One-man style of adopting Honyenuga proceedings offends SC ruling – Opuni’s lawyer tells Justice Tandoh

Justice Aboagye Tandoh cannot solely and unilaterally adopt the proceedings of now-retired Justice Clemence Honyenuga’s court without conferring with all the parties involved in the GHS217-million financial loss case, as such procedure goes contrary to common law precedence, Mr Samuel Codjoe, lead counsel for Dr Stephen Opuni (the first accused person) has argued.

Dr Opuni (the first accused person) is being trialled together with businessman Seidu Agongo and the former’s company, Agricult Ghana Limited, on 27 counts, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.

Arguing in support of a motion filed on 26 July 2023, on notice for a stay of proceedings as well as for the court to set aside its own orders given on 25 July 2023, by which orders Justice Tandoh adopted the proceedings of the Honyenuga Court, Mr Codjoe said: “The position of the Supreme Court, with respect to how adoption of proceedings has to be done, is contained in the case of Adomako Annane v. Agyemang and this is reported in 2013 to 2014 1 SCGLR (Bempong Buta report 241) at page 256, Wood CJ, who read the unanimous decision of the Supreme Court, and if I will add, this was the case which the Supreme Court, by virtue of its powers under article 129(3), departed from the previous position on adopting proceedings in civil matters which, hitherto, was that, all cases in which a judge could not complete the hearing [of] should be heard de novo, unless the parties agree to adopt the proceedings”.

The apex court, Mr Codjoe continued, “stated, in its ruling, how the proceedings should be adopted”.

He said the court held in the second paragraph that: “‘In this appeal, we have before us a reliable transcript of the proceedings signed by the judge, who received the evidence. We have not the least evidence of the slightest objection from any of the parties relative to its reliability … On this basis, we will adopt the proceedings and, at this rehearing, use the evidence to resolve the disputed facts’”.

Mr Codjoe pointed out to the court on 12 October 2023 that: “What is not in doubt is that adoption of proceedings requires that all parties should agree on what constitute the proceedings”.

“With proceedings, we also submit that it consists of not only the testimony of the parties but also the exhibits, rulings and orders and a court is required and has no option but to follow this approach”, Dr Opuni’s lawyer argued.

Referring to Harlley v. Ajura Farms, a case reported in Ghana Law Report of 1972, which, he noted was “a decision of the full bench of the Court of Appeal, which at that time, was the equivalent of the Supreme Court”, being that it was the final appellate court, Mr Codjoe quoted Justice Taylor, (as he then was), holding that: ‘In these courts, we dispense justice in accordance with three and only three yardsticks: statute law, case law and the well-known practices of our courts’”.

Mr Codjoe put forth that “the case law and the practice, with respect to the adoption of proceedings, requires that the parties, together with the court, will have to agree on what constitutes the record and, by this, the parties have to go through the records with the court”.

He said in the Adomako Annane v. Agyemang case which he earlier eferred to, “although it is an appellate case, the Supreme Court was unambiguous that none of the parties had raised the slightest objection as to the record”.

“What is clear is that the parties have to go through the records and ensure that the record is an accurate reflection of what took place in court and if there are any errors, same should be corrected”, Mr Codjoe pointed out.

In this particular case, however, he said the court “did not abide by this binding position”.

Mr Codjoe said Justice Tandoh’s ruling “has no basis in law”, insisting “this court erred in coming to the conclusion to adopt the proceedings in the way in which he did, i.e. by not going through the proceedings with the representatives of the parties to agree on what constitutes the proceedings”, as, he indicated, “the parties have the legal and constitutional right to correct any error in the records and, in fact, the court itself is required to ensure that the records are correct”.

“Indeed, at the Court of Appeal, when the records of appeal were compiled (the record of appeal contains the entire proceedings in the case), we drew the attention of the Court of Appeal to numerous errors, mistakes and anomalies in the transcript. This record, we submit, is what this court has adopted”.

Mr Codjoe told the judge, “What is clear is that, you are required, by law, to have gone through the proceedings with us and correct the proceedings and not suo motu adopt the proceedings by stating that since the court had the power to adopt the proceedings, you, on your own, had adopted the proceedings”.

He said: “We do not know or agree on the proceedings this court claims to have seen and adopted as we were not given any opportunity”, noting that “even before the court came to its ruling, we protested that it could not adopt the proceeding in the way in which this court did”.

