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Opinions Wed, 10 Dec 2008

Why The Procedure Leading To The Conviction Of Mr. Tsikata Was Sound In Law

By Lawyer Kofi A. BOAKYE

The trial of the former boss of GNPC Mr. Tsatsu Tsikata has elicited various responses from the public and this reached its zenith when the trial judge found him guilty of the charges preferred against him and sentenced him to a term of imprisonment.

In a recent article, one commentator lambasted the Supreme Court for its refusal to uphold an application brought before the Court by Mr. Tsikata to quash the judgment of the trial judge. The author alleged that the Supreme Court had never in its history witnessed such political manipulations as presently pertains under the Npp government. To the author, the case of Mr. Tsikata constitutes a classic example of the judiciary being subjected to political control resulting in outrageous decisions. Having made such a damning statement of the courts, the author however woefully failed to demonstrate to readers why and how such a conclusion was drawn or arrived at.

The Supreme court was castigated for offering spurious reasons in support of its decision to refuse the application of Mr Tsikata. However before anyone makes such critique, it is imperative that the decision of the court is assessed as like any judgment of a court of law by time tested measures. This would involve a review of the applicable laws, previously decided cases and opinions of learned authors on the subject area. Only then would a critique and its conclusions whether in support or against be said to be proper. An appraisal based on emotional effusions, clouded with political bias, and without recourse to legal principles would only set us back in our development as a nation. Consequently it is humbly submitted that whenever decisions of our courts come up for discussion, we must go to the law and find out whether or not the decision is sound in law. To do otherwise is only to set back the clock of progress. After all one does not measure the time set by a 100 metres runner using a scoring points system applied in a boxing match. Consequently my honest plea is that decisions of the court must be criticized using the right parameters and not unproven and wild allegations of political manipulations.

According to the author, the Supreme court opined that Mr. Tsikata ought not to have been surprised by the decision of the trial court to render her judgment on that fateful day. To the author, it is most ridiculous of the august court to expect Mr. Tsikata to be able to determine beforehand a position which he can only attain by literally going into the head of the trial judge. But really ought Mr. Tsikata to have been surprised or was he really surprised?

STAY OF PROCEEDINGS. Criminal trial is governed by the Criminal Procedure Code of 1960. Section 169 of Act 30 gives the trial judge general discretion as to whether or not to adjourn a matter. The court in deciding whether to adjourn a matter or not takes into account various reasons and arguments made to it by the prosecution and the defence. If for example the prosecution keeps asking for an adjournment to begin prosecution without any good reason, the defence may ask the court to strike out the whole case and a court may so oblige the defence. However in all matters the court must guard against allowing adjournments to be used to either delay or frustrate a trial.

In the matter under discussion, the prosecution and the defence (ie the Attorney-General and Tsatsu’s lawyers) had called and led their witnesses in evidence and each side had had the opportunity of cross-examining the other party’s witnesses. Both parties had thereafter filed their addresses ie made their submissions to the court as why the accused ought to be convicted or declared innocent of the charges preferred against him.

At this juncture, the trail judge adjourned the matter for its considered opinion ie judgment. Now we must realize that by law the trial judge if she was really out to imprison Mr. Tsikata as some would want us to believe, could have given her judgment immediately after addresses of both the prosecution and defence were brought to her attention and proceeded to declare Mr. Tsikata guilty and read her reasons later. This would have been in accordance with the law. Alternatively the trial judge could have refused Mr. Tsikata’s bail application at the commencement of the trial and save a higher court granting him bail he would have remained in custody throughout the duration of the trial. Again this would have been a fair exercise of her judicial discretion. However the trial judge did neither of these. Indeed during the trial she had stayed proceedings to enable the Accused prosecute two interlocutory appeals all the way to the Supreme Court. In the face of all these occurrences some still fault the trial judge, allege political manipulations and accuse her of being intent on finding Mr. Tsikata guilty. The evidence available does not support such a position. I therefore beg to differ. What is apparent is that the trial judge at all stages ensured that the Accused had his day in court and was allowed to enjoy all legal avenues available to him.

When it was time for the trial judge to render her decision, by an application, Mr. Tsikata prayed that all proceedings in the court be stayed pending the outcome of an interlocutory appeal he had made firstly to the court of appeal and later to the supreme court.

As stated earlier the decision to adjourn is at the discretion of the judge. In this instance the trial judge in order not to carry out a miscarriage of justice decided to await the outcome of the interlocutory appeal to the supreme court.

