A seemingly outraged former President of the Ghana Bar Association (GBA) minced no words when he called out the shenanigans playing out at the Accra High Court in the trial of former COCOBOD Chief Executive and two others.

Benson Nutsukpui, who is the lead counsel for the first and second accused persons, was not happy with the court’s attempts to “tie his hands behind” him as he strives to stage a successful defence for his client in a highly polarized trial.

Cross-examining the former Executive Director of CRIG, Dr Gilbert Anim Kwapong, yesterday, Tuesday, December 5, counsel vehemently disagreed that the “unthinkable” behaviour of retired Justice Clemence Honyenuga, should be made to bind him.

He was arguing, albeit unsuccessfully, to tender a document in evidence through the witness who admitted to authoring that document, which is a statement he gave to police investigators when he was interrogated in January 2018.

The document in question was once tendered by counsel for the first accused, Samuel Codjoe, when he cross-examined the seventh prosecution witness, who happened to be the CID investigator.

The statement was tendered in an open court without any objection from the prosecution and was therefore marked as Exhibit 58.

However, in establishing a prima facie case against the accused persons in his ruling on the submission of no case, the then justice of the Supreme Court, Justice Honyenuga, who was sitting on the case at the high court, rejected the document in his chambers.

The document was part of the 18 documents that the trial judge claimed that the police investigator through whom the documents were tendered without any objection was not the author.

He therefore treated them as hearsay, hence his unilateral decision to reject them without the involvement of the parties in the case.

But Benson Nutsukpui told the court, differently constituted and now presided over by Justice Aboagye Tandoh, on Tuesday that the principle that there is no collective liability would be defeated if the objection to the tendering of the statement by the witness is upheld by the court.

“To begin with, I represent the 2nd accused and 3rd accused. And in case the prosecution has forgotten, count two charges only 2nd accused person and 3rd accused person and count four also is against only 2nd accused person and 3rd accused person. It is a well-known principle of criminal practice that there is no collective liability. We must conduct our case on our own and provide the evidence that will exculpate us.

“The facts as narrated by the prosecution are not exactly the case. 2nd accused person and 3rd accused person did not tender exhibit 58. And when exhibit 58 was tendered and was not objected to by the prosecution in what must be frowned upon by any Court seeking the truth Honyenuga JSC now retired decided to practice Judicial chicanery and decided without giving the parties a hearing to discern into the arena and rejected all the exculpatory evidence tendered through the police investigator on the ground that it was hearsay evidence,” he argued.

Counsel further asserted, “It is our submission that we are not bound by that rejection of that exhibit in any case. We have laid all the grounds for tendering of a document through a witness. He is the author, he speaks to it, and he executed it contemporaneously with the events.”

Pulling no punches, the former GBA president went on, “So to come and say that because Honyenuga JCS now retired did the unthinkable so we should be bound is the strangest legal proposition that will be made.”

But Justice Aboagye Tandoh maintained that “the document in question is on record rightly or wrongly, and this Court will not discern into admitting, then reject and then admit”.

He later ruled that “the document which counsel is seeking to tender is disallowed under the circumstance”.

But counsel insisted that he would not buy into the judge’s semantics, and demanded that the court come clear – whether the document has been admitted or rejected – and if rejected it should be marked as such.

“My lord, we have tendered the document; they have opposed it; we have not withdrawn it, so the court has to deal with it,” lawyer Benson stressed.

After a brief back and forth, the exhibit was marked rejected (R22), but not without a fight. Lawyer Benson wondered how the rejected documents climbed to 22 when, in fact, only three documents were rejected in open court.

But Chief State Attorney Evelyn Keelson, said the extra 18 were the ones Justice Honyenuga rejected suo motu, insisting that those documents were later marked rejected in open court.

Her claim shocked the defence counsel, who demanded that she provide the date when those 18 exhibits were marked rejected in an open court, but she could not.

Lawyer Nutsukpui had earlier entertained the fear that if care is not taken, parties can conspire and tender evidence that exonerates another party through the wrong witness, just for the court to reject the evidence and place same beyond the reach of the right person.

However, the judge in his ruling said counsel for A2 and A3 was at liberty to ask questions on the rejected document by way of cross-examination, much to the surprise of the prosecution.

The former COCOBOD Chief Executive, Dr. Stephen Opuni, and businessman Seidu Agongo, as well as Agricult Ghana Limited, have been facing 27 charges, including defrauding by false pretence, willfully causing financial loss to the state, corruption by public officers in contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.

They have pleaded not guilty to the charges and are on GH¢300,000.00 each in self-recognizance bail.

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