Election 2020 Petition Hearing day 15 on JoyNews (15-2-21)

[Music] unprofessionally that's that's what our rules say so when health council puts evidence of vote paddling and gets confirmation from a witness of that evidence this is a serious matter because it affects the whole issue of the rights of voters to have a credible election with results that are declared in accordance with valid votes and all that and yet we had that situation where council put to the witness and council did not only put to the witness those allegations of vote for the council put to the witness also allegations that for one regional coalition in eastern region there were two correlation sheets and council sought to go into that which i will not go into but my point respectfully is that council in fact in doing all that council is really the one who has shown clearly the importance of the testimony of the chairperson to to to address these issues my words we also had the testimony which showed again in response to a question from the bench which showed that the phone which ostensibly the reform 13 so-called which ostensibly the chairperson had acted on prior to a declaration was not in fact the form that is provided for in regulation in in ci 127. that testimony was before this court and my loans and it is respectfully only fair for the chairperson to have the opportunity to admit or deny that important piece of evidence which came from pw2 in answering a question from the bench it is therefore our respectful submission that none of the points made in the affidavits in opposition provide a justification for our not being allowed to reopen our case and therefore that your lordships in the interests of achieving substantial justice as your lordships have often expressed you allow us to reopen our case on the grounds that we have urged and for the limited purpose that we have edged before you this is a minor my laws we are opposed to this application to reopen the case of the petitioner not we have filed an affidavit in a position and lords will rely on the depositions in the affidavit in opposition my lords this application has been filed following the ruling of this court on the 11th of february 2021 because i believe that therefore thunder demands that the petitioner wrote in the posing to the reasons assign the appropriate reasons to the court lord may i kindly refer you to paragraph 11 of the affidavit in support in that paragraph 11 it has been alleged that the reason which the court gave was basically that let me just read it in respect specifically of the witness statement filed on behalf of the first respondent the court decided that the court decided that since she had not been called as a witness by the first respondent for her witness statement to be admitted in evidence she would give under oath she was not available to be cross-examined because i have read the ruling of the court nowhere did the court say what the petitioner has said in paragraph 11 of his affidavit in support indeed my laws what the court said was that with your kind permission simply put we are not convinced and will not yield to the invitation being extended towards my counsel for the petitioner to order the respondents to enter the witness box to be cross-examined so the reason the court gave is there that the petitioner is attributing another yes you cannot cross-examine a person who has not testified in chief academy a person who has not testified in chief cannot be cross-examined yes and this person had not even testified in chief yes but the point i'm making is that a reason is being assigned by the petitioner i'm making what i mean is that it seems to me to be a strange argument because like you cannot even talk about cross-examination when there hasn't been an examination in chief your leadership where a a supplicant an applicant before the court makes false statements to support this application i believe that it is only fair that council will point out those false statements to the court that is my submission that the court has signed reasons in its ruling of 11th of february and it shouldn't be what he has said in his affidavit in support my lord i do not think that it can be claimed that i we made a false statement my lord there is an account given of your ruling council is entitled to give a different account ultimately it is for your lordships to determine whether what we have said but to say it's a false statement that we have made in the affidavit that my lord is not acceptable well i will draw the word force it is an incorrect statement my lord [Music] yes my lord my my leonard friend was saying that my choice of word false and that is why i said it an incorrect the position the position i get the correction i lost hello oh it doesn't flip what yes yes not a perusal of paragraph 13 and 14 again creates the impression that the court ruled in those matters that's in the review in the interrogatories on the basis that the first respondent chairperson will be available to be cross-examined lord again with your kind permission regarding the ruling of the eleven this is what my law shift said when that argument was made we are also of the opinion that the filing of affidavits interlocutory applications with the position that the department will be available for cross examination does not make the document comparable abuse evidence at the trial as already stated leonard council for the petitioner only referred us to an affidavit reposed by the chairperson of the first respondent in a position to an interrogatory application to serve interrogatories that affidavit is not evidence in in in this petition to enable us to compare the first opponent to monday with network so again my laws on the 11th of february the court was very clear in this room nameless in paragraph 16 the petitioner deposes that representations were made by me or for that matter the first responders chairpersons to him well i think that that is a very unfortunate statement simply because the petitioner decided on his own to take the steps that he has taken in this matter repetition first of all did not obey elia orders of the court and then when he obeyed the orders he filed two witness statements and then the petitioner subsequently sought leave of the court to call a witness then the petitioner decided that in spite of the fact that i had intimated in my petition that i was going to call five witnesses i am limiting myself to trade i close my case how petitioner will now see to say that it is as a result of misrepresentations that were made to him that he closed his case akano phantom and those respectfully i never said misrepresentations made to me i never said misrepresentations yes not he said representations are corrected representations node again paragraph 20 of the affidavit in support refers to a matter that this court ruled upon on the 11th of february 2021 this is what the court said on that that is on my paragraph 20 where the first respondent please yes are you not talking to via paragraph 20 yes yes yes my laws ruled on it made a pronunciation on it you see this application is not for review of the of the decision technically in all sometimes it is not for review the case has been closed by both parties and they are seeking the leave of the court to reopen if i i i understand what the motion stands for yes yeah so please address us this is progress 20 is just the constitutional rule the verse is from the verb to play yes you can well well it's your case but think what my lord the chief justice is saying is address as on why the petitioner should not be allowed to not be granted leave to reprint that is what that's what interests us well well so i take it that the paragraph 25 which is uh an untruth about what happened regarding pen drives i think that in fairness you see just like i told i drew miss myself chicago's attention to we only function with law here so first my lord matthew son asked him what rules he was coming under then i asked him the grounds on which he wanted us to exercise our discretion these are the things that we are interested in so when you oppose it tell us why we cannot grant this application or should not grant this application and then the cosmetics can be dealt with later well oh my gosh the depositions in the affiliate in support of this application yes i would move on not it is my submission that this application is not warranted by any rule of law or by procedure otherwise this court is primarily not a trial court and therefore we may borrow from rule 5 of ci 16. and lord if we borrow from rule 5 of cicca closest yes my lord rule 5 of cicc which permission or to go and look elsewhere was the closest that yes my lord is it not a subtle practice that a case can be reopened in appropriate circumstances my laws it is a subtle practice but there are circumstances yes go there that is what we want to know they have argued at length that they want to reopen the peace and it is permissible in law so you satisfy us in a position why the application ought to be refused because this is this application technically it's directed against you yes my lord my lord they also closed their case they have i'm talking of the secular respondent they also have a role to play but they are not suggesting in their list the case is european they are going to serve the second respondent to come from the jubilee house to give evidence yes my lord well i i think that you my loss the view i hold is that if i appear before the supreme court a court which is inviting you to address it on some material is agitating our mind yes my lord yes my lord so i will plead with your lordship to refer to a high court decision which i know is not binding on your lawsuit but with the greatest respect it will help throw light on the circumstances under which a court will commit a party to reopen the case mothers may i refer your lordships to the case of annabelle versus 1982-83 ghana law reports annabelle versus annabelle versus obusu obosu and another 1982-83 ghana law report five eight five note in that case there was an application before us every day as it then was was in this was to reopen the case after the parties have closed their case now his lawsuit in deciding whether or not to grant the application or refuse it relied on the case of young versus creation young and the versus cash or cash of k-e-r-s-h-a-w and that's special consolidated 1899 81lt ns 531 at pete 532 it's a cut of appeal of the english courts which possibly relied on with your kind permission i lost i read it is a matter of great test importance and has always been so treated by the courts that at all material that all material evidence which could with reasonable skill and diligence be produced by the trial shall be the only evidence which can be considered and must be abused at a trial it is obviously in the public interest that parties who have gone through the ordeal of litigation and have had their rights settled at the trial should not afterwards be allowed to patch up the weak parts and fill up the omissions in their case by means of fresh evidence it is true that in special and exceptional circumstances a new trial has been granted because new evidence has been discovered by the rule which permits that to be done is friends round with many limitations the party asking for the new trial must show that there was no remission on his part in reducing all possible evidence at the trial then again as to the class of new evidence the rule is that the new evidence must be said that if abused it will be practically conclusive that is evidence of such a class as to render it probably almost beyond doubt that the verdict will not be different so my laws is my submission that jess asim young versus special this petitioner with very competent legal representation elected of his own revolution to close his case this should not afterwards be allowed he should not afterwards be allowed to patch up the weak parts and fill out the omissions in his case by means of fresh evidence and the only reason is that i wish to call the first the chairperson of the first respondent who is the adversary into the box by way of subpoena this whole process that has been found is an abuse of the court's processes my lords once i with with that respect i have gone and then a bit of research all the way back to 1876 when we received