Tsatu Tsikata Challanges High Court Decision

An Accra High Court presided over by Justice Asamoah on Monday 12 July 2004 dismissed an application by Mr Tsatsu Tsikata, made to the court through his lawyer, Professor E.V. O Dankwa, for certain orders to be made against Mr Justice Amua-Sekyi, Chairman of the National Reconciliation Commission. The application was in respect of certain decisions the Chairman took when Mr Tsikata was cross-examining Mr Justice Aikins at an earlier sitting of the National Reconciliation Commission. In dismissing the application, Mr. Justice Asamoah said that though Mr. Tsikata was not given access to the various documents such as the handwritten statement of Mr. Justice Aikins, this had not occasioned a miscarriage of justice as Mr. Tsikata had been able to cross-examine the witness effectively. Justice Asamoah said in respect of the original handwritten statement of Mr. Justice Aikins that it had been made at the private hearing before the Commission by Mr. Justice Aikins and the Commission has discretion as to whether to allow matters from the private hearing to be made public. He cited section 12(4) of the National Reconciliation Commission Act, Act 611 and found nothing wrong with the exercise of the discretion by the Commission in not giving access to information from a private hearing. According to Mr. Justice Asamoah the photocopy of Mr. Justice Aikins? statement that was provided to Mr. Tsikata was as good as providing the original and he had been able to use it for his cross-examination. Mr. Justice Asamoah further held that the non-production to Mr. Tsikata of the petition on the basis of which Mr. Justice Aikins as well as Mr. Tsikata had been called as witnesses did no damage to Mr. Tsikata. The initial notice given Mr. Tsikata about the testimony of Mr. Justice Aikins gave him fair notice according to Mr. Justice Asamoah. No charge had been levelled against Mr. Tsikata. Mr. Justice Asamoah went on to hold that the Chairman of the Commission could, during hearings of the Commission, give rulings as to time limits for cross-examination by himself. Further, Mr. Justice Asamoah said that though Mr. Tsikata had alleged that the Chairman of the NRC had shown animosity against him, Mr. Tsikata had not adduced any facts to support this Justice Asamoah again added that despite all the interventions of the Chairman, Mr. Tsikata had ?ably conducted the cross-examination.? Mr. Tsikata in his notice of appeal to the Court of Appeal against the decision of Mr. Justice Asamoah cited seventeen (17) grounds of appeal. The grounds are: (a) The judge erred in holding that even though appellant had not been given access to original of the handwritten statement of Mr. Justice Aikins this had not occasioned a miscarriage of justice against the appellant.

(b) The judge erred in holding that the appellant, despite not having been provided the original handwritten statement of Justice Aikins, effectively used the photocopies and therefore suffered no damage despite clear evidence to the contrary.

(c) The judge erred in holding, contrary to evidence before him, that the original handwritten statement of Justice Aikins was provided to the private hearing of the Commission.

(d) The judge erred in holding that no miscarriage of justice was occasioned to the appellant in the circumstances as deposed to in the affidavits of the appellant, especially when it was undisputed that it was the normal practice of the Commission to grant access to these documents to persons who were to respond to allegations against them. (e) The judge erred in holding that the non-production of the petition in respect of which appellant and Mr. Justice Aikins were called to testify did no damage to the appellant.

(f) The judge erred in holding that the initial notice provided to the appellant of the allegations by Justice Aikins provided appellant fair notice of these allegations.

(g) The judge erred in holding that the appellant did not say how the photocopy of the handwritten statement provided to him was garbled when paragraph 8 of the affidavit in support of the application did precisely that and this was not challenged by the respondent.

(h) The judge erred in holding that decisions as to time limits for cross-examination by the appellant could be made by the Chairperson by himself.

(i) The judge erred in holding that because the appellant ?ably conducted his cross-examination? despite all the interventions of the Chairman that he complained of the application should be dismissed.

(j) The judge erred in holding that no facts were provided by the appellant to support his claim that respondent showed animosity towards him.

(k) The judge erred in making no determination in respect of the remedy of quo warranto.

(l) The judge erred in making no determination in respect of the failure of the respondent to allow the Commission even to consider the request of the appellant for records of Mr. Justice Aikins, which he claimed he had used to refresh his memory, to be produced by him before the Commission.

(m) The judge erred in failing to appreciate that the respondent disabled the Commission from determining whether good reasons had been shown by appellant for him to have access to evidence taken in camera.

(n) The judge erred in holding that the denial by the respondent of the appellant an opportunity to use the evidence of proceedings in camera to show the inconsistencies in testimony of Mr. Justice Aikins did not occasion a miscarriage of justice.

(o) The judge erred in making determinations about how ?ably? or ?effectively? the appellant was able to conduct his cross-examination when this was not the matter before him to decide.

(p) The judge erred in not enforcing the requirements of natural justice being accorded to the appellant.

