John Mahama
The Supreme Court yesterday dismissed another attempt by former President John Dramani Mahama to serve some 12 questions on the Electoral Commission (EC) in respects to the ongoing 2020 Presidential Election Petition.
The court also in a unanimous decision dismissed another application filed by Mr. Mahama to replace paragraph 28 of the statement of case of his original petition as well add new facts to the statement of case which was filed on December 30, 2020 challenging the EC’s declaration of the results of the December 7, 2020 Presidential Election, which he lost.
Review Application
The former President had filed an application for a review of the highest court’s earlier ruling, where a seven-member panel of the court presided over by the Chief Justice, Anin Yeboah, unanimously dismissed the interrogatories.
Mr. Mahama was not satisfied with the decision of the seven member panel not to grant the application for his 12 interrogatories so he filed for a review of the decision, and the court had to bring in two more judges, making nine, to hear the review application.
The judges that are hearing the original Election Petition include Chief Justice Anin Yeboah and assisted by justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Getrude Torkornu and because of the review application, Justices Tanko Amadu and Henrietta Mensah-Bonsu, were added to hear the matter.
In the end, the nine-member panel unanimously dismissed Mr. Mahama’s application, saying, “We find that our inherent jurisdiction cannot be invoked under the circumstances of the case when the rules of the court have made clear provisions in the exercise of our jurisdiction in this matter.”
Mahama’s Interrogatories
The former President, who is challenging the results of the 2020 Presidential Election, filed the application for leave to serve 12 interrogatories on the EC, which he claimed would help “narrow down” the issues before the court for determination.
The questions among others include the processes involved in transmitting results from the district to the regional and then to the national headquarters of the EC.
Mr. Mahama also sought to solicit responses on whether or not the National Communications Authority (NCA) in any way facilitated the transmission of results from the various centres to the national headquarters of the EC.
Oral Argument
Tsatsu Tsikata, lead counsel for Mr. Mahama, in arguing the motion before the court yesterday, said that the judges erred in refusing the application on grounds that C.I.99 which guided the conduct of Presidential Election Petition did not make provisions for application for interrogatories.
He said there was nothing in C.I. 99 which repealed Order 22 of C.I. 47, adding that the provisions of C.I.99 regarding expeditious trial in election petition did not anywhere speak against the filing of application for interrogatories and the court could not rely on it to dismiss the petitioner’s application.
He urged the court not to proceed with its earlier ruling but review and allow the petitioner to serve the application for interrogatories.
He also contended that the court erred in its earlier decision to dismiss the application as the application for interrogatories served the interest of expeditious trial.
Mr. Tsikata relied on some decided cases, including one by the Supreme Court of Nigeria, which granted leave for a petitioner to serve an application for interrogatories.
He said that the application for interrogatories as well as their request to the EC to admit certain facts would narrow down the case before the court and urged the court to review its earlier decision.
He concluded by saying the questions sought answers that were legitimate and said the court did not exercise its discretionary power in accordance with Article 296 of the constitution when it dismissed the earlier application for not raising issues of relevance.
EC Opposition
The application was opposed by lawyer for the EC, Justin Amenuvor who contended that the application did not canvass anything new or any special circumstances for granting review applications.
He said the application before the court was just a rehash of the earlier argument made by the petitioner on January 19, 2021 in support of his application for leave to serve the interrogatories.
Emotional Reaction
Mr. Amenuvor described the application for review as an ‘emotional reaction’ to an unfavourable ruling of the court against the petitioner and must be dismissed.
Nana Lawyers
The application was also opposed by Akoto Ampaw who is lead counsel for President Akufo-Addo who argued that the court grounded its earlier decision on some key issues—relevancy, lack of matters in controversy C.I.99, which establishes strict timelines.
He said the court never in its decision said. C.I. 99 had repealed Order 22 of C.I.47 hence the petitioner could not make that argument, describing it as a misconception and a big block that lawyers for the petitioner were putting on the court.
