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25.03.2006 Crime & Punishment

Counsel for Tsatsu applies to stay High court proceedings

By GNA

Accra, March 25, GNA - Counsel for Mr. Tsatsu Tsikata, Professor E.V.O. Dankwa, on Wednesday March 22, 2006, filed an application in the Court of Appeal seeking to stay the proceedings of the High Court, presided over by Mrs. Justice Henrietta Abban, an Appeal Court judge sitting as an additional High Court judge in criminal proceedings against Mr. Tsikata.

This follows a ruling on Tuesday, March 21, 2006 of Mrs Justice Abban, dismissing a similar application on the ground that the High Court has no jurisdiction to grant such a request. A statement issued on Saturday said the application to the Court of Appeal was to have the High Court await the decision of the Court of Appeal on the appeal filed by Counsel for Mr. Tsikata against rulings on February 6 2006.

The ruling by Mrs. Justice Abban was the granting of immunity to the International Finance Corporation (IFC) and its Country Director from having to testify in the proceedings about the role of the IFC in the Valley Farms project, which is the subject matter of the criminal proceedings.

It said the defence was contending that feasibility studies on the project were funded by the Africa Project Development Facility (APDF) managed by the IFC, which also produced an appraisal for potential investors.

According to the defence, these studies and appraisal formed part of the basis for decisions taken by the accused person, whilst he was Chief Executive of the Ghana National Petroleum Corporation in relation to investment in the project.

The statement said the defence had earlier obtained an order of the High Court requiring the Country Director of the IFC to come to court to testify, adding that this order was set aside by the trial judge, Mrs. Justice Abban when Counsel for the IFC appeared to claim immunity.

It said in an affidavit filed by Mr. Tsikata in support of the application by his counsel, Mr. Tsikata referred to the International Bank, Fund and Finance Corporation Act, 1957 which provided that the IFC may "sue and be sued" in its corporate name.

According to the affidavit, the IFC has initiated suit in the courts of Ghana and also been sued and examples of such cases were to be provided by counsel for Mr. Tsikata at the hearing of the application. The statement said the affidavit indicated that when an order was served on the IFC to give evidence, the Corporation could decide whether evidence would be given on its behalf by Governor, Director or other employees or a consultant that had worked on the relevant project. It said reference by the court to provision on immunities of governors, directors or other staff of the IFC could not, therefore, be used as giving the IFC itself immunity.

Mr. Tsikata also referred in his affidavit to a provision of Article 19 (2)(g) of the 1992 Constitution which provided "A person charged with a criminal offence shall...be afforded facilities to ... obtain the attendance and carry out the examination of witnesses to testify ..." which entitled him to the attendance of the IFC as a fundamental human right.

Her Lordship Mrs, Abban, according to the affidavit did not explain in her rulings why she should not enforce this constitutional right but should rather uphold the immunity of the IFC from testifying. Mr. Tsikata contended in his affidavit that the subsidiary legislation, which the judge relied on in her rulings could not take away a constitutional right, adding that, the judge's ruling had deprived him a right to a fair trial under the constitution.

It further claimed that the appeal had a good chance of success and that a stay of proceedings in the High Court pending the appeal which would determine whether the IFC could be called to testify was clearly in the interest of justice whereas not granting a stay was prejudicial.

Mr. Tsikata also stated in the affidavit that "the grant of a stay will occasion no harm as regards the conduct of these proceedings. On the other hand a refusal of a stay will disable the court from having the benefit of evidence from an organization which played a key role in raising finance for Valley Farms and whose role influenced decisions that I took.''

Hearing of the application had been set for April 24, 2006, the statement said.

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