Counsels for the first and second respondents in the ongoing presidential election petition hearing have asked the petitioner to rejoice over their decision not to let their witnesses testify since that gives the court the opportunity to decide the case on the pleadings of the petitioner as well as evidence given by his witnesses.
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.
Counsels for the two respondents 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.
Subsequently, lawyers for the first and second 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.
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.
Yesterday, all three lead counsels in the case took over three hours to make their legal arguments on their reasons why witnesses for the respondents must testify or not.
Lead counsel for the EC, Justin Amenuvor, 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.
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 as argued by the lawyers for the EC and President Akufo-Addo.
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 application for interrogatories.
Mr Tsikata opined further that statements by the EC Chair through various affidavits available binds her to be cross-examined.
He insisted in a heated, long debate with the bench 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.
The seven-member panel, after hearing both sides of the legal arguments, adjourned sitting to tomorrow, Thursday, February 11, 2021 to rule on the application.