Supreme Court rules on Tsatsu's suit on Monday

Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation (GNPC) will on Tuesday, 27 May, seek the Supreme Court's ruling in a case in which he is challenging the Chief Justice's legal authority to empanel 11 judges to sit on the review of the constitutionality of the Fast Track Court (FTC).

The five-member panel of the court, presided over by Mr. Justice A K B Ampiah announced the date at its sitting on Wednesday after listening to submissions from Tsikata's counsel and the Attorney-General, who has been joined to the suit. The other members of the panel were Mr Justice George Acquah, Mr Justice Williams Atugubah, Ms Justice Sophia Akuffo and Mr Justice George Lamptey.

Professor Emmanuel Victor Oware Dankwa, counsel for Tsikata argued that a true and correct interpretation of Article 133 (2) of the 1992 Constitution does not provide any constitutional requirement to empanel 11 justices of the Supreme Court to hear a review of its decision by a nine-member panel.

Counsel stated that except in the case of a decision by a panel of five judges of the Supreme Court, there is no requirement for the Chief Justice to add two additional justices to hear an application for the review of the court's earlier decision.

Prof Dankwa submitted that the 10 January, 2001 Practice Direction of Mr Justice Edward Kwame Wiredu, Acting Chief Justice (as he then was), should be declared null and void since it contravened Articles 128 (2) and 125 (4) of the 1992 Constitution.

On the appointment of one more judge to the Supreme Court to bring its number to 11, counsel contended that there was neither a constitutional requirement nor a judicial practice for the Chief Justice to empanel a large bench other than the nine-member panel who sat on the original case.

Counsel argued that in view of the clear interest shown by the Chief Justice that his dissenting view in the suit should become the majority decision upon the review, the empanelling of two additional judges would not only be "a way of increasing the chance of a reversal of the majority decision", but would also be a violation of Article 296 of the Constitution.

Prof Dankwa referred to a press release issued on 11 March 2002 by the Minister of Information and Presidential Affairs on the appointment of Mr Justice Kwame Afreh which, he said, sought to enable the Chief Justice to meet the requirement to empanel 11 judges instead of the nine who heard the original case.

Counsel contended that Mr Afreh's appointment "does not confer on him a constitutional right to sit, where practicable and especially in constitutional cases, or on the review as the Information Minister's statement seemed to suggest."

Replying, Nana Addo Dankwah Akufo Addo, Attorney-General and Minister of Justice stated that the said Practice Direction in no way contravened Articles 128 (2) and 125 (4) of the Constitution. Nana Addo submitted that Article 125 (4) "gives the Chief Justice the discretion administratively to empanel judges to sit on cases in the Supreme Court.

Article 128 (2), he said, "provides that the Supreme Court shall be duly constituted for its work by not less than five justices of the Supreme Court, while Article 133 (2) also provides that when reviewing its decisions, the Supreme Court, shall be constituted by bot less than seven justices."

Counsel argued that since the import of those provisions is that to carry out its work, the Supreme Court shall be duly constituted by five judges or more, empanelling all available judges where practicable, cannot be said to be contravention of Articles 128 (2) and 125 (4) of the Constitution.

Nana Addo stated that in view of this, the Practice Direction could not be a fetter on the discretion of the Chief Justice, because it was to be resorted to only where practicable, and to only "serve as a guide to enable him to exercise his discretion in appropriate cases when and where practicable."

He argued that since the power or right to empanel judges to sit on a case have by convention, use and practice become the exclusive preserve of the Chief Justice, he is always dutybound under Articles 128 (2) and 133 (2) of the Constitution to increase the number of judges on a review panel.

This, counsel recounted, had been the practice in the Supreme Court since the coming into force of the 1992 Constitution, adding, "review panels have always been increased, at least, by the addition of two more judges."

Nana Addo cited instances in previous cases, and said, in the case of Nana Kofi Tabiri versus Nana Oppon-Gyarbeng at the Supreme Court on 26 February this year, two additional judges were added to the original seven-member panel to hear the review application.

It is clear that it is a constitutional requirement and accepted practice to add more justices of the Supreme Court to the original panel that sat on the case when it comes to a review application." For this reason, counsel saw Mr Justice Afreh's appointment to enable the requirement of adding to the original panel on review to be met as not only perfectly constitutional, but as also conforming to accepted practice in the Supreme Court.

Earlier, the court overruled a preliminary objection raised by counsel for Tsikata against the panel on the grounds that since the Chief Justice was the defendant in the case, he would be wrong for him to empanel the court. The court, however, deferred its ruling on another preliminary objection raised by counsel as to why the Attorney-General should defend the Chief Justice, to 27 May.