Opuni-Agongo trial: Lawyers punch holes in Judge’s 'conflicting' ruling

Defence counsel in the trial of former COCOBOD Chief Executive and two others have dissected Justice Clemence Honyenuga’s rejection of their clients’ submissions of no case, pointing out several errors in his ruling on May 7.

Indicating the inconsistencies, errors, human rights infraction and unfairness in the judge’s ruling, the lawyers filed separate motions to stop the High Court from hearing the case, albeit, for now.

The trial judge ordered the applicants to join the motions and heard their arguments on May 26.

“The Learned Judge cannot in the same judgement give two different and conflicting reasonings for admissibility of statements and documents to my disadvantage as an accused Person and admit exhibits tendered in identical situations by the Prosecution,” the motion filed on May 14, 2021, by Samuel Codjoe counsel for Dr. Stephen Opuni pointed out.

A total of 27 charges were leveled against Dr. Stephen Opuni and businessman Mr. Seidu Agongo including wilfully causing financial loss to the state and contravention of the Public Procurement Act.

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

The stay of proceedings was filed pending determination of interlocutory appeal also filed on May 14 against the ruling of Justice Honyenuga, who ordered the accused persons to open their case after rejecting their submissions of no case.

Justice Honyenuga, a justice of the Supreme Court sitting with additional responsibility as a High Court judge, in the May 7 ruling, was said to have, “disregarded” 18 documentary evidence that “exonerate” the Accused.

The now rejected exhibits were admitted in evidence in an open court without objection by the prosecution and the court.

“That these documents if considered exonerate me from all the offences for which I am standing trial, unfortunately, the court on its own reversed its earlier order admitting these exhibits in its ruling as being offensive to the hearsay rule.

“I have been advised by counsel and verily believe same to be true that the rejection of these exhibits (exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and 75) are erroneous in that having admitted these exhibits under section 6 of the Evidence Act, 1975 (NRCD 321), the Learned Judge could not in its ruling suo motu reject these same documents,” the motion for the stay of proceedings by Dr. Opuni stated.

“That I have been advised by counsel and verily believe same to be true that the fact that the court erred is further evidenced by the fact that a statement from another farmer, Nana Obeng Akrofi in which he states that Lithovit did not increase his yield that much and which was tendered and admitted as exhibit PP by the prosecution through PW7 during re-examination even though he (PW7) was not the author of the said statement (which statement we did not get the opportunity to cross-examine PW7 on same) (page 26of the proceedings of the 29th day of March 2021) same was not rejected in the ruling of the Learned Judge. What is more, the court relied on this statement in holding that the Prosecution had led sufficient evidence to warrant calling on me to open my defence to the charges on Causing Financial Loss to the State.”

It further stated, “That the Prosecution also tendered my statement namely, exhibits LL, LL1, LL2, LL3, and LL4and that of the 2nd and 3rd accused namely exhibits MM, MM1, MM2 and MM3 through PW7, however, these statements were not rejected in the court’s ruling even though PW7 was not the author of these statements. (Page 7 of the proceedings of the 8thday of February 2024.

“That the learned Judge in dismissing my submission of no case disregarded these documents in his ruling. The Learned Judge would have come to a different conclusion if he had not rejected these exhibits namely 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and 75 and considered all these documents which exonerate me from all the charges.

“That the averments contained in the above paragraphs constitute exceptional circumstances for which my application for stay of proceedings must be granted pending appeal. This is because the Learned Judge cannot in the same judgement give two different and conflicting reasonings for admissibility of statements and documents to my disadvantage as an accused Person and admit exhibits tendered in identical situations by the Prosecution.”

Justice Clemence Honyenuga based his rejection of the 18 documents on Ekow Russel vrs the Republic [2017-2020] 1 SCGLR 469 case, claiming that the exhibits offend against the hearsay rule in section 117 NRCD 323.

The rejected exhibits were tendered through the trial investigator, Detective Chief Inspector Thomas Prempeh Mercer without any objection during cross-examination.

“That I have been advised and verily believe same to be true that the Learned Judge erred in his application of the Ekow Russel vrs the Republic [2017-2020] 1 SCGLR 469 case in that in the Ekow Russel case the Supreme Court overturned the affirmation of the wrongful admission of an exhibit by the trial judge and the Court of Appeal against an accused person, a case which is totally different from our case,” Dr. Opuni argued.

The motion also challenged the position that witness statements obtained by investigators are hearsay evidence and cannot be tendered through the said investigators.

“This is more so when the investigator under cross-examination stated clearly that the authors were extensively interrogated by him.”

“That the exclusion of these exhibits by the judge constitutes a breach of my fundamental right to a fair hearing as enshrined in article 19 of the 1992 constitution a breach which constitutes exceptional circumstances for the grant of this application [for stay of proceeding]”

In moving the motion for the stay of proceedings on Wednesday, May 26, 2021, lawyer Samuel Codjoe argued that the Supreme Court’s ruling in the Ekow Russel case was not applicable to the current situation. He explained that in that case, the superior court held that the witness said he never spoke to Maxwell Antwi, and therefore the statement cannot be tendered through him.

“In our case, the investigator specifically stated that under cross-examination that he interrogates the witnesses before they wrote their statement so it is our submission that the court erred on its own rejected evidence which has been tendered without objection by the same court and not the appellate court like the case of Ekow Russel”.

He pointed out, “This is a criminal trial where the liberty of the accused is at stake.

“It is better for 99 accused people to sail through than one innocent person to be wrongly convicted.”

AGONGO’S MOTION

Counsel for Seidu Agongo and Agricult Ghana Limited, Nutifafa Nutsukpui also argued that the 18 exhibits the court rejected were tendered without objection.

Citing the Edward Nasser and Co. Ltd vrs McVroom 1996-1997 SGLR page 468 and page 477 case to back his argument, he noted that the Supreme Court held that exhibits tendered without any objection signified consent of all parties that the hearsay evidence be so admitted.

“Assuming that the court was right in classifying those exhibits as hearsay and for which reason they were rejected how about similar exhibits tendered by the prosecution, how and why were they preserved and did the applicants not benefit from that benevolence of the court,” he argued.

Mr. Nutsukpui further argued, “It will seem therefore that their fate has already been sealed even before they open their mouth to speak, thereby violating their constitutionally guaranteed rights of fair trial. The authority the court relied on in rejecting those documents according to the court itself may reject evidence at the judgment stage. But in this particular case, the applicants have not even spoken and it was not at the judgment stage, it was at the submission of no case stage.”

PROSECUTION

Chief State Attorney, Mrs. Evelyn Keelson who led the prosecution in opposing the application said the applicants “woefully failed to establish the exceptional circumstances for the grant of stay of proceedings and are just relying on some out of court statement instead of opening their cases to tell their own stories.”

She insisted that the rejected exhibits are hearsay statements, adding, “those statements by themselves even if considered as part of evidence in the trial do not in any way discredit any part of the prosecution’s case. The prosecution at this stage has established the requirement or the duty on us to reach the prima facie standard and there is no part of this court’s ruling which has occasioned a miscarriage of justices which will constitute a successful ground of appeal which is why we made the point that this appeal has no chance of success and that it is just to stall this trial,” Mrs. Keelson added.

Ruling

Justice Clemence Honyenuga noted that the preclusion of certain exhibits are not germane grounds to stay proceedings.

He added that the authorities are clear on an application for stay of proceedings and those circumstances have not been demonstrated for the court to exercise its discretion in favour of the applicants and therefore dismissed the applications.