Justice Clemence Honyenuga, the Court of Appeal Judge sitting as additional High Court Judge, last Monday took the Director of Public Prosecution (DPP) back to the lecture room, lecturing her on appeal process as she wanted the case to go on despite an interlocutory appeal filed at the Court of Appeal.
The DPP, Yvonne Atakorah Obuobisa, had told the court that although the prosecution was yet to be served with the motion for stay of proceedings, the case must continue, but this was countered by the judge who looked shocked at the demand of the DPP stated that the case could not go on due to the appeal as that was the right thing to do if an appeal is filed.
Justice Honyenuga, subsequently directed the lead counsel for Seidu Agongo, the businessman standing trial with a former Chief Executive Officer (CEO) of the Ghana Cocoa Board (COCOBOD), Dr. Stephen Kwabena Opuni, Benson Nutsukpui, to ensure that he serves the DPP his motion for stay of proceedings which was filed on March 1, 2019, to enable her respond to it appropriately.
The court, therefore, adjourned its sittings to Wednesday, March 13, 2019 to hear arguments on the motion for stay of proceedings pending the determination of the interlocutory appeal filed at the Court of Appeal.
Alhaji Agongo, is appealing against the decision of the Accra High Court to reject the tendering of a vital document which his lawyer, Benson Nutsukpumi, has described as germane to the case.
Justice Honyenuga, blocked an attempt by the defence team to tender in evidence the Cocoa Research Institute of Ghana (CRIG) committee’s investigative report through the state’s second prosecution witness, Dr. Alfred Arthur.
The court had upheld an objection raised by Mrs. Obuobisa against the tendering of the report.
Mr Nutsukpui, in his cross-examination of Dr Arthur on Monday, 25 February 2019, sought to tender the CRIG investigative report on some key missing documents, through the witness.
But this was objected to by Mrs. Obuobisa, who argued that the report is hearsay evidence under Section 116 of the Evidences Act, since it was made by persons other than the witness, who is currently testifying in court.
In her estimation, it would be unfair to tender the document through the second prosecution witness since he neither appeared before the investigative committee nor knew of the committee’s work.
She further cast doubts over the authenticity of the document since, according to her, it was not captured on the official letterhead of CRIG, despite it being filed by the lawyer for the directors of CRIG and the Cocoa Health and Extension Division (CHED).
But in his counter-argument, Mr Agongo’s counsel, Mr Nutsukpui, described as unfair, the prosecution’s attempt to taint the credibility of the said document.
Mr Nutsukpui, argued that the fact that the lawyer for the directors of CRIG and CHED filed the said document in court pursuant to orders of the presiding judge and on behalf of the directors of CRIG, who are custodians of the document, is enough basis for the court to consider the document as reasonably trustworthy, referring the court to the case of Yeboah v Amofa reported in 1997 – 98 1 Ghana Law Report (1 GLR) Act 647.
He further argued that, it would not be the correct position of the law, if the court is made to believe, per the argument of the DPP, that since Dr. Arthur, did not author the report, it could not be tendered through him.
According to Mr Nutsukpui, that argument is defeated, since Dr. Arthur has tendered in evidence, official documents he did not author at all.
He added that it was also the right of the accused persons to be able to confront the witness with documentation, which Dr Arthur denies exists, adding that the CRIG document is proper and should be accepted.
Justice Hornyenuga at that hearing, upheld the DPP’s objection on the grounds that it would be most unfair to tender a document through a witness who does not appear to know anything about the said document.
He added that it would be appropriate for the counsel for Mr Agongo to seek an order from the court to invite the authors of the report and tender the document through them after scrutiny.
Dr. Opuni and Mr Agongo, are facing 27 charges of willfully causing financial loss of GHS217 million to the state, through three separate fertiliser supply contracts between 2014 and 2016.
The contracts were GHS43.1million (2013/2014 cocoa farming season), GHS75.3million (2014/2015 cocoa farming season) and GHS98.9million (2015/2016 cocoa farming season) totalling GHS217million through sole-sourcing, the state claimed, adding that procurement procedures for sole-sourcing were not followed.
According to the charges, the consignments of Lithovit Foliar were produced locally, contrary to an agreement between COCOBOD and AgriCult Ghana Company Limited that it be sourced from Germany.