Lead lawyer for the petitioner in the ongoing election petition hearing at the Supreme Court, Mr Tsatsu Tsikata was yesterday trapped in a quagmire, battling for options to revive what some legal experts have described as a dead case.
This was after the Supreme Court, in a unanimous decision, upheld an application by the 1st and 2nd Respondents, Electoral Commission (EC) and President Nana Addo Dankwa Akufo-Addo respectively, that they do not intend to call witnesses in the petition filed by Mr John Dramani Mahama.
The Apex Court ruled that the EC Chairperson, Jean Mensa and Peter Mac Manu for the 2nd Respondent cannot be forced to testify in the case as it will be an error in law to do.
Its ruling followed the application filed by lead counsel for the EC, Justin Amenuvor and that of President Akufo-Addo, Akoto Ampaw, stating they will not adduce evidence in the case and therefore their witnesses cannot be compelled to enter the witness box for cross-examination.
Citing Order 38, rule 3 (e) sub-rule 1 and 5 of CI 47 as amended by CI 87, the two counsel argued that the burden of proof in the petition hearing lies on the petitioner and therefore it will be wrong for the lead counsel for Mr. Mahama to induce evidence from the Chairperson of the EC, Jean Mensa.
They averred that the evidence presented by the petitioner did not meet the burden of proof threshold and therefore, it was unnecessary to put witnesses for a counter case.
However, Mr Tsikata said since the lawyers have not made a submission of no case, the burden of proof rule did not apply as argued by the lawyers for the Respondents.
According to him, the respondents “elected” to give evidence in the case when they filed their witness statements.
He also argued that the EC Chairperson has a constitutional duty to give accounts of her stewardship and the events that led to the December 9, 2020 election declaration with the view to clarify how some errors were made.
But Chief Justice Kwasi Anin-Yeboah who read the ruling of the seven-member panel of judges hearing the petition said they were not convinced by the contrary arguments made by Mr Tsikata.
He pointed out that they were given a limited jurisdiction in the Election Petition case and that they do not intend to go beyond that jurisdiction.
“We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64 (1) challenging the validity of the election of a president.
“Simply put, we are not convinced, and we will not yield to the invitation being extended to us by counsel for the petitioner to order the respondents to enter the witness box to be cross-examined. Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce evidence in this petition,” he added.
Justice Anin Yeboah also stated that submitting a witness statement does not constitute evidence until the witness enters the box and takes the oath to indicate reliance on it.
Again, the depositions in affidavits with regards to the interrogatories do not mean the witness can be compelled.
He explained that no provision in the constitution or statute has been pointed out by Mr Tsikata to show the EC chairperson can be subjected to different rules contrary to established rules of procedure and settled practice.
Supreme Court
The Supreme Court sided with the respondents that the burden of proof lies on the petitioner and can only be shifted when that condition has been satisfied.
Justice Anin Yeboah reiterated that the court does not have the power to compel a party to give evidence.
The apex court has subsequently ordered the respondents to file their closing addresses for the closure of their case by February 17.
Hearing has also been adjourned to February, 18 2021.
Just after the ruling, Mr Tsikata served notice that he will be applying to reopen the petitioner’s case, apply to subpoena chairperson Mrs Jean Mensa to enter the witness box for cross-examination and for the Apex Court to review yesterday’s ruling.
THE CUSTODIAN has gathered that the petitioner filed the applications yesterday.
