No IFC, No Fair Trial - Tsikata's Counsel

Counsel for Tsatsu Tsikata on Monday told the Court of Appeal that if the International Finance Corporation (IFC) was not allowed to testify in Tsikata's trial, a valuable testimony which would enable the court to do justice would be unavailable to deny him a fair trial.

Major R. S. Agbenato (Rtd) said just as evidence and documents from other agencies, such as Agence Francaise de Development and the Merchant Bank, which testified at the instance of the defence, threw clear light on the roles of those banks and of various individuals, evidence from the IFC would throw light on who did what and lead to justice being administered in his trial.

He said neither the provisions of the statute under which the IFC operated in Ghana, the International Bank, Fund and Finance Corporation Act, 1957, nor the subsidiary legislation issued there under, Legislative Notification 9, 1958, granted to the IFC or to its Country Director immunity from appearing in the suit to testify and produce the requested documents.

Counsel was making submissions at the Court of Appeal in the appeal filed by the former Chief Executive of the Ghana National Petroleum Corporation (GNPC) who is challenging the Fast Track High Court decision not to let the IFC appear and testify in the case in which he has been accused of causing financial loss to the state.

He wants the IFC to also produce documents in its custody in respect of the funding studies conducted on the Valley Farms project.

The lower court, presided over by Mrs Justice Henrietta Abban, Justice of the Court of Appeal with additional responsibility as a High Court judge, on January 24, this year, ruled that making an order for the IFC as a corporate body to testify and produce relevant documents would be an exercise in futility.

Following that, Tsikata filed an appeal at the Court of Appeal asking it to stay proceedings but his application was thrown out, prompting him to go to the Supreme Court, which has fixed July 19, 2006 to determine whether the IFC and its employees could testify in the case.

In the substantive case, Tsikata has been charged with three counts of willfully causing financial loss of about ¢2.3 billion to the state through a loan he, on behalf of the GNPC, guaranteed for Valley Farms and another count of misapplying public property.

Valley Farms contracted the loan from Caisse Francaise de Development in 1991 but defaulted in the payment, compelling GNPC, which acted as the guarantor, to pay it in 1996.

Major Agbenato said having regard to the roles played by a number of banking institutions, including the IFC, in undertaking technical and economic studies of the project and giving a positive evaluation of it to potential investors, it was an appropriate exercise of good business judgement for Tsikata to authorize, on an agreed basis, asset managers holding assets on behalf of the corporation (GNPC), of which he was Chairman and Chief Executive, to make an investment in the project.

“The best evidence about the role of the IFC can only come from the IFC itself and the defence has to be afforded facilities for obtaining the attendance of IFC to provide that evidence, which is exactly what the court did in issuing the order,” he said.

He said no official of the IFC was being accused, by the order of the court, of any wrongdoing nor being subjected to legal process for anything they had done, adding that “criminal charges have been brought against the accused, not the IFC or any of its officers or governors”.

Major Agbenato said the provisions of Section 8 of Article VI of the IFC Articles of Agreement, which were incorporated in the LN 9, granted immunity to the governors, directors, officers “from legal process with respect to acts performed by them in their official capacity...” but there was no issue in the case regarding acts performed by the current country director in her official capacity.

He said the issue related to work done almost 20 years ago, some of which were not even by governors or officers but by consultants, such as the company engaged by the IFC to undertake technical studies on the project, High Value Horticulture.

The claim by counsel for the IFC that the IFC could not appear in court was trite knowledge, explaining that a corporate body was a separate legal person from individuals and that corporate bodies acted through their officers, who also had their own legal personality, he explained.

He said even if it were the case that individual employees of IFC had immunity under Article VI Section 8, that did not mean that IFC too had immunity.

“The plain words of the statute governing IFC's existence in Ghana indicate that the IFC is a body which can sue and be sued in its own name, making it separate from its governors, directors, etc, in exactly the same way that the Commission on Human Rights and Administrative Justice (CHRAJ) was a separate legal person from individual commissioners and officers,” he said, and added that the fact that the IFC could be sued was an acknowledgement of it being subject to judicial process, such as being subpoenaed.

“Indeed, it will be absurd if the IFC were subject to a writ of summons but not to a writ of subpoena,” he emphasized.

In his ground for appeal, the appellant stated that the trial judge misconstrued the provision in the Legislative Notification (LN) 9, 1958 Schedule, Article VI Section 8 of the IFC Articles of Agreement to be applicable to the current country director of the IFC, when testimony being sought by the defence to be provided for the court, including the documents requested, did not concern the acts the said country director performed in his official capacity as the director.

According to him, the judge erred in failing to recognize and enforce his fundamental human right, expressed in Article 19 (2) (g) of the 1992 Constitution, “to obtain the attendance and carry out the examination of witnesses to testify”.

He further stated that the judge erred in failing to appreciate that no violation of the archives of the IFC would be occasioned by an order of the court for testimony and documents in respect of the Valley Farms project.

The appellant argued that the judge erred in failing to appreciate the fundamental legal distinction between the IFC as a corporate body and its governors, directors and other staff and that she failed to appreciate that the International Bank, Fund and Finance Corporation Act, 1957 Section 5 differentiated between immunities of the IFC, on the one hand, and those of its governors, directors and other staff, on the other.

He said the judge erred in holding that based on her decision regarding the immunity of governors, directors and other staff of the IFC in respect of the order she made, it would be “an exercise in futility” for an order to testify and produce documents to be issued addressed to the IFC.

Meanwhile, the prosecution, in response to the submission, contended that the court should reject any attempt by any party to seek refuge in Article 19 (2) (g) of the Constitution whose import was to ensure a fair trial.

It, therefore urged the court to give its blessing to the decision of the lower court in respect of the matter before it, that the IFC was immune from the court process.
Judgement has been fixed for October 18, 2006.