John Mahama
The Supreme Court yesterday unanimously dismissed an application filed by former President John Dramani which was seeking the court to review its decision not to order the Chairperson of the Electoral Commission (EC), Jean Adukwei Mensa, to enter the witness box and be cross-examined.
A nine member panel of the court presided over by the Chief Justice, Anin-Yeboah, held that the application failed to demonstrate that there existed exceptional circumstances that occasioned a miscarriage of justice through its earlier ruling which was given by seven judges in the ongoing Presidential Election Petition.
Main Application
Mr. Mahama’s lawyers filed a motion for a review of the Supreme Court’s decision on February 11, 2021, which held that it was a settled principle of law that a court could not compel a party to adduce evidence in a trial.
The former President insisted 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.
Mr. Mahama insisted in the review application 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.
It was coming 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.
Genesis of Application
Mr. Mahama on February 9, 2021 closed his case after lawyers for the respondents (EC and President Akufo-Addo) 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, 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 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.
They insisted that the petitioner did not meet the threshold for burden of proof and burden of providing evidence and decided that they would not adduce any further evidence in the matter.
Lawyers for the former President then filed an application urging the court to order the Chairperson of the EC to testify and be cross-examined on ground that she plays a very important constitutional role and must be made to account for her stewardship.
The seven member panel of the court presided over by Chief Justice Anin-Yeboah 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 among others, 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 is adopted as evidence,” it said.
The former President then filed an application for a review of that decision, arguing that it occasioned a miscarriage of justice.
Oral Arguments
Moving the motion yesterday, Tsatsu Tsikata, lead counsel for Mr. Mahama, told the court that the Chairperson of the EC had sworn an affidavit in opposition to their application for interrogatories, and indicated that the answers sought could be solicited through cross-examination.
He argued that per Section 26 of the Evidence Act, that representation by the EC boss had estopped her from declining to give evidence as she had indicated her availability to be cross-examined.
“That is why Ground A of our review made it clear that this court, not making reference to per Section 26 of the Evidence Act, led to a decision per incuriam,” Mr. Tsikata told the court.
He continued that the conduct of the EC Chairperson when she declared the results of the Presidential Election was at the heart of the petition and the answer to the petition acknowledged that her conduct was flawed and attempts were made to correct those flaws by way of an unsigned press statement which could not be the same as a declaration.
The lawyer also intimated to the court that they were aware a court could not compel a party to testify but they were dealing a witness who made a statement which was conclusively presumed that she would appear to testify and must be made to do so.
Mr. Tsikata, quoting Articles 19 Clause 13 and 296 of the 1992 Constitution, argued that there was a denial of fair hearing in the court’s ruling because both statutes, authorities they cited and factors of discretion that they had put before the court, demanded a different ruling.
EC Opposition
The application was opposed by the respondent who argued that the court’s ruling did not occasion any miscarriage of justice on the petitioner.
Justin Amenuvor, counsel for the EC, argued that the court had already heard the application in respect of which the depositions were made in the affidavits to the fullest and determined it.
He said if indeed Mr. Mahama wanted to rely on the statements of representation which claims were in the depositions, he would have waited patiently until the time the Chairperson of the EC mounted the witness box, adding that “the reliance being placed on Section 26 of the Evidence Act is misconceived.”
Again, Mr. Amenuvor argued that an application for review was not a second chance for a party to re-argue his or her case, adding that “the Supreme Court cannot sit on the decision made by itself, as if it is determining an appeal.”
Nana’s Opposition
Akoto Ampaw, lead counsel for President Akufo-Addo, on his part argued that the application did not properly invoke the review jurisdiction of the court.
He said the application was a classic example of a party who had become emotional about the decision of the court and sought to use the back door to re-argue his case.
He argued that the major foundation of the application for review was the “interest of justice,” but it was a well-known fact that when the court ruled in the interest of justice, it was dependent on the circumstances of the particular case, adding that one could not use the ratio of interest of justice in a case as a magic wand in all cases.
He said the application was completely unmeritorious and did not satisfy the very strict provisions of the court regarding reviews, and ought to be dismissed.
Final Ruling
Two Justices namely Lovelace Avril Johnson and Amadu Tanko were added to the existing panel to hear the review and in their ruling the judges unanimously held that Rule 54 of the Supreme Court Rules, C.I. 16 set down the statutory requirements for invoking the review jurisdiction of the court and bub Rule A of the rule required the applicant to demonstrate that there existed exceptional circumstances that occasioned a miscarriage of justice.
“In this application, learned counsel for the applicant has taken us through various aspects of the ruling without demonstrating to the court areas in which this ruling has occasioned miscarriage of justice. To succeed on the first leg under this rule, the alleged error must not only be established by the applicant but must also demonstrate that a miscarriage of justice has been occasioned by the ruling.
“We have considered the submission on the effect of Section 26 of the Evidence Act; we are not persuaded that the issue of statutory estoppel urged on us by the applicant’s counsel by reason of not specifically referring to in the ruling under review, renders the ruling per incuriam,” it said.
The court added that “We have also taken into consideration the applicant’s reliance on Article 19 Clause 13 and 296 of the 1992 Constitution. We are of the view that the applicant has failed to satisfy the court that new or important matter resulted from reference form the constitutional provisions referred to, in the result the application fails and it is hereby dismissed.”
Fresh Issues
With the court’s decision, the respondents pushed that the application for stay of proceedings pending the already-determined motion had become ‘moot’ and needed to be struck out if Mr. Tsikata was not prepared to withdraw that application.
Mr. Tsikata then said he wanted the court to decide it on Monday, February 22, and also said they did not file the petitioner’s address because of the pendency of the stay application.
He said it was not out of disrespect but rather due to the fact that the application for stay, if it had been granted by the court, would have brought the EC Boss to testify.
The court subsequently struck out the application for stay of proceedings pending the review of the decision not to compel the EC Boss to testify as moot.
Mr. Tsikata then told the court that they had filed another fresh application for review to challenge the decision of the court that the petitioner could not reopen his case after closing it.
They also attached another fresh application for stay of proceedings pending the determination of the application for review.
The applications are expected to be heard on Monday, February 22, 2021.
BY Gibril Abdul Razak