Agongo’s application to remove judge raises serious matters -Honyenuga

Justice Clemence Jackson Honyenuga says the Chief Executive Officer (CEO) of Agricult Ghana Limited, Seidu Agongo’s motion to remove him raises serious matters.

His Lordship Justice Honyenuga despite seeing several of these applications flooding the court in the GH¢2.1 billion cocoa case, has, for the first time, expressed concerns over this motion as being “serious.”

He made the comments on Monday after counsel for the applicant brought the filing of the application to his attention, and for which sitting was adjourned to Thursday, February 23^rd, 2023 for the motion to be heard.

Justice C.J. Honyenuga is a retired Supreme Court Judge and has been given a special mandate by the Chief Justice to continue presiding over the trial involving Mr. Agongo and his company, Agricult Ghana Limited, as second and third accused (A2 & A3), and the former Chief Executive (CE) of Ghana Cocoa Board (COCOBOD), Dr. Stephen Kwabena Opuni, as the first accused (A1).

Together the accused persons are facing 27 charges, including defrauding by false pretences, wilfully causing financial loss to the state, money laundering, and corruption by public officer in contravention of the Public Procurement Act.

The Motion

The application was filed on Friday, February 17^th, 2023. It follows a recent order given by the court that it will continue hearing without the presence of applicant, who was reported ill and on admission at the 37 Military Hospital.

This was as the court had to adjourn sitting for about three conservative times for A2 to attend hospital and a review at the Korle-Bu Teaching Hospital.

However, on the return date, February 13, when the court was again informed that A2 would be absent, as after his review he was detained from morning to almost 5:00pm on account that the Attorney-General was checking from Korle Bu Teaching Hospital whether he was, indeed, receiving treatment from the facility, and after this experience his condition escalated and was sent to the 37 Military Hospital.

The Judge ordered the court Registrar to verify the information with the 37 Military Hospital, and also expressed his displeasure of, once again, adjourning the case, considering his limited time to try the matter, and stated: “I also indicated that I was giving the 2nd accused the benefit of the doubt for his absence from court. I will, again, give him the final benefit of the doubt, especially when the effort of the Registrar, who was to verify from the 37 Military Hospital whether or not the 2nd accused was on admission, ended in a fiasco.”

Here are excerpts of the application:

6. That the Court dismissed our submissions of no case and ordered us to open our defence in respect of Counts 2, 4, 6, J, 8, 9, 10, 11, 12, 21, 25, 26 and, 27, as, according to the Court, the Prosecution had proved the ingredients of the offences so charged in those Counts and also because the case is a “sensitive” one.
7. That in order to arrive at its said decision the trial Court, presided over by Justice C.J. Honyenuga (JSC), rejected and marked as rejects Exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 6J, 68, 69,70, 7l, 72, 73, 74, and 75, being exculpatory evidence, and which were Police Caution statements provided to the Accused Persons by the Prosecution on the orders of the very same Court; and were tendered at the trial through the Police Investigator without any objection from the Prosecution, on the ground that this Court was wrong in admitting the said exhibits; as the said exhibits violated the hearsay rules of evidence.
8. That, however, similar documents, also being Police Caution statements, tendered by the Prosecution at the trial through the same Investigator were curiously not rejected, but actually relied on by the said Court in concluding that a case was made against us for which reason we needed to open our defence; and there was no explanation whatsoever as to why this Court discriminated against us.
9. That, for example, Exhibits “0069″ and “PP” were Police Investigative caution statements obtained from the only farmers spoken to by the investigators during the investigations, and were tendered through the Investigator; while the defence on 1lth March, 202…, tendered Exhibit “69” which the farmer confirmed that he found the Lithovit Liquid Fertiliser very good for young and old cocoa; the Prosecution tendered Exhibit “PP” in which the other farmer complained that he harvested only 52 bags of cocoa after applying the said fertiliser instead of the 50 bags of cocoa he used to harvest, and as such he did not find the fertiliser as good as the Extension Officers had claimed.
10. That while the Court rejected and marked Exhibit “69” as reject, it preserved Exhibit “PP”, which was tendered by the Prosecution through the same Police Investigator, without any explanation.
11. That another key evidence that was rejected by this Court was Exhibit “6J” tendered without objection on 1 March, 2021, through the Police Investigator, which exhibit is also a Police Caution Statement taken from Dr. Baah, the Head of the Cocoa Health and Extension Division of Cocobod (CHED), at the time; who confirmed that, through a farmer perception survey conducted by CHED, farmers had expressed preference for the Lithovit Fertiliser that CHED had distributed to them, so he asked that this be documented.
12. That also rejected by this Court and marked as reject is Exhibit “63” a police caution statement obtained from the then Chairman of the Board of Cocobod, which was again tendered without objection through the Police Investigator on 1st March, 2021, wherein the said Board Chairman had confirmed to the investigators that all purchases and contracts carried out at the material time were approved by the Board of Cocobod, and that all the necessary rules and procedures for the procurement of chemicals and fertilisers by Cocobod were strictly adhered to.
13. That again a vital piece of evidence rejected by this Court is exhibit “75” which is a handing over statement made by the head of the investigative team at the Economic and Organised Crime Office (EOCO), the entity which commenced the investigations in the matter, at the time when the investigations were being handed over by EOCO to the Ghana Police to continue; wherein the EOCO official confirmed that we (the Applicants herein) knew nothing about the source

