Removing retired Justice Honyenuga from Opuni’s trial in the 'interest of justice and fairness' – AG

The Attorney General’s Department says the request to the Chief Justice to stop retired Justice Clemence Jackson Honyenuga from sitting on the case of the former COCOBOD boss and two others is to ensure that justice and fairness prevail in the ongoing trial.

Interestingly, this request comes after the Attorney General, who is prosecuting the case, has on several occasions put up a spirited defence and justification for Justice Honyenuga, who retired on September 4, 2022, to hear the case to its logical conclusion.

Retired Justice Clemence Honyenuga has been presiding over the trial of former COCOBOD Chief Executive, Dr. Stephen Opuni, and businessman Seidu Agongo, as well as Agricult Ghana Limited, who are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.

The first accused has on a number of occasions applied to the High Court, even at the Court of Appeal through to the Supreme Court, to get Justice Honyenuga off the case, unsuccessfully.

The retired judge, who is sitting with additional responsibility as a High Court judge, has been accused of being hostile, bias and showing hatred towards the accused.

The judge once described Dr. Opuni as a liar, someone with ocular problem (visual impairment) and hallucinate in court, when the accused raised several issues that he believes expose the judge’s bias.

But on all occasions, representatives of the Attorney General have opposed the applications, grounding their opposition on the fact that the trial judge has been fair in discharging his duties.

However, as the judge’s six-month extension nears expiration, the Attorney General believes it is time for him to take an early bow.

"My lord, considering the time left, it is practically impossible for this matter to be concluded. In the circumstances, we respectfully pray that my lord refers this matter to the Chief Justice to reconstitute.

"This submission is being made in the interest of justice and fairness. This is our humble submission," Deputy Attorney General and Minister of Justice, Alfred Tuah-Yeboah told Justice Honyenuga on February 23, when the case was called.

"When he was given the six months, at the time he was given the six months, he could have finished the matter, but legal issues are legal issues; the accused persons also decided to file an application before him, Court of Appeals, and the Supreme Court, and they have the right to do so. So you cannot stop them from filing applications at the Supreme Court or the Court of Appeals.

"Fortunately or unfortunately, this is where we are, and so far as we are operating by this Constitution, you cannot curtail the right of an accused person to file an application or even go to the Supreme Court for any other matter to be heard. So it is not as if we knew that he was not going to complete this matter. Per the six-month, if there had not been those intervening factors, we could have finished," he told journalists outside the courtroom. 

The Attorney General and Minister of Justice, Godfred Yeboah Dame, himself recently complained about the "failure" of the judge to conclude the case, which he said was "unacceptable."

But prior to the oral application by the prosecution, the court on Thursday had reconvened to hear another motion asking the judge to recuse himself.

This time, the application was filed by counsel for the second and third accused persons, Benson Nutsukpui, who is a former President of the Ghana Bar Association.

SHAM OF A TRIAL

The motion was filed on Friday, February 17, 2023.

A copy of the affidavit sighted by Newstitbits.com made copious reference to the May 7 ruling on the submission of no case, in which Justice Honyenuga in his closet unilaterally and "curiously rejected" as many as 18 evidential documents which the accused persons said exonerated them of any wrongdoing.

"That by rejecting the exculpatory evidence and marking them as rejects, thus ensuring that we can never rely on the said exhibits at the trial while at the same time calling on us to open our defence in respect of the very same matters means that this Court has already sealed our fate and only wants us to go through a sham of a trial when it has already predetermined our guilt even before we are heard, especially when similar evidence tendered by the prosecution was spared the wrath of this Court."

Justice Honyenuga was also accused of being selective in applying the laws.

According to Seidu Agongo, who sworn to the affidavit, the judge "unfairly, capriciously, discriminatorily, and prejudicially" applied the hearsay rules "only against the accused persons."

He cited the case of two farmers whose statements were taken and tendered in evidence in a similar manner but by two different parties. He noted that the farmer whose statement was tendered by the accused was rejected, but the same court accepted the one tendered by the prosecution and used same in his ruling against the accused.

ACADEMIC EXERCISE

"That I am advised by Counsel and I verily believe the same to be true that a fair minded trial Court in a criminal matter must be interested in evidence that enures to the benefit of an accused person and not seek to capriciously put such evidence beyond the use of an accused as this Court had done in rejecting and marking as rejects all these documents to the effect that we cannot rely on them in our defence at the trial."

He is therefore convinced that no matter the evidence that would be adduced, "our fates are sealed, and any further trial proceedings before the same judge will just be an academic exercise".

Justice Honyenuga was once again accused of "clearly being influenced by extrajudicial considerations" in the matter before him.

The businessman also cited a recent event in court to buttress his reason to get the judge to back off.

