EC Boss Jean Mensa and her husband Charles entering the courtroom yesterday
Former President John Dramani Mahama yesterday faced another setback in his attempt to compel the Chairperson of the Electoral Commission (EC) to testify in the ongoing election petition he filed challenging the result of the 2020 Presidential Election.
A nine-member review panel of the Supreme Court unanimously dismissed his application for review which was urging the court to rescind its decision to deny his motion to reopen his case to enable him subpoena the EC Chairperson, Jean Adukwei Mensa.
The court in its decision held that the application was wholly unmeritorious and failed to meet the requirements for invoking the review jurisdiction of the Supreme Court.
The court after the dismissal of the application then set March 4, 2021 to give its final judgement in the case which the former President is claiming that none of the 12 candidates who contested the December 7, 2020, election petition got the required more than 50 per cent of the total valid votes to be declared winner.
The petitioner was ordered to also file his address by close of today after failing to do so last week as ordered by the court.
Mr. Mahama had filed a motion on notice for review, averring that the court’s decision on February 16, 2021 was in error of constitutional provisions, statutes and previous decisions of the Supreme Court and as a result occasioned a miscarriage of justice against him as the petitioner.
The application to reopen his case, he said, was necessitated by the decision of the two respondents – the EC and President Akufo-Addo – not to adduce evidence in the ongoing petition as provided by law.
His lawyers had challenged that election, arguing that the respondents had already filed witness statements hence could not “evade” cross-examination.
“Among other errors, I am advised by counsel and verily believe, is an error whereby the court subordinates a provision of the Evidence Act to a rule in subsidiary legislation by the Rules of Court Committee,” he had averred and claimed these alleged errors constituted exceptional circumstances that warranted the court to review its own 7:0 unanimous decision.
He also said there were “gross and fundamental errors that this court committed by not taking into due consideration multiple statutory provisions, thus occasioning a grave miscarriage of justice to the petitioner/applicant. This necessitates this application for review.”
Moving the motion before the Supreme Court yesterday, Tsatsu Tsikata, lead counsel for Mr. Mahama, argued that the ruling of the court was in contradiction of Section 72 of the Evidence Act as no reference was made to the provision, instead, the court relied on the Black’s Law Dictionary, which was not binding on the court.
It was his argument that the Laws of Ghana is not what is contained in Black’s Law Dictionary but rather what was contained in the Evidence Act of Ghana which is a statute.
Mr. Tsikata also argued that the court made an error when it relied on the Rules of Court Committee Order 38 Rule 3E(5) of the Court’s Act which is a subsidiary legislation as against the provisions of the Evidence Act which is an Act of Parliament.
He told the court that nothing could be more basic to the fact that a statute was of higher standard compared to the Rules of Court Committee, adding that the court could not sideline the operation of a statute by reference to a subsidiary legislationwhich in any case had no relevance to the issue in contention.
The lead counsel also argued that the court erred when it did not make any reference to Order 30 Rule 10 of the Court’s Act which gave the court the opportunity to summon a witness on its own aside the opportunity given to a party in a matter to subpoena a person in trial, and said the court’s ruling was in contradiction of Article 19 Clause 13 of the 1992 Constitution which deals with fair trial.
He ended his argument by referring to Article 296 of the constitution, and indicated that the court’s decision occasioned a miscarriage of justice against Mr. Mahama as he argued that the court failed to aver its minds to relevant statutes in the exercise of its discretion.
He said given the important constitutional role the EC Chairperson played, the court should have made her to testify in the interest of justice.
He said for the EC boss to have filed a witness statement meant that she was committed to mount the witness box, saying, “We have no reason to say she was not telling the truth.”
He then said the Holy Bible should guide the nine justices reviewing the case, quoting Hosea 8:7 and concluded that “May each of the lordships decide based on their conscience and their judicial oath.”
The application was opposed by Justine Amenuvor, lead counsel for the EC, who argued that the applicant did not meet the benchmark for invoking the review jurisdiction of the court as prescribed by Article 133 Clause 1 of the constitution.
He stated that the grounds on which the petitioner was seeking the review of the decision were at best additional grounds to those which were earlier canvassed in the motion seeking leave to reopen the case to subpoena the EC Chairperson.
Mr. Amenuvor argued that the court in giving its decision set down certain questions which related to the nature of the evidence being sought through the subpoena, the availability of the evidence at the time the petitioner had closed his case and whether the evidence would aid the court in the determination of the matter.
He said in the absence of any attack on the issues which informed the decision of the court, the review motion failed, as the court still had no idea the sort of evidence the petitioner was seeking to adduce through the EC Chairperson.
He added that an application for review was an opportunity given to a party in trial to reargue his case as though the review panel was sitting on judgment of the ordinary bench.
Counsel then replied Mr. Tsikata on the bible quotation and said that even though God is a God of conscience, counsel should not bring God into the court.
“God is a God of conscience, you do not bring God into the court and say because of God the application should be granted,” Mr. Amenuvor fired.
Akoto Ampaw, lead counsel for President Akufo-Addo, also opposed the application, stating that it woefully failed to satisfy the grounds for the grant of review and said it did not demonstrate any fundamental error which occasioned a miscarriage of justice.
He argued that the reference made to Section 72 of the Evidence Act was misconceived as the section applied when a party had not closed its case, adding that the petitioner in this case had already closed his case and it was irrelevant for the court to rely on it.
On the issue of elevating Order 38 Rule 3E(5) of the Court’s Act over the Evidence Act, Mr. Ampaw averred that there could be no doubt that Order 38 Rule 3E(5) was a part of the Laws of Ghana which was why the court relied on it and the court could not have erred in anyway.
On the issue of fair trial, he averred that the court had been fair to all parties as it had even on occasions given Mr. Mahama another chance to take certain steps after blatantly disobeying the orders of the court, stating that “they should be the last people talking about the right to fair trial as the court had accommodated them on many occasions.”
He added that the right to fair trial was a right conferred on all parties in a case and the court had held that a party had the right not to adduce evidence hence compelling her to testify would amount to breaching her right.
A nine-member review panel of the court presided over by Justices Anin-Yeboah and assisted by Justices Yaw Appau, Samuel K. Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu, Gertrude Torkornoo, Amadu Tanko and Henrietta Mensa-Bonsu in a unanimous decision dismissed the application for failing to meet the requirements for invoking its review jurisdiction.
The court said it disagreed with the argument of the petitioner that it allowed Order 38, rule 3E (5) to take precedence over a substantive Act of Parliament, adding that “this is a court of law, not a forum for suppositions.”
It was the position of the court that in situations such as this, where there were no precedence, the court needed to proceed cautiously in order not to open the Pandora’s box which would be a stepping stone for the abuse of court processes.
The panel speaking through the CJ also held that the motion for review failed to disclose any unreasonableness or irrationality by the decision of the court.
The court therefore, dismissed the motion for wholly lacking merit.
BY Gibril Abdul Razak