Opuni fails to remove trial judge

A Justice of the Court of Appeal, Justice Clemence Honyenuga, has dismissed an application urging him to recuse himself as the presiding judge over the trial of former Chief Executive Officer (CEO) of the Ghana Cocoa Board (COCOBOD), Dr Stephen Kwabena Opuni.

In a ruling Monday, Justice Honyenuga who was sitting as an additional High Court judge, dismissed the application filed by Dr Opuni on the basis that it was incompetent and misconceived.

Dr Opuni is on trial, together with a businessman, Seidu Agongo, for allegedly causing financial loss of more than GH¢271 million to the state in a series of fertilizer deals.

Allegation of bias
The former cocoa czar accused Justice Honyenuga of bias on allegations that he (judge) had called on people to vote for President Nana Addo Dankwa Akufo-Addo in the 2020 general election.

On February 18, this year, Justice Honyenuga, who is also the Paramount Chief of the Nyagbo Traditional Area, with the stool name Torgbui Ashui Nyagasi V, praised the President for what he described as his sterling performance.

“We wish to congratulate you on the excellent manner in which you are governing this dear country of ours. It is our hope that with your vision and the gains made in your first term, Ghanaians will consider giving you another four years," Torgbui Nyagasi (Justice Honyenuga) said when the President visited the Nyagbo Traditional Area as part of a tour of the Volta Region.

Lawyers for Dr Opuni contended that that statement by the judge, even in his capacity as a traditional leader, was a clear indication of his support for President Akufo-Addo.

According to them, such a move meant that Justice Honyenuga had compromised his neutrality and would not be fair to their client, who happened to be an appointee of the erstwhile Mahama-led administration.

No basis
However, in his ruling, Justice Honyenuga held that Dr Opuni failed to prove any legal basis for the application.

First, he said, the comments complained about were non-judicial and, therefore, did not amount to bias.

He said Dr Opuni made numerous allegations in the application which were highly “political, mere perceptions and exaggerations to suit him (Dr Opuni) and others”.

“The applicant is being tried in the name of the Republic of Ghana and nobody else,” he added.

Another leg of Dr Opuni’s application was for the presiding judge not to hear the application because it would mean that he (judge) was presiding over his own case.

His legal team therefore urged Justice Honyenuga to refer the motion to the Chief Justice for him to transfer the motion to another judge.

Justice Honyenuga, however, held that although it was true that he could not sit on his own case, it was also wrong in law for the applicant to have filed the application before him.

According to him, per the rules of court, a case could only be transferred from one court to another by the Chief Justice and, therefore, invoking the jurisdiction of the court to achieve that aim was “misconceived”.

“In the circumstances, the application before me is incompetent and misconceived and is hereby dismissed,” Justice Honyenuga ruled.

Arguments in favour of application
Making a case for the application, lead counsel for Dr Opuni, Mr Samuel Cudjoe, had argued that Justice Honyenuga must recuse himself from the trial because he had shown bias by making a statement in support of President Akufo-Addo.

He submitted that bias did not only mean that a judge must be party to a case or show pecuniary interest in a case but that bias could be established when a judge did something for the benefit of a third party.

“Calling on Ghanaians to give the President another mandate in the 2020 elections, in our opinion, qualifies under doing something for the benefit of a third party,” he argued.

The lawyer for Agongo, Mr Nutifafa Nutsukpui, in his submission, also urged Justice Honyenuga to recuse himself from the trial.

It was his contention that per the code of conduct for judges and magistrates, judges must avoid impropriety or any appearance of impropriety in their professional and personal conduct.

Also, he said, per the code of conduct, judges must also refrain from political activity inappropriate to their judicial office.

“It is our prayer that in these circumstances, and in the interest of the greater good, it may be worthwhile that my Lord will consider the application and hopefully recuse himself,” counsel argued.

Arguments against application
In her response, a Chief State Attorney, Mrs Evelyn Keelson, urged the court to dismiss the application.

According to her, the said comments by Justice Honyenuga had no bearing on Dr Opuni’s trial, neither did it mean Justice Honyenuga was actively campaigning for President Akufo-Addo.

“How can a statement by a trial judge that Ghanaians may consider voting for a sitting President be translated into bias of an applicant facing criminal charges?” she quipped.

She further submitted that Dr Opuni’s criminal case was not politically motivated but was as a result of what she described as his conduct as the boss of the COCOBOD.

“This is not a political trial. The applicant has not succeeded in raising a solid foundation for bias,” she argued.

She said for a case of bias to succeed, the applicant must prove real likelihood of bias on the part of the judge and not mere allegations, apprehension or suspicion of bias.

The application, Ms Keelson said, was an attempt one by Dr Opuni to deliberately delay the trial.

Main case
In March 2018, the A-G charged Dr Opuni and Agongo, who is the CEO of Agricult Ghana Limited, with 27 counts for allegedly engaging in illegalities that caused financial loss of GH¢271.3 million to the state and led to the distribution of sub-standard fertilizer to cocoa farmers.

Agongo is alleged to have used fraudulent means to sell sub-standard fertilizer to COCOBOD for onward distribution to cocoa farmers, while Dr Opuni is accused of facilitating the act by allowing Agongo’s products not to be tested and certified, as required by law.

The two accused persons have pleaded not guilty to all the 27 charges and are currently on bail in the sum of GH¢300,000 each.

Writer’s email: emma.hawkson@graphic.com.gh