Some witnesses who testified on behalf of the state in the GHS271-million financial loss case involving the former CEO of the Ghana Cocoa Board (COCOBOD), Dr Stephen Opuni; businessman Seidu Agongo and his firm, Agricult Ghana Limited, are refusing to mount the witness box again, as the case starts afresh, the prosecution team has told the court.

On Tuesday, 25 April 2023, the prosecution team prayed the court for more time so they can convince the witnesses to come forth.

“My Lord, this is because most of our witnesses who testified before are not willing to testify again”, the prosecutors said.

“One of them also said he is on retirement and, so, he can't testify and that, in the last time he testified during the time of the previous judge, he spent almost two years in the box. My Lord, it is, therefore, our prayer that you give us more time to talk to them”, the prosecution prayed.

The defence team did not oppose the prayer of the prosecution team.

The judge, thus, granted the prosecution’s prayer and adjourned the case to 7 June 2023.

Upon the retirement of 70-year-old Justice Clemence Honyenuga – who heard the case for five years – and the expiration of an additional six-month extension of his mandate by Chief Justice Anin Yeboah, a new judge was assigned to the case.

On 4 April 2023, the new judge, Justice Gyimah, decided to start the case anew since, in his 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".

“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 new judge asked.

“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 indicated.

“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 noted.

“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 bedeviled 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", he acknowledged.

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 said.

However, the Attorney General has prayed the Court of Appeal to quash Justice Gyimah's decision to start the case de novo.

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

The AG 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”.

The appeal would be heard on 3 May 2023.