The Supreme Court in its sittings, is regulated by Constitutional Instrument 16, of 1996. In civil matters section 20(1)&(2) provides that while an appeal to the court does not operate as a stay of execution or proceedings of a judgment or decision appealed against, an appellant in the court may however pray either the court below or the supreme court itself to stay execution of the judgment or decision appealed against or stay proceedings in the lower court altogether.

However under Part III which deals with the criminal jurisdiction of the Supreme Court, there is no such similar provision. Consequently on a strict application of the law, Tsatsu was not entitled to an order staying proceedings in the lower court.

However in legal practice principles of equity have been employed to cure defects or lapses in statute law. This is to ensure that justice is seen to be manifestly done to all parties. Consequently where the law has been seen to be deficient, lawyers have always invoked the inherent jurisdiction of the court to do justice to form the basis of such applications for a stay of proceedings.

However it is important to remember that whether under equity or in law, one must satisfy the court that the prayer for a stay of proceedings has been brought in good faith, and not to emasculate justice. In the matter under discussion the trial judge decided to stay proceedings in her court and await the judgment of the Supreme court in order not to occasion a miscarriage of justice to Mr. Tsikata.

Having made this decision, the hands of the judge became tied. Until the Supreme court delivered it decision, the court was disabled from hearing either party on any matter. Proceedings before the court could only resume either when the supreme court rendered its judgment or the trial court itself vacated its own order. Firstly it could be done when any of the parties brings an application specifically to vacate the order. Alternatively when a party who knows about the order staying proceedings disregards this and files a new application for whatever relief and the other side does not raise an objection to the hearing of the application relying on the order stayig proceedings but rather agrees and therefore participates in the hearing of this new application. In this case the parties by their own conduct have impliedly agreed to the vacation of the order staying proceedings.

Consequently when Mr. Tsikata filed a new application seeking leave to be allowed to call fresh evidence shortly after the court had adjourned proceedings before it in order to await the decision of the supreme court, this to me was a grave error in judgment on the part of Mr. Tsikata.

On the substantive application itself, it was within Mr. Tsikata’s right to bring it before the court. However since there was a stay of proceedings, the court could not have heard Mr. Tsikata on the date on which the motion came up to be argued. It could only do so if the order staying proceedings was deemed to have elapsed.

We must remember that one of Mr. Tsikata arguments, which was accepted by the court when it stayed proceedings before it, was that should the trial court proceed to give its judgment without waiting for the outcome of the interlocutory appeal pending before the Supreme court, grave injustice would be done to Mr. Tsikata. Therefore it was to protect Mr. Tsikata’s right to judgment that proceedings were stayed.

However when Mr. Tsikata brought his new application before the trial court in utter disregard of the order staying proceedings, Mr. Tsikata communicated in no uncertain terms that he was no longer interested in awaiting the outcome of the matter before the Supreme court. By this new or fresh step as lawyers would term it, he was waiving his right to have proceedings in the trial court stayed. This was a grave procedural error on his part. It is for this reason that the learned justices of the Supreme court opined that Mr. Tsikata ought to have reasonably anticipated that the ought to have anticipated and indeed known that the import of his latest application was that proceedings could go on in the trial court. Indeed as per Mr. Tsikata’s own admissions, but for the absence of his counsel he was prepared to pray the court to grant his the request to call fresh evidence. In this vein wherein lies the claim that the trial judge was bound by her own order to stay proceedings in the court. At the risk of sounding ad nauseam if that order was still in force, Mr. Tsikata’s lawyer could not have moved the application seeking leave to call fresh evidence. In the circumstances, ought Mr. Tsikata ought to have anticipated that proceedings could go on before the trial judge when he brought this ill-timed application.

Again it has been trumpeted that because Mr. Tsikata’s counsel was absent from court, the trial court ought to have adjourned the matter. Article 19(20(f) of the Constitution, 1992 provides that a person has a right to defend himself before a court of law either by him/herself or by a lawyer of the person’s choice. The trial court which is a court of record had on its record that Mr. Tsikata was being represented by a law firm. However it was Prof. Dankwa who had direct charge of the case. What this meant was that the appearance of Prof. Dankwa was an internal arrangement by the law firm representing Mr. Tsikata. Any lawyer from that firm could on any given day appear in court to defend Mr. Tsikata. To use a legal parlance the case was not a personal brief of Prof. Dankwa practicing as a solo practitioner or one-man lawyer . The application to call fresh evidence was going to be moved by the law firm for and on behalf of Mr. Tsikata. In the legal world this makes a lot of a difference and Mr. Tsikata himself and the law firm knew the import of this representation when they right from the commencement of the trial made the court aware that it was a law firm and not an individual who was representing Mr. Tsikata. If one signs an agreement for and on behalf of a company, it means that any designated officer can sign any such document and not necessarily the one who signed the first document. This is what it means when we say a person is being represented by a law firm and not a solo practitioner.

