….After Attorney-General’s unhappiness about starting case afresh
The Herald has obtained details of the transfer of Justice Kwasi Anokye Gyimah, who is sitting on the criminal case of Dr Stephen Kwabena Opuni and Alhaji Seidu Agongo, including confirmation that he has indeed, been kicked out of the case through a surprise administrative move by the Chief Justice, Gertrude Araba Esaaba Torkornoo.
Details obtained by The Herald revealed that Justice Gyimah, who had insisted on a “fair trial” has been transferred to Kumasi in the Ashanti Region, while awaiting the Court of Appeal to make a pronouncement on his decision to start the trial of Dr Opuni and Alhaji Agongo afresh.
The Court of Appeal, has set July 3, 2023, to deliver its judgment on the Attorney General, Godfred Yeboah Dame’s appeal against whether the trial of the former COCOBOD and the two others, should start afresh as ordered by Justice Gyima, soon after taking over the case from retired Justice Jackson Clemence Honyenuga, who was accused of being bias and was even banned by the Supreme Court from presiding over the case.
But court sources told The Herald, that the Chief Justice, specifically called Justice Gyimah on phone to deliver the news of his transfer to him. This was later, followed up with a transfer letter to him to immediately vacate the High Court- Land Court 2 located in the High Court Complex in Accra and move to the Ashanti Regional capital, Kumasi.
Many lawyers are reading ulterior motives into the transfer, saying it was too sudden and suspicious because such transfers are normally made during the legal vacation.
They argued that moving Justice Gyimah, at a time when he is involved in the Opuni case and taking a decision which the government through the Attorney General is unhappy about, suggests the transfer is punitive.
Justice Honyenuga, a retired Supreme Court judge, was many times a subject of controversy, including accusation of bias and unsavoury comments described as prejudicial by Lawyer Samuel Codjoe, counsel for Dr Opuni and counsel for Mr Agongo, Benson Nutsukpui.
Justice Honyenuga, who sat as an additional High Court judge, was in July 2021, prohibited by his colleague judges in the Supreme Court over bias by a five-member panel presided over by his lifelong friend, Justice Jones Dotse in a 3-2 majority decision, however, he was brought back in 4-3 decision upon a review filed by the Attorney General.
Upon taking over the case, Justice Gyima, had stood his grounds, insisting that the high-profile criminal case with political undertones, assigned him by retiring Chief Justice Kwesi Anin Yeboah, is started afresh because it would be unfair for him to adopt a proceeding that was “saddled” with numerous allegations.
“It would be unfair for the court to ignore the allegations and adopt the previous proceedings as it is” adding, “In order for the court to have a firsthand information of the trial and the demeanor of witnesses, the court will start the trial ‘De Novo’ (afresh), the new judge said April 4, 2023 after taking over from Justice Honyenuga, who had also enjoyed a six months post retirement contract to conclude the case but could not.
Justice Gyimah, stated “if I adopt the proceedings, I am basically adopting every act and decision that has been taken by the previous judge in the matter, and I will be saddled with the same suspicions and allegations of unfairness that have been levelled against the current state of the proceedings.”
He made references to Section 80 (2) (a) of NRCD 323, which states that one of the factors a court is enjoined to look at when assessing the credibility of a witness is the witness’s demeanour.
“Much as that may be the right position, in a criminal trial where the liberty of the accused is at stake and where the accused is by law presumed innocent and also entitled to a fair trial, any factor, however minimal or insignificant its effect, that will enhance the opportunities for the fair trial of an accused person should not be overlooked by the court.”
Justice Gyima, therefore, ordered the parties to file witness statements they want to rely on in the trial by April 21 and slated April 25 for case management, but it is now clear he would not be hearing the case anymore per the administrative move by Chief Justice Torkornoo, who had been a member of the Supreme Court review panel, that brought back Justice Honyenuga in 2021, after he was prohibited on the basis of bias towards the accused persons.
Interestingly, while Dr Opuni and Alhaji Agongo, were ready to refile their witness statements, the government after several adjournments dropped a bombshell, that it was having difficulty getting its witnesses back into the box to prove its financial loss to the state claims against the two, as well as Agricult, an agro-based private company owned by Alhaji Agongo.
Mr Yeboah Dame, subsequently rushed to the Court of Appeal, saying Justice Gyimah, had “misdirected himself” regarding the adoption of evidence in a trial.
