Election 2020 Petition Hearing Day 12: Witnesses to Testify or Not Testify - JoyNews (9-2-21)

[Music] let's look at the election petition the stage is set for legal argument this morning over whether or not john mohammed's lawyers should be allowed to subject the ec chairperson to questions lawyers for the ec on monday inform the courts they do not intend to call miss jin mensah into the box despite the fact that she had filed a witness statement we'll take you live now to the courtroom to catch up with today's proceedings [Music] may please my lord i appear for the petitioner and with me my learning friend tony litha okay why don't you take this [Music] for the first respondent with a.a someone asamoah if it loses your losses i go to empower for the second respondent my lords with me and my learned colleagues frank davis foreign yes may we hear you my lords i thought you wanted to hear all council on the where which case i believe it should start from the first country i thought they made their position clear and then respectfully your law trips us that on this matter which you indicate that you are not answering yes okay can counsel my lord it's a submission that a respondent or a defendant can elect not to call evidence at a trial in a civil case my lords we refer to other 36 rule 4 3 of ci 47 and ci 87 [Music] three e sub five [Music] well also the 36 rule four three of ci 47 and my lords order 38 rule 3 e sub 5 that is of as amended by c i 87 as amended by ci 87 my lords my laws we also rely on section 62. two of the evidence act nrcd323 those with your kind permission if i may read section 62 sub 2 if a witness who has testified is not available to be examined by all the parties to the action who choose to attend an examine and the unavailability of the witness has not been caused by any party who seeks to cross-examine the witness the court may in his discretion exclude the entire testimony or any part of the testimony as fairness requires now laws the evidence act is the point i chose to make with this section is that even if a witness enters a witness box yes he was preaching that at the end of the evidence can lawfully elect not to prove any evidence in their case that is the issue before us and a lot i made that point yesterday and it is the case for the first respondent that having had the evidence of the witnesses of the petitioner and the cross-examination by us it is a humble submission that we do not require any further evidence for this court to determine this matter and therefore we do not intend to call evidence because i wish to refer your lordships to the case of hydro form armor versus hydrophone estes ghana limited it's a decision of the supreme court reported in 2013 2014 two supreme court of ghana law reports yes my laws 2013 2014 two supreme court of ghana law reports 15 51 my laws at page 15 67. lost with your kind permission if i may read what the law of the kisses are versus hydrophone says ghana limited hydrophone i lost the court the supreme court speaking through his lawship benny jse called as follows a court has no duty to call upon any party to testify in the case the court acts as an umpire and only hears such evidence as the parties will prepare whether the parties will testify or not is none of the court's business indeed for a court to insist that the party should testify would amount to the judge descending into the arena of conflict after determining their tribal issues the tripod leaves the field clear for the parties themselves to decide who will testify we know of no law or rule which entitles the court to call upon a party to testify in the action if such a law or rule does exist we would venture to say that it is inapplicable under our legal dispensation a lot somalis is a submission that the petitioner has brought us to court he has led evidence he has closed his case we do not think that there is anything more for us to say it is our election it is three weeks we have taken if indeed the petitioner has a good case for us i believe that he should be dancing and be happy it's a submission that the position that we have i'm sorry i will draw it hello my lord i finally submit that if we go if we i refer the court also to the case of presidential election petition special edition that's the first one a lot the main judgment is reported yes i lost page 61 of the special edition of the supreme court of ghana law reports that's 2013 laws are referred or losses to page 217 and also to the judgment of adulterer jsc on on whom the burden of proof lies in the presidential petition therefore loss is our submission that our application that we made yesterday be upheld no no okay do you intend to also yes my lord my lord we associate ourselves with the submissions made by council for first respondent and in addition we wish to refer your lordships to the case of joseph akunobafo and two others this is lawrence reports [Music] for me and two others versus lawrence supreme court organizer reports 2013 56 56 where the court held referred to the agbosu and others versus coty and others 2003 2005 juan van alon reports as follows elixigan who is a defendant in a civil case does not need to prove anything the plaintiff who took the defendant to cut has to prove what he claims he's entitled to from the defendant at the same time if the court has to make a determination of fact or of an issue and that determination depends on evaluation of facts and evidence the defendants must realize that the determination cannot be made on nothing if the defendant desires the determination to meet in his favor then he has the duty to help his course or case by reducing before the court side facts or evidence that would induce the determination to be made in his favor and this is the important section the logical consequence to this is that if he leaves no such facts or evidence the court will be left with no choice but to evaluate the entire case on the basis of the evidence of the evidence of the creativity and also when we elect not to reduce evidence we do so at our own risk and will fall on the sword if after evaluating the evidence of the defender of the plaintiff or the petitioner in this case the court counsellor conclusion that the plaintiff has met his burden of producing evidence and burden of proof so my lords we we believe that the practitioner ought to be very happy that the case will be determined on his evidence including his evidence is chief and the evidence elicited from him during cross-examination petitioner did not give evidence yes my witnesses should be happy because this case let us advance by his weaknesses is the matter before the court together with evidence we have elicited from him from the witnesses in the cause of cross-examination so we we think that this is this our decision works in favor of of the petitioner and in any event the petitioner cannot by law compel us to enter the witness box and address evidence a lot we would also wish to observe that the english cases the english case of alexander versus reason that's cancelled no reason raising r a i alexander raison resin is spelt r a is unless you're abandoning your reference to it you have to give us that citation people i can't immediately identify the the citation oh my lord [Music] the main point we wish to make is that the english civil procedural rules make provision that the party that sticks to the party that seeks to raise or notify the court that it does not intend to lead at this evidence must do so consciously and and our point here is that in our rules both ci 47 and ci 87 the drafters make no such requirement of the party and indeed to the extent that rcr 47 takes inspiration from the english civil procedure rules of 1998 the fact that our drafters did not reproduce that tax because an election not rebound by that you haven't provided the text [Music] ah the case of alexander reason is reported in king's bench reports 1936 volume 1 at 1 6 it's one six nine nineteen sixty six my loss one six nine and my lords since alexander and raisin there have been various commentaries and decisions commenting on that decision and my lord it is our submission that the english courts have currently moved to a position where they recognize that a submission of no case may be entertained submission of no case by a defendant may be entertained by the court even in a situation where there's no jury now my laws for us the significant point here is that for now we have not indicated to the court that will be making a submission of no case so those series of authorities cited to support or submission of no case my laws will not apply we do not think those authorities will apply in this situation our position and submission is that the petitioner has produced evidence and closed his case we have taken the position that in our assessment they have not discharged the burden of proof and the burden of producing evidence and therefore will not lead any further evidence and the court will determine the case which has closed on the basis of the evidence before it so my lords we are we have the view especially in the light of the provisions of ci 87 that we are entitled not to address any evidence we are entitled not to call any witness and all that the petitioner may do if he so wishes is to tender our witness statement as hearsay evidence unfortunately for the petitioner he has closed his case so he cannot even do that accordingly we pray that our prayer to elect not to address evidence be upheld to pray accordingly my lords it is our respectful submission that the first and the second respondents have in fact adduced evidence in this case let's be perfectly clear let's be perfectly clear what we are seeing here what we are dealing with here before our very eyes the first respondent has put in a witness statement and lord i will first like to concentrate on the first respondent and then at the end i will make a few remarks about the second respondent because i think the first respondent is at the heart of this case so what is clearly before us is that the first respondent has put in a witness statement signed by its chairperson this is gina duque mensa who is a returning officer the constitutionally designated returning officer of the election who also signed the constitutional instrument under which the election took place ci127 an instrument which places specific duties on hair and hair alone she was who also signed the answer to the petition on behalf of the first respondent in respect of the answer she signed an affidavit of verification in respect of the witness statement she signed a statement of truth all these and more affidavits of mrs general requirements and that we shall refer to later in our submissions are before this court already we invite your lordships to take judicial notice of mrs gene manson's invocation of to the glory of god in making her declaration on 9th december 2020 undoubtedly she knows that the truth is what shall make you free yet instead of coming into the witness box for the truth to make her free her counsel is in effect saying to this court that she will not mount the witness box your lawsuits will note that council for the first respondent is not seeking to withdraw the answer of first respondent with affidavit of verification that has been sworn by the chairperson council for the first respondent is not seeking to withdraw her witness statement either in fact i heard just a moment ago that it is being proposed that we should put it in by way of hearing statements and all that this has nothing to do with hearing my loss i never said they should put it in with all due respect my lord it is true that he didn't say we should i believe he said we are entitled to or able to so if i said should let me correct myself to out of deference to the correct language that he used i believe it's true that he didn't say we should but he said something to the effect that we're entitled to or we are able to put it in he's giving us free legal advice which like free shs some people like some people don't like so much but anyway my lords the point that i just made by the side is that that offer of you know free advice about tendering us here is frankly i mean it is legally meaningless as far as we are concerned so counsel for the first respondent is not seeking to withdraw a witness statement council is simply announcing at the end of the case for the petitioner that first respondent is not going to call the witness who had submitted a witness statement that's the chairperson or first respondent who's who submitted the witness statement who is a returning officer for the presidential election and the constitutionality of whose declaration is at the heart of this case indeed issue number two that your lordship set down for determination in the petition reads whether or not based on the data contained in the declaration of the first respondent for this there's some missing words from there there's some missing words from you know well that is a certified true copy so let me proceed and we can we can later sort out what is missing i think the point i'm making is quite clear that the issue number two whose formulation will be clarified in because that issue relates to what was done in the declaration on the 9th of december there's only been one declaration that is to relate to that declaration and eventually we may come back to the formulation of that so it is the constitutionality of that declaration that is at the heart of this case and that is