He argued that the issues being sought in the interrogatories do not form a part of the issues set down by the court for determination and were no relevant to the determination of the case.
Mr. Ampaw added that every application for interrogatories must be considered based on its merits hence it is a misconception to say that it ought to be granted because the court granted one in the 2012 election petition hearing.
Key Ruling
A nine-member review panel then dismissed the application for not meeting the criteria for seeking a review before the court.
“We have considered the submissions canvassed for and in opposition for this application. We notice that this application before this court is brought under the inherent jurisdiction of the court to file additional grounds of review and replace paragraph 28 of the original statement of the case and to file a supplement to the statement of the case. The application which was argued before us was not sanctioned by any provisions in C.I. 16, specifically from rules 54 to 60 of the Supreme Court rule C.I. 16 of 1996.
“In law and by the settled practice of this court, it should be noted that review and appeals are conceptually different and the rules governing the application in either of them are very distinct and this court has in several cases exhibited remarkable consistency. All the other cases referred by the counsel for the applicant are based on original jurisdictions and civil appeals.
“The Tamakloe case does not in any way discuss the grant of an application for the reliefs sought before us. In civil appeals and original jurisdiction matters before this court, there are express provisions to grant the reliefs sought in this application and the court may in appropriate cases grant such applications in the interest of delivering justice under rule 15 of sub-rule 11 and 51 of C.I.16, 1996. To grant this application would be tantamount to expanding the scope of jurisdiction of review which jurisdiction is not provided under this court by the rules. We find that our inherent jurisdiction cannot be invoked under the circumstances of the case when the rules of the court have made clear provisions in the exercise of our jurisdiction in this matter. We accordingly dismiss the application,” the Chief Justice said.
Motion To Amend
Mr. Mahama in another motion was seeking leave of the court replace paragraph 28 of the statement of case as well as add supplement to the statement of case.
Mr. Tsikata, while moving the motion, made references to some decided cases of the court in which it granted leave for the amendment of statements of cases.
Addressing the issue of amending paragraph 28 of the statement of case, he stated that the Supreme Court in exercising its jurisdiction in hearing a review application was able to admit a supplement to the statement of case.
He said the question to consider was whether the supplement to the statement of case would help the court to administer justice in the hearing of the case.
The court asked Mr. Tsikata if he was asking the court grant him leave to add a supplementary statement of case by invoking the review jurisdiction of the court which was totally different from its appeal jurisdiction.
He said precedents had been set by the Supreme Court interpreting and allowing supplementary statement of case as being part of a review.
He added that the court had recognized that supplementary statements of case where it could assist the court to address the matters before it, might grant the leave to file them.
Opposition
The application was opposed by the respondents who argued that it did not properly invoke the jurisdiction of the court.
Mr. Amenuvor said the rules guiding a review were very strict and a party seeking a review of the court’s decision must abide by those rules.
Mr. Ampaw also opposed the move by saying the review jurisdiction of the court was a very special one that the grant of such application must canvass special circumstances for them to be granted.
Another Ruling
The nine-member panel presided over by Justice Anin Yeboah dismissed the application reviews and said appeals were conceptually different and the rules governing the application of either of them were very distinct as he said the court had in several cases exhibited remarkable consistency.
He added that granting the application would be tantamount to expanding the review jurisdiction of the court.
Moot Application
The court earlier struck out two motions before it for being moot.
One was an application for stay of proceedings pending the determination of the review application filed by lawyers of Mr. Mahama which was struck out after Mr. Tsikata withdrew it.
The other one was an application for abridgment of time filed by lawyer for the EC seeking the court to hear the review application earlier than the return date of January 28, 2021.
Full Trial
The court then has set today to begin the full trial of the petition where the court will be hearing testimonies from Mr. Mahama’s witnesses.
The former President has already filed General Secretary of the NDC, Johnson Asiedu Nketia, and former Executive Director of National Service Scheme, Michael Kpessa-Whyte, as witnesses.