the common law in our jurisdiction i have not come across one case where a party closes his case and then he is seeking leave to reopen the case only because he wants his the adversary to enter the witness box for him because it totally will collapse our adversarial system we lost we ask ourselves the question assuming that this application is granted does that mean that the court will now open the floodgates for the first and second responders to give rebuttal evidence relax if it is just going to abuse the process and it does not occur well for the determination of this matter a specific mother under article 64 1 of the constitution and ci 99 for example the motion is titled an application to enable if i i got it right yes i'm coming to reason he says motion on notice for leave to recall the case of the prisoner to enable that reopen the case of the petitioner to an able where chapters mala the key word is enable the chairperson of the electoral commission to testify well this alone the title alone of the notion should be a ground for a refusal of this application on grounds of abuse well the the body says something else he says that upon serving a subpoena lord i i believe that if i refer your lawsuit to other 39 5 of the high high-quality procedural ci-47 the rules attach pain of punishment among others where a subpoena is served and you don't take certain steps from a lot i believe that the depositions on in the affidavit in opposition with reference to a subpoena it's my submission were right but there has been a submission which is to the effect that the way i cross-examined the first witness of the petitioner i could only have gotten information from the chairperson of the first respondent but if you go through the record i used the witnesses on exhibit d and e to make my analysis and he admitted saying and was regarding the evidence of the second and third witnesses of the petitioner lost what they said how they contradicted themselves is under record so the issue of the the two different stories had for the court to determine very oh my lord lord i'll be ending soon my my lord i wish yes my lord you are not even a lot in time for cancer to be so i mean uh limited to when we need a short very very short time to present the submissions yes so please try and i mean organize yourself and present your your kids that is all that's my lord i i am i am i have addressed you on the abuse of process and then i i just wish to end my my lords with the fact that a person someone on a subpoena testifies in court as a witness of the party who caused the subpoena to issue this application that serves as notice to your lawsuit that your court will be required to issue a subpoena for the first respondent to testify as a petitioner's witness again males it confuses our adversarial system of adjudicating mr chikato said the person will be an adverse witness yes but your leadership hostile yes but but but definitely it is a party that caused a hostile witness so mr anova can you um address us on section 26 of the evidence act who just argued section 26 that does not arise at all not if you go to section 24 you go to section 24. it says that where the basic facts that give rise to a conclusive presumption are found or otherwise established in the action no evidence contrary to the conclusive conclusively presumed fact will be considered before the tribunal effect then it is just opposed to section 26 it says that acceptance otherwise provided by law including a rule of equity where a party has by his own statement after omission intentionally deliberately caused or permitted another person to believe and attempt to be true etc thus a combined reading of these two do not support the petitioner's case one wait without what are the presumed facts in this matter the presumed charts so far the petitioner has been silent on all he says is that oh i didn't anticipate that the first respondent will close his case and therefore i think that there are matters that will support my case and therefore she should be called that's it it has nothing to do if i heard mr chicago one in your statement of case you alluded to the fact that the chairperson or the first respondent who would make it so available for christian nation that he would testify and then the other one was the availment in the that was why i was referring your lordships to the various release on the court that are determined the matter but my law said i should go to the third so it's my submission that the various ruling by the court for interrogatories review [Music] um discovery they have all addressed the matters that he is raising that's masturbation not on a lighter mood god is a god of conscience i believe that ask him to go that far he sees in the court of law yes yes but but not with respect with the greatest response when we come here when we take the oath and we swear on the cross on the bible so be it yes for the petitioner consistently made statements attacking the faith of the chairperson of the first responders i think that we are not here to demonstrate of practice and witness yes yes lastly it is my submission that no representation has been made whatsoever to the petitioner for which based on that he is bringing this application because i don't think that it is fair for the petitioner to blame the respondents rather than himself for the reason why his actions had taken the stages that he took lost i repeat that the first respondent is vehemently opposed to this application and prays for his dismissal i'm grateful to the call as i said the application is directed basically against the first respondent but since you were saying yes my lord and i i believe that the ruling of the court on the application only to offer the case in general that is materially our position in this matter so we we are entitled to give a full response to applications i wish to make a preliminary observation submission which is that ours is an adversarial system of litigation it is not inquisitorial secondly in that system of litigation the question of burden of proof the burden of producing evidence is fundamental it's one of substantive law and therefore a party that bears the burden of proof and the burden of producing evidence as the petitioner undoubtedly does must must must effectively meet that building of proof unless it is well established that where the party bearing the burden of proof and burden of producing evidence fails to meet these two burdens the court has every right to dismiss the purchase plate because the party's release can only be obtained if it leads evidence that meets these two burdens and it's our submission my words that to date the petitioner in our respectful view has failed willfully i'm setting a foundation for my specific arguments you know these are general propositions of law yes yes and creditors with that knowledge of the law i wish to rely on my depositions the depositions in the affidavit of second response respondent in opposition to the petitioner's motion for leave to reopen the case all the depositions and my lords particularly i wish to refer your lawsuits to paragraph 12 paragraph 13 paragraph 14 15 16 and 17. my lord it is our view that the general principle of law is that once a party to achieve announces to the court that it has it has no additional evidence to address and thus closes the case the court is obliged to offend that decision of the party and my lords we wish in our respect to refer your lordships to lay versus nineteen eighty-four eighty-six two gunner law reports four one zero at four to seven and there's a quarter of a few cases before nineteen eighty four eighty five two [Music] where at page 427 the court held that the lemon council submitted that the char was unsatisfactory for the leonard trump judge close the case for the difference bring the cross-examination of the defendant's witness had not been completed i think this is not a fair criticism of the military judge for the record clearly indicated that it was the defense council who announced to the court that he was not calling for the evidence i was closing his case in the circumstances the court could not do otherwise but to accede to the request of the elected council and close the case for the defense council for the defendant contended that in any case it was wrong on the part of the council who appeared in the court below to have closed the case of the defendant in that at that stage simply because the weakness was not available for further cross-examination but it seems to me that the other council in the court below acted wisely and in the best interest of his clients and that any council placed in the situation in which council found himself would have acted in similar manner we it is our submission that it was council for petitioner who voluntarily announced to the court that he had closed his case he did so taking note of all the evidence abused by its weaknesses and through cross-examination of these weaknesses that evidence included what happened in the strong room the evidence also included the alleged conversation between the third witness of the practitioner and the chair of the first respondent and we also allege irregularities in the correlation of results the petitioner led all the evidence that it had improved these allegations through the three witnesses my lord he cannot having led evidence that was within his knowledge that he could have by exercising due diligence obtained now come back after closing his case to apply to the court to reopen the case simply to lead further evidence on the same matters the petitioner also led evidence on what he considered to be unconstitutional actions lack of transparency and fairness by the chairperson of the ec evidence was led on all these things why not so the question is if the case is closed and the defend the respondents elect not to addre enter the box and address evidence the question then is for the court to look at the evidence before it and determine whether or not the petitioner has met has led evidence to meet his claims and reliefs and my lord it is it is important to underline the point that this has absolutely nothing to do with why the first respondents does not want to enter the box it is a totally irrelevant question at law it is totally irrelevant again it has nothing to do with the suggestion that the first respondents chair was the priest to have an opportunity to vindicate herself these matters are completely irrelevant to the application to reopen one's case and need that in effect is fresh evidence because the idea is to reopen the case supine the first respondents chair so that he can lead further evidence that is new evidence oh my lords it is a respectful view it's a respectful view but the petitioner is bound to meet the time tested conditions established by this court to read new fresh evidence we cannot hide behind the application to open so as to subpoena to suggest that this is not in substance an application to reduce fresh evidence and if it is as i think it is then he must meet two basic conditions one that the fresh evidence that he's seeking to address through the subpoena was not available and could not have been obtained through due diligence was i'm submission that the proceedings of this court show clearly that the evidence on these on these four matters what happened in the alleged encounter between the third person of the first respondent and the two the second and third witnesses of the petitioner what happened in the strong room the allegations of irregularities are clearly before this court so it cannot be fresh evidence secondly fresh [Music] that is why i think that the substance of this or the content of what he intends to achieve through his opinion must be assessed evaluated by this honorable court before he can decide whether or not to exercise his discretion and granting the application to reopen i think uh mr jesse we held him sorry mr kotamba my lord my good friend mr chateau chica referred to me as my friend she in the course of this proceeding you see i think he made a point that they want to reopen their case so that they can serve this opinion on the sorry on mrs jean mensa so that she can be treated as a hostile witness yes so address that please my lord professor addressing it i also understood from him that you did some harm in cross-examination