COCOBOD trial: It’s OK for Honyenuga to time-restrict your evidence – SC to Agongo

The Supreme Court of Ghana has ruled that one of its Justices, Clemence Honnyenuga, who is sitting as an additional High Court judge on the GHS217 million financial loss case involving COCOBOD’s ex-CEO Stephen Opuni and businessman Seidu Agongo, did not err in any way when he restricted the accused persons to a specific time to present their evidence-in-chief in the ongoing trial.

The five-member panel chaired by Chief Justice Kwasi Anin-Yeboah, thus, dismissed Mr Agongo’s certiorari application in which he prayed the apex court to quash the High Court’s consequential orders of 16 December 2021 which instructed the defence team to present their evidence-in-chief in one sitting and cross-examine the defence witnesses in two court sittings.

The other members of the panel included Justices Jones Dotse, Mariama Owusu, Gertrude Torkornoo and Henrietta Mensah-Bonsu.

The Bench said Mr Agongo’s application had no merit.

Apart from the timing of their evidence-in-chief, the High Court had also ordered the accused persons to file their witness statements as well as all documents of their witnesses in the ongoing trial.

The High Court said those decisions were to facilitate the efficient and speedy trial of the five-year-old case.

Mr Agongo’s lawyer, Mr Nutifafa Nutsukpui, argued that the court gave the consequential orders without hearing from his client.

He contended that his clients were being treated differently from the prosecution witnesses since no such time restraints were imposed on the other side.

In his view, the High Court’s order constituted a breach of Article 19(2)(g), which, in his opinion, frowned on the variation of conditions for giving evidence and cross-examining witnesses.

Opposing Mr Agongo’s application, Deputy Attorney General Alfred Tuah-Yeboah, argued that per Section 69 of the Evidence Act, Justice Honyenuga was well within his discretionary powers to moderate the trial and, thus, was in conformity with Article 19 of the Constitution rather than a breach of same.

A few weeks ago, Mr Agongo’s lawyers argued at the High Court that the trial judge was discriminating against them as far as the duration for the presentation of their evidence-in-chief and subsequent cross-examination was concerned.

Mr Agongo, who owns Agricult Company Limited, the agrochemical firm that supplied COCOBOD with Lithovit Foliar fertiliser – the procurement that resulted in this criminal prosecution – argued in court on Monday, 14 March 2022 via his lawyer, Mr Nutifafa Nutsukpui that the court’s directive to them on 16 December 2021 to give their evidence-in-chief within a specific amount of time, was an affront to natural justice since the same limitations were not placed on the prosecution when their witnesses gave their evidence-in-chief and were subsequently cross-examined.

“My Lord, this application is being made on two grounds: the first being that the applicants were not heard or given the opportunity to be heard before the honourable court made the orders that will affect the conduct of their defence before the honourable court; and, secondly, with the limitations as to time ordered by the court relating to the matter in which the court will receive evidence from the applicants and their witnesses when those same limitations or conditions have not been applied to witnesses called by the prosecution, meant that the court was applying different rules to the parties contrary to the provisions of Article 19(2)(g) of the Constitution, 1992”, Mr Nutsukpui contended.

He continued: “Now, my Lord, the prosecution called as many witnesses and examined them for as long as they considered appropriate in order to establish their case against the applicant”, adding: “No witness called by the prosecution was restricted to a day’s evidence-in-chief, as the records of the court will show”.

“Now, the orders the court made on the 16th stated clearly that the accused, which include the applicants herein, together with their witnesses, will have not more than a day to lead evidence-in-chief and not more than a two-day sitting for their cross-examinations”.

“Respectfully, these conditions are different from those that apply to the witnesses called by the prosecution and the honourable court, in the face of Article 19(2)(g), does not respectfully have the discretion to vary the rules after the prosecution had closed its case”, Mr Nutsukpui argued.

Further, he said, “If the honourable court considered that it had the discretion to do so, then in the least, it should have heard the applicants before delivering the orders of the day to the extent that those orders impacted the applicants; and respectfully, no court has the jurisdiction to make orders that will affect the party without giving them a hearing or the opportunity to be heard”.

In their counter-argument opposing the application, the prosecution, led by Stella Ohene Appiah, said: “My Lord, we submit that the orders made by this honourable court on 16th December 2021 for the applicants and their witnesses to file witness statements in their defence and the setting up of timelines for both the defence and prosecution in their evidence-in-chief and cross-examination constitute an exercise of this honourable court’s judicial discretion to reasonably control the mode and order of presenting evidence before this court”.

“My Lord, this power has been given to this honourable court under Section 69 of the Evidence Act, NRCD 323. But my Lord, it is clear from Section 69 of the Evidence Act that this honourable court had jurisdiction to make an order it made on the 16th to control the presentation of evidence before this court”, she said.

She noted: “We further submit that the order made by the court for the applicants to file witness statements does not infringe Article 19 as claimed by the applicant”.

“Article 19(2)(g) relates to conditions necessary for the examination of witnesses. The order given by this honourable court does not, in any way, take away the opportunity granted to the applicant to give evidence-in-chief and be cross-examined”.

“Indeed, nothing stops the applicants from putting down all the evidence they seek to put before this court. To that extent, we contend that there is nothing discriminatory” about “the order of the applicants to file witness statements in their defence”, she added.

“My Lord, the order setting timelines for both the prosecution and defence is still in conformity with Section 69 of the Evidence Act and necessary for effective case management to ensure an expeditious trial as mandated by Article 19(1) of the 1992 Constitution”, she contended.


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