In 2021, Attorney General Godfred Dame argued in a statement of claim filed on August 18, 2021, in opposition to the Supreme Court’s prohibition of now-retired Justice Clemence Honyenuga from continuing hearing the GHS217million financial loss case involving Dr. Stephen Opuni, a former CEO of the Ghana Cocoa Board (Cocobod), and businessman Seidu Agongo, that a judge needed the benefit of a witness’ demeanour in the dock in determining a case, and, thus, considered Justice Honyenuga’s removal a “miscarriage of justice” that risked putting the case in the hands of a new judge who would likely start the case afresh so as to have the demeanour-observation opportunity.

Dr. Opuni, Mr. Agongo, and his company, Agricult Ghana Limited, are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.

They have pleaded not guilty and are on a GHS300,000 self-recognisance bail.

In his statement that followed the 3:2 majority decision of the Supreme Court’s ordinary bench that got Justice Honyenuga removed, Mr. Dame argued: “We respectfully submit that the order prohibiting the trial judge will work substantial miscarriage of justice in the trial of the accused person”, explaining: “The decision has the effect of placing the case in the hands of a judge who has not had the benefit of the entire trial, observing the demeanour and composure of the various witnesses called by the prosecution in order to assess their credibility”.

“It is our contention that regardless of the course to be adopted by a new judge, to whom hearing of the matter is entrusted, the further conduct of the case will suffer,” Mr. Dame argued.

“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.,”, Mr. Dame insisted in his statement of claim two years ago.

In his opinion, it was “fundamentally wrong for this court to prohibit the trial judge from further hearing a case when all he did was perform a duty placed on him by law”.

Recently retired Chief Justice Kwasi Anin-Yeboah, following the retirement of Justice Honyenuga, assigned a new judge, Justice Kwasi Gyimah, to the case, who, after studying the case, decided to start the five-year-old case de novo on 4 April 2023.

In Justice Gyimah’s opinion, the previous proceedings were "replete with applications upon applications" from "both counsel for the accused persons challenging various aspects of the conduct of the proceedings before the previous judge, some of which applications are currently pending before the Supreme Court, with another one currently pending before me".

He said: “The accused persons have time and again complained about the fairness of the trial so far, and that is one of the reasons why they are vehemently opposed to the adoption of proceedings in this matter.”

“The question that I keep asking myself is that even though I may have the discretion to adopt the proceedings in this matter and continue with this trial, with all the allegations, through various applications, of the unfairness of the proceedings before the previous judge, though none have been proven so far, will I be doing justice if I treat it as business-as-usual, adopt the proceedings, and continue with the matter as it is?" the Court of Appeal judge wondered.

“If I adopt the proceedings, I am basically adopting every act and decision that has been taken by the previous judge in the matter and I will be saddled with the same suspicions and allegations of unfairness that have been levelled against the current state of the proceedings", he reasoned.

“I am not by this saying that I agree with the allegations of unfairness that counsel for the accused persons have raised but I am also mindful of the fact that when there are ingrained suspicions as to the fairness or otherwise of a system or procedure, if there is an avenue open to the court that will substantially dispel the said suspicions, it will be the best course for the court to take", Justice Gyimah pointed out.

He said: “I appreciate the fact that this case has travelled for quite some time and a lot of witnesses have been called and discharged but it is my candid opinion that it will be in the interest of justice and the interest of all the parties for this court to start on a clean slate, free from all the shackles of allegations of unfairness and counter allegations of intentional delays that has bedevilled this case over its duration and that has resulted in the filing of numerous applications before this court, differently constituted, and also before the Supreme Court".

Justice Gyimah also said Section 80(2)(a) of NRCD 323 enjoins the court to assess a witness’ demeanour in determining his/her credibility.

“Much as that may be the right position, in a criminal trial where the liberty of the accused is at stake and where the accused is, by law, presumed innocent and also entitled to a fair trial, any factor, however minimal or insignificant its effect, that will enhance the opportunities for the fair trial of an accused person should not be overlooked by the court".

“The drafters of NRCD 323 knew why they placed that provision in the Act, and, as a statutory provision, a court that is meant on doing justice in a criminal trial should, as much as is within its power, make sure that the said statutory provision is observed”, he added.

However, the Attorney General, in an application for appeal filed on April 18, 2023, on his behalf by the Director of Public Prosecutions, Mrs. Yvonne Atakora Obuobisa, argued that the ruling “has occasioned a miscarriage of justice, as it will hinder an efficient trial of the accused persons in the instant case”.

Mr. Godfred Dame, thus, prayed the Court of Appeal to quash Justice Gyimah’s de-novo decision.

Mr. Dame argued in his application that the high court judge “misdirected himself” in the application of the principles regarding the adoption of evidence in a trial.

He said Justice Gyimah’s decision “will hinder an efficient trial of the accused persons in the instant case”.

“The learned trial judge erred, in the circumstances of the instant case, in placing undue premium on the need to assess the demeanour of the witnesses called at the trial,” Mr. Dame argued in the appeal application.

In his August 18, 2021, affidavit in support of his motion that Justice Clemence Honyenuga be reinstated to the case, Mr. Dame argued: “That the decision of the ordinary bench results in a substantial miscarriage of justice since it has the effect of placing the case in the hands of a new judge who has not had the benefits of the full trial, observing the demeanour and composure of the various witnesses called by the prosecution and assessing their credibility.”