Dr. Stephen Opuni
The Office of the Attorney General has filed a review application urging the Supreme Court to set aside its decision to prohibit Justice Clemence Jackson Honyenuga, a Supreme Court judge sitting as additional High Court judge, from further hearing the trial of former Chief Executive Officer of Ghana Cocoa Board (COCOBOD), Dr. Stephen Opuni and businessman, Seidu Agongo and his Agricult Ghana Limited.
According to the review application filed on August 12, the decision of the three majority judges barring their colleague, contained ‘fundamental’ and ‘grave errors’ which have resulted in a substantial miscarriage of justice and, therefore, ought to be reviewed.
The affidavit sworn to by Evelyn Keelson, a Chief State Attorney, also contends that the decision of the ordinary bench “effectively ignored the time-honoured fundamental and mandatory preconditions for an invocation of this Honourable Court’s supervisory jurisdiction for an order of certiorari to quash an alleged error contained in a decision of a Superior Court.”
A five-member panel of the Supreme Court presided over by Justice Jones Dotse on July 28, 2021 in a 3:2 majority decision had granted an application by Dr. Opuni which sought a certiorari to quash portions of Justice Honyenuga’s ruling on the accused person’s submission of no case application, as well as prohibit the trial judge from further hearing the case on grounds of bias.
Majority Decision
The majority ruling written by Justice Pwamang and supported by Justices Agnes Dordzie and Umoru 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 majority said it was apparent from the ruling of Justice Honyenuga 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.
“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,” they held.
“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.”
Touching on the issue of bias as alleged against Justice Honyenuga, Justice Pwamang who read the majority opinion 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.
Justice Pwamang further added 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. 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.”
Minority Decision
The minority decision delivered by Justice Jones Dotse and supported by Justice Avril Lovelace-Johnson, which dismissed Dr. Opuni’s application, held that it is worth taking note of the fact that, the learned trial judge was very conscious of the task that he was required to perform when the submission of no case was made to him by the applicant and the other accused persons.
He said, “I have looked at the entire ruling in context and I am satisfied that, the learned trial Judge stayed on course in his task of seeking to establish whether the prosecution has indeed established the key ingredients of the offences with which the applicant is facing before the trial court.”
He said his understanding is that, it has been recognised by the learned trial judge that, the persons from whom the PW7 took the statements are present and available and can therefore be called by Dr. Opuni to testify on his behalf if he so desired.
Testifying In Person
“I am therefore, of the considered view that the reliance of the learned trial Judge on the case of Ekow Russel v The Republic supra is appropriate. If the Applicant complains about the ruling, it is his right, but then the error complained of is definitely not apparent or latent on the face of the record for him to apply to this court to invoke this courts supervisory jurisdiction under Article 132 of the Constitution.
“I am of the view that the decision of the learned trial Judge rejecting some of the admitted exhibits did not infringe or breach the audi alteram principle of the rules of natural justice. The Applicant, if he does open his case, will still be at liberty to call the declarants of those statements made to PW7 since they are available and capable of answering questions under cross-examination,” he added.
Touching on the allegation of bias, Justice Dotse concluded that “In any case, I am of the considered view that the statement alluded to the learned trial Judge as prejudicial had completely been taken out of context. It is indeed like putting the cart before the horse. I am of the considered opinion that, having considered the totality of the arguments made out by the learned counsel for the parties, to uphold the arguments of counsel for the Applicant will amount to permitting parties and their counsel to forum shop for their convenient courts and or Judges.”
Review Application
The Office of the Attorney General in its application for review is arguing that it is apparent from the decision of the majority that the alleged error committed by Justice Honyenuga regarding an interpretation of section 117, 118 and 126 of the Evidence Act on hearsay evidence was neither an error patent on the face of the record nor one which affected the jurisdiction of the High Court.
It contended that an alleged error contained in an interpretation of a provision of the Evidence Act or a decision of the Supreme Court binding on the High Court even if found to be ‘erroneous’ does not constitute an ‘error patent’ on the face of the record to warrant the supervisory intervention of the Supreme Court.
“To the extent that the decision of the ordinary bench had the effect of erroneously altering or departing from the fundamental principles governing the exercise of this court’s supervisory jurisdiction, same was bad in law, constitutes an exceptional circumstance resulting in a substantial miscarriage of justice and warrants the exercise of this Court’s review powers to correct same,” it pointed out.
SC Error
The review application contends that the ordinary bench rather committed a fundamental error resulting in miscarriage of justice when it wrongly construed sections 117, 118 and 126 of the Evidence Act thereby, changing the law on hearsay without any compelling reasons.
“The ordinary bench committed a fundamental error in prohibiting the trial judge who only performed his duty as required by law to evaluate the evidence adduced by the prosecution in order to determine whether a prima facie case had been made against the respondent,” the AG argued.
Again, the application averred that a decision to prohibit Justice Honyenuga who has heard the case for almost four years at which the prosecution has called its witnesses must be on the basis of only compelling circumstances which show indisputable bias on the part of the judge and not on account of matters complained about by Dr. Opuni.
“The decision of the ordinary bench results in substantial miscarriage of justice since it has the effects of placing the case in the hands of a new judge who has not had the benefits of full trial, observing the demeanour and composure of various witnesses called by the prosecution and assessing their credibility,” the AG added.
The AG insisted that should the trial be started all over again, it will also occasion a miscarriage of justice as the constitutional requirement of expeditious trial would be violated and the prosecution would also be put to enormous expense, inconvenience and hardship in commencing a new trial.
It concluded that “the gross and fundamental errors contained in the decision of the ordinary bench have resulted in substantial miscarriage of justice and render this a fit and proper case for the invocation of this Honourable Court’s review jurisdiction to rectify the errors contained in the decision of the ordinary bench.”
The hearing is scheduled for October 12, 2021.
BY Gibril Abdul Razak