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Tsatsu’s Sisyphean task

Tsatsu Tsikata.png Lawyer Tsatsu Tsikata, affiliate and legal counsel to the National Democratic Congress

Fri, 19 Feb 2021 Source: Dr. Samuel Adjei Sarfo, Esq.

I wonder what the end-game of Mr. Tsatsu Tsikata is, counsel for Petitioner in the ongoing elections petition. Is he trying to pile up billable hours or just engaging in vexatious litigation or just legal showmanship?

Too many greedy lawyers, money is the end all and be all, and if they are not going for a flat rate with their clients, then they are billing and computing every hour on the job and milking the lawsuit for their sole monetary benefit. And so the more these rogue lawyers loaf around and pretend to work, the more money they earn and the healthier their bank accounts.

Here in Texas, the average fee in a divorce case may well be $250 per hour, and so if you can get this fee ramped up to hundred hours, that will end up being a very significant amount in total fees. I don’t know the prevailing rates of lawyers in civil suits in Ghana. Maybe Ghc200 per hour?

About this method of billing for hours worked, there is a prevailing joke here in Texas of a lawyer who charged his client substantial billable hours for having sex with her. That client initiated the sex act all right, but she had no intention to gratify this lawyer’s sexual prowess with a fee. Rather, she had a possible rebate in mind. But surprisingly to her, she found herself billed for the sexual service. That unintended consequence brought the lawyer a lot of trouble!

Instead of these billable hours, a lawyer’s fee could also be flat rate. Here, the client has a firm ceiling of what he or she is bargaining for and does not need to grapple with the unforeseeable consequences of an overcharge. That kind of arrangement leaves everybody safe and secure, and not caught up in any unpleasant surprises.

There is also the contingency fees which subsist on the lawyer winning the case. Whereas the aforementioned hourly rates will be paid whether a lawyer wins or loses a case, the contingency fees, mostly applied in personal injury cases, depend on the outcome of the case. A lawyer gets paid only when the client wins the case.

Note that criminal cases do not qualify for the contingency scheme of fees. For all these other cases not based on contingency, don’t go and hire a lawyer and thereafter demand your fees because you lost. In civil and family or criminal cases, a lawyer’s fee is earned whether s/he wins or loses.

In any case, it is part of legal ethics for a lawyer to do only the needful to resolve his client’s matter, not to engage in a panoply of motions and arguments and procedures or applications whose outcome will neither benefit a client nor even advance his or her interest. If a lawyer is merely engaging in all these aforementioned posturing just to ramp up a client’s fees, that will implicate ethical misconduct which can lead to investigations and possible refund of fees and other sanctions. A lawyer’s fiduciary trust regarding his client is also tied up in his charging of reasonable fees.

Applying all the foregoing to Mr. Tsatsu Tsikata’s representation of former Pres. Mahama, it appears that the Petitioner’s lawyer is merely engaging in legal prestidigitation and sleight of hand to squander and waste his client’s resources with very frivolous motions and applications whose outcome is pretty much a foreseeable defeat.

First, there was a motion for interrogatories which was denied. Then, there was a review of that application which was also denied. Thereafter, there was an application for admission which was also denied. And then there was an application for production which was also denied. But all the foregoing constitute Discovery requests which could have been filed together in one transactional action even if only for judicial economy.

Elsewhere in civil suits, Discovery Requests are filed together with the lawsuit. And so why file these motions separately and piecemeal unless you are engaging in some sort of heehaw advocacy in order to ramp up the client’s bill.

And why even attempt to file a review for motions denied by 7-0? You file for a review where there is a split decision of say 4-3 with seven judges constituting the jurists. Often, a review is not even tenable with a 5-2 majority decision in this particular context. It is a mathematical improbability to take such cases to the review stage. Taken how these decisions go, for one to imagine that one can sway judges who have just given one a 7-0 defeat by merely adding two or more judges discards the reality of review outcomes.