reflected in issue number two and in our respectful submission what is being put before you now is not only an affront to justice but it is not in accordance with the rules of this court and we respectfully submit it must not be countenanced by this court now council seeks to rely on order 36 rule 4 3 and also ci 87 and then eventually the evidence act and i wish to go through those provisions ci 47 order 36 which comes as was rightly pointed out it comes in a part of the rule the the the order which is headed order of speeches and the head notes for what it's worth says order of speeches rule 4 3 provides quite simply where the defendant elects not to address evidence where the defendant elect not to abuse evidence the defendant may after the close of the plaintiff's case opened the case of the defendant and after the evidence on behalf of the defendant has been given close the defendant's case at the close of which the plaintiff may make a speech and reply now my laws he declared that in that provision it goes beyond just order of speeches and so on which is the point i was making that yesterday but yes but my lord we are dealing with order 3643 and i'm submitting that if you look at the dispositive part the dispositive part of that rule 4 3 makes it clear that that rule has nothing to do with what is being proposed before you that rule 4 3 is saying where the defendant elects to abuse i'm sorry elects not to abuse evidence then whether or not the defendant has in the cause of cross-examination of a witness for the plenty for otherwise put in a document the plaintiff the plaintiff made after the evidence on behalf of the plaintiff has been given close the plaintiff's case and the defendant may then state the case of the defendant well that's all that that provision says the plaintiff may close and the defendant may then state the case of the defendant now what this is dealing with in the context of a civil trial is obvious what it is dealing with is that when we announce that we've closed our case when we do that this is saying that if the defendant elects not to abuse evidence then in effect they comply they come first in the order of address that essentially is what this is doing they come first in addressing the courts about their case so they may state the case that's what this is dealing with this is absolutely when you say they come first do you mean the plenty for the defendant comes the defendant comes first okay that is what this provision is saying in the event that they elect not to induce evidence now melods this provision cannot be the pretext for what council for the first respondent seeks to do namely preventing cross-examination of a witness who has already submitted a witness statement before this court and that witness statement was submitted based on it was submitted on the 22nd of january 2021 based on the orders of this court at the case management stage it's our respectful submission that by filing its witness statement the first respondent has clearly crossed the bridge as far as opening the witness up for cross-examination is concerned that bridge has been crossed that ship has already sailed my lords and determining issues regarding leave for serving interrogatories on first respondent please please mr chica before you have referred us to order 36 before you go on yes my lord i want you to read quran 38 rule 3 ye sub rule 5 of ci 47 as amended by ci 87 that is in respect of written statements under 38 that is respect of witness statements under 38 rule 3 sub rule 5 you can read sub rule 1 before you go and read sub group 5 then you appreciate the import of the rule of sector 47 as amended by ci 87 yes order 38 1 3 3 1 two and five rule three e yes seven one and then sub group five that's the c i it is yes three e one if a party has served a witness statement and that party wishes to rely at the trial on the evidence of the witness who made the statement that party shall call the witness to give oral evidence unless that party shall call the witness to give oral evidence shall unless the court otherwise orders unless the code orders otherwise or that party puts a statement in that party puts it in as hearsay evidence so in fact it is that party yeah but let's be just clear about what one says because one does not advance anything as far as but it fights in addition if a party who i'm sorry is it five or three f fine if if a party who has served a witness statement does not call the witness to give evidence of the trial or put the witness statement in as usa evidence any other party may put the witness statement in as usa evidence now my lords this is why i was going to i was going to advert your minds to various statements made in affidavits of the chairperson of the first respondent in connection with that very much envelopes i believe that if you will allow me to proceed with the order of my submissions i will explicitly address whatever concerns you have about ci 87 and its impact because my laws we are dealing with a situation here where in determining the issues regarding leave for serving interrogatories on the first respondent the fact that what was in the interrogatories could be the subject of cross-examination was a critical aspect of what was urged on the court by first respondent there was an affidavit filed on 22nd january 22nd january 2021 by the chairperson in opposition to a motion for review of the court's refusal to allow for interrogatories to be served and this is what she says in paragraph seven the applicant referring to the applicant for review the applicant does not suffer any injury at all to his rights paragraph paragraph seven the applicant does not suffer any injury at all to his rights if the court dismisses the review application as he still has the opportunity to solicit the answers he seeks during cross-examination if he so wishes this is the chairperson in her affidavit stating that the applicant does not suffer injury as he still has the opportunity to solicit the answers he seeks during cross-examination if he so wishes there is another affidavit on the 25th of january 2021 by the same chairperson 22 25th of january 2021 by the same chairperson of the first respondent in an affidavit in opposition to a motion for stay of proceedings and there she states in paragraph five as follows the petitioner does not suffer any injury at all to his rights if the court dismisses this application as the petitioner will still have the opportunities to solicit the answers he seeks during cross-examination if he so wishes these are statements of the chairperson who is now seeking to evade being cross-examined and she puts that the first respondent puts it beyond doubt that she has self knew that cross-examination was imminent in terms of the processes of the court so our submission is at the combination of the filing of the statements so it is a combination of the filing of the statement and the clear statements in the affidavits that we have quoted from that makes clear her own intimation to this court that she would be subjecting herself to cross-examination that is clear in her own words under her own hand and my lord can't she change her mind well my laws there ought to be good reasons there ought to be good reason for changing your mind and mellow mellows indeed indeed indeed indeed my laws if she changes her mind that should be openly put to this court and the court may have power to disallow that change yes my lords and i will i will if your lordship will allow me to because are you implying that by these affirmations in the affidavit she's stopped from saying that she will not give evidence is that yours that is correct that is the argument yes she has made representations to this court and to other parties in this case specifically to the petitioner she has made those representations and she cannot now resign from those representations unless there's good reason i i will come to the eco where there is good reason for anything the courts as your lordships did when there was uh paragraphs one to seventeen when it was obvious where there is good reason for something to be done of course the concept there's good reason there but there's no good reason here that is what i'm submitting because it has not even been put forward to you in that particular case the good reason was because the witness himself had noticed that there was a mistake in the statement of truth the statement of truth is basically a format you know from the solicitor's office and the witness assigned the 1-32 it he had not signed the statement of truth but the statement of truth made a reference to paragraphs okay one two so i made an application for an amendment so that is a completely different situation from what we have been taking one minute yes is there a reason why a witness should mount the witness books yes there is there's a lot of reason yeah especially when that witness is the declaring officer with a concern i'm not even narrowing down to the first respondent and this year and this yes in this whole hearing because with necessarily statement and we don't take them on the face of its value they have to mount their witness books swear and affidavit to they fed that what happened to the effect that what is contained [Music] in my witness treatment you know you know until that is done otherwise as soon as you finally witnessed it then you go on no examining my laws my lords were dealing with the specific circumstances of an election petition under the terms of ci 99 which your lordships have sometimes used to strike down the operation of ci47 and thing that this is a case that is different from all other cases your lordships have said so that's here 99. but what is this what is this what is there in syria 99 that suggests that witness states won't automatically become statements or notes there is in fact nothing in syria 99 about witness statements as your leadership knows there is nothing about witness statements this is being imported from ci47 and that's part of the issue that we're having and so that makes witness statements um automatically statements on those my lords the tenor of the witness statement as well as the answer in an election petition my lord in a state and normal state the cinema of claim in a high court you don't have the plaintiff having to sign and having to verify in an affidavit you don't have that you know what but in matrimonial petitions yeah you do this is just a different fold and that is replicated along the journey if along the journey of convincing cases some come in originating motions some come in petitions some come by rates each one has its character that's all well that's not all your lordships have said otherwise your lawships have said that an election petition under cia 99 has special characteristics and that is part of yeah so mr keith does that change the law on witness statements because we know witness statements are potential evidence my attention that is why the statement of truth is there so long as it is not sworn it's not a swastika it can't be evidence my lord you know judicial decisions are based on evidence my lord shall be taken where the witness comes to the box and take the oath my lord this is why i'm drawing your attention to the difference in the election petition case where the answer the petition and the answer are signed in this case the chairperson signed the answer and signed a statement of an affidavit of verification and and not only that she also signed the witness statement with a statement of truth as her potential i said potential evidence it's not potential it is because it's obvious it is no potential evidence and i shall i have generic songs it's evidence if you look at no not whether the filing of a witness statement means an election to reduce evidence that's what we need to agree on if it's an election to look at addre at is it an election can you look at can you look at or the 38th rule 3e2 now my lord it would have been useful for me to respond to what they provide no and then you can put but very well study age row 3 38 3 3 2 three e two row three order thirty eight the same rules that are better too the same rules earlier this is c i eighty thirty seven years very well now this is c your logic is going to cr 87 87 yes and this is under general rule is that it no use a trial of witness statements destructiveness so let me read where a witness is called to give overall evidence under 1 the witness statement of that witness shall stand as the evidence in chief of that witness unless the court otherwise others yeah so it is only when the person is called upon to give evidence then his witness statement becomes his evidence in chief my lord the mere following of a witness statement does not constitute evidence my lord it constitutes an election my loss is very clear order 36 which they are relying on it says where the defendant elects not to address evidence and my submission has been that they elected by the witness statement by the affidavits in which she said so and so and i will quote more affidavits of hers so it is the election we're not doing trial by witness statement then the defendant comes to court my lord secretary please a defender comes to court and he says that he's going to call himself is going to testify and call five witnesses and at the end of plenty of kiss he decides that my lord i'm not going to need evidence neither am i going to call witnesses my lord would he be bad from saying so because he has initially informed the court