John Dramani Mahama
The Supreme Court has once again ordered former President John Dramani Mahama to file his witness statements in his case that is challenging the 2020 Presidential Election or risk being thrown out.
The former President, who is challenging the declaration of Nana Akufo-Addo as the winner of the election by the Electoral Commission (EC), failed to abide by the court’s order to file witness statements of the five witnesses he said he intended to rely on for his case.
The court had at the last sitting on January 20, ordered the former President to file his witness statements by close of January 21 as well as his response to legal arguments to preliminary objections raised by the EC and President Akufo-Addo who are the respondents.
The respondents have been urging the court to dismiss the petition for disclosing no reasonable cause of action.
Mr. Mahama, however, failed to comply with the orders of the court, and instead went ahead to file multiple applications, including one seeking to amend the main statement of case of the petition as well as seeking for additional grounds to his application for review after the court threw out his 12 questions (interrogatories) application.
He also went on to file an application for stay of proceedings pending the determination of the review application which was seeking to serve some 12 questions on the EC for answers.
A seven-member panel presided over by the Chief Justice, Kwasi Anin-Yeboah, was furious yesterday after realizing that Mr. Mahama had refused to comply with the order to file his witness statements and did not take kindly to the total disregard for its orders by the former President when the case was called.
The failure by Mr. Mahama to file his witness statement as well as his response to the legal arguments of the respondents on their preliminary objection, made the judges descend heavily on Tony Lithur, a member of Mr. Mahama’s legal team, who held brief for lead counsel, Tsatsu Tsikata.
Mr. Lithur had asked the court to stand the case down as he said his senior, Mr. Tsikata, was on his way to court but the judges reminded him that the Supreme Court begins sitting at 9:30am, hence they could not rise back into their Chambers to wait for him.
The judges then queried Mr. Lithur why the petitioner had failed to file his witness statement and response to the preliminary legal objection.
Counsel told the court that the petitioner had filed a stay of proceedings to allow the court the chance to consider the review application.
Justice Nene Amegatcher, a member of the panel then asked Mr. Lithur if his understanding of the stay of proceedings was that the petitioner did not have to file his witness statement due to the filing of the instant application.
Mr. Lithur stated that after filing the application for stay of proceedings, taking any further steps would have consequences on the application which would be used against them by the respondents.
The judges also enquired why the petitioner failed to abide by the court’s order and rather decided to pick and choose what to file, yet expected the court to give him the audience to move his motions.
Mr. Lithur also added that the review application, when granted and the petitioner was allowed to serve interrogatories on the EC, would impact the kind of witness statement they would file.
However, the judges reminded him that the rule provide room for a supplementary witness statement.
Mr. Lithur then stated cheekily that “this presupposes” that the review application had been pre-determined which got the judges upset and the lawyer had to apologize.
The panel which also had justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo after retiring to their Chamber briefly, returned to give its ruling on the matter.
The Chief Justice who read the ruling said “we do not appreciate that the current state of pleadings and processes should make room for a party to seek further audience while ignoring the prior directions and orders of the court.”
The court made references to Rule 69 C 4b of the Supreme Court Rule C.I.16 as amended by C.I.99 which gives the court to “dismiss the petition where the petitioner fails to file the processes regarding the petition within the specified time.”
The rule also gives the court the power to “hear and determine the petition where the respondents fail to file their answers or processes regarding their answer within the specified time.”
The court therefore, ordered Mr. Mahama to file his witness statements and response to the legal arguments of the respondents to the preliminary objections by close of Wednesday, January 27, 2021.
The court added that should Mr. Mahama fail to comply with the orders, it would go ahead to invoke the sanctions prescribed by the rules of court, which included dismissing the case.
Mr. Mahama since filing the petition has filed multiple applications seeking to solicit some answers from the EC, review application challenging the decision to dismiss his request, a stay of proceedings, among others.
His latest application has asked the court to grant him leave to amend three separate parts of the case which is before a seven-member panel of the apex court.
Mr. Mahama is seeking to replace paragraph 28 of the original statement of case supporting the petition where he made reference to “an unsigned press release” by the EC, stating that its chairperson, Jean Mensa, inadvertently used the figure of total votes cast instead of total valid votes cast.
The second leave he is seeking is to file supplement to the original statement of case which has already been responded to by the EC and President Akufo-Addo.
Again, Mr. Mahama is seeking leave of the court to file an additional ground to a motion he had filed seeking a review of the court’s decision to dismiss his application seeking leave to serve some 12 questions on the EC.
He claims the additional ground for review is another exceptional circumstance that supports the review application as well as furnishes the court with additional legal authority in support of his lawyer’s submission.
The former President petitioned the Supreme Court over the results of the 2020 Presidential Election, which the EC declared President Akufo-Addo as winner of the contest.
Mr. Mahama is alleging among others that there was padding of votes at some centres in favour of the President.
Mr. Mahama in his petition is urging the Supreme Court to annul the results of the December 7 polls as he claims none of the candidates that contested the election got the required more than 50 per cent of the total valid votes as mandated by law to be declared President-elect and wants a run-off between himself and Nana Akufo-Addo.
The President in his response to the petition labeled it as a face-saving gimmick by Mr. Mahama after he had claimed that he won the election prior to the declaration by the EC.
He argues that the petition does not disclose any attack on the validity of the election held at any of the 38,622 polling stations and 311 special voting centres or any of the processes set out for results tallying.
The President avers that Mr. Mahama from the reliefs sought, claims that none of the candidates obtained more than 50 per cent of the total valid votes cast in the election and therefore seeks a run-off.
However, he does not indicate the number of valid votes or percentages that he or President Akufo-Addo should have obtained in the election to support his request for a run-off.
The EC in its response avers that the Presidential Election Declaration Form (Form 13), which is the tally of the 16 Form 12s transmitted, without the results of Techiman South Constituency, and showing the total votes cast and the total valid votes, shows that President Akufo-Addo won the December 7, 2020 election.
It further argued that the figures from the results converted into percentages showed that President Akufo-Addo had obtained more than 50 per cent of the valid votes, which met the constitutional threshold for the election of President under Article 63(3) of the constitution.
The EC also denies allegations of wrong aggregation and vote padding in some constituencies and describes the allegations as misleading and self-serving.
Hearing continues on Thursday, January 28, 2021.
BY Gibril Abdul Razak