On February 14, 2023 when the case was called, Mr. Agongo was not in court due to ill health.

The judge had previously ordered the Registrar of the court to go to the 37 Military Hospital where the accused was on admission to ascertain the veracity of his sickness.

"As I indicated, I have limited time to conclude this matter but such medical excuses are delaying the trial of this case. I must state emphatically that this court has the discretion to accept or reject medical evidence and I must also add that the second accused is on bail and he is still subject to this court’s discretion. And I must also add that this court has enormous powers to deal with any situation in this court," the judge said in part before adjourning the case.

But he said comments made by the judge were terrifying and suggested that the judge did not trust him.

"That I was simply terrified to have read the above sentiments expressed and the threat issued by the said Justice C.J. Honyenuga (JSC), who obviously did not care whether or not I was unwell because he must by all means conclude this matter and considers my ill health as an impediment to his goal," Agongo’s affidavit read.

"…his present threats to me would lead any independent observer, unfortunately, to the only irresistible conclusion that the said Justice C.J. Honyenuga (JSC) cannot be an arbiter in this matter; and must, respectfully, recuse himself in the interest of justice."

When the motion was brought to the attention of the court on February 20, the judge admitted that issues raised in the motion were very serious.

"Upon glancing through counsel’s application and in view of the very serious matters raised, I am adjourning this case to Thursday 10:00am. I would have abridged the time to Wednesday the 22nd to hear the motion but I am aware that the Supreme Court will give a ruling in the review filed by the first accused."

However, following the application by the prosecution for the judge to refer the case to the Chief Justice to appoint a new judge to take over the case, the court did not hear the recusal application.

The case has been adjourned to Wednesday, March 1 for continuation.

Retired Justice Honyenuga said he was also adjourning the case to hear the "full import" of a 7:0 unanimous verdict by the Supreme Court on a certiorari and perpetual injunction filed by the first accused.

Find excerpts of Agongo’s affidavit below

21. That I am advised by Counsel and I verily believe the same to be true that a fair minded trial Court in a criminal matter must be interested in evidence that enures to the benefit of an accused person and not seek to capriciously put such evidence beyond the use of an accused as this Court had done in rejecting and marking as rejects all these documents to the effect that we cannot rely on them in our defence at the trial.

22.          That by rejecting the exculpatory evidence and marking them as rejects thus ensuring that we can never rely on the said exhibits at the trial while at the same time calling on us to open our defence in respect of the very same matters means that this Court has already sealed our fate and only wants us to go through a sham of a trial when it has already predetermined our guilt even before we are heard especially when similar evidence tendered by the Prosecution was spared the wrath of this Court.

23.          That I am advised by Counsel and I verily believe the same to be true that when this Court, presided over by Justice C.J. Honyenuga (JSC), suo motu decided to reject the exhibits, all of which had been admitted at the trial with the agreement of the Prosecution in not objecting to their being tendered, the said Court ought to have given the Accused Persons, including the Applicants herein, a hearing on the matter prior to making a decision which the said Judge failed to do.

24.          That for the trial Court on its own to exclude all the exculpatory evidence without giving us a hearing is clearly an assault our constitutional rights to fair trial and against the rules of natural justice and, as a result, disqualifies the said trial Judge from continuing with the further conduct of the proceedings in this matter.

25.          That while this Court did not explain what it meant by saying in its Ruling that because the matter is a "sensitive" one we should open our defence, I am advised by Counsel and I verily believe the same to be true that the sensitivity of a criminal case is not a legally recognized ground on which to call upon an accused person to open a defence in a criminal matter; and to that extent the trial Judge has shown that he is clearly being influenced by extrajudicial considerations in this matter.

26.          That apart from having unlawfully excluded those exhibits as this Court did; this Court in its Ruling of 7th May, 2021, also made sweeping definite final and conclusive findings against us, the Applicants, at the stage of submission of no case to answer as though the said Ruling was the final judgment of this Court after full trial, when the said Court was yet to hear us; demonstrably leaving no room in this Court’s mind for the statutory reasonable doubt that we are required to raise as to our guilt on the charges laid against us.