that him that was going to testify and caught fight with nurses my lords that is why i said that it depends on the context in this case we're dealing with a context of an election petition with its characteristics and we are saying respectfully that in the context of the election petition yes where the petitioner has put in a petition the petitioner has put in a statement of verification [Music] an affidavit of verification yes you have the answer and this chairperson signs the answer on behalf of the first respondent and after signing that she also signs the number of affidavits the petitioner in this case has signed a petition yes can he be compelled to come and give evidence now who will compel him he has almost deposed to all the affidavits that is not the point who are you going to compare what is good [Music] he has deposed several affidavits as and they witness my laws it's not a question of what is more serious the question of what the rules are and the rules where the defendant elects not to understand i'm saying that you are you are addressing us you've referred to several affiliates deposed by the chairperson or the first responder and i'm saying that i'm saying that in the same way the petitioner has deposed to several affidavits before us but we cannot compare him in david the giveaway petitioner that she say what i i'm going to be subjecting myself to cross-examination and therefore you don't need to serve me interrogatories nowhere has she done as a principle [Music] the petitioner has nowhere that i am going to present myself to cross-examination and then reside on that stupidity has never said that in fact the petitioner has not filed a witness statement the petitioner is relying on his witnesses which is entirely allowed so my lord nobody can compel him to come and say and what i what the point that i was making in respect of what is in the affidavits of this chairperson is that she has solved in opposing an application in respect of serving on her interrogatories she deposes to the fact that she is in effect going to be available to be cross-examined she says that i read the affidavit there's nothing equivalent to that in the affidavits of the petitioner nothing and there cannot be a legitimate comparison between the sectors of the petitioner and the status of the chairpers not the basis of that that it cannot happen the logic of the situation should compel us to only one conclusion that affidavit said i'm reading and i will read some more affidavits of his before i'm done those affidavits state clearly had this position to be cross-examined and she uses that as a basis for opposing the leave for interrogatories application she uses that so you can't discount that and nothing that that that the petitioner has done in an affidavit nothing compares to that something all that i'm saying is this if a party comes to court and informs the court that he's going to give evidence himself and call three witnesses and later on he changes his mind that because because of certain things that are happening i don't intend to lead evidence neither do i intend to call witnesses is the party bound or is called is a court kind of court compelled that because of the statement that he made my lord can he be compelled to testify my lords what i stated clearly is that all the 36 rule 4 3 is clear in its terms where the defendant elects not to add use evidence and so and so and my lord i have said that in this case this respondent this first respondent has elected and he's elected he's elected both both by filing the witness statement and also he is elected by her affidavit in which she was rejecting a request for certain information to be provided by her and she was in effect saying to us wait when i'm being cross-examined you can put it to me that's the effect of what she says in a witness in her affidavit that's the effect that's why i said if she changes her mind there are proper ways to effect that at the moment we do not have that situation and my lords i will i will respectfully further indicate that the dispositive part of order 26 rule 4 3 has nothing to do with what is being done before you that dispositive part just says the place it may after the evidence on behalf of the plaintiff has been given close the plaintiff's case and the defendant may then say the case of the defendant that's the dispositive part it has nothing to do yes but what has been done i think my brother on my right referred you earlier on to order 38 to 35. we did specifically witness statements here 87 would jesus specifically witnessed it means and an interpretation that we can put on either witnessed it yes my lord the fire the witness has gone to the witness box and and and and taking the judicial melody with respect with respect that is an erroneous interpretation what that rule reads if a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as usa evidence any other party may put the witness statement in us yes so this positive part of that is any other party may put the witness statement in as he say evidence that's the dispositive so it allows some party not to call a witness oh my lord that cannot be the prophet he said if a party says if a party who has stayed who has served the witness statement does not call the witness to give my lord don't decide who they call my lord and please mr kata and your rate you know relief the number of witnesses that petition intends to call five eventually you call three two and then you would leave up the court you add one but where are you going to insist that because you've written in your rate that you call five which is go and bring the five footnotes that is not the same zero we have not filed five with net statements we have not filed five with them no the matter is very clear we had not filed five witness statements so that analogy does not hold with me but i've already told you that yes the witness statement may be found but until the witness enter into the witness box and and swear an oath it is not evidence yet my laws this is not the position that was taken by this supreme court in a case sumaila bill bill versus adamu dramani and attorney general that position that your ladyship has expressed was but i have the ruling i think 2020 and then we can we can discuss what the impact of ci 87 is on that on that matter okay so week number j 1 slash 2 slash 2010. the ruling is delivered on 23rd yes it's uh it's uh 22 one supreme court of ghana law reports at 370. and my last i'm well aware that ci 87 was not enforced at that time but ci 47 was was was involved and my lord the the portion of his lordship justice and and malads it was a panel that consisted of uh doctor that's a bad justice of the supreme court ansa adhinya usu miss your boy duchess as your lordship then was as as you were as you were then uh for bonnie jsc badegbe and akutu uh and my lords this is what ah no that's another series of these cases that that report the the the law report that i referred to um refers to another of the bill bill cases as your logic no there's a series of so let me stick with my writ number j1 slash 2 2010 a decision delivered on the 23rd of may 2012 and in that this is what okay so the citation is 374 rather than 370. if we're taking it from the supreme court for 2012 and this is what dr dr bar says in the ruling of the court which included your lordship the chief justice it is a unanimous view of this court that the first defendant adam dramani should be called upon to open his defense in the interest of justice this case does not have the ordinary characteristics of a child say at the high court the procedure before this court is such that before the commencement of oral testimony in this case the first defendant had already put matters in evidence by affidavit in this circumstance it is artificial and hardly sustainable to disregard the evidence already abused by the affidavit of the first respondent and proceed to an assessment of a new case submission made on his video as if the only evidence on record is that of the plaintiff so hello mr please we are dealing with witness statement which is not sworn we are talking about an affidavit that is strong and i refer to it with happiness i refer with my statement cannot be evidence that is where we depart my lord i forgive it is happiness because it is strong but before the commission of god my lord's in goodness my lords in this case well witness statements are also verified as television of truth yes but but that is why we are lying yes but my lord i referred to affidavits sewn to by the chairperson i referred to affidavits the ruling of this court because the issue between you and me in particular is that as far as for me to speak the truth for him for her to be cross-examined for the witness statement to be adopted as an evidence in chief that document is just a potential evidence it is not proper evidence before this court because it's not on oath my law is gonna rely on it my lord that's that evidence indicates an election to abuse evidence that is that is what i'm submitting so it is evidence it's an election my lord i'm saying yes okay the rule that we're dealing with talks about election to abuse evidence and i'm saying it's an election to address evidence so my laws cannot keep going back to the issue of whether it has been you know sworn or not because the order that we are dealing with according to the argument of counsel for the first respondent is an order where he is reading where the defendant elects not to abuse evidence that is a material basis on which he is putting forward his submissions to you and i your your lordships are taking me away from the language of that order where you elect to are due to evidence and your lordships are going into an issue of where he has called the evidence but those are two different scenarios because if if he has elected by virtue of the witness statement and affidavits that he has filed if he has clearly if he has clearly elected then that order 26 rule 4 3 cannot apply because of his election that's the point i'm making so the dispositive part of 2 36 rule 4 3 that dispositive part will not come into operation and i'm saying further that in any case that dispositive part of that order 36-4-3 does not have the consequence that he's attributing to it and i'm further submitting that all these questions about whether this particular uh witness state or whether in general terms a witness statement means that he cannot change his mind or not you know all those do not address what the terms of order 36 are because order 36 is talking about electing not to abuse evidence electing not to address may i seek a clarification and maybe maybe it will help us to move forward so if i understand your your submission it is that an election has to be made by the party now your submission is that the first respondent made this election from when they filed the answer and other affidavits that he has introduced and thanks so is for you a witness statement yes and the witness statement can i then say that the key issue is what constitutes the election and at what time can it be made absolutely and can they turn what the first respondent is doing now constitute an election now rather than their previous thing that that seems to me to be the issue that we have without them i agree a hundred percent what i'm submitting is that as at the time when this application was put before you yesterday as at that time the election that had been made was contrary to that precondition in order 36 rule 4-3 because that condition said where the defendant elects not to abuse evidence and by that time when she got up to say what he said they had already elected to this evidence that is my submission that is well that determination has to be made on facts and the facts that are before all of us in plain view are that they have filed a witness statement the chairperson and she has filed various affidavits in which she says she is offering herself for cross-examination basically on the assumption and not not an assumption she is actually saying i don't want to have to answer interrogatories because i'm available for cross-examination that's what she's saying and i'm saying that affidavit of an affidavit which deposes to that affidavit of an affidavit which deposes to that constitute representations of her election to testify her election to undergo cross-examination that is my submission yes the point i needed or i wanted to uh you to address is the point at which here witness statements are filed it is done at the case management stage and the court directs that parties should file their witness statements this this case management stage is a process for ensuring that the case can move expeditiously is another situation so with that direction following that nobody can change their mind well they can ask for leave to they can ask for leave where they ask why they need to change their mind they can ask for leave thank you in this case we do not have an application for leave in this case prior to what was represented to you yesterday as at the time that my latin friend got up to make his submissions as at that time my submission is that there had been an election to do the opposite of the precondition in order 36 rule 4 3 where the defendant elects not to reduce evidence and respectfully all the material that is before this court in plain view as i indicated all that material is that there was an election to testify there was an election to reduce evidence and that was