Secondly, whenever a party seeks to bring an application before the court, it is usually the party who after consultation with his lawyer chooses a date and applies/request the Registrar of the court to fix the case for hearing on that particular date. The trial judge has no hand in such matters because the judge would simply not know that a party wishes to be heard on a particular matter on a particular date. In most cases judges tend to know of such applications only when the docket is brought to their attention sometimes even on the very morning a matter is to be heard.

Consequently whenever a party fixes a date he and his lawyer must endeavour to be present in court. Should the party fail to do so, the law gives the judge power to decided either to adjourn the matter or strike it out for want of prosecution. In other words and as stated above adjournments are at the discretion of the trial judge. It may do so from date to day. However it was not to adjourn matters indefinitely. However all adjournments must be subject to the convenience of the court and not the lawyer or the party.

Therefore when the court sat to hear Tsikata’s new motion to call fresh evidence but Prof Dankwa was absent from court, it adjourned proceedings for the day. However the court records show that the trial judge advised Mr. Tsikata of its decision to adjourn the matter to enable another lawyer operating from the law firm to hold brief for the absent Prof. Dankwa. Court proceedings for the day further state that the trial judge advised Mr. Tsikata that should he fail to move his application to call fresh evidence at the next adjourned date, the court would proceed with the matter.

As it is notoriously known, Mr. Tsikata appeared in court at its next sitting without Prof Dankwa or any lawyer for that matter. He also seemed not to have taken the advise of the trial judge to engage a new counsel. Rather he repeated his previous excuse that his counsel was still indisposed and therefore prayed for an adjournment.

Clearly the trial judge cannot be accused of denying Mr. Tsikata his right to engage counsel. Having notified Mr. Tsikata of its intention to proceed in the matter, it was incumbent on Tsikata to get his lawyer to either turn up and move the application to call fresh evidence or get a colleague to conduct the case on his behalf or engage a new lawyer altogether. When Mr. Tsikata failed to do any of these, the trial judge was within her powers to ask the accused person to either move the application or have same struck out for want of prosecution.

At this stage it is important to note that most parties to law suits have time without number used the absence of counsel to secure an adjournment. While the sins of counsel must not be visited on the party, it is clear from the proceedings that Mr. Tsikata was afforded an opportunity to have himself represented by a lawyer but failed to do so.

A little side-tracking…..The trial judge has been lambasted by the free tsatsu movement over this matter but on the fateful date and as has always been the case, Mr. Tsikata had come to court in the company of “sympathetic” lawyers. These lawyers always sat at the Bar, offered tips now and then but never spoke directly to the court. Could they in the pursuit of justice not have intervened as a “friend of the court” a practice done by lawyers on a daily basis in court especially when a party is without counsel or to offer a third opinion to a trial judge in the teeth of strong arguments from lawyers involved in a particular manner?

When Mr. Tsikata failed to heed the advise of the trial judge and rather asked for an adjournment, the trial judge rightly requested that he conduct his own case. A request not unknown to our law. The trial judge had even pleaded with Mr tsikata that by reason of his training as a lawyer and a former lecturer in law he was more than capable of moving the motion before the court. Yet he chose not to do so. It is interesting to note that he has since personally represented himself in that court as well as the Supreme Court following his conviction.

When Mr. Tsikata seemed not ready to argue his application or be heard on it, the trail judge in accordance with our rules of procedure proceeded to strike out the application. At this stage what else was left for the court to do than to deliver its judgment since proceedings had resumed.

We must remember that as at the date the trial court decided to stay proceedings, the prosecution as well as the accused had closed their respective cases and made their submissions to the trial court. At this stage the only protagonist left with an act to perform was the trial judge. Neither counsel for the prosecution nor the accused had any further act to perform. It is therefore preposterous to accuse the trial judge of erring because the judgment was delivered in the absence of counsel for the accused.

In conclusion I wish to state that it is important to note that each and everyone has the right to assess the rightness or wrongness of any professional or amateur. However in doing so we must use the rights tools in making the assessment. Resort to wild and unproven allegations would not advance our development as a nation.

It is my humbly request that making allusions to political interference, corruption etc without any basis whatsoever without making any attempt at justifying these claims would not enable us to progress as a people. We must strive for the truth and objectivity at all times. Other countries have done so and progressed. Why can’t we do likewise.

Columnist: Boakye, Kofi A