NDC’s PRESS STATEMENT ON THE REVIEW RULING OF THE SUPREME COURT ON THE OPUNI MATTER – A TRAVESTY OF JUSTICE.


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PRESS STATEMENT BY THE NATIONAL DEMOCRATIC CONGRESS ON THE REVIEW RULING OF THE SUPREME COURT DATED 26TH OCTOBER 2021 IN THE DR. STEPHEN KWABENA OPUNI, SEIDU AGONGO AND AGRICULT CASE. 14th November, 2021
REVIEW RULING OF THE SUPREME COURT ON THE OPUNI MATTER – A TRAVESTY OF JUSTICE.

  1. The National Democratic Congress (NDC) has taken note and carefully reviewed the ruling by
    the Majority of the review panel of the Supreme Court dated 26th October, 2021 setting aside the
    ruling of the ordinary bench of the Court dated 28thJuly 2021.
    The ruling of the ordinary bench quashed parts of the ruling of Justice Clemence Jackson
    Hoeyenuga, JSC (“ Judge”) on a submission of no case. In his impugned ruling, Justice Clemence
    Jackson Hoeyenuga had excluded 18 exhibits that had been accepted in evidence without any
    objection from any of the parties. The excluded exhibits supported the case of Dr. Stephen
    Kwabena Opuni, Seidu Agongo and Agricult, as they demonstrated the falsity of the claims of
    the prosecution that the lithovit fertilizer COCOBOD purchased from Agricult was not of good
    quality.
    Strangely, similar exhibits tendered through the same investigator through whom the 18 excluded
    exhibits were tendered and which suggested that lithovit fertilizer was inefficacious retained by
    the Judge without proferring any justification for his unequal and partial treatment of the exhibits
    that were adduced in evidence in identical circumstances.
  2. In a significant and radical departure from established standards, the Judge, Justice Clemence
    Jackson Hoeyenuga in his ruling on the submission of no case made categorical, definitive and
    prejudicial statements that suggested that there was a real likelihood that he had an operative bias
    against the accused persons. These categorical and prejudicial statements included the following:
    a. “All these were perpetuated to facilitate the 2nd and 3rd accused’s business and defraud
    COCOBOD by supplying a different product from what was tested and approved.”
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    b. “…However, the 1st accused although he knew the correct state of affairs and knowingly
    facilitated and aided the 2nd and 3rd accused to defraud COCOBOD,”
    c. “The 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise
    of defrauding.”
    d. “The 1st accused, a scientist with all his knowledge and skill had the benefit of an original
    Lithovit Foliar Fertilizer submitted, tested and approved by him yet knowingly he agreed and
    caused the State to lose millions of cedis in foreign exchange by paying these monies to the 2nd
    and 3rd accused persons. The 1st accused thus caused financial loss through this action.”
    “Pages 54, 55 and 59 of the ruling on the submission of no case”
  3. It was on the basis of the above that the ordinary bench of the Supreme Court on 28th July 2021
    quashed parts of the ruling of the trial Judge excluding the 18 exhibits and further prohibited him
    from hearing the criminal case in order to protect the accused persons’ right to a fair trial.
    Many observers welcomed the decision of the ordinary bench, which they considered to be
    reasonable, sensible and fair. Definitely, to the ordinary person the action of a Judge who excludes
    evidence that favours one party and retains on the record similar evidence favourable to another
    party and in addition, makes such prejudicial and conclusive statements as referenced in
    paragraph 2 above without having first heard the defence of the accused persons cannot in the
    ordinary scheme of life and the understanding of reasonable persons be described as keeping the
    scale of justice on an even keel.
  4. However, in a strange move that suggested that the Attorney General is out of step with the
    reasonable expectations of majority of well-informed Ghanaians who consider public confidence
    in the judiciary as the bedrock of our democracy, the Attorney General filed a review application
    seeking a reversal of the ruling of the ordinary bench of the Supreme Court. Of the reasons offered
    by the Attorney General in seeking a review, the most laughable was his claim that the “the
    prosecution will be put to enormous expense, inconvenience and hardship in commencing a new
    trial…”.
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  5. Unfortunately, an enhanced panel of seven judges, including two (2) additional judges to the
    original panel of five (5), granted the application of the Republic 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 judicial
    approval for the Judge to continue with the hearing of the Opuni case in spite of the prejudicial
    comments he made which is referenced in paragraph 2 above.
    It is worthy of note that the ruling of the enhanced panel was preceded by its own drama. Despite
    the rules of ethics of the Bar that parties to an action must avoid ex-parte communication with
    judges sitting on matters in which they are involved, the Attorney General and Minister of Justice,
    Godfred Yeboah Dame paid a visit to Justice Jones Dotse, the presiding Judge in the review
    application, to “discuss Ghana School of Law matters” on 11th October 2021. While we cannot
    confirm what was indeed discussed at the meeting, the conduct of the Attorney General in visiting
    Justice Jones Dotse exhibits poor judgment of the highest order and casts a cloud of suspicion
    over what was discussed at the said meeting.
