Opuni-Agongo trial: Your appeal has no chance of success – Justice Honyenuga predicts

The trial judge in the case involving former COCOBOD boss, Dr. Stephen Opuni and businessman Seidu Agongo has refused to stay proceedings at the High Court, after suggesting that an application before the Court of Appeal will fail.

Justice Clemence Honyenuga, who was recently appointed to the Supreme Court sitting as an additional High Court judge on Thursday, June 18, 2020, appeared to have taken the stay of proceeding pending interlocutory injunction very personal since the issue at hand bothers on a controversial speech he gave at a durbar.

Justice Honyenuga who doubles as the Paramount Chief of the Nyagbo Traditional Area with the stool name Torgbui Ashui Nyagasi V, told President Akufo-Addo prior to his promotion to the Apex Court, in February, “We wish to congratulate you for the excellent manner you are governing this dear country of ours, it is our hope that with your vision and the gains made in your first term, Ghanaians may consider giving you another four years.”

But lawyer Samuel Cudjoe, the lead counsel for Dr. Opuni asking the judge to recuse himself, told the court in March, “Your statement that Ghanaians should give the government another victory in 2020 qualifies for a bias [comment].”

The trial judge who has been accused of being politically biased whilst sitting on what the accused belief is a politically motivated case refused to recuse himself as he dismissed the motion asking him to step aside.

Lawyer Samuel Cudjoe subsequently went to the Appeal’s Court to get the Chief Justice to remove Justice Honyenuga from the case and reassign same to another because, he said, the trial judge has endorsed the re-election bid of President Akufo-Addo.

Dr. Opuni’s counsel therefore filed a motion praying the High Court to stay proceedings pending determination of the interlocutory appeal filed on 18th March 2020.

The application was to help protect the constitutional right of the accused to fair trial, Mr. Cudjoe argued, adding it would also avoid a breach of the rules of natural justice citing the Republic v High Court, Denu; Ex parte Agbesi Awusu II (No 2) (Nyonyo Agboada (Sri III) (interested party) [2003-2004]. The then Justice Georgina Wood ruled that since the allegations against the judge were grave, the judge should have declined jurisdiction because sitting on the matter will affect natural justice.

“The exceptional ground for the stay of proceedings is premised on the fact that your lordship determines the issue as to whether, your lordship should sit on the matter, and it is our position that this constitutes an exceptional circumstance which should result in a stay of proceedings.

“This is because, what constitutes an exceptional circumstance will depend on a case by case situation, and so far as our issue of natural justice has been raised, which is also a constitutional issue as contained in the constitution, with respect to the constitutional right to fair trial, it is our submission that your lordship should stay proceedings as can be seen in our first ground of appeal, you raised the issue that your lordship acted as a judge in your own case.”

Counsel for the second and third accused persons, Nutifafa Nutsukpui who was holding brief for Benson Nutsukpui associated himself with the submissions of Mr. Cudjoe.

But Principal State Attorney, Stella Appiah objected to the stay of proceedings, noting that the applicant was not able to show to the court any exceptional circumstance for the court to stay proceedings.

She denied that the case is a political trial, adding, “counsel should have shown real evidence that this is indeed a political trial”.

Ruling

Justice Clemence Honyenuga in his ruling pointed out that the case pending before the Appeals Court is in reference to a speech “I made in my capacity as the paramount chief of Nyagbo Traditional Area”.

The emotionally charged judge accused the applicant of deciding to “pick and choose” from his speech.

Faulting the application, Justice Honyenuga said the applicant has to oblige to obey or comply with provisions of statutes, “by statues, I mean that the applicant ought to have complied with the provisions of the Courts Act 1993 Act 459 as amended”.

He noted a judge can only be removed from the case by the Chief Justice.

“Instead of the applicant to petition the chief justice and for reason best known to him, he chose to file a motion before me and the inherent jurisdiction of the court where statute has provided a procedure or a remedy.”

He further stated that the grounds for the stay of proceedings, which is at the discretion of the court has to be exercised in a “very special exceptional circumstances”, and cited some cases to back it.

In his opinion, the applicant through his counsel did not make enough argument with regards to Act 459 as amended.

He said the Republic v High Court, Denu; Ex parte Agbesi Awusu II (No 2) (Nyonyo Agboada (Sri III) (interested party) [2003-2004] the applicant cited was “distinguishable, and grossly inapplicable to the facts and the law in this case on trial”.

No chance of success

Justice Honyenuga, therefore, ruled, “The grounds of appeal have no chance of success on appeal after perusing them and on hearing the counsel for the applicant.

“It is my candid opinion, the application by the applicant has not demonstrated any special exceptional circumstances to enable me to exercise my discretion in his favour, consequently, the application is hereby dismissed.”

Where to go

In an unrelated development, the trial judge adjourned sitting for the counsel for the second and third accused to continue his cross-examination on June 25. But lawyer Nutifafa Nutsukpui drew his attention that he has another case booked on the date in a different court.

But Justice Honyenuga retorted, and directed him to “choose where you want to go”.

Obviously unhappy with the judge’s comment, N told the judge he was unable to tell his client that he cannot represent him on a date that has been predetermined.

The judge however conceded and adjourned the case to June 26.

Dr. Opuni is on trial, together with a businessman, Seidu Agongo, for allegedly causing financial loss of more than GH¢271 million to the state in a series of fertiliser deals.