Justice Clemence Honyenuga, Justice of the Supreme Court, sitting as an additional judge of the High Court, has refused a stay of proceedings application made by the former Chief Executive Officer (CEO) of Ghana Cocoa Board (COCBOD), Dr Stephen Opuni and two others, because they could not demonstrate any exceptional circumstances for their request to be granted.
The court also held that the two applications, which were consolidated as one, severely failed to state any law, for which the applications were brought before it.
Although Counsel for the accused persons –Samuel Cudjeo and Nutifafa Nutsukpui – had argued that the court erred by rejecting certain exhibits, hence the denial of their no case submission, Justice Honyenuga pointed out that their motion didn’t have good grounds.
Meanwhile, Dr Opuni’s lawyer, Samuel Cudjoe, told Justice Honyenuga that they wanted the court to stay proceedings pending a decision to be made by the Court of Appeal on the High court’s earlier ruling on no case submission.
“My lord, this is a motion on notice for stay of proceedings, pending the determination of our application we filed in this court… But suffice to say that this court, in its ruling, dismissing our submission of no case, rejected Exhibit 58 to 75 and the basis of this court rejecting these exhibits, according to the Ekow R. case…at page 469. My lord, it is our submission that this court erred, in that, in the Ekow R. case the witness for the prosecution in which the document was tendered, admitted that he never spoke to Maxwell Antwi.
“On that basis, the Supreme Court held that the statement could not be tendered through him. This is totally different from our case where the investigator, specifically states under cross examination on February27, 2021 that he interrogated the witnesses before they wrote their statement.
“So it is our submission that the court erred on its own by rejecting evidence, which had been admitted during trial by this same court and not in appellant’s court. What is more, the court accepted similar identical documents, which were tendered through same PW7, example of which are Exhibits PP and MM.
“My lord, we say this constitutes an exception circumstance, in that if these exhibits were not wrongly rejected this court will have come to a different conclusion. This is a criminal trial, which individuals’ liberty is stake. As held in Ekow R, it is better for 99 people to sail through than one innocent person to be wrongly convicted. I won’t bore your lordship that when it comes to stay of proceedings in criminal matters your lordship has discretion. We pray that your discretion is made in our favour.
The affidavit, filed by the prosecution, says that your ruling was right and that our appeal has no chance. Paragraph 14 of the affidavit filed in opposition, they make unfortunate averment…
The defence counsel for the second and third accused, Nutifafa Nutsukpui on his part prayed the court to stay proceedings because all the exhibits that were excluded and marked as rejected were allowed to be tendered.
Mr Nutsukpui contended that if the prosecution had been offered such opportunity, why was the same benevolence of the court not extended to the applicants, stressing “these are matters we consider exceptional and of legal consequent for the Court of Appeal to consider them at least.”
He suggested to the court that the rejection of those exhibits, in effect, had determined the accused persons’ fate even before opening their mouths, saying “it will be seen that their fate is already sealed even before they open their mouth to speak. Thereby covering the guarantee right to fair trial.”
The lawyer also argued that the authority that the court relied on in rejecting those documents imply that it will equally be rejecting evidence at the judgement stage. According to him, even if the Ekow R. case empowered the court to reject those exhibits, then same have been misapplied.
He further urged the court to consider the application since the matter before it is sensitive, therefore, the High Court must stay proceedings to afford the Court of Appeal the opportunity to examine these matters.
The Chief State Attorney, Mr Evelyn Keelson, on her part opposed both applications as consolidated, saying the state relies on all the averments on both affidavits in opposition.
“My lord, we first of all want to draw this court’s attention to the fact that currently there is no law or rule of law permitting or requiring this court to stay proceedings in this matter. CI132, the new court of appeal rules, which have effectively done away with rule 27 of CI19, which permitted an applicant to ask for stay of proceedings in the court below, which is the trial court and repeat it at the Court of Appeal.
“Now under rule 1 of CI132, the rule no longer permits stay of proceedings. There is no rule of law that compel the applicant to apply for stay of proceedings. Secondly, the applicants have not established any basis for you to stay proceedings because there are not special or exceptional circumstances. The applicants have not raised any issue about your ruling, which said that the prosecution has made a prima facie case against them in that respect.
The only issue they have raised is the rejection. It is our submission that this court has the power to disregard evidence that have wrongly been admitted. The exhibits are clearly hearsay statements. They are out of court statements taken and nothing was said or shown why they were unavailable.
“The duty of the court is to do justice [based] on legal evidence. The court is under a duty to arrive at a decision at the submission of no case or at the end of the legal trial.Those statements are hearsay and the court was right in its decision.
“Those statements by themselves, even if admitted or considered by this court as part of evidence in the trial do not in anyway discrete any part of prosecution’s case. The prosecution at this stage has established the duty on us to reach the prima facie stage and there’s no part of this ruling…”
Meanwhile, the court has directed the first accused person, Dr Opuni, to open his defence on the next adjourned date, June 7.
By Bernice Bessey & Wilhelmina Love Abanonave
The post Opuni’s stay of proceedings request thrown out appeared first on The Chronicle Online.
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