Stephen Opuni
The Supreme Court yesterday dismissed another application filed by former Chief Executive Officer of Ghana Cocoa Board (COCOBOD), Stephen Opuni, seeking to prohibit Justice Clemence Honyenuga, a Justice of the Supreme Court sitting as an additional High Court judge from hearing his case.
The court also dismissed an oral application by his lawyer for the court to allow the judge to enter the witness box so he could cross-examine him on issues he raised in affidavit in respect of the application.
The embattled former COCOBOD boss who is standing trial for allegedly causing over GH¢217 million financial loss to the state had filed the motion seeking a certiorari to strike out the judge’s ruling on an application for recusal as well as an order for prohibition on ground of likelihood of bias.
Opuni’s application stems from an application for recusal filed by the accused which was dismissed by the court on December 16, last year, which sought to kick the judge off the case which was dismissed.
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.”
Certiorari
Moving the motion, his lawyer, Samuel Codjoe, argued that the trial judge should not have heard the application for recusal himself as that meant Justice Honyenuga was a judge in his own case, which is in breach of Supreme Court decisions which are binding on him and a breach of natural justice.
“Where the judge says the accused is hallucinating, that the accused lying and has to learn to speak the truth and the accused is trying to question his integrity, such a judge cannot be allowed to continue to hear the case,” he argued.
In respect of the bias, he said where a judge in a criminal matter who is yet to hear the defence of the accused makes conclusions in his ruling, there is going to be a failure of justice if such a judge continues to preside over the matter.
“We are of the view that he will not be fair to the accused and we add that justice will not be seen to be done if the judge continues to sit on this case,” Mr. Codjoe added.
Opposed
The motion was opposed by the Attorney General (AG), Godfred Yeboah, who argued that the application has no merit “or whatsoever”.
He said a careful perusal of the motion shows that apart from minor complaints by Dr. Opuni, there is nothing that warrants the invocation of the Supreme Court’s jurisdiction.
He said the standard for an application for certiorari is when there is a serious breach of the rules of procedure, adding that there is no rule of law which mandates that a trial judge faced with an application for recusal not to determine the application himself.
The AG indicated that it is only in respect of grave charges made against a judge that he or she ought to be restricted, but apart from that the trial judge is competent to hear the recusal application.
Mr. Dame further argued that the application for prohibition is only based on the judge’s adjournments and Dr. Opuni’s application has not made any allegations about the judge making any comments regarding the guilt or innocence of the accused.
He said the comments relied on by Dr. Opuni relate to the judge’s evaluation of the issues raised in the application for recusal before him.
Ruling
A five-member panel of the court presided over by Justice Prof. Nii Ashie Kotey and assisted by Justices Mariama Owusu, Avril Lovelace Johnson, Gertrude Torkornoo, and Henrietta Mensah-Bonsu dismissed the application on ground that the record does not reflect personal interest by the trial judge in the matter or the making of derogatory statements by the judge to warrant an order for certiorari to strike out the proceedings of the judge.
The court also held that it did not find the likelihood of bias by the judge for which reason it ought to prohibit him.
BY Gibril Abdul Razak