A nine-member Supreme Court (SC) review panel presided over by Chief Justice Anin Yeboah, has dismissed the latest application by John Dramani Mahama, the Petitioner in the ongoing election 2020 petition, seeking a review of the decision of the court which overruled the Petitioner’s objection to the decision of the Electoral Commission (EC) not to testify after the Petitioner closed his case on the 8th of February 2021.
The Supreme Court on the 11th of February 2021, upheld a decision by the Electoral Commission (EC), as 1st Respondent, and President Akufo-Addo, (2nd Respondent) not to testify on the basis that the Petitioner had not adduced enough evidence to show that the elections of 2020 were flawed.
Lawyers of the Respondents, Justin Amenuvor, (for the EC) and Akoto Ampaw for (President Akufo-Addo) indicated at the close of the Petitioner’s case its 12th court sitting (on 8th February 2021), that based on the evidence (or lack thereof) adduced by the Petitioner, his three witnesses and having regard for the five (5) issues set down by the court, they did not see the need to present any evidence because the Petitioner, in their opinion, had failed to make a compelling case to the court.
Grounds for the Review
According to the Court processes filed by the Petitioner for the review application, five (5) grounds were identified as the basis for which the Petitioner was seeking the review and they were that;
- a) The ruling of the court in respect of 1st Respondent not being called to testify was per incuriam section 26 of the Evidence Act 1975; and has occasioned a grave miscarriage of justice to the Applicant.
- b) The ruling of the court was in fundamental error in failing to appreciate how the crucial constitutional role of the Chairperson of 1st Respondent necessitated her being called upon to testify, and has occasioned a grave miscarriage of justice to the Applicant.
- c) The ruling of the court was in breach of Articles 19(13) and 296 of the Constitution and has occasioned a grave miscarriage of justice to the Applicant.
- d) The ruling of the court was in fundamental error in seeking to distinguish its earlier decision in Sumaila Bielbiel v. Adamu Dramani, while relying on the ruling in an English court case, the circumstances of which differed from circumstances in this case; and has thus occasioned a grave miscarriage of justice to the Applicant.
- e) The court fundamentally erred in putting forward positions which were not what Counsel for Respondents put before the court in respect of their case, thus occasioning a grave miscarriage of justice to the Applicant.
The Supreme Court in a unanimous decision ruled that the Petitioner did not raise any new exceptional circumstances for which the court should review its ruling dated the 11th of February 2021. The court further held that the Petitioner did not in any way satisfy them that the 1st Respondent not being called to testify was per incuriam section 26 of the Evidence Act 1975; and has occasioned a grave miscarriage of justice to the Applicant.
To this end, the court dismissed the review application in its entirety.
New Application, Next Court Sitting
After the ruling of the review bench, the court reconstituted with the seven-member panel to hear the second application, which was an application for stay of proceedings pending the determination of the review application. Lawyer for the Petitioner, Tsatsu Tsikata, refused to either move the application or withdraw it. However, lawyers for the respondents, Justin Amenuvor, for the EC and Akoto Ampaw, for President Akufo-Addo, indicated to the court that since the said application was filed pending the hearing of the Petitioner’s review application, and to the extent that it has been determined by the Supreme Court renders the application for stay of proceedings moot and same should be dismissed.
The Supreme Court agreed with the Respondents and dismissed the application forthwith.
The Supreme Court further noted that the Petitioner had filed yet another review application with regards to the decision of the Supreme Court which dismissed the Petitioner’s application seeking to reopen its case in order to subpoena the Chairperson of the Electoral Commission, Jean Mensa, to testify as his hostile witness. The court adjourned sitting to Monday the 22nd of February 2021 to hear the latest application and to set a date for the final judgment with regard to the petition.
Lawyers of the Respondents, after the Petitioner closed his case, relied on Order 38, Rule 3E, Sub Rule 5 of Constitutional Instrument, C. I. 87 as amended and Order 36, Rule 4 (3) of Constitutional Instrument C. I 47, and argued that the court would not require any further evidence from them to determine the petition. They indicated that they did so at their own risk and that, they would “fall on their sword,” should the court determine the case in the favour of the Petitioner.
Lead lawyer for the Petitioner, Tsatsu Tsikata, in a lengthy argument on why the court should not entertain the decision of the Respondents, noted that since the Respondents had already filed witness statements, they had, per the provisions of Order 36, Rule 4 (3) of Constitutional Instrument, C. I 47, already elected to adduce evidence and that the court compel the witnesses of the 1st Respondent, and Chairperson of the Electoral Commission Jean Mensa, and Peter Mac Manu, for the 2nd Respondent, to be cross-examined by the Petitioner. He argued that the attempt by the Respondents to close their cases without calling their witnesses was an affront to justice.
In their ruling read by the Presiding Judge, Chief Justice Anin Yeboah, when the court constituted on the 11th of February 2021, the seven-member panel which included Justices Yaw Appaw, Samuel Marful-Sau, Nene Amegatcher, Professor Ashie Kotey, Mariama Owusu and Gertrude Torkonoo, said it would be wrong for it to conclude that once a party in a case files a witness statement, it is bound to adduce evidence.
The reason for this position the court said, was because the filing of a witness statement does not constitute evidence until a witness is sworn in and his/her witness statement is adopted by the court.
The court also noted that its inherent jurisdiction did not require that it extend its powers beyond what the position of the law is.
Furthermore, the Supreme Court noted that although the EC boss had been tasked to play a constitutionally mandated duty, a new set of rules of court could not be set for her. The court, citing several authorities, also concluded that a witness was under no obligation to adduce evidence if they wished not to.