- "My counsel is seeking leave of the court to reopen my case to enable the subpoena referred to above to be served on Mrs. Jean Adukwei Mensa, so she can appear before the court to testify."
The Supreme Court will today, 15 February 2021, hear the latest application by the petitioner in the Election 2020 petition, seeking that the court grant a request to reopen the case after closing it on 8 February.
John Mahama, the petitioner, closed his case after calling three witnesses in support of his petition against the declared results of 7 December 2020 presidential elections.
After closing his case, lawyers for the respondents, Justin Amenuvor (for the Electoral Commission) and Akoto Ampaw (for President Akufo-Addo), said that they do not intend to call any witnesses.
This is because they believe that the petitioner has not been able to adduce any evidence that invalidates the result of the elections to which they must provide answers. Accordingly, they expressed the wish to close their respective cases.
The lead counsel for the petitioner, Tsatsu Tsikata, raised an objection to the position taken by the respondents in the matter, arguing that the EC chair, Jean Mensa, had a constitutional duty to let the people of Ghana know exactly what happened in the 2020 general election.
Tsikata said that since the respondents had already filed witness statements, they had, according to the provisions of Order 36, Rule 4 (3) of Constitutional Instrument (CI) 47, already elected to adduce evidence.
He argued that, as such, the court should have compelled the witnesses for the first respondent (Jean Mensa) and second respondent (Peter Mac Manu) to mount the box to be cross-examined by the petitioner.
He argued that the attempt by the respondents to close their cases without calling witnesses was an affront to justice.
In their 11 February 2021 ruling, read by the presiding judge, Chief Justice Anin-Yeboah, the seven-member panel – comprising Justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Professor Ashie Kotey, Mariama Owusu and Gertrude Torkornoo – said it would be wrong 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 the position of the law.
Furthermore, the Supreme Court said that although the EC boss had been tasked to play a constitutionally mandated duty, a new set of court rules could not be set for her. Citing several authorities, the court concluded that a witness is under no obligation to adduce evidence if he or she wishes not to do so.
“We will therefore not yield to the invitation by counsel for the petitioner asking us to compel particularly the first respondent [the EC] to adduce evidence. The objection is therefore overruled,” the Supreme Court panel said.
Filing of addresses
The Supreme Court therefore ruled on 11 February 2021 that all three parties – the petitioner, first respondent (the Electoral Commission) and the second respondent (President Akufo-Addo) – were to file their closing addresses simultaneously by Wednesday 17 February 2021.
The court further ruled that it would reconstitute on Thursday 18 February 2021 for the parties to present their closing arguments.
Motion to reopen case
Following these developments, the petitioner filed a 39-paragraph affidavit, deposed to by himself (John Dramani Mahama), praying the court to grant him an opportunity to reopen his case in order to subpoena the EC chair, Jean Mensa, to appear before the court to testify.
“At the time my counsel closed my case, the representation that had been made by each respondent to the court, and specifically to me, was that the witnesses who had filed witness statements were going to testify. It therefore came as a surprise that both counsel for respondents announced, on Monday 8 February 2021, that this was no longer the case,” the petitioner said in paragraph 16 of his affidavit.
“My counsel is seeking leave of the court to reopen my case to enable the subpoena referred to above to be served on Mrs Jean Adukwei Mensa, so she can appear before the court to testify.
“I am advised by counsel and verily believe that the subpoena documentation to be served on Mrs Jean Adukwei Mensa is ready for filing once leave is granted to reopen our case,” the petitioner further said in paragraphs 17 and 18.