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Opuni trial: Lawyer pooh-poohs SC’s 4:3 decision; says ‘it’s riddled with factual errors’

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Justice Clemence Honyenuga

A legal practitioner, in a post-ruling analysis, has shredded the Supreme Court’s 4:3 decision that reinstated Justice Clemence Honyenuga on the GHS217-million financial loss case involving ex-COCOBOD CEO Stephen Opuni and businessman Seidu Agongo.

It is recalled that the apex court, on Tuesday, 26 October 2021, overturned its earlier 3-2 majority ruling by which it prohibited Justice Honyenuga from continuing to hear the case.

The ruling, delivered by Justice Jones Dotse, said Dr Opuni’s allegations of bias against Justice Honyenuga had no basis, thus, the trial could resume.

Attorney General Godfred Dame, who filed the review application, welcomed the ruling.

Two new judges: Justices Ashie Kotey and Gertrude Tokornoo, were added to the five-member ordinary panel by the Chief Justice for the review application.

The ordinary panel that prohibited Justice Honyenuga consisted of Justices Jones Dotse, Gabriel Pwamang, Agnes Dodzie, Tanko Amadu and Avril Lovelace-Johnson.

Justices Gabriel Pwamang, Agnes Dodzie and Tanko Amadu were in favour of the removal of Justice Honyenuga while Justices Jones Dotse and Avril Lovelace-Johnson dissented in their 28 July ruling.

In the review ruling, the two new Justices added to the ordinary panel sided with the minority in the earlier ruling.

Digging into the 4:3 decisions, the Accra-based lawyer, who prefers to remain anonymous, said the Justice Dotse-led “majority did not address the question of the accused persons not having been heard before the 18 exhibits were excluded and, for that reason, the review majority would not address that issue”.

He argued that “the review majority did not consider whether section 8 of the Evidence Act was clear or not”.

Section 8 states: ‘Evidence that would be inadmissible if objected to by a party, may be excluded by the court on its own motion’.

“The patent error of JH was that he excluded evidence that had been admitted without objection by any of the parties without affording the affected parties the opportunity to be heard on whether the evidence should be excluded. The review majority shuns any analysis of section 8 of the Evidence Act”.

Secondly, the lawyer argued, “the review majority commits some horrendous factual errors. It claimed at page 11 of the ruling that ‘it must be remembered that the only question brought to the court was whether the trial judge had committed a jurisdictional error by failing to call on the accused person to speak to the excluded exhibits before ruling that the exhibits could be excluded, and not whether the exhibits were admissible or inadmissible per se’”.

“This is patently incorrect since the grounds of review challenging JH’s ruling on the submission of no case make no reference to jurisdictional error”, the lawyer noted.

“Another patent and unpardonable factual error made by the review majority is the claim that: ‘On the issue of the Respondents not having been heard before the relevant exhibits were excluded, we note that the decision on review did not address it, and so it does not lie with us so to do’. This statement is clearly false. See pages 34 and 35 of the ruling where the minority demonstrates the falsity of that claim”, the document stated.

Read the full analysis below:

ANALYSIS OF THE SUPREME COURT REVIEW DECISION IN THE DR. STEPHEN KWABENA OPUNI CASE

A. Introduction

1. On 28th July 2021, the Supreme Court, upon an application by Dr Stephen Kwabena Opuni, by a majority of 3 to 2, quashed part of the ruling of Justice Clemence Jackson Hoeyenuga (JH).

In his ruling on a submission of no case to answer, JH had excluded certain 18 exhibits that supported the case of Dr Stephen Kwabena Opuni. These exhibits had been accepted in evidence without any objection from any of the parties. The Supreme Court prohibited JH from further hearing the Opuni criminal trial on the basis of real likelihood of bias.

B. Reasons

2. The ordinary bench of the Supreme Court gave three main reasons for its decision.

▪ The first is that JH did not give the accused persons a hearing before deciding to expunge the 18 exhibits when those exhibits had been tendered in evidence without any objection from the State.

