Businessman Seidu Agongo has said in his recusal application to the High Court that “I was simply terrified” to have read the “sentiments expressed and the threat issued” by Justice C.J. Honyenuga – a Justice of the Supreme Court who has been hearing the GHS217-million financial loss case – about his (Mr. Agongo’s) recent absence from the trial over ill health.

Mr. Agongo argued that Justice Honyenuga, “obviously did not care whether or not I was unwell because he must, by all means, conclude this matter, and considers my ill health as an impediment to his goal”.

About a week ago, Justice Honyenuga said the medical excuses of Mr. Agongo (second accused person) who is being tried with the ex-chief executive officer of the Ghana Cocoa Board, Dr. Stephen Opuni (first accused person), for criminal offences, were delaying him from concluding the case within the “limited time” granted him by the Chief Justice.

Justice Honyenuga reached the mandatory constitutional retirement age of 70 in September 2022 but was granted “limited time” by the Chief Justice, per the 1992 Constitution, to wrap up the almost five-year-old trial.

Mr. Agongo, whose company, Agricult (the third accused person) supplied Lithovit Liquid Fertiliser to Cocobod during the tenure of Dr. Opuni as CEO, was absent from the trial for a few days over ill health.

He presented two excuse duties to the court from two hospitals within a space of about two weeks.

The situation compelled Justice Honyenuga, who started hearing the case in May 2018, to adjourn the hearing on a few occasions, much to his chagrin.

While adjourning the matter to 20 February 2023 due to Mr. Agongo’s medical excuse, Justice Honyenuga told the court on Tuesday, 14 February 2023: “Yesterday [Monday, 13 February 2023], I adjourned the matter on the medical report to await the Registrar’s report. Now, as I indicated yesterday, the second accused has caused this court to adjourn proceedings for some time now.

A reference to his medical report from the National Cardiothoracic Centre indicates that: ‘Assessment was done and a diagnosis of stress-induced anxiety was made, for which treatment was commenced. He reported for a review on 30 January 2023 with complaints of difficulty in sleeping, easy fatigue and worrying thoughts of over two week’s duration, and high blood pressure readings’”.

“Now, the second accused, again, has brought a medical report which now indicates that he is diagnosed with acute lumbago and radiculopathy from the 37 Military Hospital and was given an excuse duty for one whole week”, Justice Honyenuga said.

He added: “At the last adjourned date, I expressed my difficulty in having to adjourn the case because of the absence of the second accused on medical excuse duty”.

“As I indicated, I have limited time to conclude this matter but such medical excuses are delaying the trial of this case”, he complained, warning: “I must state emphatically that this court has the discretion to accept or reject medical evidence and I must also add that the second accused is on bail and he is still subject to this court’s discretion. And, I must also add that this court has enormous powers to deal with any situation in this court”.

Mr. Agongo, in his application, said apart from feeling threatened by Justice Honyenuga’s words on Valentine’s Day, he also sees the whole trial as a charade.

‘It’s a sham of a trial! Honyenuga’s court has already sealed our fate, predetermined our guilt by rejecting copious evidence’ – Agongo

He argued that by rejecting several pieces of “exculpatory evidence” tendered by his lawyers during the trial and “marking them as ‘rejects’”, the trial judge ensured that “we can never rely on the said exhibits at the trial while, at the same time, calling on us to open our defence in respect of the very same matters”.

This, Mr. Agongo noted, “means that this court has already sealed our fate and only wants us to go through a sham of a trial when it has already predetermined our guilt even before we were heard, especially when similar evidence tendered by the prosecution was spared the wrath of this court”.

In the application, Mr. Agongo said: “The court dismissed our submission of no case and ordered us to open our defence in respect of counts 2, 4, 6, 7, 8, 9, 10, 11, 12, 21, 25, 26 and 27, as, according to the court, the prosecution had proved the ingredients of the offences so charged in those counts and also because the case is a ‘sensitive’ one”.

“In order to arrive at its said decision, the trial court presided over by Justice C J Honyenuga (JSC), rejected and marked as rejects, exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75, being exculpatory evidence and which were police caution statements provided to the accused persons by the prosecution on the orders of the very same court and were tendered at the trial through the police investigator without any objection from the prosecution, on the ground that this court was wrong in admitting the said exhibits, as the said exhibits violated the hearsay rules of evidence”, Mr. Agongo argued.

