The newly assigned judge to the case in which the former Chief Executive of Ghana Cocoa Board (COCOBOD), Dr. Stephen Opuni, is standing trial together with two others, has turned down the prosecution’s request to adopt the previous proceedings of retired Justice Clemence Honyenuga.
Justice Kwasi Anokye Gyimah, who presides over Land Court ‘2’ of the Accra High Court, said it would be unfair for him to adopt a proceeding that is “saddled” with numerous allegations.
The prosecution, led by Mrs. Evelyn Keelson, a Chief State Attorney, had last Thursday, March 30, 2023, moved a motion urging the court to adopt the previous proceedings to enable the trial to continue.
But the prosecution’s request was vehemently opposed by defence lawyers led by Samuel Codjoe and Benson Nutsukpui (the first and second accused, respectively), who prayed the court to start the trial de novo (afresh).
In a ruling on the motion on Tuesday, April 4, Justice Anokye Gyimah said it would be “unfair” for the court to ignore the allegations and adopt the previous proceedings as they were.
He said that for the court to have first-hand information about the trial and the demeanour of witnesses, the court will start the trial’ De Novo’.
Justice Anokye Gyimah also pointed out that an accused person, by law, requires fairness and that the court should not overlook the presumption of innocence.
The court said in order to have a proper appreciation of the matter at hand and not inherit the allegations that have characterized the previous court, the trial will start “de novo.”
According to EIB Network’s Legal Affairs Correspondent, Murtala Inusah, who was in court, the prosecution has been directed to file their witness’s statements on or before April 21.
The defence is accordingly directed to file any witness statements on the same day.
The court ordered that the parties return to court on April 25 for a case management conference and a possible date for the trial to start.
Dr. Opuni and Seidu Agongo, a businessman and his company, Agricult Ghana Limited, have been dragged to court for allegedly causing financial loss to the state following the purchase and supply of Litovite liquid fertilizer to cocoa farmers.
Accusations, they have since denied,
The prosecution had closed its case after calling seven witnesses, while Dr. Opuni, who was mounting the defence, had also called his seven witnesses, with some more to follow.
The trial docket earlier this month had to be transferred by the then-Justice Honyenuga’s court to the Chief Justice for reassignment after the retired Supreme Court judge’s six-month extension to conclude the case expired.
Mrs. Evelyn Keelson, a Chief State Attorney, while praying the court to adopt the previous proceedings, said it would cause substantial injustice to the state if the case was started afresh.
She said the court should consider the delays, the stage of the case, and the fact that the prosecution had closed its case and the first accused (Dr. Opuni) had called seven witnesses.
Mrs. Keelson said the case has travelled and gone to the Supreme Court, and various rulings have been made, so starting ‘de Novo (afresh) will cause a miscarriage of justice if not granted.
The Chief State Attorney said rather that there would be no miscarriage of justice on the accused if the proceedings were adopted rather than if the case was started afresh.
“It will rather cause injustice to the Republic if the case is started fresh,” and “starting this case ‘de novo’ will benefit the accused from delaying the case,” the Chief State Attorney urged the court.
She pointed out that the prosecution, after the closure of its case, the previous court had on May 7, 2021, ruled on a submission of no case, which was upheld and “allowing the case to start ‘de novo’ will occasion a substantial miscarriage of justice.”
She concluded her submission after making references to some authorities by saying, “there will be no injustice at all in allowing the proceedings to continue.”
The lead lawyer for Dr. Opuni, Lawyer Samuel Codjoe, who vehemently opposed the request for the adoption of the previous proceedings, said the rules of criminal trials are clear and have not changed.
He said the trial could only be started ‘de Novo (afresh).
Counsel argued that unlike in civil matters, where two parties appear before the court, where the practice allows the judge to determine the adoption of proceedings, the practice is totally different in criminal cases.
While pointing to some decided cases by the Supreme Court, Lawyer Codjoe said recommendations on reforms were previously made for the Chief Justice to consider in such proceedings in criminal cases.
Counsel, however, said that, to date, reforms had not been carried and until that was done, the rules had not changed, and the trial should start afresh.
Counsel added that, in criminal trials, “you start ‘de novo, and the reason is that it will be unfair to the accused persons” if otherwise was done.
To buttress his point, counsel said it is acceptable that an innocent person is freed rather than convicted to prison many people who are guilty at a point.
Lawyer Codjoe made reference to the ongoing murder trial involving Gregory Afoko, where the Attorney General, after terminating the first trial (Nolle Prosequi), started all over again.
But Justice Gyimah was quick to assert that he was unaware of Afoko’s example.
Touching on Section 80 of the Evidence Act referenced by the prosecution, counsel said it is clear that the court will have to look at the demeanour of the accused, but it is not the sole determining fact.
He added that, in criminal cases, the rights of the individual are rather key considerations, and wondered, “if the State upon all its machinery suffers, how much more the accused?”
“We are saying that if you consider the essence of a criminal trial and the judicial rule, the case has to start ‘de novo’ (afresh)”, Lawyer Codjoe submitted.
While pointing to Section 129(2) of the 1992 Constitution, which states that the Supreme Court’s decisions are binding on all courts underneath, he said the trial should start afresh.
“We prayed that the trial started ‘de novo’ and what the prosecution failed to add was that though we (first accused) have called seven witnesses, and we have more to call for the first accused.”
While wondering why the state, with all its apparatus, would be asking for adoption of the previous proceedings when the rules are clear, counsel concluded that “it would be unfair to the accused but also against established practice.”
Previous proceedings are not a true reflection
Lawyer Benson Nutsukpi, counsel for Mr. Agongo and Agricult Ghana Limited (Second and third accused), while also opposing vehemently to the prosecution’s prayer, said what transpired in the previous proceedings did not reflect the true representation.
He wondered how documents discovered by the prosecution and served on the accused and same was tendered in evidence without objection from the prosecution, “the judge without reference to us expunged from records during the ruling on submission of no case.”
“We are totally opposed and we will use our applications (filed on records) to show that what happened before the previous court is not a true reflection of what transpired in the court and we will challenge that,” Lawyer Nutsukpui contended.
He argued also that the established “practice for now is to start the trial afresh” since the recommendations that the rules should be reviewed and reforms carried by the Chief Justice have not been done yet.
Counsel also concluded that “this court should start the case de novo.”