Lawyers of the former Ghana Cocoa Board (COCOBOD) CEO have told the Supreme Court not to set aside its decision to bar Justice Clemence Honyenuga from hearing his criminal trial.

They said the Judge has made up his mind that Dr Stephen Opuni is guilty and is determined to just go through the ritual of trial while waiting to pronounce the sentence.

“He had made his mind and was going through the rituals while waiting to pronounce sentence”, lead Counsel for Dr Opuni, Samuel Codjoe, told the court.

In a close call 3-2 decision in July this year, the Supreme Court restrained Justice Clemence Honyenuga from hearing the case.

Justice Honyenuga, a Justice of the Supreme Court, has since 2017 been hearing the case as an additional High Court judge.

In July 2021, Dr Opuni’s lawyers applied to the Supreme Court that it should restrain Justice Honyenuga from hearing the matter.

He alleged that his right to be heard fairly had been breached by the Judge, aside from a demonstration of bias.

The allegations flowed from Justice Honyenuga’s ruling on a submission of no case application. Dr Opuni’s lawyers contended that the judge committed an error of law when he rejected some documents submitted as evidence.

The documents were witness statements said to have been obtained by the state during investigations. One is a statement by the Head of the Cocoa Research Institute, denying that he had been coerced to do his work.

A procurement officer is also said to have given a statement, which Dr Opuni said exonerates him from any breaches of the procurement law.

Another statement is said to have indicated that the fertiliser at the centre of the controversy effectively increased the yield of cocoa farms.

Dr Opuni’s lawyers said these statements were withheld by state prosecutors and only made available when they applied for them. These statements were, however, rejected by Justice Honyenuga with the following justification;

“However, counsel tendered exhibits 71,72, and 73 being statements of Genevieve Baah Mante (Mrs), Fiona Gyamfi and Paula Adjei Gyang, which confirm that there was another test conducted on the Lithovit supplied to GSA for further testing.

"It is trite that a witness should not talk about something of which he had no personal knowledge but rely upon his own observations and recall of the matters in dispute, and this is the rule against hearsay provided under section 117 of NRCD 323. See Ekow Russel [2017-2020] SCGLR 469 Holding (4).

"It is also trite that a court could admit documents into evidence and reject same during Judgment. In view of the decision in Ekow Russel v The Republic, a Supreme Court decision, this court was wrong in admitting Exhibits 71,72 and 75 since they offend against the hearsay rule in section 117 of NRCD 323.

In the circumstances, this court rejects exhibits 71, 72 and 75 as hearsay since the authors were not under section 117 of NRCD 323 available to answer questions and in the denial of PW7 about another scientific test, these exhibits are hereby rejected as marked as ‘rejected’.

Further at page 88 of his ruling, he said this;

“Moreover, by the decision of the Supreme Court in Ekow Russel v the Republic (supra) I would reject exhibits 58,59.60,61,62,63,64,65,66,67,68,69,70,71,72,73,74 and 75 as they offend the hearsay rule in Section 117 of NRCD 323 as a court has power to reject evidence during judgment stage. The exhibits were all tendered through witnesses who were not authors and could not answer questions based on them. Meanwhile, the witnesses are available”.

The lawyers contended that this position taken by the judge is contrary to law. However, the Supreme Court, in its judgment, took the view that these statements were admissible.

The court said these statements were crucial to Dr Opuni, and he should therefore have been given a hearing before the Judge decided to expunge it.

On the allegation of bias against the Judge, the lawyers explained that the Judge made some prejudicial comments in his submission of no case ruling.

“All these were perpetuated to facilitate the 2nd and 3rd accused’s business and defraud COCOBOD. Indeed these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused to perpetuate fraud on COCOBOD by supplying a different product from what was tested and approved.”

Page 54 again. “…However, the 1st accused, although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused to defraud COCOBOD.”

The case was heard by Justices Jones Dotse, A.M Dordzie, Amadu Tanko, and Lovelace Johnson and Gabriel Pwamang.

Justice Gabriel Pwamang, who wrote the lead judgment, concluded as follows

“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. Therefore, in conclusion, the application succeeds on both counts and is accordingly granted as prayed.”

He was backed by his colleagues, Justices A.M Dordzie and Tanko Amadu. Justices Jones Dotse and Lovelace Johnson disagreed.

The review application is being heard by Justices Gertrude Torkonoo and Prof Ashie Kotey, who have joined the original panel.

The Attorney General told the panel the decision of the highest Court of the land contains fundamental errors of law that manifestly resulted in miscarriage of justice.

But Dr Opuni’s lawyers disagree.

They said review cannot be a means to re-argue matters that have been canvassed and rejected by the court. The court adjourned proceedings to October 26 to deliver its ruling.