S C dismisses petitioner’s application to compel witnesses to testify

Supreme Court

The Supreme Court has dismissed an application by the Petitioner in the Election 2020 Petition trial to compel the EC chairperson to mount the witness box to be cross-examined on her witness statement.

The Petitioner, Mr John Dramani Mahama after closing his case wanted the court to compel, Mrs Jean Mensa, the Electoral Commission Chairperson and second respondent, Nana Addo Dankwa Akuffo to mount the witness box to be cross examined after they have also closed their case.

The court however, in a unanimous decision held that in civil trial, the court cannot compel a party to mount the witness box.

According to the seven member panel, the Court’s inherent jurisdiction does not require it to extend its powers beyond what the law had stated.

It further noted that although the EC boss had been mandated to play a constitutionally mandated duty, a new set of rules of court could not be set for her.

We will not yield to counsel’s invitation to compel the first and second respondents to mount the witness box.”

Lawyers for the EC and President Akufo-Addo had indicated that they have closed their case and were not calling any witnesses in the trial after the Petitioner had called three witnesses and closed his case, though they had filed witness statements.

Mr Justine Amenuvor, lead Counsel for the EC cited Order 36 Rule 43 and Constitutional Instrument (CI) 87 rule 3 (e) 5, Section 62 subsection (2) of the Evidence Act to support his position.

Mr Amenuvor said the EC would not require further evidence to determine the matter before the Court after the Petitioner closed his case.

He argued that it was the Petitioner who brought them to court, led evidence, and closed his case after calling three witnesses.

“We don’t think we have anything to say. If he has a good case, he should go ahead and be happy dancing. We prayed the Court to uphold our application.”

Mr Akoto Ampaw, lead Counsel for President Akufo-Addo, also associated himself with submissions made by the EC’s lawyer, arguing that the Petitioner’s Counsel’s arguments opposing the action not to call witnesses were “misconceived” and same did address the thrust of the their position.

Mr Ampaw was of the opinion that the stands taken by his client, President Akufo-Addo rather worked in favour of the Petitioner.

He said under the English Law, a party could raise or notify the court that “it does not intend to adduce evidence in a trial” and same should be done timeously.

Mr Ampaw said, “We are of the view that in the light of CI 37, we are entitled not to adduce evidence. The Petitioner could tender our witness statement as hearsay evidence.”

Mr Tsatsu Tsikata, lead Counsel for the Petitioner, Mr Mahama, objected to the EC’s position which he sees as “evasion of cross examination”, adding that Mrs Mensa who represented the EC, had made it known to the Court that she would be mounting the witness box to be cross examined.

Mr Tsikata said that the EC Chairperson explicitly stated that in her affidavit in opposition to the Petitioner’s stay of proceedings and the Petitioner’s application for interrogatories.

Mr Tsikata had urged the Court to compel the EC Boss to mount the witness box to be cross examined.

He held that the EC Boss, known as the Returning Officer of the 2020 Presidential Election, had a constitutional obligations to perform by declaring the election results.

Mr Tsikata said “The EC chairperson made representations to the Court and she cannot resign from those representations.”

The Counsel for the Petitioner argued that the EC Boss had carried out a particular responsibility of conducting election 2020 and she ought to render an account for that.

“Her account is to declare who won the mandate of the people and same is captured in issue two of the issues set out by the court to be determined.”

Mr Tsikata alleged that the EC’s withdrawal was an “affront to justice” and same was not in accordance with the rules of the Court.

On Monday, February 8, this year, the Petitioner closed his case after calling three witnesses.

The witnesses were; Johnson Asiedu Nketia, the NDC General Secretary, Dr Michael Kpessa-Whyte and Mr Robert Joseph Mettle Nunoo, both members of the Party.

The EC Boss and President Akufo-Addo also closed their case, saying that, in view of the evidence adduced through the Petitioner’s witness, they would no longer call any witnesses because they believed that the burden of proof has not shifted for them to open any defence.

Mr Mahama is in Court challenging the validity of the EC’s declaration of the winner of Election 2020 polls.

The Petitioner also accused the EC of vote padding but EC has denied that assertion.

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