(q) The purported distinction that the judge sought to draw between decisions taken during hearings of the Commission and substantive determinations of the Commission is without legal basis and misled the judge to an erroneous conclusion.

Mr. Tsikata is asking the Court of Appeal to set aside the ruling of Mr. Justice Asamoah and make the orders sought by his counsel, on his behalf, especially the orders of certiorari, quo warranto and prohibition.

Counsel for Mr Tsatsu Tsikata had asked the High Court for orders to quash specific decisions of the Chairman, namely:

(a) the decision not to grant Applicant access to the original of a handwritten statement by Mr. Justice G.E.K. Aikins to the Commission;

(b) the decision to limit the time allowed Applicant to cross-examine Justice Aikins to 30 minutes;

(c) the decision not to extend time for cross-examination of Mr. Justice Aikins beyond 30 minutes;

(d) the decision not to allow applicant access to the petition in respect of which Justice Aikins as well as applicant were called as witnesses;

(e) the decision not to have Justice Aikins produce records he alleged he had referred to in order to change a date in his written statement when he gave oral testimony;

Counsel also asked the court to require the Chairman to perform his legal duty in respect to the appearance of Mr Tsikata before the commission by

(a) conducting himself in a judicial manner devoid of bias, arbitrariness and personal dislike or animosity

(b) conducting himself in a manner that will not jeopardize the independence or harm the credibility, impartiality or integrity of the Commission;

(c) conducting himself, and enabling the Commission to conduct itself, in a fair and candid manner;

(d) providing the applicant access to the original of the handwritten statement of a witness, Mr. Justice Aikins;

(e) providing the applicant access to the petition in respect of which Mr. Justice Aikins was called as a witness;

(f) allowing the Commission to consider and determine the following:

(i) the application to the Commission by the applicant for extension of time to conduct the remainder of applicant?s cross-examination of Mr. Justice Aikins before the National Reconciliation Commission;

(ii) the application of the applicant for access for the purposes of his cross-examination to the original of the handwritten statement submitted by Mr. Justice Aikins to the Commission and further to which he testified;

(iii) the application by applicant before commencing his cross-examination for access, for the purposes of his cross-examination, to the petition in respect of which Justice Aikins was called upon to testify;

(iv) the application by applicant at the beginning of his cross-examination for access, for the purposes of cross-examination, to the transcript of evidence of an in camera hearing of evidence by Mr. Justice Aikins;

(v) the application by applicant for an order requiring Justice Aikins to produce records he claims to have in his possession in respect of a matter on which he testified before the Commission; namely the date of his going to Gondar Barracks for a meeting with the Chairman of the PNDC.

Finally, Professor Dankwa had sought an order to restrain the Chairman of the commission from participating in any of the determinations affecting Mr Tsikata because of the bias that he has shown towards Mr Tsikata.

The grounds stated in the application of Professor Dankwa were that:

(1) The Respondent acted without jurisdiction and usurped the powers of the National Reconciliation Commission (hereinafter NRC) by taking the decisions complained of in the motion paper and in the supporting affidavit without consultation with other members of the NRC as required by the National Reconciliation Commission Act, 2002, Act 611.

(2) The decision of the Respondent herein to deny Applicant access to an original of a handwritten statement of a witness who had given testimony on which Applicant was to cross-examine the witness was also contrary to the normal practice of the NRC and to natural justice and was arbitrary and unfair.

(3) The order of the Respondent at the sitting of the NRC of 21 June 2004 requiring the Applicant to proceed with the cross-examination of the witness without having been provided access either to the original handwritten document of the witness or the petition in respect of which evidence was being led was contrary to the practice of the NRC and to natural justice and was arbitrary and unfair.

(4) The refusal of the Respondent to allow Applicant information about a private hearing of a witness in relation to whose evidence there was nothing justifying such refusal was contrary to natural justice, arbitrary and unfair.

(5) The time allotted by Respondent for the cross-examination by the Applicant was determined in a manner contrary to natural justice and in a capricious and arbitrary manner. Given the allegations of Justice Aikins and the length of time he had been given for his testimony, the time allotted was insufficient

(6) The refusal by the Respondent herein to extend time to Applicant to complete his cross-examination was contrary to natural justice, arbitrary and unfair.

(7) The refusal by the Respondent even to consider an application by Applicant herein for the witness to be ordered to produce records which he claimed led to his changing evidence he had given in two documents prior to giving oral testimony was contrary to natural justice, arbitrary and unfair.

(8) The conduct of the Respondent towards the applicant as elaborated in the motion paper and supporting affidavit was unjudicial.

(9) The exhibition by the Respondent of personal dislike and animosity towards the applicant disabled respondent from acting judicially in the proceedings, and thus led to bias on his part in taking decisions.

(10) The Respondent failed to perform his functions as Chairperson in accordance with the requirements of the National Reconciliation Commission Act, 2002, Act 611 in spite of Applicant drawing attention to the requirements of the statute.