Clemence Jackson Honyenuga, a retired justice of the Supreme Court, who previously sat on the case involving Dr Stephen Kwabena Opuni and two others for almost six years, without completion, has been taken to the cleaners over a perceived practice of judicial chicanery.
Justice Honyenuga is being accused of misconduct by taking unilateral decisions without recourse to the legal jurisprudence of the country, whilst hearing the case.
Benson Nutsukpui, defence counsel for other accused persons, Siedu Agongo and his company, Agricult Ghana Limited, told the Land Division of the Accra High Court on Tuesday that, Justice Honyenuga, suo moto (an action taken by a court of its own accord, without any request by the parties involved) rejected a document that had been adopted into evidence.
Justice Aboagye Tandoh, who is the third judge appointed to hear the case, was informed that Justice Honyenuga (rtd) did the unthinkable and did so in his bedroom, without recourse to the parties, to mark the document rejected.
The document in question is a statement given to the Financial Forensic Unit of the Criminal Investigation Department of the Ghana Police Service, on January 7, 2018 by Dr Gilbert Anim Kwapong, former Executive Director of Cocoa Research Institute of Ghana (CRIG).
The document was tendered through Detective Chief Inspector Thomas Prempeh Mercer, Prosecution Seventh Witness (PW7), by Samuel Codjoe, Dr. Opuni’s Counsel and was adopted by the Criminal Division of the High Court, then presided over by Justice Clement Honyenuga.
However, 18 documents previously adopted by the court, including the statement of Dr. Kwapong were marked rejected by Justice Honyenuga, in the ruling on submission of no case to answer as hearsay, after the prosecution had closed its case.
The defence team were of the view that the documents rejected would inure to the benefit of their clients and that the presiding judge acted ultra vires in rejecting them.
Counsel Nutsuikpi, therefore, attempted to tender the document through its author, Dr Gilbert Anim, but same was objected to by the Prosecution, led by the Chief State Attorney, Evelyn Keelson.
Mrs. Keelson argued that, the matter had already been determined by the Supreme Court, as to whether a trial judge had the right to reject a document.
Mr Nutsuikpi, however, maintained his stance and decided not to go down without a fight, pointing out to the court that the document was in evidence, but “it was only when a judge suo motto went to sit in his chamber and say I have rejected 18 documents.”
After listening to the argument, Justice Tandoh advised lawyer Benson Nutsuikpi to ask questions on Exhibit 58, without necessarily tendering it.
But BensonNutsuikpi, in response, asked the judge whether he was rejecting the document or not.
Counsel demanded that the court should rule on the issue and it should be captured in the records.
Justice Tandoh finally ruled that the exhibit in question was admitted and marked as Exhibit 58 and later rejected, during the evaluation by the trial judge.
He continued that the court cannot admit, reject and admit again, therefore, the document is disallowed.
Mr Nutsuikpi Benson then challenged the judge to explain what he meant by disallowed, as the word is alien to the Evidence Act, and that it could only be admitted or rejected.
The court settled the matter by stating that the objection by the Prosecution is upheld and the document in question is marked as R22.
Background
Dr Stephen Kwabena Opuni is the 1st accused (A1) in the case in which he and others have been accused of causing a GH¢271-million financial loss to the state, in a cocoa fertilizer transaction.
He, together with Siedu Agongo and Agricult Ghana Limited, are facing 27 criminal charges, including defrauding by false pretences and wilfully causing financial loss.
They have all pleaded not guilty to the charges and are on GH¢300,000.00 self-recognisance bail each.
Excerpts of two days’ proceedings
*Monday’s proceedings
Counsel Cudjoe: My Lord, on the 28th day of November 2023, we filed an application for prohibition in the Supreme Court to prohibit you from continuing to hear the case.
The case has been fixed for hearing on Wednesday, 13th December. My Lord we have a copy of the processes we filed.
My Lord, because this case concerns you personally and that if we are successful in the application, you would be prohibited from going ahead with the hearing of the case, we pray that you adjourn hearing of this matter to await the determination of this application.
We are fortified in our request on the basis that the Supreme Court in the unreported case of Civil motion j5/62/2020, in the case of the Republic vrs High Court Division Accra ex parte Kennedy Ohene Agyapong, on page 29 of the ruling the Supreme Court…The conduct of the trial Judge leaves much …he refused an oral application for adjournment…And more specifically, the fact that in this application we have referred to a series of acts on your part, which we state, has given us cause that your lordship has exhibited raw likelihood of bias against the first accused.
We state that justice shouldn’t alone be done but manifestly seen to be done, at this ground alone, we pray that your lordship adjourn the hearing…I add that prosecution has been served.
