Quash Court of Appeal's decision - Counsel

Accra, June 6, GNA - Professor Emmanuel Victor Oware Dankwa would on Wednesday, June 20, move an application at the Supreme Court praying it to invoke its supervisory jurisdiction on the basis that the Court of Appeal erred in law in dismissing an application against his client, Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation, on April 28 2006.

On that day, the Court of Appeal dismissed Counsel's application for criminal proceedings in an Accra Fast Track Court to be stayed, pending the final determination of an appeal against a ruling of the Court below, on the International Finance Corporation's (IFC) immunity from the Courts of Ghana.


On June 20, therefore, Counsel's application filed on Thursday, June 1, would urge the Supreme Court to quash the judgment delivered by the Court of Appeal against his Client now standing trial at the Fast Track Court, because in Counsel's view, the Court had no jurisdiction to give the ruling it gave.


In a nine-ground application, Counsel stated that the Court of Appeal, having duly recognised that the right of the accused person to have a witness called, was embodied in Article 19(2)(g) of the Constitution of the Republic of Ghana, was wrong to decide that the right of the applicant under that provision is "subject to equal right of immunity of that witness [IFC] not to be ordered to appear in court to testify", a right under the Constitution cannot be made subject to, or even equal to, a right under subsidiary legislation. Counsel stated further that the Court of Appeal went beyond its jurisdiction in deciding on matters that were to be decided in the appeal itself rather than in the application for stay that was before the Court.


According to Counsel, statements made by the Court that: "what the trial judge did, was what any diligent judge of good sense, could have done in the circumstances. She did all that justice required of her. She did not act arbitrarily" (p8) and "she was therefore right in refusing to order the Corporation to appear in Court to testify" (p9), and that "the trial judge was therefore right in refusing to compel the International Finance Corporation to testify in that Court" (p.11) were all conclusions the Court had no jurisdiction to reach. The Court also disregarded the Evidence Decree, 1975, NRCD 325, the statute that regulates how a court determines matters relating to a claim of immunity in a court.


Counsel said the Court of Appeal seriously erred on the face of the record when it claimed that it did not see how the applicant could suffer irretrievable mischief because the applicant had not urged upon the Court that he stood to "loose any property if he should win his appeal" since loss of liberty is what in a criminal trial an accused is at risk of and the denial of the right to obtain that attendance of a witness for the defence could affect the liberty of the applicant. Denial to the applicant of a fundamental human right to a fair trial by itself is an issue involving "irretrievable mischief" to the applicant and it was a clear and serious error on the face of the record for the Court of Appeal to claim that he should have urged "that he stands to lose property".

Counsel stated that the Court of Appeal again seriously erred on the face of the record in deciding there would be another remedy available to the applicant - namely Certiorari, to quash the ruling - if he were to win the appeal. It was patently unreasonable for the Court to reach this conclusion as it failed to consider that the appeal could be heard after the defence had been compelled to close its case in the Fast Track High court.


Counsel also stated that a case relied on by the Court of Appeal, namely Republic v. Committee of Inquiry (R.T. Briscoe (Ghana) Limited) Ex parte R.T. Briscoe (Ghana) Limited [1976] 1 GLR 166 C.A. was wrongly relied on since that case involved a commission of inquiry whose findings, by themselves, could not lead to a loss of liberty. Neither in that case nor in any of the other cases cited by the Court of Appeal were all the "special circumstances" justifying a stay of proceedings exhaustively listed and the Court of Appeal seriously erred on the face of the record in regarding the circumstances in those cases as the only ones which could qualify as "special circumstances" enabling a stay of proceedings in the Lower Court to be granted. Indeed, none of the other cases involved criminal proceedings.


Counsel further said the Court of Appeal had no jurisdiction to refuse the application on the basis of a possibility of "chaos" and the "fate of the trial" being rendered "indefinitely uncertain" when no evidence had not been put before it to this effect.


The Court of Appeal embarked on speculation instead of deciding on the facts presented in the application that was before the Court. In the proceedings before the Court of Appeal the Attorney-General did not file any affidavit in opposition to contest the facts recounted in the affidavits of Mr Tsikata, including the fact that his case would be prejudiced by a stay of proceedings not being granted while no harm would be occasioned to the Prosecution if the stay were granted. Prof Dankwa said as was recognised during the proceedings in the Court of Appeal, and, as is well known, "when there is no affidavit in opposition to an application of this nature this is taken to be an admission of the facts as recounted in the affidavits of the applicant". Counsel stated also that a claim of the denial to an applicant of a fundamental human right to a fair trail under the Constitution constituted a "special circumstance" warranting a grant of a stay of proceedings before the trail court. Failure to grant a stay would enable the continued denial of the fundamental human right and may endanger the liberty of the applicant and it was a serious error of law on the face of the record for the Court of Appeal not to apply the provisions of the Constitution in exercising its discretion in respect of a stay of proceedings.


Concluding, Prof Dankwa submitted that it was a serious error on the face of the record for the Court of Appeal to decide that "the order made by the trial judge refusing to compel the International Finance Corporation to testify, which the Applicant considers to be wrong or erroneous, is like a misdirection in proceedings" as this involved a failure to apply the fundamental human right of the accused and also amounted to a determination of the appeal which the Court of Appeal had no jurisdiction to do at that stage.

On the basis of all these serious errors of law on the face of the record, Counsel would seek from the Supreme Court an order that the Court of Appeal's decision be quashed.


Furthermore, counsel would pray that, based on the facts presented in the affidavits of his Client, the proceedings in the Fast Track High Court be stayed pending the hearing of the appeal which was imminent.


Tsatsu is standing trial before the Fast Track High Court on three counts of "wilfully causing financial loss to the State" and one count of "intentionally misapplying public property".


Upon an application on his behalf under Section 174(2) of the Criminal Procedure Code, Act 30 the trial judge ordered the Country Director of the International Finance Corporation (IFC) to appear in Court to testify and to produce documents on matters which related to the issues on which the Accused was being tried.


Subsequently, Counsel appeared on behalf of the IFC and claimed that the IFC was an international organisation that had immunity. Reference was made by Counsel to subsidiary legislation, Legislative Notification 9 of 1958 issued by command of the Acting Governor-General.

The Attorney-General, leading the Prosecution, associated himself with the position of Counsel for the IFC.


On behalf of Tsatsu, Counsel argued that the provisions of the subsidiary legislation did not grant immunity to the IFC or to its Country Director from appearing in the suit to testify and produce the requested documents.


The Trial Judge gave a ruling upholding the immunity of the IFC Country Director by reference to a provision of the Legislative Notification 9.


Counsel for Tsatsu immediately requested the Trial Judge for the IFC itself to be ordered to appear to testify.


Counsel for the IFC argued that as the IFC could not come to court to testify except through its officers the previous ruling should still apply.

The Attorney-General again associated himself with this position. Counsel for Tsatsu argued that the IFC, as a corporate body, was distinct from its officers.


The Trial Judge held that it would be an action in futility" to issue such an order on the IFC itself in view of the earlier ruling she had given and, accordingly, refused to make an order directed to the IFC.


Counsel for the Accused filed an appeal against both rulings of the Trial Judge.


An application for stay of proceedings before the Trial Judge was dismissed on the grounds that the High Court did not have jurisdiction to entertain such an application.


Counsel for the accused then brought the application for stay before the Court of Appeal, which delivered its ruling dismissing the application.