Jean Mensa – Chairperson Of EC
The Supreme Court yesterday dismissed an attempt by former President John Dramani Mahama to get the court to compel the Electoral Commission (EC) Chairperson, Mrs. Jean Adukwei Mensa, to mount the witness box to testify in the ongoing Presidential Election Petition filed by the former.
The seven-member panel presided over by Chief Justice Kwasi Anin-Yeboah unanimously made it clear that it would be going beyond its powers if it were to compel the EC Chairperson to testify in the trial.
Decided Cases
Citing a good number of already-decided cases, both local and foreign, the highest court held that the law was indisputably clear on the fact that a defendant in a civil case had a right not to adduce evidence during the trial at the end of the plaintiff’s case and the court could not go against it.
“We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64 (1) challenging the validity of the election of a President.”
They said, “Simply put, we are not convinced, and we will not yield to the invitation being extended to us by counsel for the petitioner to order the respondents to enter the witness box to be cross-examined. Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce evidence in this petition,” the Chief Justice read the ruling during the live televised proceedings.
The court, therefore, unanimously turned down the invitation by lawyers for Mr. Mahama, urging the court to order Mrs. Mensa to enter the witness box and be cross-examined.
Main Petition
The former President has petitioned the Supreme Court over the results of the December 7, 2020 Presidential Election which according to the EC was won by President Akufo-Addo as it declared on December 9, 2020.
Mr. Mahama in his petition is urging the Supreme Court to annul the results of the polls as he is claiming that none of the candidates who contested the election got the required 50 per cent plus one of the total votes cast needed to be declared winner by law.
He is also asking the highest court for an order of injunction restraining President Akufo-Addo from holding himself out as President-elect.
Again, the former President wants the court to order the EC to organize a second election with himself and President Akufo-Addo as the only two candidates.
Closed Case
Mr. Mahama last Tuesday 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 the General Secretary of the NDC, Johnson Asiedu Nketia, and Dr. Michael Kpessa-Whyte before calling Rojo, which was technically against pre-trial arrangements but the court granted their request.
No Witnesses
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.
EC’s Argument
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 cited decided cases in which the court held that the court could not compel a party to testify in a matter, and even where such laws exist, it will not be applicable.
He told the court that Mr. Mahama should be happy that the EC had decided not to call any witnesses.
Nana’s Argument
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.
Petitioner’s Objection
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,” he said.
He referred to the issues set down by the court for determination and stated that issue number two relates to what was done on December 9, 2020 and it was the constitutionality of that declaration that was at the heart of the petition.
“What is being put before you now is not only an affront to justice but is not in accordance with the rules of this court, and we respectfully submit that it must not be countenanced by this court,” Mr. Tsikata said.
Main Ruling
The seven member panel of the court presided over by the Chief Justice and assisted by Justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo in its ruling yesterday 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 been 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 does not constitute evidence till the author of the statement mounts the witness box, takes the oath and prays that the witness statement be adopted as evidence”
Constitutional Duty
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.
The court added that “We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction, clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64(1) challenging the validity of the election of a President. Simply put, we are not convinced and will not yield to the invitation being extended to us by counsel for the petitioner to order the respondents to enter the witness box to be cross-examined. Accordingly, we hereby overrule the objection raised by counsel for petitioner against the decision of the respondents declining to adduce evidence in this petition.”
Re-Opening Case
Mr. Tsikata, after the ruling, indicated to the court that he would be filing motion to re-open the petitioner’s case.
He stated that the re-opening of the petitioner’s case would allow him to serve a subpoena on the Chairperson of the EC to appear before the court to testify.
A few hours after the court closed, the petitioner filed the “Motion on notice for leave to re-open case of petitioner to enable Chairperson of the Electoral Commission to testify.”
Closing Addresses
At the end of the proceedings, the court ordered the parties in the matter to simultaneously file their closing addresses on or before February 17, 2021.
The parties would return to court on February 18, 2021 for the respective counsels in the matter to highlight the issues in the addresses filled for the petition to be adjourned for final judgement.