John Mahama and Jean Mensa
Former President John Dramani Mahama has renewed his attempt towards getting the Supreme Court to order the Chairperson of the Electoral Commission (EC), Mrs. Jean Adukwei Mensa, to testify and be cross-examined in the ongoing Presidential Election Petition he filed late last year.
His lawyers have filed a motion for a review of the court’s decision on February 11, 2021, which held that it was a settle principle of law that a court could not compel a party to adduce evidence in a trial.
The former President is insisting that the court made fundamental errors in its ruling when it denied his motion for an order compelling the EC boss to testify and be cross-examined.
In his latest application, which is seeking a review of that decision, he averred that the fundamental errors committed by the court resulted in a miscarriage of justice, and warrants a special circumstance for the court to review its own decision.
This comes at the back of the dismissal of another application by the former President which sought leave of the court to reopen his case to enable him subpoena the Chairperson of the EC to testify as an adverse witness.
Mr. Mahama on February 9, 2021 closed his case after lawyers for the respondents had concluded the cross examination of his third witness, Robert Joseph Mettle-Nunoo, aka Rojo, who had been called in belatedly.
The former President had called General Secretary of the NDC, Johnson Asiedu Nketia, and Dr. Michael Kpessa-Whyte before calling Rojo, a move that was technically against pre-trial arrangements but the court granted their request.
The two respondents (EC and President Akufo-Addo) at the close of the case of Mr. Mahama, respectively submitted to the court that having heard the evidence of the witnesses produced by the ex-President and upon cross-examining them, they did not intend to call any witnesses.
It was their argument that the petitioner did not meet the threshold for burden of proof and burden of providing evidence, hence would not adduce any further evidence in the matter.
Justin Amenuvor, lead counsel for the EC, told the court that they would not be calling any witnesses to advance their case, insisting that having listened to the evidence of Mr. Mahama’s three witnesses and having cross-examined them, it was his submission that the EC did not need to adduce any further evidence.
He told the court that Mr. Mahama should be happy that the EC had decided not to call any witnesses.
Akoto Ampaw, lead counsel for President Akufo-Addo, associated himself with the submissions of Mr. Amenuvor and added that the burden of proof lay on the petitioner and if the defence decided not to lead evidence the court would have to rely on the evidence of the plaintiff to make a determination.
He told the court that Mr. Mahama should actually be content that the respondents had chosen not to testify since the court would largely rely on the evidence of his witnesses.
Tsatsu Tsikata, lead counsel for Mr. Mahama, opposed the application, saying the respondents had already adduced evidence by filing a witness statement and could not turn around to say they would not be calling witnesses.
“By filing its witness statement, the first respondent (EC) has clearly crossed the bridge as far as opening up the witness for cross-examining is concerned.”
The seven member panel of the court presided over by the Chief Justice and assisted by Justices Yaw Appau, Samuel K. Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo, in its ruling on February 11, held that it was a well settled practice that a defendant in a case had a right not to adduce evidence after the close of a plaintiff’s case and the general principle of law was that a party could not be compelled to adduce evidence in a trial.
“We are of the considered opinion that it will be wrong in law that a party is deemed to have elected to adduce evidence as soon as that party files and serves a witness statement in compliance with a court order. To hold so will mean that once a party files such a witness statement, that party mandatorily has to mount the witness box and adduce evidence at the trial. This position is not borne out of the rules. A witness statement filed and served did not constitute evidence till the author of the statement mounted the witness box, took the oath and prayed that the witness statement be adopted as evidence,” they said.
The court also held that although counsel for the petitioner had argued that because the EC performed a very important constitutional duty, when it was sued in an action such as the instant case, different rules should be applied, he failed to refer the court to any provisions of the 1992 Constitution or any statute which required so.
Grounds For Review
The former President has now filed an application for review, urging the court to reverse its decision due to fundamental errors leading to miscarriage of justice.
As it stands, two justices would be added to the seven hearing the petition to consider the review process.
Per the grounds for the review, Mr. Mahama contends that “the ruling of the court was in fundamental error in failing to appreciate how the crucial constitutional role of the Chairperson of first Respondent necessitated her being called upon to testify; and had occasioned a grave miscarriage of justice to the applicant.
He continued that the ruling of the court was in breach of Articles 19(13) and 296 of the constitution and had occasioned a grave miscarriage of justice to him.
Again, Mr. Mahama contends that ruling of the court was in fundamental error in seeking to distinguish its earlier decision in Sumaila Bielbiel v. Adamu Daramani, while relying on the ruling in an English court case, the circumstances of which differed from circumstances in this case; and had thus occasioned a grave miscarriage of justice to the applicant.
“The court fundamentally erred in putting forward positions which were not what counsel for respondents put before the court in respect of their case, thus occasioning a grave miscarriage of justice to the applicant,” he argued.
Mr. Mahama further argues that as the Chairperson of the EC knew that the declaration of the winner of the presidential election was a matter within her sole prerogative.
“Only she could, therefore, provide the best evidence of what informed the declaration she made,” he added.
Motion For Stay
Ahead of the process for the review application, the former President has also filed another application for stay of proceedings pending the determination of the application for review.
Both applications are expected to be heard today.
Already, the court has ordered the parties to simultaneously file their respective closing addresses by close of Wednesday February 17 and adjourned the matter to February 18 for the lawyers to highlight the issues raised in their respective addresses after which the court set a date for final judgement.
In case the court grants the petitioner’s application for stay of proceedings, the date for the lawyers to make oral submissions of their respective addresses could be extended by the court.
BY Gibril Abdul Razak