He referred to the case of Mosi v. Bagyina, where the Court of Appeal held that a court had a duty to set aside its own orders, including on the ground that it is not warranted by any rule or procedure of law.

“We state that the procedure the court used in adopting [the proceedings] is alien and not supported by any rule. In fact, it goes contrary to the binding authority of the Agyemang case”.

The Republic Insists The Judge Did The Right Thing

In a counter-argument, counsel for the Repupblic, Stella Ohene Appiah, said the prosecution was opposed to the application of the first accused person.

“We rely on our affidavit in opposition filed on 8 September 2023. We wish to add that this court rightly ruled in law, when it made the ruling that it has adopted the proceedings of the court differently constituted”, she argued.

Responding to Mr Codjoe’s submission, Ms Appiah said: “We wish to state that contrary to what counsel has put before this court this afternoon, on the 12tt of July, 2023, this court, indeed, directed the parties to apply for the records of proceedings. This court gave the parties the opportunity to apply for the record of proceedings based on the insistence of all the accused persons that they do not have any of the proceedings nor have they seen the proceedings anywhere”.

“When we came to this court on the 25th of July, the prosecution informed the court that we have copies of the proceedings. All the accused persons said that they do not have the proceedings because they had not applied for same and I doubt if they had applied even today”, she wondered.

The court, she added, “gave all of us the opportunity to apply for the proceedings and which proceedings are not the records which were sent to the Court of Appeal for the interlocutory appeal”.

“Counsel has submitted that there are mistakes in the current proceedings. He does not have the proceedings in the first place and, so, he is unable to point out the alleged mistakes to this court and throughout his presentation this afternoon before your court, he did not demonstrate any mistake by pointing out even a word from the proceedings he does not have to the court”.

“Counsel submitted that it is the law that parties need to agree on the proceedings before it is adopted; that is not the law. This argument was made before this very court presided over by your brother, Gyimah J. This court ruled over it and, so, this argument counsel was trying to urge upon you is just a recycled argument which has been ruled on. Therefore, it is no longer the case that parties are the ones to decide and agree on what the proceedings should be”, Ms Appiah averred.

She added: “The proceedings adopted by the court without consulting the parties, which do not have the power anyway, is the right thing done by the court. The applicant has not been able to demonstrate to this court in any way that the court had erred in adopting the previous proceedings. I, therefore, pray this court that the application be refused and for the case to continue”, she submitted.

Judge Rules

In his ruling, Justice Tandoh said: “It is not in doubt that the High Court, by virtue of its inherent jurisdiction to do justice in the circumstances where no express rule so provide, and to this, this court is in tandem with the position as submitted by counsel for the applicant”.

“Also, in the case of High Court, Ho, Ex-parte: Attorney General (applicant/ respondent) and Professor Margaret Kwaku Allan Opoku Mintah, John Kwame Obimpe, Godfred Kwaku Fofie and Felix Quashie (interested parties/applicants) [2021] DL SC 10693 at pages 9, 10, 11 where the Supreme Court, speaking through Torkornoo JSC (as she then was) stated that on the exercise of the special jurisdiction of the High Court (inherent jurisdiction) (emphasis mine) with its other jurisdictions, ‘Notwithstanding this seemingly blanket of jurisdiction to the High Court, it is trite and well understood position of the law that this provision does not confer unfettered jurisdiction on the High Court and the jurisdiction of the High Court is always interpreted to ensure harmony with other statutes that confer various jurisdictions on other bodies or adjudicating forum…’”

“In the instant application and, as also submitted by counsel for the prosecution/respondent, the applicant did not annex to the application any error, mistake or anomalies in a circumstantial or special or extraordinary to warrant the court’s intervention by way of its inherent jurisdiction. This application, thus, creates the impression that this court is being called upon as an appellate body to stay its proceedings and to set aside its order adopting the proceeding of the previous judge, dated 25th July 2023, when appeal, at the time, lie as of right to the Court of Appeal pursuant to section 11 (2) of Court’s Act 459 (1993) as amended”, the judge said.

“From the foregoing, the decision of this court on 25th July 2023, which decision adopted the proceedings of this case, will not be disturbed as same do not warrant invoking the inherent jurisdiction of this court.

Accordingly, the motion urging on this court to stay proceeding and set aside the adoption of the proceedings of this court on the 25th of July, 2023, is devoid of merit and same is dismissed”.

Source: Daily Mail GH