TSATSU TSIKATA vs. THE REPUBLIC [2004]DLSC2474

Date	2004-10-27
Suit No.	CA. NO: J3/4/2004
Citation No.	[2004]DLSC2474

ATUGUBA J.S.C (PRESIDING)

MISS AKUFFO J.S.C

MRS. WOOD J.S.C

BROBBEY J.S.C

PROF. OCRAN J.S.C

MR. OSAFO SAMPONG D.P.P (WITH HIM AUGUSTINE OBOUR A.A.S) FOR RESPONDENT.

PROF. E.V.O DANKWA (WITH HIM MAJOR (RTD) AGBENOTO) FOR APPELLANT.

[2004]DLSC2474
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													<main id="main" class="content" style="min-height: 60rem" >TSATSU TSIKATA<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CA.
NO: J3/4/2004<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 27TH OCTOBER 2004<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
OSAFO SAMPONG, D.P.P (WITH HIM AUGUSTINE OBOUR A.A.S) FOR RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

PROF.
E.V.O DANKWA (WITH HIM MAJOR (RTD) AGBENOTO) FOR APPELLANT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ATUGUBA
J.S.C (PRESIDING), MISS AKUFFO J.S.C, MRS. WOOD J.S.C, BROBBEY J.S.C, PROF.
OCRAN J.S.C<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;ATUGUBA, J.S.C.:-<o:p></o:p>&nbsp;I have had the advantage of reading the
learned, brilliant and painstaking judgment of my brother Justice Professor Modibo
Ocran J.S.C. It has assisted me a lot. It is a matter of great regret that I
have not been able to share some of the conclusions he has reached on some of
the issues involved in this case.<o:p></o:p>&nbsp;The facts of this case can be fairly gleaned
from the judgment of my brother Justice Professor Modibo Ocran and being mainly
an appeal on questions of law, only such specific facts as are germane to the
specific legal&nbsp; questions raised, are
necessary.&nbsp; <o:p></o:p>&nbsp;There has been extensive fighting on
constitutional issues, but in view of the conclusion I have reached, it is not
necessary to grapple with them. It is a&nbsp;
sound principle of constitutional law,&nbsp;
owing to the sensitive nature of issues of Constitutionality, that if a
case can properly go off on a non constitutional ground one should avoid the
constitutional issue. Thus in ENNIN v. THE REPUBLIC (1976) 1 GLR 326 C.A at 334
Apaloo C.J delivering the unanimous judgment of the Court of Appeal said; <o:p></o:p>&nbsp;<o:p></o:p>“It is not in fact necessary to decide
this case on any constitutional grounds because the steps that have been taken
to provide for the appellant’s representation and procure medical evidence
helpful to him, seem to us more than ample. Nothing has been done which offends
our sense of propriety and fairness. Accordingly, we ought to resist the
temptation of pronouncing on arid constitutional questions. Perhaps in this, we
might take a cue from the United States Supreme Court which has a philosophy
that while it has a duty to decide constitutional questions, it must escape that
duty if possible. As Frankfurter put it in his Law and Politics 25(1939) (as
quoted in Constitutional Law, Cases and other Problems (2nd ed.) Vol, 1 at p.
108, edited by Freund, Sutherland, Howe and Brown)<o:p></o:p>&nbsp;But the Court has improved upon the common law
tradition and evolved rules of judicial administration especially designed to
postpone constitutional adjudications and therefore constitutional conflicts
until they are judicially unavoidable. The Court will avoid decision on grounds
of constitutionality if a case may go off on some other ground as for instance,
statutory construction.”<o:p></o:p>&nbsp;The policy justification for this philosophy
is to avoid the mischief of premature judicial intervention. The United States
Constitution has survived two centuries and the Supreme Court has found this a
workable rule designed to avoid constitutional conflicts. Both constitutions
that we enacted for ourselves, i.e. the 1960 and 1969 Constitutions have been
either abrogated or suspended and we think, we more than the United States
Supreme Court, should tread warily.”<o:p></o:p>&nbsp;The issue in this appeal is whether, as it is
often said in our courts, a prima facie case has been made out for the
appellant to answer and this, in view of my conclusion in this case, can be
decided without prejudice to either party in this case, free from
constitutional encumbrances.<o:p></o:p>&nbsp;The first three charges against the appellant
allege “Wilfully causing financial loss to the State contrary to section 179A
(3)(a) of the Criminal Code 1960 Act 29”. The particulars of those charges
commonly allege as follows: <o:p></o:p>&nbsp;“TSATSU TSIKATA as the Chief Executive of
Ghana National Petroleum Corporation (GNPC) in………… 1996 in Accra in the Greater
Accra Region wilfully caused financial loss to the State by illegally
authorizing and causing to be paid the sum of Two Million Three Hundred and Six
Thousand Three Hundred and Seventy-Four French Francs Forty-One Centimes (FRF
2,306,374.41) equivalent of Seven Hundred Seventy-Five Million One Hundred and
Twenty-Six Thousand Three Hundred and Ten Cedis (¢775,126,310) from the
accounts of GNPC to Caisse Francaise de Development on behalf of Valley Farms
Company Ltd., a private limited liability company which had defaulted on a loan
it had contracted from the said&nbsp; Caisse
Francaise de Development.” <o:p></o:p>&nbsp;Section 179(A)(3) of the Criminal Code Act
1960,( Act 29) as amended by the Criminal Code (Amendment) Act, 1993 (Act 458)
provides, as far as relevant, as follows: “Any person through whose wilful,
malicious or fraudulent action or omission…(a) The State incurs a&nbsp; financial loss ….commits an offence”. (es)<o:p></o:p>&nbsp;In my view, this provision has been correctly
construed by the esteemed late Afreh J.S.C in THE REPUBLIC V. IBRAHIM ADAM
&amp; ORS. Suit No. FT/MISC. 2/2000 dated 28th April 2003, unreported.<o:p></o:p>&nbsp;The case seems to be appellately sub-judice. I
therefore naturally had some hesitation in referring to it. But I only refer to
some of the principles of law therein enunciated, not the facts or the
application in that case of those principles to the facts of that case. As far
as points of law are concerned one can scarcely conceive of that limb of the
rules of&nbsp; natural justice, namely, nemo
judex in causa sua or justice manifestly appearing to be done being infringed,
were I subsequently to deal with that or any other cognate case.<o:p></o:p>