State prosecutors are assembling all possible arsenals, in the trial of former COCOBOD boss and a businessman, to sidestep decades-old practice at the bench in which criminal cases reassigned to new judges start ‘de novo’ (afresh).
It is rather the argument of the Attorney General that starting the case, which is now before a new judge, afresh would amount to “substantial injustice” to the state.
Former COCOBOD Chief Executive, Dr. Stephen Opuni and businessman Seidu Agongo as well as Agricult Ghana Limited, are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.
They have all pleaded not guilty to the charges and are on a GH¢300,000.00 self-recognisance bail, each.
The matter was presided over by Justice Clemence Jackson Honyenuga, who retired on September 4, 2022, but was given a six-month extension by the Chief Justice to conclude the case.
But barely two weeks to the expiration of that extension, the Attorney General, through his Deputy, Mr. Alfred Tuah-Yeboah, asked retired Justice Honyenuga to refer the case back to the Chief Justice to reconstitute the court.
“Looking at today, 23rd [February], the days left are so limited that if we were to say my lord should continue with the hearing of this matter, he cannot conclude it. So practically we thought it wise to bring such an application before him for him to refer the matter to the Chief Justice so that another judge would be appointed by the Chief Justice to hear this particular matter,” Mr. Tuah-Yeboah explained to journalists after making the request on February 23.
Justice Clemence Honyenuga (Retd) concurred with the position taken by the Attorney General when the court sat a week later
“…In the circumstance, I will uphold the submission of the Deputy Attorney General and hereby grant the application under Section 105 of the Court’s Act, 1993, Act 459 as amended.
“It is hereby ordered that the pendency of this case be reported to the Chief Justice for his directions. Accordingly, the Registrar of this court is to carry out this order forthwith.”
Consequently, the Chief Justice reconstituted the court and placed the case before a new judge.
Prosecution has closed it case after calling seven witnesses while Dr. Opuni who was mounting defence has also so far called seven witness with some more to follow.
The case now presided over by Justice of the High Court, Justice Kwasi Anokye Gyimah, sat on the case for the first time on March 30.
Adopt previous proceedings
At the hearing, before a new judge at Land Court ‘2’, Chief State Attorney at the Office of the Attorney General, Mrs. Evelyn Keelson then argued that starting the case afresh would cause a substantial injustice to the state.
She therefore prayed for the adoption of previous proceedings.
But the request was vehemently opposed to by the defence lawyers who have asked for the trial to start ‘de novo’ (afresh).
She said the court should consider the delays, stage of the case and the fact that prosecution had closed its case and first accused (Dr. Opuni) had called 7 witnesses.
Mrs. Keelson said the case has traveled and gone to the Supreme Court and various rulings have been made so starting afresh will cause miscarriage of justice if not granted.
The Chief State Attorney said rather, there would be no miscarriage of justice on the accused if the proceedings are adopted then if the case is 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 it case, the previous court had on May 7, 2021, ruled on a submission of no case which was upheld held and “allowing the case to start ‘de novo’ will occasion 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.”
AG’s Stance
Mrs. Evelyn Keelson’s position is a rehash of her boss, Attorney General and Minister of Justice Godfred Yeboah Dame’s stance in the ongoing trial.
In an affidavit sworn to by the Chief State Attorney for an application for review of a decision by the ordinary bench in 2021, the AG argued: “That if a trial de novo of the respondent herein results from the decision of this Court dated 28 July 2021, same will occasion substantial miscarriage of justice as the constitutional requirements of fair and expeditious trial will not only be violated but also, the prosecution will be put to enormous expense, inconvenience and hardship in commencing a new trial.”
Rules not changed, start afresh
Lead counsel for Dr Opuni, lawyer Samuel Codjoe who vehemently opposed to 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 can 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 on adoptions of proceedings, the practice is totally different in criminal cases.
While pointing to some decided cases by the Supreme Court, Lawyer Codjoe made specific reference to an unreported case in which Justice Jones Dotse maintained that until reforms are made, the rules cannot be changed, and that such trials would have to start afresh.
Writing the decision of the Supreme Court in a ruling on January 24, 2023, Justice Dotse noted:
“The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo.
“Perhaps the time has come for this problem to be reviewed, This is because, if as a country we are to make some progress in the prosecution of criminal cases, especially corruption related cases pursuant to the Article 19 provisions of the Constitution 1992, then the bold step has to be taken to introduce sweeping reforms in this part of our criminal justice. We therefore appeal to the Chief Justice to urgently consider reforms in this part of our criminal justice.”
Lawyer Codjoe therefore 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 than convict 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 asserts that he was unaware of the Afoko’s example.
Touching on Section 80 of Evidence Act referenced by the prosecution, counsel said it is clear that the court will have to look at the demeanor 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 michinwey suffers, how much more the accused?”
“We are saying that if you consider the essence of criminal trial and the judicial rule the case has to start ‘de novo,’ (afresh)” Lawyer Codjoe submitted.
While pointing to 129(2) of the 1992 Constitution which states that decisions of the Supreme Court is 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 7 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 not 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 prosecution and served on 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 denovo.”
By Court
Justice Anokye Gyimah after listening to the parties said “I will adjourn to April 4 to enable the court interrogate some of the issues raised.”
He urged the parties to submit the references and authorities they have alluded to in their submissions to assist the court to give it direction.