The Attorney General and Ministry of Justice, has in unprecedented twist joined lawyers of ex-Chief Executive of Ghana Cocoa Board (COCOBOD), Dr Stephen Opuni and businessman, Alhaji Seidu Agongo, to demand that Justice Clemence Honyenuga, the judge hearing their criminal case, steps aside and refer the matter to the Chief Justice for a fresh judge.
According to the Deputy Attorney General, Alfred Tuah-Yeboah “it is practically impossible to conclude” the matter in the extremely limited time available” in the circumstance “we respectfully pray that my lord refers this matter to the Chief Justice to be reconstituted,” adding “this submission is being made in the interest of justice and fairness.”
The A-G’s demand comes days after the lawyers for businessman, Seidu Agongo, made the strongest move to get the retired Supreme Court judge to recuse himself from the case at the High Court, calling the proceedings “a sham of a trial” with an “already predetermined guilt”.
In a motion filed last week 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.
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.
Mr Agongo, who raising his first accusation of bias, described the actions of Justice Honyenuga in that ruling as a “clear assault” on his constitutional rights to fair trial as well as being against the rules of natural justice and, “as a result, disqualifies the said trial Judge from continuing with the further conduct of the proceedings in this matter”.
Justice Honyenuga, a Justice of the Supreme Court sitting as an additional High court judge, has been hearing the trial since 2018. But following his retirement in September 2022, he was granted a six month extension by the Chief Justice to conclude the matter which is expected to expire this month.
In court yesterday, February 23, when the matter was called, the Deputy Attorney General said considering the “extremely limited time” available for Justice Honyenuga to deal with the case, he should refer it to the Chief Justice for the court to be reconstituted with a new judge.
“Pursuant to article 145(4) of the Constitution my lord was granted a limited mandate to conclude the hearing of this matter,” the deputy AG stated.
“Today is February 23, 2023, the time left for that mandate to expire is extremely limited in the sense that the first accused person has not closed his case for the second and third persons to open theirs and call their witnesses.
“Considering the time left, it is practically impossible to conclude in the circumstance we respectfully pray that my lord refers this matter to the Chief Justice to be reconstituted,” Alfred Tuah Yeboah noted.
He said his “submission is being made in the interest of Justice and fairness. This is our humble submission.”
Counsel for Dr Opuni, Lawyer Samuel Codjoe said, “we have nothing to add to what the learned Deputy AG had said.”
Nutifafa Nutsukpui, who is holding brief for ex-Ghana Bar President, Benson Nutsukpui, counsel for Mr Agongo and his private company Agricult Ghana Limited.; the second and third accused for his part said “Respectfully my lord, we believe that this is a very commendable recommendation or suggestion from the prosecution and my lord we will also urge you to consider it favorably in the interest of greater justice.”
Justice Honyenuga who has been a subject of several applications for recusal including a pending one from Seidu Agongo said he would adjourn the case to March 1 to wait for the Supreme Court reasons on Dr Opuni’s review.
“It is my view that we are here this morning to await the reasons of the Supreme Court on this matter.
“Indeed, I should be the first person…considering the numerous applications filed in this matter in this court and the Supreme Court and also in the court of appeal. I will adjourn the matter to Wednesday, March 1, 2023, so that we hear the full reasons of the Supreme Court and we get the full import of the Supreme Court.
He said “We shall abide by the decision of the Supreme Court.”
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.”