The decision of an Accra High Court judge, Justice Aboagye Tandoh to adopt proceedings of previous court without parties seeing or agreeing to what he adopted suo moto is currently a subject at the Court of Appeal.
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.
Justice Aboagye Tandoh took over the case from Justice Kwasi A. Gyimah, who was controversially transferred to Kumasi weeks after hearing the highly politicized case he inherited following the retirement of Supreme Court judge, Justice Clemence Honyenuga.
On his second time of sitting on the case, Justice Tandoh announced in court that he has “examined and satisfied” himself with the “entirety of the records of proceedings” and therefore proceeded to adopt the proceedings on July 25.
A request on him to rescind that decision, which lawyers said was flawed by the introduction of “alien practices” as well as it being “without legal basis” on October 12 also failed.
Defence counsel have therefore resorted to the appellate court, obviously challenging the credibility of what they called bundle of papers waved at them in court as being the true reflection of proceedings of the previous courts.
A motion has therefore been filed by counsel for Dr. Opuni, Samuel Codjoe asking the High Court to stay proceedings pending the outcome of the interlocutory appeal.
“This is more so when apart from him, none of the parties was given the opportunity to verify the content of the proceedings his Lordship purported to have seen before adopting same on the 25th day of July 2023,” an affidavit in support of the application read in part.
“That I have been advised by counsel and verily believe same to be true that the
ruling of the Court adopting proceedings is without any basis and same ought to be set aside as same is not supported by any rule of law and or practice and that what the judge did is wrongful and a nullity as it has no legal basis.”
“That I have been further advised by counsel and verily believe same to be true that
even though it is only a Court which can adopt proceedings, the Court before adopting the proceedings has to ensure that all parties involved in the case have seen the proceedings and agreed to same without any objections whatsoever. The parties should have been given the opportunity to verify and to confirm whether the proceedings which his Lordship claimed to have with him and which he waved to the Court is in fact the proceedings which took place in Court.”
He contended that not being served with the record of proceedings does not only constitute a breach of the settled practice on adoption of proceedings, but also a breach of Article 19(1) of the 1992 Constitution which requires a judge to ensure that an accused person is given a fair hearing.
The motion for stay of proceedings would be moved on Thursday, October 26, 2023.
Find below the affidavit in support of the motion
1. That I am the Deponent and Applicant herein, and I swear to the facts contained in this affidavit which facts unless otherwise stated are within my personal knowledge.
2. That at the hearing of this application, counsel informs me that he will seek leave of the honourable Court to refer to all the processes filed in the case and specifically the motion on notice filed on the 26th day of July 2023 together with the affidavit and exhibits and also the affidavit in opposition filed by the Prosecution.
3. That I am presently being tried before this honourable Court with respect to charges which relate to my time as Chief Executive of the Ghana Cocoa Board (COCOBOD). The Prosecution closed its case and I have opened my defence with Peter Okyere Boateng (DW7) who has been subpoenaed by the court presently in the witness box giving evidence.
4. That on the 12th day of July 2023, this Court presided over by his Lordship Justice Aboagye Tandoh gave orders for parties to apply for the record of proceedings for adoption at the next adjourned date which was the 25th day of July 2023.
5. That on the said 25th day of July 2023 to our surprise his Lordship Justice Aboagye Tandoh, did not give any opportunity to any of the parties to speak but ruled as follows:
“BY COURT: I have examined and satisfied myself with the entirety of the records of proceedings in respect of the case of The Republic V.
Stephen Kwabena Opuni – 1st Accused
Seidu Agongo – 2nd Accused
Agricult Ghana Ltd. – 3rd Accused
as recorded by the court differently constituted and upon the decision of the Court of Appeal in the appeal of the Republic v Stephen Kwabena Opuni and 2 Ors, Criminal Appeal Case No. H2/25/23 dated 3rd July 2023, I will proceed to adopt proceedings in this case (Republic v Stephen Kwabena Opuni and 2 Ors) and same is adopted.”