you you brought certain things out and crosses our nation so he should be allowed to speak to that through the process of the subpoena yes our case is that at that time he was electing to close his case he knew that were elicited from his witnesses were matters of record and if he really intended that intended to to do that he would should have applied to the court to enable him to lead to to to file a new witness statement to read evidence on that he didn't do so he had all the information at that time and he boldly declared to the court but he was close in his case the only reason why now the the the petitioner is applying to reopen his case is because after he closed his case there the respondents exercised a right that they had not to address any evidence and my laws counsel for the petitioner and the petitioner cannot say that they did not have an inkling of an idea that this was a possible approach that the respondents would adopt first because it is a process that is available in any trial for defendants the second we said mr paragraph system of the affidavit in support they said they were taken by surprise yes but that year it therefore came as a surprise yes that both council for the respondent announced on monday in february 2021 that this was no longer the case this was no longer the case paragraph 16 of the affidavit in support not only they had prepared to cross examine your weaknesses and that was why they closed their case yes they had no inkling whatsoever that you are going to close your case that's but then this matter came to them as a surprise yes if i may respond to that my first point is that if they had thought through fully the case of the respondents they would have known that this was very likely to happen because right from the beginning of our filing our answers we had seven notice to them and the court but we didn't think that we had any case at all for us to be even head and yet this honorable caught in his own wisdom directed that you would deal with a perennial objection at the end of the trial so they must have had notice that it was likely if they failed to lead sufficient evidence that would not produce any evidence and consistent with our original and primary position would would as a court to determine the matter and the evidence before it so whereas it is i i cannot believe that my my learned friend zachary cutter would not have anticipated this this matter as a matter of strategy he should have and if he didn't well my lord's that would be too bad for his client i recall your submission is already on file andy your preliminary objections yes they're already on record yes everybody's yes with themselves now my lords so that that deals with the surprise and my laws again it cannot be the case that they were relying on the statement made by the chairperson of first responding that even if the interrogatories fail they would have an opportunity during cross-examination that cannot be stated cannot be a commitment to the fact that we shall read evidence to chief it is only a legal argument that you may have that opportunity during cross-examination and that opportunity will arise only if you enter the box to read evidence in chief so it can never constitute a fact under section is it 25 24 of the evidence act which upon which they acted to their detriment and therefore we are stopped for the first respondent is estopped from from exercising in is right not to address evidence it cannot be and a lot what is even more interesting is that those provisions of the evidence act we see that section 24 that he reads says that conclusive 24 2 with conclusive presumption improved but are not limited to those provided in section 25 to 29. when i launched if one goes through 24 25 1 it says accept otherwise provided by law including a rule of equity but facts in a written document are conclusively presumed again in 2016 as others provided that's on 24 20 25 this with the contracts and conveyances yes i'm saying that we will see if this this provisions must be read as a whole we cannot be you cannot take this out because section 26 again repeats the accept as provided by law of the world evidence when a party passed by his own statement act intentionally or deliberately cause or committed another party to believe a thing to be true and to act upon psych belief the truth of that thing shall be conclusively presumed so there's deceptions in law and in equity so it is not the same goes for section 27 28 and 29 so my lords i think that it is misconceived for cancer for the petitioner to suggest that the conclusive nature of the alleged statement of fact by first responding is not limited in any way and it is in our view limited by the right of the respondents to elect not to add this evidence again we wish to refer your lordships to to the case of the president of the methodist church of ghana versus k k spell k-y-e k-a-y-e the president of the nationalist church of ghana versus k my lord it's a judgment of the high court quecos by usuj fancy then was delivered on 10th april 1970. it's a one-page ruling 10 april 1917. it's actually in the lord because 1970 but we couldn't 1970 now we have we have we have the current christ yes yes okay so what did the god say hell once a party closes his case he abandons every right to call for evidence except with the leave of the court precisely that's one thing that this is an attempt to call further evidence that is the point i'm making my lord you know and he must be held to the room or the conditions to be met in order to address fresh evidence or further evidence to use his words an application is only considered when at the time of closing the case no human ingenuity could foresee the existence of the particular evidence the parties seeking to abuse that cannot be the case in this situation my lords again my lords we also rely on honorable and and another refer to you by council for first respondents and again my lords refer your lordships to the case of combat because it's london 1989 sorry sorry my lords combat spell k-o-m-b-a-t versus lambie l-a-n-b-i-m 1989 [Music] 91 gunner law reports 324 where the yes a child caught yes after the case of the plaintiff close apprentice case that the trial court called the witness who testifying support of the defendant and based on that testimony the case of the plaintiff was thrown out the plaintiff appealed against the decision of the court the high court quran bennington accident was aligned the appeal stated as follows the general rule of evidence was that after a prisoner's case was closed a judge should only call fresh a fresh business when a new matter had arisen ex improviso proof would not have been foreseen such a weakness could in several cases only be called with the consent of all the parties we believe that the the authorities in canada a commonwealth jurisdiction common law jurisdiction may with respect assist their losses and we wish to refer to the case of ontario limited ontario limited versus sagas industries canada incorporated it's a 2001 scc 59 or 2 scr 98 that's the supreme court of canada there the high court approved of the two-stage test first articulated in the case of scott versus cook 1970 oj number 1487 namely the test which is intended to assist the charges in exercising his or the question to reopen the trial requires the moving party one to show that the evidence he or she seeks to abuse is sacked that if it had been presented actually would probably have changed the results and two prove that such evidence could not have been obtained by reasonable digits before the charcoal now these are the same principles that this honorable court applies in in reducing fresh evidence now it is our submission that this case is about votes and numbers there is nothing about the engagement between the second and third witnesses of the petitioner alleged engagement with the chairperson of first responders if even if true that has been shown to have had any material effect on the outcome of the elections and we demonstrated that quite thoroughly during our cross-examination of mr sierketier where we took him through all the different stages to show that whatever you do first second respondent crossed the 50-plus threshold and british now persistently remained around 47 so and and and to be told the third witness actually declared during cross-examination why they were going to see the the practitioner what was it they were going to tell him about the irregularities and errors in the correlation process but now the question is does this claim of irregularities and errors in the coalition process legally stopped the ec and the returning officer of the presidential election from exercising her independent function and duty to declare election results if in her view the russian results were accurate the only thing that the person could do would be to come to court to demonstrate that the election was also not accurate so my lords one cannot fault the easy chair until you come to cut and are able to show that the election results were not accurate and please address us on the general principles which you base your submission on the authorities then you see on record it's not your client i'm i'm a bit taken aback we have uh serious consequences on the case because both of you may do so many things but for the time being yes yes the application is for the opening of the case for the petitioner yes your attention has been so much on the first responded and i'm saying that on record on record they are not even saying that when the case is reopened they will support the second respondent to mount to the witness but that's not that's exactly what that said so we want you to address this on why the european issue driver yes that i think you have to understand about the bench yes because they are not asking for they are not asking for anything from the second respondent my simple submission is that to reopen they must satisfy the two preconditions one that the evidence they intend to lead was not available to them at the time the clothes were case and could not have been obtained by the exercise of due diligence yes and two that the evidence they intend to reduce if they are given leave to reopen their case will have a material effect on the case and we are saying that there's no way that it will have a material effect on the case given the evidence before the court even if the user has a vote even if they choose to use her as a hostile witness a lot my lord will also wish to refer your lordships to the off quoted case of dumbo and others which is now 1970 cc 68 i thought of our pinkies and then the principles are never the same adduction of fresh evidence or appeal has nothing to do with reopening of a substantive case at the track you have to work yeah or through your opinion please the principles apply in curry material that is my submission and the principles are trying important material you know 2007 2008 1996 supreme court supreme court of god january 4th 1996 996 sorry now my lord is our case that the west the decision of the court in pokemon pokemon even though referred to addressing fresh evidence and appeal are the same in the case where a party closes his case and applies to reopen his case to address further evidence they applied parry material and in that case good cg observed as follows at page 10 15. consequently the invaluable rule as i understand it is that in an application to lead fresh evidence or new evidence the first criteria which an applicant ought to establish is whether or not the evidence sought to be abused was not in the position of the african party or was not obtainable by the exercise of reasonable diligence or human ingenuity before the impune decision was founded it is only when this first hurdle has been surmounted that the court should proceed to determine the other pertinent question of whether or not the intended evidence would have a positive effect on the outcome stated differently if the first criterion is not met no useful purpose will be said by examining the other factors oh my lord the world into our submission we respect if i may make submissions on the question of subpoena or it is not a matter before your losses in this submission the application of the 65 root 4 of the high court rules c i 47 6 or that's 25 rule 4. [Music] to compel the attendance of a witness