Lawyers for former COCOCBOD boss, Dr. Stephen Opuni are asking the Supreme Court to reconsider its earlier ruling dismissing a case of bias against one of their own, Justice Clemence Honyenuga, as well as a certiorari to quash some decisions of the judge.

The lawyers are set to move the review application on March 8, 2022 at the apex court to overturn the unanimous decision of five justices chaired by Prof Nii Ashie Kotey.

“That I have been informed by counsel and verily believe same to be true that the court committed an error of law which error constitutes exceptional circumstance which has occasioned a substantial miscarriage of justice, when it held that the trial judge had not prejudged the matter. I state that if the ordinary bench had considered the entire record before it, including the ruling of the trial judge, it would have come to no other conclusion than that of a clear case of prejudice…” the applicant underscored.

Justice Clemence Jackson Honyenuga, a Justice of the Supreme Court sitting as a High Court judge, has been hearing the ongoing criminal trial of Dr. Opuni and two others, but Dr. Opuni felt the utterances and actions of the judge are evidential enough that he would not get fair trial if the judge continues to sit on the case.

For instance, he accused the judge of being bias, noting that the judge
on December 9, 2021, had claimed that the evidence of his (Opuni’s) witnesses could not exonerate him except his own evidence, and therefore wanted Opuni himself to mount the witness box instead of calling witnesses.

This among others compelled Dr. Opuni to file a motion to get the judge to recuse himself, which was heard by the judge himself and dismissed on Thursday, December 16, 2021.

But in what appears as an attempt by the trial judge to get even with the applicant, Justice Honyenuga capitalized on his ruling on the motion, which he took two hours to write, to discharge vituperations at Dr. Opuni.

“What is most disgusting is the allegation that I stated in open court that the first accused’s witness cannot exonerate him, the first accused can never underrate my intelligence, my integrity and my long judicial career,” the judge flared up as he read his ruling.

He said the accused “must learn to speak the truth” and asserted, “I think that the first accused must have been hallucinating when DW1 (First Defence Witness) gave evidence because no such thing happened as the first accused has stated in paragraph 17 in his affidavit in support.”

Based on the December 16 ruling, Dr Opuni filed a certiorari application before the apex court, urging it to quash Justice Honyenuga’s ruling on his recusal, and an application for prohibition, to prevent the judge from presiding over the trial.

HONYENUGA’S AFFIDAVIT

The trial judge also filed an affidavit in opposition on January 25, 2022 and denied discriminating against Dr. Opuni.

“The crux of the matter is that, it is the conduct of the applicant who falsely accused the court on utterly false basis completely not borne by the record of proceedings, in his motion and affidavit in support that culminated in the various statement in my ruling.”

He also justified his directive to the accused to file witness statements instead of oral statement as was afforded the seven prosecution witnesses.

“That it has become necessary as the trial judge to control and direct the proceedings to facilitate speedy and effective justice, fairplay, and to avoid further delays in a criminal case which started about 4 years ago and still pending, even though it is a summary proceedings.”

DISMISSAL OF APPLICATIONS

A five-member panel at the Supreme Court on Tuesday, February 22, 2022, unanimously dismissed both the prohibition and certiorari applications because in their wisdom, they did not find any likelihood of bias by the judge for which reason they ought to prohibit him.

The case was presided over by Justice Prof Nii Ashie Kotey, with Justices Mariama Owusu, Lovelace Johnson, Gertrude Torkornoo and Henrietta Mensa-Bonsu as members.

PREVIOUS PANEL

Out of the five panel members, three were part of the enhanced panel which overturned an earlier decision that had gone in favour of Dr. Opuni in October last year. The ordinary bench in a three-two (3:2) majority decision prohibited Justice Honyenuga from hearing the criminal case for exhibiting bias tendencies towards Dr. Opuni. This was challenged by the Attorney General in a review application which ended up in a four-three (4:3) majority decision in favour of the state.

The judges whose decision went against Dr. Opuni were: Justices Jones Dotse, Avril Lovelace-Johnson, Justices Ashie Kotey and Gertrude Tokornoo. Interestingly, none of the Justices, Gabriel Pwamang, Agnes Dodzie and Tanko Amadu, who were in favour of the removal of Justice Honyenuga in the previous case sat on the latest one.

Meanwhile, in his affidavit in support of the review application, Dr. Opuni pointed out that the panel that sat on the case on February 22 erred in not considering the affidavit of Justice Honyenuga filed in opposition to Dr. Opuni’s application.

“In the said affidavit, the trial judge disputes my application and actually becomes a party in the case in circumstances which is evidence of prejudice against me. This is more so when in disputing facts contained in my affidavit in support of motion, the trial judge stated different renditions of what happened in court. To state therefore that the trial jugde had stepped into the arena of conflict in my opinion would be stating the obvious.”

Dr. Opuni further argued that the court erred, which also constituted a grave miscarriage of justice when it failed to consider the provisions under Article 19 (2) (g) of the 1992 Constitution which requires “that I be given the same facilities as was given to the Prosecution. By this provision, this court committed an error when it did not quash the orders made by the trial judge concerning the trial including ordering that my witnesses file witness statements, save my first witness who is already in the box. These orders inhibit me in properly and adequately defending myself and which orders are totally different from the mode of presentation of the case by all the Prosecution witnesses.”

He also noted, “That the effect of the decision of the ordinary panel of this court is that I should continue to appear before the trial judge who has breached my fundamental human and constitutional rights and has made several prejudicial statements and comments about my credibility in his ruling. The decision of the ordinary bench has therefore resulted in grave miscarriage of justice to me. This is more so where the decision of the ordinary bench if allowed to stand will justify the trial judge’s breach of the nemo judex rule against me, and the breach of my fundamental right to fair trial under Article 19(2)(g) of the constitution.

Dr Opuni and businessman Seidu Agongo are facing over 20 charges, including defrauding by false pretences, willfully causing financial loss to the State, corruption by public officers and contravention of the Public Procurement Act.

They have both pleaded not guilty to the charges and are on a GH¢300,000.00 self-recognizance bail each.