A seven-member Supreme Court review panel, presided over by Justice Jones Victor Mawulorm Dotse, has set 26 October 2021 as the date to deliver its ruling on the review application by the Attorney General on a 3-2 majority decision which prohibited Justice Clemence Jackson Honyenuga from continuing to preside in the case of The Republic versus Stephen Kwabena Opuni, Seidu Agongo and Agricult Ghana Ltd.
The other members of the review panel are Justices Gabriel Pwamang, Agnes Dordzi, Avril Lovelace-Johnson, Amadu Tanko, Professor Nii Ashie Kotey and Gertrude Torkornoo. The two judges who have been added to the ordinary bench which first adjudicated the matter are Justices Nii Ashie Kotey and Gertrude Torkornoo.
The Attorney General contends that the ruling by the Supreme Court contained fundamental errors which occasioned a miscarriage of justice and ought, therefore, to be reviewed.
In his statement of case filed at the Supreme Court Registry on 18 August 2021, the Attorney General invites the court’s review panel to “make a deep introspection into the soundness of the decision of the court dated 28 July 2021 and correct the errors contained therein”.
“The court ought to be guided by the simple question whether the impugned decision, on account of the multiple legal flaws, leads to a miscarriage of justice in the case pending at the high court,” the statement of case says.
28 July decision
On 28 July 2021, a five-member Supreme Court panel, presided over by Justice Jones Dotse and made up of Justices Gabriel Pwamang, Agnes Dordzie, Avril Lovelace-Johnson and Issifu Omoro Tanko Amadu, declared a 3-2 majority decision in favour of an application by Stephen Kwabena Opuni.
This granted an application by Opuni invoking the supervisory jurisdiction of the Supreme Court, and seeking orders in the nature of certiorari to quash parts of the submission of the no case ruling by the trial judge, which expunged exhibits 58 through 69 and 71 to 75.
It also sought an order of prohibition to prohibit the trial judge (Justice Honyenuga) from hearing the case any further.
Accused/charges
Opuni, a former chief executive officer of Ghana Cocoa Board (COCOBOD), has been charged by the state together with Seidu Agongo, the managing director of Agricult Ghana Ltd.
They are on trial before the high court (Criminal Division 1) on 27 counts of abetment of crime.
The misdemeanours include defrauding by false pretence, wilfully causing financial loss to the state, contravention of the Public Procurement Act and corruption by a public officer.
AG’s argument
In court today (12 October 2021), presenting his case within the ten-minute time frame given him by the Supreme Court, the Attorney General canvassed four main grounds for his application.
First, he contends that “the decision of the ordinary bench of this Supreme Court dated 28 July 2021 contained fundamental and grave errors which have manifestly resulted in a substantial miscarriage of justice, as it effectively ignored the time-honoured fundamental and mandatory preconditions for an invocation of the Supreme Court’s supervisory jurisdiction for an order of certiorari to quash an alleged error contained in a decision of a Superior Court”.
Second, the Attorney General argues that “a decision which erroneously departs from recognised principles regarding the invocation of this Honourable Court’s supervisory jurisdiction is bad in law, works manifest injustice and constitutes an exceptional circumstance warranting a review by the court”.
Third: “That the ordinary bench committed a fundamental error, resulting in a substantial miscarriage of justice, when it wrongly construed Sections 118 and 126 of the Evidence Act 1975 (NRCD 323) on the law on hearsay evidence. The effect of the erroneous construction of Sections 118 and 126 of the Evidence Act was to change, without compelling reasons, the law on hearsay. This constitutes an exceptional circumstance, resulting in a gross miscarriage of justice,” said Justice Lovelace.
In conclusion, the AGs statement argues: “The ordinary bench committed a fundamental error in prohibiting the trial judge, who rightly performed his duty as required by law to evaluate the evidence adduced by the prosecution in order to make a determination whether a prima facie case had been made against the respondent. This error has occasioned a substantial miscarriage of justice.”
Concluding argument
The Attorney General concludes his argument by declaring that it is his “humble submission that a careful application of relevant principles regarding the invocation of both the supervisory and review jurisdictions of the Court will undoubtedly result in a setting aside of the decision complained of”.
“To preserve same will be a bad and dangerous precedent for Ghana law,” he says.
Defence team’s argument
The defence lawyer Samuel Codjoe, when he took his turn to address the court, said that the application for review does not meet the threshold of the court and the applicants are just rehashing arguments made in the previous application which was granted.
He argued that the trial judge was clearly biased, as he did not give the accused person the opportunity to open his case, but instead predetermined the case in his submission of case to answer ruling.
He concluded his oral argument by stating that the Supreme Court was right to prohibit the trial judge from continuing with the high court trial of his client.
Background
After more than two years of trial, the prosecution in the case of former COCOBOD chief executive officer Stephen Kwabena Opuni and the businessman Seidu Agongo closed its case against the two accused on 29 March 2021.
The accused have been on trial at an Accra high court since March 2018. They are charged with 27 counts, including causing financial loss.
The prosecution, led by the Director of Public Prosecutions (DPP), Yvonne Atakora Obuobisa, called seven witnesses to prove the charges against the accused persons. They were also extensively cross-examined by defence lawyers, over a duration of roughly six months in some instances.
At the end of the cross-examination of the investigator Chief Inspector Thomas Prempeh Mercer, on 29 March this year, the prosecution ended its case.
Opuni and Agongo, the managing director of Agricult Ghana Ltd, are on trial for allegedly causing financial loss to the state to the tune of GHC217,370,289.22.
They are accused of purchasing and supplying Lithovit fertiliser, which the state submitted was done in contravention of several laws.
The two men pleaded not guilty to all the charges and at the beginning of the trial were admitted by the court to self-recognisance bail in the sum of GHC300,000 each.
According to the facts of the case, on 10 October 2014, while Dr Opuni was the chief executive of COCOBOD, he agreed to permit his conduct to be influenced by an amount of GHC25,000.
Agongo, his co-accused, is also accused of “endeavouring to influence the conduct of Stephen Kwabena Opuni in the performance of his duties as the CEO of COCOBOD by offering him an amount of GHC25,000” on 10 October 2014.
One of the main matters in the trial is the nature and form of the Lithovit fertiliser that was introduced and supplied to COCOBOD for distribution to farmers, being different from what was tested by the Cocoa Research Institute of Ghana (CRIG).
While the prosecution witnesses have all insisted that the product that was tested and certified was a powder, there are records showing that under the management of Dr Opuni, COCOBOD procured Lithovit liquid fertiliser that was never tested by CRIG, according to the prosecution.
During his evidence in chief, the investigator told the court that investigations by the FFU showed that in 2013, Agricult Ghana Ltd, through its CEO, introduced Lithovit foliar fertiliser in powdered form, together with its material safety data sheet (MSDS), to COCOBOD. On 15 May 2013, this was forwarded to CRIG for testing.
Wilberforce Asare
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