27.          That at page 40 of the Ruling (Exhibit "SA 2"), for instance, this Court states "…of course, this cannot be the Lithovit Fertilizer the 2nd and 3rd accused [Applicants herein] knew that what they supplied to COCOBOD cannot be Lithovit fertiIizer. "

28.          That at page 42 of Exhibit "SA 2″, the trial Judge stated further " … In the instant case, the 2nd and 3rd accused knew that the representation they made and supplied COCOBOD with 700,000 litres, and 1,000,000 litres of Lithovit were (sic) false because they knew that the liquid substance they had supplied to COCOBOD were (sic) not Lithovit fertilizers. "

29.          That again the trial Judge, Justice C.J. Honyenuga (JSC), stated at page 43 to 44 of the Ruling that " … In the instant case, the 2nd and 3rd accused knew that the liquid substances they supplied to COCOBOD were false and they knew that they were not the Lithovit Foliar fertilizer from Germany. PW7’s testimony supports the assertion that the liquid substance was prepared from their (accused’s) own warehouse with(sic) any scientific formular. From the GSA and UG (1) it is clear that this liquid substance was intentionally prepared using insignificant portions of the genuine Lithovit Fertilizer from Germany, (urea was then added to it to pass off as Lithovit fertilizer from Germany. "

30.          That at page 45 of Exhibit "SA 2" the said trial Judge continued thus ….. Is a result of the representations made by the 2nd and 3rd accused that they had supplied COCOBOD with Lithovit Foliar Fertilizer from Germany tested and approved by CRIG and COCOBOD, both the Audit, Inspectorate and Finance Departments believed that they were paying for genuine Lithovit fertilizer from Germany but did not know that they were paying for a liquid substance that could not be described as Lithovit Foliar fertilizer."

31.          That on page 54 of the Ruling, Justice C.J. Honyenuga (JSC) stated further that "… All these were perpetuated to facilitate the 2nd and 3rd accused’s [Applicants herein] business and defraud COCOBOD. Indeed these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused [Applicants herein] to perpetrate fraud on COCOBOD by supplying a different product from what was tested and approved… However, the 1st accused although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused [Applicants herein] to defraud COCOBOD… there was no way COCOBOD would have been defrauded of such huge amounts. "

32.          That at page 55 of the Ruling, Justice C.J. Honyenuga (JSC) continued his assault on the Applicants herein by stating "… The 1st accused made things easier for the 2nd, and 3rd accused to succeed in their enterprise of defrauding."

33.          That the said trial Judge continued his onslaught at page 59 of the Ruling thus: "… It is in evidence that these colossal amounts were paid through the 1st accused as the CEO of COCOBOD to the 2nd and 3rd accused [Applicants] who supplied Lithovit liquid fertilizer which was not tested nor approved by COCOBOD and which scientific reports which PW5 tendered as exhibit H from the Ghana Standard Authority and University of Ghana Chemistry Department that the Foliar liquid fertilizer is worthless. It is a fact that the state is the owner of these monies paid out and her coffers were depleted without receiving any value for its money. This indeed constitutes financial loss to the state… The actions of the 1st, 2nd and 3rd accused were willful."

34.          That on page 60 of the Ruling, Justice C.J. Honyenuga (JSC) continued thus "…it is safe to conclude that that the 1st, 2nd and 3rd accused intentionally engaged in a conduct which injured the state financially … It was an adulterated product and therefore could not have been tested and approved product from Germany. It was an intentional conduct to merit the charge."

35.          That at page 64 of the Ruling, Justice C.J. Honyenuga (JSC) stated "In the instant case the prosecution had proved that the accused persons acted together and the purpose was to cause financial loss to the state as earlier proved under the substantive offence. "

36.          That t am convinced beyond any doubts that with the above categorical and determinative statements made by Justice C.J. Honyenuga (JSC), even before we could be heard, after he found ways of putting very vital evidence that would have assisted us to raise any doubts as to our guilt beyond our use at the trial by marking them as rejects at the submission of no case stage; we (Applicants) stand no chance before him no matter what manner of evidence we adduce before the said Court as, for all practical purposes, our fates are sealed and any further trial proceedings before the same judge will just be an academic exercise.

37. That by the above statements the court has again deprived us of our constitutional rights to be condemned only after the Court has heard both sides of the matter

38.          That these deliberate hurdles placed in the way of the Accused Persons in this matter notwithstanding the 1st Accused (not a party to this Application) eventually opened his defence on 2nd December,2021, by calling DW1, Mr. Charles Tetteh Dodoo, and has so far called six (6) other witnesses; Dw7 currently testifying.

39.          That midway through the evidence of the DW7, Justice C.J. Honyenuga (JSC), on the 16th of December, 2021, ordered all accused persons, including the Applicants herein, to file Witness Statements together with any documents the Accused might rely on at the trial; with a further order that each witness, together with the Accused Persons, including the Applicants, shall have a day to give their evidence-in-chief and the cross-examination of each witness shall not exceed two sitting days.

40.          That the trial Judge, Justice C.J. Honyenuga (JSC), imposed these new restrictions on the Applicants in the conduct of our defence even though no such restrictions were imposed on the Prosecution when it conducted its case.

