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
Exercising discretion also comes with duties. Article 296 of the Constitution deals with these duties. But we can wait awhile before coming to Article 296. It is useful to get a sense of the kind of judicial conduct that the Supreme Court was really passing judgment on and giving approval to. Justice Abban’s actual promise to Tsatsu On the 27 th October 2006 Justice Abban made the following promise to Tsatsu in open court. It is this promise that Tsatsu had been relying on and which the Supreme Court now says is completely irrelevant. Once the appeal moved to the Supreme Court, she then extended that promise to the Supreme Court through her conduct and also through explicit judgments which state that she is adjourning the case until the Supreme Court rules on IFC matters. Justice Abban said: Since the outcome of the decision of the Court of Appeal will have a bearing on the final outcome of this case, and in order that there will not be any mistrial or miscarriage of justice, I will grant the application of learned Defence Counsel and await the final decision of the Court of Appeal. This then is the overall impression she created in the mind of Tsatsu and his lawyers. Over the next two years, she was to deepen and consolidate that impression – indeed we can accurately say that she generated a strong expectation which became the dominant framework in which everybody was handling things – everybody on all sides knew they were waiting for the Supreme Court judgment. Reading the words of Justice Abban above, Ghanaians clearly need to ask: Was Justice Abban using the language of justice or the language of good case management? Deepening and consolidation of Justice Abban’s promise - events after the 27th of October 2006 Other events which consolidated the impression that Justice Abban was waiting for the Supreme Court’s /IFC judgment and which the Supreme Court in its judgment completely fails to address or argue away are:
• 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.
I should state that all these facts stated above are not challenged by anybody and are in the affidavit evidence before the Supreme Court Did Tsatsu actually know that 18th June was judgment day? The Supreme Court states at p. 14 of its judgment that both Applicant and Counsel were aware that the reading of the judgement had been scheduled for that date. Both Tsatsu and his counsel flatly deny this. This crucial point is not addressed at all by the Supreme Court despite there being evidence on this point before the Court. Indeed the question is whether there is court documentation showing that the 19th was to be judgment day. If there is, it was not communicated to Tsatsu. What should Tsatsu have reasonably anticipated from Justice Abban? Before closing, I wish to return to the specific words of the Supreme Court and see where that takes us. All five judges say that they believe all that Tsatsu should have expected was that at any point in time Justice Abban could suddenly decide to deliver her judgment. This is how they understand discretion. They do not see discretion as carrying any duties. He is in other words being asked to believe in complete uncertainty. I quote the full words of the Court again, since in the light of what actually happened as shown above, they are truly extraordinary. The courts words were: 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. We all need to look at this very closely – why on earth would a person coming to court who has had at least three court rulings stating that the court would wait expect everyday that they turned up that this same judge would suddenly and without notice deliver her judgment? In fact it would be bordering on insanity to expect that the judge would suddenly pull a judgment out of her robes and start reading it. Let’s now take the logic of the Supreme Court a little bit further. If we are to take them at their word and stretch them to cover all the facts - are we to believe that on those dates and times when Justice Abban organised her adjournments through the Registrar or the court clerk that Tsatsu was also to expect at any time, that the same Registrar or court official would phone or communicate next time with him and then read a copy of Justice Abban's judgment to him down the phone line? Wouldn’t the person be phoning to give notice that things had changed? Indeed it is only in court that Justice Abban shouted “I rescind, I rescind that decision” – namely the decision of 27th October and subsequent conduct. It was only then that her change of mind was communicated. 1. Can this be described as fair and just? 2. Is it not rather arbitrary and capricious? The duty to be fair when exercising discretion - is this an important judicial duty or is case management more important? Article 296 of the Constitution is extremely relevant to this issue. It binds all our judges and other decision-makers and is there to protect citizens against arbitrary use of power. It is not often quoted so I will cite it in full. It says: Where in this Constitution or in any other law discretionary power is vested in any person or authority: a. that discretionary power shall be deemed to imply a duty to be fair and candid; b. the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law Given all that we know – remember these facts are all on the public record and were available to the Supreme Court in Tsatsu’s affidavits:
• 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?
Conclusions to be drawn from the Supreme Court’s judgment The conclusions that we can all reasonably draw from this judgment can be stated as follows:
• 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.
There are also questions that we need to ask as far as the independence of judges and their decision-making is concerned:
• 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?
This extraordinary decision giving approval to a lack of fairness in exercising discretionary power is about to find its way into our law books. After all it was signed off by no less than five of our Supreme Court judges. We need to seriously consider its implications for all of us as we move forward into the future. Credit: Kwame Mfodwo [Kwame.Mfodwo@law.monash.edu.au]
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