Godfred Yeboah Dame, the Attorney General and Minister of Justice, has told the Supreme Court that its 3-2 majority decision which prohibited Justice Clemence Jackson Honyenuga from continuing with the case of The Republic versus Stephen Kwabena Opuni, Seidu Agongo and Agricult Ghana Ltd contained fundamental errors that occasioned a miscarriage of justice, and therefore ought to be reviewed.
In a statement of case filed at the Supreme Court registry on 18 August 2021, Dame invites the Supreme Court 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 AG’s statement of case reads.
The Supreme Court is expected to hear the case on Tuesday 12 October 2021.
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, granted an application by Stephen Kwabena Opuni in a 3-2 majority decision which invoked the supervisory jurisdiction of the Supreme Court.
Opuni’s application sought orders in the nature of certiorari to quash parts of the submission of no case ruling of the trial judge which expunged exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72, 73, 74 and 75.
It also sought an order of prohibition to prohibit the trial judge, Clemence Jackson Honyenuga, from further hearing of the case.
Accused/charges
Stephen Kwabena Opuni, a former chief executive officer of Ghana Cocoa Board (COCOBOD), and Seidu Agongo, the managing director of Agricult Ghana Ltd, have been charged by the state and are on trial before the high court (Criminal Division 1) on 27 counts of abetment of crime, namely 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 grounds
The Attorney General, not satisfied with the decision of the Supreme Court and expressing the sentiment that the decision worked injustice against the state, filed a review application before the Supreme Court canvassing four main grounds in support of his application.
First, the Attorney General 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, “… 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, without compelling reasons, change the law on hearsay. This constitutes an exceptional circumstance resulting in a gross miscarriage of justice.”
Last: “… 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 statement of case by stating, “It is our 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.”
Background
After more than two years of trial, the prosecution in the case of the former COCOBOD chief executive Stephen Kwabena Opuni and the businessman Seidu Agongo closed its case against the accused on 29 March 2021.
The two accused have been on trial at an Accra high court since March 2018. They face 27 counts, including causing financial loss.
The prosecution, led by the Director of Public Prosecutions, Yvonne Atakora Obuobisa, called seven witnesses to prove the charges against the two accused. These witnesses were cross-examined extensively by defence lawyers, the interrogation spanning roughly six months.
The prosecution concluded its case on 29 March 2021 at the end of cross-examination of the investigator Chief Inspector Thomas Prempeh Mercer.
Stephen Opuni and Seidu Agongo are on trial for allegedly causing financial loss to the state to the tune of GHC217,370,289.22.
They have been accused of purchase and supply of Lithovit fertiliser which, the state submits, was done in contravention of several laws.
The two pleaded not guilty to all the charges and were admitted by the court to self-recognisance bail in the sum of GHC300,000 each at the beginning of the trial.
According to the facts of the case, on 10 October 2014 Dr Opuni, while he was the CEO of COCOBOD, agreed to permit his conduct to be influenced by an amount of GHC25,000.
His co-accused, Agongo, 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 dispute in the trial is the nature and form of the Lithovit fertiliser that was introduced and supplied to COCOBOD for onward distribution to farmers being different from what was tested by the Cocoa Research Institute of Ghana (CRIG).
Witnesses for the prosecution have all insisted that the product that was tested and certified was a powder, yet records point to the fact that COCOBOD, under the management of Opuni, procured a liquid Lithovit fertiliser. The prosecution contends that this liquid product was never tested by CRIG.
During his evidence in chief, the investigator told the court that investigations by the Financial Forensic Unit showed that in 2013, Agricult Ghana Ltd, acting through its CEO, introduced Lithovit foliar fertiliser in powder form together with its material safety data sheet (MSDS) to COCOBOD. This was the product that was forwarded to CRIG for testing on 15 May 2013, Prempeh Mercer said.
Wilberforce Asare
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