Dr Stephen Opuni has filed a motion to get Justice Aboagye Tandoh off the ongoing GHS217-million trial, citing “real likelihood of bias” on the part of the judge–the third to sit on the nearly six-year-old case.
The former chief executive officer of Ghana Cocoa Board filed the application on 27 October 2023.
Dr Opuni (the first accused person) who is being trialled together with businessman Seidu Agongo and the former’s company, Agricult Ghana Limited, on 27 counts, 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, avers that the current judge has exhibited conduct that shows he cannot be a fair arbiter in the matter, and, thus, wants him to recuse himself from the case.
Among other things, Dr Opuni averred in his affidavit in support of the recusal motion: “I state that the conduct of the trial judge, particulars of which are contained hereinabove, leads to only one conclusion; which is that: I will not be given a fair trial, as he has been very unfair to me by way of not only seeking to intimidate and embarrass my counsel but further that he intends to rush through the trial and thereafter convict me”.
The recusal hearing was billed for 13 November 2023, but Justice Aboagye Tandoh used his “discretion” to abridge the returning date to Wednesday, 1 November 2023, much to the chagrin of the former President of the Ghana Bar Association, Mr Benson Nutsukpui, who had, in previous sittings, accused the judge of introducing “alien” and “totally unknown” practices into the matter.
Justice Tandoh ordered the court registry to serve the second and third accused persons with the recusal motion by the end of the day when Mr Nutsukpui told the court on Monday, 30 October 2023, that his side had not been served.
However, Mr Nutsukpui tried to draw the attention of Justice Tandoh to consider the practice where the parties in a case are given three days to respond to such applications, but the judge stood his ground.
“Even the three clear days have been denied us?” Mr Nutsukpui quizzed, to which the judge declared: “I have exercised my discretion”.
Read below, excerpts of Dr Opuni’s affidavit in support of his recusal application:
That I state that at least I should have had an opportunity of knowing the proceedings which the trial court claimed to have adopted. I was, however, denied this opportunity and was given no opportunity to verify the proceedings which the trial judge claims to have adopted. The trial judge adjourned the matter to the 27th and 29th days of July 2023 for continuation of the case.
That I state further that the trial judge in giving these said 40 (forty) continuous dates when the case will be heard, does not give us the times when the proceedings will end on these hearing days and takes several breaks (which he terms as health breaks) at his own pleasure. The result is that his conduct has made it impossible for my legal team to plan their calendar.
That I state that this order of unilaterally fixing the court dates particulars of which are contained above was most surprising to me in that on all the days that I have been to the trial judge’s court, dates in all cases are not imposed unilaterally by the same trial judge, and in all cases the trial judge confers with the lawyers before he gives dates. I add further that there has never been an occasion where the trial judge has given adjournments in his court in the way he did particulars of which are contained in his order of the 12th day of October 2023.
That on the said 26th day of October 2023, the court was packed and the trial judge adjourned almost all of the cases before him, however what I noticed was that before any adjournment was done, he conferred with all Counsel in their respective cases before he gave the adjourned dates. Some of these dates were periods extending between 2(two) to 4(four) weeks. I state specifically that in respect of a case involving one Adonteng, (which was incidentally the last case before my case was called) the trial judge adjourned the suit to the 20th and 21″ days of November 2023.
That when my case was called on the said 26th October 2023, my Counsel before moving the application informed the trial judge that all Parties in the suit together with their counsel had agreed on dates for the hearing of the case for the past 3 (three) years. These dates include the agreed date of ending proceedings between 12.00-12.10pm on Thursdays to enable both my Counsel and the representative of the Attorney General to appear in another case (Republic vrs Ernest Thompson & 4 ors) which was also being heard by his Lordship Justice Kwofie JA (sitting as additional high Court) in the High Court (Criminal Court 5).
That I state that the conduct of the trial judge particulars of which are contained hereinabove leads to only one conclusion which is that I will not be given a fair trial as he has been very unfair to me by way of not only seeking to intimidate and embarrass my counsel but further that he intends to rush through the trial and thereafter convict me.
That I state further that the conduct of the trial judge in consciously adjourning cases before him on all dates that I have appeared before him whilst insisting on hearing my case till very late in the day if juxtapose with his conduct of not giving me adequate time for the preparation of my case to the extent that my counsel had to truncate his submission before him to attend another court in breach of the earlier agreed set time for the hearing is further evidence of bias against me by trial judge.
That I state that by the provisions of Article 19 (2) (g) of the 1992 Constitution, it is constitutionally required that I be afforded the same conditions as that given to the Prosecution. However, the conduct of the trial judge in unilaterally imposing dates without any consideration whatsoever has not only breached my constitutional rights, but has created a nightmare scenario where some of the dates and times unilaterally imposed by trial judge has made it impossible for my lawyers to be present, in that, they had earlier taken the same dates in their prior cases.
That I state further that the trial judge has discriminated against me and has not exhibited the same conduct when giving dates in his court in any other cases. This I state is a further breach of the constitutional provision in the exercise of discretion as provided in Article 296 of the 1992 Constitution and this is a further act of bias.
That I state that this act by the trial judge is being done to prejudice my case by ensuring that my counsel will not be available on the dates and more specifically on Thursdays and Fridays when he is aware that those days have been reserved for the past 3 (three) years for Justice Kwofie who is his senior in the aforesaid Ernest Thompson case.
That I state that this being a criminal trial for which I can suffer the ultimate punishment, which is deprivation of my personal liberty, it is important that I should at least be afforded the same facilities as was afforded the prosecution, this unfortunately is not being done by the trial judge who has by his conduct in court exhibited not only real likelihood of bias but also open hostility toward me including embarrassing my Counsel in open court particulars of which are stated above will result in failure of justice in my case if the trial judge is to continue with the hearing of the case. That I state that based on the above, it is only fair and just that trial judge recuses himself from further hearing of the suit as he will be bias against me.