Justice Clemence Honyenuga's description of the trial of former COCOBOD boss and two others as "sensitive" has incurred the displeasure of lawyers who are questioning the legal basis on which the judge painted that picture.
Nutifafa Nutsukpui, counsel for businessman Seidu Agongo and his company Agricult Ghana Ltd, is for instance wondering why the judge has to order his clients to open their defence based on emotion and not on legal grounds.
Mr Agongo is standing trial alongside former COCOBOD Chief Executive Dr Stephen Opuni for among others wilfully causing financial loss to the state and contravention of the Public Procurement Act (PPA).
They have both pleaded not guilty to the charges and are on a GHS300,000 self-recognisance bail.
The over three years trial of Dr Opuni and Seidu Agongo, has been touted as a political trial with many believing the government is just hanging on to the case to justify its cliché that the Mahama-led administration was corrupt.
Ghana's President, Nana Akufo-Addo, and current Attorney General, Godfred Yeboah-Dame, as well as some top government officials, have on different platforms cited the trial as effort by the government to validate corruption allegations leveled against the erstwhile administration.
Perhaps, it is in recognition of this that Justice Clemence Honyenuga, described the case as sensitive in his contentious ruling on May 7, that dismissed submissions of no case filed by the Accused.
Justice Honyenuga, a Supreme Court judge sitting as an additional High Court judge, as part of his ruling declared:
"I am convinced that this matter being sensitive and in the interest of justice and with the prosecution having established the ingredients of the offences charged and made a prima facie case against the accused persons, they must be called upon to open their defence."
The lawyers have since appealed against the May 7, 2021 ruling at the Appeals Court and also made unsuccessful attempt to stay proceedings at the High Court.
Arguing his motion filed to stay proceedings pending determination of the interlocutory appeal on May 26, lawyer Nutifafa Nutsukpui believes the Appeals Court ought to examine the sensitivity of the matter as suggested by Justice Honyenuga.
"The sensitivity or otherwise of a matter is not a legally recognized ground for ordering an accused person to open their defense in a criminal matter, and yet that was one of the reasons the court gave for its order, and we believe the Court of Appeal ought to take a decision on this matter," he argued.
Rejection of Exhibits suo motu
Meanwhile, counsel has also argued against Justice Honyenuga's rejection of 18 exhibits which were tendered without objection when he dismissed the submission of no case.
The court rejected exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and 75 which were all tendered by the Accused through the trial investigator, saying they offend the hearsay rule in Section 117 of NRCD 323.
But citing the Edward Nasser and Co. Ltd vrs McVroom 1996-1997 SGLR page 468 and page 477 case to back his argument, Nutifafa noted that the Supreme Court held that exhibits tendered without any objection signified consent of all parties that the hearsay evidence be so admitted.
"Assuming that the honourable court was right in classifying those exhibits as hearsay and for which reason they were rejected, how about similar exhibits tendered by the prosecution? Why and how were they preserved and why did the applicants not benefit from that benevolence of the court? These are matters that we consider exceptional and of legal consequence weighty enough for the Court of Appeal to be granted the opportunity to consider them at least" he argued.
He further posited that the effect of rejecting those exhibits is that they have been put beyond the use of his clients while at the same time they are being called upon to open their defense on the very rejected exhibits which favour them.
Mr Nutsukpui argued, "It will seem therefore that their fate has already been sealed even before they open their mouth to speak, thereby violating their constitutionally guaranteed rights of fair trial. The authority the court relied on in rejecting those documents according to the court itself, may reject evidence at the judgment stage. But in this particular case, the applicants have not even spoken and it was not at the judgment stage, it was at the submission of no case stage."
He therefore suspects, strongly, that the court "misapplied" the Ekow Russel case.
Meanwhile, Samuel Codjoe, counsel for Dr. Stephen Opuni, has also flayed the ruling on the submission of no case.
"The Learned Judge cannot in the same judgement give two different and conflicting reasonings for admissibility of statements and documents to my disadvantage as an accused Person and admit exhibits tendered in identical situations by the Prosecution," the motion filed by lawyer Codjoe pointed out on the selective rejection of already tendered exhibits.
In moving the motion for the stay of proceedings on Wednesday, which same was dismissed by the court, lawyer Samuel Codjoe argued that the Supreme Court's ruling in the Ekow Russel case was not applicable to the current situation. He explained that in that case the superior court held that the witness said he never spoke to the Maxwell Antwi, and therefore the statement cannot be tendered through him.
"In our case the investigator specifically stated under cross examination that he interrogates the witnesses before they wrote their statement so it is our submission that the court erred on its own rejected evidence which has been tendered without objection by the same court and not the appellate court like the case of Ekow Russel".
He has since filed an appeal at the Court of Appeal to quash the May 7, ruling of the High Court that ordered his client to open his defence.