[ 2021-02-16 ]

Mahama can't reopen case just to subpoena Jean Mensa – Supreme Court
The Supreme Court of Ghana has ruled that former
President John Mahama, the petitioner in the
ongoing election petition, cannot reopen his case
after closing it, for the sole purpose of
subpoenaing the star witness of the Electoral
Commission and using her as an "adverse" witness.

Chief Justice Anin Yeboah read the ruling in court
on Tuesday, 16 February 2021.

He quoted several authorities to buttress the
court's position.

"A mere filing of a witness statement is not an
election to testify", Justice Anin Yeboah said.

He continued: "As we’ve already indicated in
this ruling supra, the petitioner in this
application has not given us an inkling of the new
or fresh evidence he wants to bring to the fore
through the Chairperson of the first respondent
and how that evidence could assist the court to do
justice to the matters under consideration in this
petition. Neither has he disclosed how that
evidence will advance the cause of his petition.
For the above-stated reasons, we find no merit or
favour in the petitioner’s application to reopen
his case for the sole purpose of compelling his
adversaries’ intended witness to testify through
a subpoena without indicating the sort of evidence
he intends to solicit from the said witness and
how that evidence is going to help the court in
resolving the dispute before us. We accordingly
refuse the application and proceed without any
hesitation to dismiss it".

Mr Mahama’s lead counsel, Mr Tsatsu Tsikata, had
argued in court on Monday, 15 February that his
side intended reopening the case so that it could
subpoena the Chairperson of the Electoral
Commission, Mrs Jean Mensa, as a “hostile” or
“adverse” witness if leave had been granted by
the court to his side’s prayer.

Mr Tsikata also insisted that for the sake of the
God Mrs Mensa worships, it was important for her
to mount the witness box.

In his counter-arguments against the reopening of
the case, Mr Justin Amenuvor, lead counsel for the
EC said allowing Mr Tsikata to cross-examine Mrs
Mensa as a hostile witness would be an abuse of
the legal process.

Also, Mr Akoto Ampaw, the lead counsel for
President Nana Akufo-Addo, the second respondent
in the case, argued that the party that bore the
burden of proof, “as the petitioner does in this
matter, must effectively meet that burden of
proof”.

Prior to Monday’s hearing, Mrs Mensa, the star
witness of the first respondent, the EC, deposed
to an affidavit opposing Mr Mahama’s push prayer
to the apex court to reopen his case.

The affidavit said the EC “decided that it would
not waste time and effort over the tottering
case” of Mr Mahama, “hence, my decision not to
testify because there was nothing to testify
about”.

Mrs Mensa added: “The 1st respondent is opposed
to the said application and says that the
application is not warranted by any rule of law or
procedure and the same should be dismissed by this
honourable court”.

“I am advised and verily believe that the
application does not show sufficient reason for
the court to permit the petitioner to reopen his
case. I am advised that reopening a case is not a
remedy for the asking; the applicant must show the
harm to be suffered if the case were not reopened.
The petitioner skipped this requirement”.

“Again, I am advised that the petitioner’s
lawyers were confident when they closed his case
without reservation, and this court ought not to
permit proceedings before it to drag unduly on the
basis of a party’s afterthought and inability to
prove its case in court,” the affidavit said.

The EC added that the “petitioner entered into
the contest herein believing that he would testify
if need be. It became clear, too soon, that the
petitioner’s case drifted into departures from
the Strong Room by the petitioner’s agent of his
own volition and grievances that I had served
‘tea without biscuits’ to the petitioner’s
agent who had left the Strong Room to be in my
secretariat”.

“The 1st Respondent Commission decided that it
would not waste time and effort over the tottering
case hence my decision not to testify because
there was nothing to testify about”.

“Again, the petitioner deposes in support of his
case to matters concerning ‘the biometric
verification process for which huge sums of
taxpayers’ money was spent.’ These are matters
that have sprung up in this application for the
first time and do not form the basis of the
petitioner’s petition”.

“I verily believe that there are more convenient
fora (forums) for ventilating the so-called public
interest issues and further that this should not
form the basis of the petitioner re-opening his
case in a presidential election petition in
court”.

“The petitioner deposes in the supporting
affidavit further that this court has the power to
summon me, as a witness. I am advised and verily
believe that the application is an abuse of this
honourable court’s process insofar as it does
not tell this court whether I am needed as a
witness for the petitioner or for the 1st
Respondent or what I am required to say”.

“I verily believe that this court has power to
call a witness suo motu but not a party, let alone
a party adjudged to have a vested right to decide
not to testify”.

“I am opposed to the petitioner being granted
leave by this honourable court to re-open a case
that he closed of his own volition without
compulsion”.

“I am advised that even if this court grants
leave for the petitioner to reopen its case; it
ought not cause a subpoena to be issued against me
because a subpoena is issued with coercive
effect,” Mensa noted.

Source - Class fm

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