Feature Article : "The views expressed here are those of the authors and do not necessarily represent or reflect the views of Modernghana.com."

The Supreme Court has spoken. All five judges of the highest court in the land have said that everything that Justice Abban did on the 18th of June was candid, truthful, fair, non-arbitrary and an excellent model of judicial good behaviour. I disagree and set out the reasons why I think this to be so. As we shall all see, the approach the judges have taken has implications for all of us. Why? Judges at Supreme Court level set precedents and standards for the whole system. What they say is good behaviour impacts on all of us and will do so long after Tsatsu is dead and gone.

The core of the SC decision

The core of the judgment by all five of the judges is to be found in the following sentences:

On each occasion that the learned trial judge adjourned the matter, she was simply exercising her discretion to manage cases before her as effectively as she deemed necessary. On 18 th June 2008, therefore, and on each previous return date, (including the 27 th October 2006 – word inserts by Kwame Mfodwo ) the Applicant ought reasonably to have anticipated the possibility of the judge declining to grant any further adjournments and going ahead to deliver her judgment because, at all material times, the matter was entirely within the discretion of the learned judge. From the record, it is our view that she did not exercise this discretion capriciously, arbitrarily or otherwise unlawfully, the absence of Applicant's counsel notwithstanding.

Note the matters that the SC lays emphasis on:

1. On each occasion

2. Simply exercising discretion to manage cases as effectively as deemed necessary

3. Tsatsu ought reasonably to have anticipated the possibility of the judge declining to grant any further adjournments and going ahead to deliver her judgment

4. At all material times, the matter was entirely within the discretion of the learned judge

5. Tsatsu should have had no expectations of justice or that the judge would keep her earlier promises

Exercising discretion also comes with duties. Article 296 of the Constitution deals with these duties. But we can wait awhile before coming to Article 296. It is useful to get a sense of the kind of judicial conduct that the Supreme Court was really passing judgment on and giving approval to.

Justice Abban's actual promise to Tsatsu

On the 27 th October 2006 Justice Abban made the following promise to Tsatsu in open court. It is this promise that Tsatsu has been relying on and which the Supreme Court now says is completely irrelevant. Once the appeal moved to the Supreme Court, she then extended that promise to the Supreme Court through her conduct and also through explicit judgments which state that she is adjourning the case until the Supreme Court rules on IFC matters.

Justice Abban said:

Since the outcome of the decision of the Court of Appeal will have a bearing on the final outcome of this case, and in order that there will not be any mistrial or miscarriage of justice, I will grant the application of learned Defence Counsel and await the final decision of the Court of Appeal.

This then is the overall impression she created in the mind of Tsatsu and his lawyers. Over the next two years, she was to deepen and consolidate that impression – indeed we can accurately say that she generated a strong expectation which became the dominant framework in which everybody was handling things – everybody on all sides knew they were waiting for the Supreme Court judgment. Reading the words of Justice Abban above, Ghanaians clearly need to ask:

Was Justice Abban using the language of justice or the language of good case management?

Deepening and consolidation of Justice Abban's promise - events after the 27th of October 2006

Other events which consolidated the impression that Justice Abban was waiting for the Supreme Court's /IFC judgment and which the Supreme Court in its judgment completely fails to address or argue away are: Continued    Source: Kwame Mfodwo

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Other Articles by Kwame Mfodwo