Accra, Dec. 16, GNA – An Accra High Court has dismissed a motion seeking the recusal of Justice Clemence Honyenuga from continuing with the trial, involving Dr Stephen Opuni and two others on the ground of real likelihood of bias.
This was after Chief Justice Kwasi Anin-Yeboah in a letter addressed to the Court and the parties refused a petition filed by Dr Opuni, a former Chief Executive of COCOBOD, through his Lawyers, for the motion to be referred to another judge for a hearing.
The Chief Justice said he had carefully studied the content of the petition and had not found the allegation of likelihood of bias against the trial judge.
He had also indicated that it would not be in the interest of justice to transfer the motion to another judge to determine without the substantive Judge being fit to sit on the trial.
“For the above-mentioned reasons, l have refused the petition for transfer of the motion to another judge,” he added.
Per this letter, the Chief Justice has authorized Justice Honyenuga to hear the motion.
Justice Honyenuga described the application as malicious, mischievous and frivolous and abuses the Court process.
He said it was also a well-calculated attempt to further delay the efficient and fair hearing of the case.
“The principle of justice delayed is justice denied is applied in this case,” he added.
The Judge said the accused person was crying wolf when there was none and could not prove why he (Judge) should recuse himself from the trial.
The judge urged counsel to advise his client before he embarked on such allegations because it did not augur well in the smooth adjudication of justice but rather turn to erode public confidence in the judiciary or administration of justice.
Initially, Mrs Evelyn Keelson, a Chief State Attorney opposing the motion, said they relied on all the averments.
She said it was their submission that there were no bases at all for the application and the applicant had failed woefully to demonstrate any credible evidence of bias against the trial Judge.
She said there was nothing legally wrong with the Court sitting to hear the motion.
The State Attorney said the applicant had not provided any evidence not alone credible evidence to support his application and the averments in support of the application were mere allegations with no basis at all.
“It is on this basis that we oppose the application and urged the Court to dismiss the motion.
On the mode of defence, the accused person wanted to mount, Mrs Keelson said the accused person was trying to delay the trial.
Dr Opuni filed another motion asking Justice Clemence Honyenuga to recuse himself on the ground of real likelihood of bias.
The motion also alleged that the trial judge was exhibiting “bias tendencies and open hostility towards” his client.
Justice Honyenuga, a Justice of the Supreme Court, who is sitting with additional responsibility as a High Court judge, has also been accused of giving preferential treatment to the Attorney General.
“The conduct of His Lordship Justice Clemence Honyenuga since I opened my defence is one of open hostility towards me, his acts and conduct is such that justice cannot be said to be seen to be done,” Dr Opuni said in his affidavit in support of the motion file on December 10, 2021.
This latest action is the third application against Justice Honyenuga’s handling of the case of the former COCOBOD boss, and businessman Seidu Agongo accused of causing financial loss to the state and contravention of the Public Procurement Act, has been full of controversies.
Two other similar attempts in the past to get the judge to step down due to several alleged “unfavourable and bias” action of him were unsuccessful.
With the latest motion at the High Court, Dr. Stephen Opuni prayed that “based on the averments contained in the above, it is only fair and just that the trial judge recuses himself from further hearing of the suit.”
Dr Opuni referenced his affidavit on two occasions where the Justice Honyenuga imposed dates on the parties and would not hear his counsel out even on medical grounds.
“That I state further that this conduct of the learned judge in unilaterally imposing dates did not happen when the Prosecution was presenting its case. During that time, the Learned Judge always agreed with the lawyers before adjourning the case. Unfortunately, the Learned Judge has refused to grant me the same conditions and facilities which were afforded to the Prosecution.”
According to Dr Opuni, the trial judge “has exhibited open hostility towards me since I opened my defence and this is evident where he (the learned judge), in open court, apart from not hearing my Counsel with respect to adjourned dates, bangs his files on his table when giving dates and on his own, orders the Court to rise whiles angrily screaming ‘court rise’.
Indeed, at the last hearing on the 9th day of December 2021, the learned trial judge unilaterally adjourned the suit at a time my lawyer was on his feet and addressing him with respect to the proposed adjourned dates and walked away to his chambers.”
Dr. Opuni stated that, he was convinced that the conduct of Justice Honyenuga breached his right to a fair hearing and constituted a breach of Rule 3 (5) of the code of conduct for judges and magistrates, which stipulated that:
“A judge shall perform judicial duties without bias or prejudice, A Judge shall not, in the performance of Judicial duties, by words or conduct, manifest bias or prejudice including but not limited to bias or prejudice based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status, and shall require Court personnel and others not to do so.”
The applicant also accused Justice Honyenuga of making prejudicial comments in the ongoing trial that he presided over.
“That the fact that the judge is biased towards me is evidence by his prejudicial comment which he made in court on December 9, 2021, where he stated in open court that the evidence of my witnesses cannot exonerate me save my own evidence. This shows a clear case of bias and that the learned judge has already made his mind even though my first witness has not yet completed his evidence in chief. I add that this comment is further evidence that the learned trial judge would not consider the evidence of my witness even though he has not completed his evidence in chief.”
The affidavit further stated that, “That during the examination in chief of my first witness, when my lawyer sought to elicit response from my witness on portions of the findings of fact made by the judge in his ruling dismissing our application for submission of no case including the above, the learned trial judge stopped him and furiously informed him that he was not going to allow my lawyer to ask questions by referring to his ruling. This Conduct is one of bias since the questions to be asked are based on the express finding made by the judge with respect to the submission of no case in which the judge made extensive references to the evidence of various prosecution witnesses affirming the basis of his ruling.
“That I state that unless the learned trial judge recuses himself from hearing this matter, I would be denied a fair trial since I would be prevented from conducting the case in a way which I am entitled to by making references in this instance to specific portions of the ruling.2
“That I state further that the fact that the learned trial judge is biased is further evidenced from his conduct of December 2, 2021, where the learned trial judge, even though aware of the fact that I had the constitutional right of deciding the mode of calling witnesses, initially objected to DW1 giving evidence. This was most unfortunate in that at no point in time during the presentation of the case by the Prosecution did he seek in any way whatsoever and or howsoever to instruct on the sequence of calling their witnesses.
“That I state further that the learned judge has repeated on numerous occasions since I opened my defence that his diary at the Supreme Court does not afford him enough time hence his act of imposing these said dates.
It is thus clear to me that I will not get a fair trial as my trial would be rushed through by his Lordship the trial judge”.
In July 28, this year, the ordinary bench of the Supreme Court in a 3:2 majority decision prohibited Justice Honyenuga from hearing the case, but the ordinary bench’s ruling was overturned in a 4-3 review application in October 12.
Dr Opuni and Mr Agongo are facing 27 charges, including defrauding by false pretences, willfully causing financial loss to the State, money laundering, corruption by public officers and contravention of the Public Procurement Act.
They have both pleaded not guilty to the charges and are on a GHS300,000.00 self-recognizance bail each.
GNA