for the purpose of proceeding in chambers will be issued out of the registry if the party who desires attendance of the witness produces a note from the judge or register authorizing the issue of the writ further section 88 1 of the evidence act 1975 mlcd 323 provides entirely all that except as otherwise provided in this part of yes act 1975 states enter earlier loss except as otherwise provided in this part or in any other enactment no person has a privilege to refuse on julius opened to be a witness now i lost the petitioner i applied to this court to open this case and to receive a subpoena to compel the chairperson our first respondent to testify because this should be reviewed this application should be viewed in the peculiar circumstances that first respondent has already elected not to address any evidence in this petition and the court has affirmed his right not to elect about to address any evidence whereas the process of cross-examination involves addressing evidence and and so my loss is our submission that the object of this application to open we open the case is precisely the object of their opposition to the respondents election not to reduce evidence and it is our respectful submission that the court having upheld that right of the first respondent and the respondents generally to let not to address evidence cannot with one hand a friend that's right and with the other one disappointed by allowing the petitioner to support him to cross examine and thereby reduce evidence from from her i think that that would be inconsistent with the court's own ruling based on the submissions you just made what would be your comment on paragraph 15 of petitioner's affidavit in support what's up yes 15 my lord is saying that it has become necessary my lord we say that they have demonstrated absolutely no necessity the petitioner has demonstrated no necessity because without due respect they have not shown how the grant of the application would have a material effect as a necessity material effect on the outcome of the the matter in dispute i'm not sure all that they have said is that the ec has has a constitutional role it has to be accountable they tell the issue as we accountable to the people so on and their lawsuits in this in their ruling said that the rules that apply to ordinary people in these circumstances equally applied to the ecj that's what your lawyers were in a few days ago stated so my lord we do not see that we have to illustrate any necessity all the necessity is based on the fact the allegation that the the chair of the first respondent is stopped from from from saying that he will not enter the box because he had she had already committed herself so to do when the chair of the second responder never ever committed herself to that and cannot thereby be a stop and god [Music] the now we will say end with the two other cases the first is the northern ireland case of ram andrew fulton ms fulton and cyril fulton sorry one ryan andrew and fulton f-u-l-t-o-n and that's fulton and cyril fulton this is a ib group uk plc 2017 nikka 32 2017 wl 2017wl 033822 wlr or wm and that's just w l that's all zero the citation the citation is the first one is n-i-c-a-44 oh okay yes 44. this was a case where in the court below the high court judge refused an application for discovery because it did not satisfy the two important tests of disclosure which are necessity and relevance and my lords in your ruling on discovery you upheld these two cardinal principles necessity and relevance the applicant's appeal was accompanied in the case by an application for subpoena against various people including council for the respondents to produce discoverable documents the court per gillian lg dismissed the appeal and disallowed the subpoena application stating emphatically in his judgment thus suffice to say that we are satisfied that the application in front of mcbride j for discovery was correctly decided by her and we affirmed her decision and this is the important statement of the law accordingly we also come to the conclusion that there is no basis for the supreme court's not being sought as they arise out of the claim for disclosure if discovery is not appropriate then supplements are not appropriate with yes one application an application invoking our inherent jurisdiction to reopen the case yes but the reopening my laws relate to the substantial issue of the matters they sought to elicit at length my brother is just asking you how dark is best in the affinity because there's a principle that a request for subpoena cannot be used to disguise an application or discovery that's a principle of law now that come again a request for subpoena yes cannot be used to disguise an expectation for discovery of documents you know but we've gone beyond discovery and these are earlier applications which we disposed of so several weeks back our understanding of this process in the circumstances of this trial is that they are seeking by their subpoena to elicit the very information that they fail to elicit in the application for discovery and i'm saying that the principle is that what you cannot get by discovery you cannot use the software enough to get that is the point yeah according to you or according to them they are submission you give them the promise that you don't need the discoveries you don't need the discoveries because you'll be available to testify and they can't they can ask those questions where you are in the waiting room with all due respect we never made any promise we just stated the position of the law that a matter that you may not obtain through discovery you may elicit through cross-examination that is all i'm not saying that we have promised to enter the box because that time the time had not arisen for us to address mr elect you did not make that promise yes we all record it is and also you are not appearing for the first yes my lord yes that is true but is it is it really god why is that advice are you going to be paying i'm a party to this case and as counsel i have a duty to this court to draw his attention to the correct position of the law [Music] yes so it doesn't i think that it doesn't matter too much that i am not counsel for first respondent yes so my lord i wish to refer your losses back again to the instructive words of wood cj in poco and poku at page nine nine eight learned to justice then admonish with great emphasis that quote an application to reduce fresh evidence is clearly circumscribed and only operates within its statutory limits this rule is therefore intended to assist an applicant who has made a genuine attempt to look for evidence and has met with failure courts are therefore to be adept at unmasking attempts by dissatisfied party coming through the back door [Music] and under the cloak of having come by knowing of fresh evidence seek to fill in the gaps or losses in his or her case for the rule is not made to aid the throwful or the indolent the careless negligent or reckless litigant whether acting proceed or through cancer the application is not granted on compassionate grounds why is it that the ec god and so on should not go into the box those are not the grounds neither is it meant to give slovenly particularly a little active true council and who fails at the child to marshal his facts carefully and fails to conduct his case properly by presenting essential evidence at the child or through the necessary cross-examination or also fails to conduct the necessary investigation which would have thrown light on the strengthen or strengthen his case a second time at rebuilding his or her case under such circumstances and unsuccessful attempt to lead fresh women cannot be met with a criticism where the court was visiting the iniquities of council on decline either for the law has made provision for redress for the loss of a suit is the direct result of recklessness or negligence and when he closes a party who goes to court has the soul dreading let me emphasize the soul burden of leading sufficient evidence to prove his case he cannot rely on the weaknesses of his opponent or rely on his opponent in prosecuting his case it is for this reason that sarkozy 1963 two ghana law reports 596. the supreme court koram sakade ado jjsc speaking through orlando jrc or then at page 597 as follows the plaintiff could not have called any of the other eyed witnesses because they were the very people against whom he was getting his title and it will be nothing but madness for a party to assume to rely on his opponents to prove his case my lords what's our case i think you have to change your wig it has lost its identity it gives it unique identity may i with your leave just make one short point in response as a matter of law and my lords i just wish to point out that we could not at the time we closed our case as a matter of law we could not have subpoenaed mrs jim mensa because she had a witness statement that she had filed in this court on behalf of the first defender of the first respondent that witness statement was in this court in addition to the affidavit that i referred to so at that point in time we could not have disappeared just one um flowing from the solution from cancer in this proceedings this court has upheld the right of the chairperson or the first respondent want to testify no matter this ruling let me learnt we have confirmed her right to decide not to testify so a party respectfully they're not that one page i'm sorry the last i don't know that you have a copy of the room it is next to the affidavit of the second responded yes unfortunately they never they did not indicate the speech but it appears the last but one page affidavit of the second respondent no yeah the rules are next yes it's our next yes i think the last paragraph beginning with the law is therefore certain that a party will not be compelled to enter the witness but intensify in support of a party the chairperson is not a party parties who declined to give evidence take knowing perfectly well that the court would be left with no option but to proceed with the available evidence before it council for the petitioner has strongly submitted to us that you should not apply the society of loyalties to the peculiar facts of this petition because the first respondent being a constitutional body would define responsibilities must be brought before this court to be cross-examined as a way of accounting to the people of this country for instance worship the society of law's case like this petition also deals with witnesses who have served witness statements and have decided not to give evidence to be cross-examined indeed the witness statement was saved by mrs j messer yes but a party your lordship just read a ruling in which your loss is referred to a party the party in this case is the first responder not mrs j messer and we are saying under the circumstances we declare the results from the electoral commission my lord that is a perfectly legitimate legal separation the ec is a corporate body and the returning officer is an individual who happens to be the chairperson of their corporate bodies you cannot with respect you cannot make the two identical my lords otherwise why would the constitution make the returning officer the chairperson not the holy see that the the constitution is quite clear in separating the role of appreciators but then it is the chairperson in her distinct capacity as chairperson now not least not the easy some of the owners i was just responding to the point about you know lack of due diligence and so on and so forth and i was just pointing out that at the point in time when we closed our case there was a witness statement that was not statement yes that's all i wish hmm by court this petition is server agent to tomorrow that is tuesday the 16th of february 2021 at 10 o'clock please is 10 o'clock um because uh with all due respect i have a little prayer to make my lords this cod directed us last week that we should all file are written uh closing arguments there are other students but if you are worshiping this you hear me out if you on by wednesday simultaneously my lord we have seen a situation where the court has ordered parties to file their witness statements by a certain date and others applied for review and used it not far with the effect that we filed our witness statements before they filed well