▪ The second reason was that the decision to exclude the exhibits breached section 8 of the Evidence Act, which states that “Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion” The third reason was that, by certain final or definitive pronouncements JH had made about the guilt of the accused persons JH had prejudged and predetermined their guilt without having first heard their side of the case. These prejudicial pronouncements created a real likelihood of bias and for that reason, JH should be prohibited from further hearing the criminal case.

C. Review Application

3. The State filed a review application seeking a reversal of the ruling of the ordinary bench of the Supreme Court. An enhanced panel of seven judges, including 2 additional judges to the original panel of 5, granted the application of the State on 26th October 2021, by 4 to 3 majority decision, and reversed the ruling of the ordinary bench. This meant that the Supreme Court had affirmed and endorsed the exclusion of the 18 exhibits and further given the green light for JH to continue with the hearing of the Opuni case.

D. Reasons assigned by the review majority for its ruling.

JH had the judicial power to evaluate the evidence and that was exactly what he had done. Even if he made errors in evaluating the evidence and in admitting or excluding evidence the proper avenue for redress was an appeal as opposed to a judicial review application.

▪ The ordinary bench majority addressed the issue of evidence that was inadmissible per se when no such issue had been presented to the court

▪ Whether or not the Ekow Russel case was wrongly decided as stated by the majority was a question to be decided on appeal. A trial judge following a settled principle of law settled by the Supreme Court could not act contrary to statute and to say otherwise is an exceptional circumstance to warrant a review of the majority decision

▪ JH only rendered an opinion on the quality of the evidence before him so no credible evidence of bias against JH ▪ The majority did not address the question of the accused persons not having been heard before the 18 exhibits were excluded, and for that reason, the review majority would not address that issue.

E. Reasons assigned by the review minority for its dissent

▪ Excluding the 18 exhibits without having first given the accused persons a hearing was a fundamental error ▪ By section 117 of the Evidence Act hearsay evidence can be admitted if the parties agree, and none of the parties objected to the admission in evidence of the 18 excluded exhibits. ▪ The pronouncements of the judge presented a case of real likelihood of bias. ▪ A judge lacks authority to exclude evidence that has been admitted without objection without first giving the affected party the right to be heard on the question of exclusion ▪ Statute prevails over case law so JH’s reliance on the Ekow Russell case was wrong. ▪ The accused persons would be denied the benefit of tendering the excluded exhibits. The state has been given an advantage since similar exhibits that support its case were not excluded from evidence by JH.

F. Weaknesses in the majority ruling

▪ First, the review majority did not consider whether section 8 of the Evidence Act was clear or not. Section 8 states that ” Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion”. The patent error of JH was that he excluded evidence that had been admitted without objection by any of the parties without affording the affected parties the opportunity to be heard on whether the evidence should be excluded. The review majority shuns any analysis of section 8 of the Evidence Act.

▪ Second, the review majority commits some horrendous factual errors. It claimed at page 11 of the ruling that ” It must be remembered that the only question brought to the court was whether the trial judge had committed a jurisdictional error by failing to call on the accused person to speak to the excluded exhibits before ruling that the exhibits could be excluded, and not whether the exhibits were admissible or inadmissible per se”.

This is patently incorrect since the grounds of review challenging JH’s ruling on the submission of no case make no reference to jurisdictional error. Another patent and unpardonable factual error made by the review majority is the claim that: ” on the issue of the Respondents not having been heard before the relevant exhibits were excluded, we note that the decision on review did not address it, and so it does not lie with us so to do.” This statement is clearly false. See pages 34 and 35 of the ruling where the minority demonstrates the falsity of that claim.

G. Conclusion

4. The review majority decision is riddled with factual errors as shown above. It misapprehends and misstates the real issues decided by the ordinary bench through an avoidance of any analysis that engages with the unanswerable parts of the ruling of the ordinary bench. Worse still, the views of the review majority that the patently prejudicial comments made by JH against the accused persons did not create a real likelihood of bias are difficult to fathom. The dissent makes it clear that the accused persons are unlikely to have a fair trial from JH because he had already prejudged their guilt.

Credit:Classfmonline.com

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