TSATSU TSIKATA v. THE REPUBLIC

ATUGUBA, J.S.C:

This judgment should have, but for a motion for its arrest by the appellant and subsequent events , been delivered on 25/6/2008.

A question has arisen whether in view of the delivery of judgment by the High Court and the pendency of the appellant’s appeal therefrom, this appeal is now moot. This question of mootness has been dealt with by this court on some occasions. The whole matter has been extensively dealt with by Dr. Bimpong-Buta in his celebrated book The Role of the Supreme Court In the Development of Constitutional Law in Ghana at 168-176. From his treatment of it I do not regard this matter as moot especially as a constitutional issue is involved. In any case the appellant cannot raise this question of the immunity before the Court of Appeal again since it has been decided by it already. This means that in all probability that issue will come up before this court again unless decided now. It is therefore still a live and not a moot issue.

The appellant stood trial before the High Court, Fast Track Division, Accra, on charges of causing financial loss to the state and misapplication of public funds. In the course of the trial the appellant sought and obtained a subpoena by order of the trial judge, Mrs. Henrietta Abban, J.A. in these words:

“Let the Registrar of the Court issue a Subpoena Duces Ad Tecum directed at the Country Director, I.F.C to appear before this Court on the 15th of December 2005 instant, in respect of documents of the Valley Farms Project promoted by the African Project Development Facility for the period from 1987 to about 1990.”

Pursuant to the issue of this subpoena but before its service, the International Finance Corporation (I.F.C) per their counsel, Mr. Kizito appeared before the trial court and objected to the issuance of the subpoena on the following grounds:-

“Statutory Immunity from the courts processes. I understand that your order has not been served on them; that notwithstanding when it came to the attention through the dailies that the order had been made they asked us to inform the court that they do not on this occasion intend to waive their immunity. The immunity is derived under LN9 of 1958 Section 5 grants immunity to the archives of the IFC and section 8 grants immunity to the Governors, Executive Directors and officers of the IFC. My Lord, my clients do not intend to waive their immunity.”

The Attorney-General (Mr. Ayikoi Otoo) associated himself with the objection and further relied