not i just want to pray for an order to the registrar that if we found our witness statement on wednesday and the other party has not filed a personal addressing address sorry closing addresses and the other party has not filed because of maybe a review we should not have any site of our closing address yes now that's our prayer i think it's important to give integrity to the other call that all parties must file on wednesday simultaneously as your lawsuits have indicated this is a court of record if he wishes to make an application respect of the order is it about implication that you are not going to file your closing address i know this is a court of record so we will stick to our record all right the procedure today has come to an end it was an application before the courts seeking to reopen a close case as you know they say litigation must come to an end at some point last week the petitioner's lawyer mr chachichikata closed his case but today mr chikata has been making arguments seeking to reopen the petitioner's case he is not necessarily coming under a court rule but the inherent jurisdiction of the supreme court to grant this leave the circumstances that have occasion this application he points us to paragraph four and five in uh that application we'll get to that in a bit but mr chikata has also emphasized that in the chairperson's affidavit she gave the impression that she intended to take the witness box thereby establishing a concluded presumption which could not justify leave to abuse evidence and it was this reasonable expectation that led to the petitioner closing his case there was some bit of clarity uh which mr chikata essentially says if she if the case is open then the chairperson of the electoral commission will now be a witness of the petitioner if application is granted they intend to treat jin mensah as a hostile witness there was argument against this application as expected by the elite lawyer for the electoral commission mr justin namanovo who says what the petitioner is asking for is not warranted by any rule or procedure also says this current application by the petitioner amounts to abuse of the court processes supporting that closely is the second respondent's lead lawyer courtois he says that such applications must be on two crucial grounds which is that one evidence was not available at the time the petitioner closed his case and then two if the real opener will have a material effect on the case and there's no way now the court should allow that to happen uh so the court says it is settled practice that the case can be reopened under certain circumstances we had justice tokudo there say that they can only exercise this distress discretion on extremely appropriate grounds there were some lighter notes to today's session as always mr chikato says it will honor the god jin mensah serves if she took the witness box mr menova unfortunately couldn't quite complete his statement he started off by saying god is a god of conscience i'm not sure how that would have ended but akhotom paul's wig we were told by the chief justice that it has lost its identity he's got to change it so basically uh this is how i would like to sum up we can bring up uh those two paragraphs the basis for this application but we want to say that the election petition update is brought to you in association with petrus or clean fuel in full quantity it's always a delightful experience dbs roofing we truly are your roof experts kawamiksa the immune booster for your general well-being my name is mama viewers are here with koji yang sing who's been taking lots of notes uh joseph aka play as our court correspondent he joins us uh joseph we didn't think we'll get to midday today but applications as we've seen in this ongoing election petition is not always uh so simple uh what can you share with us after today's setting and so it's been a day of interesting legal arguments that have been advanced by at the sites and there was a bit of an interesting engagement at a very later part of the proceedings uh where you heard mr kutampal making a request of the course in relation to if orders that had to be complied by the 18th i whenever the hearing that is settled for the 18th it has to do with the filing of the explosion addresses that he was saying that i never would have viewed that in the event any particular case decides for some reason to found some form of a review and they should not be permitted by the registry to see their documents which will be filing as their closing addresses as is happening in the case of the witness segments where you recall mr mohamed said did not file a dr witness statement because they said that they had filed for a review of their cause and surrogacy's ruling and subsequently when they were ordered to palace and comply of course that was foreign with essentially um the various types in this particular might have in the last few hours from starting from 9 30 and the advancing argument in support of the request for the case of the personnel to be reopened or against a reopening of the case mr sikata who leaves mr muhammad has conversed his argument he insists that the court should exercise its inherent jurisdiction its own powers its own discretion to enable them re-open the case because there are masses that have come up in the course of the proceedings are related to both harding issues about an instruction reportedly given by the electoral commission's chairperson in his own words to uh test some of his witnesses two of them are to go over and confess with their party's presidential candidate which eventually saw exploration results in their absence and so those are matters that are important and one person can account to it and one person can settle those fast and so it's important that 80 person they allowed to be opinionated for subpoenas to be issued for the easy term person has to come in and testify we have heard the lawyers on the other side and mr milovo and mr tampa for president make the point that it is very difficult to marry this particular application uh with the first earlier decision that the witness cannot be compelled to give evidence being that this witness other coach was speaking to one of them was um the system mentioned so should a court decide otherwise in this instance we'll enable them re-open the case and subpoena to be issued it will have to mean that their court has to be reformed in the administration on that particular martian so and those are briefly the major highlights of the arguments that have come up so far and even a lot of other proceedings the justice of the cause that passed out engaging with scatter on this particular point about the course earlier this year and what should happen the course has taken a break is coming back tomorrow at 10 am deliver it's ruling on this very important issue that has the potential to now either pave way for the course to come to your conclusion on this election petition or perhaps reopen it up and allow for further directing that would uh see another some few days of caring take place yet again and joseph the the bit about justice malfoy sound engagement with mr chikata on this matter mr chikata sought to make a fine distinction between the electoral commission's witness and the electoral commission chairperson who uh was the returning officer in the 2020 presidential elections that that the petitioner is hoping that if this case is reopened they can get here to be in the witness box explain again um what what the issues are with regards to this matter because these are are they two distinct matters what exactly did the courts say mr chicago's argument was to the effect that when they closed their case the first respondent was called upon to lead evidence and the first opponent elected not to lead evidence and the first opponent to this distance he says refers to the institution of the electoral commission he says in this particular instance when they are seeking uh to have the case be open is to subpoena the chairperson of the electoral committee with an individual separate from the institution of the electoral commission it's a respondent in this particular case and in which instance the court has still said that that party to the case can elect not to lead evidence and so his point is that jane mensah as the chair personal election commission is distinct from uh the electoral commission of an institution that has been used in that as chairperson of the electoral commission he was the returner for the presidential elections and so it is under that directive that they are coming at night so he was edited at first to take the view that it's it's not the case that whatever decision it decides to take would mean that it is you know definitely defeating its own earlier decision in that in that earlier edition the of course was talking about the fact that it cannot compel the first opponent to meet evidence in this particular instance we are seeking to bring in an official who west at the first point in this particular case was the returning officer for the presidential election so that was the extension that uh mr kass could make in regards to other issues relating to agent mentor and the electoral commissioner institution joseph acable will return to you when the two parties uh start addressing uh the media we'll take a a breather when we come back uh kojiang singh will share his notes with us [Music] it's time to go digital create your unique online store in a few clicks connect your facebook shop instagram or whatsapp business and add your products prices images and stock levels collect payment online offline and in your shop get instant notifications of your orders and payments and deliver your product to your customers doorstep with our delivery service manage your sales customers and staff from anywhere at any time get our digipak and up to 200 000 cds working capital to grow your business visit digistoreafrica.com and set up your business for free digistore powered by ipay and ecobank uncompleted [Music] [Music] [Applause] and [Music] [Music] see i've said this several times you don't listen to me huh what are they trying to say about why [Music] any wait wait this is the real deal engine oil paper power hey ever since i missed you so petrol celebration [Music] [Music] gps [Music] [Music] and you're on your most credible news source this is join user election petition update in association with petros or clean fuel in full quantity is always a delightful experience dbs roofing we truly are your roof experts core mixture the immune booster for your general well-being koji axing we're told both parties are on standby to address the media except that they don't know which party would go first same confusion differently yeah but we we have been following uh proceedings with with uh wrapped attention and it's very interesting this today i i noted specific points all the way through the points may not be connected to each other but each one seems significant on its own for example uh lawyer chachuchikata made this point in his argument he argued um that look the respondent made an argument against uh the motion for interrogatories by saying that um you know um the petitioner the petitioners rights are not affected we'll come back to this i think absolutely let's join because you're application i will come to the specifics of the argument and what we've been arguing and what we look forward to tomorrow but let's go back why are we here the petitioner has told the supreme court of the republic of ghana that among other things nobody won this election and therefore there should be a rerun and has notified the court that he has five witnesses who will prove this the court gave orders that all parties should file witness statements and indicate to the court a witness statement is an indication to the court the summary of the evidence in chief indicate to the court how many of these you want to put in or you intend to rely on if you read ci47 and ci 87 you intend to rely on that's the expression now you'll recall that the first and second respondents complied and the petitioner did not comply initially and the practitioner then came for leave after we had filed a witness statement to file his witness statement be that as it may the many attempts to put impediment in the way of the full trial gradually were removed by the