Our second ground, which is also a stand-alone, is that where we have gotten to with our evidence in chief, we require knowledge and or information about the content of the proceedings adopted by the court because we don’t know whether what has been given to us by the registrar is the same as the court has, and this has become more evident and pressing when at the last adjourned date, the court’s copy of proceedings, which they gave us lacked some information, even without the application for prohibition.
We would not have been able to complete our evidence in Chief. I end by stating that we submit that it would not be in the interest of the defence of the first accused…as we need to confront him with some proceedings, the content of which we don’t know.
Prosecution: My Lord, we oppose to the application. It is our submission that the filing of motion in the Supreme Court does not automatically, operate as a stay of proceedings before this court. M Lord, I refer to the case of the Republic vrs the Fast Track Court Accra Ex parte … Daniel dated 22tJune 2003 CM46/2003 unreported.
In this particular case where Counsel sought to stay proceedings in the trial, by drawing the court’s attention and by filing in the Supreme Court.
The motion of …does not automatically operate as stay proceedings of the court. There is nothing in law or even in practice that mandates this court to stay proceedings.
The Republic vrs High Court Commercial Division Accra ex parte Dakpem Zoeogena Henry Kallen.
The Supreme Court again stated clearly that a high court cannot be denied the right to hear a case in proceedings before him in a manner that he deems fit.
The mere filling of an application doesn’t operate as a stay unless the court is specifically retrained by a higher court.
My Lord, I submit specifically there is no law prohibiting you from hearing…The Kennedy Agyapong case is no authority requiring you to stay proceedings. My Lord, a look at the case and the issues in the case will attest to this.
On the second, it is our submission that this court has offered counsel all the opportunity to have access to the proceedings he requires to complete or continue with his evidence in Chief of the witness.
My Lord, at the last adjourned date when Counsel complained of missing pages in some of the proceedings, this opportunity was duly granted. It does not pose an impediment in the conduct of the examination in chief of the witness
Counsel Cudjoe: Point of order -The cases cited by my learned friend Daniel and Kallen are all cases, which were decided before ex parte Kennedy Ohene Agyapong, by the provisions of Article 129(3) of the 1992 Constitution, the Supreme Court can depart from its previous position and when it does that all other courts are bound to follow the new position.
Ex parte Agyapong is not a bespoke ruling, but it’s now the present law for which the court is constitutionally bound, so Daniel and kallem are bad law.
By court: …Expected that all parties, especially the Accused persons will avail themselves, including their witness, as is the case of disclosure. In doing so, the trial must not turn into a civil case… It is the candid view of this court that the Accused was almost two weeks to produce records of proceedings. The fact that the records of proceedings are not payable does not take away the responsibility of the counsel and accused.
The record of proceedings had been procured by parties… attempt to delay trial.
In respect of the application to canvass… This court will abide by the decision of the Supreme Court…To procure the records of proceedings is duty of the parties, which must be done regularly with or without the order of the court. The oral application is dismissed.
Counsel Cudjoe: As I stated I cannot conclude the Examination in chief as I did not know what has been adopted by the court.
By Court: Having voluntarily waved his right to lead the witness in evidence, as the unavailability of the records of proceedings is not supported by the evidence act, accordingly, the first accused is deemed to have ended his examination in chief of the DW8 Benson Nutsukpi called upon to cross-examine DW8
Q: Sir, you are Gilbert John Anim Kwapong that is correct?
A: My Lord that is correct.
Q: In 2018, you were 55 years old, that is also correct?
A: My Lord, that is also correct.
Q: In fact, you are a native of Breman Asikuma?
A: My Lord that is correct.
Q: You were a Director by 7th January, 2018?
A. My Lord, I was a director.
Q. Sir, when you were the Chief Executive at CRIG, you dealt with matters relating to chemicals and machines testing and issuing of certificates at CRIG?
A. My Lord, in 2018, I left CRIG, I left CRIG in January 2017.
Q. My question, is when you were the Executive Director at CRIG, you dealt with chemicals and machines testing and issuing of certificates at CRIG, that is correct?
A. My Lord, we worked together as team and at the end I signed the certificates.
Q. The CTCM oversees and coordinates the testing of agrochemicals and machines at CRIG, that is correct?
A. My Lord that is correct
Q. Sir, it is also true that this committee was long in existence before you were appointed the Director in 2014?
A. My Lord that is correct
Q. It is true that at CRIG at the end of the product evaluation, the report of the testing of the product is submitted to CTCM for critical examination of the procedure, that is correct?
A. My Lord that is correct
Q. And once the committee is satisfied with the outcome of the trial and the report, the recommendations are forwarded to the Executive Director for review and onward submission to Ghana Cocoa Board, that’s correct?
