The newly assigned Judge to the case in which former Chief Executive of Ghana Cocoa Board, (COCOBOD), Dr. Stephen Kwabena Opuni is standing trial together with two others has turned down prosecution’s request to adopt the previous proceedings of retired Justice Clemence Honyenuga.
Justice Kwasi Anokye Gyimah, who presides over the Land Court ‘2’ of the Accra High Court said, it would be unfair for him to adopt a proceedings that is “saddled” with numerous allegations.
The prosecution led by Mrs Evelyn Keelson, a Chief State Attorney, had on last Thursday, March 30, 2023, moved a motion urging the court to adopt the previous proceedings to enable the trial continue.
But, the prosecution’s request was vehemently opposed to by Defence lawyers led by Samuel Codjoe and Benson Nutsukpui, for (first and second accused respectively) who prayed the court to start the trial ‘De Novo’ (afresh),
Ruling on the motion on Tuesday, April 4, Justice Anokye Gyimah said, it would be “unfair” for the court to ignore the allegations and adopt the previous proceedings as it was.
He said in order for the court to have a first hand information of the trial and the demeanor of witnesses, the court will start the trial ‘De Novo’.
Justice Anokye Gyimah also pointed out that, an accused person by law require fairness and that presumption of innocence should not be over looked by the court.
The court said in order to have a proper appreciation of the matter at hand and not to inherit the allegations that have characterized the previous court, the trial will start “De Novo.”
According to EIB Network’s Legal Affairs Correspondent, Murtala Inusah, who was in court, the prosecution has been directed to file their witnesses statements on or before April 21.
The Defence is accordingly directed to also file any witness statements if any on the same day.
The court ordered that the parties return to court on April 25 for Case Management Conference and a possible date for the trial to start.
*Background*
Dr. Opuni and Seidu Agongo, a businessman and his company Agricult Ghana Limited have been dragged to court for allegedly causing financial loss to the state following the purchase and supply of Litovite liquid fertilizer to cocoa farmers.
The accusations which they have since denied.
Prosecution had closed it case after calling seven witnesses while Dr. Opuni who was mounting defence had also so far called his seven witness with some more to follow.
The trial docket earlier this month had to be transferred by the then Justice Honyenuga’s court to the Chief Justice for reassignment after the retired Supreme Court judge’s six month extension to conclude the case expired.
*Prosecution’s argument*
Mrs. Evelyn Keelson, a Chief State Attorney while praying the court to adopt the previous proceedings said, it will cause a substantial injustice to the state if the case is started 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 ‘de novo’ (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.”
*Defence opposition*
Lead lawyer 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 some decided cases by the Supreme Court, Lawyer Codjoe said recommendations on reforms were previously made for the Chief Justice to consider for adoption in such proceedings in criminal cases.
Counsel, however, said, till date, that reforms have not been carried and until that was done, the rules have not changed and the trial should start afresh.
Counsel 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 assert 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 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 de novo.”
Source: Kasapafmonline.com/Murtala Inusah
