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Mahama’s “review application” lacks legal basis – dismiss it, EC urges Supreme Court

The EC says it believes the petitioner has not set out any exceptional circumstance necessitating the application for review

The Electoral Commission of Ghana (EC) has filed an affidavit in opposition to a review application by John Dramani Mahama, the petitioner in the ongoing Election 2020 case before the Supreme Court, seeking to reverse a decision of the court which dismissed his earlier application for interrogatories.

In the affidavit, deposed to by the chair of the Electoral Commission, Jean Mensa, the EC says it believes that the applicant’s affidavit in support does not show any exceptional circumstance making the application for review necessary.

“The applicant has not raised any specific miscarriage of justice suffered by virtue of the decision of the court to refuse the application for interrogatories,” the affidavit further says.

The lead lawyer for the former president John Mahama moved a motion, when proceedings started in court on 19 January 2020, praying the court for leave to serve certain questions on the Electoral Commission (the application for interrogatories). He claims that if these questions are answered they would narrow down the issues to be considered by the court.

No grounding in law

In his application, the former president requested the EC to answer, among other things, questions relating to processes involved in the transmission of results from polling stations to constituencies, from the constituencies to the regional offices of the EC, and subsequently to the returning officer for the presidential election, Jean Mensa, at the EC’s head office in Accra.

He also sought to solicit responses on whether or not the National Communications Authority in any way facilitated the transmission of results from the various centres to the national headquarters of the EC.

Acting through its lawyer, Justin Amenuvor, the EC opposed the application urging the court not to grant the application. The Commission argued that it does not raise any relevant issues that are in contention. The EC said that the answers being sought by the petitioner are contained in his own petition and in the responses of the respondents.

After going on recess for about 45 minutes, the court reconstituted and ruled that the application for interrogatories by the petitioner was not grounded in law and that it contravenes the rules governing the adjudication of election petitions (CI 99) which is the main matter before the court. “The application is hereby dismissed,” the Chief Justice ruled on 19 January 2021.

“Emotional reaction”

In the statement of case in opposition to the application for review, the lead counsel for the EC, Justin Amenuvor, argued that the petitioner will not “suffer any injury to his rights if the application for review is refused, as he still has the opportunity to solicit the same answers during cross-examination unless it is his case that he does not have the full complement of his case and needs the answers to fill in”.

“The thrust of Your Lordships’ decision is that CI 99 of 2016 has restricted the practice and procedure of the Supreme Court as a presidential election court, rendering the discovery processes under CI 47 inapplicable. Indeed, to borrow from Adade JSC supra, the reaction of the Petitioner to the ruling of 19 January 2021 is one of ‘an emotional reaction to an unfavourable judgment’,” said the EC in its statement of case.

“My Lords, also in the unreported case of Charles Lawrence Quist v Ahmed Danawi; review motion NO. J7/8/2015 dated 5th November 2015, Dotse JSC, reading the lead judgment of the court said:

“‘The authorities are quite settled that the review application is not a process for which a losing party in the Supreme Court may seek to have another bite of the cherry. Instead, an applicant in a review application has to point out from the judgment reviewed from the exceptional circumstances which have resulted into a miscarriage of justice. None was however offered by the applicant in this case,‘” the EC lawyer notes in his statement of case.

“My Lords, it is for these reasons that we urge Your Lordships to dismiss this application and proceed with the hearing of the petition filed by the Petitioner in this court. We pray that the application herein be dismissed,” the EC lawyer says.

Click on the link below to read the EC’s affidavit in opposition to the review application.

EC Affidavit in Opposition and Statement of Case

Wilberforce Asare / Aaase Radio

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