Jean Mensa as adverse witness: Supreme Court dismisses motion

The Supreme Court yesterday dismissed yet another motion in which former President John Dramani Mahama is seeking to re-open his case in order to subpoena the Chairman of the Electoral Commission (EC), Mrs Jean Adukwei Mensa.

A seven-member panel of judges presided over by the Chief Justice, Justice Kwasi Anin Yeboah, said the counsel for the petitioner, Mr Tsatsu Tsikata, had failed to demonstrate  to the court how the testimony of Mrs Mensa would help the case of his client, who is challenging the declaration of President Nana Addo Dankwa Akufo-Addo as the winner of the 2020 presidential election.

The court said it was baffled by the intimation of Mr Tsikata to bring the EC boss as an adverse witness.

More importantly, the court noted that the petitioner had not demonstrated that the ruling of the court on Feburary 11 that overruled Mr Tsikata’s objection regarding the decision of Mrs Mensa not to adduce evidence had occasioned any miscarriage of justice to warrant the court to exercise its inherent jurisdiction in favour of the petitioner.

Justice Yeboah said the petitioner did not close his case after the testimony of Mr Joseph Rojo Mettle-Nunoo, Mahama’s third witness, just because Mrs Mensa had filed a witness statement.

The court was of the considered opinion that a plaintiff or a petitioner did not require the evidence of his or her adversary to prove his or her case.


Mr Tsikata filed the motion seeking the leave of the Supreme Court to re-open his case and serve a subpoena on Mrs Mensa to testify as an adverse witness, otherwise referred to a a hostile witness in common law.


On Monday, February 15, Mr Tsikata moved his motion to re-open the petitioner’s case, arguing that the witness had every reason to accept the subpoena to vindicate her role and her office to testify in the proceedings.


Mr Justin Amenuvor, counsel for the EC, opposed the petitioner’s motion to re-open his case, noting that the application was an abuse of the court’s process and not warranted by any rule of law or by procedure.


He asked the court not to entertain the motion, explaining that it would collapse Ghana’s adversarial system of litigation.


Mr Amenuvor contended that such an application did not augur well for the determination of this matter under Article 64(1)  and Constitutional Instrument (C.I.99).


Taking his turn to oppose the motion, Mr Akoto Ampaw, counsel for President Nana Addo Dankwa Akufo-Addo, told the court that the instant application did not raise any new matter of relevance, which could not have been discovered by diligent effort and did not warrant the grant of leave to petitioner to re-open his case.

 
He said the matters raised in the application were urged on the court by the petitioner’s counsel in the various interlocutory applications and objections which were thoroughly addressed by the court in its rulings.


He said the application was but a disguised invitation to the court to sit on appeal and, or review its own decision.


Mr Ampaw stated that the petitioner’s disclosed intention to subpoena the Chairperson of the EC to testify was nothing but a ploy to undermine and subvert the court’s rulings refusing petitioner’s various applications for discoveries and to re-open the very issues that the court had determined. 

Furthermore, Mr Ampaw said the intended subpoena was a contumacious attempt to subvert the right of Mrs Mensa and that of President Akufo-Addo, who is the second respondent, not to testify, which was affirmed by this Court in its ruling of February 11, 2021.


He said the jurisdiction of the apex court invoked in the petition was a special one and the attempt by the petitioner to re-open his case on matters which were well within his knowledge relating to the grounds of the petition throughout the conduct of the petition ought to be rejected by this court.


He told the judges that the petitioner’s reasons for the instant application were not germane to the resolution of the issues set down for trial and could not affect the outcome of the petition.


Mr Ampaw said the sanctity and authority of the court ought to be protected by declining the petitioner’s application for leave to re-open his case.


He said the petitioner should not be indulged, by the grant of this application, to litigate piecemeal; more so, as he had persistently defied the orders of the court.


“In the circumstances, we pray that the application be dismissed as same is devoid of any merit and only calculated to rehash petitioner’s earlier submissions and shore up a case that has manifestly collapsed,” Mr Ampaw said.


BACKGROUND 


Former President Mahama has urged the Supreme Court to annul the results of the December polls, as none of the candidates who contested the election obtained the required 50 percent plus one constitutional threshold to be declared the winner of the 2020 presidential election.

Mr Mahama is also asking the apex court for an order of injunction restraining Nana Akufo-Addo from holding himself out as President-elect.



In his response, counsel for President Nana Akufo-Addo, Mr Akoto Ampaw, described the petition as incompetent, devoid of substance and did not measure up to the legal criteria or an action invoking the jurisdiction of the apex court under article 64(1) of the Constitution, 1992.

He said the petition was merely conjectural and born out of petitioner’s unfounded imagination, and that the material facts in the petition did not support the reliefs being sought.


For its part, the EC said it admitted that in reading out the results on December 9, 2020, its Chairperson inadvertently read out the figure representing the total number of valid votes cast as the figure representing the total number of valid votes, and the percentage of the second respondent as 51.59 per cent instead of 51.295 percent.


Again, the EC stated that on December 10, 2020, it made a correction and clarification of the results declared on December 9 through a press release, but added that the correction  and clarification  did not affect the overall results as declared.

BY MALIK SULLEMANA

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