Supreme Court throws out Mahama’s request to re-open case
The Supreme Court has in an unanimous decision once again refused the petitioner’s legal team attempt to haul the EC boss Jean Mensa to the witness box.
The justices said the application to re-open the case was unknown in the country especially with regards to the current petition.
The court also said it was baffled by the use of the term hostile witness in supporting the case of the petitioner and went further to provide legal education on what a hostile witness is.
According to the panel, a witness cannot be called a hostile or adverse witness when it has not entered the witness box.
Reading out its ruling, Chief Justice Anin Yeboah cited many authorities and made reference to other cases, indicating that the petitioner’s team have failed to convince the court why it should grant its requests.
The court was of the view that the team have not demonstrated any new evidence, in its argument.
The court also maintained that the plaintiff or petitioner (John Mahama) must not rely on the evidence from the respondents (Electoral Commission and Nana Akufo-Addo) as its strength.
Justice Anin Yeboah reiterated that the team have also not furnish the court with the new evidence, it wishes to bring to bear through the testimony of the EC Chairperson.
It was of the opinion that the petitioner had decided to close its case based on the evidence they had provided through their three witnesses.
Aside from the CJ, the other panel members are Yaw Apau, Samuel K. Marful Sau, Nene Amegathcher, Professor Ashie Kotey, Mariama Owusu and Gertrude Torkornoo.
The apex court’s decision comes after the three parties on Monday argued about the petitioner’s decision to re-open its case.
Counsel for the petitioner Tsatsu Tsikata said he was taken by surprise when the respondents (Electoral Commission and Nana Akufo-Addo) announced closure of their case.
Mr Tsikata said the petitioner’s team had been assured of the respondent’s witnesses mounting the witness box since it had stated earlier in its affidavit.
He wants the court to treat the EC Chairperson Jean Mensa as a hostile witness. A hostile witness, also known as an adverse witness or an unfavourable witness is a witness whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness.
Making a case for the re-opening of their case, Mr Tsikata said the petitioner closed his case because the EC Chairperson, in her affidavit, had assured the court that she will make herself available for cross examination.
That assurance, he pointed out led to the dismissal of the petitioner’s interrogatories application, which sought to ask the EC Chairperson 12 key questions it claimed were critical to the case.
“We had the expectation that the chairperson of the first respondent (Jean Mensa) will testify hence the closure of the case.
“The Chairperson of the first respondent has in affidavit made clear that the petitioner will in no way be prejudiced because the questions that the petitioner sought to have in interrogatories those will be subject matter in cross examination,” Mr Tsikata explained.
He further said the two respondents (Electoral Commission and Nana Akufo-Addo) should rather be eager to mount the witness box to clear its names in the ongoing petition.
The respondents’ opposed the motion
The Electoral Commission on the other hand has asked the apex court to dismiss the fresh application to reopen the case.
According to Counsel for the first respondent Justin Amenuvor the application is not warranted by any rule of law or procedure.
The EC Chairperson in her affidavit in opposition to the application, explained that at no point had she informed the petitioner nor his lawyers of her desire to testify in the case.
Opposing the motion, Mr Amenuvor insisted that the application is not in accordance with the rules of the court.
He said the court is acting with strict timelines to work within the 42 days.
Mr Amenuvor told the court that an extensive research he conducted so far on re-opening of cases, pointed that it was not feasible.
With reference to common law, Mr Amenuvor said as far back as 1876 “no such attempt has ever been made. This is an abuse of the court processes.”
Akoto Ampaw Responds
Mr Ampaw, Counsel for the Second Respondent questioned the petitioner’s decision to re-open his case when he had through all three witnesses submitted its evidence.
Once the petitioner’s team have closed their case, Mr Ampaw said the court should rule based on the evidence before it.
According to President Akufo-Addo’s counsel, the three witnesses who testified have not proven to the court that the votes were indeed padded.
For the petitioner to be allowed to re-open their case, Mr Ampaw said they must prove that the fresh evidence they wish to put before the court was not available to them at the time it had closed its case.
He also said the petitioner’s team should prove how material the fresh evidence will be to the case.
Again, he said that lead counsel for the petitioner, Tsatsu Tsikata should have anticipated that the respondents could use the evasion of cross-examination strategy because that is permitted under the law.
“If you didn’t know about this strategy, then that is too bad for your client,” he noted.
According to him, the application of the petitioner to reopen his case was to present new evidence.
“This is an attempt to call for further evidence and he must be held to the rule on the condition to be met in order to adduce further evidence,” he said.
Meanwhile, the apex court has directed all parties to file their closing arguments on February 17, 2021.