also included that was also included that election page um [Music] know how to read my lords another significant passage in the decision in bill bill and germany in the passage at page 377 where after referring to the english authorities including alexander and reagan can i can i have back mine yeah okay where after referring to alexander and racing in particular the passage where the court had said that it is not right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed his worship yasudaba continues similarly it is an inherently difficult exercise to ask this court in this case to disregard evidence put in play by the first defendant's affidavit and to rule on his submission of no case as if the only evidence on record is that of the plaintiff that is why we consider that the interest of justice would be best served by hearing whatever evidence the first defendant wishes to offer in his defense the interest of justice would be best served by hearing whatever evidence the first defendant wishes to offer in his defense this court here this court can then make up its mind in relation to all the facts at the end of the trial my lords respectfully this wisdom of his lordship justice database is particularly germane to this case where it is the chairperson of the electoral commission who is not only the returning officer but in whose bosom resides the basis on which he made a declaration it is in nobody else's bosom not even in the bosom of your lordships your is the law that is in your bosom but in respect of the declaration your lordships it is only in her bosom that the basis of the declaration can be found and so where she has elected to give evidence before you we cannot have a misapplication of order 36 rule 4 3 as a reason for her not doing what she has told us in a swan affidavit she's ready to do she cannot do that the god to whose glory she announced she was doing what she was doing it's a god of truth and therefore my lord [Music] it is [Music] important to bear in mind what justice database said and in this particular case he actually goes on to cite [Music] what he calls the sound advice of lord justice simon brown in the venom case cited above where he says let me state my central conclusion as emphatically as i can rarely if ever should a judge trying a civil action without a jury entertain a submission of no case to answer that clearly was the court's conclusion in alexander and raisin and i see no reason and i see no reason to take a different view today the cpr notwithstanding almost without it and that is a reference to the cpr of course in england almost without exception the dangers and difficulties involved will outweigh any supposed advantages any temptation that's the last word any temptation to entertain a submission should almost invariably be resisted now my lords it is therefore my submission foreign the lordships are comparing [Music] [Music] hello my respectful submission is that exactly as in the vocal decision of the supreme court the interests of justice at a minimum required this court to do exactly what was done in the building case uh sorry um sorry for interrupting your submission in that case if my memory serves me right they have come to court and made a submission of no case and what we read was a ruling in this case there is no submission of this they are opting it's an option they are letting not give evidence so let us be very clear yes my lords my lords i am very clear in my mind about what happened in the bl case i'm very clear in my mind about that and i'm very clear in my mind that in that case the plaintiff went to court seeking an enforcement of a provision of the constitution in respect of the eligibility exactly the eligibility of an empty volume yes and my lord's in that case as your lawsuit right he said there was a submission of no case but my lord the reasoning the ratio decided of that case in my respectful submission is based on what the interests of justice require where a plaintiff has deposed to an affidavit and in that case it was only one affidavit and their lordships were saying their lordships including your lordship the chief justice said clearly in that case that in the interest of justice the defendant should testify that's what your lordship said and i'm respectfully submitting that that ratio is a ratio that is worth applying in the circumstances of this case the only difference in the circumstances of this case is that they are relying on order 36 rule 4 3 and in my submission that order 6 36 rule 4 3 does not lead to what they are asking for because i want to correct this i rely on 36 and order 38 please don't leave other 38 out because that 36 has nothing to do with witness treatments or the 38 is specific specifically crafted for witness statements and you are avoiding that my lord i am not avoiding that my lords if your lordships are with me that order 36 rule 43 is irrelevant then my lords i will indeed address directly what your lordship is claiming that i'm avoiding i cannot be said to be avoiding it when i referred your lordships to that rule 5 and i said respectfully that the interpretation that your lordship was putting on that was not i believe i responded to that so how can your lordship on the other side say that i didn't respond i'm avoiding 38.5 i responded to your lordship directly i don't think it's fair to me tonight another defense another significant difference but my lord would it would can i be can my position be accepted that i responded to that you did you did yes so how can my lord say that i'm avoiding [Music] provision so that's not right yeah look at that i just want to draw your mind another significant difference in the kids society the bible the bill case is that that death would affect evidence that they'll dealt with affidavits they're called death with affidavits which are generally evidence because they are strong but in this case we are not dealing with affidavit so that is another significant difference my lord i wanted my lord with the greatest respect that is why i took the pains to refer to affidavits that are before you in these proceedings in the same way as an affidavit was before the court in those proceedings i have referred your lotions to affidavits which are before you in these proceedings but these are federica affidavits attached to applications yes but they are still before you they're so before the court my notes i mean affidavits are tied to applications uh before the court is that not uh interlocutory that is why when people swear affidavit they say i refer to all the processes as if i included them in the affidavit i mean that is i would have thought a basic aspect of the basic aspect of of of in yes would a judge be right if the judge weren't referring to affidavits attached to applications and left the record of the testimonies and the cross-examinations that the judge received in writing a judgment would a judge be right ever right in referring to affidavits attached to applications that had been completed yes my laws are general they judge i noted no i never said that they should ignore i said that you can refer to those affidavits my answer to your specific question my lady is that you can be for instance if something that was in testimony is contradicted by something that she filed in affidavit he sold an affiliate on old that is a matter that can be referred to and that is a matter indeed upon which there can be cross-examination there can be cross-examination on those matters because mixing that's totally mixing don't tell you what mixing if you have interlocutory applications and they are done with you can't mix them with that with the evidence they cannot try really know that it's not a question of mixing them you always have available a record and if in that record there are affidavits in which statements have been made they are on oath and you are in time to refer to them that's exactly what their lordships did in that billboard case it had not got to the i mean what was stated in the affidavit has not been stated in the witness box what was stated in the affidavit have not been said in the witness voice there's a trial affidavit in the paper case try on affidavits [Music] yes but that was that's what i so that was perfectly right my laws were perfectly right but it's your lordship saying that if the witness had gone into the witness box and had said something contrary to what they said in the affidavit for instance if the courts had ordered that we want to hear you just as the court ordered the defendant to go into the witness but the court could have said we want to hear your evidence in the witness book is your lordship saying that you cannot refer to that affidavit which is deposed you know even in the affidavit a diplomat can be ordered to appear to be crossed a zombie so he's a tribe that's not about himself but that is what happened because that affidavit is evidence so he can be cross-examined on it but we are saying that in a witness statement it is not yet evidence that is that is where my lords my lords i don't think the issue the issue that we are dealing with right now should really be the issue of whether it is yet evident because i believe as by council is not relevant in the current circumstances that's what is that's what you said is that what your leadership is saying no no that's what i understand you are saying that's what i've been saying oh they're 36 and i forget and i believe that that is what was summarized by young and my brother realized different members of the bench are agitated by different things and i'm seeking to address the different things i'm thinking and i appreciate the fact that your lordships are candid with your concerns i i appreciate that entirely and so my lord the point i'm making if we move to away from order 36 rule 4 3 if we move from there into the question of what is the effect of a witness statement which is what is agitating your losses like what is the effect of a witness statement prior to when it's when the witness actually goes into the witness box and my lords my submission on this is very straightforward my submission of this is that your lordships made case management orders in this case in respect of how the case would proceed including the witness statements and the witnesses now my lords it is my respectful submission that nowhere in either your case management orders or in ci 99 nowhere is there provision made for the procedure that millennials are seeking to adopt nowhere in the rules nowhere in the rules now your lordships have been referring to order 38 3 as amended in ci 87 and in c and in that order 38 rule 3e the provision again is very clear if a party has served a witness statement and that party wishes to rely at the trial on the evidence of the witness who made the statement that party shall call the witness if you wish to rely that is why in my opening words i said to your lordships in my opening words i said respectfully to your lordships in my opening words i said [Music] this is this is not a situation in which council [Music] is seeking to withdraw the witness statement i said that in my opening words this is not a situation in which council is saying i am no more relying on my witness statement or my answer and 38 3e says if you are still wishing to rely at the trial on the evidence of the witness who made the statement you shall call the witness mandatory terms mandatory you shall call the witness they have not said they are not relying on that witness statement they have not said that so shall call is mandatory the last time i checked in the law books and my loans i'm sorry lie as you read yes but my lord asked that now nobody has said we don't intend to rely on the witness statement no why has it been stated that all they have said is that we are not doing no no that is a reality i mean however much grumbling goes on on the other side the reality is that the ethics at the back council is on his feet he's addressing the the bench please please please you may take notes you may hear him but you don't have to make a noise at the background please please please so my lord i mean if they do not intend to rely on the witness statement they should say so it's as simple as that if they do not intend to rely on the witnesses yes but this is important my little view is important because there are many options open to us if they say they are not relying on the witnesses we can apply to the accord for a subpoena to call the chairperson for instance we can apply to the court yes because the only reason the only reason why we did not take that cause is of course because she is acting on behalf of the first respondent so it would be inappropriate to issue a subpoena on the opposite party whom she is represented i thought it was implied by the application but the nature of the application i thought it was implied that respectfully as your lordships heard me from the opening paragraph or the opening sentences of my submission i indicated what my understanding of what they had done was based on order 36 based on and i did not hear and i don't think that your lordship's head any differently i did not hear at any point a statement that they had decided not to rely on the evidence of the witness i did not hear that at any point and my submission is that unless they give an indica and if they give that indication then there are other consequences especially in terms of our case because once they give that indication then it is open for us for instance