4t.   That when the 1st Accused after the 16th December,2021, Ruling/Orders brought an Application in the Supreme Court for Certiorari and Prohibition, Justice C.J. Honyenuga (JSC), quite extraordinarily, personally swore to and filed an Affidavit in Opposition denouncing the 1st Accused and the allegations made in his said Application before the Supreme Court; thereby clearly descending into the arena of conflict or taking issues personally with the 1st Accused, with whom the Applicants herein have been jointly charged with conspiracy.

42.          That I have always attended Court on this matter until the 31st of January, 2023, when I was absent on account of ill health. I had attended the Korle Bu Teaching Hospital for medical care; and the Court adjourned the matter to 2nd February, 2023, for me to furnish proof of having sought such medical attention.

43.          That on the 31st of January, 2023, I was given Three (3) days excused duty and scheduled to attend a review on 7th February, 2023; and as such I was unable to attend Court on the 2nd of February, 2023, but my lawyers furnished the Court with the Medical Note I had been given from the Korle Bu Teaching Hospital on 31st January,2023; upon which the court adjourned the case to 6th February, 2023, for continuation.

44.          That on 6th February,2023, I attended Court though I was still seriously unwell on the insistence of my lawyers in order that we are not accused of delaying the proceedings; and at the end of the day’s proceedings the matter was adjourned to 8″‘February, 2023, for continuation.

45.          That on 7th February, 2023, I duly attended my medical review session as scheduled but was still unwell and had to be taken to the 37 Military Hospital at night on the said 7th of February,2023, where I was admitted until 11th February, when I was discharged, and therefore could not attend Court on the 8th of February, 2023; I attach herewith evidence of my attendance at the 37 Military Hospital marked as Exhibit (SA 3).

46.          That I am informed by Counsel and I verily believe the same to be true that on the said 8th of February, 2023, Justice C.J. Honyenuga (JSC) expressed his grave displeasure at having to adjourn the matter due to my absence from Court on account of being on admission at the Hospital and "with a heavy heart" adjourned the matter to 13th February, 2023, while ordering the Registrar of the Court to verify from the 37 Military Hospital whether I was indeed admitted there and for my lawyers also to furnish the Court with proof of my said admission on the l3th of February,2023.

41.          That I am informed by Counsel and I verily believe the same to be true that on 13th February,2023, though the Court was furnished with the Medical Advisory Certificate given to me from the 37 Military Hospital upon my discharge on 11th February, 2023, which confirmed the dates of my admission at the said Hospital and gave me a week’s excused duty, Justice C.J. Honyenuga (JSC) adjourned the matter to 14th February, 2023, in order to receive the report of the Registrar as to whether or not I had in truth been admitted at the said Hospital; a clear indication that the said judge disbelieved the fact of my ill health and or admission.

48.          That I am again informed by Counsel and I verily believe the same to be true that on the 14th of February, 2023, Justice C.J. Honyenuga (JSC) was incensed that I was absent and given a week’s excused duty and unable to hide his indignation, delivered himself in the following words or in words of similar nature: "At the last adjourned date, I expressed my difficulty in having to adjourn the case because of the absence of the 2nd accused on medical excuse duty. As I indicated, I have limited time to conclude this matter but such medical excuses are delaying the trial of this case. I must state emphatically that this court has discretion to accept or reject medical evidence and I must add that the 2nd accused is on bail and he is still subject to this court’s discretion. And I must also add that this court has enormous powers to deal with any situation in this court."

49.          That I am also informed by Counsel and I verily believe the same to be true that the Registrar’s report to the Court on the said 14th of February,2023, was to the effect that the Adjutant of the 37 Military Hospital, who was the appropriate person to have responded to the Registrar’s query, was otherwise engaged at the time the Registrar visited the said Hospital and as a result the Registrar was asked to wait till 11:00am when he would have been attended to, but Justice C.J. Honyenuga (JSC) would seem to have taken this report to mean disrespect towards him and stated thus: "At the last adjourned date, I also indicated that I was giving the 2nd accused the benefit of the doubt for his absence from court. I will, again, give him the final benefit of the doubt, especially when the effort of the Registrar who was to verify from the 37 Military Hospital whether or not the 2nd accused was on admission, ended in a fiasco."

50.          That I was simply terrified to have read the above sentiments expressed and the threat issued by the said Justice C.J. Honyenuga (JSC), who obviously did not care whether or not I was unwell because he must by all means conclude this matter and considers my ill health as an impediment to his goal.

51 That the said trial Judge’s conduct in unlawfully excluding vital evidence critical to our defence; setting up a personal battle with the 1st Accused, with whom we are jointly charged; sending the Registrar of the Court to the Hospital to confirm whether I had been on admission despite documentation from the Hospital to that effect; and his present threats to me would lead any independent observer, unfortunately, to the only irresistible conclusion that the said Justice C.J. Honyenuga (JSC) cannot be an arbiter in this matter; and must, respectfully, recuse himself in the interest of justice.