In a spine-chilling ruling filled with landmines, a five-member panel of our Supreme Court served yet another bitter lesson to the public as to why justice is being "desecrated" in the Tsatsu Tsikata case. In a sense, the panel brutalized justice into a semicomatose state. The reasons the panel assigned for dismissing Mr. Tsatsu Tsikata’s certiorari application represent yet another sad chapter in the administration of criminal justice in our dear country. In fact, a criminal justice system that continues to adorn selective justice as a way of doing judicial business. However, we are not yet ready to give up on our judicial system that is supposed to be the backbone of our rights and privileges as citizens. We take solace in the truth that throughout history, justice has always had a miraculous way of rebounding after being brutalized by the very people who are supposed to be its messengers. And, in fact, it usually does so in grand style!
In formally analyzing this ruling and the reasons assigned thereto, it is imperative to recount the chain of events that led to Mr. Tsatsu Tsikata’s dramatic conviction. We are doing this so that the public would come to understand how, for some strange reason(s), justice was denied to a man unjustly convicted by a Court of Appeal judge (sitting as an additional High Court justice) and confirmed by a panel of the highest court of the land. That is truly scary! Very scary!
Now the true and unshaded facts:
On the 27th of October 2006, Justice Henrietta Abban, the judge who was trying Mr. Tsatsu Tsikata was ready to render her judgment. But before she could do so, Prof. E.V.O. Dankwa, Mr. Tsatsu Tsikata’s lawyer drew her attention to the fact that there was an appeal pending before the Court of Appeal against her ruling in the International Finance Corporation (IFC) immunity issue. It should be recalled here that Mr. Tsatsu Tsikata needs the IFC evidence to prove that whatever decision he took in guaranteeing the loan for Valley Farms Co. Ltd. was prudent and done with due diligence. Recognizing the fundamental and material nature of the issue and after consultation with the government’s legal team, Justice Abban granted the defense’s request for an adjournment of proceedings to await the final determination of the IFC immunity issue.
To truly appreciate the essence of our concern, we reproduce in extenso, Justice Abban’s ruling regarding this important matter: And this is what Justice Abban and not my brother Misty of Ash Town wrote:
"Since the outcome of the decision of the Court of Appeal will HAVE A BEARING ON THE FINAL OUTCOME OF THIS CASE, AND IN ORDER THAT THERE WILL NOT BE ANY MISTRIAL OR ANY MISCARRIAGE OF JUSTICE, I WILL GRANT THE APPLICATION of learned Defense Counsel. In the event that the appeal is won, the trial will have to be REOPENED, and witnesses of the defence called; on the other hand, however, if the APPEAL IS LOST, THE COURT CAN GO AHEAD AND GIVE ITS JUDGMENT. It is for this reason that I am adjourning this judgment to await the decision of the Court of Appeal. This matter is therefore adjourned."
After the Court of Appeal had sustained Justice Abban’s ruling on the IFC immunity issue, Tsatsu appealed that ruling to the highest court of the land - the Supreme Court. At this juncture, it is imperative to recall that on February 22, 2007, Justice Abban (and, again, not my brother Misty of Ash Town), made the following emphatic and voluntary statement fully conversant and appreciative of her ruling of October 27, 2006:
"Since the appeal record to the Supreme Court is ready, I AM ONCE MORE ADJOURNING THIS MATTER to the 18th day of April to AWAIT THE FINAL OUTCOME OF THE APPEAL TO THE SUPREME COURT". (Emphasis is mine)
Let’s pause for a brief moment and ask ourselves the following clean questions:
1. Did Justice Abban read her judgment at the next adjourned date which was the18th day of April 2007?
ANSWER:
As Justice Sophia Akuffo Addo’s panel is fully aware, Justice Abban did not read her judgment that day because the Supreme Court had not (and still has not) handed down its ruling on the IFC immunity issue.
2. Why didn’t Justice Abban read her judgment which was ready on 18th of April 2007?
ANSWER:
It is obvious that if she had ruled on that day, it would have gravely undermined her own ruling of October 27, 2006. In essence, she did not want to commit any act that would amount to a "mistrial or miscarriage of justice".
3. Were there any further adjournments after April 18, 2007?
ANSWER:
An emphatic yes! The record of proceedings in the case discloses so many such adjournments including those done administratively by the registrar without inviting the parties to court. At the core of all these adjournments was the inescapable fact that the Supreme Court had not come down with its decision in the IFC immunity issue.
