Judge erred in distinguishing between IFC and Directors - Tsikata

Accra, Dec. 4, GNA - Prof. Emmanuel Victor O. Dankwa, leading attorney for Tsatsu Tsikata, a Former Chief Executive of the Ghana National Petroleum Corporation (GNPC), on Tuesday told the Court of Appeal that the trial judge erred in distinguishing between the International Finance Corporation (IFC) and its Directors.

"The trial judge at the lower court erred in failing to appreciate the fundamental legal distinction between the IFC as a corporate body and its governors, directors and other staff," he stated. Prof. Dankwa was continuing with submissions made on behalf of his client, Tsikata, in a substantive appeal to order the IFC to go to the Fast Track Court to testify and produce various documents about the Valley Farms Project.

He told the Court of Appeal presided over by Mr Justice S.E. Kanyoke that Section 5(1) of the International Bank, Fund and Finance Corporation Act, 1957 recognized the IFC as a corporate body that could sue and be sued in its corporate name.

"It is trite knowledge that a corporate body is a separate legal person from individuals and that corporate bodies act through their officers who also have their own individual legal personality." He said for the IFC to testify would involve their designating an official to testify on behalf of the Corporation. "This in no way compromises any immunity such person may have from legal process of such individual for his or her official acts.

Prof. Dankwa said the trial judge erred in failing to appreciate that the International Bank, Fund and Finance Corporation Act, 1957 Section 5 differentiated between immunities of the IFC on the one hand and those of its governors, directors and other staff on the other. He argued that the best evidence about the role of the IFC could only come from the IFC itself, and that "The defence has to be afforded facilities for obtaining the attendance of the IFC to provide that evidence, which is exactly what the court did".

He explained that it was an appropriate exercise of good business judgement for his client to authorize, asset managers holding assets on behalf of the Corporation, which his client was Chairman and Chief Executive of, to make an investment in the project, on an agreed basis. Other panel members are Mr Justice F. Kusi-Appiah and Mr Justice Annin Yeboah.

Prof. Dankwa noted: "The trial judge erred in holding that based on her decision regarding the immunity of governors, directors and other staff of the IFC in respect of the order she had made it would be 'an action in futility' for an order to testify and produce documents to be issued addressed to the IFC itself.=94

He said when an order was issued against the IFC, it was for the IFC then to go and show in terms of the Evidence Decree NRCD 323, why it could not be a witness.

"A writ of summons can clearly be taken out against the IFC compelling it to appear in court to answer claims brought against it", he said, adding: "The subpoena only requires the IFC to come and testify to matters within its knowledge."

He observed that the trial judge erred in failing to appreciate that Article VII Section 3 of the IFC Articles of Agreement, embodied in the Schedule to Legislative Notification (LN) 9, 1958, made it clear that the IFC was not immune from legal process.

"The trial judge erred in considering that the said section 3 is only relevant in respect of civil proceedings and not applicable to an order to a witness required by the Defence in a criminal trial to testify".

Mrs Gertrude Aikins, Chief State Attorney, represented the State. Hearing continues on Wednesday, December 6.