Former Chief Executive Officer of Ghana Cocoa Board (COCOBOD), Stephen Kwabena Opuni, has been ordered by an Accra High Court to open his defence on June 3, 2021.
This was after the court dismissed an application for stay of proceedings filed by his lawyers as well as counsel for Seidu Agongo, who is standing trial alongside Dr. Opuni for causing over GH¢217 million financial loss to the state.
The two together with Agricult Ghana Limited were ordered by Justice Clemence Jackson Honyenuga, a Supreme Court judge sitting as an additional High Court judge, to open their defence respectively after he found that the prosecution had made a prima facie case against them, thereby dismissing applications for submission of no case.
But lawyers for the accused persons have gone to the Court of Appeal to challenge the court’s order and consequently filed an application for stay of proceedings at the High Court pending the determination of the appeal at the appellate court.
Motion Argument
Moving the motion yesterday, Samuel Codjoe, counsel for Dr. Opuni, argued that the court erred in its decision to reject some 18 exhibits tendered by the defence through the prosecution witnesses, basing its decision on the Ekow Russell versus the Republic case decided by the Supreme Court.
“It is our submission that this court erred in that in the Ekow Russell case the witness for the prosecution through whom this statement was tendered admitted that he never spoke to Maxwell Antwi. On that basis the Supreme Court held that the statement could not be tendered through him. This is totally different from our case where the investigator specifically states under cross-examination on February 22 that he interrogated the witnesses before they wrote their statements,” he argued.
Mr. Codjoe continued that “the court erred when on its own it rejected evidence which had been admitted without objection during trial by the same court and not by an appellate court as was in the Ekow Russell case.”
He contended that the court accepted and admitted similar and identical statements which were tendered through the same PW7, arguing that the rejection of the exhibits constitute an exceptional circumstance because if the exhibits were not wrongly rejected, the court would have come to a different conclusion.
“We add that this is a criminal trial for which the liberty of the individual is at stake. As was held in the Ekow Russell case, it is better for 99 accused persons to sail through than for one innocent person to be wrongly convicted,” Mr. Codjoe concluded, urging the court to exercise its discretion in favour of the accused person.
Agongo’s Argument
Nutifafa Nutsukpui, counsel for Seidu Agongo and Agricult Ghana Limited, also argued that all the exhibits that were rejected and marked as ‘reject’ had all been tendered without objection and according to the Supreme Court in the Edward Nasser case that signified consent of the other party that the hearsay evidence be so admitted.
“Assuming that the court was right in classifying those exhibits as hearsay and for which reason they were rejected how about similar exhibits tendered by the prosecution, how and why were they preserved and did the applicants not benefit from that benevolence of the court. These are matters that we consider exceptional and of legal consequence weighty enough for the Court of Appeal to be granted the opportunity to consider them at least,” he argued.
Mr. Nutsukpui told the court that the effect of rejecting those exhibits is that they have been put beyond the use of the applicants as they have been marked as ‘rejects’ while at the same time they are being called upon to open their defence in respect of matters that have been spoken to by those exhibits in their favour.
“It will seem therefore that their fate has already been sealed even before they open their mouth to speak, thereby violating their constitutionally guaranteed rights of fair trial. The authority the court relied on in rejecting those documents according to the court itself may reject evidence at the judgment stage. But in this particular case, the applicants have not even spoken and it was not at the judgment stage, it was at the submission of no case stage,” he pointed out.
He added that “the sensitivity or otherwise of a matter is not a legally recognised ground for ordering an accused person to open their defence in a criminal matter and yet that was one of the reasons the court gave for its order so we believe the Court of Appeal should be afforded the opportunity to examine these matters.”
AG’s Dept
The application was opposed by prosecution led by Mrs. Evelyn Keelson, a Chief State Attorney, who argued that the applicants “woefully failed to establish the exceptional circumstances for the grant of stay of proceedings and are just relying on some out of court statement instead of opening their cases to tell their own stories.”
She told the court that that currently there is no law or rule of law requiring the court to stay proceedings in this matter since the new Court of Appeal Rules has effectively done away with the rule which permitted an appellant to ask for stay of proceedings in the court below which is the trial court and at the Court of Appeal.
She continued that the applicants have not established any basis at all for the court to stay proceedings because there are no exceptional circumstances.
“My Lord, the applicants have not raised any issue about your ruling which said that the prosecution had made a prima facie case against them requiring them to open their defence in respect of the various offences. The only issue they have all raised is the rejection of exhibits and it is our submission that this honourable court had the power to disregard evidence which had been wrongly admitted and there are several authorities on this matter. The exhibits are clearly hearsay statements and Sections 117 and 118 of the Evidence Act are clear on this,” Mrs. Keelson argued.
Again, she told the court that “those statements are hearsay statements and do not constitute legal evidence. The court is under a duty to arrive at decisions whether at the submission of no case stage or at the end of the trial by relying on legal evidence. Those statements are hearsay statements and the court was right in disregarding them in arriving at its decision.”
“Those statements by themselves even if considered as part of evidence in the trial do not in any way discredit any part of the prosecution’s case. The prosecution at this stage has established the requirement or the duty on us to reach the prima facie standard and there is no part of this court’s ruling which has occasioned a miscarriage of justices which will constitute a successful ground of appeal which is why we made the point that this appeal has no chance of success and that it is just to stall this trial,” Mrs. Keelson added.
Ruling
Justice Honyenuga in his ruling held that the court would not countenance the application due to the amendment to the Court of Appeal Rules which specifically precludes the High Court from entertaining applications for stay of proceedings.
He said the submissions by counsel for applicants hinted on the preclusion of certain exhibits but the court did not see those grounds to be germane.
He added that the authorities are clear on an application for stay of proceedings and those circumstances have not been demonstrated for the court to exercise its discretion in favour of the applicants and therefore, dismissed the applications.
BY Gibril Abdul Razak