court and we got to the full trial the practitioner initially called two witnesses who were expecting will come and make their case and for all of those who have followed the trial so far it begs the question or it remains at large whether or not the initial two witnesses were able to make the case for the petitioner the practitioner then sought to leave to bring in a third witness mr rojo metal nunu who then brought in a witness statement and then came to testify and then at the end of mr rojo matununu's testimony without any compulsion from any cortes the petitioner announced to the court that he had closed his case he was done he had finished making available to the court all the evidence necessary for the court to find in his favor the first and second respondents weren't given the opportunity then announced that they were also closing their case they did not think that the practitioner had raised any reasonable cost that required them to bring in witnesses to come and testify despite the fact that they had initially suggested to the court that if it became necessary these were the witnesses they intended to rely on it is at this point that the petitioner has brought a new application to the court after the court has made orders that we should file our written addresses i think by thursday for for by wednesday towards final judgment now the petitioner is asking the court to give it permission because it's not a right to give it permission to go back and reopen the case and address some new or some fresh evidence it begins to beg the question why would somebody who has told the court that i have closed my case i've made my case i've brought all the evidence and the witnesses that i believe can make my case who earlier argued that this was an ironclad case this was solid on all fronts why is the petitioner now asking for permission to go and open the case to reduce new evidence when you ask the argument they make is that because the electoral commission through its chair advertised to them indeed the word they used earlier today was promised that you also get in the box well as has been explained by our council and indeed the bench through its previous rulings the response to the court order to file a witness statement and even the affidavit on interrogatories do not constitute a promise to get in the witness box and in any case if you have an opportunity to cross-examine you cross-examine when somebody has led evidence-in-chief so if the respondents have not gotten into the box to provide evidence in chief what is this cross-examination going to be on the court has already ruled that a party cannot be compelled to reduce evidence today you have seen our colleagues come with an application asking for a super what's a subpoena to compel the ec chair to get into the book so the very thing that court said uh the last time we were here they've come with an application with a different name or different instrument asking the court so to do you also had leonard council on the side of the first respondent and second respondent raised a number of reasons for which the position of the law does not support the argument that they are making and i hope you took notice of the fact that for several minutes the vulnerability empire on his feet was citing various authorities in times past that do not allow the party that is a practitioner to do what he's seeking to do i want to end by reiterating two of those authorities one poku versus poku the former chief justice georgina wood and i just read to you an application to reduce fresh evidence and why we are saying this fresh evidence is because when you come and ask to reopen your case why are you reopening your case you want to reopen your case because there may have been something that was unavailable to you which you are making now available to the court and that is why we're asking the court to apply the rules of addressing fresh evidence in this instance if not then you are saying that you want to lead further evidence on something that you've had an opportunity and you've led evidence on already and you are now probably thinking you didn't do good enough of a job and that's why you wanted to reopen but the later chief justice as she then was said an application to reduce fresh evidence is clearly circumscribed and only operates within its statutory limits the rule is therefore intended to assist an applicant who has made a genuine attempt to look for the evidence and has met with failure courts ought therefore to be adept at unmasking attempts by a dissatisfied party coming through the back door and under the cloak of having come by some new or fresh evidence seeking to fill in the gaps or lapses in their case for the rule is meant to aid the slaughter the rule is not meant to bego pardon for the rule is not meant to aid the slothful or the indolent the careless the negligent or the reckless litigant whether acting proceed or through counsel so whether it's mr muhammad or his lawyers who have been indolent or careless negligent reckless the rule does not support them the very final quotation that i want to reiterate as articulated before the court by the venerable akutan pow was in the case of burma gemphi and another versus bedu the supreme court koram saccodo leno and blame justices of the supreme court speaking through eleno observed at page 597 that and here's the quote the plaintiff could not have called any of the other eyewitnesses because they were the very people against whom she was litigating her title and please listen to this part the supreme court says it will be nothing but madness for a party to a suit to rely on his opponent to prove his case the supreme court of the republic of ghana says it will be nothing but madness for a party to a suit to rely on his opponent to prove his case you heard council on our side lay all of these authorities before the supreme court and we look forward to their ruling tomorrow as to whether or not you had the compelling legal argument with authorities backing it from the other side i'm sure tomorrow when the justices came they will tell us or when the justices come tomorrow they will tell us which of these arguments and which of these authorities have met their pleasure those will be our comments if there are questions we're happy to take them now yes sir i'm the lead counsel for the petitioner asked for interrogatives he argued in court today that your lead counsel argued then that you said that the petitioner will suffer no injury to his application if the interrogatories are not granted then comes a time when he's supposed to cross-examine the second respondent or the first respondent practitioner or the witness used teran and say that he cannot do that and he says that they came to court with a belief that they are going to cross-examine the second the first respondent so let me quickly respond to that there were two points that were made one was that the petitioner will suffer no injuries if those interrogatories are not granted why because all the material issues including documentation that they need for this trial is already available to them two the questions that they are seeking to ask must be of relevance to the issues at stake and even if they do not get an opportunity to ask relevant questions i.e questions that between the pleadings and the answer are left hanging that the court will require some testimony before it comes to a determination on if there's an opportunity for cross-examination you can put those questions forward cross-examination comes after you have supplied what we call evidence-in-chief now it is expected that you would discharge the burden of proof on you so that i feel that if i don't get in the box to lead evidence in chief i am at peril and then you have room to cross-examine me so it cannot be that you then fail to meet those standards and seek to come through the back door that you should be given an opportunity to compel the witness into the box who has not let evidence in chief by the way to be cross-examined because you have not been able to establish your case in the first place now the second argument of their relying even on this um argument in the affidavit it cannot be true because you notice that they applied for a review if they are taking it on face value that okay therefore we are resting and we go on a cross-examination when the opportunity comes up they will probably not have gone for review but you notice that they sought to go back in fact they went back to the court to say they disagreed with it and the court ruled them out how can you turn around today and seek to reprobate that which you sought to approve it or appropriate that which you sought to reprove it you cannot do that if you have taken a position that you are coming to court to make an argument before the court gather evidence and come and do same if you have completed that and you have announced voluntarily to the court that you have closed your case why are you today now showing everybody that indeed you yourself are recognizing that you did not make a case compelling enough and that is why you are saying that until and unless the ec chair is compelled to get into the box you are not able to complete your case and this is the hurdle that they have to cause we look forward to what the court will say tomorrow yes um counsel for the petitioner um in trying to counter the argument put forward by the other side first respondent indicated that um he's saying that she's not she's not capable or not be capable to mount the box and so he quoted mr chikata quoted evidence section 53 and 54 just incited some cases i mean the rules that it might be someone even a little child can be allowed to go into the box and so forth what is your response so let me just put that in perspective he didn't cause cases we made an argument in our affidavit that no in fact it was the first respondent who made an argument in here for david that she is disqualified from being a witness why she disqualified she is a party to the case if you want to supine a witness the practice has been that this is usually a third party who has information that can help your case here is a case in which you have brought a party to court and you were hoping that that party will get into the box and give evidence to help your case and the party has outsmarted you has taken a superior legal tactic and i said that i will not get into the books if this is all that you have to tell the court let the court judge based on this now the party says i am disqualified from also being a witness because i am a party to this transaction and i have elected not to get into the books and so the court cannot compel me what mr chikata did was then to go under the evidence act of who is disqualified from being a witness yes there's a general rule that anybody who has information that is relevant uh can be a witness and the persons who are disqualified are a and b and c but why that does not apply in this case respectfully in our views is because the ec chair is a representative of the ec the ec chair and the ec and you had the bench say that for the purposes of this case you can't even separate the two so a party and that's why she makes the point as a party she's disqualified from being compelled by somebody as a witness on the other and it is interesting that now the the supposition from mr mohammed's legal team is that when they mention five witnesses because now that's what they are saying that's when they mentioned five witnesses they intended to call the ech as one of their witnesses why are there five the other two are going to make their case for them where are they because now what they are suggesting is that until the easy chair gets into the box they are unable to make their case we'll hear what the cod says tomorrow yes so i noticed two main things in court today one had to do with the application for reopening of their case but the second also had to do with a mention of the fact that mr mcmenu had said something which was recorded on tip which is something that the lead council for the petitioner would like to play in court throughout the arguments of the second respondents council no reference at least to the best of my knowledge was made to whether or not uh the tip should be played however the second respondent's counsel appeared to be defending the the first