Lawyer Samuel Codjoe, the lead counsel in the ongoing trial of former COCOBOD Chief Executive and two others, was forced to truncate his evidence in chief due to his inability to access the court’s records of proceedings.
Counsel has for weeks been expressing his difficulty in defending his client due to the failure of the registrar of the court to provide him with the complete records of proceedings when the case was presided over by Justice Clemence Honyenuga as “purportedly” adopted by the court that was differently constituted.
Mr. Codjoe has been leading a subpoenaed witness, Dr. Gilbert Anim Kwapong, the immediate past Executive Director of the Cocoa Research Institute of Ghana (CRIG) as the eighth prosecution witness to give his evidence in chief.
“As I stated, I cannot conclude the examination in chief as I don’t know what has been adopted by the court,” lawyer Codjoe said, looking frustrated, on Monday, December 4, 2023.
However, the trial judge, Justice Aboagye Tandoh, did not adjourn or suspend sitting to ensure that the records the counsel required were provided.
The judge rather considered the action of counsel as surrendering his right.
“Having voluntarily waived his right to lead the witness in evidence, as the unavailability of the records of proceedings is not supported by the evidence act, accordingly, the first accused is deemed to have ended his examination in chief of the DW8,” Justice Aboagye Tandoh ruled.
Early on, lawyer Codjoe had prayed to the court to suspend hearing until the determination of an application at the Supreme Court to prohibit the trial judge from hearing the case for allegedly being bias.
The application filed on 28th of November 2023 has been slated for hearing on December 13, 2023.
“My Lord because this case concerns you personally and that if we are successful in the application you would be prohibited from going ahead with the hearing of the case, we prayed that you adjourned hearing of this matter to await the determination of this application,” counsel said.
“And more specifically the fact that in this application we have referred to series of acts on your part which we state have given us cause that your lordship has exhibited real likelihood of bias against the first accused.
“We state that justice shouldn’t alone be done but manifestly seen to be done, on this ground, on stand alone, we pray that your lordship adjourns the hearing until the determination of the Supreme Court,” he argued.
He further pointed out: “Our second ground which is also a stand-alone is that where we have gotten to with our evidence in chief, we require knowledge and or information about the content of the proceedings adopted by the court because we don’t know whether what has been given to us by the registrar is the same as the court has.
“And this has become more evident and pressing when at the last adjourned date the court’s copy of proceedings which they gave us lack some information, even without the application for prohibition, we would not have been able to complete our evidence in Chief,” he said.
He added that it would not be in the interest of the defence of the first accused to “confront” the witness with some proceedings, “the content of which we don’t know”.
But prosecution led by Chief State Attorney, Evelyn Keelson opposed the oral application, insisting that the filing of the motion at the Supreme Court does not automatically operate as a stay of proceedings at the High Court.
“There is nothing in law or even in practice that mandates this court to stay proceedings,” she argued.
According to her, lawyer Codjoe’s complaint of missing pages in some of the proceedings “does not pose an impediment in the conduct of the examination in chief”.
Though the Chief State Attorney cited some decided cases at the Supreme Court to back her position, they were countered by lawyer Codjoe who had earlier referred to Republic versus the High Court ex parte Kennedy Ohene agyapong, which he described as the latest law binding on the lower courts.
“Ex parte Kennedy Agyapong is not a bespoke ruling but it’s now the present law for which the court is constitutionally bound, so Daniel and Kallem are bad laws,” he stated.
But the trial judge dismissed the application to adjourn hearing, noting that it was a “deliberate attempt to delay proceedings”.
He therefore ordered lawyer Codjoe to proceed with his examination of the witness, Dr. Anim Kwapong.
But counsel declined to go ahead citing the unavailability of the records of proceedings to successfully make his case.
The former COCOBOD Chief Executive, Dr. Stephen Opuni and businessman Seidu Agongo as well as Agricult Ghana Limited, have been facing 27 charges, including defrauding by false pretense, willfully causing financial loss to the state, corruption by public officers and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.
They have pleaded not guilty to the charges and are on a GH¢300,000.00 self-recognizance bail each.