The former Chief Executive (CE) of Ghana Cocoa Board (COCOBOD), Dr Stephen Kwabena Opuni, has filed a motion requesting the trial judge, Justice Clemence Jackson Honyenuga, to recuse himself from further hearing the case involving him and two others.
Dr Opuni, first accused person (A1), is asking the Supreme Court judge, who is sitting as an additional High Court judge to recuse himself on the grounds of biasness, which is in breach of Article 19 (2) (e) & (g) of the 1992 Constitution.
The court has set June 9, 2021 to hear the motion, which the former boss of COCOBOD, who is standing trial together with Siedu Agongo and Agricult Ghana Limited, has also appealed to Chief Justice Anin Yeboah to re-assign the suit to another judge.
Among the issues Dr Opuni raised in the motion to challenge His Lordship from further hearing the case is that, while Justice Honyenuga was dismissing his application for stay of proceedings pending an appeal at the Court of Appeal he said in open court that: “…he has to complete the case quickly to enable him concentrate on his duties at the Supreme Court, as the case had been pending for the past three years, thereby, affecting his work in the Supreme Court.”
According to him, because the learned judge had stated that he was in a hurry to hear the case, he refused to give him an additional four days to enable him prepare adequately for the case.
“It has become clear to me that I would not be given adequate time and facilities to prepare my defence as stipulated by Articles 19 (2) (e) and (g) of the 1992 Constitution,” he said.
He went on to say in his affidavit in support of the motion that he cannot be blamed for delay of the trial, when his first application made to the court for disclosures of some documents in possession of the prosecution were opposed.
The first accused person added that all applications and interlocutory appeals, which had been filed for and on his behalf, are applications that he had the right to file in the defence of his case.
“I add that these applications cannot be said to have caused delay in any way whatsoever. This is more so when my liberty is at stake in this criminal trial and I have the constitutional right to properly defend myself in accordance with the provisions of a fair trial as provided for in the 1992 Constitution” he stressed.
He also blamed delay of the trial on Covid-19 pandemic, which slowed all court proceedings, including his case, “an act for which I am not responsible and/or the cause and, therefore, I cannot be said to have delayed any court proceedings due to the fact that directives were issued for long dates to be given in all pending cases.”
Furthermore, he stated that the learned judge having said in open court that the case has unduly delayed and that he has lots of work to do in the Supreme Court, also makes it clear that he would not be given adequate time to defend his case.
“This became very clear to me when, this court refused my legitimate request for an extra four days to enable me prepare. I believe that I would be rushed into presenting my case so as to enable the learned judge complete the case in order for him to concentrate on his core duties as a judge of the Supreme Court,” he lamented.
Dr Opuni continued that he has been advised and verily believe same to be true that by the provisions of Article 19 (2) (e) of the 1992 constitution, he is entitled to be given adequate time and facilities for the preparation of his defence, under Article 19 (2) (g) of the 1992 constitution.
He insisted that he has the constitutional right to be afforded facilities to obtain the attendance of witnesses to testify on my behalf but:
“Unfortunately, the learned judge having stated in court that he has work to do in the Supreme Court and, therefore, he is in a hurry to complete the case such that he refused to give me an additional 4 (four) days, has shown clearly that I would be denied of my constitutional right under Article 19 (2) (e) and (g) of the constitution and thereby my right to a fair trial.”
According to him, he is being tried for criminal offences, which would have very serious and dire consequences on him if the trial is rushed through, only because the trial judge intends to complete same early, in order for him to concentrate on his Supreme Court duties.
He also held that the dismissal of his application of submission of no case by the learned judge, of which the court disallowed some documents tendered through witnesses to be part of the exhibits when the case has not ended, is as a clear sign of bias.
The former EC of COCOBOD indicated that on page 54 of the ruling of the submission of no case, the learned judge made final and definite finding of fact as follows:
“…however, the First accused although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and3rd accused to defraud COCOBOD. But for his request the 3rd accused would not have supplied Lithovit liquid Fertiliser instead of Lithovit Foliar Fertiliser.”
Similarly, he said on page 55, line 7 from the top, the learned judge also made a final finding that “the 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise of defrauding. With all these acts, I am satisfied that the prosecution through its witnesses has proved the ingredients of the offence of abetment in counts one, three and five…”
He said on page 59 on line 11 from the top of the page, the learned judge further made a final finding that “the 1st accused is a scientist with all his knowledge and skills had the benefit of an original Lithovit foliar fertiliser submitted, tested and approved by him, yet knowingly, he agreed and caused the state to lose millions of Cedis in foreign exchange, by paying these monies to the 2nd and 3d accused persons. The 1st accused thus caused financial loss through this action. The actions of the 1st, 2nd and 3rd accused were wilful…”
He further stated that on pages 66 and 67, 3rd line from the bottom, the learned judge made a final finding that “Strangely, the 3rd accused by a letter dated the 26th February 2014, exhibit T, sent its price quotation that is about seven days after the application to PPA. It noted that although the 1st accused had not received any price quotation from the 3rd accused, he managed to provide recommendation prices for the products to Exhibit N
“This is strange and the procurement of Lithovit liquid fertiliser from the accused was done in contravention of section 41 of Act 663.”
Dr Opuni added that on page 75, line 10 from bottom the learned judge made the following finding of fact “PW7 also tendered into evidence exhibit LL2 and MM being cautioned statements of the 1st and 2nd accused respectively. A perusal of these statements indicate that while the 1st accused claims the money was deposited in his account by the 2nd accused on his behalf, the 2nd accused initially claimed he could not remember why he deposited the money into the 1st accused’s account.
“Later he stated that he paid the money into the 1st accused’s account to help the 1st accused take care of needy children. It is on record that 1st accused awarded three more contracts to the 2d accused’s company to supply agro-chemicals, which were neither tested nor approved for use on cocoa.”
According to former CE, the learned trial judge made these final findings against him, when he had not opened his defence and that Justice Honyenuga has his mind already made up and that he would not definitely give him a fair trial.
For these reasons, he had been advised by his counsel and verily believe same to be true that in the circumstance the learned judge should recuse himself from the suit and refer the suit to the Chief Justice for same to be transferred to another judge.