Election Petition: Summaries of proceedings Jan. 26 to 29

The Supreme Court’s hearing in the presidential election petition filed by John Dramani Mahama on the 30th of December 2020 is ongoing.

Cross-examination of the Petitioners first witness, Johnson Aseidu Nketia by the 2nd Respondent is expected to continue and possibly end Monday. This write up seeks to summarize activities from the proceedings from last week and further explain the key process that was before the court.

Tuesday 26th January 2021

The Petitioner had several motions before the Court; Stay of Proceedings Pending the determination of Review, Leave to file additional grounds for Review, and the Review application itself and Abridgment of Time.

Review Application is a right opened to a party to basically challenge a decision of the Supreme Court on the ground of exceptional circumstances. This is rarely granted by the court as the court position is that litigation must come to an end.

Stay of Proceedings Motion is basically a legal step taken by a party to suspend the further continuation of a case until an event happens. In this instance the Petitioner wanted the entire hearing of the case to be suspended until his review motion had been held.

Leave to File additional grounds and further supplement arguments have the effect of seeking to further amend the review application filed by the Petitioner. Abridgement of Time Motion is a process that is filed by a party to reduce the time for an event to happen. In this regard, the EC’s lawyers wanted the Review Motion which was meant to be heard by the court on Thursday to be brought to Tuesday to ensure speedy and effective justice.

It will be recalled that, before these Applications being filed, the Court had made an order for parties to file their respective witness statements and legal submissions. The Witness Statement basically means a document containing the oral testimony of parties and their witnesses together with their evidence, be it documents, audio or video. The Legal Arguments related to the preliminary legal objection filed by the Respondents that the Petition should be dismissed. 

In the petitioner’s defence of failing to file his Witness Statement and written submission in response to the Preliminary Legal Objection he stated that having filed a motion for stay of proceedings, he didn’t comply with the order because he did not want to be deemed to have taken any fresh step which will prejudice his case and defeat the purpose of filing the application for stay of proceedings. This did not sit well with the panel as they stated that the petitioner ought to have complied with pre-existing orders made by the Court before the Petitioner filing the application for stay.

The Court proceeded to give a further direction stating that it will not countenance non-compliance of its orders and rehashed its powers under CI 99 to strike out a petition for failure to comply with orders of the court as such, the petitioner was once again ordered to go and file his witness statements and response to a legal submission before he will be granted audience on his pending motions before the Court.
 
Thursday 28th January 2021

At the beginning of the proceedings for the day, Counsel for the Petitioner withdrew the application for Stay of proceedings for which the Court struck out as being withdrawn. Similarly, the 1st Respondent also withdrew his application for Abridgment of Time for the Application for Review and same was struck out as being withdrawn.  This was because the said processes which were all meant to be heard on Tuesday had become moot and overtaken by events.

Counsel for the Petitioner then proceeded to move his Motion for leave to file additional grounds for the Application for review and leave to supplement the Statement of Case for the Application for Review of the ruling of the Court on interrogatories on 19th January 2021.

 The panel was reconstituted and Amadu Tanko and Mensah Bonsu JJSC were added to the original panel for the motions to be moved and heard.

On the Application for Leave to file additional Grounds and Supplement to Statement of Case, Counsel for the Petitioner, relied on several cases to establish a pattern and precedent which he believed was basis enough for the Court to exercise its Jurisdiction in his favour.

 The Court dismissed the application stating that the Rules of Court did not provide for such application and consequently cannot be allowed.

After the application was dismissed the Petitioner proceeded to move his substantive Review Application.

Counsel for the Petitioner in moving the Application for Review of the Court’s ruling given on 19th January 2021 on interrogatories argued extensively on why the Court should take a second look at its earlier ruling on interrogatories.

Mr Tsikata cited the case of ABUBAKAR, GCON and 2 OTHERS v. YAR’ADUA and 5 OTHERS (SC 72/2008) [2008] 10 (12 December 2008)a Nigerian case where the Nigerian Supreme Court had held that denial to grant leave to a party to serve interrogatories was a breach against a person’s right to a fair hearing.

Counsel for Respondents argued that Mr Tsikata had failed to discharge the test as provided under rule 54 of CI 16 for which reason the court should dismiss his application.

Rule 54 of C.I. 16 which provides that:
The Court may review any decision made or given by it on any of the following grounds:
a.      exceptional circumstances which have resulted in miscarriage of justice.
b.      discovery of new and important matter or evidence which, after the exercise of due diligence was not within the applicant’s knowledge or could not be produced by him at the time when the decision was made.

In essence Counsel for the Respondents submitted that all that Mr Tsikata had done was to re-echo his arguments earlier canvassed in the substantive motion and had failed to demonstrate to the Court any exceptional or special circumstance that had resulted in the miscarriage of Justice.

The Court after hearing the arguments of counsel for the parties held that it was not satisfied that the applicant had been able to meet or discharge the test on the grounds for review as stipulated in the Rules of Court and accordingly, again, unanimously dismissed the application. The court adjourned the Petition to Friday, 29 January 2021 for hearing.

Friday 29th January 2021

Counsel for the Petitioner informed the Court that Mr. Johnson Asiedu Nketia was ready and available to testify. Mr Asiedu Nketia subsequently took the oath and his Witness Statement was adopted as his evidence in chief.

Objection to Paragraphs in Witness Statement

Lawyer for the 2nd Respondent objected to parts of the Witness Statement of Mr Asiedu Nketia because they were not based on the pleadings and unduly prejudicial and scandalous.

The position of the law is that the testimony of a witness must be based on his case that he had presented in court which is his Petition. The objections were in respect of paragraphs 21, 6, 7, 25, 26, 28, 30, 32, 33, and 37.

Mr Amenuvor, Counsel for the 1st Respondent associated himself with the objections raised by Lawyer Akoto Ampaw.

Mr Tsikata opposed the objections and argued that the Witness Statement of Mr Asiedu Nketia was supported by the pleadings and Material to his case .

The Court in its ruling held that paragraphs

6and 7 ought to be struck out as the witness (Mr Johnson Asiedu Nketia) cannot testify on the facts in the said paragraphs.

Paragraph 25 and 26 were struck out as same was not based on the pleadings,

paragraph 26 was also struck out on the basis that it had no foundation in the pleadings.
 Paragraph 28 according to the Court was not borne out of the pleadings and the same was accordingly struck out.

In respect to paragraph 30, the court was of the view that it had no foundation in the pleadings as it just referred to C.I. 127 which the witness cannot testify to.

However, in respect of paragraphs 32 and 33 the court was of the view that it was based on the pleadings and therefore maintained it. In respect to paragraph 37, the Court stated that it was just an inference to be drawn and not evidence and therefore proceeded to strike it out.

Out of the 10 objections raised by Mr Akoto Ampaw, the Court maintained 3 of the paragraphs of the Witness Statement of Mr Asiedu Nketia and struck out 7 which were expunged them from the Witness Statement of Asiedu Nketia.

Commencement of Cross-Examination:
Mr Amenuvor began and completed his cross-examination of Mr Asiedu Nketia. Mr Asiedu Nketia stated under cross-examination that the Petitioner was “in court to challenge the performance of the constitutional obligations of the Electoral Commission.”

Lawyer Akoto Ampaw commenced his cross-examination, he requested to play a video he had attached to the witness statement of the 2nd Respondent however the video facilities were not readily available in Court. The Court therefore adjourned the case to Monday 1st February 2021 for the continuation of Cross-examination of Mr Johnson Asiedu Nketiah.