to have a supreme to testify as a public officer who holds certain records it is open to us to do that and and my lord this will not be contrary to any human rights of health because she has a constitutional duty that she's performing and if she is called upon by a court to come and testify to the performance of that constitutional duty that cannot be contrary to any human rights in any case if for example if for example there was an attempt to suggest that the witness had some privilege or you know wants to wants to exercise right to avoid self-incrimination for instance if if though the witness would have to give that indication it cannot be assumed for her by anybody least of all from the bench it cannot be assumed that the witness has certain rights against self-incrimination for instance which she is is wishing to exercise those are indeed human rights provisions especially applicable in a criminal trial context but whether or not they are applicable here the witness is the one who has to invoke that particular claim of a privilege or right against self-incrimination or whatever and that has not as we speak being the case that is before you what is before you is order 3604 order 38 rule 3e and 5 i just read 3e and clearly in my submission until we have an indication that they do not intend to rely on that witness statement and they then take the consequences of that including consequences of what we are then able to do in terms of asking the court the court may refuse it but it would be entirely open to us to ask the court to take certain steps on account of what she said or what council says they are going to do it is entirely open to us to take those steps after there is you know if indeed that is the indication that is being is being given then i believe order 38 rule 3 e5 i have addressed previously so i unless um there is a specific question about any aspect of order 38 that you know i'm not avoiding so i'm happy to be to have my attention drawn to any other aspects that i've not covered but i believe i have covered all aspects of order 38 for 1b what are 38 3 3 e and 5. now my lords as i've indicated and i believe there was a question from the bench yesterday about whether these are not issues of human rights and i mean i haven't asked that today my laws you put that into the arena yesterday and so i think it's useful that i i i make a specific [Music] very well very well [Music] yes now my lords it is therefore my respectful submission that in the situation that is before your law [Music] chips what the clear interests of justice require what the clear interests of justice require [Music] is for your lordships not to allow the evasion by the chairperson from cross-examination and my lords this is particularly important because of the nature of the function of this particular witness we are not dealing with a witness in a normal civil trial where it is simply a matter of competing private interests we're not dealing with that situation we're dealing with a matter concerning the exercise of grave constitutional responsibilities by someone [Music] who has been duly appointed to a high office of state and that person in my respectful submission has a constitutional duty that person in my respectful submission has a constitutional duty to give an account of what she has done in the conduct of her responsibilities now my lord's a particular responsibility that she is carrying out and for which she needs to give an account the particular responsibility here is no less than the responsibility to declare who has in accordance with the will of the people being elected the president of ghana that is no mean duty that is a duty that is a duty in respect of which this petition has been brought and as i indicated the issue too that your lordships have set down that issue too speaks to the proper conduct of her responsibilities in making a declaration and this petition is about her own declaration which we all watched at least we watched a part of it and the petition is based on what she said there has been no other declaration and your lordships will note that in the in the affidavit in in the affidavit again is an affidavit that she found in opposition to a motion on notice for leave to inspect documents which was another application that we brought in that affidavit she states among other things in fact [Music] from paragraph eight of that affidavit she says from 13 is generated from the summation of all the results in the presidential regional results summary sheet from 12. the petitioner has duplicate copies of the presidential resource summary sheet from 12 as admitted by the two witnesses of the petitioner formed then paragraph 9 form 13b was generated by the first respondent to aid the declaration of results so my laws she is testifying in this affidavit to a number of important facts about what she did form 13b was generated by the first respondent to aid the declaration of results obtained by all the candidates by aggregating the results from the presidential regional results some issues from 12 for the 16 regions in a way that does not materially affect the formed substance and not calculated to mislead any person now my lord she goes on to say that apart from from 13 yes in paragraph seven she said i say that save for forms 13 and 13 b which is attached to my witness statement filed on 22nd january 2021 as exhibit 4 the petitioner already has in his possession custody of power duplicates copies of all the other forms and documents he he's requesting to inspect a same way given to him by his agents at the very school so the the the the chairperson on behalf of the first respondent is acknowledging that save for from 13 and 13 b which is attached to the witness statement petitioner already has certain things in the possession and even she even seeks to quote but that form 13b is a critical form for the exercise of her responsibilities and she has to speak to that form indeed your lordship's heard testimony from the second witness of the petitioner to the effect that what was being claimed as form 13 is not in compliance with what is in ci127 the second witness of the petitioner stated that very categorically that what was being offered as form 13 was not compliant with the form that is from 13 in ci127 ci127 is under the hand of the chairperson of the electoral commission and there is evidence before your lordships that she did not even comply with a ci under her own hand my notes if the holder of such a public office cannot be held to account by being cross-examined after she assault has given a witness statement then my lords with the greatest respect we would be posing grave dangers to the republic because the holders of important officers can shield themselves from accountability by saying in every case that we will not allow ourselves to be cross-examined and nobody can do anything about it and what i submitted earlier and what ties into this point that i'm making is that if it were not for the fact that she is the representative who has won a witness statement on behalf of the first respondent it will be open to us to ask the court for a subpoena to have a testify so my loans we respectfully submit that in the circumstances that we are faced with here with this particular holder of this particularly singular office that is supposed to make a determination that reflects the sovereign will of the voters of ghana in an election which is what democracy is all about it is our respectful submission that that constitutional obligation cannot be set aside by subsidiary legislation or by reliance on subsidiary legislation it cannot every legislation that we've talked about ci87c 47 and i mean none of that can set aside the sacred public duty of this chairperson and the need to account for that public duty where the forum demands and my lords this is a forum that demands it hi my lord reference has been made reference has been made by my learner friend to the case of hydro armor armor versus hydro hydrophone and that was indeed a supreme court decision [Music] in 2012 the decision read by justice benning and a court that comprised various justices including your lordship the chief justice now my lord that case has absolutely no application to the circumstances that we are dealing with because in that case what happened was that the parties had agreed that instead of testifying by themselves they would both rely on the testimony of an expert a surveyor and on appeal it was the point was raised that the plaintiff himself ought to have testified and not rely on the evidence of the expert within that context the parties had agreed that whether you rely on an expert because this is a matter on which an expert can resolve the issue between us we don't need to be we don't need to be sort of testifying and you know we are not the expert we rely on the next way the parties that agree that then they go to court and one party is more or less arguing that because the plaintiff did not testify it should be held against him my lord of course rejected that argument and my laws made it clear that you can't compel a party to a suit to testify hello that has nothing to do with the situation that we're dealing with here and the court said in benny's judgment page 1563 to 1564 in the instant case the issue agreed upon was the value of the land the trial judge considered it required expert evidence to a system to determine it the parties appear to have agreed with that position taken by the child judge for apart from the fact that they did not challenge it neither of them gave evidence by themselves they all defend to expert evidence the plaintiff relied on the evidence of the expert nominated and appointed by the court with the party's consent the defendant went further to call three other witnesses in three other experts in land valuation it is in that context that the lordship said a party does not need to call evidence by himself where the issue is of sorry when the issue to be resolved is of such a nature that expert evidence would i think it should be b but here it says that would the best evidence i think b is missing from the report expert evidence would be the best evidence required to assist the tribunal of fact to resolve the issue or where expert evidence is dispositive of the issue that is what hydrophone scale armor and hydrophone is about that case has no application to the circumstances that we're dealing with here the circumstances that we're dealing with here is of somebody who has elected to testify and who has notified of that election not only by submitting a witness statement but also in affidavits that he has fought because if we didn't take a affidavit seriously then it would almost be as if she is taunting us and saying you know i am prepared to give evidence she's taunting us with that and she's using that to get a decision in their favor on interrogatories once that decision is given then she now says no more i'm not giving evidence you served in opposition to an application for leave for interrogatories you the holdout of that important constitutional office you said i am going to be available to be cross-examined on that basis among other things their lawships have made a ruling allowing you not to have to answer interrogatories then after you've got that decision you now ignore the things that you said in your affidavits and you come and your counsel is saying to the court i'm not going to put you in the witness box obviously the interrogatory's process that we filed was meant to help us in the conduct of our case and what they filed by way of witness statements and so on was again meant to help us in the conduct of our case so once they filed and gave an indication that she was going to testify and she has self gave that indication in alfie davis our options in terms of her being called to account for a constitutional duty our options were entirely non-existent our options were to calmly wait for her to come into the witness box for cross-examination we had no other option we had no other option and we still have no other option because it has not been said at any point to your lordships that they are not relying on that witness statement it has not been said now my lords another decision was cited i believe yes this is a this is a arcuno baffle and lawrence bocco case and my lords part of part of the problem that i see in respect of what we are faced with is that on the one hand they are saying that they are not making a submission of no case then on the other hand they are talking about burden of proof my lord the burden of proof can only be relevant if we are talking about a submission of no case because otherwise why are we discussing burden of proof i mean betting of proof has no relevance at this point if all we are talking about is order 36 rule 4 3 and so on burden of proof has absolutely no relevance in any case the authority that was cited this joseph aknow baffle and lawrence significantly one council himself was reading from the passage that he read from the the lordships talked about the shifting of the evidential burden the shifting of the burden which depends on the stage that the case is at and my loss i'm really reluctant to go into the issue but no proof at this point because i think it's irrelevant but because it has been raised i'm obliged to point out why it is irrelevant because if your lordships look at the evidence act from section 10 and my laws i will not read this section but from section 10 to section 