COCOBOD case: Seidu Agongo wants Honyenuga to recuse himself

Businessman, Seidu Agongo has filed an application for the recusal of Justice Clemence Honyenuga from the ongoing GH¢217 million financial loss case.

Mr Agongo, who is the second accused person in the case, is being tried along with his agrochemical company Agricult (the third accused person) and the ex-CEO of Ghana Cocoa Board, Dr Stephen Opuni (first accused person).

Dr Opuni, Mr Agongo and Agricult are facing 27 charges including defrauding by false pretences, wilfully causing financial loss to the state, money laundering and corruption by a public officer in contravention of the Public Procurement Act.

The two men have pleaded not guilty to the charges and are on a GH¢300,000 self-recognisance bail, each.

Justice Honyenuga, on Monday, February 20, 2023, had to adjourn the hearing to Thursday, 23 February 2023, for the defence to move the application.

Mr Agongo’s lead counsel, Mr Nutifafa Nutsukpui, told the court on Monday that they filed the application on Friday, February 17, 2023 but their checks with the court clerk indicated that it was not served on the court.

Mr Nutifafa argued that the nature of the application makes its hearing imperative before the trial could continue.

Mrs Stella Ohene-Appiah, Principal State Attorney, confirmed to the court that the state had been served with the application.

Also, Mr Tony Nyarko Acheampong, who held brief for Mr Samuel Codjoe, counsel for Dr Opuni, confirmed that his side had been served.

He said they had received instructions from their client to file an affidavit, as a necessary consequence of the application.

“We do not intend to waive our rights to file an affidavit in any way so ever,” Mr Acheampong told the court.

Justice Honyenuga then said in view of the very serious matters being raised in the application, he had to adjourn the sitting to Thursday, 23 February 2023 for the application to be moved.

The almost-five-year trial has been dotted with recusal applications since its inception.

In one of such multiple applications, Dr Opuni, accused the Supreme Court judge, who is sitting as an additional High Court judge, of exhibiting “bias tendencies and open hostility” toward him.

Dr Opuni alleged that Justice Honyenuga had been giving the Attorney General preferential treatment in the case.

He filed the affidavit in support of the motion on Friday, 10 December 2021 after one of his many recusal applications resulted in the Supreme Court prohibiting Justice Honyenuga from continuing the hear the matter but victory was short-lived as an enhanced panel of the apex court overturned that ruling, thus, reinstating him on the case.

In his affidavit in support of the post-reinstatement Supreme Court ruling, Dr Opuni said: “I state further that this conduct of the learned judge in unilaterally imposing dates did not happen when the prosecution was presenting its case. During that time, the learned judge always agreed with the lawyers before adjourning the case. Unfortunately, the learned judge has refused to grant me the same conditions and facilities which were afforded to the prosecution.”

Dr Opuni also said Justice Honyenuga “has exhibited open hostility toward me since I opened my defence and this is evident where he (the learned judge), in open court, apart from not hearing my counsel with respect to adjourned dates, bangs his files on his table when giving dates and on his own, orders the court to rise while angrily screaming ‘court rise’. Indeed, at the last hearing on the 9th day of December 2021, the learned trial judge unilaterally adjourned the suit at a time my lawyer was on his feet and addressing him with respect to the proposed adjourned dates and walked away to his chambers.”

The conduct of the judge, Dr Opuni averred, breached his right to a fair hearing and also constitutes a breach of Rule 3 (5) of the code of conduct for judges and magistrates, which stipulates that: ‘A judge shall perform judicial duties without bias or prejudice, A Judge shall not, in the performance of Judicial duties, by words or conduct, manifest bias or prejudice including but not limited to bias or prejudice based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status, and shall require Court personnel and others not to do so.’

Additionally, Dr Opuni argued that “the fact that the judge is biased toward me is evidence by his prejudicial comment, which he made in court on the 9th day of December 2021 where he stated in open court that the evidence of my witnesses cannot exonerate me save my own evidence”.

“This shows a clear case of bias and that the learned judge has already made his mind even though my first witness has not yet completed his evidence-in-chief. I add that this comment is further evidence that the learned trial judge would not consider the evidence of my witness even though he has not completed his evidence-in-chief.”

The affidavit continued: “That during the examination-in-chief of my first witness, when my lawyer sought to elicit a response from my witness on portions of the findings of fact made by the judge in his ruling dismissing our application for submission of no case, including the above, the learned trial judge stopped him and furiously informed him that he was not going to allow my lawyer to ask questions by referring to his ruling”.

This conduct, Dr Opuni noted, “is one of bias since the questions to be asked are based on the express finding made by the judge with respect to the submission of no case in which the judge made extensive references to the evidence of various prosecution witnesses affirming the basis of his ruling”.

“I state that unless the learned trial judge recuses himself from hearing this matter, I would be denied a fair trial since I would be prevented from conducting the case in a way which I am entitled to by making references in this instance to specific portions of the ruling”.

“I state further that the fact that the learned trial judge is biased is further evidenced from his conduct of the 2nd day of December 2021, where the learned trial judge, even though aware of the fact that I had the constitutional right of deciding the mode of calling witnesses, initially objected to DW1 giving evidence. This was most unfortunate in that at no point in time during the presentation of the case by the prosecution did he seek in any way whatsoever and or howsoever to instruct on the sequence of calling their witnesses”.

“I state further that the learned judge has repeated on numerous occasions since I opened my defence that his diary at the Supreme Court does not afford him enough time, hence his act of imposing these said dates. It is, thus, clear to me that I will not get a fair trial as my trial would be rushed through by his Lordship the trial judge”.