Tsatsu flexes his legal brain again

- Challenges constitutionality of court which ruled against him Monday, July 04, 2005 -- AFTER LOSING out on a review of a Supreme Court's earlier decision ordering him to open his defense at the Fast Track High Court (FTC), the former Chief Executive of the Ghana National Petroleum Corporation (GNPC), Tsatsu Tsikata is challenging the Chief Justice on the constitutionality of the court that upheld the Court of Appeal's decision on the criminal proceedings brought against him.

According to Tsikata, the Supreme Court that sat and determined his appeal on November 8, 2004 was not properly constituted, so its decision was null and void and of no effect.

The former GNPC boss noted that four justices were empanelled instead of five as the 1992 Constitution dictated.

In a writ issued on June 30, 2005 against the Chief Justice and the Attorney General at an Accra High Court, he is claiming that the Supreme Court was not “duly constituted for its work” in accordance with Article 128(2) of the 1992 Constitution, when it dismissed his appeal.

“The court had to be properly constituted by not less than five Supreme Court justices to undertake its work that day,” Tsikata emphasised, adding that Justice Alan Brobbey, after the initial sitting of the court, did not sit to take part in the deliberations of the court on the issue before it, as he had ceased to be a member of the court on being appointed Chief Justice of the Gambia.

Tsikata is seeking a declaration of the court that the purported judgement of the Supreme Court on November 8, 2004 that upheld the Court of Appeal's decision against him in a criminal proceeding, is null and void.

He is further seeking an order of the court, restraining the defendants, their agents and servants from taking any steps based on the purported judgement.

In his statement of claim, the former GNPC boss noted that the court that gave its decision was empanelled with Justices William Atuguba, Sophia Akuffo, Georgina Woode and (Prof.) Modibo Ocran as the judgement duly signed by them with the exception of Justice Alan Brobbey, who was on the panel at its initial sitting on July 7, 2004 but later took an appointment as Chief Justice of the Gambia at the time the Supreme Court sat on November 8, 2004.

The former CEO of GNPC indicated that Justice Brobbey assumed duty and left the country shortly after the Supreme Court of which he was a member, further sat on his appeal on July 28, 2004 and set October 27, 2004 for its judgement.

Tsikata further noted that on October 27, 2004, when the Supreme Court was expected to give its judgement on his appeal, his counsel was called into Chambers and informed that the court had not “heard from” Justice Brobbey so the case was again adjourned to November 8, 2004.

The plaintiff is questioning a reading of Mrs Justice Georgina Woode on November 8, 2004 of a purported statement of concurrence with the majority decision supposedly from Justice Brobbey, who had then assumed the Chief Justice role of the Gambia.

According to Tsikata, Justice Brobbey's purported statement of agreement with the majority decision in his absence could not assuage the defect of the Supreme Court not being duly constituted.

In view of the foregoing circumstances, plaintiff contended that Justice Brobbey could not be in office as Chief Justice of the Gambia and at the same time as a panel member in the Supreme Court of Ghana.

Tsikata therefore held that Justice Brobbey could not lawfully provide a statement of concurrence or dissent, in respect of the determination of his appeal brought before the Supreme Court.

Tsikata is standing trial at the FTC, on three counts of causing financial loss to the state and one count of intentionally misapplying public property by illegally guaranteeing a loan of 5.5 million French Francs from Caisse Francaise de Developement, a French company, to Valley Farms, a limited liability company.

He is further accused of using a total of ¢20 million belonging to the company for acquisition of shares in the French company, when he was in office.

Valley Farms, subsequently defaulted in the payment of the loan. As a result, GNPC settled the debt, when it was requested to do so, prosecution alleged.

Tsikata who has pleaded not guilty to all the charges, is on a ¢700-million self-recognizance bail as he questioned the unconstitutionality of a person being held criminally liable for something, which was not an offence at the time it was done.