Godfred Yeboah Dame, the Attorney General and Minister of Justice, seems to be shying away from his strongly held position that demands that judges, as an ingredient for administering fair trial, ought to observe the demeanour and composure of witnesses that appear before them.
It was this stance that he forcefully championed at the Supreme Court in 2021 to convince the judges at the superior court to overturn their earlier decision in the trial of former COCOBOD boss and two others.
The ordinary bench had in a 3:2 majority decision barred one of their own, now retired Justice Clemence Honyenuga, from continuing to hear the trial of Dr. Stephen Opuni and Seidu Agongo for exhibiting signs of bias towards the accused persons.
“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,” the statement of claim filed by the Attorney-General Godfred Dame himself dated August 18, 2021 posited.
He further stated, “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.”
He therefore justified in that statement that it was “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”.
But fast forward to 2023, barely two years down the line, Godfred Yeboah Dame, is now taking a stance which some legal luminaries say exposes him as a “walking contradiction”.
The inherent contradiction is revealed in his current application before the Court of Appeal, also seeking to overturn a decision of the High Court to restart the trial of Dr. Opuni and Seidu Agongo.
The High Court presided over by Justice Kwasi Anokye Gyimah on April 4, 2023 turned down the A-G’s application to adopt proceedings of the previous trial judge.
The new judge had contended that Justice Clemence Jackson Honyenuga, the retired Supreme Court Judge who was sitting on the case, was embroiled in a number of controversial decisions, which he doesn’t want to inherit.
“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,” the trial judge pointed out.
Justice Gyimah therefore ordered that the case should be heard de novo, that’s afresh, much to the chagrin of the Attorney-General and his team, leading to the latest application at the Court of Appeal.
It is the case of the A-G that the High Court’s decision “will rather cause injustice to the Republic if the case is started fresh,” and “starting this case ‘de novo’ will benefit the accused from delaying the case.”
The judge in his ruling made reference 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’ demeanour.
“The best way that the said statutory provision can be observed is for the trial court to have a first-hand experience or observation of the witnesses called by all the parties and this can only be achieved in the present case if this court starts on a clean slate,” Justice Kwasi Gyimah stressed.
But the Attorney General in an application for appeal filed on April 18, 2023 on his behalf by the Director of Public Prosecutions, Mrs. Yvonne Atakora Obuobisa argued that Justice Kwasi Gyimah “misdirected himself” in the application of the principles regarding adoption of evidence in a trial.
He challenged the decision of the new judge to observe the demeanour of witnesses at firsthand.
“The learned trial judge erred, in the circumstances of the instant case, in placing undue premium on the need to assess the demeanour of the witnesses called at the trial,” the AG argued in the appeal application.
But this position of the Attorney General is in sharp contrast to what he told the Supreme Court, in which he succeeded in getting the court to review its earlier decision which went in favour of the accused when the court barred Justice Honyenuga from continuing the trial.
“That the decision of the ordinary bench results in a substantial miscarriage of justice since it has the effect of placing the case in the hands of a new judge who has not had the benefits of the full trial, observing the demeanour and composure of the various witnesses called by the prosecution and assessing their credibility,” the affidavit in support of the A-G’s motion at the Supreme Court dated 18th August 2021 collaborated Mr. Dame’s statement of claim.
Also, in 2021, the A-G was convinced and rightly told the Supreme Court that when the matter is transferred to a new judge, as it is the case now, it can occasion a retrial.
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.
They have pleaded not guilty to the charges and are on a GH¢300,000 self-recognizance bail each.