The logic here being that no matter how many times you multiply zeroes, you end up with one zero! And so for Tsikata to even imagine filing for any review for a motion lost on a unanimous decision makes him incompetent, except that he may just be ramping up billable hours for his client to pay; or merely engaging in a very profitable gamesmanship, or he is very gainfully clueless or adamantly stupid or virtually insane.

Elsewhere, he should be investigated for wasting his client’s resources. Or the court itself should devise a way to stop these frivolous motions and applications by this vexatious litigant and his counsel. Again what is the end game? And who benefits from all these theatricals except Tsatsu Tsikata who is feeding his bloated ego while profiting on the side?

In this particular lawsuit, the Petitioner lost before he even began, and this matter should have been long non-suited or dismissed on its face. Petitioner’s counsel began by arguing about the insufficiency of the timelines, which was strange. This is because all petitioners naturally wish for a fast and expeditious trial to procure justice. But in this peculiar instance, expedition became objectionable to the Petitioner. That was indeed ironic.

Then when it came to the question of Discovery itself, there was this obvious sense that the Petitioner was trying to engage in fishing expedition. All these showed a lack of adequate preparedness and obvious absence of any real and cogent evidence for the Petitioner to prove his case.

By the time the Petitioner’s witnesses finished their testimonies, it became obvious that the Petitioner had no case or no evidence to back up his assertions; and that he came to court to present a concatenation of imagination, speculations, rumor mongering, hearsay and trite concoction and conclusory statements and empty assertions and sheer nonsense.

And whose burden is it to prove a case in a court of law? You don’t send a person to court on the presumption that he will help you to prove your case by cross examination, just as the Chief Justice opined when denying the Petitioner’s motion to reopen his case. It is a known legal mantra that the burden of proof is upon the Petitioner, and under no circumstances can this burden shift to the Respondent unless there is a scintilla of probative evidence supporting his original claim/s. Even then, a

Respondent may decide to testify, or when testifying, decide not to answer some questions, or if answering some questions, fail to give out certain pieces of requisite details on the basis of self-incrimination.

If the Respondent decides not to mount any witness box, it is up to the court to decide the case on the merits of the Petitioner’s case in chief as presented to the court. And if the evidence supports any of the issues or assertions by the Petitioner, the judge/s will deliver their rulings accordingly. It should therefore be another example in expeditious resolution if the Petitioner has indeed proven his case.

But here, what has Petitioner done so far to assert his case? What did his witnesses prove? And if his witnesses proved nothing, then why should the Electoral Commissioner mount the witness box to answer for nothing?

And is it too difficult for Petitioner’s counsel to understand this simple legal mantra? And so what is the whole ugly noises about the Electoral Commissioner having the public accountability to discharge his duty in a witness box? Where in her job description is she required to discharge such a duty in a witness box in a court of law? Or within an adversarial context, is she required to help a Petitioner win his case? Those who would like any information from the Electoral Commission may do so through any of the laid down procedures by which information could be civilly sought. Once you enter the court system, the adversarial system is triggered, and all that remains is for the process to proceed to determine the winner and the loser. Period!

Mr. Tsatsu Tsikata may well be the worst lawyer I now know, but to the extent that he is a law professor with many years of teaching a law course in the classroom, he cannot be all that dumb about all these enumerated facts. He definitely knew the outcome of the motion for review which he filed concerning the motion to reopen the case in order for him to subpoena the Electoral Commissioner to testify. He knew that this matter would not be reopened; and even if it was reopened, that the Electoral Commissioner would be within her remit not to testify.

For no matter what anybody says, the law is settled that a Petitioner’s case cannot be made on the basis of a Respondent’s testimony, just as Chief Justice Anin rightly stated. Making a motion to review this ruling was therefore a Sisyphean task with no hope of success.

And so unless Mr. Tsikata had the intention of duping his client and amassing wealth from him, there was no point in this application for review. In fact, there was no point in accepting this case at all to make a clown of himself and to file a panoply of untenable motions to tarnish his own image. Or to subject his personality under opprobrium.

Columnist: Dr. Samuel Adjei Sarfo, Esq.
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