  6. In another example of poor judgment, the Attorney General, after the delivery of the ruling of
    the review panel, described the majority ruling of the ordinary bench that ruled in favour of Dr.
    Stephen Kwabena Opuni as “an aberration of justice” and that Dr. Stephen Kwabena Opuni was
    running away from “Judgment Day”. The question that needs to be asked is whether the Attorney
    General is privy to the eventual conviction and imprisonment of Dr. Stephen Kwabena Opuni by
    Justice Clemence Jackson Hoeyenuga on “Judgment Day”. And if we may ask, of all the judges
    in Ghana, why should Justice Clemence Jackson Hoeyenuga be the only judge to hear the criminal
    trial involving Dr. Stephen Kwabena Opuni, Seidu Agongo and Agricult.
    We in the NDC are confident that if the words uttered by the Attorney General had been said by
    other lawyers they would have earned an invitation to the Disciplinary Committee of the General
    Legal Council for breaches of the ethical rules of the Bar.
  7. As a party, we are vehemently opposed to the ruling by the Majority of the review panel of the
    Supreme Court dated 26th October, 2021. There are certain features of the majority’s ruling that
    cause us great concern. In the first place, the characterization by the majority of the prejudicial
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    statements made by the Judge as referenced above as constituting the Judge’s evaluation of the
    evidence and his expression of opinion on the quality of the evidence before him beggars belief
    and raises more questions than answers.
    We are at a loss as to why the Supreme Court would prohibit a High Court Judge from hearing
    the Kennedy Agyapong Contempt Case on the basis of real likelihood of bias just because the
    Judge had used the expression “severely punished” while the same Court did not see a real
    likelihood of bias against the accused persons from the clear prejudicial statements of the
    presiding Judge in the Opuni case stated above. Strangely, the review majority failed or neglected
    to make any reference to its ruling in the Kennedy Agyapong contempt case, the most recent
    Supreme Court authority on judicial bias.
  8. Even more bizarre and worrying, is the fact that the review majority committed patent and
    avoidable factual errors in their ruling of 26th October, 2021. As has been said about the US
    Supreme Court and we believe this holds true also for our Supreme Court, “We are not final
    because we are infallible, but we are infallible only because we are final”. The finality of Supreme
    Court judgments, of necessity, casts a duty on the Court to avoid errors that could easily be
    avoided upon a close scrutiny of the record of a case.
    It is unfortunate that the review majority committed an avoidable factual error when it stated 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”. In our humble view, this is patently
    incorrect since the grounds of review of Dr. Stephen Kwabena Opuni challenging the Judge’s
    ruling on the submission of no case make no reference to “jurisdictional error”. The grounds
    simply stated that:
    a. “The learned High Court judge committed a grievous error of law apparent on the face of the
    record when contrary to the express provisions of statute and more specifically section 6 of the
    Evidence Act, 1975 (NRCD 323), he suo motu rejected exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66,
    67, 68, 69, 70, 71, 72, 73, 74, and 75 after earlier admitting same during the hearing of the case
    without any objection from the Court or the Interested Party.
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    b. The learned High Court judge committed a grievous error of law apparent on the face of the
    record when after earlier admitting exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71,
    72, 73, 74, and 75, he suo motu in his judgment rejected these exhibits without giving Applicant
    an opportunity to be heard before the subsequent rejection as required under the rules of natural
    justice.
    c. There is a real likelihood of bias on the part of the trial judge, Clemence Jackson Honyenuga
    (JSC) sitting as an additional High Court judge in view of the fact that he has made final findings
    of facts and has predetermined and prejudged the case before hearing Applicant.
    d. There is a real likelihood of bias on the part of the trial judge, Clemence Jackson Honyenuga
    (JSC) sitting as an additional High Court judge in that in the said ruling he exhibited patent bias
    against the interest of the Applicant when he rejected exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66,
    67, 68, 69, 70, 71, 72, 73, 74, and 75 which support the case of the Applicant but retained exhibits
    PP, LL series, and MM series which are statements obtained in identical circumstances to support
    the case of the Prosecution and which were tendered through the same PW7 by the Interested
    Party.”
  9. It is instructive to note that the majority decision of the ordinary bench did not pursue any
    analysis based on “jurisdictional error”. As one of the dissenting judges noted at page 41 of the
    review ruling “The majority decision [of the ordinary bench] said nothing about the jurisdiction
    of the High Court. It is therefore misleading to submit that even if the High Court committed an
    error of law such an error “does not amount to a jurisdictional error patent on the face of the
    record amenable to certiorari”.
    Furthermore, the grounds for review of the Dr. Stephen Kwabena Opuni as stated in paragraph 8
    above, made no reference whatsoever to “jurisdictional error”. The above notwithstanding the
    review majority erroneously reframed the central issue as a matter of “jurisdictional error” and
    pursued an analysis in that regard that was unresponsive to the case that had been presented by
    the accused persons, particularly in relation to breaches of the rules of natural justice.
