An Accra High Court hearing the trial of Dr Stephen Opuni, former CEO of COCOBOD and two others, on Wednesday, dismissed a motion to stay proceedings, pending an interlocutory appeal at the Court of Appeal.
The Court presided over by Justice Clemence Honyenugah, a Supreme Court Justice, sitting as an additional High Court Judge, said upon a perusal of the documents filed, “l do not think the grounds for appeal has any chance of success.”
He said the applicant had not demonstrated any exceptional circumstances to warrant the grant of stay of proceedings in his favour.
Dr Opuni and Mr Seidu Agongo are facing 27 charges, including defrauding by false pretences, wilfully causing financial loss to the state, money laundering, corruption by a public officer and contravention of the Public Procurement Act.
They have both pleaded not guilty to the charges and are on a GHS300,000.00 self-recognisance bail each.
The Judge said it was interesting to note how the applicant, who was alleged to have self-isolated, signed an affidavit in support.
He said the applicant never sent a medical excuse to the Court but rather what he sent was dated June 5, 2022, was a laboratory report that showed that he tested positive for COVID-19.
The Trial judge said the Court had never bridged the applicant’s right to a fair hearing.
Mr Samuel Codjoe, Defence Counsel, said the application for stay was filed under 19(2) and 19(3) of the 1992 constitution and under the inherent jurisdiction of the Court.
He said they relied on all the averment contained in the affidavit together with the exhibits which they filed in the Court.
The Counsel referred to the case of Merchant bank Ghana Limited Vrs Similar Waste Ghana limited reported in 2012 (1) Supreme Court of Ghana Law Report on page 442.
In that case, the Supreme Court held that if a stay, the suspension was another remedy; even though these cases were civil, the principles initiated in the matter were applicable.
He said, “we are falling on your lordship to stay proceedings as contained in our affidavit in support the inherent jurisdiction has been given constitutional effect.”
Mr Codjoe, therefore, called upon the Court to stay and or suspend proceedings under its inherent jurisdiction and under 19(2) & (3) pending the determination of their appeal.
He said the condition under 19(3) was that the constitution required the presence of an accused person before a trial could go ahead unless the accused person refused to make himself available and/ or misconduct himself during the trial.
The Counsel said that was moot because “he was here and present.”
The applicant also referred to 19(2(g)) which required that the Dr Opuni to be afforded the opportunity to be examined in person.
He said on a true and proper interpretation of Article 19(2)(g), the Court erred when it stated that “we called our witnesses out of turn and that the prosecution did not have this condition imposed on it when it was conducting its case.”
He said this was because there were instances where the Court adjourned the case to enable their witnesses who were not present in court to appear before the Court.
Mr Codjoe said the case is a criminal trial, their right to a fair trial would be breached if “we are ordered to call our witnesses out of turn.”
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He said it was important that a witness completed its evidence before another was called and it was very possible that based on the evidence of the witness in the box, they might not need to call a further witness.
The Codjoe said in any case, they would suffer irreparable hardship if a stay and /or suspension was not granted and the issue of calling their witness out of turn was not moot.
“We, therefore, pray accordingly and we rely on the case of J.H Mensah Vrs A-G which is reported in 1996/7 Supreme Court of Ghana Law report,” he added
Mrs Stelle Ohene Appiah, Principle State Attorney, said the Prosecution was opposed to the grant of the application and “we rely on our affidavit in opposition filed on June 20, 2022.”
She said the grant of stay of proceedings was at the discretion of the Court and the applicant must show that there was the existence of an exceptional or exceptional circumstance raising out of the trial.
She said they had been told by the applicant that calling witnesses out of ten was inconveniencing to the applicant and because of that, it affected his right.
“We submit that when the Court ordered for the third defence witness to be called whiles the second defence witness reported ill and the further order for the applicant to call another witness whiles the fourth witness is yet to conclude his evidence via video call, it is well within the jurisdiction of this court,” she added.
She said the judge acted within the power allowed it by the laws of this land, indicating that the applicant had already indicated to the Court the number of witnesses he intended to call and had subpoenas issued to some of the witnesses.
Mrs Ohene Appiah said it was not the case that the applicant was now going round to look for his witnesses and therefore the Court’s order to him to call a witness out of turn was such a grave order that would jeopardize his defence.
She said the applicant had not demonstrated any exceptional circumstance to the Court in any way, how this court order to him to call his witness out of turn constitute a ground for which the Court should grant them stay.
“We, therefore, submit that the application should be refused, and this trial be continued since the Court order does not in any way err in law,” she added.
