The AG’s application at the appellate court, seeking to overturn a decision of the High Court to restart the trial is replete with inconsistencies juxtaposed with positions he previously held.
The High Court presided over by Justice Kwasi Anokye Gyimah on April 4, 2023, turned down the AG’s application to adopt proceedings of the previous trial judge.
The new judge had contended that Justice Clemence Jackson Honyenuga, a retired Supreme Court Judge who was sitting on the case, was embroiled in a number of controversial decisions, which he doesn’t want to inherit.
“If I adopt the proceedings, I am basically adopting every act and decision that has been taken by the previous judge in the matter and I will be saddled with the same suspicions and allegations of unfairness that have been levelled against the current state of the proceedings,” the trial judge pointed out.
Justice Gyimah, therefore, ordered that the case should be heard de novo, that’s afresh, much to the chagrin of the Attorney General and his team, leading to the latest application at the Court of Appeal.
It is the case of the AG that the High Court’s decision “will rather cause injustice to the Republic if the case is started fresh,” and “starting this case ‘de novo’ will benefit the accused from delaying the case.”
The judge in his ruling made reference to section 80(2) (a) of NRCD 323, which states that one of the factors a court is enjoined to look at when assessing the credibility of a witness is the witness’s demeanour.
“Much as that may be the right position, in a criminal trial where the liberty of the accused is at stake and where the accused is by law presumed innocent and also entitled to a fair trial, any factor, however minimal or insignificant its effect, that will enhance the opportunities for the fair trial of an accused person should not be overlooked by the court.
“The drafters of NRCD 323 knew why they placed that provision in the Act and as a statutory provision, a court that is meant on doing justice in a criminal trial should as much as is within its power, make sure that the said statutory provision is observed. The best way that the said statutory provision can be observed is for the trial court to have a first-hand experience or observation of the witnesses called by all the parties and this can only be achieved in the present case if this court starts on a clean slate,” Justice Kwasi Gyimah stressed.
But the Attorney General in an application for appeal filed on April 18, 2023, on his behalf by the Director of Public Prosecutions, Mrs. Yvonne Atakora Obuobisa argued that Justice Kwasi Gyimah “misdirected himself” in the application of the principles regarding adoption of evidence in a trial.
He challenged the decision of the new judge to observe the demeanour of witnesses firsthand.
“The learned trial judge erred, in the circumstances of the instant case, in placing undue premium on the need to assess the demeanour of the witnesses called at the trial,” the AG argued in the appeal application.
But this position of the Attorney General is in sharp contrast to what he told the Supreme Court, in which he succeeded in getting the court to review its earlier decision which went in favour of the accused when the court barred Justice Honyenuga from continuing the trial.
“That the decision of the ordinary bench results in a substantial miscarriage of justice since it has the effect of placing the case in the hands of a new judge who has not had the benefits of the full trial, observing the demeanour and composure of the various witnesses called by the prosecution and assessing their credibility,” the affidavit in support of the AG’s motion at the Supreme Court dated 18th August 2021 read in part.
Also, in 2021, the AG convinced the Supreme Court that when the matter is transferred to a new judge, as is the case now, it can occasion a retrial.
The Attorney General’s prediction came to pass as Justice Gyimah decided to start the trial afresh.
It is therefore surprising to a cross-section of Ghanaians why the AG is fighting the High Court for starting the case afresh.
“The decision of the trial judge to start the trial de novo has occasioned a miscarriage of justice as it will hinder an efficient trial of the accused persons in the instant case,” the AG’s notice of appeal dated April 18, 2023, asserted.
The former COCOBOD Chief Executive, Dr. Stephen Opuni, and businessman Seidu Agongo as well as Agricult Ghana Limited, are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.
They have pleaded not guilty to the charges and are on a GH¢300,000 self-recognizance bail each.
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