Let’s fast forward to that historic day of 18th June 2008 when Mr. Tsatsu Tsikata was convicted:
On this day, Mr. Tsatsu Tsikata was in court to move a motion to adduce fresh evidence as a result of some new revelation by the prosecuting team led by Mr. Joe Ghartey, our attorney general. When Tsatsu could not move the motion because his lawyer was absent due to an emergency which the court was fully aware, his application was struck down for want of prosecution. Surprisingly, Justice Abban proceeded to give her judgment in the substantive criminal case notwithstanding the fact that the IFC immunity issue had not been resolved by the Supreme Court. It is against this judgment that Mr. Tsatsu Tsikata went to the Supreme Court to have her judgment quashed because Justice Abban acted contrary to the dictates of the constitution.
THE DEFINING ISSUES:
Since we do not want to be distracted from the main issue in this case, we are relegating to the background the issues concerning Tsatsu’s right to counsel and others. Rather, we want to concentrate on why in the face of Justice Abban’s ruling on October 27, 2006, the "functional" Supreme Court had the judicial nerve to dismiss that important application.
Out of respect and not fear, we dare say that this "functional" Supreme Court distorted the facts on record so much that it amounts to total "desecration" of justice. One is left wondering which record of proceedings the learned panelists were reading from. Their performance was a failure of judicial responsibility and one that does serious damage to the image-rebuilding project of our judiciary and democracy. They so profoundly and extremely mischaracterized the facts that they want us to believe that the accused was aware that June 18, 2008 was the judgment day. Where did they get that information? Were our justices so blinded by their desire to come to a particular decision that they forgot to read the proceedings of June 18, 2008 of the court below - the subject matter of the application before it?
A clean example of such mischaracterization is the Supreme Court’s statement that ""ought reasonably to have anticipated the possibility of the judge declining to grant any further adjournments and going ahead to deliver her judgment because, at all material times, the matter was entirely within the discretion of the learned judge"? ( P14 of the panel’s reasons for dismissing the certiorari application). Respectfully, I think the Supreme Court made the rule on the fly such to come to a particular decision. When did it become a rule of law that an accused person in such a serious case "ought reasonably" to anticipate that a judgment would be given any time he enters the court room even though the judge is awaiting a crucial decision from a superior court? Why should the accused person in the absence of such a ruling or decision from the superior court reasonably anticipate that judgment would be handed down? It is therefore very troubling that in light of Justice Abban’s own indications on record and coupled with several adjournments to await the Supreme Court’s decision on the IFC immunity issue, Justice Sophia Akuffo’s court could come to such an untenable result.
Moving forward: As Justice Sophia Akuffo correctly pointed out, the main issue anchoring the entire certiorari application was "whether or not it was arbitrary and capricious on the part of the learned judge to proceed with reading her judgment, rather than continue to await the outcome of the appeal in the Supreme Court"? (Page 13 of the panel’s reasons for dismissing Tsatsu’s application).
To be very fair to Justice Abban we again reproduce verbatim for the reading public what she wrote regarding why she was going ahead with her judgment:
"I adjourned this case to today in the hopes that the Supreme Court would have finished dealing with the Interlocutory Appeal being handled by them, which appeal was against the ruling of this Court delivered on 24/1/06 refusing accused’s application to compel IFC to appear before this Court. As at now, there has been no order of the Supreme Court ordering a stay of proceedings at the lower court pending the final determination of the accused’s appeal. The Court suo motu decided all along, to abide the final decision of the Supreme Court before delivering its judgment,. In the absence of any order staying proceedings, I am today reading the judgment in the case of the Republic Vrs. Tsatsu Tsikata and I go on to read. This is the judgment."
Again, the clean questions are:
1. When did Justice Abban become aware that there was no order from the Supreme Court telling her to stay the proceedings before her until the final determination of the IFC immunity issue?
2. Why stopped her from addressing her concerns about a "mistrial" and/or "miscarriage of justice" should she go ahead and render her judgment in the absence of a definitive ruling by the Supreme Court on the IFC immunity matter?
And
3. And when did she allow form to take precedent over justice and fair play in light of her own concerns about preventing a mistrial and miscarriage of justice? And in a criminal trial where the liberties of an accused person could be constrained?
It is common knowledge and, in fact, a matter of law, commonsense and fair play that a trial judge does not change the rules of the game midstream to the disadvantage of the accused. And, importantly, when the "new rules" could culminate in the accused person losing his personal liberty and freedom as a citizen. What stopped Justice Abban from giving notice to the defense team to the effect that she was going to give her judgment on the 18TH of June 2008 contrary to her stated judicial position that she was going to await the decision of the Supreme Court in the IFC immunity issue?
Instead of addressing these important issues in line with the gem of Mr. Tsatsu Tsikata’s certiorari application vis-a-vis whether the court below committed any obvious acts of unconstitutionality or errors on the face of the record, Justice Sophia Akuffo and her colleagues misstated the facts to come to an unjustified and unreasonable ruling.
