20.06.2008 Politics

Tsatsu’s Conviction Stirs Debate

20.06.2008 LISTEN
By Daily Graphic

The conviction of Tsatsu Tsikata, by the Fast Track High Court has generated exciting discussions among the legal fraternity, with the general consensus being that the trial judge did not offend the law.

Tsikata, former Chief Executive of the Ghana National Petroleum Corporation (GNPC)was jailed five years for willfully causing financial loss to the state.

Those who thought nothing untoward had happened argued that the judicial precedent had been that a pending appeal at the superior court did not serve as a stay of proceedings, while even when a court had given a decision, it was required by the rules to review it.

However, the few who thought that the judge had erred argued strongly that since the outcome of a pending appeal could affect a substantive matter, it was the norm to stay proceedings to await the outcome of the pending appeal.

A cross-section of lawyers whom the Daily Graphic spoke to following the court's conviction of Tsikata, in spite of the pendency of his interlocutory appeal at the Supreme Court, gave divergent opinions, with those who disagreed with the judge's decision to give judgement adding a political twist to the whole trial.

To them, the independence of the judiciary had been whittled away to trample on the rights of litigants, especially those accused of crimes against the state.

Lawyer Paul Nkuah Gyapong stated that interlocutory appeal, as in the case of Tsikata's, was not an automatic stay of proceedings, saying that for a trial court to be stopped from proceeding, special circumstances that warranted the stay should be canvassed.

He said it was within the discretionary power of the court to do what it did by pronouncing judgement when an interlocutory appeal was pending at the superior court.

“If a judge genuinely realises that a party in litigation or an accused person is relying on tactics to unduly delay a trial, the court can choose to ignore the proceedings in the superior court to go ahead with the substantive matter,” he said.

According to Lawyer Yaw Oppong, an application for stay of proceedings had to be made in the trial court and when that had been refused, the aggrieved party ought to apply to the superior court to have the proceedings stayed. Unfortunately, that was not done in the instant case.

He said even if the trial judge had pronounced earlier on that she was adjourning the matter to await the decision of the superior court, that was not a matter of law.

Mr Oppong cited Mosi v Bagina, in which the Supreme Court held that a judge could set aside his or her own judgement because it was a nullity as it was unwarranted by any rule of law or procedure, explaining that in the instant case what the judge was reported to have said was on the same principle.

To him, the law of causing financial loss to the state ought to be repealed because there was nothing in the 1992 Constitution which gave room for its enforcement.

Mr Willie Amarfio also said an appeal did not operate as a stay of proceedings and corroborated the assertion that a judge could rescind her earlier decision.

He said the substantive matter had been closed and attempts to get witnesses had failed, saying the appeal and the fresh motion by Tsikata was a ploy to delay the trial because the question of the International Finance Corporation (IFC) testifying in the matter had also been closed.

Lawyer Haruna Iddrisu, the Member of Parliament for Tamale South, had, on Metro TV's Good Morning Show, described the court's decision as a show of disrespect to the court structure because there was a matter pending before the superior court for which a date had been fixed for the ruling.

He said legally it was acceptable for notice of judgement to be given to enable the parties to know when a judgement would be given, more especially in a criminal trial where the accused person must be given every opportunity to avail himself or herself of all the processes to defend himself or herself.

“Judicial precedent is important in Ghanaian law so what happened has set a precedent for the future,” he noted.

A senior lawyer who did not want to be named described the court's action as unprecedented and a travesty of justice.

“There is no justice in Ghana. What happened is wrong, period!” he said.

Another lawyer said she believed what had happened was a blow to human rights and that until all the remedies had been exhausted, a lower or trial court could not go ahead to deliver its judgement, since what would happen at the superior court could have an impact on the decision.

According to her, should the Supreme Court decide in favour of Tsikata, the lower court's judgement would be set aside for the fresh evidence to be taken and embodied in the judgement.

Tsikata, who was on Wednesday convicted and sentenced to five years' imprisonment for causing financial loss to the state, had a brush with the law when, in 2002, the state charged him with three counts of wilfully causing financial loss of about GH¢230,000 to the state through a loan he, on behalf of the GNPC, guaranteed for Valley Farms, a private cocoa producing company, and another count of misapplying GH¢2,000 in public property.

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

Tsikata pleaded not guilty to the charges and was granted a self-recognisance bail.

But last Wednesday he was found guilty on all the four counts and sentenced to five years' imprisonment each to run concurrently.

He has since filed a notice of appeal and in his grounds of appeal, he said the trial judge erred in law in deciding that financial loss was caused because payments had been made by the GNPC.

He said the judge relied on a discredited prosecution witness to pass the sentence and also considered extraneous materials for the proceedings, claiming that he had been a member of the PNDC government which passed the law on causing financial loss to the state, a matter on which no evidence was led by the prosecution.

According to him, the judge further erred in pronouncing judgement when she had previously stated that she was awaiting the decision of the Supreme Court on whether or not the IFC should be made to testify in the case.

He said the judge showed bias in the conduct of the trial and particularly in relation to her decision to give judgement when no notice had been served that judgement would be given on Wednesday, among others.

Story by Stephen Sah

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