“Can’t she change her mind” – Supreme Court to Tsikata’s incessant calls for EC to testify

Justices of the Supreme Court have asked the Counsel of the Petitioner, Tsatsu Tsikata whether the Electoral Commission Chairperson Jean Mensa was not at liberty to change her mind.

The question posed to Counsel for the petitioner Tsatsu Tsikata is as a result of the first respondent (Electoral Commission) indicating that it wishes to close its case.

Mounting a spirited challenge in response to the question, Mr Tsikata said in the context of fairness the EC boss must testify.

According to him, the EC boss Jean Mensa who acted as the Returning Officer for the December 7 election is at the heart of the election petition case.

He further argued that once the first respondent (Electoral Commission) has indicated its readiness by filing a witness statement, it should call on its witness.

“By filing its witness statement the first respondent (Electoral Commission) has crossed the bridge as far as cross examination is concerned. That ship has already been crossed so she cannot back out now.

“In respect of an answer to our petition, she signed a statement of truth. All these affidavits she signed are before this court already. Undoubtedly, she knows the truth is what will make you free and instead of coming forward as a witness she said no,” Mr Tsikata said.

Refusing to testify, he said is an affront to justice and also not in accordance to the rules of the court.

In the interest of justice, he urged the court not to allow the respondent to adduce evidence.

Mr Tsikata also makes reference to an affidavit filed on January 22, this year, in response to the dismissed interrogatories review filed by the petitioner, urging the court to allow the EC Chairperson respond to 12 key questions it believed was important to their case.

“In the affidavit filed, the EC said the applicant does not suffer any injury at all to his right if the court dismisses the case as he still has the opportunity to ask questions if he so wishes during cross examination.

“Affidavit to the motion in response to the stay of proceedings filed — the EC again said the petitioner does not suffer any injury at all because the applicant will still get the opportunity to cross examine her,” Mr Tsikata read paragraphs of the EC’s affidavit to the court.

All these affidavit filed in response to the petitioner, Mr Tsikata said reassures the petitioner that the EC by all means intended to stand as a witness.

But the Justices interjected again. Justice Samuel Marful-Sau demanded, “if the first respondent can’t change her mind and also bearing in mind the court may have the power to allow or disallow that change.”

To which, he said that unless there is a good reason for the EC to change its mind about allowing its witnesses to testify.

Justice Mariama Owusu referred the petitioner’s legal team to the fact that they also failed to call all five witnesses as communicated earlier.

She asked Mr Tsikata if the apex court should equally compel the petitioner to call all five witnesses.

In response, Mr Tsikata indicated that the petitioner had not file witness statement for all five witnesses but three.

In support of Justice Owusu’s question, Justice Marful-Sau asked if the petitioner (John Mahama) should equally be compelled to testify.

To which, he said no.

“Who will compel him. He has not filed a witness statement. The petitioner is relying on his witnesses. Nobody can compel him to come and testify. There cannot be a legitimate reason for this comparison,” Mr Tsikata stressed.

Respondents also team up 

Counsel for the first respondent Justin Amenuvor, who was first to announce that it has closed its case and in effect will not call any witnesses, maintained that the commission does not see it fit to prove its case further.

With reference to law, Mr Amenuvor pointed out that a court cannot direct a witness to testify. He believes it is the duty of the petitioner (John Mahama) to prove the matter before the court.

He urged the court not to engage itself in an arena of conflict but rather allow the parties themselves to chose its witnesses.

As it stands now, he added that there is no rule that directs the respondent (Electoral Commission) to testify.

Mr Amenuvor said the legal team for the petitioner should rather rejoice in the fact that it has proven its case with its three witnesses.

He concludes by making reference to the 2012/13 presidential election petition where Justice Adenyira held that the burden of proof lies in the bosom of the petitioner.

Adding his voice, Counsel for the second respondent Akoto Ampaw said the second respondent (Nana Akufo-Addo) does not need to prove anything.

He makes reference to the Joseph Aknu-Baffour and two others versus Lawrence Bourco’s case at the Supreme Court, where the court held that “a litigant who is a defendant does not need to prove anything, the plaintiff who took the matter is the one who must prove.”

He argued that it is only when the defendant (in this case President Akufo-Addo) desires a determination to be made in his favour that he calls a witness.

According to him, the petitioner by law cannot compel the respondent to enter the witness box.

Mr Ampaw also said that the petitioner (John Mahama) should be happy that the apex court will soon bring the petition hearing to a close.

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