The decision by a retired Supreme Court judge, Justice Clemence Jackson Honyenuga, to unilaterally discard, rather belatedly, exhibits tendered in open court as rejects has been condemned as unthinkable.
The High Court in Accra was told that as many as 18 exhibits in evidence, tendered without any objection, were controversially marked by the trial judge “in his bedroom” as rejects.
The former President of the Ghana Bar Association, lawyer Benson Nutsukpui who resurrected the “unthinkable” behavior of Justice Honyenuga in the ongoing trial of former COCOBOD Chief Executive and two others, was alerting the current trial judge not to travel on the same path if he really wants the truth established in his court.
According to him, Justice Honyenuga’s decision, acting solely without the knowledge of the parties in the case, amounted to judicial chicanery, and should not be countenanced.
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.
Lawyer Benson, the lead counsel for Seidu Agongo and Agricult, sounded emotional on Tuesday, December 5, asserting that what Justice Honyenuga did, which is playing out in the court differently constituted and now presided over by Justice Aboagye Tandoh, has tied his hands behind him in mounting his defence.
Counsel had sought to tender a document in evidence through the former Executive Director of CRIG, Dr. Gilbert Anim Kwapong, whom he was cross examining after the witness admitted to authoring that document.
The evidence in question is a statement the witness gave to police investigators when he was interrogated in January 2018. It was once tendered by counsel for the first accused, lawyer Samuel Codjoe, when he cross examined the seventh prosecution witness who happened to be the investigator, Police Detective Chief Inspector, Thomas Prempeh Mercer.
The statement was tendered in an open court without any objection by the prosecution and was therefore marked as Exhibit 58.
However, in a twist of event, the retired justice of the Supreme Court, Justice Clemence Honyenuga, who was then sitting on the case at the high court, marked the admitted evidence as reject suo muto in his bid to establish a prima facie case against the accused persons in his ruling on the submission of no case.
The document was part of the 18 documents that the trial judge had claimed that the police investigator through whom the documents were tendered without any objection was not the author. He therefore treated them as hearsay, hence his unilateral decision to reject them without the involvement of the parties in the case.
But Benson Nutsukpui told the court presided over by Justice Aboagye Tandoh, on Tuesday, that the principle that there is no collective liability would be defeated if the objection to tendering of the statement by the witness is upheld by the court.
“To begin with, I represent 2nd accused and 3rd accused. And in case the prosecution have forgotten, count two charges only 2nd accused person and 3rd accused person and count four also is against only 2nd accused person and 3rd accused person. It is a well-known principle of criminal practice that there is no collective liability. We must conduct our case on our own and provide the evidence that will exculpate us.
“The facts as narrated by the prosecution is not exactly the case. 2nd accused person and 3rd accused person did not tender exhibit 58. And when exhibit 58 was tendered and was not objected to by the prosecution in what must be frown upon by any Court seeking the truth Honyenuga JSC now retired decided to practice Judicial chicanery and decided without giving the parties a hearing to discerned into the arena and rejected all the exculpatory evidence tendered through the police investigator on the ground that it was hearsay evidence,” he argued.
Counsel further asserted, “It is our submission that we are not bound by that rejection of that exhibit in any case. We have laid all the grounds for tendering of a document through a witness. He is the author, he speaks to it and he executed it contemporaneously with the events.”
The former GBA president went on, “So to come and say that because Honyenuga JCS now retired did the unthinkable so we should be bound is the strangest legal proposition that will be made.”
But Justice Aboagye Tandoh maintained that “the document in question is on record rightly or wrongly and this Court will not discern into admitting, then reject and then admit”.
He later ruled that “the document which counsel is seeking to tender is disallowed under the circumstance”.
But counsel insisted that he would not buy into the judge’s semantics, and demanded that the court comes clear – whether the document has been admitted or rejected – and if rejected it should be marked as such.
“My lord, we have tendered the document, they have opposed it, we have not withdrawn it so the court has to deal with it,” lawyer Benson stressed.
After a brief back and forth, the exhibit was marked rejected (R22), but not without a fight. Lawyer Benson wondered how the rejected documents climbed to 22 when in fact only three documents were rejected in open court.
But Chief State Attorney, Evelyn Keelson said the extra 18 were the once Justice Honyenuga rejected suo motu, insisting that those documents were later marked rejected in open court.
Her claim shocked defence counsel who demanded from her to provide the date when those 18 exhibits were marked rejected in an open court, but she could not.
Lawyer Benson Nutsukpui had earlier entertained the fear that if care is not taken, parties can conspire and tender evidence that exonerate another party through the wrong witness just for the court to reject exculpating evidence, and place same beyond the reach of the party it exonerates.
However, the judge in his ruling said counsel for A2 and A3 was at liberty to ask questions on the rejected document by way of cross examination much to the surprise of the prosecution.