The Supreme Court yesterday resurrected the nine-year-old legal tussle between the former Chief Executive of the Ghana National Petroleum Corporation (GNPC), Mr Tsatsu Tsikata, and the state when it ruled that the International Finance Corporation (IFC) is not immune from Ghana’s judicial processes.
The immunity or otherwise of the IFC was in contention following Mr Tsikata’s request that the corporation be invited to testify in the case in which he had been charged with three counts of wilfully causing financial loss of GH¢230,000 to the state through a loan he, on behalf of the GNPC, guaranteed for Valley Farms, a private cocoa producing company, and another count of misapplying GH¢2,000 in public property.
On June 18, 2008, Mr Tsikata was found guilty and sentenced to five years’ imprisonment on each count to run concurrently but he was pardoned in December 2008 by former President J.A. Kufuor. Mr Tsikata, however, rejected the pardon, but prison officials refused his request to stay in prison to fight his cause to the end.
At the Supreme Court’s sitting in Accra yesterday, in a unanimous decision it held that The Article of the Legislative Notification 9, The International Bank, Fund and Finance Corporation (Immunities and Exchange Contracts) Order 1958 states, “Actions may be brought against the corporation only in a court of competent jurisdiction in the territories of a member in which the corporation has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.”
The court was presided over by Mr Justice William Atuguba, with Ms Justice Sophia Akuffo, Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira and Mrs Justice Vida Akoto-Bamfo as members.
However, in a 3-2 majority decision, the court held that under the same Legislative Notification, “No action shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the corporation shall, wheresoever located and by whomsoever held, be immune from all seizure, attachment or execution before the delivery of final judgement against the corporation.”
For that reason, the court held that the Country Director and the employees of the IFC could not be called to testify at the lower court where Mr Tsikata had been charged with causing financial loss to the state.
According to the court, Mr Tsikata’s individual interest could not override that of the public interest and for that reason the Court of Appeal had not been wrong in upholding the decision of the FTC to withdraw its (FTC’s) earlier decision inviting the IFC Country Director to testify in Mr Tsikata’s trial.
Ms Justice Akuffo, Mr Justice Ansah and Mrs Justice Adinyira held a majority view on the issue of IFC employees’ immunity from the country’s judicial processes.
Reading the judgement of the three on that matter, Mrs Justice Adinyira considered the view of Justice Atuguba that the right to fair trial under the Constitution overrode the immunity of IFC directors and officers as “too sweeping”.
According to her, the constitutional rights of the individual must be balanced against the rights of others and the public interest.
She referred to the Vienna Convention as creating international obligations on the country and, therefore, on individual rights and further indicated that it was only on that single issue that she held a different position from that expressed in the judgement of Justice Atuguba.
The position of Justice Atuguba on that second issue of the immunity of the directors and officers of the IFC was supported by Mrs Justice Akoto-Bamfo.
The two were of the view that the Constitution guaranteed the rights and interests of individuals and for that reason, the interest of Mr Tsikata overweighed that of the IFC.
The court should have given its judgement on June 25,2008 but had to adjourn the case sine die following a request to that effect from Mr Tsikata, who had then been sentenced to a five-year jail term.
Valley Farms contracted the loan from Caisse Francaise de Developement in 1991 but defaulted in the payment and the GNPC, which had acted as the guarantor, was compelled to pay it in 1996.
During Mr Tsikata’s defence, he had stated that the IFC had financed a feasibility study which had been conducted on the Valley Farms project and that study had indicated that the project was viable.
He then prayed the Fast Track High Court to issue a subpoena to the IFC Country Director to appear before the court and make available the feasibility study report on the project.
The court, presided over by Mrs Justice Henrietta Abban, granted the request and issued the subpoena, but lawyers for the IFC appeared before the court and argued that the IFC and its employees were immune from judicial processes unless they decided to waive that immunity.
Following the IFC’s submissions, the Fast Track High Court withdrew its earlier subpoena, prompting Mr Tsikata to appeal against the decision, but the Court of Appeal upheld the decision of the lower court. He then went to the Supreme Court, praying the highest court of the land to decide on the matter.