Unexpected change in Opuni's appeals panel by Chief Justice sparks murmurs in Ghana's Supreme Court

The Supreme Court witnessed a surprising turn of events as Chief Justice Gertrude Sackey Torkornoo made unexpected changes to the panel handling an appeal by former COCOBOD Chief Executive Dr Stephen Kwabena Opuni against Article 157(3) of the 1992 Constitution.

The panel's alteration on the day of judgement left many legal experts, including Dr Opuni's counsel, Lawyer Samuel Codjoe, bewildered.

The Opuni team and the Attorney General had made their arguments before an earlier panel and submitted their written submissions.  

Notably, Chief Justice Torkornoo not only altered the panel but also assumed the role of its new president.

The stunned legal luminaries and spectators in the packed-to-capacity courtroom were heard murmuring in disbelief after counsel for Dr Opuni revealed in court that the panel now sitting on the case was different from the panel they appeared before many months ago.

Recalling the history of the case, Justice Kwasi Anokye Gyimah initiated a de novo trial upon taking over from retired Supreme Court judge Justice Clemence Honyenuga before his transfer in April 2023.

Dissatisfied with Justice Anokye's ruling, Attorney General Godfred Yeboah Dame swiftly sought redress from the Court of Appeal. 

The case was hurriedly heard, and the Attorney General secured a favourable ruling as the three-member panel, on July 3, 2023, quashed the decision of the High Court, and allowed for the adoption of the previous proceedings.

Dr Opuni's counsel, who felt the judges of the Appeals Court "committed an error of law" in their judgement, also filed an interlocutory appeal at the Supreme Court on July 7, 2023. Several months after the appeal was filed, parties were made to appear for a hearing before the Supreme Court on January 17, 2024.

During this session, a five-member panel headed by Justice Mariama Owusu instructed both parties to submit written arguments within specific timeframes. The four other Supreme Court judges were Justice Yaw Darko Asare, Justice Emmanuel Yonny Kulendi, Justice George Kingsley Koomson, and Justice Henry A. Kwofie.

The five-member panel ordered the parties to file written submissions within twenty-one (21) days. The Attorney General's Department was to file its response within twenty-one (21) days of receipt of the appellant's submissions, after which the appellant had seven (7) days within which to file a reply to the submissions of the prosecution.

Following this directive, Dr Opuni and the Attorney General submitted their arguments as instructed.

 However, despite numerous follow-ups, Dr Opuni's legal representatives received notice of the next hearing only on May 2, 2024, significantly delaying the process compared to previous proceedings.

On May 8, 2024, Dr Opuni and his legal team appeared before the court, expecting to receive a judgment date. To their surprise, they found a newly constituted panel, chaired by Chief Justice Torkornoo, with only two justices retained from the previous panel.

Lawyer Codjoe immediately objected to this arrangement, citing Article 157(3) of the 1992 Constitution, which stipulates that a judge cannot withdraw from a case until judgment is delivered, especially after hearing arguments.

He felt his client was being treated unfairly and objected to the re-composition of the panel.

"As soon as we filed our written submission, we were ordered to appear before the panel. As soon as we filed, the panel heard us. In so far as the panel ordered us to appear, it constituted a hearing," counsel asserted.

He referred to Article 157(3) of the 1992 Constitution to buttress his objection.

Article 157(3) of the 1992 Constitution stipulates: "Without prejudice to clause (2) of this article, no person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court or tribunal, or as a member of panel determining that cause or matter, nor shall that person become functus officio in respect of that cause or matter, until judgment is delivered." 

However, the Attorney General argued against this objection, asserting that no formal hearing had occurred despite acknowledging that hearings could be oral or written.

The objection was eventually overruled by Chief Justice Torkornoo and the others, saying that the case wasn't ripe for hearing when the previous panel instructed written submissions. Consequently, the case was adjourned for judgment on June 19, 2024.

Legal analysts have raised concerns about the fairness of the Chief Justice's actions, especially considering that the judgment will rely solely on written submissions prompted by the previous panel's directive. This discrepancy has led to questions regarding the nature of the previous panel's instructions, if not considered a form of hearing.

In light of these developments, some question whether Dr Opuni is being treated differently under the law.

Following Justice Clemence Jackson Honyenuga's retirement in 2018, the Chief Justice reassigned the case to another judge.

On March 30, 2023, the court reconstituted at the High Court, where the Attorney General appealed to adopt previous proceedings, a request vehemently opposed by the accused's counsel.

Consequently, both parties were directed to submit written arguments.

On April 4, 2023, Justice Kwasi Anokye Gyimah ruled for a de novo trial, considering various factors, including complaints about the trial's fairness.

 Dissatisfied, the Attorney General appealed to the Court of Appeal, which ruled in favour of adopting previous proceedings. Dr Opuni subsequently appealed to the Supreme Court to challenge this ruling.

This ruling is what Dr Opuni’s counsel appealed at the Supreme Court on July 7, 2023.

The grounds of appeal stated that “The learned Judges committed an error of law when they held that the trial judge exercised his discretion wrongly when he ordered the case to be started de novo.”

The appeal noted, “The settled practice in criminal trial is that when a pending criminal case is assigned to a new judge, the judge is obliged to start the case de nova.” It added, “Settled practices of the courts can only be changed by statute.”

GODFRED DAME’S OWN POSITION

Back in 2023, after securing the favourable judgement from the Court of Appeal on July 3, quashing the de novo trial, Godfred Yeboah Dame announced his decision to get Parliament to approve a new Bill for Ghanaian judges to adopt proceedings in criminal trials in the event that another judge is unable to conclude a matter before him or her.

This clearly indicated his belief in the fact that judges have the discretion to try criminal cases anew. 

“The true position of the law is actually up to the trial judge to make that determination. The trial judge makes that determination based on factors that he considers necessary,” the A-G told journalists after the ruling.

This position is in tandem with his stance that he forcefully championed at the Supreme Court in 2021 to convince judges at the superior court to overturn their earlier decision barring one of their own, Justice Honyenuga, from hearing the trial of former COCOBOD boss and two others.

“If the new judge orders an adoption of the evidence led so far rather than a commencement ‘de novo’, he would definitely have lost the benefits of the conduct of a full trial by him – observation of the demeanour, countenance, and composure of witnesses, etc.” 

The statement of claim filed by Attorney-General Godfred Dame himself, dated August 18, 2021, at the Supreme Court posited.

SUPREME COURT’S POSITION IN 2023

Writing a decision of the Supreme Court in the Republic vrs High Court (Criminal Division) ex-parte Stephen Kwabena Opuni on January 24, 2023, Justice Dotse stated:

“The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part-heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo.

“Perhaps the time has come for this problem to be reviewed. This is because if, as a country, we are to make some progress in the prosecution of criminal cases, especially corruption-related cases pursuant to the Article 19 provisions of the Constitution of 1992, then the bold step has to be taken to introduce sweeping reforms in this part of our criminal justice. We therefore appeal to the Chief Justice to urgently consider reforms in this part of our criminal justice [system].”

As Justice Jones Dotse, now retired, elucidated and backed by the Attorney General on the need to get Parliament to approve a new bill to get judges to adopt proceedings in criminal trials, it is trite knowledge that starting criminal trials de novo is the status quo.

Former COCOBOD Chief Executive Dr Stephen Opuni, businessman Seidu Agongo, and Agricult Ghana Limited are facing 27 charges, including defrauding by false pretences, willfully causing financial loss to the state, corruption by public officers, and contravention of the Public Procurement Act.