“However,” he pointed out, “similar documents, also being police caution statements, tendered by the prosecution at the trial, through the same investigator, were, curiously not rejected but actually relied on by the said court in concluding that a case was made against us, for which reason, we needed to open our defence; and there was no explanation whatsoever as to why this court discriminated against us”.

For example, he cited: “Exhibits ‘69’ and ‘PP’ were police investigative caution statements obtained from the only farmers spoken to by the investigators during the investigations and were tendered through the investigator while the defence, on 11 March 2021, tendered exhibit ‘69’ in which the farmer confirmed that he found the Lithovit Liquid Fertiliser very good for young and old cocoa, the prosecution tendered exhibit ‘PP’ in which the other farmer complained that he harvested only 52 bags of cocoa after applying the said fertiliser instead of the 50 bags of cocoa he used to harvest and, as such, he did not find the fertiliser as good as the extension officers had claimed”.

He said, “while the court rejected the marked exhibit ‘69’ as ‘reject’, it preserved exhibit ‘PP’, which was tendered by the prosecution through the same police investigator, without any explanation”.

Further, he said, “another key evidence that was rejected by this court was exhibit ‘67’ tendered without objection on 1 March 2021 through the police investigator, which exhibit is also a police caution statement taken from Dr. Baah, the head of the Cocoa Health and Extension Division of Cocobod (CHED) at the time, who confirmed that, through a farmer perception survey conducted by CHED, farmers had expressed preference for the Lithovit Fertiliser that CHED had distributed to them, so, he asked that this be documented”.

“Also rejected by this court and marked as ‘reject’ is exhibit ‘63’, a police caution statement obtained from the then-Chairman of the Board of Cocobod, which was, again, tendered without objection through the police investigator on 1 March 2021, wherein the said Board Chairman had confirmed to the investigators that all purchases and contracts carried out at the material time, were approved by the Board of Cocobod and that all the necessary rules and procedures for the procurement of chemicals and fertilisers by COCOBOD, were strictly adhered to”.

“Again”, he mentioned that: “A vital piece of evidence rejected by this court is exhibit ‘75’, which is a handing-over statement made by the head of the investigative team at the Economic and Organised Crime Office (EOCO), the entity which commenced the investigations into the matter at the time when the investigations were being handed over by EOCO to the Ghana Police to continue, wherein the EOCO official confirmed that we (the applicants herein) knew nothing about the source of the sample of Lithovit Liquid Fertiliser used to conduct the first tests at the Ghana Standards Authority (GSA) and the Chemistry Department of the University of Ghana but that the only sample of the Lithovit Liquid Fertiliser picked from Cocobod’s warehouse jointly by the investigators together with the officers of Ghana Cocoa Board in my presence and used for a second test at the GSA, confirmed that the second sample tested was, indeed, fertiliser”.

Mr. Agongo continued: “This court also rejected and marked as ‘rejects’, exhibits ‘71’ and ‘72’ tendered through the police investigators on 15 March 2021 without objection, being police caution statements obtained from the head of the Material Science Department of the GSA, who were the persons who actually carried out the test on the second sample of Lithovit Liquid Fertiliser received from EOCO at the GSA and concluded that it was, indeed, a fertiliser; a material piece of evidence which the trial court has now put beyond our use at the trial by the singular act of marking same as ‘rejects’ at the submission of no case stage while finding that the prosecution has proved that we had sold adulterated fertiliser to COCOBOD”.

He stressed that “the exhibits rejected and marked as ‘rejects’ by this court at the submission of the no case stage were police caution statements relating to key matters, were exculpatory in nature and their rejection by the trial court at this stage without having [accorded] us the opportunity to be heard before doing so, has, no doubt, prejudiced our case and hampered our ability to make any meaningful defence to the charges we face at the trial”.

“I am advised by counsel, and I verily believe the same to be true that this court could not have come to the conclusion that the prosecution had proved the offences so charged without curiously rejecting and marking as ‘rejects’, exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75”.