15. your lawships will see the differentiation between the burden of persuasion the burden of reducing evidence and my loads will know that in a case the burden of proof can shift depending on this stage and depending on analysis so if indeed they were making a submission of no case and we were having to respond then we would for instance be able to demonstrate that as as where we are you have to take the petitioner's case as true you have to take the evidence of the petitioner as it is without the benefit of the answer and whatever it's going to be testified to by the entity so if we were dealing with that matter in the context of a submission of no case i would have clarity on how i would address your lordships on bed not proof but they are saying to us that they are not dealing with burden of they are not dealing with they are not dealing with a submission of no case and i believe your lordships have accepted that that is their position now if there is a position there my simple submissions are better no proof has no relevance at this stage and that what we should simply focus on at this stage is if they decide to do a submission of no case later that's another step we'll cross that bridge when we get there i never like to cross bridges before i get there but my loads at this stage at this stage we are not dealing with matters of burden of proof and so when when we also have read to your lordships section 62 62-1 at the trial of an action a witness can only testify a witness can testify only if he's subject to the examination of all participation if they choose to attend and examine if a witness who has testified is not available to be examined by all the participants who choose to attend and examine and the unavailability of the witness has not been caused by any party who seeks to cross-examine the witness the court may in this discretion exclude the entire testimony or any part of the testimony as fairness required this is clearly a section that has nothing to do with why we're here because if you got that i thought i uh the court pointed this out and council accepted it so let's well i i i did not have the impression that council accept because after the court made the reference that he made a further reference to section 60 because that's why he went on to say we do not require any further evidence in this matter he went on in my notes unless i didn't hear him and that is what led him also to the citation of the cases that he saw too now my lord there's been a suggestion petitioner cannot compel us to enter the witness box we are not saying we are not actually compelling it is indeed their election and we are saying that they have made the election so it is not our compelling them but they have made the election and they must stand by it unless they clearly and unreservedly give a contrary indication now my loss it was also suggested that this was by reference to the english civil procedure rules it was also suggested that the drafters of article articles sorry the drafters of ci 41 and ci 87 made some choices differently from the english civil procedure rules of course we are a sovereign country and statutory regulations are made by our own rules of course committee and so on and so forth but my laws we cannot put english civil procedure rules against our rules and say that our rules of course committee drew inspiration from this and we try to compare the two and say that therefore we should interpret ours differently that respectfully is not an appropriate way to interpret our own rules our rules ci47 and 87 as i have gone through our rules make provision for what they make provision for and you cannot come and say that the word timelessly does not appear in our rules it appears in the english rules and therefore there was a reason why they did not include timelessly in our rules not that with their brilliance respect is not a process that your lawsuits should use for interpreting our subsidiary legislation our subsidiary legislation is in its own terms and i have read the terms of that subsidiary legislation and the applicability here so nothing in those english rules nothing can can be relevant and indeed it is it is also my submission it is also my submission that in fact as i indicated yesterday it's also my submission that in this particular matter of an election petition it has not been demonstrated that what they seek to do is in compliance with ci 99 or ci 47 or ci 87 it has not been demonstrated that there's compliance with any of those they have stated clearly that this is not a submission of no case they have stated that clearly and they have stated clearly that the only basis for their submissions is order 36 rule 4 3 and ci 87 the rules that we have discussed if their application does not fall squarely within those rules my respectful submission is that it ought not to be countenanced if they want to come back and say that they are not relying on the witness statement of the first respondent for instance if they want to come back and state that that needs to be stated clearly because then our options will also become clear that is my submission okay let's hear you yes my lord on point of law those i wish to with your kind permission read the rule 3c or ci 87 laws it says that a witness statement yes my lords a witness statement shall be verified by a statement of truth nowhere does the rule say that the witness statement shall be sworn as was submitted laws secondly it was a question from the bench to counsel that a witness statement percy is not evidence and it is not also an affidavit and i think there was concession because there is a a statement of true truth attached to it and that's what this is saying [Music] my law secondly it is my submission that the petitioner the council cannot approve it and reprobate regarding rule 3e lost previously in the proceeding before the court he lost the proceedings of 29th of january at page 40 yes my lord i paid 40 and 41. this is what council said when council for the second respondent was trying to put issues from his witness statement to the witness he says that witness statement is not yet in evidence it has not been adopted in evidence my laws with respect the proceedings are being confused and lost at page 41. he says my lord with the greatest respect what he is showing the witness was an attachment to the witness treatment that has not yet been adopted very different so my losses my submission that respectfully i cannot be misrepresented i made it clear that i was talking about the election to induce evidence i think i made it very clear and also it's my summation that rule 3e all the provisions are quite very clear and millennial friends putting one interpretation on it on one day and another interpretation on it on another day is most unfortunate respectively submitted my lords may we repeat on from the onset that this is not a submission of no case that we are seeking to address secondly that there is no way in ci 47 or ci 74 1887 where provision is made for submission of locus in a civil matter and yet it is done now my lord the fundamental error with council's submission in my view is that the submission is secular and not proceed it's secular the arguments are secular secular not secured i choose secular is that c-i-r-c-u l-a-r yes why not my lawsuit will say see that rule 3d says that where a witness statement for use at a trial is not served in respect of unintended witness within the time specified the court by the court the witness shall not be called to give or evidence unless the court grants leave when three e one says if a party has served a witness statement and that party wishes to rely at the child on the evidence of the witness who made the statement the party shall call and i want to emphasize though it shall call your witness to give oral evidence unless the court orders otherwise or that party puts the statement in as hearsay evidence my lord use one will see from a construction of this sub-room that a party must first serve the witness statement they must file and save and that statement only serves the witness statement [Music] yes my point is that from that words of 3e the party must have said the witness statement first before he relies on it subsequently so the argument that council for petitioner seeks to make that service of the witness statement means an election is is inconsistent with the provisions of 3e because 3 is says that you will serve and then you must state you rely on so the two cannot be mixed together now my lords again the court will notice that the the words are if the party wishes to rely at trial then he shall call the witness so saying that i'm calling a witness it's what indicates that you are relying on the witness statement so when we say that we do not intend to reduce evidence it means we are we we are telling you that we do not intend to call any witness which means that we do not intend to rely on our witness statement so by no that's the sense in which the argument is secular we cannot say that the witness statement has been served and therefore you have elected it cannot be the case reading from the text of the law then again my lord if your losses are to look at the you know then again yes it says where a witness is called to give aura evidence that is 3e sub 2 where a witness is called to give oral evidence and that's everyone the witness statement of that witness shall and he was emphasizing on the shout that it is an obligatory thing but that will only happen and he's called to give oral evidence that shall will not apply when the witness is not called to give oral evidence and then again sub 5 states that if the party who has served a witness statement again you see that decision which is having a with that statement and electing does not call the witness that means that the the rules recognize a situation where you serve a witness statement that you elect not to call a witness does not call the witness give evidence a trial or put the witness statement in a csa evidence any other party may put the witness statement as yes evidence now therefore we submit that a proper analysis of these provisions makes it very very clear that the service of a witness statement is not an election to rely on it how to give evidence my laws i will now look at the smaller building case and say that in that case yes no you signed it yes yes yes they responded to it and i'm replying to his response legal is legal my lord the losses will note that in that case the smaller actually filed an affidavit in which he admitted to a fundamental issue matter in issue namely that he held he had a british passport that was the basis for the court saying that then you bear the burden of addressing evidence to explain how if you had a british passport you are still saying that you are entitled to to be elected as a member of parliament so it is a completely different situation from an affidavit which is saying that we do not agree with the interrogatories because in any event when or if the occasion for cross-examination arises you have the opportunity of examine levels yes so my laws that does not mean that the the petitioner is committing itself herself or itself the first respondent is committing itself at all costs to lead evidence like that you may have to come now to record to seek leave not to give evidence my lord now my lords my lord you see that the issue set down for trial uh [Music] and my lords all of them deal with whether or not the second respondent cross the 50 class threshold that's all the issues even if you four five which is whether or not the alleged vote padding and other errors complained of by the practitioner affected the outcome of the year of the election all the five issues deal with that matter whether or not the second respondent crossed the constitutional threshold now my lord our point here is that because of petitioners cannot say that these issues require the the first respondent to be head provided the sufficient evidence will be heard in reply yes yes on points of law confirm yourself to oh now to your client's case it's very respondent you are client very well my lord finally the english law on this matter that seems to be the hunting ground of council for the practitioner what what is he hunting for is hunting to shoot down the application or the position my laws i wish to refer your lawsuits to the english case of society of lloyds vs sir william awful auto spell o t h o j free j a double f r a y b t 2 000 when e ewac commercial 15 51 so let me go right again society of lloyds versus sir william although jeffrey bt 2000 e w ac commercial 51 where the issue of a party failing or refusing to give evidence after a witness statement had been served on other parties in the arrows and a prayer was made for the witness to be compelled compelled to enter the box the code helped us follows where a party after serving a statement of his witness on the opposing party in accordance with creator directions decided not to call that witness to give evidence the court had no power to other that party to call his witness to give evidence in court and coach i will do some a lot my lord we therefore submit that counsel for petitioners submissions in response are misconceived and do not address the thrust the thrust of our opposition we pray accordingly my lord an authority has just been cited and i respectfully wish to be heard on that authority the one that has just been cited no you can't i'm sorry you can't the rules do not