You confer with parties in other cases before fixing dates but impose inconvenient dates on us – Opuni tackles Justice Tandoh

Former Ghana Cocoa Board Chief Executive, Stephen Opuni, has argued in court, through his lawyer, Mr Samuel Codjoe, that Justice Tandoh imposes inconvenient adjournment dates on them but always confers with the parties involved in other cases before fixing returning dates.

Arguing in support of his client's application for Justice Tandoh to recuse himself due to his "real likelihood of bias", Mr Codjoe told the court on Wednesday, 1 November 2023, that the judge -- the third to sit on the six-year-old case -- has done a lot of things "which have given us real concern that there is the real likelihood of bias if he continues with this case"

"When it comes to dates for trial, when it comes to cases which are done by you, Your Lordship engages counsel before giving dates", Mr Codjoe observed, citing an earlier case heard by the judge before theirs to buttress his point.

"Even today, in the case of Eric Frimpong and Charlotte Agyenkwa, Your Lordship, after listening to one party, you granted an adjournment to the 1st of December 2023, to allow one lawyer to come from Swedru."

However, he complained that in their case, the judge sets dates without conferring with the parties for convenience, thus, causing conflicts with their other court engagements such as the case of the Republic v. Ernest Thompson, in which they represent one of the parties.

Mr Codjoe said "we have set times which we have gone by the past 3 years", but "Your Lord has refused to abide by these set times with the result that cases which had been fixed based on these times, including criminal cases like this, more specifically, the Republic v. Ernest Thompson, which is held by your senior colleague Justice Kwoffie", are clashing because he has given "40 continuous hearing dates without any references whatsoever and, or howsoever, and thereby made it impossible for the applicant to have his lawyer present on those days where the dates conflict, and specifically on Thursdays at noon and also on Fridays, from 9 am, to be present before you".

"This is an act of bias", Mr Codjoe insisted.

"There is a further bias if one takes cognizance of the fact that, in this court, apart from our case, dates have never been given as you have done".

He said the court, by not following the prior agreed times when cases are to end, "makes it impossible for counsel to be present".

"Indeed, at the last adjourned date, counsel had to truncate the trial".

He continued: "Not only are we denied the opportunity of having fair times to plan and prepare", but also the "applicant is being denied the opportunity of properly being represented".

The defence team also raised concerns about the judge's order to the clerk to go and ask his fellow judge, Justice Kwoffie, "to stand down" a case that conflicted with his time.

In their counter-argument, however, the prosecution team opposed the application and accused the defence team of attempting to delay the case.

He said they also failed to substantiate their claim of bias.

"My Lord, all that the applicant complains about is the fact that my Lord, as enabled by the laws of this land, has exercised reasonable control over the proceedings in his court by giving us dates for a day-to-day trial excluding Fridays and the last Wednesday of every month. This case, being a part, has been pending since 2018. There's nothing wrong within the law for a court to seek to expedite trial".

"Rather strangely, any reasonable person will say that is it so unfair for an accused person, who is innocent until proven guilty, to be subjected to a six-year trial with all its inconveniences, not to talk of a witness who has remained in the witness box for over a year".

The prosecution said adjournments are "at the discretion of the judge, and the discretion has been exercised".

The State argued that no evidence or proof has been provided by the defence team "to show that you are biased toward the applicant in any way".

"The fact that the applicant and counsel are uncomfortable with how the court is managing its affairs within the law, is not proof of bias", adding, "mere allegations of bias do not also constitute bias".

Concerning the adjournment dates, the State argued that the earlier agreed "dates were before a court differently constituted", noting that "even that discretion was exercised by the panel within the mandate of the law, which is that it is the court that has control over the proceedings and not the parties".

"My Lord, therefore, I submit that, this court and for that matter, my Lord, acted within the law and that being the case, it cannot amount to real likelihood of bias which will prohibit my Lord from further conducting this case within the powers given to him by the law."

"This application is not only frivolous; it is a calculated attempt to stall this trial, an act by counsel and the applicant which the Supreme Court had cause to complain [about] in the same case of the Republic v. exparte Stephen Opuni, civil motion number JS 87/2022".

After hearing both parties, Justice Tandoh said: "I've examined the affidavit and oral submission urging me to discontinue the case on the basis of real likelihood of bias. Indeed, to disqualify a judge has to be on firm grounds and has to be convincing enough. With the reasons given, mere allegations will not suffice".

"Asking counsel to stand up cannot be bias. I have conducted this case without fear or favour. I refrain from commenting, except to say that, the court has, at all times, acted fairly to all parties", said Justice Tandoh.

He said assigned dates are given on case by case basis.

"On this case, which is more than six years in the court, it will be unfair to hold the accused persons, which pertains to school exeat life, to seek for permission to travel. The case has taken a toll on their time. The dates taken for this trial must not be interpreted as a real likelihood of bias", he stressed.