Dr Stephen Opuni and businessman Seidu Agongo, both of whom are being criminally prosecuted in the GHS217-million financial loss case, have insisted in court that the new judge assigned to the matter by the Chief Justice Anin Yeboah, start the five-year-old case “de novo” (afresh).
The prosecutors, on the other hand, are against that proposal, insisting it would constitute “substantial injustice” to the State.
Appearing before High Court judge Kwasi Anokye Gyimah at Land Court 2 on Thursday, 30 March 2023, for the first time after Supreme Court judge Clemence Honyenuga, who had been sitting on the matter since its inception, retired in September 2022 and – despite a six-month extension of his mandate by the chief justice, in accordance with the Constitution – could still not finish the case, Chief State Attorney Evelyn Keelson put up a spirited argument against restarting the case from the scratch.
She prayed the judge to adopt the proceedings inherited from Justice Honyenuga.
Under Justice Honyenuga’s mandate, the prosecution closed its case after calling seven witnesses.
The first accused person, Dr Opuni, also called seven witnesses.
The chief state attorney, thus, said starting the matter all over again when it has gone to the Supreme Court several times for different rulings and interpretations of the law, would amount to a miscarriage of justice.
“It will rather cause injustice to the Republic if the case is started fresh,” the chief state attorney said, insisting: “Starting this case ‘de novo’ will benefit the accused [in] delaying the case”.
In her opinion, starting the case anew would make nonsense of the previous court’s ruling on the accused person’s no case submission, which was subsequently upheld.
“Allowing the case to start ‘de novo’ will occasion substantial miscarriage of justice”, Mrs Keelson noted.
“There will be no injustice at all in allowing the proceedings to continue”, she pushed.
A similar argument was made in 2021 by Attorney General Godfred Dame after the Supreme Court removed Justice Honyenuga from the case upon a motion filed by the accused persons who accused the now-retired justice of bias.
In his affidavit against the removal of Justice Honyenuga, Mr Dame argued that “if a trial, de novo, of the respondent herein results from the decision of this Court dated 28 July 2021, same will occasion substantial miscarriage of justice as the constitutional requirements of fair and expeditious trial will not only be violated but also, the prosecution will be put to enormous expense, inconvenience and hardship in commencing a new trial.”
However, the lead counsel for Dr Opuni, Mr Samuel Codjoe, counter-argued against the chief state attorney’s views, indicating that the rules of criminal trials are clear and have not changed.
Mr Codjoe told the court 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 with criminal cases.
Referring to some laws of precedence from the Supreme Court, Mr 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 ruling 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.”
He said adopting previous proceedings of another court would be “unfair to the accused persons”.
Mr Codjoe averred 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)”, he asserted.
While pointing to 129(2) of the 1992 Constitution, which states that decisions of the Supreme Court are binding on all other courts, he said the trial should start afresh.
“We pray that the trial start ‘de novo’ and what the prosecution failed to add was that though we (first accused) have called 7 witnesses, we have more to call for the first accused.”
To him, adopting the previous proceedings “would be unfair to the accused but also against established practice.”
Meanwhile Mr Benson Nutsukpi, counsel for Mr. Agongo and Agricult Ghana Limited (Second and third accused persons), also opposed the prosecution’s prayer saying what transpired in the previous court did not reflect the true situation
He said, for instance, Justice Honyenuga, “without reference to us, expunged from records during the ruling on submission of no case”, documents discovered by the prosecution and served on the accused persons and same tendered in evidence without any objection from the prosecution.
“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,” Mr Nutsukpui contended.
Mr Nutsukpui further said 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.
“This court should start the case de novo”, he insisted.
After listening to both sides, Justice Anokye Gyimah said: “I will 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 a direction.