Justice Clemence Honyenuga
The Supreme Court has in a 4:3 majority decision reversed its earlier decision and reinstated Justice Clemence Honyenuga, who is sitting as an additional High Court judge, to continue hearing the case of former Chief Executive Officer of Ghana Cocoa Board (COCOBOD), Stephen Opuni, who is on trial for allegedly causing over GH¢217 million financial loss to the state.
The decision to reinstate Justice Honyenuga who has been hearing the case since 2017, came yesterday after the court granted an application for review filed by the Attorney General, Godfred Yeboah Dame, who challenged an earlier 3:2 majority decision of the court to take the judge off the case on grounds of bias as alleged by Dr. Opuni.
The former COCOBOD boss had applied to the Supreme Court to take Justice Honyenuga off the case on grounds of bias, alleging that he will not be given the opportunity to defend himself as he claimed the trial judge was bent on sending him to jail, and in late July the three Supreme Court judges as against two said their colleague could not continue to sit on the case.
The five-member ordinary bench in a 3:2 majority ruled that their colleague Justice Honyenuga cannot continue to hear the case on stated grounds of bias as complained by Dr. Opuni.
The panel also granted an application for certiorari which sought to quash portions of Justice Honyenuga’s ruling on a submission of no case as well as prohibit him from further hearing the case.
Not satisfied with the decision, the Attorney General, Godfred Yeboah Dame filed an application for review in August, urging the court to reverse its decision, arguing that the court had departed from settled principles in dealing with matters.
Moving the motion, he argued that the decision by the ordinary bench to remove the trial judge “contained multiple fundamental flaws which occasioned miscarriage of justice.”
He said the only reason for the grant of Dr. Opuni’s application was the trial judge’s interpretation of the Evidence Act when he excluded certain exhibits and said if at all any error occurred in the exclusion of exhibits, it did not warrant the invocation of the supervisory powers of the Supreme Court.
The Attorney General said the ruling by the ordinary bench will occasion irreparable damage to the Republic in the substantive trial if the ‘errors’ by the bench were not corrected.
Mr. Dame further argued that apart from the effects of the Supreme Court’s decision on the parties in the case, it has the tendency to open the door to the filing of similar applications by parties to shop for judges of their choice.
“Prohibiting a judge who has obeyed the judicial precedent of the Honourable Court strikes at the heart of the certainty of the law, with greater consequence on the administration of justice,” the Attorney General argued and said that what Dr. Opuni has done can be interpreted to mean that he is deciding who should be the judge in his own case.
He, therefore, urged the court to reverse the decision of the majority “as it contains errors that go against the administration of justice, not only in this case,” and added that “the refusal of this review permits lower courts to disregard without more, the binding precedents of Supreme Court Authority.”
Samuel Codjoe, counsel for Dr. Opuni, opposed the application by the AG saying that the application for review did not meet the threshold needed for the court to take a decision.
He insisted that the applicants (Attorney General’s Department) were just rehashing the arguments made in the previous application which was granted.
He said the trial judge was clearly bias as he did not give the accused person the opportunity to open his case but instead predetermined and prejudged the case.
“He had made his mind and was going through the rituals while waiting to pronounce sentence,” Mr. Codjoe, told the court.
He added that the majority was right in prohibiting the trial judge and prayed the court to uphold the decision.
The court, in a 4:3 majority, granted the review application and reinstated Justice Honyenuga to continue hearing the case, indicating that their reasoned ruling would be made available by close of Friday, October 28.
Justices Jones Dotse who presided over the panel, Avril Lovelace-Johnson, Prof. Nii Ashie Kotey and Gertrude Torkonoo formed the majority while Justices Gabriel Pwamang, Agnes Dordzie and Umoru Tanko Amadu dissented.
In the ordinary bench decision when Justice Honyenuga was restrained, the majority were Justices Pwamang, Dordzie and Tanko Amadu whilst Justice Dotse and Lovelace Johnson dissented.
Two Justices Prof. Kotey and Torkonoo were then added to the original panel to decide the review application filed by the Attorney General.
Ahead of the crucial ruling, the Supreme Court refused an application by Dr. Opuni which sought an order against Justice Dotse to recuse himself from further taking part in the hearing of the review application.
He had filed the application alleging he doubted the judge’s impartiality because of a meeting he claimed took place between the judge and the Attorney General.
The application was filed barely 24 hours before the court was to deliver its ruling on the review application filed by the Attorney General asking the Supreme Court to reverse its decision and reinstate Justice Honyenuga to continue Dr. Opuni’s trial.
The application was based on a widely circulated internet publication by one Kelvin Taylor, domiciled in the United States who has been making wild but unproven allegations against public officials in the country.
According to Dr. Opuni, the said Kevin Taylor had alleged that the Attorney General, on October 15, 2021, went to the office of Justice Jones Dotse, and had an extensive meeting with him which lasted for two hours.
Both Justice Dotse and the Attorney have both confirmed the meeting but said it was about issues relating to the law school and the AG had visited the judge in his capacity as the acting Chief Justice in the absence of the Chief Justice.
Moving the motion, Mr. Codjoe argued that justice should not only be done but should manifestly be seen to done.
He said it was possible the AG and the judge did not discuss anything about the case but still said the judge should recuse himself so that the citizenry will have confidence in the Judiciary.
The application was opposed by Deputy Attorney General, Alfred Tuah-Yeboah, who argued that it was unmeritorious “and been brought in bad faith and nothing else.”
He told the court that the AG sits on boards with the judges and if the AG decides to meet the Chief Justice to discuss official matters, it does not meet the threshold for a judge to recuse himself.
He added that “this application had been brought to muddy the waters and nothing else. We pray that the court dismisses this application.”
A five-member panel of the court presided over by Justice Pwamang, dismissing the application, said they do not find any evidence that leads a reasonable basis for doubting the impartiality of Justice Dotse in the hearing of the review application.
The court also refused another application for leave sought by lawyer for Dr. Opuni, to allow him cross examine Justice Dotse and the Attorney General on what their meeting was about.
BY Gibril Abdul Razak