SC Caught Flatfooted With Decision To Uphold Application By 1st and 2nd Respondents Not To Call Any Witnesses

The Ghana national flag, center, flies in front of the Supreme Court building in the city of Accra, Ghana, Tuesday, Oct. 6, 2015. Ghana's judicial service says seven high court judges have been suspended following corruption allegations by a journalist. In a statement released Monday, the Judicial Council said the decision was made following the judges' "stated misbehavior." (AP Photo/Christian Thompson)

A Researcher at the Corpus Christi College of the University of Cambridge, says the Supreme Court had been caught a flatfooted with their decision to uphold the application by the 1st and 2nd Respondents not to call any witnesses in the ongoing election petition hearing.

Oliver Barker-Vormawor said though he sides with the court’s decision not to compel the witnesses to testify, the court was taken by surprise by the 1stand 2nd Respondents’ decision not to call any witnesses.

Speaking on JoyNews’ Newsfile Saturday, the Researcher explained that the arguments made by counsels of the 1st and 2nd Respondents when they opposed the interrogatories from the petitioner, gave the impression that the 1st respondent [Jean Mensah] was going to commit herself to testify.

And it seemed the apex court believed same, thus refusing to admit the petitioner’s interrogatories, Mr. Barker-Vormawor said.

“This is where I think there is room for nuance. You know I generally believe that it would be wrong on the court to compel witness or the respondent to defend a case in a different manner that the court seems is the best way to defend the matter.

“But in this case I think there is some persuasion in people’s argument that the circumstances in this case are arguably slightly different in that the witness in repeated affidavits and the 1st respondent’s counsels’ arguments in opposition appeared to commit herself to appear as a witness.

“And in the exchange of that commitment urged the court to refuse the interrogatories and inspection of documents. In fact, if you remember the exchange between her ladyship Mensah Bonsu and counsel for the petitioner, the court itself has been caught a bit flatfooted in that they also kind of expected that some of the questions will be asked in cross-examination.”

He added that, “So this by all accounts was a special set of facts and I will not necessarily have been surprised even though I have taken the position the court was right in taking this decision. But I will not have been surprised if the court had insisted on the witness being cross examined especially if it took care to distinguish this case without claiming that this applies in all election petition cases by default.”

The decision by the apex court to uphold the application by the 1st and 2nd Respondents not to call any witnesses in the ongoing election petition hearing followed oral arguments made by the lawyers for the Electoral Commission and President Akufo-Addo respectively, that their clients cannot be compelled to testify.

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Citing Order 38, rule 3 (e) sub-rule 1 and 5 of CI 47 as amended by CI 87, the two counsels had argued that the burden of proof in the petition hearing lies on the petitioner and therefore it will be wrong for the lead counsel for Mr. John Mahama to induce evidence from the Chairperson of the EC, Jean Mensa.

The Supreme Court in giving its verdict said the depositions in affidavits with regards to the interrogatories do not mean the witness can be compelled.

The Chief Justice explained that no provision in the constitution or statute has been pointed out to show the EC chairperson can be subjected to different rules contrary to established rules of procedure and settled practice.

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Chief Justice Anin Yeboah also sided with the respondents that the burden of proof lies on the petitioner and can only be shifted when that condition has been satisfied.



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