Lawyers of Businessman, Seidu Agongo, the Chief Executive Officer (CEO) of Agricult Ghana Limited, has asked for his pending application for retired Justice Clemence Honyenuga to recuse himself, included in a docket to be transferred to the Chief Justice (CJ) for reassignment.
The retired Justice of the Supreme Court, who was sitting on the case in which Dr Stephen Kwabena Opuni, former Chief Executive of Ghana Cocoa Board and two others as an additional High Court judge, had been a subject matter of several recusal applications, including a pending one from the businessman.
In a motion filed on Friday, February 17, the embattled businessman, accused the trial judge of deliberately putting hurdles in the way of the accused to falter and get jailed on trumped-up charges.
Before the application could be moved, the Attorney General (AG) Office through the Deputy AG, Alfred Tuah Yeboah, had asked for the brief to be transferred.
The request from the Attorney General’s office to refer the matter to the CJ, was premised on the grounds that Justice Honyenuga had “extremely limited” time to conclude the case, following his extended mandate by CJ upon retirement on September 4, 2022.
However, prior to ordering the Registrar of the High Court to transfer the case docket to the CJ for it to be reassigned, lawyers of the accused persons, urged the judge to include in the records the pending motion for his recusal to be included in the documents to be sent to CJ.
Counsel for the 2nd and 3rd Accused (Seidu Agongo and Agricult), Nutifafa Nutsukpui, holding Benson Nutsukpui’s brief, submitted that the said motion should be part of the records even though the judge in question had his mandate virtually expired.
“It’s our submission that the said motion (recusal), being a process on the case docket, remains on the docket for the Chief Justice to re-assign a new person to consider,” Counsel submitted.
He added “It’s our view respectfully that at the point of the decision where the court would’ve made the order to return the brief to the Chief Justice, the motion had already been filed and forms part of the docket for all processes.”
To this, he said “it’s our prayer that the docket as it is, be returned in its entirety to the Chief Justice for re-assigning.”
Stella Ohene Appiah, a Principal State Attorney, initially said since the docket was going to be re-assigned, the pending application for recusal would no longer be necessary.
She, however, sided with the defense, saying “if counsel wants the application to go for a new judge, as part of the records of proceedings; I also think that it should be on the docket as proof of how many times the accused persons have tried to unseat the previous trial judge.
She said, it inclusion “will set the records along the line so it should be known,”
Counsel for Dr Stephen Kwabena Opuni led by Samuel Codjoe, added: “My lord in my opinion, once it’s part of the record,” it should be part.
Retired Justice Honyenuga said “It is crystal clear that it is impossible for me to conclude and determine this case, in the circumstance, I will uphold the submission of the Attorney General under Section 105 of the Court Act, 1993, Act 459.
“Now, this is my ruling on the submissions by the Deputy Attorney General. I must state that it is refreshing that Attorney General who initiated the Criminal proceedings against the accused persons has submitted through the Deputy Attorney General that this case be referred to the Chief Justice due to the limited time at my disposal,” he stated.
“Indeed, due to the limited time accorded me by the Chief Justice to continue to hear this case, it is crystally clear that it is impossible for me to conclude and determine this case with DW7 in the box.
“In the circumstances I will uphold the submission of the Deputy Attorney General and hereby grant the application under Section 105 of the Court’s Act 1993 Act 459 as amended.
“It is hereby ordered that the pendency of this case be reported to the Chief Justice for his directions.
Accordingly, the Registrar of this court is to carry out this order forthwith. In the circumstances I will adjourn this case to the 15th of March, 2023,” Justice Honyenuga ordered.
Dr Opuni and businessman Seidu Agongo have pleaded not guilty to some 27 charges and are standing trial for an alleged willfully causing financial loss to the State following the purchase of Lithovit Liquid fertilizer to cocoa farmers.
It was the fourth time that the trial judge was asked to step aside on accusation of bias. Indeed, his peers in the Supreme Court at a point had to boot him away from the case, but the Akufo-Addo government through the Attorney-General and Minister of Justice, Godfred Yeboah Dame, who had several times labeled the case as a demonstration of the government’s commitment to fight against corruption had empanel two more judges to overturn the judgment banning Justice Honyenuga.
In the motion filed on Friday by Alhaji Agongo, Justice Honyenuga was also accused of being selective in applying the laws, adding he “unfairly, capriciously, discriminatorily, and prejudicially” applied the hearsay rules “only against the Accused Persons”.
They are facing 27 charges, 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.
A copy of the affidavit sighted, made copious reference to the May 7, 2021 ruling on the submission of no case, in which Justice Honyenuga in his closet unilaterally and “curiously rejected” as many as 18 evidential documents which the accused persons said exonerate them of any wrongdoing.
“That by rejecting the exculpatory evidence and marking them as rejects thus ensuring that we can never rely on the said exhibits at the trial while at the same time calling on us to open our defence in respect of the very same matters means that this Court has already sealed our fate and only wants us to go through a sham of a trial when it has already predetermined our guilt even before we are heard especially when similar evidence tendered by the Prosecution was spared the wrath of this Court.”
He cited the case of two farmers whose statements were taken and tendered in evidence in a similar manner but by two different parties. He noted that the farmer whose statement was tendered by the accused was rejected, but the same court accepted the one tendered by the prosecution and used the same in his ruling against the accused.
“That I am advised by Counsel and I verily believe the same to be true that a fair minded trial Court in a criminal matter must be interested in evidence that enures to the benefit of an accused person and not seek to capriciously put such evidence beyond the use of an accused as this Court had done in rejecting and marking as rejects all these documents to the effect that we cannot rely on them in our defence at the trial.”
He is therefore convinced that no matter the evidence that would be adduced, “our fates are sealed and any further trial proceedings before the same judge will just be an academic exercise”.
Justice Honyenuga was once again accused of “clearly being influenced by extrajudicial considerations” in the matter before him.
The businessman also cited a recent event in court to buttress his reason to get the judge to back off.
On February 14, 2023 when the case was called, Mr Agongo was not in court due to ill health. The judge had previously ordered the Registrar of the court to go to the 37 Military Hospital where the accused was on admission to ascertain the veracity of his claim.
“As I indicated, I have limited time to conclude this matter but such medical excuses are delaying the trial of this case. I must state emphatically that this court has the discretion to accept or reject medical evidence and I must also add that the second accused is on bail and he is still subject to this court’s discretion. And I must also add that this court has enormous powers to deal with any situation in this court,” the judge said in part before adjourning the case.
But he said comments made by the judge were terrifying and suggested that the judge did not trust him.
“That I was simply terrified to have read the above sentiments expressed and the threat issued by the said Justice C.J. Honyenuga (JSC), who obviously did not care whether or not I was unwell because he must by all means conclude this matter and considers my ill health as an impediment to his goal,” Agongo’s affidavit read.
“…his present threats to me would lead any independent observer, unfortunately, to the only irresistible conclusion that the said Justice C.J. Honyenuga (JSC) cannot be an arbiter in this matter; and must, respectfully, recuse himself in the interest of justice.”
When the motion was brought to the attention of the court on February 20, the judge admitted that issues raised in the motion were very serious.
“In view of the very serious matters raised, I am adjourning this case to Thursday 10:00am. I would have abridged the time to Wednesday the 22nd February to hear the motion but I am aware that the Supreme Court will give a ruling in the review filed by the first accused.”