A principal state attorney has predicted the outcome of a certiorari and prohibition application before the Supreme Court and has therefore, asked the High Court to dismiss an application for a stay of proceedings by counsel for former COCOBOD boss Dr. Stephen Opuni.
Stella Ohene Appiah asserted that the applicant had been unsuccessful in previous applications at the Supreme Court against the High Court under similar circumstances.
Objecting to the oral application at the High Court on Tuesday, December 6, she suggested that the superior court’s mind was made up on the certiorari application.
“There is no new ground that this applicant can canvass to change the decision of the Supreme Court, even if the applicant seizes to bring the issues of my Lord’s extension,” Stella Ohene Appiah maintained.
The former COCOBOD Chief Executive, Dr Stephen Opuni and businessman Seidu Agongo as well as Agricult Ghana Limited, 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.
The case is currently being heard by Justice Clemence Honyenuga, as an additional High Court judge, who officially retired as a Supreme Court judge on September 4, 2022, when he attained the age of 70.
The court on Monday, December 5, dismissed an application by lawyer Samuel Codjoe, counsel for Dr. Opuni, to stay the case and refer articles 139(1) (c), 145(4) of the 1992 Constitution for interpretation and a determination of whether or not it is the President and not the Chief Justice who has the power to extend the tenure of office of superior court justices who have attained the mandatory retirement ages under Article 130 (2) of the 1992 Constitution and under the inherent jurisdiction of the court.
Following the dismissal, an application was filed at the Supreme Court on Tuesday by Mr. Codjoe to quash the High Court’s ruling on December 5 and prohibit the retired trial judge from hearing the case.
Citing a ruling by the Supreme Court in an unreported civil motion number J5/62/22 ex-parte Kennedy Ohene Agyapong, Mr. Codjoe noted that the court in a unanimous decision held that the High Court judge was wrong when he refused to adjourn the matter after his attention had been brought to the fact that there was a pending application for certiorari and prohibition against him in the Supreme Court which was to be heard.
He pointed out to retired Justice Honyenuga that the ruling, presented by Justice Yonny Kulendi was binding on him.
He acknowledged that the ruling was a departure from earlier decisions of the Supreme Court, including ex-parte that the mere filing of an application for prohibition and certiorari does not stay proceedings.
“A Supreme Court decision which depart from an earlier decision, the inference is that the previous position is no longer good law. Based on article 129(3) of the constitution, the Supreme Court is not bound by its previous decision and would depart from it if it considers it fit and proper, and as soon as it changes its position, all other courts, including this High Court is bound by it,” lawyer Codjoe argued.
“When a case of this nature is filed, it is wrongful and erroneous for a judge to proceed with the case,” counsel added.
But Stella Ohene Appiah contended that the application for judicial review does not by itself stay in the hands of the court, and urged the court to dismiss the application and proceed to hear the substantive case.
He asked the court to exercise its discretion in the matter brought by “an obviously desperate applicant who has resorted to filing all manner of frivolous applications before this very court and the Supreme Court in a desperate attempt to stultify the trial, albeit without success on each occasion… There is no new ground that this applicant can canvass to change the decision of the Supreme Court even if the applicant seize to bring the issues of my Lord’s extension.”
Counsel for Seidu Agongo, Nutifafa Nutsukpui, holding brief for Benson Nutsukpui, drew the attention of the court to similar applications brought before it in the ongoing case, which it stayed proceedings until a determination by the superior court.
Justice Clemence Honyenuga, retired, adjourned the case until Wednesday, December 7, to give his ruling on the application.
