THE REPUBLIC VRS OPUNI (J3/01/2024) [2024] GHASC 37 (19 June 2024)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024

Coram

SACKEY TORKORNOO (MRS.) CJ (PRESIDING) OWUSU (MS.) JSC PROF. MENSA-BONSU (MRS.) JSC GAEWU JSC DARKO ASARE JSC

Criminal Appeal

NO. J3/01/2024 19TH JUNE, 2024

THE REPUBLIC ………. APPELLANT /RESPONDENT

VRS

1. STEPHEN KWABENA OPUNI RESPONDENTS/APPELLANTS

2. SEIDU AGONGO

3. AGRICULT GHANA LTD

Judgment

DARKO ASARE JSC:

1. My Lords, the fundamental question argued upon the hearing of this appeal is one of some considerable importance. It touches closely the question whether de novo proceedings are obligatory in criminal cases upon judicial reassignment, 2 | P a g e

and whether it const itutes a longstanding judicial practice that has been entrenched by precedent and can only be overturned by statute.

2. The appeal before us stem s from a judgment of the Court of Appeal wherein the learned Justices of Appeal reversed the trial court’s decision to commence the instant case de novo, following reassignment to the current trial Judge after the previous trial Judge’s retirement.

3. The facts germane to this appeal have been adequately set out in the judgment of the Court of Appeal, and we would only highlight the salient points necessary for the determination of the issues raised in this appeal.

4. At the criminal trial pending in the High Court, Accra, the Appellant a former Chief Executive Officer of Cocobod has been charged together with two others on various counts including abetment of crime, defrauding by false pretences and willfully causing financial loss to the state of Ghana. The trial of the Accused persons commenced in 2018, and a t the close of the Prosecution’s case, the trial court ruled that the Prosecution had established a prima facie case against the Appellant and the other accused persons in respect of most of the charges preferred against them, whereupon they were ordered by the trial court to open their defence. After a series of unsuccessful applications both before the trial court and the Supreme Court, the Appellant finally opened his defence.

5. During the course of the trial, the then presiding trial Judge proceeded on retirement and the case was reassigned to a different trial Judge. At that stage, the Respondent applied for the proceedings to be adopted and for the suit to take its normal course. This application was however vigorously resisted by the Appellant who urged the trial court to start the trial de novo. After hearing submissions by learned Counsel for the Parties, the learned trial Judge expressed himself as having found favour with the position taken by the Appellant. He directed that the case be started de novo. Obviously aggrieved and dissatisfied with the decision of the trial court the Respondent successfully lodged an appeal to the Court of Appeal.

6. The Court of Appeal upheld the Respondent's appeal, set aside the ruling of the trial High Court, ordered the trial court to adopt the proceedings so far 3 | P a g e

conducted, and continue with the hearing of the case. It is against the decision of the Court of Appeal that the Appellant has filed this instant appeal, inviting us to say that the decision was erroneous. He formulates the following grounds of appeal:-

a) The learned Judges committed an error of law when they held that the trial judge exercised his discretion wrongly when he ordered the case to be started de novo

Particulars of error of law

i) The settled practice in criminal law is that when a pending criminal case is assigned to a new judge, the judge is obliged to start the case de novo ii) Settled practices of the courts can only be changed by statute

b) The learned Judges erred when they held that in view of the fact that the case has been on the cause list since 2018, the exercise of the trial court’s discretion to start the trial de novo was not proper but arbitr ary, capricious uninformed and contrary to the policy rationale of Article 296 of the 1992 Constitution. c) The learned judges erred when they substituted the discretion if the trial judge to start the trial de novo with their discretion d) The learned judges co mmitted an error of law when they refused to follow the binding decision of the full bench of the Court of Appeal sitting as the Supreme Court in the case of Harlley v Ejura Farms [1977] 2 GLR 179 to the effect that settled practices of the courts can only be changed by statute

Particulars of error of law i) Article 129(3) of the 1992 Constitution states that the Court of Appeal and all lower courts are bound by the decision of the Supreme Court on questions of law e) The learned judges erred when they ordered the trial court to adopt proceedings on the grounds that the accused persons have a right to a speedy trial under the 1992 Constitution f) The learned judges erred when they disregarded the effect of the observation of the demeanour of witnesses in a criminal trial g) The entire ruling cannot be supported having regards to the evidence

7. Even though there was an indication to file additional grounds of appeal upon receipt of the trial court’s Ruling none was filed. 4 | P a g e

8. The relief sought by the Appellant was for a rev ersal of the judgment of the Court of Appeal and for the Ruling of the trial court to start the case de novo restored.

