Supreme Court throws out Mahama’s application to reopen case
The reopening of the case of the Petitioner was also to afford the Petitioner in the ongoing trial of Election 2020 Election Petition, the opportunity to subpoena the Electoral Commission Chairperson, Mrs Jean A Mensa, to testify as a “hostile” witness.
The seven member panel presided over by Chief Justice Kwasi Anin Yeboah ruled that the Petitioner, Mr Mahama did not give the Court an inkling of the evidence his intends to lead.
Again the Court held that the Petitioner failed to demonstrate how the new evidence he intended to lead would help the court determine the case before it.
It noted that in granting a motion for a party to reopen its case, there must exceptional circumstances and the party must demonstrate to the court how that the nature of evidence they intended to lead, would affect the outcome of case.
These, the Court noted had not been met by the Petitioner.
The Court recounted how the Petitioner had prayed it through their lawyers the need for the EC Boss to vindicate herself.
“How can the EC boss vindicate herself if she is not on trial before us for misconducting herself over the performance of her constitutional duty,” the court quizzed.
The Court said it was baffled by the call made by the Petitioner to subpoena the EC Boss when it had made it clear on February 11 that the EC Boss cannot be compelled to testify.
The Court said the grant of reopening of the case was discretional adding, “That discretion should be done sparingly.”
On February 15, this year, moving the motion for leave to re-open the Petitioner’s case, Mr Tsatsu Tsikata, lead Counsel, prayed the Court to also grant him leave to treat Mrs Jean A. Mensa, as a hostile witness, if she were to mount the witness box.
Mr Tsikata contended that Mrs Mensa ought to be held accountable for duties she performed in relation to the Constitution. “They should tell the world how she acted on her stewardship based on the Constitution.”
Mr Tsikata contended that the issue of vote padding affected the rights of the people in declaration of election results hence the Electoral Commission chairperson should vindicate herself by mounting the witness box.
Counsel said for instance, the issue surrounding the ‘Form 13’ prepared by the EC, must be clarified.
Mr Tsikata held that none of the points in the affidavit of the EC Boss had provided “justification for them not to be allowed to open our case.”
“In the interest of achieving substantial justice, allow us to re-open our case,” Mr Tsikata prayed the Court.
Mr Justine Amenuvor, lead Counsel for the EC, opposed to the application, saying, the Petitioner in making depositions in his affidavit did not assign appropriate reasons for the Court to grant the Petitioner’s motion.
Mr Amenuvor prayed the seven-member panel not to allow the Petitioner, who had “competent lawyers” patch up his case with fresh evidence.
He was of the opinion that the Petitioner’s motion constituted an abuse of the court processes and same should be dismissed because the motion was not grounded in the rule of law or procedures of the Court.
Mr Amenuvor said the grant of the motion of the Petitioner would amount to opening the floodgates for other such interventions.
He said Ghana’s legal system was adversarial and even a look at the title of the Petitioner’s motion warranted a dismissal of the motion.
Mr Akoto Ampaw, lead Counsel of the Second Respondent, President Nana Addo Dankwa Akufo-Addo, argued that the question of burden of proof was fundamental, adding that, to date, the Petitioner had failed to make a case. “This application is an attempt to call further evidence.”
He said the case was about votes and numbers and that, “there’s nothing about the alleged engagements of the Petitioner’s witnesses with the EC Boss.”
Mr Ampaw said counsel for the Petitioner should have anticipated that the respondents could use the evasion of cross-examination strategy because same was allowed in law.
Mr Ampaw said the Petitioner’s motion for leave constituted, “an attempt to call for further evidence.”
On February 11, this year, the Supreme Court, unanimously dismissed an application of the Petitioner seeking the court to compel the two respondents in the Election 2020 Trial to mount the witness box.
The Court held that under the law, the two respondents could not be compelled to testify in a trial.
The Petitioner, however, held that in the interest of the public, the EC chairperson should testify in the matter.
Mr Mahama is in court challenging the validity of the declaration of Nana Addo, the second respondent, as the winner of the 2020 Elections.
He further accused the EC of vote padding, but the EC had denied the assertion.
The Petitioner called three witnesses and after their testimony closed his case. The EC and Nana Addo after analysing the petitioner’s case chose not to open their defence on the bases that the petitioner has failed to discharge its burden of proof.