Justice Clemence Jackson Honyenuga, has flatly denied claims he has been biased and hostile towards former COCOBOD boss, Dr. Stephen Opuni, attacking the latter for spewing lies and hallucinating in court.
Professor Stephen Kwaku Asare (Kwaku Azar), a D&D Fellow in Public Law and Justice at CDD-Ghana, has since called for the disqualification of Justice Honyenuga from continuing to hear the GHS217-million financial loss case, saying “If I am the defendant, these words will put me in fear that I will not receive a fair and impartial trial”.
Justice Honyenuga, has been hearing the ongoing criminal trial against Dr Opuni and two others, but Dr Opuni, felt the utterances and actions of the judge are evidential enough that he would not get fair trial if the judge continues to sit on the case.
A motion was, therefore filed to get the judge to recuse himself, which was heard by the judge himself and dismissed on Thursday, December 16, 2021.
But in what appears as an attempt by the trial judge to get even with the applicant, Justice Honyenuga, capitalized on his ruling on the motion, which he took two hours to write, to discharge vituperations at Dr Opuni.
For instance, in the affidavit in support of the motion for Justice Honyenuga to recuse himself, the applicant pointed out an occurrence in court, which indicated that the judge had wanted to suggest how Dr Opuni, should make his defence.
The judge was incensed by that statement and decided to square up to him, as he asserted that Dr Opuni, has probably being dreaming in court.
“I think that the first accused must have been hallucinating when DW1 gave evidence because no such thing happened as the first accused has stated in paragraph 17 in his affidavit in support.”
He made reference to a ruling he gave on December 2, 2021, to back his dismissal of the motion.
Lawyer Samuel Codjoe, counsel for Dr Opuni, had drawn the attention of the court on that day that “no law stops us from starting our defence with this witness. There is no requirement that directs how we call our witnesses in defence.”
The judge then ruled: “Indeed this court cannot compel the first accused person to give evidence and this is supported by Article 19 Clause 10. In the circumstances, it is the right of the first accused to choose the mode he intends to open his defence, consequently, the witness can testify.”
Interestingly, records showed that the prosecution did not object or oppose how the accused had wanted to open his defence, and with the judge denying any form of obstruction, the question begging for an answer is what might have transpired in court leading to lawyer Codjoe’s insistence on how client opens his case and the subsequent ruling by the judge.
Meanwhile, Justice Honyenuga, has also rejected the allegation that Opuni’s counsel was not heard when he had issues with hearing dates imposed by the court.
“Further, the averment in paragraph 11 is the imagination of the first accused and a blatant lie calculated to throw dust in the eyes of everyone. I must say that, I have never, in my judicial career, banked files on my table and screamed court rise.”
Justice Honyenuga, further ruled that claims by Dr Opuni that his witness’ evidence cannot exonerate him is “most disgusting” and an effort to underrate his intelligence and integrity.
“It is my candid opinion that the first accused is crying wolf where there is none. He could not prove the reason why I should recuse myself from the case, when I have guided this case from 2018.
“In conclusion, the application is malicious, mischievous, frivolous, vexatious and an abuse of the court process, and well calculated to further delay expedited, efficient and fair hearing of this case. The principle of justice delay, justice denied applies in this instance case.”
Justice Clemence Jackson Honyenuga, a justice of the Supreme Court sitting with additional responsibility as High Court judge, hearing the trial of Dr. Stephen Opuni and businessman Seidu Agongo, accused of causing financial loss to the state and contravention of the Public Procurement Act.
Professor Stephen Kwaku Asare (Kwaku Azar), has noted that some recent comments made by Justice Honyenuga while dismissing Dr Opuni’s second recusal application against the Supreme Court Justice who is sitting as an additional high court judge on the matter, on Thursday, December 16, 2021, creates an atmosphere that is not conducive for the delivery of justice.
In Prof Asare’s view, “these are very serious allegations coming from the bench, and raise important questions about how the Judge has been able to determine that the defendant is seeking public sympathy, acting maliciously or stating blatant lies under oath”.
“If I am the defendant, these words will put me in fear that I will not receive a fair and impartial trial”, Prof Asare noted in a Facebook post.
On the flip side, he said: “If I am the judge, I will question whether I can be fair and impartial about a defendant that I believe has told malicious lies about me”.
Therefore, he asserted, “without prejudice to the parties, it is fair to conclude from these statements that an intolerable adversary atmosphere has developed between Justice Honyenuga and Opuni”.
Prof Asare then suggested: “Under these circumstances, it is my solemn opinion that Justice Honyenuga stepped over the line in his attempt to justify the denial of the recusal motion and should be disqualified from continuing with the case”.
The KPMG Professor in accounting at the Fisher School of Accounting, who is also a public intellectual and scholar-activist, whose contributions and activism, including as plaintiff in a number of precedent-setting cases before the Supreme Court of Ghana, are, according to CDD-Ghana, “helping to push the frontiers of governance and the rule of law, particularly in the area of constitutional law and practice”.
Dr Opuni, filed the affidavit in support of the recusal motion on Friday, December 10, 2021.
Dr Opuni said “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.”
In his affidavit, he said: “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.”
Dr Opuni also said Justice Honyenuga “has exhibited open hostility toward 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 while 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.”
The conduct of the judge, Dr Opuni averred, breached his right to a fair hearing and also constitutes 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.’
Additionally, Dr Opuni argued that “the fact that the judge is biased toward 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 continued: “That during the examination-in-chief of my first witness, when my lawyer sought to elicit a 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, Dr Opuni noted, “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”.
“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”.
“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 the prosecution did he seek in any way whatsoever and or howsoever to instruct on the sequence of calling their witnesses”.
“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 by his Lordship the trial judge”.
