Mr Sam Codjoe, the defence lawyer for the ex-CEO of the Ghana Cocoa Board (Cocobod), Dr Stephen Opuni, has strongly argued against a suggestion by Chief State Attorney, Evelyn Keelson, that his client, who, recently, had four surgical operations on his left eye, and, as a result, has been given a six-week excuse duty by his medical doctor from participating in any stressful activities, should be made to continue sitting in his trial regarding the GH¢271 million financial loss case, virtually.
In his view, granting that request by the chief state attorney, will be taking Ghana to the “Dark Ages”.
Four separate surgeries on his left eye compelled Dr Opuni to miss the resumption of his own trial on Tuesday, October 11, 2022, after a two-month break.
Dr Opuni, the first accused person, is being tried with private businessman Seidu Agongo, the second accused person, in connection with the prosecution’s assertion that they caused the state to lose some GHS271 million in a fraudulent procurement of Lithovit Liquid Fertiliser from the latter’s agrochemical company, Agricult, the third accused person.
They have all pleaded not guilty to the offences and are on a GHS300,000 self-recognisance bail in the more-than-four-year-old trial.
During the hearing on Tuesday, Dr Opuni’s lawyer informed the court, presided over by Supreme Court judge Clemence Honyenuga that his client had been given a six-week excuse duty by his doctor so he could stay away from all activities that risked straining the surgically operated eye to enable proper healing.
“My Lord, the first accused [person] is not in court today due to the fact that he’s had surgery on his eye and we have given this court a copy of the medical report indicating that he has had four different surgeries on his eye. My Lord, as contained in the medical report, he’s been given a six-week excuse duty to enable the left eye heal. My Lord, this is the reason why he is not present in court,” Mr Codjoe explained.
He added: “And my Lord, yesterday [Monday, 10 October 2022], I showed the prosecution a copy of the medical report but because it is a confidential document, which is, it contains details of the exact surgery, so, I informed my learned friend of the exact surgery, so, I did not give them a hard copy of the actual medical report because of the confidential nature.”
“My Lord, this explains the absence of the first accused [person] in court and my Lord, as a result of his absence due to ill health, we pray that this court adjourns this case to the end of the six-week period commencing from the 23rd day of September 2022,” he pleaded.
He indicated: “My Lord, the basis of our seeking this adjournment is because the first accused person, in the exercise of his constitutional rights under Article 19(3) of the 1992 Constitution, wants to be present during the trial. Unfortunately, he’s unable to because of ill health.”
Mr Codjoe, thus, prayed the court to adjourn the matter to a time after the expiration of the six-week excuse duty, “in accordance with this constitutional provision,” which, he noted was interpreted in the case of George Bonson, alias Benjillo v the Republic.
In a rebuttal, chief state attorney Evelyn Keelson argued: “My Lord, the first accused person, who is on bail, is required to be present in this court, as undertaken in his bail conditions. My Lord, we have seen a medical report indicating that the first accused [person] has had surgery on his left eye; and in that report, the medical director has indicated that he needs six weeks to rest the eye for proper healing.”
“Respectfully, my Lord, this statement by the medical director is not binding on this honourable court. My Lord, the medical director did not indicate the basis for the six weeks he has indicated in the report. My Lord, under section 169(2) of Act 30, this honourable court cannot adjourn this matter for more than one month; and having already indicated that this court is not bound by the report, I pray that the court invites the medical director to give further and better particulars to his request for the first accused [person] to be excused for six weeks,” she went on.
She also proposed: “My Lord, in the alternative, this court can sit virtually to accommodate the first accused [person]. Indeed, my Lord, during the vacation, we were sitting virtually and it worked very well.”
Mrs Keelson also said: “My Lord, I want to state that nobody has taken away or seeks to take away the first accused person’s right under article 19(3) to be present at his trial. The first accused person is on bail and is at liberty to attend the trial.”
Citing the same case referred to by Dr Opuni’s lawyer to counter a point made by the defence team, Mrs Keelson said: “My Lord, these matters were clearly explained in the case my learned friend cited; the Benjillo case, so, my Lord, it is, therefore, our submission that this court, in the exercise of its discretion, can proceed with the case without infringing Article 19(3) since, as I have stated, the doctor’s opinion for the accused person to stay away for six weeks, is not binding on this honourable court.”
In her view, “My Lord, this court can grant the accused person some days but certainly not six weeks as suggested by the medical doctor, especially when he is not admission.”
However, Mr Codjoe counter-argued that the reasons for the six-week excuse duty were stated in paragraph 2 of the medical report contrary to the assertion by the chief state attorney, who interrupted and insisted the reasons had not been elaborated by the medical director and wondered where Dr Opuni’s lawyer was reading the alleged reasons from.
Mr Codjoe noted that though his team had no objection to the proposed summoning of the medical doctor before the court, it was “most unfortunate” for the chief state attorney to suggest that the first accused person, who is “not supposed to sit” and is “not supposed to engage in any activity which will put stress on his left eye, sit in a virtual trial and lie down in a virtual trial. My Lord, this is most unacceptable even in military regimes.”
“My Lord, even under section 170(2) of Act 30, once the person is ill and the court is satisfied that the person is ill, which can only be done through a medical report and not by a physical examination by the chief state attorney, the court grants an adjournment,” he further argued.
Mr Codjoe noted: “My Lord, by this section, it does not limit this court to the period of adjournment and my Lord, we submit that insofar as the person is ill and recovering from surgery on his eye, then the court should grant the adjournment for the accused [person] to recuperate.”
Adjourning the matter, he noted, would not be unusual in the circumstance.
“My Lord, I would add that this court will not be doing anything unreasonable or illegal, in that, the attorney general’s department, as recently as August of this year, adjourned the Ato Forson case, for very good reasons, to January.”
“My Lord, the final point is the suggestion by the prosecution that in spite of the fact that the first accused [person] is ill, the court should still put him on trial. This will take us to the Dark Ages of Ghana when we didn’t have a Constitution and/or a democracy,” he told the court.
The lawyer for the second and third accused persons, Mr Emmanuel Kumadi, said: “My Lord, respectfully, we associate ourselves with the submission by counsel for the first accused person, especially where some of the offences for which the accused persons are standing trial before this honourable court, are based on conspiracy. My Lord, it’s our humble submission that the presence of the first accused person will be needed for the continuation of the case, especially when he did not elect not to be present.”
After hearing both sides, Justice Honyenuga said: “Looking at the circumstances of this case, it is my view that in order to clear any controversy or doubts about the medical report before this court, I will order the medical director … to appear before this court with all the records on the first accused [person].”
“The Registrar of this court is to ensure that this order is served on the said medical director per his address as stated on the medical report. In the circumstances, I will adjourn this matter to Monday, the 17th of October 2022 at 10 a.m.”
