Lawyers in shock, disbelief as Chief Justice reconstitutes, chairs Opuni case panel

Chief Justice Justice Gertrude Torkornoo has made changes to an already-constituted court hearing an appeal filed by former COCOBOD Chief Executive, Dr. Stephen Kwabena Opuni.

Some legal luminaries who were stunned by the Chief Justice’s curious move were heard murmuring in disbelief after the counsel for Dr Opuni, Mr Samuel Codjoe, revealed in court that the panel now sitting on the case was different from the panel they appeared before months ago.

The Chief Justice has also decided to now sit on the case. She automatically chairs the new panel.

It would be recalled that when Justice Kwasi Anokye Gyimah, before his transfer to Kumasi, on April 4, 2023, decided to hear the trial of Dr Opuni and businessman Seidu Agongo de novo (afresh) when he took over the case from retired Supreme Court judge Clemence Honyenuga, who had presided over the case for years with additional responsibility as a High Court judge, Attorney General Godfred Yeboah Dame, who was dissatisfied with the outcome, took the matter to the Court of Appeal.

The case was heard with the Attorney General securing a favourable ruling as the three-member panel on 3rd July 2023 quashed the decision of the High Court, allowing for the adoption of proceedings.

Counsel for Dr. Opuni, who felt the judges of the Appeal’s Court “committed an error of law” in their judgement filed an interlocutory appeal at the Supreme Court on 7th July, 2023.

Several months after the appeal was filed, the parties were made to appear before the Supreme Court on 17 January 2024 for a hearing.

The court was presided over by Justice Mariama Owusu and four other Supreme Court judges, namely, Justices Yaw Darko Asare, Emmanuel Yonny Kulendi, George Kingsley Koomson, and Henry A. Kwofie.

The five-member panel made orders for parties to file written submissions.

The orders of the court were to the effect that, the Appellant was to file his written submissions within twenty-one (21) days, the Attorney General’s Department was to file their response within twenty-one (21) days of receipt of the Appellant’s submissions after which Appellant had seven (7) days within which to file a reply to the submissions of the prosecution.

Dr. Opuni filed his submission as directed by the court same as the AG, but the former declined to reply to AG’s submission.

The matter was then adjourned sine die for the Registry to issue a notice for parties to appear before the court to set a date for judgment.

The Herald is reliably informed that despite several follow-ups, from the date the matter was adjourned, Dr Opuni’s lawyers only received the hearing notice on the 2nd day of May 2024.

This is clearly at variance with the swiftness with which the appeal against Anokye Gyimah’s ruling to hear the matter de novo was heard.

The Court of Appeal was constituted within days to determine the appeal by the Attorney General. Unfortunately, that has not been the case in respect of Dr. Opuni’s appeal.

Nonetheless, on the 8th day of May 2024, Dr. Opuni together with his lawyers appeared before the court to receive a date on which judgment would be given on his appeal, but to their surprise, the panel which previously gave orders for filing of submissions has been reconstituted.

Only two out of the five justices made it to the new panel.

This new panel is presided over by the Chief Justice herself, together with four other Supreme Court judges: Justice Mariama Owusu, who presided at the first instance, Justice Henrietta Mensa-Bonsu, Justice Yaw Darko Asare, and Justice Ernest Gaewu.

Mr Samuel Codjoe, who felt his client was being treated unfairly, objected to the composition of the panel.

“As soon as we filed our written submission, we were ordered to appear before the panel. As soon as we filed, the panel heard us. Insofar as the panel ordered us to appear, it constituted a hearing,” Mr Codjoe asserted.

He referred to Article 157(3) of the 1992 Constitution to buttress his objection.

Article 157(3) of the 1992 Constitution stipulates:  “Without prejudice to clause (2) of this article, no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of panel determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered.”

It was the position of Mr Codjoe that the Chief Justice was biased with her action, arguing that the hearing of the matter by a new panel was unconstitutional because the previous panel had already begun hearing the matter,

He insisted that the previous panel, having heard the parties, could not be withdrawn until judgment was delivered. For that reason, hearing of the matter by a new panel was wholly unconstitutional, he stated.

But the Attorney General opposed the objection, arguing that there has not been any hearing at all of the matter.

In his argument, the Attorney General conceded that a hearing can be done orally or in writing.

Mr Codjoe then reiterated to the court that the directive by the previous panel had been obeyed with the filing of the written submissions, which he insisted constituted a hearing.

The panel was, therefore, compelled to go on recess.

The panel, however, emerged with a ruling that the case was not ripe at the time for hearing when the previous panel gave the orders for the written submissions.

The objection was overruled on the basis that Mr Codjoe’s position that the hearing had begun was misconceived.

The suit has been adjourned to 19th June 2024 for judgment.