Consideration of Issues

9. As we proceed with this re -hearing, we recognize that the ground of appeal alleging that the Court of Appeal’s decision cannot be supported having regard to the evidence on record, requires us to undertake a comprehensive review of the entire record, in order to determine whether the judgment under appeal is justified by the evidence and the a pplicable law, before forming our own conclusions. See the succinct views of Francois JSC in the case of Appiah v. The Republic [1987 –88] 2 GLR 377 at page

381. See also Republic v Osei Kwadjo II [2007 -2008] SCGLR 1148 at page 1160, and Dexter Johnson v The Republic [2011] SCGLR

1. The view has long been held that to succeed, Appellant assumes the duty to properly demonstrate to this Court the lapses in the judgment under appeal, and to establish that there were certain pieces of evidence or materials on the record which, if applied could have changed the verdict in his favour, or that there are certain pieces of evidence or applicable principles of law, that had been wrongly applied against him, thereby occasioning a grave and substantial miscarriage of justice. See the views of Dordzie JSC in John Cobbina v The Republic [2019-2020] 2 SCLRG 506 at 517.

Arguments by Learned Counsel for the Appellant

10. Learned Counsel for the Appellant contests the judgment of the Court of Appeal first on the ground that the decision was erroneous because it failed to endorse a blanket mandatory practice of de novo trials upon judicial reassignment , regardless of circumstances or judicial discretion. According to learned Counsel the Court of Appeal fell into grave error wh en it relied on the principles applicable only to civil trials in the case of Agyemang (Substituted) by Banahene & Ors v Anane [2013 -14] 1 SCGLR 241, when it ought rather to have allowed itself to be bound by c ases like The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni – Civil 5 | P a g e

Motion No. J5/87/2022 dated the 24th January 2024, which decided that de novo trials in criminal cases had evolved into a binding settled common law practice, sanctioned by Article 11 of the 1992 Constitution. Citing cases like Harlley v Ejura Farms [1977] 2 GLR 179 , the argument was further advanced that being a settled judicial practice, de novo trials in criminal cases can only be overturned by statute.

11. Learned Counsel next contended that by reversing the trial court’s order for a de novo trial, the Court of Appeal had wrongfully interfered with the learned trial Judge’s exercise of discretion, since sufficient material existed on the record to justify the discretionary conclusions reached by the trial court. It was further argued by learned Counsel that the Court of Appeal erred by failing to accord proper significance to witness demeanour, a crucial factor in determining whether or not to order a de novo trial, as mandated by section 80 of the Evidence Act 1975, NRCD 323, and thereby committed a grave error . Finally, learned Counsel for the Appellant strenuously contended that the Court of Appeal neglected to peruse the entire record of appeal before handing down its judgment, and this constituted a grave error which rendered the judgment faulty.

Arguments by Learned Counsel for the Respondent

12. In response, learned Counsel for the Respondent generally argued in favour of the Court of Appeal’s judgment and said that the Appellant’s rigid characterization of de novo trials in criminal cases was grossly misconceived. According to learned Counsel for the Respondent the statements relied on by learned Counsel for the Appell ant in Ex Parte Stephen Kwabena Opuni (supra) and Harlley v Ejura Farms (supra) in support of the rigid characterization of de novo trials, were all obiter and lacked binding effect. Learned Counsel next disputed the Appellant’s contention that the interference with the trial court’s discretion was wrongful. According to learned Counsel for the Respondent the learned trial judge had fallen into egregious error by exercising his discretion on matters which were extraneous and irrelevant whilst failing to give due or sufficient weight to more cogent matters on the record. Learned Counsel for the Respondent next disagreed with the premium placed on witness demeanour as a device for assessing credibility and argued that it was only one of many factors stipulated under section 80 of the Evidence Act 1975 (NRCD 323) for assessing credibility, In any event so argued learned 6 | P a g e

Counsel, decisions such as Agyemang (Substituted) by Banahene & Ors v Anane (supra), now put it beyond doubt that witness demeanour is no longer a pivotal consideration for assessing witness credibility. Learned Counsel for the Respondent finally dismissed as completely misconceived, the argument that the learned Justices of Appeal had failed to peruse the record of appeal in its entirety, which therefore vitiated their judgment.

Consideration of Issues

13. Learned Counsel for the Appellant elected to argue grounds (a) and (d) together and we would likewise dispose of those grounds in the same manner.

GROUNDS (a) and (d)

14. Preliminary to considering the substantive merits of this limb of the appeal, we think it is necessary to dispose of a threshold issue, touching on the foundation upon which ground (a) has been anchored.

15. A close study of the particulars of errors of law accompanying ground (a) of the appeal suggests that the Appellant’s major cavil against the judgment of the Court of Appeal was founded on the allegation that it had reversed a decision by the trial court to the effect that de novo trials are obligatory in all criminal cases of judicial reassignment, without exception or consideration for c ontext or judicial discretion. But was that the position taken by the trial court which resulted in the appeal before the Court of Appeal?

