Mr Tsatsu Tsikata is seeking a review of the decision by the Supreme Court reaffirming the stance of the first respondent (EC Chairperson) not to testify in the ongoing Election Petition trial.
Mr Tsikata, Counsel for the Petitioner, (former President John Dramani Mahama), said the Court made fundamental errors of law in the February 11 decision and same had occasioned “a miscarriage of justice against him (the Petitioner).”
The Petitioner said those fundamental errors of law constituted an exceptional circumstance to warrant the review application.
On February 11, 2021, the Supreme Court dismissed an application by the Petitioner to compel the Chairperson of the Electoral Commission (EC) to mount the witness box to be cross-examined on her witness statement.
The Petitioner, after closing his case, wanted the Court to compel the first respondent, Mrs Jean Mensa, and second respondent, Nana Addo Dankwa Akufo-Addo, to mount the witness box to be cross-examined after they had closed their cases.
The Court, however, in a unanimous decision, held that in civil trial, it could not compel a party to mount the witness box.
The seven member panel said the Court’s inherent jurisdiction did 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 constitutional 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,” the Court said.
Lawyers for the EC and President Akufo-Addo had said they had closed their case and were not calling any witness in the trial after the Petitioner had called three witnesses and closed his case, though they had filed witness statements.
Mr Justine Amenuvor, the 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.
He 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 pray the Court to uphold our application,” he said.
Mr Akoto Ampaw, the Lead Counsel for President Akufo-Addo, associated himself with the EC Counsel’s submissions, arguing that the Petitioner’s Counsel’s arguments, opposing the action not to call witnesses, were “misconceived.”
He said the stand taken by his client rather worked in favour of the Petitioner.
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, he 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 Ampaw said.
Mr Tsikata, however, objected to the EC’s position, which he saw 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.
He said the EC Chairperson explicitly stated that in her affidavit in opposition to the Petitioner’s stay of proceedings and application for interrogatories.
“The EC chairperson made representations to the Court and she cannot resign from those representations,” he said.
Mr Tsikata said Mrs Mensa had carried out a particular responsibility of conducting election 2020 and she ought to render account for that.
On Monday, February 8, the Petitioner closed his case after calling three witnesses; Johnson Asiedu Nketia, the NDC General Secretary, Dr Michael Kpessa-Whyte and Mr Robert Joseph Mettle Nunoo, both members of the National Democratic Congress.
The first and second respondents also closed their cases saying in view of the evidence adduced through the Petitioner’s witnesses, they would no longer call any witnesses because they believed that the burden of proof had not shifted for them to open any defence.
The Petitioner is in court challenging the validity of the 2020 Presidential election results declared by the EC Boss.