A. My Lord that is correct
Q. Now, is it also true that generally upon the approval of COCOBOD of the recommendations made in the report submitted, CRIG is directed to issue certificate for the product?
A. My Lord that is also correct
Q. Now when the letter is received from Ghana Cocoa Board, directing CRIG to issue certificate, the long standing practice at CRIG had been that the Executive Director to refer the letter to the Deputy Executive Director in charge of Agronomy and Quality Control (A&QC) to initiate action on the issuance of certificate, that is also true?
A. That is correct.
Q. The Deputy Executive Director who has oversight responsibility for the CTCM then directs, the chairman of the CTCM to prepare the certificate, that is true?
A. My Lord that is true
Q. And this procedure is because the CTCM consists of scientists involved in the testing and they have the data, that is correct?
A. My Lord that is true.
Q. And the Chairman of the CTCM would then provide details including the name, composition of the product in the case of agrochemicals to Mr. Roland Nyarko, secretary to the Executive Director?
A. My Lord that is correct.
Q. The Chairman of the CTCM then directs Mr. Roland Nyarko to print and embossed the letter and submit certificate to the executive director for signature?
A. My Lord that is correct.
Q. Sir, for the purpose of emphasis, A2 stands up, when you were the Executive Director of CRIG did you ever meet A2?
A. My Lord I did not know him.
Q. Did you ask anytime in life at COCOBOD to know A2?
A. My Lord, I did not know him neither did I meet him anywhere.
Q. Until this court room, have you ever set eyes on A2?
A. No.
Q. Have you ever met any official of A3 Agricult Ghana LTD?
A. My Lord no.
Q. So it is true that the testing of agrochemicals and machines and the issuance of the certificates at CRIG have always been team work. That is correct?
A. My Lord that is correct.
Q. And no one individual, can solely test, and issue certificate in respect of agrochemicals and machines at CRIG?
A. My Lord, per the rules and procedures at CRIG that is correct.
Q. It is true that CRIG has a policy in renewing certificate for all COCOBOD approved agrochemicals and machines on annual basis, that is correct?
A. After the chemicals and machines have passed the requisite test in the field and in the laboratory, a renewal is recommended and the certificate is renewed.
Q. Sir, this renewal is annually that is correct?
A. My Lord that is correct.
Q. And the policy of renewal is to ensure that the efficacy and the performance of the product supplied at all times remain the same as the original product or products recommended, that’s correct?
A. My Lord that is correct.
Q. Sir it is true that to this end, a rapid reassessment and evaluation of all pesticides, fertilizers and spraying machines are conducted for the basis of the renewal of certificates that’s correct?
A. My Lord that is correct.
Q. Sir, it is also true that monitoring of recommended agrochemicals and spraying machines are continuously done through service, random sampling from farmers, agro input shops and Ghana Cocoa Board warehouses?
A. My Lord the process he has described is correct.
Q. Sir, it is also true that data on agrochemicals regarding efficacy easy application, user discomfort, side effect, correct packaging (including weight and volume), proper labelling and farmers sprayers’ views, suggestions and comments are all evaluated?
A. My Lord that is correct.
Q. And it is true that the results of the survey are collaborated on the laboratory testing on the sample to renew or withdraw certificate for the continuing agrochemicals?
A. My Lord that is correct.
Q. It has been the practice for the CTCM, and the scientists to hold the data on re-evaluated products at all time?
A. My Lord that is also correct.
Q. And where a product fails to meet the evaluation criteria, a comprehensive report is issued justifying the need to withdraw certificate covering that product?
A. My Lord that is correct.
Q. And this report is prepared by the CTCM for the attention of management?
A. My Lord that is correct.
Q. Is it true that CODAPEC/HITECH products have evaluation report prepared on them, that is also correct?
A. My Lord that is correct.
Q. Indeed the CODAPEC /HITECH product evaluation report for 2015 was released in 2016, that is correct?
A. My Lord that is correct.
Q. You were the Executive Director at time Sir?
A. My Lord that is correct.
Q. So it went under your hand?
A. My Lord that is correct.
Q. Do you own a copy of that report?
A. My Lord, I don’t have a copy.
Q. But you can identify it when you see it?
A. Yes my Lord.
Q. The evaluation report, which went under your hand at the time, did not remain only at CRIG but was sent to COCOBOD?
A. My Lord that is correct.
Q. Now, so the practice of renewal has always been a team work and not that of any single individual?
A. My Lord, that is correct.
Q. Now, when COCOBOD is done the evaluation and assessment, the company that owns the product applied for renewal?
A. My Lord that is correct.
Q. And upon receipt of that request, the CTCM on the instructions of Deputy Executive Director, COCOBOD would collaborate with the Account Division to raise invoices for the company to pay, that is correct?