of the sample of the Lithovit liquid fertiliser used to conduct the first tests at the Ghana Standards Authority (GSA) and the Chemistry Department of the University of Ghana but that the only sample of the Lithovit Liquid Fertiliser picked from Cos warehouse jointly by the investigators together with the officers of Ghana Cocobod in my presence and used for a second test at the GSA confirmed that the second sample tested was indeed fertiliser.

14. That this court also rejected and marked as rejects Exhibits “Jl” and “J2” tendered through the Police Investigator on 15^th March, 2021, without objection, being Police caution statements obtained from the Head of the Material Science Department of GSA and one other Scientist of the GSA who were the persons who actually carried out the test on the second sample of Lithovit Liquid Fertiliser received from EOCO at the GSA and concluded that it was indeed a fertiliser; a material piece of evidence which the trial Court has now put beyond our use at the trial by the singular act of marking same as rejects at the submission of no case stage, while finding that the Prosecution has proved that we had sold adulterated fertiliser to Cocobod.
15. That the exhibits rejected and marked as rejects by this Court at the submission of no case stage were Police caution statements relating to key matters, were exculpatory in nature, and their rejection by the trial Court at this stage without having afforded us the opportunity to be heard before doing so, has no doubt prejudiced our case and hampered our ability to make any meaningful defence to the charges we face at the trial.
16. That I am advised by Counsel and I verily believe the same to be true that this Court could not have come to the conclusion that the Prosecution had proved the offences so charged without curiously rejecting and marking as rejects exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 69, 69, 10, I l, 72, 73, 74, and 75.
17. That I am further advised by Counsel, and I verily believe the same to be true, that this Court exceeded its jurisdiction by acting contrary to constitutional and statutory provisions when it rejected exhibits 5g, 59, 60, 61, 62, 63, 64, 65, 66, 67,68, 69, 70, 71, 72, 73, 74, and 75 on the grounds that they offended the hearsay rules when those exhibits were in fact tendered with the consent of the Prosecution signified by the Prosecution not objecting to their tendering and, therefore, an exception to the hearsay rules.
18. That I am again advised by Counsel and I verily believe the same to be true that this Court exceeded its jurisdiction by acting contrary to constitutional provisions when it unfairly, capriciously, discriminatorily, and prejudicially purported to apply the hearsay rules only against the Accused Persons in not rejecting the Police Caution statements tendered by the Prosecution which were similar in character to exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 6J, 68, 69,10, 11, J2,73, 74, and 75 at the trial.
19. That I am further advised by Counsel, and I verily believe the same to be true, that the Court acted erroneously and contrary to statutory provisions in rejecting exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 69, 69,10, 71,72, 73, 74, and 75 which were otherwise admissible as an exception to the hearsay rules being Police Caution statements taken by investigators during their official duties in investigating this matter thereby exceeding its jurisdiction.
20. That I am advised by Counsel, and I verily believe the same to be true, that for this court to have to reject exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 6J, 69, 69,7A, 71,72,73,74, and 75 in order to be able to come to the conclusion that we have a case to answer means that the said Court failed to exact the appropriate burden of proof from the Prosecution contrary to constitutional and statutory provisions.
21. That I am advised by Counsel, and I verily believe the same to be true, that a fair minded trial Court in a criminal matter must be interested in evidence that inures to the benefit of an accused person, and not seek to capriciously put such evidence beyond the use of an accused as this Court had done in rejecting and marking as rejects all these documents to the effect that we cannot rely on them in our defence at the trial.
22. That by rejecting the exculpatory evidence and marking them as rejects thus ensuring that we can never rely on the said exhibits at the trial while at the same time calling on us to open our defence in respect of the very same matters means that this Court has already sealed our fate and only wants us to go through a sham of a trial when it has already predetermined our guilt even before we are heard especially when similar evidence tendered by the Prosecution was spared the wrath of this Court.