Even though the Chief Justice and her panel of judges claimed that what the previous panel did, did not constitute a hearing, the judgement by the court, fixed for next month, would be based on written submissions filed as a result of the directive given by the previous panel.

This has left some legal brains questioning the Chief Justice’s position since the parties did not make any argument before the current court nor file any written submissions to inform the judgement to be given on June 19.

Background

Following the retirement of Justice Clemence Jackson Honyenuga who had presided over the case since 2018, the Chief Justice reassigned the matter to another judge.

On March 30, when the court reconstituted at the High Court (Land Court 2), the Attorney General, through the Chief State Attorney Mrs Evelyn Keelson, appealed to the court to adopt the proceedings of the previous judge, but was vehemently opposed by counsel of the accused persons.

The parties were therefore directed to file their written arguments, and on April 4, 2023, Justice Kwasi Anokye Gyimah, the new judge, ruled on the application and ordered that the case be started afresh – de novo – considering a number of issues including the need to observe the demeanour of witnesses called.

The judge in his ruling also recognised the fact that when Justice Honyenuga (rtd) was in charge of the matter, the case was “replete with applications upon applications coming from both counsel for the accused persons challenging various aspects of the conduct of the proceedings before the previous judge some of which applications are currently pending before the Supreme Court with another one currently pending before me.

“The accused persons have time and again complained about the fairness of the trial so far and that is one of the reasons why they are vehemently opposed to the adoption of proceedings in this matter.”

But the Attorney General, Mr Godfred Dame “dissatisfied” with the ruling subsequently ran to the Court of Appeal to quash the ruling of the High Court.

“The learned judge in relying on irrelevant factors already disposed of by the Superior Courts, unfairly gave the accused persons a second bite at the cherry,” the A-G stated in the affidavit supporting the suit.

“The learned judge erred in ignoring the right and duty of the Republic to efficiently prosecute crime and placing a premium on the presumption of innocence of the accused person.”

The court presided over by Justice Bright Mensah, together with Justice Jenifer Dadzie and Justice Ernest Owusu Dapaah on July 3, 2023, granted the Attorney General’s request and ordered the adoption of the previous proceedings.

The court said the High Court erred in law when it ruled that the case started afresh.

This ruling is what Dr. Opuni’s counsel appealed at the Supreme Court on July 7, 2023.

The grounds of appeal stated: “The learned Judges committed an error of law when they held that the trial judge exercised his discretion wrongly when he ordered the case to be started de novo.”

“The settled practice in criminal trial is that when a pending criminal case is assigned to a new judge, the judge is obliged to start the case de nova,” the appeal noted, adding, “Settled practices of the courts can only be changed by statute”.

Godfred Dame’s own position

Back in 2023, after securing the favourable judgement from the Court of Appeal on July 3, quashing the de novo trial, Godfred Yeboah Dame announced his decision to get Parliament to approve a new Bill for Ghanaian judges to adopt proceedings in criminal trials in the event that another judge is unable to conclude a matter before him or her.

This indicated his belief in the fact that judges have the discretion to try criminal cases afresh. “The true position of the law is actually up to the trial judge to make that determination. The trial judge makes that determination based on factors that he considers necessary,” the A-G told journalists after the ruling.

This position is in tandem with his stance that he forcefully championed at the Supreme Court in 2021 to convince judges at the superior court to overturn their earlier decision barring one of their own, Justice Honyenuga, from hearing the trial of former COCOBOD boss and two others.

“If the new judge orders an adoption of the evidence led so far rather than a commencement ‘de novo’, he would definitely have lost the benefits of the conduct of a full trial by him, – observation of the demeanour, countenance and composure of witnesses, etc.” the statement of claim filed by the Attorney-General Godfred Dame himself dated August 18, 2021 at the Supreme Court posited.

Supreme Court’s position in 2023

Writing a decision of the Supreme Court in the Republic vs High Court (Criminal Division) ex-parte Stephen Kwabena Opuni on January 24, 2023, Justice Dotse stated: “The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part-heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo”.

“Perhaps the time has come for this problem to be reviewed, This is because, if as a country we are to make some progress in the prosecution of criminal cases, especially corruption-related cases pursuant to the Article 19 provisions of the Constitution 1992, then the bold step has to be taken to introduce sweeping reforms in this part of our criminal justice. We therefore appeal to the Chief Justice to urgently consider reforms in this part of our criminal justice.”

As elucidated by Justice Jones Dotse, now retired, and backed by the Attorney General on the need to get Parliament to approve a new bill to get judges to adopt proceedings in criminal trial, it is trite knowledge that starting criminal trials de novo is the status quo.

Former COCOBOD Chief Executive, Dr. Stephen Opuni, businessman Seidu Agongo and Agricult Ghana Limited are facing 27 charges, including defrauding by false pretences, willfully causing financial loss to the state, corruption by public officers and contravention of the Public Procurement Act.

Source: The Herald