A. My Lord that is correct.
Q. And when the payment is effected, the CTCM initiates the process to renew the certificate that is correct?
A. My Lord that is correct.
Q. It is true that the secretary of the Executive Director keeps records, a list of all the products and companies, names of the products and the date on which the certificates were issued to them?.
A. My Lord that is correct.
Q. The same secretary also keeps records of the names and signatures of the persons from the company who collected the certificates on behalf of the companies. That is true sir?
A. My Lord that is true.
Q. Sir, it is also true that the Account Division of CRIG also keeps records of payments made for certificates renewal at CRIG?
A. My Lord that is true.
Q. Sir, from your background, from first degree you proceeded to do your PhD that is correct?
A. My Lord that is correct.
Q. And it is also true that scientists at CRIG are all very educated and knowledgeable in their fields. That is correct?
A. My Lord it is correct.
Q. And just by the way, is it by design that I saw a lot of PhDs on the list of scientists working at CRIG?
A. The job requires that scientists obtain a terminal degree.
Q. Some also have two masters’ degrees.
A. My Lord. probably right.
Q. And Sir, is it also true that most of the scientists at CRIG have years of experience on the job?
A. My Lord that is true.
Q. While you were the Executive Director, did you have cause to doubt the integrity of the members of the CTCM?
A. My Lord Not at all.
Q. Can any single member of the CTCM evaluate, assess, renew, and issue a renewal certificate of any agrochemical or machine, can that be done?
A. My Lord to the best of my knowledge that is not possible.
Q. Again issuing of certificate, renewal is also by team work?
A. My Lord that is true.
Q. As the executive director, you personally also has a responsibility of reviewing the agrochemicals and machines evaluation report when they are brought to you before signing the certificate?
A. That is correct.
Q. And you always satisfy yourself that you are comfortable with the information before signing!
A. My Lord that is correct, but please with your permission, I want to explain this, after a product has been tested and recommendations written, that report contains information for the attention of Ghana cocoa board. Based upon the approval of COCOBOD, CRIG is directed to issue a certificate for the product.
Once the product goes through the field upon certification, that certificate requires a renewal after a year, it is during the period when that product is on the field that the evaluation team go to the field leading to their assessment for the renewal of certificate for the new season. The evaluation report that comes to me enables me to sign the renewed certificate.
Q. So in other words, it is the evaluation done by the scientists form the basis for the renewal of the signed certificate.
A. That’s correct my Lord.
Q. Kindly tell this court, in exercising your power to renew the certificate, are you influenced by other persons or directives outside the information you have before you?
A. My Lord not at all.
Q. A2 and A3 have never in anyway or whatsoever attempted or influenced your signing of any renewal certificate throughout your tenure as the Executive Director of CRIG, that is correct?
A. My Lord, nobody ever attempted.
Tuesday’s proceedings
Q: Sir, it is true that the recommendation whether to approve or reject a tested chemical or machinery is made by CRIG to cocoa board?
A: My lord, with respect to renewal that is correct
Q: And COCOBOD if satisfied directs CRIG to renew? the certificate. Is that correct?
A: That is not correct.
Q: Do you inform COCOBOD about the recommendation of the CTCM?
A: My lord, that wasn’t the procedure, but under my tenure, I found it necessary to give a copy of the CODAPEC/HiTech programme to COCOBOD.
Q: So what does COCOBOD do?
A: My lord, if a certificate is to be issued for the first time, a report is sent to cocoa board and upon approval, COCOBOD directs CRIG to issue the certificate. Once the directive is received, as I said yesterday, the letter is referred to the Deputy Executive Director of COCOBOD, who has oversight responsibility over the CTCM.
He then directs the CTCM for the issuance of the certificate. My lord, in my statement to the CID, I indicated that for the processes or procedures leading to the issuance of certificate, one may contact CRIG or the CTCM.
In the case of certificate issuance, the company or its representative must make a formal request. They are required to make products labelling and any other necessary information for the action of the CTCM. The same thing goes for the renewal of certificate, the same processes is required.
Q: So it is true that whilst serving as the Executive Director, you at all times used the expect judgement of the CTCM and other scientists in reviewing agrochemicals report and anything to COCOBOD. That is true?
A: My lord that is true. I also check background before sending anything to COCOBOD.
Q: Is it the case that you had course to sanction two scientists whose work did not meet the standard of the CTCM. That is true?
A: My lord, that is true.