23. That I am advised by Counsel, and I verily believe the same to be true, that when this Court, presided over by Justice C.J. Honyenuga (JSC), suo motu decided to reject the exhibits, all of which had been admitted at the trial with the agreement of the Prosecution in not objecting to their being tendered, the said Court ought to have given the Accused Persons, including the Applicants herein, a hearing on the matter prior to making a decision which the said Judge failed to do.
24. That for the trial Court on its own to exclude all the exculpatory evidence without giving us a hearing is clearly an assault our constitutional rights to fair trial and against the rules of natural justice and, as a result, disqualifies the said trial Judge from continuing with the further conduct of the proceedings in this matter.
25. That while this Court did not explain what it meant by saying in its Ruling that because the matter is a “sensitive” one we should open our defence, I am advised by Counsel and I verily believe the same to be true that the sensitivity of a criminal case is not a legally recognised ground on which to call upon an accused person to open a defence in a criminal matter; and to that extent the trial Judge has shown that he is clearly being influenced by extrajudicial considerations in this matter.
26. That apart from having unlawfully excluded those exhibits as this Court did; this Court in its Ruling of 7th May, 2021, also made sweeping definite final and conclusive findings against us, the Applicants, at the stage of submission of no case to answer as though the said Ruling was the final judgment of this Court after full trial, when the said Court was yet to hear us; demonstrably leaving no room in this Court’s mind for the statutory reasonable doubt that we are required to raise as to our guilt on the charges laid against us.
27. That at page 40 of the Ruling (Exhibit “SA 2”), for instance, this Court states “…of course, this cannot be the Lithovit Fertilizer the 2nd and 3rd accused [Applicants herein] knew that what they supplied to COCOBOD cannot be Lithovit Fertiliser.”
28. That at page 42 of Exhibit “SA 2″, the trial Judge stated further ” … In the instant case, the 2nd and 3rd accused knew that the representation they made and supplied COCOBOD with 700,000 litres, and 1,000,000 litres of Lithovit were (sic) false because they knew that the liquid substance they had supplied to COCOBOD were (sic) not Lithovit fertilisers. “
29. That again the trial Judge, Justice C.J. Honyenuga (JSC), stated at page 43 to 44 of the Ruling that ” … In the instant case, the 2nd and 3rd accused knew that the liquid substances they supplied to COCOBOD were false and they knew that they were not the Lithovit Foliar fertilizer from Germany. PW7’s testimony supports the assertion that the liquid substance was prepared from their (accused’s) own warehouse with (sic) any scientific formula. From the GSA and UG (1) it is clear that this liquid substance was intentionally prepared using insignificant portions of the genuine Lithovit Fertiliser from Germany, (urea was then added to it to pass off as Lithovit fertiliser from Germany.
30. That at page 45 of Exhibit “SA 2” the said trial Judge continued thus … Is a result of the representations made by the 2nd and 3rd accused that they had supplied COCOBOD with Lithovit Foliar Fertiliser from Germany tested and approved by CRIG and COCOBOD, both the Audit, Inspectorate and Finance Departments believed that they were paying for genuine Lithovit Fertiliser from Germany but did not know that they were paying for a liquid substance that could not be described as Lithovit Foliar Fertiliser.”
31. That on page 54 of the Ruling, Justice C.J. Honyenuga (JSC) stated further that “… All these were perpetuated to facilitate the 2nd and 3rd accused’s [Applicants herein] business and defraud COCOBOD. Indeed these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused [Applicants herein] to perpetrate fraud on COCOBOD by supplying a different product from what was tested and approved… However, the 1st accused although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused [Applicants herein] to defraud COCOBOD… there was no way COCOBOD would have been defrauded of such huge amounts. “
32. That at page 55 of the Ruling, Justice C.J. Honyenuga (JSC) continued his assault on the Applicants herein by stating “… The 1st accused made things easier for the 2nd, and 3rd accused to succeed in their enterprise of defrauding.”
