An Accra High Court presided over by Justice C.Y. Hornyenuga on Monday, 18 March 2019 dismissed an application for stay of proceedings filed by the counsel for businessman Seidu Agongo, who is the second accused person being prosecuted by the state, together with a former CEO of Ghana Cocoa Board (COCOBOD), Dr Stephen Kwabena Opuni, in the ongoing fertiliser case in which they face some 27 charges.
Mr Agongo’s counsel, Mr Benson Nutsukpui, in establishing the grounds for his appeal for a stay of proceedings, said the crux of the case currently being heard by the court was whether the testing authority at COCOBOD, which is the Cocoa Research Institute of Ghana (CRIG), was aware of the fertiliser at the heart of the case (Lithovit Liquid Fertiliser).
He presented four exceptional circumstances or reasons for which, in his estimation, the court should grant his request to stay the proceedings, an application he filed on his client’s behalf on 1 March 2019, pending an appeal of the court’s 25 February 2019 ruling, which blocked Mr Nutsukpui’s attempt to tender a CRIG investigative committee report through the state’s second prosecution witness, Dr Alfred Arthur.
Firstly, Mr Nutsukpui argued that the ruling, by its nature, deprived his clients the constitutional right to fair trial, citing Article 19 of the 1992 Constitution. He added that should the ruling be upheld, his clients will be denied the right to fair trial and to be presumed innocent until otherwise proven. In his estimation, this would be a factual miscarriage of justice, a reason potent enough to warrant a stay of proceedings to test the ruling.
His second reason was that the court did not follow the binding decision of Yeboah v Amofa as reported in 1997-98 1 Ghana Law Report (1GLR), page 674. Mr Nutsukpui explained that per the determination of the Yeboah v Amofa case, the binding authority does not include authorship, which is one of the reasons given by Justice C.Y. Hornyenuga in his ruling.
Mr Nutsukpui’s third exceptional circumstance was that the ruling denied his clients the right to make a submission of no case. He iterated that it would be an automatic substantial miscarriage of justice should that right be prejudiced. He cited the case of Zotorvie v the Republic, 1984-86 1 GLR page 1, to buttress his point.
His final exceptional circumstance was that the court, in its ruling, gave the explanation that the court did not set up the CRIG Committee to investigate the missing records. In his submission, Mr Nutsukpui noted that the court was influenced by the fact that it did not set up the committee, adding that, that, per se, does not take away the character of the document as an official document.
The counsel for the first accused (Dr Stephen Kwabena Opuni), Mr Sam Cudjoe, associated himself with the arguments espoused by Mr Nutsukpui.
However, a senior state attorney, Stella Ohene Appiah, who represented the state in the matter on Monday, 18 March 2019, opposed the granting of the application. She mentioned that the court’s ruling of 25 February 2019 was proper and law-based. She described the application for the stay of proceedings by Mr Agongo’s lawyers as a calculated attempt to delay the proceedings and waste the court’s time.
After listening to the arguments of both sides and having perused the documents before him, Justice Hornyenuga said he did not see any special exceptional ground to grant the application.
Consequently, he dismissed the application and adjourned the hearing to 27 March 2019.
The presiding judge, in his ruling, also said he never thought that his ruling on 25 February was made to deny the accused persons their right to a submission of no case.
Justice Hornyenuga added that the grant of the application to stay proceedings was a discretion of the court, and a notice of appeal was not enough grounds to stay the proceedings. He added that staying the proceedings would only occasion further delays of the trial as the second prosecution witness has been in the box for almost five months.