The hearing for the 2020 Election Petition at the Supreme continued on Wednesday, February 3, 2021, with the hearing starting at exactly 9:30 am as scheduled.
Tsatsu Tsikata and Tony Lithur representing the petitioner, Justin Amenuvor with Somuah Asamoah for 1st Respondent and Akoto Ampaw with Frank Davies, Kwaku Asirifi and Yaw Oppong for 2nd Respondent.
Present at the hearing were National Chairman of National Democratic Congress (NDC), Samuel Ofosu-Ampofo, Johnson Asiedu Nketia, NDC General Secretary, Prof. Naana Jane Opoku-Agyeman running mate for NDC in 2020 election, among others who were there to support the petitioner.
Supporting the 2nd Respondent were Freddie Blay, the New Patriotic Party (NPP) National Chairman, 2020 NPP Campaign Manager, Peter Mac Manu, Henry Nana Boakye, the National Youth Organiser of the NPP, Information Minister-designate, Kojo Oppong Nkrumah and Gabby Otchere- Darko, a leading member of the NPP among other persons.
Representing the Electoral Commission were the Chairperson, Mrs Jean Mensa, and two deputies, Dr Bossman Asare and Samuel Tettey.
The lead Counsel for the petitioner, Tsatsu Tsikata, told the court of an application he had served and copies given to the Respondents.
The application was to inspect original documents of the 1st Respondent.
Making a case for his application, Mr Tsikata submitted that in view of the incessant changes in figures announced by the Chair of the 1st Respondent, it was essential to have access to the originals so as to correctly authenticate the numbers forming the basis of 1st Respondent’s declaration.
He further suggested that lawyers for the Respondents had cross-examined their witnesses on some of the documents they sought to inspect. He cited an example of the Eastern regional summary sheet, which they had two but the 1st Respondent was claiming one was a corrected version.
He started his submissions by referring to a ruling of the Supreme Court in a similar application in 2013 which was refused. He argued that in 2013, the court did not grant that application because the petitioner had put out duplicates of some of the documents he was demanding to inspect.
He informed the Court that in the present situation, they have not put out any figure and are depending on the words in the 1st Respondent’s declaration.
Justice Gertrude Torkonoo asked Counsel for the Petitioner what happens after the inspection and his response was that it will enable them to compare with documents they have. The judge then opined that so the Petitioner has some documents but does not see the need to bring to the court what they have?
After submission by Mr Tsikata, 1st Respondent’s Counsel in the person of Justin Amenuvor stated that the Petitioner had failed to bring the application timeously.
According to him, the application was being filed on the 34th day after the petition was filed. He was of the view that the Petitioner could not assume for himself the power of the Court and decide what procedure to use in the absence of clear rules.
Mr Amanuvor continued that the witnesses of the Petitioner, Mr Nketia and Dr Kpessah-Whyte had acknowledged under oath that the Petitioner had duplicate copies of all the documents being requested, hence the request was unnecessary. He concluded that the Petitioner had failed to provide any evidence to support the application, hence same should be dismissed.
When he took his turn, the lead Counsel for the 2nd Respondent, Akoto Ampaw, submitted that at the goal of the application by the Petitioner was the question of who had the duty of proving his case and providing sufficient evidence in the case.
He contended that for the Petitioner to demand to inspect the originals of documents, he must first produce what he has and make a case for it that what is in his position is different from the 1st Respondent’s so as to compel the original copies to be produced.
According to Mr Ampaw, the petitioner, having failed to produce his copies for reasons best known to him, the application, which seeks to shift the duty of who must produce evidence is completely a misconceived procedure and the Court should disallow it.
The Counsel for 2nd Respondent again submitted that the Petitioner had failed to meet the basic requirements of such an application as contained in the rules; which included demonstrating that the inspection of the documents was necessary either to dispose fairly the matter or save cost.
He, thus, concluded that the interpretation placed on the ruling of the court in 2013 was completely out of place and proceeded to demonstrate why. He then prayed the Application to be dismissed.
The seven-member Supreme Court panel, after rising for about 45 minutes to put their ruling together, dismissed the application when they reconstituted.
The Chief Justice, Anin Yeboah, reading the ruling of the court, said under C.I. 127, all candidates were entitled to the documents which Petitioner was seeking to inspect. He further noted that the witnesses of the Petitioner had both admitted under oath that the Petitioner has the documents through his witnesses.
Additionally, the Petitioner did not demonstrate he had no copies of the documents requested and under the Evidence Act, a duplicate of a document is admissible to the same extent as the original since the grant of the application was in the discretion of the court and proceedings so far did not show that the Petitioner did not have, the application was, thus, refused. Finally, the discrepancies alluded to by the Petitioner were issues of evidence and did not give rise to the present application.
The application was, therefore, dismissed.
After the ruling, the lead Counsel for the Petitioner requested to engage the Bench in Chambers to discuss a health issue concerning a third witness they intended to call in support of their case.
The panel obliged Mr Tsikata and requested that lawyer for the 1st Respondent, Justin Amenuvor and the 2nd Respondent, Mr Ampaw be present at the in-camera engagement with the Petitioner’s lawyer.
After about 15 minutes of engagement, the court reconstituted and adjourned sitting to today, Friday, 5th of February 2021 without giving any further directions as to what will be the business on Friday.
Further checks, however, indicate that the petitioner, John Mahama, will have a third witness, Rojo Mettle-Nunoo today to prosecute his case.