33. That the said trial Judge continued his onslaught at page 59 of the Ruling thus: “… It is in evidence that these colossal amounts were paid through the 1st accused as the CEO of COCOBOD to the 2nd and 3rd accused [Applicants] who supplied Lithovit Liquid Fertiliser which was not tested nor approved by COCOBOD and which scientific reports which PW5 tendered as Exhibit H from the Ghana Standard Authority and University of Ghana Chemistry Department that the Foliar Liquid Fertiliser Is worthless. It is a fact that the state is the owner of these monies paid out and her coffers were depleted without receiving any value for its money. This indeed constitutes financial loss to the state… The actions of the 1st, 2nd and 3rd accused were willful.”
34. That on page 60 of the Ruling, Justice C.J. Honyenuga (JSC) continued thus “…it is safe to conclude that that the 1st, 2nd and 3rd accused intentionally engaged in a conduct which injured the state financially … It was an adulterated product and therefore could not have been tested and approved product from Germany. It was an intentional conduct to merit the charge.”
35. That at page 64 of the Ruling, Justice C.J. Honyenuga (JSC) stated “In the instant case the prosecution had proved that the accused persons acted together and the purpose was to cause financial loss to the state as earlier proved under the substantive offence.”
36. That I am convinced beyond any doubts that with the above categorical and determinative statements made by Justice C.J. Honyenuga (JSC), even before we could be heard, after he found ways of putting very vital evidence that would have assisted us to raise any doubts as to our guilt beyond our use at the trial by marking them as rejects at the submission of no case stage; we (Applicants) stand no chance before him no matter what manner of evidence we adduce before the said Court as, for all practical purposes, our fates are sealed and any further trial proceedings before the same judge will just be an academic exercise.
37. That by the above statements the court has again deprived us of our constitutional rights to be condemned only after the Court has heard both sides of the matter
38. That these deliberate hurdles placed in the way of the Accused Persons in this matter notwithstanding the 1st Accused (not a party to this Application) eventually opened his defence on 2nd December, 2021, by calling DW1, Mr. Charles Tetteh Dodoo, and has so far called six (6) other witnesses; Dw7 currently testifying.
39. That midway through the evidence of the DW7, Justice C.J. Honyenuga (JSC), on the 16th of December, 2021, ordered all accused persons, including the Applicants herein, to file Witness Statements together with any documents the Accused might rely on at the trial; with a further order that each witness, together with the Accused Persons, including the Applicants, shall have a day to give their evidence-in-chief and the cross-examination of each witness shall not exceed two sitting days.
40. That the trial Judge, Justice C.J. Honyenuga (JSC), imposed these new restrictions on the Applicants in the conduct of our defence even though no such restrictions were imposed on the Prosecution when it conducted its case.
41. That when the 1st Accused after the 16th December,2021, Ruling/Orders brought an Application in the Supreme Court for Certiorari and Prohibition, Justice C.J. Honyenuga (JSC), quite extraordinarily, personally swore to and filed an Affidavit in Opposition denouncing the 1st Accused and the allegations made in his said Application before the Supreme Court; thereby clearly descending into the arena of conflict or taking issues personally with the 1st Accused, with whom the Applicants herein have been jointly charged with conspiracy.
42. That I have always attended Court on this matter until the 31st of January, 2023, when I was absent on account of ill health. I had attended the Korle Bu Teaching Hospital for medical care; and the Court adjourned the matter to 2nd February, 2023, for me to furnish proof of having sought such medical attention.
43. That on the 31st of January, 2023, I was given Three (3) days excused duty and scheduled to attend a review on 7th February, 2023; and as such I was unable to attend Court on the 2nd of February, 2023, but my lawyers furnished the Court with the Medical Note I had been given from the Korle Bu Teaching Hospital on 31st January, 2023; upon which the court adjourned the case to 6th February, 2023, for continuation.
