Three Supreme Court judges have given detailed reasons for their decision to prohibit their colleague Justice Clemence Jackson Honyenuga from further hearing the case of former Chief Executive Officer of Ghana Cocoa Board (Cocobod), Dr. Stephen Opuni and businessman, Seidu Agongo who are on trial for allegedly causing financial loss to the state to the tune of GH¢217 million.
A five-member panel of the court presided over by Justice Jones Dotse on July 28 in a 3:2 majority had granted an application by Dr. Opuni which sought a certiorari to quash portions of Justice Honyenuga’s ruling on a submission of no case as well as prohibit him from further hearing the case on grounds of bias.
The majority made up of Justices Gabriel Pwamang, Agnes Dordzie and Umoro Tanko Amadu in their explanation held that the exhibits excluded by Justice Honyenuga who was sitting as an additional High Court judge were admissible under sections 117, 118 and 126 of NRCD 323 and that their colleague purportedly excluded that piece of evidence in error.
Main Case
Dr. Opuni together with Seidu Agongo, and the businessman’s Agricult Ghana Limited were ordered by Justice Honyenuga on May 7, 2021, to open his defence respectively, after the prosecution had closed its case.
The ex-Cocobod boss then filed multiple applications before the court, including a stay of proceedings, one of which was filed at the Court of Appeal and was also dismissed.
He had earlier filed an application before the court asking Justice Honyenuga to recuse himself from the trial and that application was also dismissed by the trial court, which held that it was brought in bad faith.
He also petitioned the Chief Justice (CJ) to get the trial judge to recuse himself from the trial, but the petition was dismissed by the CJ, who stated that the petition did not disclose any likelihood of bias on the part of the judge.
SC Move
Dr. Opuni then went to the Supreme Court asking the court to exercise its supervisory power to quash the parts of the decision of Justice Honyenuga to exclude some exhibits in his ruling on a submission of no case filed by the accused persons.
He also asked the court to prohibit Justice Honyenuga from further hearing the case.
Majority Decision
The majority ruling written by Justice Pwamang and supported by Justices Dordzie and Tanko Amadu assessing the application on ground of certiorari to quash portion of the trial judge’s ruling held that “from the jurisprudence, it is only evidence that is inadmissible per se that may be excluded by the court on its own motion when delivering final judgment or on an appeal.”
The ruling indicated that it is apparent from the ruling of the trial judge that the reason he described the exhibits in question as hearsay evidence is the fact that PW7 through whom they were tendered is not the person who personally perceived the matters referred to in the statements but it is rather the makers of the statements.
Hearsay Issue
“The contention is therefore, that to the extent that the statements were tendered by the accused person to prove the truth of their contents, they are hearsay. That may well be so but the correct legal position is that it is not every hearsay evidence that is inadmissible and under NRCD 323, hearsay evidence is not inadmissible per se… There are about fourteen exceptions in NRCD 323 covering sections 118 to 132 which provide for hearsay evidence to be admissible under the Act.”
Justice Pwamang further held that there is authority to hold, that in this case, by not raising objection to the tendering of the exhibits that were ordered to be excluded by the trial judge, the prosecution agreed with the accused person to the tendering of those otherwise hearsay statements so they are admissible as an exception to the hearsay rule and ought not to have been excluded.
“I am of the firm opinion that the exhibits excluded by the trial judge are indeed admissible under sections 117, 118 and 126 of NRCD 323 and that the judge purported to exclude them in error. By excluding them the trial judge acted in clear violation of the statute and that is a ground for which this court would exercise its supervisory jurisdiction in respect of a decision by a superior court.”
Crucial Evidence
He continued that “where the application for certiorari is premised on miscarriage of justice then the court would exercise its discretion to grant the application to cure the injustice and would not refuse it. From the record I reviewed above, the excluded evidence is crucial to the defence of the applicant and their exclusion definitely would occasion a substantial miscarriage of justice to him.”
Again, he held that “Having concluded that the trial judge’s error was fundamental and his order rejecting the exhibits in question ought to be quashed on that ground, I will not spend much time on the issue of the applicant not heard by the court before the order expunging the exhibits was made. It is trite law that no person should be condemned without a hearing. The effect of the trial judge expunging these exhibits that were admitted without objection and which appear crucial in the defence of the accused person was clearly so serious and damning to the case of the applicant that he ought to have been given a hearing before the order excluding them was made.”
He however, added that “from the analysis that has been done above, it is clear to me that the rules on hearsay evidence are still a troublesome area of the Law of Evidence despite the effort by NRCD 323 to simplify it. No wonder in Ekow Russell the court appears to have slipped and has unfortunately derailed the trajectory of the trial judge in this case.”
Issue of Bias
Touching on the issue of bias as alleged against Justice Honyenuga, Justice Pwamang held that the law is settled that where an allegation of bias is proved to exist before the decision is taken, the decision-maker may be restrained from hearing the matter.
“So, at this stage of the trial the duty of the judge is limited to a determination of whether on the evidence adduced on behalf of the prosecution, a sufficient case has been made against the accused person to require her to open her defence,” he said.
He said the trial judge at the stage of determining an application for submission of no case to answer is limited to a determination of whether on the evidence adduced on behalf of the prosecution, a sufficient case has been made against the accused person to require him or her to open a defence.
Standard of Proof
He said the judge is not required to decide if the evidence has proven that the accused person committed the offence he is charged with.
“For an accused to be proved to have committed the offence charged with, the evidence against her must satisfy the standard of proof beyond reasonable doubt but the court cannot make that determination without receiving the evidence of the accused person in her defence… What I understand the applicant to be complaining about in this case is that the trial judge jumped the gun.”
“It is not possible to know whether the judge would actually be prevented by these comments from according the right weight to any evidence the applicant has to offer so the law doesn’t require the applicant to prove that. The test is an objective one based on the principle that not only must justice be done but it must be seen to be done. As the authorities say, bias is so insidious that the judge himself may not even be aware that he has a bias in the matter under consideration.”
He concluded that “It is for the reasons explained above that I hereby grant the prayer for prohibition in order that justice will be seen to be done in this case. In conclusion, the application succeeds on both counts and is accordingly granted as prayed.”
BY Gibril Abdul Razak