Mr Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation (GNPC), says the Accra High Court trying him for wilfully causing financial loss to the State has no other legal option than to acquit him.
He said in view of the admissions made by the Prosecution and new evidence that had been adduced as the trial proceeded, there was no legal basis for his trial to continue.
This is contained in a 'motion on notice for taking of further evidence' that he has filed at the Court, which would be moved on Tuesday June 17, 2008.
The motion seeks an order granting leave for the Defence to "call further evidence in this case and upon the evidence being heard for Counsel for the parties to be heard in respect of the legal effect of the further evidence adduced".
The Ghana News Agency on Saturday, published the motion and the accompanying affidavit following what the Agency said was a large number of 'Legal Practitioners and Law Students' calling for copies of the document.
Read Tsatsu's arguments below
"IN THE SUPERIOR COURT OF JUDICATURE IN THE FAST TRACK HIGH COURT ACCRA
SUIT NO. FT CR3/2002
AFFIDAVIT IN SUPPORT
I, Tsatsu Tsikata, do make oath and say as follows:
1. I am the accused person in this case and have been charged on four counts.
2. The first three counts allege that I wilfully caused financial loss to the State and the fourth count alleges that I intentionally misapplied public property.
3. In the opening statement of the Director of Public Prosecutions at the trial, he indicated the Prosecution would be proving that financial loss was wilfully caused and that public property was intentionally misapplied by me.
4. In the closing arguments of the Attorney-General also, after the Trial Judge closed the case of the Defence and asked Defence to address Her Lordship, the Attorney-General submitted that there had been financial loss caused.
5. The Attorney-General even claimed, falsely, that upon an appeal to the Supreme Court upon refusal by courts below to uphold a submission of no case by Counsel on my behalf, the Court in both the majority and minority judgments, had determined that there was a loss caused by me and he, therefore, claimed that the matter had been settled since, obviously, the Supreme Court is a higher court than the High Court.
6. In fact, the Supreme Court made no such determination but rather stated clearly in the judgment of majority, which is reported in the Supreme Court of Ghana Law Reports [2003-2004] Volume 2 page 1068, as follows, among other statements: "But the larger questions remain as to whether there was a financial loss to GNPC as a result of the acts complained of by the prosecution; and whether such loss, if any, was occasioned by any acts wilfully done by the appellant as the then Chief Executive of that Corporation. It is important to re-emphasize that the responsibility of this Court at this stage is simply to determine whether prima facie evidence has been led on such matters" (at p. 1102).
7. Then, at p. 1108, the Majority also went on: "We disagree with the submission by the Director of Public Prosecutions in his statement of case to the effect that because GNPC is a State institution funded by State resources, repayment of the loan to Caisse Francaise upon the default by Valley Farm is ipso facto 'a loss to the State and a drain on the national coffers.' The Prosecution would need to establish more than this in order to secure an actual conviction in court under this statute".
8. As far as the dissenting judgment is concerned, that judgment was to the effect that there was no basis for me to be called upon at all and made it clear that loss had not been established by the Prosecution and that there was so much exculpatory evidence even from prosecution witnesses, making it unjustified to call upon me to open my case.
9. As part of the case for the Defence, Counsel has, on my behalf, sought to have the Country Manager of the International Finance Corporation, part of the World Bank Group, come to court to testify in this case and to produce relevant documents in view of the role an organization of the IFC, the Africa Project Development Facility (APDF), played in respect of the financing of the project on account of which charges have been brought against me.
10. After the trial Judge initially granted the subpoena request she subsequently, upon hearing Counsel who appeared on behalf of the IFC, as well as the Attorney-General argue that the IFC was immune from the jurisdiction of the courts of Ghana, decided that she could not order the IFC to appear in court.
11. Counsel appealed to the Court of Appeal on my behalf against this decision and has further appealed to the Supreme Court against the decision of the Court of Appeal in which statutory provisions on the International Monetary Fund (IMF) were used as the basis for a decision according immunity to the IFC!
12. In the Supreme Court, during the hearing of the appeal in respect of whether the IFC has immunity from the jurisdiction of the High Court, the Republic has explicitly admitted in court documents and in oral submissions before the Supreme Court that the Republic is not contesting the viability of the investment that has been made in Valley Farms.
13. The Republic has explicitly said that there is no dispute between the respondent and the appellant over the viability of the project and made reference to its own, witness PW 1, the Managing Director of Valley Farms, citing passages in his evidence which my Counsel had cited in his submission of no case and which make it clear that the project is not only viable but also profitable.
14. These admissions of the Republic were not made in the proceedings in the Fast Track High Court and are not currently part of the record of those proceedings.
15. Indeed, if at the hearing of the submission of no case by the trial Judge, there had been such admissions by the Prosecution and reliance by the Prosecution on the very evidence of PW1 that my Counsel relied on, the trial Judge would have had no option but to acquit me at that stage.
16. If the admissions now made before the Supreme Court had been made in the previous Supreme Court hearing of the appeal in respect of the submission of no case, the Supreme Court also would have had no option but to acquit me.
17. Such important and relevant admissions having been made in the course of the further proceedings, it is necessary that they now be made a part of the record of the proceedings in the High Court.
18. I am advised by Counsel and verily believe that the admissions estop the Republic from claiming that there has been a loss occasioned by my conduct.
19. My Counsel, upon the evidence of these admissions being taken, will seek leave to make legal submissions which will establish that the trial Court is legally left with no other option than my acquittal.
20. It is in interests of justice that the evidence of the admissions made by the Republic as above indicated should be given in this trial.
21. Counsel has applied, on my behalf, for a record of the proceedings in the Supreme Court and this record will be put in evidence before the trial Judge.
22. Wherefore I swear to this affidavit in support of the application herein (end text).