Supreme Court to rule on respondents’ application not to testify today

The Supreme Court will today rule on a motion filed by counsel for the first and second respondents in the ongoing election petition. The two are asking the court to make a determination of the case based on its merit without their witnesses testifying.

Justine Amenuvor and Akoto Ampaw, counsel for the Electoral Commission and President Nana Addo Dankwa Akufo-Addo, respectively, on Monday ended their cross-examination of the three witnesses who testified on behalf of the petitioner following which counsel for the petitioner closed his case.

After the cross examination, the two lead lawyers for the respondents told the apex court that their clients had decided not to adduce any evidence, and accordingly urged the court to decide the petition on its merit.

The petitioner, John Dramani Mahama, is challenging the declaration of the second respondent, Nana Addo Dankwa Akufo-Addo, by the first respondent, the Electoral Commission, as the winner in the December 7, 2020 general election.

Argument

Citing Order 36 (4) sub rule 3 of the High Court (Civil Procedure Rule), C.I 47, the EC lawyer, Justin Amenuvor, argued that the rules allow the respondents to decide not to adduce any evidence.

“The case of the first respondent is that we do not wish to adduce any evidence. Our case is closed,” he argued.

Mr Amenuvor, in opening the motion, supported his argument with Section 62 of the Evidence Act, reiterating the argument that the court cannot compel his client to testify against her will.

He further argued that the rules in Order 38 (4)(4) of the High Court (Civil Procedure) Rules, C.I. 47 allowed the EC, which is the first respondent in the petition, not to adduce evidence.

For his part, lead counsel for the President, Akoto Ampaw, in aligning with the argument made by the counsel for the EC, maintained that the burden of proof lies with the petitioner and not the respondents.

He indicated that filing of witness statement does not constitute evidence, until the witness enters the witness box and sworn an oath before it can be deemed as evidence in chief.

Objection

However, lead counsel for the petitioner, Tsatsu Tsikata, argued that since the lawyers had not made a submission of no case, the burden of proof principle does not apply.

He further argued that the EC Chair had earlier indicated that she was going to submit herself to cross-examination, the basis for which the court took the decision to dismiss Mr Mahama’s earlier application for interrogatories.

Mr Tsikata opined further that statements by the EC Chair through various affidavits available bind her to be cross-examined.

He insisted that Order 38, rule 3 sub-rule 1 and 5 of CI 47, as amended by CI 87, does not apply to the current situation.

Subsequently, the seven-member panel adjourned the sitting to today, Thursday, February 11, 2021 to rule on the application.

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