The judge, who is sitting with additional responsibility as a high court judge, has also been accused of giving preferential treatment to the Attorney General.
“The conduct of His Lordship Justice ClemenceHonyenuga since I opened my defence is one of open hostility towards me, his acts and conduct is such that justice cannot be said to be seen to be done,” the affidavit in support of the motion filed on December 10, 2021 captured.
Justice Clemence Jackson Honyenuga’s handling of the case of former COCOBOD boss, Dr. Stephen Opuni and businessman Seidu Agongo, accused of causing financial loss to the state and contravention of the Public Procurement Act, has been full of controversies.
Several attempts in the past to get the judge to step down due to a number of alleged “unfavourable and bias” actions by him have been unsuccessful.
In the latest application at the high court, Dr. Stephen Opuni, prayed that “based on the averments contained in the above, it is only fair and just that the trial judge recuses himself from further hearing of the suit.”
The affidavit made reference to at least two occasions where the judge imposed dates on the parties, and would not hear his counsel out even on medical grounds.
He noted that sometimes his lawyers are unable to make it to court on the imposed dates, because they have made prior commitments in other courts.
“That I state further that this conduct of the learned judge in unilaterally imposing dates did not happen when the Prosecution was presenting its case. During that time, the Learned Judge always agreed with the lawyers before adjourning the case. Unfortunately, the Learned Judge has refused to grant me the same conditions and facilities which were afforded to the Prosecution.”
He stated further that the trial judge “has exhibited open hostility towards me since I opened my defence and this is evident where he (the learned judge), in open court, apart from not hearing my Counsel with respect to adjourned dates, bangs his files on his table when giving dates and on his own, orders the court to rise whiles angrily screaming “court rise”. Indeed, at the last hearing on the 9th day of December, 2021, the learned trial judge unilaterally adjourned the suit at a time my lawyer was on his feet and addressing him with respect to the proposed adjourned dates and walked away to his chambers.”
According to Dr. Opuni, he is convinced that the conducts of Justice Honyenuga breached his right to a fair hearing and also constitute a breach of Rule 3 (5) of the code of conduct for judges and magistrates, which stipulates that:
“A judge shall perform judicial duties without bias or prejudice, A Judge shall not, in the performance of Judicial duties, by words or conduct, manifest bias or prejudice including but not limited to bias or prejudice based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status, and shall require Court personnel and others not to do so.”
Justice Clemence Honyenuga, is also being accused of making prejudicial comments.
“That the fact that the judge is biased towards me is evidence by his prejudicial comment which he made in court on the 9th day of December, 2021 where he stated in open court that the evidence of my witnesses cannot exonerate me save my own evidence. This shows a clear case of bias and that the learned judge has already made his mind even though my first witness has not yet completed his evidence in chief. I add that this comment is further evidence that the learned trial judge would not consider the evidence of my witness even though he has not completed his evidence in chief.”
The affidavit added, “That during the examination in chief of my first witness, when my lawyer sought to elicit response from my witness on portions of the findings of fact made by the judge in his ruling dismissing our application for submission of no case including the above, the learned trial judge stopped him and furiously informed him that he was not going to allow my lawyer to ask questions by referring to his ruling. This Conduct is one of bias since the questions to be asked are based on the express finding made by the judge with respect to the submission of no case in which the judge made extensive references to the evidence of various prosecution witnesses affirming the basis of his ruling.
“That I state that unless the learned trial judge recuses himself from hearing this matter, I would be denied a fair trial since I would be prevented from conducting the case in a way which I am entitled to by making references in this instance to specific portions of the ruling.
“That I state further that the fact that the learned trial judge is biased is further evidenced from his conduct of the 2nd day of December, 2021, where the learned trial judge, even though aware of the fact that I had the constitutional right of deciding the mode of calling witnesses, initially objected to DW1 giving evidence. This was most unfortunate in that at no point in time during the presentation of the case by Prosecution did he seek in any way whatsoever and or howsoever to instruct on the sequence of calling their witnesses.
“That I state further that the learned judge has repeated on numerous occasions since I opened my defence that his diary at the Supreme Court does not afford him enough time hence his act of imposing these said dates. It is thus clear to me that I will not get a fair trial as my trial would be rushed through byhis Lordship the trial judge”.
The motion is expected to be moved by counsel for Dr. Opuni on December 16, 2021.
In July this year, the ordinary bench of the Supreme Court in a 3:2 majority decision ordered Justice Honyenuga to take his hands off the case for showing signs of bias.
But in 4:3 ruling, the decision was overturned in a review application that have raised eyebrow among the legal fraternity.
