Dr. Stephen Opuni
“The application is malicious, mischievous, frivolous and vexatious and an abuse of the court process and well calculated to further delay the expedited, efficient and fair hearing of this case. The principle of justice delayed is justice denied applies in the instant case.”
Those were the words of Justice Clemence Honyenuga, a Supreme Court judge sitting as an additional High Court judge in his ruling on a motion filed by former Chief Executive Officer of Ghana Cocoa Board (COCOBOD), Dr. Stephen Opuni, who once again sought to get the judge off the case.
The former COCOBOD boss who is standing trial together with private businessman, Seidu Agongo alongside the businessman’s company Agricult Ghana Limited, for allegedly causing over GH¢217 million financial loss to the state, filed an application urging the judge to recuse himself from the trial on grounds of ‘hostility’ and ‘likelihood of bias’ towards him.
The application basically alleged what he claims to be ‘open hostility’ towards him by the trial judge and “his acts and conducts is such that justice cannot be said to be seen to be done.”
Dr. Opuni through his counsel Samuel Codjoe argued that the court has gone back on its previous practice of agreeing on dates with lawyers involved in the matter and now imposing hearing dates contrary to what pertained when the prosecution was calling its witnesses.
Crying Wolf
Justice Honyenuga in his ruling however, held that “it is my candid opinion that the first accused is crying wolf when there is none and he could not prove why I should recuse myself from this case when I have guided this case from 2018 to date when the defence has opened,” adding that “this will result in injustice to second and third accused persons who are waiting to open their defence.”
Earlier, the court had indicated that it had received the response from the Chief Justice, through the Judicial Secretary on a petition by Dr. Opuni which asked the Chief Justice to prohibit Justice Honyenuga from hearing application for recusal.
The Chief Justice in his response had indicated that he had carefully studied the petition but did not find any allegations of likelihood bias against the trial judge, and further indicated that it will not be in the interest of justice to transfer the motion to another judge to determine whether the trial judge is fit to sit on the motion.
Recusal Move
Dr. Opuni had filed an application before the High Court urging Justice Honyenuga to recuse himself from the ongoing trial, alleging what he claims to be ‘open hostility’ towards him by the trial judge and “his acts and conducts is such that justice cannot be said to be seen to be done.”
He also alleged that the trial judge had shown bias towards him and claimed it was evidenced in his prejudicial comment which he made on December 9, 2021, that the evidence of his (Opuni’s) witnesses cannot exonerate him save his own evidence.
Moving the motion, his lawyer, Samuel Codjoe, argued that irrespective of the Chief Justice’s administrative response to their petition, the judge cannot sit on the application for recusal as held in a case decided by the Supreme Court in 2002/2003 Supreme Court of Ghana Law Report.
“It is our position that we believe based on what has happened in this court after we opened our defence, details of which we have stated and particularised, there is real likelihood of bias against us,” Mr. Codjoe argued.
Prosecution’s Opposition
The application was opposed by Evelyn Keelson, a Chief State Attorney, who argued that there is no basis at all for the application and Dr. Opuni “failed woefully to demonstrate any credible evidence of bias against him by this court.”
She quoted a Supreme Court decision and argued that there was nothing legally wrong with the trial judge hearing the motion for him to recuse himself, adding that the averments in Dr. Opuni’s affidavit in support of the motion are figments of his own imaginations.
She also referred to a 2009 Supreme Court case in which it held that adjournments are at the discretion of the court, arguing that “adjournments are not at the pleasure of the parties before a court such that even in a situation where counsel has officially written to the court to adjourn a matter which was what happened in the case cited, the court is not bound to adjourn the case.”
Trial Days
“It is our submission that the fact that this honourable court adjourned the case to Monday and Thursday which days have been consistent in this very trial does not in any way amount to bias by this court,” Mrs. Keelson argued.
She described claims of hostility by the judge as made by Dr. Opuni as outright falsehood as no such incident of the judge banging his files on the table had happened and the court had not shown any hostility towards the accused person.
Again, Mrs. Keelson argued that there is nothing wrong with a judge seeking clarification on the mode of defence an accused person wants to amount, and it is clear from the record of proceedings that Justice Honyenuga did nothing untoward in seeking that clarification.
Opuni Antics
“As we have stated in our affidavit, this application has been filed to start another round of antics by the applicant to delay the trial and that is why we took the trouble to present before this court in our affidavit in opposition the events that have characterised this trial,” she said.
She also contended that Dr. Opuni did not provide any evidence let alone a credible evidence to support his application, adding “the averments in his affidavit in support are mere allegations with no basis at all.”
Mrs. Keelson concluded that “the fact that a court’s decision is not favourable to a party in the case is no ground for the party to raise issues of bias at every stage. Bias can only be established with credible evidence and no such evidence exists in this application and it is on this basis that we vehemently oppose this application and we urge this expiry to dismiss the application.”
Key Ruling
Justice Honyenuga in his ruling held that it was erroneous for Dr. Opuni who petitioned the Chief Justice to prohibit him from further hearing the case to now turn around to cite Article 125(4) to say that the Chief Justice is bound by that article and decisions of the Supreme Court.
He said the issues alleged by Dr. Opuni in his affidavit in support could have been settled in chambers but the accused and his lawyer chose to file the application to court public sympathy so as to create public ridicule and hatred for the judge sitting on the case.
“In any case, I’m neither the complainant nor the prosecutor in this case and I have no interest in this case apart from my role as a judge. I must state that I have never been hostile to the first accused (Dr. Opuni) and have accordingly offered my best to all the accused persons,” he said.
He said the application failed to show any evidence of likelihood of bias and subsequently dismissed it for being malicious, vexatious and frivolous.
“Counsel must advice their clients before embarking on such frivolous and spurious allegations, for they do not augur well for the smooth administration of justice but rather tend to erode public confidence in the administration of justice,” Justice Honyenuga added.
Witness Statements
Meanwhile, the court ordered Dr. Opuni to file the statements as well as documents his witnesses intend to rely on by January 10, 2022 except that of his first witness, Charles Dodoo, who is already in the witness box.
He said the case shall henceforth be heard on Mondays and Thursdays of every week, adding that the court will not tolerate any unnecessary delays when the case resumes on January 10, 2022.
Previous Attempt
This is not the first time Dr. Opuni had made a move to get Justice Honyenuga off the case as he had earlier filed an application before the court seeking the trial judge to do so.
The application was dismissed by the court, which held that it was brought in bad faith.
He also petitioned the Chief Justice to get the trial judge to recuse himself from the case, but the petition was dismissed by the Chief Justice, 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 it to exercise its supervisory power to quash the part 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 the trial judge from further hearing the case which was granted by a 3:2 majority of the court.
But the decision was later reversed by a 4:3 major review panel which reinstated Justice Honyenuga to continue hearing the case.
BY Gibril Abdul Razak