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  10. Another patent and avoidable factual error made by the review majority was 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 erroneous. As noted by Justice Amadu Tanko in his dissent at pages 33
    of the ruling, the “complaint of the Applicant (Dr. Stephen Kwabena Opuni) is that the above
    orders of the trial judge are grievously erroneous in that they were made in breach of statute and
    secondly, the trial judge did not hear him before suo moto expunging from the record evidence
    that had been tendered without objection by the prosecution”.
  11. The above clearly shows that contrary to the claim of the review majority, the matter of the
    exclusion of the 18 exhibits without the accused persons having been heard before the relevant
    exhibits were excluded was specifically addressed by the ordinary bench. We can only wonder
    how different the decision of the review majority would have been if it had not committed such
    patent and avoidable factual errors of characterizing the central issue in the case as a matter of
    “jurisdictional error” when that was demonstrably not the case presented to the Court.
  12. It is also unfortunate that the review majority failed to address the central issue of whether
    the Judge erred in excluding the 18 exhibits on the basis of section 8 of the Evidence Act, and if
    so, whether that error was “fundamental” or “grievous”. It is worthwhile to reproduce the text of
    section 8 of the Evidence Act, 1975 (NRCD 323) which provides that: “ Evidence that would be
    inadmissible if objected to by a party may be excluded by the Court on its own motion”.
    Our reading of the rulings by the ordinary bench and the review panel makes it clear in our minds
    that the exclusion of evidence by a Judge on his own motion without offering an opportunity to a
    party affected by the exclusion would be unassailable if the adduction of that evidence had been
    “objected to” before it was adduced in evidence. It further seems obvious to us that this is the
    plain or dictionary meaning of the words used in section 8 of the Evidence Act, understood within
    the context of hallowed principles of common law adversarial proceedings. It is sad that the
    review majority failed to examine the meaning of section 8 of the Evidence Act, much less
    reproduce the text of that section in its ruling to enable the reader follow the context of its analysis.
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  13. We are concerned about negative consequence of the ruling of the review majority. It is
    apparent that the accused persons would be unable to tender the excluded exhibits in evidence.
    This point was crucially noted by Justice Amadu Tanko at page 60 of his dissent when he declared
    that “The consequence of expunging the evidence tendered through the police investigator during
    cross examination will deny the Respondent the opportunity of the said statements in his defence.
    A judicial step which creates an imbalance in identical circumstances and gives an advantage to
    one party against the other, must definitely leave one of the parties apprehensive whether the
    same law applies equally to all persons as the constitution and the judicial oath demands.”
  14. It is for the above reasons that, in our respectful view, the decision of the review majority
    is a travesty of justice and leaves much to be desired. In a criminal trial, in which an accused
    person faces an all-powerful State, it is crucially important that justice is not only done but
    is manifestly seen to be done. Unfortunately, that doesn’t appear to be the case in the Opuni
    matter. Court decisions that have the effect of hindering an accused person’s defence by
    denying him the use of exhibits in support of his case while allowing the use by the State of
    similar exhibits obtained and adduced in evidence in similar circumstances sends out only
    one clear message to citizens: the State has been given an advantage that has been denied
    the accused persons.
    In our humble view, any Court decision that produces this effect is flawed and indefensible
    and “must definitely leave one of the parties apprehensive whether the same law applies
    equally to all persons as the Constitution and the judicial oath demands.”
  15. It is doubtful whether the trajectory of the trial of Dr. Stephen Kwabena Opuni, Seidu Agongo
    and Agricult with its twists and turns would convince the ordinary and well-informed citizen that
    the ends of justice would be served regardless of the outcome of the case. It is in this regard and
    without prejudice to the pending criminal trial of the accused persons that we call on the Attorney
    General and Minister of Justice to stop the persecution of the accused persons by withdrawing
    the charges or entering a nolle prosequi. We believe that such a course of conduct is appropriate
    because the action of the Attorney General in the past in escalating a simple criminal trial to the
    level of political gamesmanship with Dr. Stephen Kwabena Opuni being mischievously presented
    as the poster child of NDC-Government corruption who must be jailed by all means because “fair
    is foul and foul is fair” make it abundantly clear that the criminal trial of the accused persons is
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    not a criminal prosecution. Instead, it is political persecution by the Attorney General
    masquerading as an exercise in Rule of Law and criminal justice.
  16. We and all those who seek justice shall continue to pray for the accused persons in the hope
    that they are vindicated by the truth and the law at the end of the trial. We urge them to fight with
    courage and perseverance to the very end.
    To conclude, we wish to remind the Attorney General of the words of the Holy Bible in Micah
    6:8: “He has told you, O man, what is good; and what does the Lord require of you but to do
    justice, and to love kindness, and to walk humbly with your God?”
    Signed,
    Comrade Johnson Asiedu Nketia
    General Secretary, NDC

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