6. That my counsel informed the Court that even though it (the Court) had delivered its ruling, what was required of his Lordship was for him to have had all parties see the proceedings and agree on the proceedings and see what is adopted The Court then further ruled that it had the power to adopt proceeding and it had adopted same. At the hearing my counsel informs me that he will seek leave of the Court and refer extensively to the proceedings of the 25th day of July 2023.
7. The Court thereafter waved a bundle of papers from the bench to all persons in the courtroom without showing any one the contents of the said papers and stated that the bundle of papers it had waved were the proceedings it had adopted.
8. That I have been advised by counsel and verily believe same to be true that the ruling of the Court adopting proceedings is without any basis and same ought to be set aside as same is not supported by any rule of law and or practice and that what the judge did is wrongful and a nullity as it has no legal basis.
9. That I have been further advised by counsel and verily believe same to be true that even though it is only a Court which can adopt proceedings, the Court before adopting the proceedings has to ensure that all parties involved in the case have seen the proceedings and agreed to same without any objections whatsoever. The parties should have been given the opportunity to verify and to confirm whether the proceedings which his Lordship claimed to have with him and which he waved to the Court is in fact the proceedings which took place in Court.
10. That I have been further advised and verily believe same to be true that this act of verifying and confirming the content of the proceedings has to be compulsorily complied with by the Court and it is for this reason that before proceedings are adopted, the parties have to ensure that the proceedings are accurate and a proper reflection of what took place in Court.
11. That I have been advised by counsel and verily believe same to be true that it is erroneous, wrongful and without any basis for the trial judge to claim to have proceedings to be adopted. This is more so when apart from him, none of the parties was given the opportunity to verify the content of the proceedings his Lordship purported to have seen before adopting same on the 25th day of July 2023.
12. That I have been further advised by counsel and verily believe same to be true that the refusal by the judge to set aside the ruling of the 25th day of July 2023 is without any basis whatsoever and flies in the face of binding decisions of superior Courts with respect to the adoption of proceeding by a Court. An act which is also unconstitutional and a breach of Article 129(3) of the 1992 Constitution.
13. That being dissatisfied with the ruling of the Court dated the said 12th day of October 2023, I filed an appeal against same on the 13th day of October 2023 and attached hereto as exhibit OP1 is a copy of the notice of appeal. At the hearing my counsel informs me that he will seek leave of this court to refer extensively to the notice of appeal.
14. That the Court of Appeal ruling which ordered the adoption of the record of proceedings is clear that the error which I raised concerning the appeal records will be corrected during the hearing. Unfortunately, the Court did not give us any opportunity and or show us the documents which it waved at us and which it claimed was the entire record of proceeding it adopted. An act which is wrongful. At the hearing my counsel informs me that he will seek leave and refer to the said court of appeal ruling.
15. That I am advised by Counsel and verily believe same to be true that, the learned judge’s refusal to set aside his said order in which he adopted proceedings even though we had not been served with the record of proceedings does not only constitute a breach of the settled practice on adoption of proceedings, but also a breach of Article 19(1) of the 1992 Constitution which requires a judge to ensure that an accused person is given a fair hearing.
16. That I have been further advised by Counsel and verily believe same to be true that this Court has an inherent jurisdiction to stay and or suspend proceedings pending interlocutory appeal given the circumstances stated above.
17. That I am advised by Counsel and verily believe same to be true that a breach of the fundamental law of the land being the 1992 Constitution constitutes exceptional circumstances which should enable this Court grant a stay and or suspension of proceedings pending the determination of my appeal.
18. That no hardship at all would be suffered by the Prosecution if a stay of proceeding and or suspension of Proceedings pending the determination of my interlocutory appeal to the Court of Appeal is granted in that on the failure of my appeal, the trial can continue without any loss and or risk and harm to the Prosecution.
19. That in the circumstances, I pray that this honourable Court in the exercise of its inherent jurisdiction stays and or suspends proceedings pending the determination of my appeal to the Court of Appeal.
