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General News Wed, 15 Dec 2021

COCOBOD trial: DDP Obuobisa chided for urging unconstitutionality in court

An attempt by the Director of Public Prosecutions (DDP), Yvonne Atakora Obuobisa, to sway the High Court into an arena of illegality backfired on Monday, after being messed up by lawyer Samuel Codjoe, counsel for former COCOBOD boss, over simple court procedures.

The two lawyers argued out their respective positions before Justice Clemence Honyenuga over an application filed by former COCOBOD Chief Executive Dr Stephen Opuni, asking the trial judge to recuse himself for allegedly being biased and hostile to him, which was fixed for hearing on December 16.

But the learned Director of Public Prosecutions, who appeared to be at a loss, criticised lawyer Codjoe for fixing the date for the hearing of the motion on December 16 and not on December 13.

“Counsel for the accused person is aware the case was fixed for continuation of hearing today. My Lord, he could have fixed the stay of proceedings (sic) to be heard today rather than on Thursday,” Yvonne Obuobisa asserted, “My Lord, counsel for the 1st accused knew that this case was fixed for the 13th and 16th of December, 2021. So, My Lord, he could have fixed the determination of this case for today, December 13, 2021.”

Lawyer Codjoe who felt the DPP was misleading the court on a mundane procedure, offered education on whose responsibility it is to fix dates for parties.

“My Lord, my learned friend also referred to the fact that when I filed the motion, I fixed date for Thursday the 16th day of December 2021 and that this was wrongful and that I should have chosen [December 13] as the date for hearing.

“This accusation is without any basis whatsoever. When it comes to giving date, it is the Registrar which gives the date and more important, even as we are in court today, they have still not been served as she claims, so how will she have argued this application when she had not even been served.”

Though the trial judge had earlier signalled his intention to adjourn hearing the substantive case until the Chief Justice gives direction on the recusal, it was opposed by the Director of Public Prosecutions.

Yvonne Obuobisa prayed the court to go ahead and hear the substantive case despite the application before the Chief Justice.

“My Lord, the motion for Your Lordship to recuse yourself has not yet been determined and must not operate as stay… My Lord, the date that we agreed on and which was the date set by this court must be respected, and the case should continue. We can come on December 16, 2021, and take the motion,” she urged.

However, lawyer Samuel Codjoe drew the court’s attention to some authorities, pointing out that the DPP was dabbling in unconstitutionality.

“My Lord, my first point is the learned DPP is urging this court to engage in an act which is strictly, prohibited by decided cases which by virtue of Article 129 (3) of the 1992 Constitution is binding on this court. My Lord, I will state that in Tsatsu Tsikata Vs the Republic, My Lord, it is Criminal Appeals No H2/5/2009.”

He argued further, “In fact, the submission of the learned DPP is unconstitutional as being in breach of Article 129 (3) which makes it mandatory that this High court is bound by the decision of both the Court of Appeal and the Supreme Court on this matter My Lord. that is all.”

Justice Clemence Honyenuga, a supreme court justice sitting with additional responsibility as a high court judge, had no choice but to side with Dr Opuni’s counsel and therefore suspended sitting.

Former COCOBOD boss Dr Stephen Opuni and businessman Seidu Agongo have been accused of causing financial loss to the state and contravention of the Public Procurement Act.

They have both pleaded not guilty to the about 27 charges and are on a GHS300,000 self-recognisance bail each.

Find excerpts of Monday’s proceedings below:

LAWYER CODJOE: My Lord, we filed the motion on Friday and this morning we on our own served a copy of the petition together with a copy of the motion on the Attorney General’s Department and they acknowledged receipt and it was served on Gladys Dery. My Lord, you will notice that the petition was signed today.

PROSECUTION: My Lord, I indicated to the court I have not seen it; nothing had been brought to the Prosecution Division.

My Lord the case had been fixed for today December 13, 2021. Counsel for the accused person is aware the case was fixed for continuation of hearing today. My Lord, he could have fixed the stay of proceedings to be heard today rather than on Thursday.

Especially so because there is such a precedence in respect of this same case before the Supreme Court. Counsel for the 1st Accused person filed a Civil motion on the October 25, 2021 when the case was set for the October 26, 2021 the determination of the review panel was for the October 26, 2021 so that this case will be heard and the case was fixed for October 26, 2021 so that the motion will be moved before the determination of the review panel and that was what happened on the 26th this was moved before the review panel gave its decision.

My Lord, counsel for the 1st accused knew that this case was fixed for the 13th and 16th of December, 2021. So My Lord, he could have fixed the determination of this case for today December 13, 2021. My Lord, I rely on The Republic Vs High Court Commercial Division Exparte Dakpem Zobogunaa Henry Kaleem Civil Appeal No. J5/6/2015, dated June, 2015.

The Supreme Court Ansah JSC held that the fact that an application for stay of application is pending did not operate to stay proceedings. My Lord, the motion for Your Lordship to recuse yourself has not yet been determined and must not operated as stay.

My Lord in Dakpem the Supreme Court held that filing of stay which had not been determined yet could not operate as a stay till the matter is determined. My Lord, the date that we agreed on and which was the date set by this court must be respected and the case should continue. We can come on the December 16, 2021 and take the motion.

LAWYER CODJOE: My Lord, my first point is the learned DPP is urging this court to engage in an act which is strictly, prohibited by decided cases which by virtue of Article 129 (3) of the 1992 Constitution is binding on this court.

My Lord, I will state that in Tsatsu Tsikata Vs the Republic, My Lord, it is Criminal Appeals No H2/5/2009. My Lord, it was delivered on December 18, 2008 on page 5, My Lord, I am reading from the 10th line from the bottom and it says, (“……….”). My Lord. I will also refer My Lord, to the case of The Republic Vs Hight Court, Exparte Agbeshie Awusu II No 2 and it is reported in 2003 to 2004 Vol 2 of SCGLR at page 907.

And My Lord, Wood JSC as she then was held that in the case where allegations of bias the Judge should not sit on the motion which seeks his recusal and that if the judge sat on such a case. he will be a judge in his own case and that will be a breach of the rules of natural justice on page 919, “…….. ” My Lord, my learned friend also referred to the fact that when I filed the motion, I fixed date for Thursday the 16th day of December, 2021 and that this was wrongful and that I should have chosen as the date for hearing.

This accusation is without any basis whatsoever. When it comes to giving date, it is the Registrar which gives the date and more importantl even as we are in court today, they have still not been served as she claims, so how will she have argued this application when she had not even been served.

I will add that the conduct of DPP in opposing the application when she has not seen it is most unfortunate because by this binding Matilda Baidoo case, the Awusu case and the Tsatsu Tsikata case this court cannot go ahead with the case until the motion has been adjudicated upon.

In fact, the submission of the learned DPP is unconstitutional as being in breach of Article 129 (3) which makes it mandatory that this High court is bound by the decision of both the Court of Appeal and the Supreme Court on this matter My Lord. that is all

BY COURT: The 1st accused has filed a motion in this court for me to recuse myself from hearing the case and he has also petitioned the Chief Justice to hear the motion. In the circumstances, I will suspend the hearing of the substantive matter fixed for today and adjourn same to the December 16, 2021 to await the decision or the directive of the Chief Justice.
Source: angelonline.com.gh
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