permit you no i'm asking for now i'm asking for leave in a reply his sights on authority and i'm not allowed to comment on that authority yes but but my loss why can i not be heard as to why that authority is not applicable no but my lord my loss it would have been fair if he had cited that authority in his main submissions then i would have had a chance to respond but if he cites it in his reply yes but my lords will not hear me on an authority that has been cited and all it's relevant is that my words i will abide by your ruling but is that the ruling of the quote that you will not hear me on an authority that has been cited in reply your lordships gave leave for him to reply and to cite an authority and you will not hear me on the authority if that is your lordship's ruling i will unders [Music] what they have heard and without hearing me so my laws my respectful submission is that the circumstances of this case are completely different from the circumstances of that english authority for two simple reasons that authority is not about the holder of a constitutional office of shared person who determines the fate of an electoral process that of that authority does not deal with such a situation and the circumstances of this particular church and the circumstances here which i alluded to should not be lost sight of the second reason that that authority is irrelevant is because that authority deals with a practice in the english courts which are based on their civil procedure rules which are enactments which have particular provisions in regards to case management and so on and the interpretation that the lawsuit was was was uh the the the the the the case i was dealing with had to do with that in this case we are dealing with our statutory uh instruments and i submitted earlier that none of those surgery instruments warrant what is being said to be done order in court please by court this petition is server again to test the 11th of february 2021 at 9 30 am for ruling please please be seated please respect be seated oh [Music] [Music] [Music] all right [Music] [Music] so can the respondents that is the electoral commission mr khufudo decide not to call witnesses that's the question for the seven member justices of the supreme court shared by chief justice and in yabua we've heard arguments by the electoral commission which essentially is that they don't have anything more to say that if the petitioner thinks he has a good case then he should be dancing at the fact that jin manson would not be in the witness box insisting that the burden of proof lies on the petitioner mr muhammad here's what uh lawyer for the second respondent has been saying especially associating himself with mr aminovo's submissions uh they also want the court to evaluate the entire case based on mr muhammad's evidence he says they do so at their own risk the petitioner cannot therefore compel them by law to enter the witness box and abuse evidence long arguments made by mr chachuchikata again we've seen today he basically says that the constitutionality of jin mensah's declaration is at the heart of this case that her election not to give testimony is an affront to justice and must not be countenanced that she has made representations that suggest that she intends to be cross-examined therefore she ought to be a stopped from electing not to give witness that the court may have power to disallow the change if she changes her mind chachuchikatsu says there ought to be good reason besides there are proper ways of doing doing it uh so that's where we are remember that the 12 questions that the petitioner wanted to put to uh the electoral commission chair that was also dismissed and now the crucial issue of uh cross-examination this witness is what's on the table for the justices to decide as you may have heard they've agenda case to thursday they will make a ruling on this how would this one go it's a critical point that we've we've got into kojayang singh it's very nice to see you by the way oh yeah and those were fascinating to follow the arguments of um following of course um paul's submission um i've i found something instructive so what chachi shikata sought to do was to position this whole thing as a you know a duty of the court to decide whether or not the witness can you know change her mind or decide not to testify and then he proceeded to to make his argument in a bid to convince the court to exercise that discretion in his favor the court i mean the supreme court also had the questions of their own they wanted to if you like stress test mr chikata's argument and you could see them do that on many occasions asking some questions about uh the issue of you know free will and whether or not a witness cannot change their own mind you know that chachikata was quoting uh seeking to well present precedents you know to convince the court and uh i think we heard in an in an unguarded moment one of the judges actually stating that the president he was referring to was one that she had been looking at earlier i found that interesting um i found a very interesting but of course why should that surprise us they certainly are a prepared group of people so it shouldn't shock us that they have been looking at precedence that uh would coincide right absolutely um but um mr chikato once again a thorough a thorough lawyer and you can tell from the amount of time and effort he put into making his arguments and the amount of in-depth knowledge he had of the the court's own regulations some of which he submitted that the court had been misreading and misapplying you know and made some some convincing uh you know by any standard arguments to support his um his point but of course in the end if his belief is that the court has a discretion to apply and the court will simply have to determine whether or not his arguments have risen to the point of you know among other things necessity for which reason they would have to apply that discretion so it's going to be fascinating to see how they come back out of that room and what they come back with absolutely you see the bench coming back to the basic questioning of can you force a witness to give testimony can you force a witness to get into the witness box i'm not a lawyer but isn't that called subpoena isn't that what happens when you subpoena someone are you not forcing them to testify i'm not a lawyer so yeah i'm you know i'm happy to be educated on that but uh yeah i've always thought that a court yes can and has okay so i guess the question is have we gotten to that crossroad uh and we've heard mr chikato say depending on the decision that the court will arrive but i guess that would give them uh you know the a way forward in terms of what they have to do but clearly he stated that that's also one option isn't it i mean there are several several things that we would love to you know hear the supreme court's thinking on you know once these decisions come out if they come with explanations they'll be great education for all of us because i mean that you had the judge asking a very important question that can anybody compel one side of this argument or the other to call all the witnesses they said they would call i mean can you can can the court do that should the courts do that i mean if if a person has been accused of something which is essentially what this is someone has brought a petition against two respondents so in essence two people have been accused of something okay so if a person has been accused of something and he says look i'll speak in my own defense but let me hear your case and you submit your case and then the person listens and feels well you haven't made a case in my opinion i don't even need to come and say that i don't even need to come and explain myself let me just let the court decide based on what you've said should there be any reason why a person should be disallowed from such a decision you know and these are some of the things i'm i'm i'm dying to hear yeah you know the education on when that when that judge is right absolutely we've also had some lawyers make the points that the way we put it simply in terms of the two people scenario that you paint this is a public office holder so it doesn't come down necessarily to that but we see how the decision of the court i guess it will go a long way in helping all of us uh clear this matter but would this be the end of the road depending on the decision that they make once we see any i put it to you i put it to you have we ended this should we be looking forward to uh you know judgments if you like and has the petitioner given them enough so that they can clearly make a decision based on what they have yeah yeah i mean if indeed the court has that discretion that chachu insists they have then it would be interesting to see how the court feels about how things have gone so far is there something that the court itself would like to determine which is yet to be determined is there some some are there some questions on the mind of the court and the court has stated that this is about five issues really they've you know highlighted five issues that this case is about so are there some things that the court itself wants to know in order to help it decide on these five issues you know and and will they be uh persuaded to pursue their discretion in the direction of seeking that information if there is any such you know unanswered questions on the minds of the court i mean so so many possible ways in which this can uh this can uh rule out but you know that you make the point about how this these are issues regarding public office holders okay and and then the question of accountability comes up then you have to ask yourself will that not only arise once you have convinced yourself that they have questions to answer is that not how it works first must you not be convinced that the public office order has questions to answer before you then compel them to answer you know so i wonder uh if indeed the court submits to that argument what are the questions they would want um the ec chair to answer in this in this particular circumstance well so this is where we've got into somebody put a bridge there so we've gotten there it will be decided on thursday the court says but can the court go ahead with what it currently has that is the petition itself plus the evidence attached that counts of the three witnesses we've heard from john cena and katia dr michael pesa white and also rojo metal nuno plus the responses uh from the two respondents is that enough for them to make a determination on this matter that's also a really really big question but everything that we've heard really the arguments for whether or not the witness should be compelled or if the witness is evading the cross-examination process it comes down to answering these five questions and i've tried to make it very basic so the first one is uh whether or not there's any legal grounds at all for this petition and then whether or not mr kuffard obtained more than 50 of the total valid votes costs in the 2020 presidential elections whether or not mr cofado still got more than 50 percent of the total valid vote cast with or without the tachiman south constituency presidential election results whether or not the 9th december 2020 declaration met the 50 plus threshold so set for a person to be declared as winner and then whether or not the alleged vote parting and other errors complained of by mr muhammad affected the outcome of the presidential election results of 2020 as you can see in your shot mr mohammed's legal team getting ready to address the media we'll pick that dominique ayani doctor dominic kayemi speaking to the media okay all right good afternoon ladies and gentlemen of the press um today in court the main issue had to do with whether or not the chairperson of the the electoral commission and the returning officer for the 2020 general elections should take the stand and be cross-examined on a witness statement that she herself voluntarily filed before the court today the issue had to do with whether she had elected that is chosen to testify you recall that when we applied for interrogatories that is we wanted to administer 12 questions to her that we thought were relevant and necessary in advancing the case before the court um she swore an affidavit in which she said the interrogatories should not be allowed and that when it comes to cross-examination those questions can be put to her in other ways she at that point in time events an intention to be cross-examined on whatever evidence she was going to give in amina before the court then also when we wanted to inspect documents you remember we served notice on her to inspect the original documents that served as the basis for her declaration on the 9th of december again she swore to an affidavit in which she said the court should not grant us the leave to inspect the original documents on the basis that if it comes to cross-examination we will take our attention in impeaching her credibility in in looking at those documents and their relevance to the case and then also during case management audits were given for witnesses to file their witness statements again mrs jane adukai mensah filed a witness statement in the mata basically uh again saying that she was going to give evidence so the the point that our lead council was making today was a very simple one there is evidence on record showing that she had elected to give evidence to give evidence and to be