On Tuesday, April 25, 2023, when the court sat, the Deputy Attorney General, Alfred Tua–Yeboah, who represented the state, acknowledged the court’s directive, but pleaded for time.
“We are here for adjustment of time,” Mr Tua-Yeboah said and prayed to the court to grant the prosecution 30 more days to file the witness statements. Aside from saying that some witnesses are not willing to testify in court, he told the court that one of the people contacted said he is on retirement.
Mr Tua-Yeboah, claimed that one of them also said he spent about two years in the witness box, which appeared deterring.
Counsel for the accused persons did not oppose the request and asked the court to use its discretion and after consultation with the parties, the judge ruled, “prosecution’s prayer is granted, case adjourned to June 7 for case management”. But on Wednesday, June 7, 2023 when the case was called again, Evelyn Keelson, Chief State Attorney told the court “My lord, unfortunately, we have still not been able to file our witness statements.”
Evelyn Keelson pleaded with the court to adjourn the matter to July 12, which was granted.
All this while, the Court of Appeal Court presided over by Justice Philip Bright Mensah with Justice Ernest Owusu-Dapaah and Justice Jennifer Dadzie as the other panelists was hearing arguments filed by the Attorney General, against starting the case afresh.
On the starting case at fresh, what’s interesting, The Herald’s findings had established that Mr. Yeboah Dame in arguing for the return of Justice Honyenuga to the case after his prohibition by the Supreme Court, stated that changing the trial judge will require that the case is started “de novo”.
Mr Yeboah Dame in his 39-page statement of case stated in page 35 that “it is therefore fundamentally wrong for this Court to prohibit the trial judge from further hearing of a case when all he did was to perform a duty placed on him by law.”
The Attorney General went on to appeal to the review panel, saying “We respectfully submit that the order prohibiting the trial judge will work substantial miscarriage of justice in the trial of the accused person. The decision has the effect of placing the case in the hands of a judge who has not had the benefit of the entire trial, observing the demeanour and composure of the various witnesses called by the prosecution in order to assess their credibility. It is our contention that, regardless of the course to be adopted by a new judge to whom hearing of the matter is entrusted, the further conduct of the case will suffer”.
“If the new judge orders an adoption of the evidence led so far rather than a commencement “de novo”, he would definitely have lost the benefits of the conduct of a full trial by him – observation of the demeanour, countenance and composure of witnesses etc”, Mr. Dame, had added.
“We respectfully urge the Court to make a deep introspection into the soundness of the decision of this Court dated 28th July, 2021 and correct the errors contained therein. The Court ought to be guided by the simple question whether the impugned decision, on account of the multiple legal flaws, leads to miscarriage of justice in the case pending at the High Court. It is our humble submission that a careful application of relevant principles regarding the invocation of the Court will undoubtedly result in a setting aside of the decision complained of. To preserve same will be a bad and dangerous precedent for Ghana law”.
Writing the decision of the Supreme Court on an application filed by Dr. Opuni, the retired Justice Dotse, in a ruling dated January 24, 2023, noted that “The practice for now is that, in criminal trials, the practice is to start trials de novo”.
Stated “The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo”.
“Perhaps the time has come for this problem to be reviewed, This is because, if as a country we are to make some progress in the prosecution of criminal cases, especially corruption related cases pursuant to the Article 19 provisions of the Constitution 1992, then the bold step has to be taken to introduce sweeping reforms in this part of our criminal justice. We therefore appeal to the Chief Justice to urgently consider reforms in this part of our criminal justice.”
Those who know Justice Gyimah, described him as diligent and a nonsense man.
A staunch Christian and a chorister in his church, he is about seven years on the bench. Justice Gyimah, joined the judiciary after years of private practice.
He left Ghana School of Law as the best graduating student in 2002, grabbing the coveted John Mensah Sabah award, beating the celebrated legal academic, Kofi Abotsi, a professor of constitutional and comparative law, who is the Dean of the UPSA Law School in Accra.
The two were a year ahead of the Attorney-General, Godfred Yeboah Dame.
Interestingly, Justice Gyimah and Prof Abotsi, had joined the Ghana School of Law from the University of Ghana’s Faculty of Law, as the best graduating students.
Justice Gyimah after his call to Ghana Bar, went on and graduated from the University of Nottingham in 2005 with an LLM degree in International Criminal Justice and Armed Conflict. In February 2017, Justice Gyimah, was awarded a Professional Achievement Award at the British Council Ghana’s Alumni Awards Gala night.