The Attorney-General (A-G), Mr. Godfred Yeboah Dame, is challenging the decision of the Supreme Court to prohibit Justice Clemence Jackson Honyenuga from presiding over the trial of a former Chief Executive Officer (CEO) of the Ghana Cocoa Board (COCOBOD), Dr. Stephen Kwabena Opuni.
In a review application, the A-G is asking the apex court to set aside its decision to prohibit Justice Honyenuga, a Justice of the Supreme Court, who was presiding over the trial as a High Court judge.
It is the case of the A-G that the Supreme Court committed a fundamental error of law when it took Justice Honyenuga off the case.
“The decision of the ordinary bench contained fundamental and grave errors which have manifestly resulted in a substantial miscarriage of justice,” the A-G’s affidavit in support of the application said.
On July 28, this year, the Supreme Court, in a 3-2 majority decision, prohibited Justice Honyenuga from presiding over the trial of Dr. Opuni, and a businessman, Seidu Agongo, who have been accused of causing financial loss of more than GH¢217million to the state.
The court held that in dismissing a submission of no case filed by Dr. Opuni, Justice Honyenuga made certain pronouncements which could be interpreted that he (judge) had already found the accused persons guilty even before they opened their defence.
Such an act, the court held, gave rise to a likelihood of bias.
According to the court, Justice Honyenuga’s duty at the ruling on submission of no case was to establish whether or not a prima facie case had been made against the accused persons, but the pronouncements he made was as if the prosecution had proved its case beyond reasonable doubt.
Also, the court quashed certain portions of the ruling on the submission of no case in which Justice Honyenuga expunged certain evidence said to be in favour of Dr. Opuni.
It said Justice Honyenuga breached the law when he expunged those exhibits as hearsay evidence.
“A reasonably well-informed observer, taking account of the exclusion of the exhibits that appear to favour the accused person and the pronouncements made by the judge which connote that the 2nd and 3rd accused persons have defrauded COCOBOD and it would not have happened but for the applicant (Dr. Opuni) herein deliberately and knowingly facilitating it and that by that he has caused financial loss to the state, would come to the conclusion that the judge would not be impartial in the consideration of the any defence of the accused person has to put forward,” the court held.
The majority decision was authored by Justice Gabriel Pwamang who was joined by Justices Agnes Dordzie and Issifu Omoro Tanko .
Justices Jones Dotse and Avril Lovelace-Johnson dissented.
The A-G is, however, of the view that the court misconstrued the Evidence Act of the country and made a wrong determination on the law of hearsay.
According to the A-G, even if Justice Honyenuga made an error, the forum for redress was not an invocation of the Supreme Court’s supervisory jurisdiction.
On the issue of bias, the A-G argued that the court erred when it upheld Dr. Opuni’s application for prohibition against Justice Honyenuga.
“The decision to prohibit the trial judge must be on the basis of only compelling circumstances which shows indisputable bias on the part of the judge, and not on account of matters complained by the respondent (Dr. Opuni).
Agongo has been 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 not allowing Agongo’s products to be tested and certified as required by law.
The two have denied any wrongdoing and pleaded not guilty to all the charges.