The new judge presiding over the trial of former COCOBOD Chief Executive, Dr. Stephen Kwabena Opuni and businessman Seidu Agongo, has ordered that the ongoing criminal trial should start de novo (afresh).
Justice of the High Court, Justice Kwasi Anokye Gyimah, noted that he was not interested in adopting the proceedings of the previous judge owing to a number of reasons.
This was contained in the ruling of the trial judge at the High Court, Land Division ‘2’, on Tuesday, April 4, 2023 on an application by Chief State Attorney at the Office of the Attorney General, Mrs. Evelyn Keelson, asking the court to adopt proceedings of the previous judge.
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 all pleaded not guilty to the charges and are on a GH¢300,000.00 self-recognisance bail, each.
Justice Anokye Gyimah made reference to the numerous allegations of bias and several applications to remove the then trial judge, retired Justice Clemence Jackson Honyenuga.
Although the judge noted that he was not in position to confirm or otherwise the accusations leveled against Justice Honyenuga, the best option to him, having heard arguments from parties in the case and decisions on similar circumstances, he would prefer the case starts de novo (afresh)
According to the judge, he does not want to be associated with the numerous allegations of bias against the previous judge, Justice Clemence Honyenuga (Retd), hence his decision to start the case de novo.
He also pointed out the need for the accused persons to be afforded ample time and needed documents to defend themselves in a criminal trial.
Adopt previous proceedings
On March 30, when the new judge sat on the case for the first time, Mrs. Evelyn Keelson argued that starting the case afresh would cause a substantial injustice to the state.
She therefore prayed for the adoption of previous proceedings.
But the request was vehemently opposed to by the defence lawyers who have asked for the trial to start ‘de novo’ (afresh).
She said the court should consider the delays, stage of the case and the fact that prosecution had closed its case and first accused (Dr. Opuni) had called 7 witnesses.
Mrs. Keelson said the case has traveled and gone to the Supreme Court and various rulings have been made so starting afresh will cause miscarriage of justice if not granted.
The Chief State Attorney said rather, there would be no miscarriage of justice on the accused if the proceedings are adopted then if the case is started afresh.
“It 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 Chief State Attorney urged the court.
She pointed out that, the Prosecution after the closure of it case, the previous court had on May 7, 2021, ruled on a submission of no case which was upheld held and “allowing the case to start ‘de novo’ will occasion substantial miscarriage of justice.”
She concluded her submission after making references to some authorities by saying “there will be no injustice at all in allowing the proceedings to continue.”
Rules not changed, start afresh
But lead counsel for Dr Opuni, lawyer Samuel Codjoe who vehemently opposed to the request for the adoption of the previous proceedings, said the rules of criminal trials are clear and have not changed.
He said the trial can only be started ‘de novo’ (afresh).
Counsel argued that unlike in civil matters where two parties appear before the court where the practice allows the judge to determine on adoptions of proceedings, the practice is totally different in criminal cases.
While pointing to some decided cases by the Supreme Court, Lawyer Codjoe made specific reference to an unreported case in which Justice Jones Dotse maintained that until reforms are made, the rules cannot be changed, and that such trials would have to start afresh.
Writing the decision of the Supreme Court in a High Court (Criminal Division), Accra Exparte: Stephen Kwabena Opuni on January 24, 2023, Justice Dotse noted:
“The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo.
“Perhaps the time has come for this problem to be reviewed, This is because, if as a country we are to make some progress in the prosecution of criminal cases, especially corruption related cases pursuant to the Article 19 provisions of the Constitution 1992, then the bold step has to be taken to introduce sweeping reforms in this part of our criminal justice. We therefore appeal to the Chief Justice to urgently consider reforms in this part of our criminal justice.”
Lawyer Codjoe therefore added that, in criminal trials, “you start de novo and the reason is that it will be unfair to the accused persons” if otherwise was done.
To buttress his point, counsel said, it is acceptable that an innocent person is freed than convict to prison many people who are guilty at a point.
Lawyer Codjoe made reference to the ongoing murder trial involving Gregory Afoko where the Attorney General after terminating the first trial (Nolle Prosequi) started all over again.
But, Justice Gyimah was quick to asserts that he was unaware of the Afoko’s example.
Touching on Section 80 of Evidence Act referenced by the prosecution, counsel said it is clear that the court will have to look at the demeanor of the accused but it is not the sole determining fact.
He added that, in criminal cases, the rights of the individual are rather key considerations and wondered “if the State upon all its machinery suffers, how much more the accused?”
“We are saying that if you consider the essence of criminal trial and the judicial rule the case has to start ‘de novo,’ (afresh)” Lawyer Codjoe submitted.
While pointing to 129(2) of the 1992 Constitution which states that decisions of the Supreme Court is binding on all courts underneath, he said the trial should start afresh.
“We prayed that the trial started ‘de novo’ and what the prosecution failed to add was that though we (first accused) have called 7 witnesses, and we have more to call for the first accused.”
While wondering why the state with all its apparatus would be asking for adoption of the previous proceedings when the rules are clear, counsel concluded that “It would be unfair to the accused but also against established practice.”
Previous proceedings not true reflection
Lawyer Benson Nutsukpi, counsel for Mr. Agongo and Agricult Ghana Limited (Second and third accused), while also opposing vehemently to the prosecution’s prayer said, what transpired in the previous proceedings did not reflect the true representation.
He wondered how documents discovered by prosecution and served on accused and same was tendered in evidence without objection from the prosecution, “the judge without reference to us expunged from records during the ruling on submission of no case.”
“We are totally opposed and we will use our applications (filed on records) to show that what happened before the previous court is not a true reflection of what transpired in the court and we will challenge that,” lawyer Nutsukpui contended
He argued also that the established “practice for now is to start the trial afresh” since the recommendations that the rules should be reviewed and reforms carried by the Chief Justice have not been done yet.
Counsel also concluded that “this court should start the case denovo.”
By Court
Justice Anokye Gyimah after listening to the parties then adjourn to April 4 to enable the court interrogate some of the issues raised.
He urged the parties to submit the references and authorities they have alluded to in their submissions to assist the court to give it direction.
When sitting resumed on April 4, Justice Anokye Gyimah read out his ruling and insisted on starting the case de novo (afresh), although he recognised how long the case has travelled.
He has therefore ordered the parties to file statements they want to rely on in the trial by April 21, and slated April 25 for case management.
