Tsatsu Tsikata v Justice Abban - a critique of the SC

The Supreme Court has spoken. All five judges of the highest court in the land have said that everything that Justice Abban did on June 18 this year was candid, truthful, fair, non-arbitrary and an excellent model of judicial good behaviour. I disagree and set out the reasons why I think this to be so. As we shall all see, the approach the judges have taken has implications for all of us. Why? Judges at Supreme Court level set precedents and standards for the whole system. What they say is good behaviour impacts on all of us and will do so long after Tsatsu is dead and gone. The core of the SC decision The core of the judgment by all five of the judges is to be found in the following sentences: On each occasion that the learned trial judge adjourned the matter, she was simply exercising her discretion to manage cases before her as effectively as she deemed necessary. On 18th June 2008, therefore, and on each previous return date, (including the 27th October 2006 – word inserts by Kwame Mfodwo ) the Applicant 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. From the record, it is our view that she did not exercise this discretion capriciously, arbitrarily or otherwise unlawfully, the absence of Applicant’s counsel notwithstanding. Note the matters that the SC lays emphasis on:

On each occasion
Simply exercising discretion to manage cases as effectively as deemed necessary
Tsatsu ought reasonably to have anticipated the possibility of the judge declining to grant any further adjournments and going ahead to deliver her judgment
At all material times, the matter was entirely within the discretion of the learned judge
Tsatsu should have had no expectations of justice or that the judge would keep her earlier promises

Justice Abban’s actual promise to Tsatsu

Deepening and consolidation of Justice Abban’s promise - events after the 27th of October 2006

On 7th December, 2006 the Court of Appeal had not completed the hearing of the appeal. Justice Henrietta Abban therefore adjourned the case to 20th December 2006.
On 20th December, 2006, although the Court of Appeal had given a decision, she was notified by Mr. Tsikata’s Counsel that an appeal had been made to the Supreme Court against the decision of the Court of Appeal. She again decided therefore to await the decision of the Supreme Court and proceeded to adjourn the case to 22nd February, 200
On 22nd February, 2007, made the following statements in the judgment of that day: “Since the appeal record to the Supreme Court is ready, I am once more adjourning this matter to the 18th day of April, 2007 to await the final outcome of the appeal to the Supreme Court.”
Thereafter, Mrs. Justice Henrietta Abban herself never directly fixed the new dates for the case. The court registrar would consult with Counsel or Tsatsu and give a new date.
On or about April 16, 2008 Mr. Tsikata spoke on the phone with the court registrar and initially agreed on a date in July 2008. The registrar however called him back about two hours later and said “the new date is 18th June 2008”.
The Supreme Court had by then adjourned the IFC matter to 11th June, 2008 for its judgment. On 11th June however, the Supreme Court further adjourned the case to 25th June without delivering its judgment.
On the 18th of June despite all these many promises - made either in court or confirmed administratively through the court registrar or court clerk, she then moved to pass her judgment.

Did Tsatsu actually know that 18th June was judgment day?

What should Tsatsu have reasonably anticipated from Justice Abban?

Can we really say that Justice Abban has been fair?
On the 18th June, did she really meet her duty not to be arbitrary or capricious?
She was being fair before – what suddenly made her change her mind?

As far as the judicial system in Ghana is concerned, it is foolish to rely on promises and statements made by judges and to rely on settled patterns of behaviour exhibited by them because at any point in time, they can change their mind and when they do, they will be backed up by those higher in the system;
You can never be sure what the judge is going to do when you turn up in court – she might sentence you immediately without waiting for vital pieces of evidence she has said she will wait for or she will be in a good mood and grant a further adjournment;
Good case management is more important than considerations of due process, rights, justice or prevention of miscarriages of justice even where a judge has expressly generated an expectation that these principles will guide her behaviour and you as the person subject to the judicial process have in good faith relied on those expectations.

What changed just before the 18th of June to persuade or force a judge previously concerned with freedom and justice to make a full about turn on that specific day?
How come the police were in the court that morning when the judge had not given notice that for case management reasons, judgment day had arrived?
Who asked them to come and when?
Was it the judge herself?
Was it the Chief Justice?
Or was it somebody else?
If so, who was this person and how did they know that judgment was going to be given on that particular day?

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