44. That on 6th February, 2023, I attended Court though I was still seriously unwell on the insistence of my lawyers in order that we are not accused of delaying the proceedings; and at the end of the day’s proceedings the matter was adjourned to 8^th February, 2023, for continuation.
45. That on 7th February, 2023, I duly attended my medical review session as scheduled but was still unwell and had to be taken to the 37 Military Hospital at night on the said 7th of February, 2023, where I was admitted until 11th February, when I was discharged, and therefore could not attend Court on the 8th of February, 2023; I attach herewith evidence of my attendance at the 37 Military Hospital marked as Exhibit (SA 3).
46. That I am informed by Counsel and I verily believe the same to be true that on the said 8th of February, 2023, Justice C.J. Honyenuga (JSC) expressed his grave displeasure at having to adjourn the matter due to my absence from Court on account of being on admission at the Hospital and “with a heavy heart” adjourned the matter to 13th February, 2023, while ordering the Registrar of the Court to verify from the 37 Military Hospital whether I was indeed admitted there and for my lawyers also to furnish the Court with proof of my said admission on the 13th of February, 2023.
47. That I am informed by Counsel and I verily believe the same to be true that on 13th February, 2023, though the Court was furnished with the Medical Advisory Certificate given to me from the 37 Military Hospital upon my discharge on 11th February, 2023, which confirmed the dates of my admission at the said Hospital and gave me a week’s excused duty, Justice C.J. Honyenuga (JSC) adjourned the matter to 14th February, 2014, in order to receive the report of the Registrar as to whether or not I had in truth been admitted at the said Hospital; a clear indication that the said judge disbelieved the fact of my ill health and or admission.
48. That I am again informed by Counsel and I verily believe the same to be true that on the 14th of February, 2023, Justice C.J. Honyenuga (JSC) was incensed that I was absent and given a week’s excused duty and unable to hide his indignation, delivered himself in the following words or in words of similar nature: “At the last adjourned date, I expressed my difficulty in having to adjourn the case because of the absence of the 2nd accused on medical excuse duty. As I indicated, I have limited time to conclude this matter but such medical excuses are delaying the trial of this case. I must state emphatically that this court has discretion to accept or reject medical evidence and I must add that the 2nd accused is on bail and he is still subject to this court’s discretion. And I must also add that this court has enormous powers to deal with any situation in this court.”
49. That I am also informed by Counsel and I verily believe the same to be true that the Registrar’s report to the Court on the said 14th of February, 2023, was to the effect that the Adjutant of the 37 Military Hospital, who was the appropriate person to have responded to the Registrar’s query, was otherwise engaged at the time the Registrar visited the said Hospital and as a result the Registrar was asked to wait till 11:00am when he would have been attended to, but Justice C.J. Honyenuga (JSC) would seem to have taken this report to mean disrespect towards him and stated thus: “At the last adjourned date, I also indicated that I was giving the 2nd accused the benefit of the doubt for his absence from court. I will, again, give him the final benefit of the doubt, especially when the effort of the Registrar who was to verify from the 37 Military Hospital whether or not the 2nd accused was on admission, ended in a fiasco.”
50. That I was simply terrified to have read the above sentiments expressed and the threat issued by the said Justice C.J. Honyenuga (JSC), who obviously did not care whether or not I was unwell because he must by all means conclude this matter and considers my ill health as an impediment to his goal.
51. That the said trial Judge’s conduct in unlawfully excluding vital evidence critical to our defence; setting up a personal battle with the 1st Accused, with whom we are jointly charged; sending the Registrar of the Court to the Hospital to confirm whether I had been on admission despite documentation from the Hospital to that effect; and his present threats to me would lead any independent observer, unfortunately, to the only irresistible conclusion that the said Justice C.J. Honyenuga (JSC) cannot be an arbiter in this matter; and must, respectfully, recuse himself in the interest of justice.