16. This is what the trial court said with regards to de novo trials in criminal cases in its judgment dated the 4th of April 2023:-

“After having reviewed the above cases on the subject and bearing in mind the decision of the Supreme Court in Agyemang (Substituted) by Banahene & Ors v Anane (supra), which dealt with the civil case position, I see no problem why the reasoning of the Supreme Court in Agyemang (Substituted) by Banahene & Ors v Anane (supra), should not be applied mutatis mutandis to part heard criminal cases where the decision to adopt proceedings should be left at the discretion of the 7 | P a g e

judge and not tied to the agreement of the parties. I will therefore proceed on that tangent going forward” (emphasis)

17. It seems too plain for argument or dispute that the learned trial Judge was here saying that de novo trials upon judicial reassignment rested with the sole discretion of the trial judge. That was why the appeal lodged against the judgment of the trial court to the Court of Appeal, only assai led the manner in which the l earned trial judge had exercised his discretion in the court below. The appeal was certainly not directed at any pronouncement by the trial cour t to the effect that de novo trials are obligatory in all criminal cases after judicial reassignment. In effect the appeal before the Court of Appeal turned strictly on a question of improper exercise of discretion by the trial court.

18. On that score, it seems plain to us that the Court of Appeal properly appreciated the nature of the core issue raised in the appeal before it, when it commenced its judgment by the quite perceptive statement thus:-

“My Lords, this appeal is in a very narrow compass, bordering on interference with the exercise of judicial discretion”

19. In the course of its judgment the Court of Appeal revisited the same position in the following words:-

“Although the lower court correctly stated the principles that it has the discretion to either adopt or not to adopt the proceedings, it went off course and erred in the final analysis violating the duty to be fair and candid”

20. In the end the Court of Appeal reversed the Ruling of the trial court not because of any pronouncement by the trial court to the effect that de novo tr ials are obligatory in all criminal cases after judicial reassignment , but because the exercise of the trial court’s discretion to start the case de novo was “arbitrary”, “capricious” and “uninformed”.

21. Based on the above analysis, and inasmuch as both the trial Court and Court of Appeal concurred that de novo trials in criminal cases rest solely within the trial court's discretion, we are constrained to hold that the Appellant's ground (a) is predicated on a faulty legal premise, erroneously assuming that the C ourt of Appeal had reversed the trial court's endorsement of a blanket mandate for de 8 | P a g e

novo trials without regard to context or discretion. As ground (a) proceeds from a flawed legal basis, it is substantially deficient and without merit.

22. While our prior analysis could have supported a summary dismissal of ground (a) of the appeal, learned Counsel for the Appellant argued this point with such force and earnestness that we feel compelled to engage with the substance of this argument in recognition of his exceptional advocacy.

23. Now, intrinsic in learned Counsel for the Appellant ’s arguments in support of grounds (a) and (d) of the appeal, are two main propositions of the law. The first is that de novo proceedings in all pending criminal cases upon judicial reassignment, is reflective of an inflexible common law practice which was endorsed by this Court in the case of The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni (supra) and therefore became binding on the Court of Appeal. The second proposition is that being a settled common law practice, de novo trials of criminal cases can only be reversed by statute, as held in the case of Harlley v Ejura Farms Ltd (supra). These two propositions must be examined in turn.

Argument that de novo trials have now evolved into an Inflexible settled practice in criminal cases

24. Lying at the heart of this instant appeal is learned Counsel’s sweeping proposition that in a criminal trial, a partly heard case which for any reason cannot be continued by a trial judge hearing the matter has to be commenced de novo by a new trial Judge as established by binding precedents like the case of The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni (supra).

25. Learned Counsel summed up his arguments in his Statement of Case as follows:-

“We state that in criminal ma tters the established practice is for a new Judge to start de novo in cases where the trial Judge for any reason is unable to continue with the hearing of the case. This practice of the court has been followed by all courts and this is the existing position, which is also the common law position” 9 | P a g e

26. Now, since the gravamen of learned Counsel’s arguments in favour of a de novo trial appears to rest substantially on the binding effect of the Ex Parte Stephen Kwabena Opuni (supra), we think it is important to first address the issue, whether that decision constitutes a truly binding and precedential authority, crystallizing a long-held common law practice of de novo trials into settled law.

27. In the Ex Parte Stephen Kwabena Opuni case (supra) Dotse JSC referring to the earlier decision of this Court in the case of Awudome (Tsito) Stool v Peki Stool [2009] SCGLR 681, proceeded as follows:-

“The Supreme Court did not mention its application to the criminal cases. There is also no sp ecific legal provision on whether part heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo.”