cross-examined on the witness statement that she has filed now we will not go into the merits or the merits of what she has filed because the court is yet to give his ruling on that on tuesday but suffice it to say that the reason why we are insisting that she be allowed to testify is simply because my brothers and sisters this is not a debt collection case we are not here dealing with a private matter the private interests of private litigants we are here dealing with the public interest we are here dealing with the declaration of the results that reflected or is supposed to have reflected the sovereign will of the people of this country we are here dealing with article one of the constitution that says that the sovereignty of ghana resides in the people of ghana in whose name and for whose welfare the powers of government must be exercised and so for her to have declared that the sovereign will of this country has expressed on december 7 2020 elected nana adorned fado as president of the republic she has a constitutional duty to account to the people of this country for how she arrived at that conclusion and that constitutional duty means that she cannot under any circumstance be allowed not to account to the people through cross-examination because cross-examination is one of the mechanisms allowed by law for exacting accountability of litigants and this is not an ordinary litigant as i've said this is a constitutional office holder and so our case is very different from some of the even the english cases that were being cited are of no moment when it comes to this peculiar matter that we are dealing with in court so i'll stop here and take some questions witnesses have the option of saying that they will not testify that is that is far from being the case of the petitioner the case of the petitioner is that at the point where a decision had to be made by the electoral commission with respect to whether or not to testify they made an election they decided they were going to testify and the rules are very clear that when you have elected to testify you can walk back from that election and that is what we want we want the court to hold her to that election that she made both in terms of the affidavits that she saw before the court basically pointing to our right to cross examine her when it comes to her evidence in chief and then also the filing of the witness statement that is itself is concrete evidence of that intention to be cross-examined and again as a public officer she has to account to the people of ghana and that is why we want her to take the stand i can barely hear what you're saying can you can you ask your question without the phone or somebody's questions i i don't know what proceedings you've been watching with all due respect but the panel has not come to that conclusion not at all arguments have been made and in fact the respondents themselves have walked back from those arguments you remember yesterday they said something about a submission of no case and i do remember that mpp communicators went you know i mean they went to town saying that where they were making a submission of no case we had not crossed the threshold of the building or proof and so on today you saw that upon syria's reflection they walked back they are not because the consequences of a submission of no case are dire for them they know that when they make a submission of no case all right then they will have to strike off they strike out their witness statement their pleadings will have to go off and the petitioner's case will stand uncontested and all our release will be granted which means that his excellency jm will be sworn in as president of the republic of ghana no we we will not uh engage in hypotheticals as far as the ruling is concerned and again we don't want a situation where we are commenting on you know the outcome even before it has come all right um the famous quotation from the court now is when we get to that bridge we'll cross it uh we hope that the bridge will be there when we when we are getting to it okay all right thank you very much cbm [Music] officer for the 2020 presidential election affidavit of verification say i don't say this the the chairperson caught my order said by a certain date omphanadan secretary 22nd january 2021 yemen is [Music] this request the okay and they say and my quotes say on answers our questions you know because your mom john muhammad and allah during cross-examination be sending on different occasions not only in her answer and i said the witness statement but affidavit yeah i don't see i was saying to defend the constitutional obligations and to show say about san bruno cause your mama renault no iranian empire answered all questions kamakama and send me some attention because of that samson be sending me a bisana and so having intimidated that to the cortana onto me samsung says is not an ordinary witness in an ordinary case involving private interest or yet they're constitutionally mandated personnel or the declaration you know um more than fifty percent of them you mentioned justify not somehow in the media correction of the mistakes exhibit she knows she will be confronted with questions about authenticity of that form and she cannot justify the authenticity of same and until now and until declaration there is only one declaration and it is that 40 declaration that has been enacted into ci 135 and has been gazetted and sound fun sunni inanimate sanankasana two we have presented a compelling and a solid case mp before him said they have a case to answer and you saw the president of the bench at some point we won't so we should let you know that because they were the beneficiaries of the unconstitutional conduct of j mensah energy is if you nintendo or muslim amen we don't have any issue you're into ukraine misawa some pepper beer because they're casing your boogers i don't know that's not that kind of spoons are cases this is not the time for her to run she must account for her constitutional duties [Music] um um you're ready okay good afternoon friends of the media and indeed the entire citizenry of ghana who have taken time of their busy shadows to follow the proceedings of the supreme court indeed the trajectory of this case leads credence to our position that this petition as it stands now does not meet the threshold of article article 64. indeed our position today has affirmed this assertion it is a tried principle of law that there is the right to be heard but inherent in this right is the right not to speak the petitioner exercised their rights to be heard and they spoke we have decided as the second respondent not to exercise this right and in actual fact a petitioner who has confidence full confidence in his case should be happy probably popping some champagne or drinking some tea because we have decided not to add use any evidence however it is curious that the petitioner on whom the burden of proof lies wants the electoral commissioner to mount the witness box in order for him to use the electoral commissioner to prove its case this is not heard of and our application today was grounded firmly grounded in law lawyers when we go to court decide the strategy we want to take we as council for the second respondent decided to take this course of action and we indeed feel that this is the master stroke and has should i say has disturbed the camp of the petitioner and that is why they have made lengthy submissions as to why this should not hold the courts we are in the bosom of the court and we know that tomorrow the courts may well are judged in our favor we are hopeful that the court will rule in our favor let me land with a quote from shakespeare in my favorite book hamlet which says to thine own self be true and it must follow as the night and the day thou canst not then be false to man the truth is only one and the truth is that his excellency nana danko kuffado was validly elected the president of the republic of ghana in the 2020 election thank you we'll now take some i just want to questions out are you not worried about the optics in the sense that you have insisted that your candidate won the election the custodian of the documents the forces what would be the damage of the ac surprising confirming as i have already said as a lawyer you have your strategy and you decide which strategy to take at every point in time we have always said that we are poised and we are the mercy of the court if the court decides that we should give evidence our star witness is more than ready but it is curious to note that the petitioner has all the documents that he is requesting for the petitioner has not met the threshold that has brought us to court yes we are there is a court of public opinion but this is a court of law and the reason why we are here is to challenge the validity of the election it is to determine the five issues that have been set down for trial and as long as these five issues have not been duly satisfied the we believe that the evidence that has been reduced does not in any way prejudice our case so we have decided that as part of our strategy strategy and we bear the risk we are ready not to call evidence and i think that that should be something that we should be allowed to do in the court of public opinion what it is is that the petitioner himself did not testify that is something we should all ask why is it that john dramani muhammad did not testify in the matter he is the one who has brought the matter to court he is the one who above all and beyond is personally affected by the matter so he should have brought the matter to court when we speak about this court of public opinion there are other avenues for redress the right to information act has been duly passed and it was passed under the watch of his excellency nanado dance the rights under this act can be invoked parliament the um petitioner or any upstanding citizen who wants to ensure that the ec is held accountable as has been banded around in court when we are not here to challenge the validity of the election can make formal applications in that regard so we need to focus on the issues the five issues that have been set down for trial by the court and know that we are here because there has been a challenge to the validity of the election and that is what is important per article 63 3 the person who has who will be elected who is elected as president has to cross a 50 percent more than 50 percent threshold and that is why we are in court it is not about laying to rest certain allegations that are unfounded that is not why we are in court as i've said already it is not about whether it will hurt our case or not we are poised in any way if the court decides that we should give evidence we will give evidence but as i said one each lawyer has their strategy for their case two and more importantly we are here to challenge the validity of an election you the petitioner cannot use the evidence of the electoral commission to prove your case no that is not how it works um i mean in a number of press interactions for a number of days now your site has always said that the petitioner has not delivered on that is it that determination reserved for the the final determination is reserved for the court but as a lawyer you assess the case and you decide the strategy to take in our estimation the standard which we thought we expected to be met has not been met and as such we think that the court we pray the court to use the already existing evidence to ensure that it arrives at a final determination of the five issues that have been set down for trial with your second question i'm hopi i hope i remember whether i think it's your first question the electoral commissioner i keep on saying this electoral commissioner is very tech savvy all the results all the documents have been uploaded onto its website this is a an electoral commissioner commission that even has social media handles it is in its is in line with the transparency and the need for ghanians to know that these this information has been put on these websites so anyone who wants to know what actually happened just needs to visit their website visit their facebook page or any other social media handle the documents are there and import more importantly the petitioner himself through his witnesses has admitted that he has all the documents so there is no issue as to know who actually what actually happened because we all know what actually happens it happened and the documents to support him are available on the internet and then when you come to the validation as i said the court is not here to validate who won the election the petitioner has brought a petition challenging the validity so if you are challenging the validity then you need to show the court why this validity does not exist or this validity is not what it is so that is the burden of proof that is on the petitioner and the court is not to validate what actually happened so it's going into the actual issues and that is what we are in court for so let's not re let's always remember why we are in court it's not about the public opinion but for legal issues to be determined okay so now i'll hand over to my sister fatih to give the tree translation miniature [Music] [Music] [Music] [Music] interrogation almost say if we say hey and samana petition any set of questions irrelevant according [Music] [Music] namaste

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Length: 207min 9sec (12429 seconds)

Published: Tue Feb 09 2021