accused persons on 29 March 2021.
The accused persons have been on trial at the high court in Accra since March 2018.
The prosecution, led by the Director of Public Prosecutions (DPP), Yvonne Atakora Obuobisa, called seven witnesses to prove the charges against the accused persons. They were extensively cross-examined by defence lawyers over a period of about six months in some instances.
At the end of the cross-examination of the investigator Chief Inspector Thomas Prempeh Mercer on 29 March 2021, the prosecution ended its case.
Dr Stephen Opuni and Seidu Agongo are on trial for allegedly causing financial loss to the state to the tune of GHC217,370,289.22. The accusations are in connection with a deal for the purchase and supply of Lithovit fertiliser which the state submits contravened many laws.
The two have pleaded not guilty to all the charges and were admitted to self-recognisance bail in the sum of GHC300,000 each at the beginning of the trial.
According to the facts of the case, on 10 October 2014, while Dr Opuni was the chief executive of COCOBOD, he agreed to permit his conduct to be influenced by an amount of GHC25,000.
His co-accused, Agongo, has also been accused of “endeavouring to influence the conduct of Stephen Kwabena Opuni in the performance of his duties as the CEO of COCOBOD by offering him an amount of GHC25,000” on 10 October 2014.
One of the main points of contention in the trial is the nature and form of the Lithovit fertiliser that was introduced and supplied to COCOBOD for onward distribution to farmers being different from the product that was tested by the Cocoa Research Institute of Ghana (CRIG).
Witnesses for the prosecution have all insisted that the product that was tested and certified was a powder, but there are records pointing to the fact that COCOBOD, under Dr Opuni’s management, procured Lithovit liquid fertiliser, which was never tested by CRIG, the prosecution says.
In his evidence in chief, the investigator told the court that investigations by the FFU showed that in 2013, Agricult Ghana Ltd, acting through its chief executive, introduced a powder Lithovit foliar fertiliser together with its material safety data sheet to COCOBOD and on 15 May 2013 the product was forwarded to CRIG for testing.
Wilberforce Asare
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