Q: Have you ever tried to coerce any scientific working under you to do anything unprofessional with regards to their duties of testing agrochemicals and machines?
A: My lord never will I do any such thing.
Q: Have you, Dr. Gilbert Anim Kwapong whilst serving as Executive Director ever tried to coerce any member of the CTCM to come out with a report in one way or the other?
A: My lord never will I do any such thing.
Q: Now Dr Anim Kwapong, on the 7th day of January 2018, you gave a statement to the police at the Financial Forensic Unit?
A: My lord, I did give a statement to CID but I don’t recollect the date.
Q: And you stand by every single statement in there?
A: Yes my lord, I stand by every statement.
Q: And you signed every page?
A: Yes my lord.
Q: In whose handwriting is it?
A: My lord, it is my handwriting.
Q: And sir, you signed on every page of the statement. Is that true?
A: Yes my lord.
Q: Please take a look at this document. Is that a copy of the statement you gave to the police?
A: My lord, yes this is a copy of the statement I gave to the police.
Judge: counsel, just as the documents were admitted and later rejected.
Benson Nutsukpui: My Lord do you want to tie our hands at the back. My lord, to start with, I represent A2 and A3, Seidu Agongo and Agricult limited.
My lord, count 3 on the charge sheet, it is about A2 and A3 alone. My Lord, it is a long standing principle that there is no collective liability. My Lord, A2 and A3 have not tendered Exhibit 58.
What must be frowned upon by any judge who the truth is not to follow Justice Clemence Honyenuga who decided to practise judicial chicanery and decided to suo motto reject document that was tendered by PW7.
My Lord, we have laid all the necessary grounds for the tendering, the witness is the author of the statement. My lord, we cannot be banned by the behaviour of Justice Clemence
Honyenuga retired who decided to do the unthinkable.
Justice Honyenuga in his bedroom without recourse to anyone marked the document rejected. My Lord, if we can’t tender documents on our own, then why are we here?
Judge: Let me check from the courts records.
Prosecution: My Lord, we have an objection to the tendering of this document. My lord this statement dated on the 7th January, 2018…
Benson Nutsukpui: My Lord, the prosecution is misleading this court. The statement was tendered and admitted. It is only when a judge suo motto went to sit in his chamber and say I have rejected 18 documents.
Prosecution: My Lord, what I am saying is that the documents were tendered and admitted by the court, but during the evaluation of the evidence, during the stage of application of no case. My Lord, the document was tendered through PW7 and my Lord the trial judge in evaluating the evidence said it was hearsay and was rejected.
My Lord, this is legal for a judge to reject a document that has earlier been admitted. My Lord, my main issue is about the fact that this particular issue as to whether the trial judge had the right to reject the document has been determined by the Supreme Court up to the review level and that the statement was wrongly admitted and same rejected.
Judge: Lawyer Benson, but you can ask your questions in exhibit 58, without necessarily tendering it.
Benson: My Lord, so are you rejecting it or what. You rule on it and let it be captured.
Judge: By court, the exhibit in question was admitted and marked as Exhibit 58 and later rejected during the evaluation of by the trial judge. This court cannot admit, reject and admit again. So the document is disallowed.
Benson: My Lord what is disallowed. If you have rejected it let it be marked. Where in the Evidence Act do we have disallowed. If it is rejected, let it be marked.
Judge: I mean the objection is upheld.
Benson Nutsukpui: So let it be marked. Why is that difficult? Let it be on record as document rejected and marked as …..
Judge; Okay marked as R22
Benson: My Lord, let it be marked
Judge: I don’t want to go into that tangent
Cross examination continues
Q: Go to page two, right at the bottom, there is a signature and a date, whose signature is that?
A: My Lord, it is my signature.
Q: Sir identify your signature on R22.
A: Yes my Lord, it is my signature.
Q: Look at page one right at the bottom, there are two signatures. Whose signatures are they?
A: My Lord, they are my signatures.
Q: Now give him R22. On page one of that document at the very bottom, the name on document R22 is Dr Gilbert John Anim Kwapong and that is you?
A: Yes my Lord.
Q: And at the bottom of page 3, there is also a signature. Whose signature is that?
A: My Lord, it is my signature.
Q: Where did you give the statement to the police?
A: My Lord, I was interrogated at cocoa board and the statement was taken at the office of deputy chief executive Agronomy and Quality control.
Q: The person who occupied the position at the time was Dr Adu Ampomah?
A: Yes my Lord.
Q: So you admit that document R22 is your own art?
Prosecution: My Lord, this question has been asked.
Q: He is the third Prosecution witness. Do you know that?
A: No, my Lord.
Case adjourned to 6th December
