The Supreme Court yesterday, in a unanimous decision, refused to grant an application by lawyers of the petitioner in the ongoing election petition to inspect documents of the first respondent (Electoral Commission).
Mr Mahama’s legal team was demanding the original copies of the constituency presidential election result collation forms (Form 9) for all constituencies, original copies of all constituency presidential election results summary sheet (Form 10) and the originals of the regional presidential election collation forms (Form 11) for all regions.
He was also asking for the originals of the regional presidential election results summary sheets (Form 12) for all regions and the originals of the declaration of the presidential results form (Form 13), as well as the alleged update to the purported declaration of the presidential election results on December 9, 2020, of the results of four constituencies in the Greater Accra Region.
Mr Tsikata further argued that it had been established during the cross examination of first petitioner’s witness (Johnson Asiedu Nketia) that some areas had multiple summary sheets showing different results. He added that the opportunity to inspect the said documents would determine whether they would call for more witnesses or not.
But in a heated debate, counsel for the first respondent, Justin Amenuvor, opposed the motion, arguing that the documents were already in the custody of Mr Mahama through his agents who monitored the elections across the country.
He entreated the court to apply its similar decision on the same issue in the 2012/2013 petition where it denied such a request.
Mr Amenuvor again argued that even though the petitioner had 21 days between the time the results were declared and the time he filed his petition to have made that request, he failed to do so, adding that the petitioner’s witness admitted that they had the carbon copies in their possession.
Also opposing the application, the lead lawyer for second respondent, Akoto Ampaw, argued that it is the responsibility of the petitioner to provide evidence that there are different results somewhere for comparison to be made.
Describing the application as “misconceived, unmeritorious”, he argued that “this is an attempt to shift the burden of proof and production of evidence on we the respondents.”
The seven-member panel held that the applicant had not denied having copies of the documents being requested.
The court further stated that no new evidence had been given by the petitioner to warrant the granting of the application for the original documents to be handed over to him.
“The applicant has not demonstrated that he has no copies of the documents in question. In fact, on record, PW1 (petitioner’s first witness) and PW2 (petitioner’s second witness) have admitted on oath that the petitioner has all the copies of the documents. The application for discovery of documents requires the discretion of the court and the guiding principle. In all cases in which the court makes an order for discovery, it is a matter of discretion and not as of right.
“In an ordinary way, where there are issues of fact between the parties, the court will generally make such an order. However, in the instant case, the applicant has not raised any issue that he has no copies of the documents of the subject of this application. In view of the fact that the proceeding so far shows the petitioner has copies of all the documents, the subject of this application, we are of the opinion that no proper case has been made before us to warrant the exercise of our discretion in favour of the applicant,” the court said.
Meanwhile, Mr Tsikata told the court that a potential witness to the petition has a health situation. But for confidentiality sake, the panel and counsels for all the parties had to be informed about the details in the Judges’ chambers.
After the hearing of the details of Mr Tsikata’s explanation in chambers, the panel returned and the petition was adjourned to tomorrow, Friday, February 5, 2021.