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Honyenuga dismisses Opuni.

A Supreme Court judge, Justice Clemence Honyenuga, has dismissed an application filed by the former Ghana Cocoa Board (COCOBOD) Chief Executive Officer (CEO), Dr Stephen Kwabena Opuni, to stay proceedings.

The motion, which was moved by Samuel Cudjoe, defence counsel for Dr Opuni, sought to compel the court to stay its proceedings pending an interlocutory injunction filed at the Court of Appeal.

The interlocutory injunction was in regard to a ruling by Justice Honyenuga in connection with a statement he purportedly made at a durbar which Dr Opuni finds offensive to his trial, due to the belief that it has the potential to distort the route of natural justice.

Dr Opuni, who deems his trial to be politically motivated, earlier challenged the sitting judge to recuse himself, but the request was denied.

The former COCOBOD CEO, through his lawyers, pleaded before the same judge to stay the proceedings pending the determination of an interlocutory appeal, which was filed in May this year.

According to Mr Cudjoe, the exceptional ground for the stay of proceedings was premised on the fact that Justice Honyenuga was a judge in his own court by determining the case challenging his fairness.

'This is because what determines exceptional circumstance will depend on a case by case, and so far as an issue of natural justice has been raised, which is also a constitutional justice as obtained in the constitution, as respect to the constitutional right to fair trial,' he said.

Mr Cudjoe argued that although to grant or refusal of the application lies entirely within the discretion of the trial court, adding that the Court of Appeal had urged that such discretion must also be exercised judiciously, balancing the interest of the Republic against the right of the accused person.

He said the Court of Appeal further advised that if the proceedings would risk the applicant's constitutional right, then it could be stayed.

He said: 'It is our submission that we have raised issues of a constitutional nature, namely the right to a breach of rule of natural justice that your lordship should not be a judge in your own case.

'My lord, we, therefore, pray that you stay proceedings pending the hearing of the Appeal.'

In responding to the affidavit in opposition filed by the prosecution and sworn by Stella Ohene Appiah, Chief State Attorney, he said it does not address the issue on grounds of the notice of appeal, which concerns his lordship determining the issue.

He kicked against the prosecution's argument in paragraph 18 that the application will cause unnecessary delays in the case and grave injustice, particularly when the applicant is not the only accused person.

He said the second (Seidu Agongo) and third accused (Agricult Ghana Limited), in an affidavit dated 27/03/2020, actually support the motion, and they state that in the interest of justice, this court should grant this stay

Mr Cudjoe further pleaded with the court that in order not to breach the rules of natural justice it must consider the application to stay proceedings.

The Defence counsel for 2nd and 3rd accused, Nutsifafa Nutsupki, told the court that they associate themselves with Counsel for Opuni.

When the prosecutor rose to state her case, Mr Cudjoe further rose to oppose her, since she had sworn an affidavit, therefore, she was witness in the case, and that it was improper for a witness to act same as a counsel in that particular instance.

' What my learned friend has done is against rule 7 (2) of the legal profession into (professionals conduct and etiquette rules 1969 L9613)...' he added.

'It cannot also be said to be essential to the end of justice. You have other lawyers there. An embarrassing [situation] would arise if we decided to cross examine her, as we wanted to do. So it is our submission that counsel cannot be counsel in this instance.'

The Principal State Attorney, in response, stated: 'My lord respectfully, this issue has ever come up in this same court and my lord ruled on it, dismissing counsel's objection. Counsel has not appealed that ruling of the court against the dismissal of his objection. My lord, counsel cannot raise this same objection against same before and proceed to claim that he wants to examine the prosecutor. It is unfair, and counsel is abusing this rule of the court. He knows what to do if he is dissatisfied with the ruling of the court. My lord I submit. '

Cudjoe: Under section 62 of the Evidence Act, it says that a witness cannot only testify if he is subject to all actions to motion. In this motion, the evidence by affidavit, she is a witness for the prosecution, hence, she cannot object to be cross examined, and it is not also a surprise. My lord, it is provided in 62 (2) of the Evidence Act. My lord, I have referred to this action to show that once you give evidence, you have to be cross examined, that is why when it comes to a lawyer, a lawyer should not give evidence and should hand over the brief to another lawyer, if the lawyer is minded to give evidence.

Justice Honyenuga: By court on the objection by the Counsel for A1, the appellant and upon hearing the learned state attorney, it is my considered opinion that the Principal State Attorney, by paragraph 2 of her affidavit, stated her position that she is acting upon the authority of the Attorney General.

The fact of which has come to her knowledge for the course of her work. In going through the affidavit of the Principals State Attorney, it is a fact that she is acting on behalf of the Attorney General, and she is very familiar with this case. I fail to see why she should be stopped from replying to the motion filed by the A1 applicant in her capacity as the prosecutor in this case. In any case, it is my view that the objection is over ruled, and the Principal State Attorney should be heard.

Stella: My lord, we opposed to the grant of the application for stay of proceedings. My lord, we rely on the affidavit in opposition filed... The appellant has not been able to show any exceptional circumstance for which this court must stay its proceedings. My lord, as it has already been held in this court, the mere fact of a ruling being in conflict with a decision of the Supreme Court is not an indication that the appellant's constitutional right would be at risk.

We have argued before in this court, and my lord has rightly ruled that this is not a political trial, as the appellant is being tried on charges founded on the laws of Ghana.

It is, therefore, not proper to merely allege before a court of law that the appellant is facing a political trial without... Counsel needed to have shown real evidence to this court that indeed this is a political trial. This is not a political trial, and this is the foundation of the appellant's appeal.

Trying to play a breach of the appellant constitutional right does not, therefore, arise at all. Appellant has to stay in court. He has conducted copious cross examinations of the prosecution witnesses so far.

The appellant has had occasions to appeal decisions of this court when he was aggrieved by those rulings. My lord, it is, therefore, improper for the appellant to suggest at this point that his constitutional right is at risk and being infringed upon.

It is right that the grant of stay of proceedings is at the discretion of the judge, however, the applicant must also demonstrate that an exceptional circumstance has arisen to warrant this decision in his favour.

It is our submission that this applicant has woefully failed to demonstrate any such circumstance to this court. My lord, we pray that this application should be dismissed as without merit.

The judge said Dr Opuni preferred to pick and choose from the speech he made on behalf of the people and chiefs of his area.

He added that the appellant should have petitioned the Chief Justice, but chose to file the application before him, adding that the appellant has not demonstrated any exceptional circumstances to stay proceedings, hence, the application is hereby dismissed

The case was then adjourned June 26, 2020, for counsel for A2 and A3 to continue cross examination of the third prosecution witness, Dr Yaw Adu Ampomah.
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Publication:Ghanaian Chronicle (Accra, Ghana)
Date:Jun 25, 2020
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