[ 2021-02-14 ]

Supreme Court was caught flatfooted
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
1st and 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.

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.

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.

Source - Joyfm

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