Prof. Emmanuel Victor O. Dankwa, lead Attorney for Tsatsu Tsikata, a former Chief Executive of the Ghana National Petroleum Corporation (GNPC), on Monday told the Court of Appeal that the Country Director of the International Finance Corporation (IFC) could testify without compromising her official acts.
"The Country Director can give evidence about the transaction without any immunity in respect of her official acts being compromised," Prof. Dankwa said.
"She is not being made liable for anything whether done by her or by anybody in the IFC."
Prof. Dankwa made the submission on behalf of his client in a substantive appeal to order the IFC to testify and produce documents about the Valley Farms project.
The Court of Appeal unanimously dismissed on November 29 one of the two appeals before the Court of Appeal filed by Tsitaka that sought to order the IFC to be part of the substantive appeal.
Prof. Dankwa said there was obviously no immunity in respect of acts of consultants of the IFC and their reports and other documents, as recognized by the trial judge at the Fast Track Court (FTC). He said it was incumbent on the IFC to testify about the role, if any, of the previous Country Director if this was to be a matter they wished to rely on.
"In reality, there was no IFC Country Director in Ghana at the time as the IFC only opened an office in Ghana with a Country Director long after that transaction."
According to him, the evidence before the trial court was of consultants working for the APDF, which was the body directly involved in the transaction, saying a letter signed by one Wally Daniels confirmed no Country Director's role in question.
Prof. Dankwa stated that the APDF Consultants and other officials could be part of the legal process even on the argument of the trial judge, since they were not among officials of IFC who were covered by the provisions of Section 8 of Article VI of Legislative Notification (LN) 9.
"As such even if the current Country Director could not testify about acts of a former Country Director, he or she could testify about acts and reports of the APDF officials who worked on the project without compromising any immunity of officials of the IFC".
The Attorney submitted that even if it were right that official acts of previous IFC staff could not be the subject of evidence on a subpoena, the acts of the consultants who worked on the Valley Farms transaction as well as the APDF officials could be subject of testimony from the Country Director under the subpoena. Panel members are My Justice S.E, Kanyoke (Presidi ng) Mr Justice F. Kusi-Appiah and Mr Justice Annin Yeboah.
Tsikata is faced with three counts of charges at the FTC for willfully causing financial loss of 2.3 billion cedis to the state through a loan he, on behalf of GNPC, guaranteed for Valley Farms. He is also facing another count of misapplying public property.
Valley Farms contracted the loan from Caisse Fran=E7aise de D=E9v=E9loppement in 1991, but defaulted in the payment, compelling GNPC, which acted as the guarantor, to pay it in 1996.
Tsikata is charged with three counts of willfully causing financial loss of 2.3 billion cedis to the state through a loan he, on behalf of GNPC, guaranteed for Valley Farms and another count of misapplying public property.
Valley Farms contracted the loan from Caisse Fran=E7aise de D=E9v=E9lopment in 1991 but defaulted in the payment, compelling GNPC, which acted as the guarantor, to pay it in 1996.
In his submission, Prof. Dankwa stated: "A person charged with a criminal offence shall be afforded facilities to examine, in person or by his lawyer, the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the Prosecution".
He noted that the trial judge, for instance, took no evidence on the basis of which to hold that the process in respect of which the Country Director of IFC was required to testify and produce documents was an "official act" of the Country Director.
The Attorney said even if it were the case that official acts of the previous Country Director in his official capacity could not be the subject of testimony by the current Country Director, there was no bar to testimony about acts done by consultants for the IFC.
"In this case there would need to be evidence about the relationship between the IFC and the APDF and proof that the Country Director of the IFC indeed worked as a part of the APDF team on the Valley Farms project at the time to justify invocation of Section 8 of Article VI of LN 9, in respect of his acts", he said.
The Attorney said in the trial judge's ruling she presumed that the records of IFC on Valley Farms were in the archives and that those documents that were to be tendered were dealt with almost 20 years ago. "It could safely be presumed that they are inviolable as prescribed by Section 5 of Legislative Notification (LN) 9 of 1958", he said. He said the judge, in invoking a presumption to this effect as a substitute for evidence, acted in clear breach of the provisions of the Evidence Decree, which she was bound to apply. "There was no basis for the trial judge to make such a presumption."
Prof. Dankwa averred that the trial judge at the Fast Track Court erred in failing to recognize and enforce the fundamental human right of the accused person as expressed in clear mandatory language in Article 19(2)(g) of the 1992 Constitution.
He said the article was "to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution".
He said no IFC immunity was provided for in the Constitution and that the nature of the immunity of the IFC could not be put on the same pedestal as the immunity of the President.
Prof. Dankwa said the Act and the Legislative Notification, in which the provisions on immunity were contained, could not override the constitution.
He said the trial judge erred in failing to appreciate that no violation of archives of the IFC could be occasioned by an order of the court for the Country Director to provide testimony and produce documents in respect of the IFC role in the Valley Farms project. The Attorney said the presiding judge at the lower court erred in failing to appreciate that there was no evidence that any documents requested by the defence were in the archives of the IFC.
"The Country Director has the burden of producing evidence and satisfying the court on these preliminary facts under the Evidence Decree."
He said the judge erred in failing to appreciate that the grant of immunity by the court had made for the Country Director to come and testify was a denial of the right of the accused to a fair hearing under Article 19(1) of the Constitution".
Prof. Dankwa argued that just as the prosecution was able to call its witnesses, defence should also be given the chance for witnesses with relevant evidence to go and testify Mrs. Gertrude Aikins, Chief State Attorney, appeared for the Republic. Submissions continue on Tuesday, December 5. 5 Dec. 06