Under Article 296(a) and (b), Justice Abban is enjoined to act in a "fair and candid" manner in conducting any trial. And she is not allowed to exercise any discretionary power in an "arbitrary, capricious and biased" manner "based either by resentment, prejudice or personal dislike and shall be in accordance with due process of law". Wasn’t Justice Abban being resentful when she made the following regrettable statements on that historic day of June 18, 2008? :
1. "This matter, please, Mr. Tsikata this matter you can take it to the press if you so wish, but I don’t think this is a trial by the press ..." Was Justice Abban - a judge who is not to be rankled by what is said outside the court - fearful of the press? If not, why that indignant statement? Was she under the erroneous impression that Tsatsu was manipulating the press?
2. "It is not a trial by the press. It is a trial by a competent Court, seized with jurisdiction ........." Who doesn’t know that the press cannot try a criminal case and that judges are not supposed to be bothered by what our press houses say about a pending case?
AND, now this edifying exchange between Justice Abban and Mr. Tsikata:
TSIKATA: "Well, the appeal was pending and your lordship, respectfully your lordship had indicated that she would await the decision of the Supreme Court"
JUDGE: I, I rescind, I rescind that decision" Talk about resentment!
This singular, remarkable statement by Justice Abban goes to betray her anger and resentment and also the Supreme Court’s assertion on Page 14 of its ruling of October 24, 2008 that "the applicant (here referring to Mr. Tsikata) ought reasonably to have anticipated the possibility of the judge declining to grant further adjournments and going ahead to deliver her judgment because, at all material times, the matter was entirely within the discretion of the learned judge." The point is why should the date of a judgment in a criminal trial be shrouded in uncertainty? Why should an accused person in an indictment has to keep guessing when judgment is going to be given in his case? Isn’t judgment day most important date in the life of every trial? Can our learned panelists point to any part of the record of proceedings that even alluded to June 18, 2008 as the judgment day in the absence of any ruling by the Supreme Court on the IFC immunity issue?
Crucially, how did the Supreme Court conclude that Justice Abban "exercised her discretion properly and lawfully when she refused to adjourn proceedings any further on 18th June 2008"?
It is trite that the decision to adjourn or not to adjourn a case is an exercise of discretionary power by a trial judge. Indeed, it is well-established that as the manageress or CEO of her court room, Justice Abban is empowered by law to manage in an efficient and competent manner any case that comes before her. However, what the Supreme Court seems to have forgotten is that case management is done on case-by-case basis taking into consideration the unique circumstances of each case. Therefore, in adjourning cases, judges are supposed to take into serious consideration the peculiar circumstances of each case. Having previously ruled that the resolution of the IFC immunity issue would have dramatic and tremendous impact on the outcome of the case - as per her ruling on October 27, 2006 - it is regrettable that the Supreme Court could go ahead and ruled that Justice Abban exercised her discretion fairly and without prejudiced!
What about the resolution of the IFC immunity issue Justice Abban made reference to? Did Justice Abban tell us whether it was no more important in resolving the guilt or otherwise of Mr. Tsatsu Tsikata? As the trial judge, Justice Abban was in a more prominent position to tell us which evidence is more important and credible in resolving issues before the court and superior courts have to respect that. So having established that the IFC immunity issue was/is very crucial and material in the trial, our Supreme Court couldn’t just dismiss it! Wasn’t Justice Abban obliged to tell the accused why she thought the IFC immunity issue was no more important and credible in resolving the substantive case? Should the Supreme Court in the exercise of it supervisory jurisdiction, allow Justice Abban to turn off the engine of justice to the disadvantage of the accused in the course of a trial? Or does the Supreme Court want us to believe that such discretionary use of judicial power can be exercised in a vacuum without regard to the exigencies of the case?
In other words, how could the Supreme Court have come to a just and reasonable ruling without first addressing why Justice Abban adjourned the case on October 27, 2006 and many other times thereafter? What we must not lose sight of is that as managers in their court rooms, judges adjourn cases with an eye on the ends of fair play and justice and not on their whims and caprices. Hence the need of the Supreme Court to have seriously scrutinize Justice Abban’s reason for adjourning the case on October 27, 2006.
This ruling has far reaching, dire consequences for the administration of criminal justice in the country and if our Chief Justice and the other justices of the Supreme Court are desirous of protecting the image and integrity of the judiciary, the full court of that august body must convene on its own motion to address this disturbing matter in the interest of justice, fair play and truth.
God save us all.
Thank you.
WILLIAM ANTWI (BAFO) OYOO BUSANGA
NEW YORK.
[email protected]