respondent and not uh the matters that directly had to do with the second respondent i that left me a bit amazing let me quickly respond to that in the 2013 supreme court election petition the court even allowed friends of the court amicus couria to come into the court and to supply a brief on legal matters to aid the court in arriving at a position lawyers sometimes when you are in court and the mata is being disposed of in court and there's a point of law or a matter that you think you should bring to the attention of the court even if you are not a party or council for any of the parties you can pray the leave of the court to provide some legal support to the court as a friend of the court amiku square that was in 2013. subsequent to 2013 the government of the day took a ci-99 to parliament under the leadership of marietta bryopol attorney general at the time had it passed to limit or to constrain the framework of presidential election petitions so now you notice that even the petitioners only one person can petition and arguments from friends of the court are not necessarily being entertained but the second respondent is a party to this case that is before the court and therefore has the right an opportunity to address the court on matters of law even if he is of the view that some matters of law have been missed by the petitioner or the first respondent he's well within his rights to assist the court with legal argument on that and so if he rises and that's why he said with respect to the quota is of no consequence if his argument appears to favor the first response of no consequence because once he is a party and once the matters that are being discussed will affect his client he is well grounded to advance arguments before the court in 2013 even persons who are not um parties or council for parties could do same so i think that explains it now the first argument of the tape i'm sure you were all in caught when mr rojo matununu mounted the box i suspect you observed that the tape was played was it not the tape of peter mcmahon whose interview with um what his name paula do much was it not played how does playing that tape two times change the results of who got 47 and 51. it's been played already not so so what is the basis on which they are requesting for the same tape to be played again there was no reason for us to spend time speaking english around that particular issue it is matters of law that our council sought to address before the courts and that's why they dealt with it but that the if you recall has been played already playing it two times will not change the probative value yes sir so just before the court rose today uh council for the second respondent sought to draw the court's attention to make an order sort of compelling all parties too far by wednesday what were the concerns he was seeking to raise let me quickly clarify he was praying the court to make an order that when we file our written addresses they ought not to be cited by the petitioner and that that is assuming we don't all file simultaneously they ought not to be cited because we are beginning to believe that the practitioner is adopting a strategy of waiting to see what we file and then coming back to file this which should be the other way around the practitioner is the one who was supposed to have filed this witness statement first despite the clear court order the petitioners legal team did not do it first responding second respondent filed ios and then they had to ask for leave to do that i think the um the the the written submissions on the submission of uh what may call it the preliminary legal objection for example you find out whether or not they filed and when they filed and that is why we are making or that is why our lawyers are making that prior to the quarter we don't want a situation where we come and file our written addresses and then there because the registry operates as a cut i mean like to create the public record they will get an opportunity to read it and then come and now find a way to come and respond to it and that's why they are making that prayer that for the integrity of the orders that the court is making we all either file simultaneously or if we don't and there for some reason because they have hinted that they may go for a review that's the same instrument they use the last time review so one file then they read os then they come back because they've done it before our lawyers are praying the courts that if they adopt the same strategy this time around the registrar should be instructed to ensure that they don't cite hours and use it as an opportunity to go and find some arguments to respond to what we have put we should all file ours simultaneously thank you very much spokesperson for the second respondent in this case because your ponchoma addressing the media uh but cody you were on to the interrogatories i think i think so let's see how many of these uh separate points i can get through quickly so mr chikata was making an argument um you know trying to justify why the case ought to be reopened and his point was that a certain modicum of let's call it justice has been denied the petitioner uh what was he talking about he was talking about the uh application for interrogatories when he made that application one of the defenses mounted or the arguments against it mounted by the respondent the first respondent the electoral commission was that denying that application will not uh deny the applicant or the petitioner of justice because there will be an opportunity to cross-examine the witness all right so if based on that uh if after saying that you now decide not to give that opportunity to the applicant the the petitioner to cross-examine the witness then you are denying them the same justice that you said was guaranteed them for which reason their application should be turned down now i i got that but i wondered what it has to do with the court i feel as if the court is a disinterested party in that exchange you know the court simply has to make a ruling on mr chikata's uh you know submissions and i'm not a lawyer again you know we're not lawyers we're observing we're observing we're observing so i could be entirely wrong here but it seemed to me as if mr chicago was making an argument to the petitioner when perhaps it should be an argument to the court or you know an application to the court but anyway what do i know it was a significant point though okay a significant the second to the first respondents i guess yes yes yeah first report did i say second response no you said to the petitioner thank you to the first respondent i appreciate that justice tokonu i always get excited when i hear her voice she often has very interesting points to make and that she made one today so she reminded mr chikata in the middle of a point he was making that um he she basically said i'm paraphrasing you are asking us to exercise our discretion to either grant or deny your application to reopen your case and then subsequently your application to file and for a subpoena that discretion is to be exercised under extremely appropriate grounds i had you emphasizing extremely i have never heard that expression before i mean something is either appropriate or inappropriate but justice tokunu went to the length of ex describing appropriate as extremely appropriate i think this takes us back to some points that we were observing last week the fact that this court is a stickler for the rules i mean the supreme court has the power to create precedence but it's up to them to decide whether they're going to create a precedent or not and this particular panel so far with all of their rulings they appear to have a very very hefty respect for the rules they are not always willing to tamper with them they are not always willing to rewrite or reinvent the wheel they feel that in so so far in the cases that have in the applications that have been put before them the rules have been sufficient to clarify them you know so i wonder how they are going to deal with this pending application to reopen the case whether they will simply as they've done in the past rely on the rules or whether they will look at the situation and find an interpretation that in their view serves the purposes of justice better than whatever is already existent in the rules i can't wait to find out now um another point from justice tokunu which was counted by chachichikata she said that the truth is at large she was making reference to a particular argument that mr shikata was making but mr chikata's response was that well actually no the truth is everything in this one because the first respondent's lawyer had taken many opportunities to question the truth of the testimony of um uh the the witnesses the petitioners witnesses all of them and he gave examples for each of of of them but i found it interesting the concept that you know and and and this is where i'm learning about the supreme court that in some cases the supreme court can hold the view that the truth is parallel to the point you know and this is important for those of us who are observing you know because we may think that oh it's about you know finding out who's telling a lie and who's telling the truth and all that but it's really just about the law you know it's about finding out how the law is to be applied in this case how the supreme court considers the law to be applied in this case that is all that matters sometimes the truth can be a by-product that is fascinating to me anyway um and then of course you made the point about in honor of the god that she serves and i was going back and forth for quite a while um now mr kotompao's arguments were also quite interesting um and he he made this point that once a petitioner says i have nothing to add the i say i mean those are the words they have nothing to add so he's calling on the court to to take the petitioner at his word you know that he has nothing to add so if you have nothing to add and the court is obliged to conclude matters there i wonder if the court will be of that view you know if someone says i have to change that and then suddenly goes oh i remembered something i'd like to add should the court say no no no no you said you have nothing to add therefore it is over um the court has already established that there are precedents for a case being reopened but they have also set the parameters for those precedents okay and they have said that especially it is if there is new evidence so um mr chikat i don't know if in his argument he went to the point of new evidence i don't know if he illustrates he suggested that there is new evidence okay so um i think the the the basis is you should not add new evidence oh you should not use new evidence exactly right it should it shouldn't be yeah but you know as us we go on reminding you of what has happened what has played out in this in this court case today uh we're also waiting for the petitionist team to address the media i'll bring that live to you right here uh on join news you're done with the noise uh the final point and i think this is another thing we started talking about last week mrs jean mensah is not a party to this case she is the witness to one of the parties to this case the electoral commission the electoral commission decided that mrs jean manson would be their witness when the electoral commission rested their case the consequence of that was that their witnesses whoever they may be will no longer mount the stand mr chikata is now arguing that since you have rested your case that person is not your witness anymore the person can be my witness now and a subpoena and that is the case that he is making to the court let's see uh if they agree with him absolutely okay uh so uh some leonard persons because we are not lawyers uh say the court will be thinking about uh a few things and arriving uh at a decision will it help to answer any of the five questions put down uh by the courts by way of the five issues raised that it turns addressing and based on which it would make a determination at the end of this case and i'm talking about the decision to reopen or not and what new thing will the witness uh be bringing on board the case it must not be fresh evidence as they say this election petition update is brought to you in association with petrosaur clean fuel in full quantity it's