Supreme Court was properly constituted -AG, CJ
The Attorney General (AG) and the Chief Justice (CJ) have stated that the Supreme Court was properly constituted when it heard the appeal filed by Tsatsu Tsikata, the former Chief Executive of the Ghana National Petroleum Corporation (GNPC), in respect of his trial at the Fast Track High Court.
They said by virtue of Article 157(3) of the 1992 Constitution, Mr Justice S.A.Brobbey, who was on secondment to The Gambia did not withdraw from the panel and did not become 'functus officio' until he delivered his opinion for inclusion in the judgement.
“The court was duly constituted when it heard the appeal and there is no constitutional requirement that all the judges must sit in open court to deliver their opinions,” they said.
These were contained in a statement of defence filed by the Attorney General in the suit filed against him and the Chief Justice by Tsikata at the Accra High Court seeking a declaration that the Supreme Court's 4-1 decision of November 8, 2004 on his submission of 'no case' was null and void.
The defendants said it was a long-standing practice of the court, particularly in view of Article 157(3) of the Constitution, to announce the judgment or decision of the court, even if all the judges who participated in the hearing were not present, provided they had made known their opinion.
Tsikata is also seeking an injunction to restrain the defendants, their agents, servants and assigns from taking any step based on that purported judgment.
According to the statement, the judgment of the Supreme Court on the matter was not a purported order but its valid and subsisting judgment.
“The defendants say that Mr Justice Brobbey expressed his opinion on the matter before the court and it was on account of this that the decision of the court, as pronounced by the presiding justice, came to a majority 4-1, meaning the appeal failed and was dismissed,” the statement said.
They stated that under Article 130(1) of the Constitution, the Supreme Court had exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution.
Consequently, the court should stay proceedings and refer the question on whether or not the Supreme Court was duly constituted when it heard Tsikata's appeal to the Supreme Court for determination under Article 130 (2) of the Constitution.
According to the defendants, Tsikata was not entitled to any relief as was being claimed by him.Tsikata argued, among others, that the court's judgement was null and void because at the time that it was delivered,the Supreme Court was not properly constituted.
Tsikata's contention was that in that appeal,the Chief Justice empanelled five justices of the Supreme Court, including Mr Justice Brobbey, then on secondment to The Gambia as Chief Justice, to determine the case.
“With the departure of Justice Brobbey to assume duty as Chief Justice of The Gambia, to the knowledge of the first defendant, it was incumbent on him, by virtue of Article 125(4) of the 1992 Constitution, to ensure a panel of five Justices of the Supreme Court for the hearing and determination of the appeal,” he said in his statement of claim.