He added: “I am further advised by counsel, and I verily believe the same to be true, that this court exceeded its jurisdiction by acting contrary to constitutional and statutory provisions when it rejected exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75 on the ground that they offended the hearsay rules when those exhibits were, in fact, tendered with the consent of the prosecution signified by the prosecution not objecting to their tendering and, therefore, an exception to the hearsay rules”.

He continued: “I am, again, advised by counsel, and I verily believe the same to be true, that this court exceeded its jurisdiction by acting contrary to constitutional provisions when it unfairly, capriciously, discriminately, and prejudicially purported to apply the hearsay rules only against the accused persons in not rejecting the police caution statements tendered by the prosecution, which were similar in character to exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75 at the trial”.

“I am further advised by counsel and I verily believe the same to be true, that the court acted erroneously and contrary to statutory provisions in rejecting exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75, which were, otherwise, admissible, as an exception to the hearsay rules being police caution statements taken by investigators during their official duties in investigating this matter, thereby, exceeding its jurisdiction”.

“I am advised by counsel and I verily believe the same to be true that for this court to have to reject exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75 in order to be able to come to the conclusion that we have a case to answer, means that the said court failed to exact the appropriate burden of proof from the prosecution contrary to the constitutional and statutory provisions”, Mr. Agongo indicated.

“I am advised by counsel and I verily believe the same to be true that a fair-minded trial court in a criminal matter must be interested in evidence that [inures] to the benefit of an accused person and not seek to capriciously put such evidence beyond the use of an accused, as this court had done in rejecting and marking as ‘rejects’, all these documents, to the effect that we cannot rely on them in our defence at the trial”.

The businessman noted: “I am advised by counsel and I verily believe the same to be true that when this court, presided over by Justice CJ Honyenuga (JSC) suo moto decided to reject the exhibits, all of which had been admitted at the trial with the agreement of the prosecution, in not objecting to their being tendered, the said court ought to have given the accused persons, including the applicants herein, a hearing on the matter prior to making a decision, which the said judge failed to do”.

In his view, “for the trial court on its own to exclude all the exculpatory evidence without giving us a hearing is clearly and assault [on] our constitutional rights to fair trial and against the rules of natural justice, and, as a result, disqualifies the said trial judge from continuing with the further conduct of the proceedings in this matter”.

He noted: “While this court did not explain what it meant by saying in its ruling that because the matter is a ‘sensitive’ one, we should open our defence, I am advised by counsel and I verily believe the same to be true that the sensitivity of a criminal case is not a legally recognised ground on which to call upon an accused person to open a defence in a criminal matter and to that extent, the trial judge has shown that he is clearly being influenced by extrajudicial considerations in this matter”.

Mr. Agongo said, “apart from having unlawfully excluded those exhibits, as this court did, this court, in its ruling of 7 May 2021, also made sweeping, definitive, final and conclusive findings against us, the applicants, at the stage of submission of no case, to answer as though the said ruling was the final judgment of this court after a full trial when the said court was yet to hear us; demonstrably leaving no room in this court’s mind for the statutory reasonable doubt that we are required to raise, as to our guilt on the charges laid against us”.

For instance, quoting from page 54 of that ruling, Mr. Agongo said Justice CJ Honyenuga (JSC) stated that: “…All these were perpetuated to facilitate the 2nd and 3rd accused’s [applicants herein] business and defraud COCOBOD. Indeed, these acts were all perpetuated to facilitate and intentionally, voluntarily, to aid the 2nd and 3rd accused [applicants herein] to perpetrate fraud on COCOBOD by supplying a different product from what was tested approved …

However, the 1st accused, although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused [applicants herein] to defraud COCOBOD… there was no way COCOBOD would have been defrauded of such huge amounts”.

“I am convinced beyond any doubt that with the above categorical and determinative statements made by Justice CJ Honyenuga (JSC) even before we could be heard after he found ways of putting very vital evidence that would have assisted us to raise any doubts as to our guilt beyond our use at the trial by marking them as ‘rejects’, at the submission of no case stage, we [applicants] stand no chance before him, no matter what manner of evidence we adduce before the said court, for all practical purposes, our fates are sealed and any further trial proceedings before the same judge will just be an academic exercise.