always a delightful experience dbs roofing we truly are your roof experts go on make sure the immune booster for your general well-being case agenda tomorrow 10 a.m court will be making a decision but its previous directions the orders that it has given also hold so by 17th uh the all the sides will have to submit their closing arguments and then on the 18th that's the shadow that's been given until we get further directions from the decision that the court will deliver tomorrow all right so that's the expectation really we're waiting for the other side which is the petitioner's team to also address the media and then i guess we all have to wait for the court the justices of the court the seven-member panel sitting on this case to make their decision it's our election petition update please stay with us [Music] [Music] we'll take you back to the supreme court now okay so i asked yourself okay good afternoon ladies and gentlemen of the press um today before the supreme court the lawyers for the petitioner brought a motion or an application to reopen his case on the undergrounds that were stated in the affidavit of the petitioner and the basic ground was that at the time that the petitioner closed his case the person the petitioner did so with a legitimate expectation that the petitioner would have the opportunity at the appropriate time to cross examine the witnesses of the respondents now ladies and gentlemen you realize that the respondents filed witness statements they also represented to the court that they were going to make themselves available for cross-examination so at the point in time that the petitioner closed his case he had that legitimate expectation that he would have the opportunity to cross-examine the chairperson of the electoral commission in particular now let me put it right that certain misrepresentations have been made to you this afternoon it is not true in law that a party cannot be asked to testify or a party cannot testify at the triumph that is not true that's not a true legal position in fact you were all here in 2018. doctor his excellency the vice president dr mahmoud baumier testified during the election petition that was filed by himself his excellency na na na na na na dang kakufadu they were all parties bamiya was a party and he testified so it is entirely wrong to say that a party cannot testify at the trial in any case in any case the subpoena that we are seeking to bring or to file in court is not designed to make the electoral commission as a corporate entity to testify or file a witness statement and be cross-examined it is directed at madame gene aduke mensah the chairperson of the commission and the returning officer under the constitution for the 2020 general elections now i must put it on record that as a returning officer she's distinct and different from the commission as a corporate body there there's a long line of decided cases on this matter dating back to the famous english case of salomon and salomon so for them to seek to confuse jane mensah in her capacity as a returning officer with the electoral commission is to say the least disingenuous and i think the lead counsel for the petitioner made that very very clear to their lordships and you realize that when their lawsuits were questioning it was his lawsuit the chief justice himself who made a reference to their ruling and in that ruling it was that the the justices took the position that you cannot compel a party to testify and we are not seeking to compel a party to testify we are seeking to compel jin mensah to testify and her capacity as the returning officer for the elections okay and she said as i've said it's a safe to say that the chairman of the board of directors or the ceo of a company is the same as the com the company you can conflict the two so let us i mean make that abundantly clear we also want to make it clear that we are not in court seeking to compel her to testify because we think that our case hasn't been made out first of all let me say this it is not left to the lawyers of the respondents to determine whether on a balance or probabilities we have been able to make out a case they have decided that giving the evidence that we have led they will not put their clients on the stand it is not left to the court to decide and by the way the mechanism of cross examination is a time tested tool for eliciting evidence now going by the the logic that has been espoused by uh the honorable you upon it means that even in a normal trial the plaintiff will give his evidence the defendant will give his evidence and no one will have a right to cross examine and the court can go ahead and then make a decision based upon that i think that that approach is alien to the law it is not known to our system of jurisprudence let me also make it clear that there is nowhere in ci 99 that it is provided that a party cannot seek to issue a subpoena to bring a witness to testify now that point was made by the honourable opponent kumar and then he tried to link it to the fact that uh the honorable marietta bru oppong appear appear upon sorry was the attorney general at the time that ci99 was formulated and laid before parliament now if you look at cr99 it does not provide against compelling a witness to come and testify so the subpoena that we are seeking to issue is in pursuit of the truth we want to guardians to know how 51.59589 became eight 50.08 ghanaians you know have a constitutional right to know and so for you to say that just by reason only of the fact that we are seeking to get here to come and testify we are doing so because our i mean a case is empty and there's no evidence to prove it it's totally disingenuous and so for me for us as a team we have made a case but we want the court to see that the truth in this matter has been revealed and also you remember that lead counsel mr tayuchikata made a reference to something that jean manza said during her a declaration in making the declaration on the 9th of december she said glory to god okay that she was giving glory to god for the fair and transparent elections that have been held now there is no better way to glorify god than to tell the truth the truth is very very important if you glor if you want to glorify god you take an off and you tell the truth and christ himself said it in the gospel of john chapter 8 verse 32 that you should know that you shall know the truth and the truth will set you free gene mensah should voluntarily take the box tell the truth and that troops are settled free as the returning officer of these elections may i have some questions okay thank you very much dr ayini and the respondents have said umpteenth times that your side and your lead counsellor did not show um ample evidence to assetware and ask for the reliefs he's asking for i know as a spokesperson you say that he has induced enough evidence and the key word here is material effect as the word they used here um are you know i didn't get the last part can you can you come close closer sorry thank you very much again my question is that um counsel for the respondent have said until the times that your site has not exhibited or shown material effect to the relief they are asking for and i'm saying that i know as spokesperson for the petitioner you'll see that he has shown enough evidence but on a scale of 0 to 10 how sure are you that this new application you have table before the court would not suffer another setback well um that is an excellent question with respect to the level of certainty that it won't suffer a setback all right because if what has gone before is anything to go by i am not very optimistic but i am disappointed that the courts may not give me a reason to be very optimistic all right however when it comes to whether or not we have led sufficient evidence the fact is this we led evidence to show that there were infractions and you witnessed the fact that we led evidence showing that there has been vote padding and they themselves admitted that they were that i mean there had been vote party we let evidence showing for instance that in some cases such as in the in the eastern region they brought documents that were conflicting we also led evidence that stands uncontradicted that they're formulating that they sought to tender is an afterthought or was an afterthought and i think that is where they are running away from okay and i will wait for the course ruling on this one to tell you why they're from dating is the reason jin mensah is running away thank you very much um in your address he spoke about um the fact that they're caught in this ruling concerning the application for the last one that's the quote sat on uh ruled that uh indeed the court cannot compel a party to give uh witness statements what's your operationalization of the use of the word party because for us as lay people party could also mean an individual interested in a matter really well are you done with your question i am done yes all right from a a legal technical point of view madame gene mensah is not a party to this suit the two parties besides the petitioner are the electoral commission of ghana a duly constituted independent corporate body under the constitution of the republic of ghana and it because it is a dually you know constituted independent body it could have decided that um miss atte or uh dr bossman should be the ones filing the the this in the witness statements now if that were the case if that were the case would it have been wouldn't it have been proper for the petitioner to then say look the person who declared the results and the person appointed under the constitution to do so is madam jin mensah and i want to support her to come and give evidence in addition to what has what has been given by uh you know miss aramis or his fellow deputy commissioners that would have been proper in law under the constitution and law of laws of ghana that would have been proper and so to say that because she is representing the commission she is the commission all right it's a legally untenable proposition thank you i have a question all right thank you very much please what do you say to the the argument by the council for first and second respondent that the court has already made a determination on the fact that it cannot compel the ec chair to mound the witness box and so you coming through with this application to reopen case and then to subpoena her it's an attempt to go through the back door and essentially asking the court to rescind a decision that he has already made well you know i would have referred you to the answer that i gave to your colleague from the gbc but let me explain again okay that the whole notion that is a judicial bar was introduced into the argument by one of the justices and we confronted them with their own ruling and in that ruling constant reference was being made to the party a party to the proceedings and i have just said that madam jin mensah is not a party to the proceedings now the fact that she had elected to give evidence on behalf of the electoral commission itself on behalf of shows that she is not the electoral commission all right logically you cannot say i am doing something on behalf of somebody and then turn around and say i am that person i i don't see how you can do that so for us she's not a party to the proceedings and therefore all right then if if that were the case then rojo metal nunu is the same as his excellency john ramani muhammad will you conflate the two thank you you heard that dr dominic ayani speaking for the petition addressing the press after today's court's proceedings so the card was sent tomorrow to rule on mr muhammad's application to reopen his case mr chikata has disclosed that if the application is successful he will subpoena the ec chairperson asked the petitioner's witness he says jin mensah will be treated as a hostile witness what would the court decide well join us at 10 a.m tomorrow we're grateful

Channel: JoyNews

Views: 8,148

Rating: 4.0270271 out of 5

Keywords: Ghana Political Issues, Ghana Politics, Matters Arising in Ghana, NPP, CPP, PPP, National Budget, Chieftaincy, Ghanaian lawyers, Economy, Constitution, Election, campaign, YouTube, joy News, Latest News, Election Brief 2020, Election HQ, Headquarters, Elections

Id: H8Ls4_icZDo

Length: 162min 36sec (9756 seconds)

Published: Mon Feb 15 2021