Opuni Trial: Court dismisses motion against trial judge

Dr Stephen Opuni

An Accra High Court hearing the trial of Dr Stephen Opuni, the former CEO of COCOBOD and two others on Monday dismissed a motion seeking the trial judge, Justice Clemence Honyenugah to recuse himself from continuing with the matter.

The trial judge after hearing the parties said it was his considered opinion that the preliminary matters raised by Mr Samuel Cudjoe, Counsel for Dr Opuni were baseless and described the motion as incompetent and misconceived.

He said the allegations raised on his comments were non-judicial and do not touch the instant case pending.

The motion seeks the trial judge, who is a Court of Appeal Judge sitting with additional responsibility as a High Court Judge, to stop the trial and refer the matter to the Chief Justice for reassignment.

Mr Cudjoe said this was a motion on notice for the trial judge to recuse himself from continuing with the hearing of the case that was suit number CR/158/2018.

He said the applicant was coming under the inherent jurisdiction of the court.
Citing authorities, the Counsel said “it is our position that in the absence of specific provisions, this court has an inherent jurisdiction to deal with the application.”

He said they would also add that this was a case where normally you (Judge) would have to file an affidavit explaining what you said at the durbar to show what you meant.

The Counsel said as it was, the affidavit which should have been sworn by you would be contained in your ruling and in this case, you would be giving evidence which we would not have the opportunity of contradicting.

He said the next point was that although this case was supposed to be a purely criminal matter, unfortunately members of the ruling government including the prosecution and by the prosecution “I am specifically mentioning the first Deputy AG, Mr Godfred Dame, whose brief the Chief State Attorney is holding and my lord I would want to place on record that the Deputy AG has been part of this case and has appeared in court.”

He said as they have referred to, this supposedly purely criminal matter has now been elevated and situate in a political context such that the political fortunes of the ruling government is linked to this case.

He also refer to paragraph 8 and 9 of the motion which political bigwigs of the ruling NPP have all referred to the Opuni case as one of the incidents of political corruption during the Mahama administration.

“If they are successful, then the Mahama administration or the NDC should not be elected because they are corrupt, if they are not successful then the NPP lied and should affect their political fortunes and principally reelection in the 2020 elections.” he added.

He said it was their position that this statement of his alignment with the political fortunes of the ruling party and was directly linked with the reelection indeed that has been the whole political agenda.

“So our position is this, having openly expressed political preference for one political party namely the ruing NPP government whose party bigwigs including the Deputy AG, who has stated that this case is a prime example of political corruption by the NDC, we think you should step aside,” he added.

The Counsel said it was their submission that the judge who was hearing this under normal circumstances ordinary criminal matter which unfortunately has been linked directly with the political fortunes of the ruling party in the 2020 elections.

“We believe you should recuse yourself in that you have made it clear that you want the government to win the 2020 elections and that it’s not only you, but also asking Ghanaians to give them another mandate,” he said.

Mr Cudjoe said their position was that the prosecution has taken a political position and that their only hope was the judiciary.

Mr Nutifafa Nutsukpui, the Counsel for Seidu Agongo, the CEO of Agricult Ghana Limited said to their mind, this sort of application has more to do with the form or appearance rather than the substance or merit of the statement being complained of.

He asked whether the statement was in fact made? If yes, what was that statement likely to cause in the mind of the ordinary person.

He said a look at the code of conduct for judges and magistrates seems to agree with their position.

Citing the code of conduct, he said rule one indicates that judges were to uphold the integrity and independence of the judiciary.

The Counsel said “My lord’s good intentions may never be known. All we know is the statement and the doubt it is likely to create.”

Mrs Evelyn Kleeson, Chief State Attorney, said the prosecution was oppose to counsel’s preliminary objection to my Lord sitting on this matter because the application concerns a comment made by your lordship.

She said your lordship was being accused of a comments made not in respect of this matter, not in respect of this case but a non-judicial comment.
She said My lord as stated clearly, these comments were simply non judicial comments.

She said they were mere allegations of comments outside your Lordship’s jurisdiction in this court in this matter, as a criminal matter before this court.
She said it could not therefore be said that your lordship would be confronted with an opinion in this matter and this was not the situation at all.

The Chief State Attorney said it was not every allegation which was made against a sitting judge that should require the sitting judge to recuse himself from hearing the case.

“My lord we are opposed to this application. As indicated by our affidavit in opposition filed on March 11, 2020, we have a 31 paged affidavit and we rely on all the pointers in the application.”

She said the criminal matter before this court involving the applicant and two others was based on personal actions and conduct of the applicant which actions and conduct are criminalised under existing laws of the country.

She said all the charges preferred against the applicant were based on existing laws of the land.

Mrs Kleeson said anybody in this country, who infringes any of these laws, no matter the person’s status, would be made to answer to these laws and that was exactly what the applicant has been called upon to do.

“This has nothing to do with politics,” she added.

She said there was nothing political about this one and the fact that a person was connected to one political party or the other would not insulate that person from prosecution.

She said the comments made by the trial judge that the applicant complained about have nothing to do with the trial of this case.

She said the test required by law for a judge to recuse himself was whether there was a real likelihood of bias and my lord this must be based not on mere allegations, apprehension or suspicion of bias.

The Chief State Attorney said the allegations were without foundation.

She said the comments had nothing to do with the case and counsel in his submission tried to say that in our affidavit in opposition, “we tried to read into the intentions of the judge. My lord we did nothing of the sort.”

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