The trial of the former Chief Executive Officer (CEO) of Ghana Cocoa Board (COCOBOD), Dr. Stephen Kwabena Opuni, and two others has taken a new twist, as the new Judge has ordered the six-year case to be started ‘de novo’ (afresh).
This decision of the new Judge, Justice Kwasi Anokye Gyimah, who presides over the Land Court ‘2’ of the Accra High Court, follows the retirement of Clemence Honyenuga, a Justice of the Supreme Court, with the additional duty of the High Court, shooting down of the prosecution’s prayer to adopt the previous judge’s proceedings.
Justice Gyimah’s decision was delivered yesterday, after having considered the arguments from the counsel of both sides in the case – the prosecution and defence lawyers.
In his ruling, His Lordship said it would be unfair for him to adopt proceedings “saddled” with numerous allegations.
Meanwhile, last Thursday, March 30, 2023, the prosecution, led by Evelyn Keelson, moved a motion inviting the court to adopt the previous proceedings to enable the trial continue.
According to her, the new judge should consider the number of years the case had traveled, the stage it had reached, as well as the number of witnesses that had been called to testify.
She noted that the case had, on many occasions, gone to the Supreme Court, with several rulings given, therefore, starting it de novo (afresh or anew) would cause a miscarriage of justice.
She added that the demeanour of the accused should not be the key consideration in the instant application, as no miscarriage of justice would be served if the proceedings were adopted and the case not started de novo.
The court will try Dr. Opuni, businessman Seidu Agongo (A2), and his company, Agricult Ghana Limited (A3).
Counsel on the defence side, Samuel Codjoe and Benson Nutsukpi, however, kicked against the argument of the prosecution and want the court to do otherwise.
Mr. Codjoe, speaking on behalf of A1, said the application by the prosecution was alien to criminal justice, and same had been settled by the Supreme Court.
Explaining that in civil matters the practice was that it was the Judge who determined, but in a criminal case that adoption and reforms had not been carried.
According to him, in criminal trials, cases start de novo and the reason was that it would be unfair to the accused persons.
He told the court that this principle was grounded in the golden rule that it was better people who were guilty walk free than to imprison an innocent person.
Opuni’s counsel added that Section 80 of the Evidence Act referred to by the prosecution makes it clear that the court had to look at the demeanour of the accused, but it was not the sole determining fact. He averted the court to the fact that in criminal cases the rights of the individual was considered.
Furthermore he asked: “If the state says upon all its machinery the state suffers, how much more the accused?
“We are saying that if you consider the essence of criminal trials and the judicial rules, the case has to start de novo.”
Counsel also reminded the court that Article 129(2) of the 1992 Constitution established that the decision of the court was binding on all lower courts.
“We prayed that the trial starts de novo, and what the prosecution failed to add was that though we have called seven witnesses, we have 4 more to call for the first accused. Why the State with all its apparatus is asking for adoption? It would be unfair to the accused, but also against the established practice.”
Benson Nutsukpi, counsel for A2 and A3, was also opposed to the application and reiterated that the practice was to start the trial de novo, and anything contrary was yet to be decided by the Apex Court.
The court has adjourned the case to enable it interrogates some of the issues arisen.
Background
Opuni’s trial started with the previous judge in May 2018.
The prosecution closed its case after calling seven witnesses, for which Dr. Opuni also opened his defence and has, so far, called seven witnesses, with four more to go.
The former COCOBOD CEO and the others have been charged with money laundering, corruption of public office, violation of the Procurement Act, defrauding by false pretences, and wilfully causing financial loss to the state to the tune of GH¢2.1 billion in a fertiliser deal.
They have pleaded not guilty to the 27 charges, and are on GH¢300,000.00 self-recognisance bail each.
