It’s wrong in law to compel a Witness to testify – Supreme Court overrules Tsikata’s request to cross examine Jean Mensa

The Supreme Court has in an unanimous decision again tossed out the petitioner’s request to have the Electoral Commission Chairperson Jean Mensa mount the witness boss to testify. 

The Chief Justice Anin Yeboah read out the detailed ruling of the seven member panel on Thursday, citing many authorities and disapproving some of the legal authorities cited by the Petitioners lawyer.

The court was of the view that there was no law that forces the apex court to subject a witness to testify against his or her will.

The court said it cannot extend its mandate beyond what the law mandates them to do so therefore cannot employ societies laws to subject the witness to testify.

Also, the court said that filing the witness statement does not mean the Electoral Commission must bring forth its witness because the statement is yet to be taken as evidence.

The apex court made reference to the Nyamekye versus Ansah 1989/1992 Ghana law report page 154, a ruling, which said “a party to an action need not give evidence himself, provided he can give evidence from other sources, the court will give its ruling based on the evidence before it.”

In the said case, the court held that a case is won on the strengths of the plaintiff and not the respondents.

He sided with the respondents that the burden of proof lies on the petitioner (John Mahama) and can only be shifted when that condition has been satisfied.

The seven member panel was also of the view that the EC Chairperson’s constitutional office does not mean a certain form of rule should apply and not the law.

Again, regarding the depositions in affidavit in opposition to interrogatories filed by the respondents, the court said the responses of assurance for cross examination does not make the respondent (Jean Mensa) compellable.

Justice Anin Yeboah maintained that no provision in the constitution or statute has been pointed out to show the EC chairperson is subject to different rules contrary to settled rules of procedure and settled practice.

The other panel members include Justices Yaw Apau, Samuel Kofi Marful-Sau, Professor Nii Ashie Kotey, Nene A. O. Amegatcher, Gertrude Torkonoo and Mariama Owusu.

Below are the arguments raised by all three parties with respect of calling witnesses.

Counsel for the petitioner Tsatsu Tsikata 

Mr Tsikata said in the context of fairness and justice the EC boss should 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.

Counsel for first respondent Justin Amenuvor

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.

Counsel for the second respondent Akoto Ampaw

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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