The Supreme Court, by a unanimous decision, has dismissed Dr Stephen Kwabena Opuni’s prayers for the Apex Court to overturn the ruling of the Court of Appeal that his trial at the High Court should not start afresh.
The five-member-panel did not only dismiss the appeal for lacking merit, but also affirmed the Court of Appeal’s decision to set aside the ruling of the Accra High Courtto start the six years trial anew.
The members of the panel were Chief Justice Gertrude Sackey Torkornoo (presiding), Justice Mariama Owusu, Justice Henrietta Mensa-Bonsu, Justice Ernest Gaewu and Justice Yaw Darko Asare.
Grounds for the appeal
The grounds for Dr Stephen Opuni’s appeal at the Supreme Court were that the Court of Appeal judges committed an error of law when they held that the trial high court judge exercised his discretion wrongly when he ordered the case to be started de novo.
According to him, the settled practice in criminal trial was that when a pending criminal case is assigned to a new judge, the judge is obliged to start the case de novo.
He contended that the settled practices of the courts could only be changed by statute. He said the panel of the Court of Appeal erred when they held that in view of the fact that the case has been on the cause list since 2018, the exercise of the trial court’s discretion to start the trial de novo was not proper, but was arbitrary, capricious, uninformed and contrary to the policy rationale of Article 296 of the 1992 Constitution.
The Court of Appeal erred when they substituted the discretion of the trial judge to start the trial de novo with their discretion.
There was also an error in law when they refused to follow the binding decision of the full bench of the Court of Appeal, sitting as the Supreme Court, in the case of Harlley v Ejura Farms ll977l2 GLR 179 to the effect that settled practices of the courts can only be changed by statute.
Furthermore, there was an error when the panel ordered the trial court to adopt proceedings on the grounds that the accused persons have a right to a speedy trial under the 1992 Constitution.
The ruling was in the wrong direction when the panel disregarded the effect of the observation of the demeanor of witnesses in a criminal trial. According to the appellant, the entire ruling cannot be supported having regards to the evidence.
The appellant was, therefore, praying the superior court to set aside the ruling of the Court of Appeal and restore the ruling of the trial court judge to start the case de novo.
Background
Following Justice Anokye’s ruling to start the trial de novo, after retirement of Justice Honyenuga, who was then handling the case, Godfred Yeboah Dame, the Attorney-General and Minister for Justice, appealed against the decision and the appellant court set aside the High Court ruling.
Per the Appeal Court ruling, the High Court was to adopt proceedings from where the retired Supreme Court Justice, Clemence Honyenuga, left off after almost six years.
Justice Kwasi Anokye Gyimah, who took over the case in March last year and ruled to start the criminal trial afresh, because it would be unfair for him to adopt the proceedings of Justice Honyenuga, who was transferred and Justice Aboagye Tandoh appointed to take over.
The unwillingness of the prosecution witnesses to testify became a major hurdle for the A-G and his team to file their witness statements when it was ruled that the case should started afresh.
So far, Dr. Opuni, since the retirement of Justice Clemence Jackson Honyenuga in the year 2023 and removal of the subsequent judge, Justice Kwasi Anokye Gyimah, had closed his case by calling a total of 11 defence witnesses.
Seidu Agongo and Agricult Ghana Limited, second and third accused persons, have opened their defence and had so far called five defence witnesses.
The GH¢271 million cocoa fertiliser case is being currently heard by a summary judge, Justice Aboagye Tandoh.
Dr. Opuni is the immediate past Chief Executive of COCOBOD, while Seidu Agongo is a businessman and supplier of the lithovit fertiliser, which is at the centre of the trial.
The three have been charged with defrauding by false pretence, contravention of Public Procurement Act, causing financial loss to the state and corruption of public officer.
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