Election 2020 Petition Hearing: John Mahama seeking leave to reopen his case - JoyNews (22-2-21)

[Music] is your election petition updates with me mama viewers is proudly in association with petrosaur dbs roofing and koa mixture well the court sits today for a review of the 16th of february ruling in respect of application by mr mohammed to reopen his case now last tuesday the court delivered a unanimous ruling refusing an application by the petitioner to reopen his case for the purpose of causing a subpoena to be issued and directed at mrs jean mensah to reappear to be cross-examined we'll take it live now to the supreme court as the panel sits commission of them allows james melissa chairperson representing the first respondent is representing the second responder this with alexander tomorrow yes we will release your losses i have to jump out for the second respondent my lords with me are my learned friends frank davis recipe and yellow pong yes well there are two applications shuttle for this morning one is the stay of proceedings in view of the fact that the both are shuttled for today and the review will be taken today i pray you indulgence to withdraw the application for stay or proceedings all the time uh the extension of time it should also be before the ordinary bench so that that was why we decided that we can take uh oh the elite council is now in yes you can take the review so mri will take the review my lords respectfully we have an application for review before your lordships whether we time management you have 30 minutes i'm sorry i didn't hear that there'll be no extension of time the application for review is brought under article 31 33 1 of the constitution and rule 56 of the supreme court rules i respectfully move in terms of the motion paper and the supporting affidavit and this review is in respect of our application to reopen our case and your lordship's ruling is our first exhibit attached to the application and in our respectful submission as our ground a indicates this ruling was sparring curium section 72 of the evidence act 1975 and has occasioned a grave miscarriage of justice there's no question that in your lordship's ruling there is no reference whatsoever to section 72 of the evidence act instead there is a reference to black's law dictionary which is an english law text no reference is made to section 72 of the evidence act section 72 of the evidence act is a statute of ghana no reference is made to that and instead there is a reference made to an english law textbook which is not what is binding on your lordships that is why we say respectfully that that decision was paying curium section 72 of the evidence act and my lords the authorities are clear and we have cited republic versus republic against teter which is 2003 2004 supreme court of ghana law reports 140 where their lordships in the supreme court reversed a unanimous decision that they themselves had given and they reversed that decision on the basis that they had failed to take into account the armed forces regulations which were part of what their duty was as a gun they had failed to take it account they they are failed to take in new york and so their lordships in republic against teter reversed a unanimous decision that they had taken and they unanimously corrected an error now my lord's in an another ruling your losses are given in this case recently your lawsuits have said that even if you did not refer to a certain statute in your judgment we have not shown that in occasional miscarriage of justice my laws respectfully that is fundamental error republican tattoo shows that once there is no reference to a statute which is binding on your lawships we do not need to show further that there is a miscarriage of justice the failure to apply a statute of the law of ghana is enough of a miscarriage of justice in accordance with the decision republic and tete and if non-compliance with a statute of ghana if that is not a miscarriage of justice respectfully i do not know what is a miscarriage of justice section 72 is very simple in its terms section 72 subject to the discretion of the court in a civil action or in a civil action a party or a person whose relationship to a party makes his interest substantially the same as the party may be called by any adverse party and examined as if on cross-examination at any time during the presentation of evidence by the party calling the witness yet this is what your lordships say in your ruling at page five your lordship say the question is how can the chairpers know the first respondent vindicator so when she is not on trial before she has neither been personally sued nor arraigned before this court on any complaint or accusation for which she has to explain or come to anybody it is the institution the electoral commission she has that has been accused by the petition of not having performed israel numbers i mean respectfully that is not even true we have respectfully brought the attention of this called her family ahead singular failure to perform her rules we do not simply come before the school talking about the first respondent as a commissioner we specifically have raised issues the the heart of this case is about hair declaration but these are the questions and then your losses go on what indeed baffles this court is the intimation by council for the petitioner that he intends to call the chairperson of first respondent as an adverse witness blacks law dictionary defined a hostile witness as so and so there's a whole quotation from black's law dictionary then it it carries on in effect to say that it is only one a witness is in the box that he can be declared a hostile witness my lord that is not a law of gun the law of ghana is not what black law dictionary is saying or what the lordships based on black local dictionary are saying the law of ghana is what i read from section 72 that says a party may be called a party may be called it's not that when they are in the witness box then they can be turned into a hostile witness that is not what the statue law of ghana said and my laws it is fundamental and egregious error when on the basis of black's law dictionary we have the courts of ghana going against the statutes of the land ground b of our application of our grounds ground b says that the ruling was in fundamental error in subjecting statutory provisions in the evidence act to the provisions of subsidiary legislation my logs there again nothing could be more basic nothing could be more basic than the fact that a statute is superior to subsidiary legislation the rules of court committee are not of a higher standing than the parliament of ghana and so when you have a judicial decision of the highest court of the land effectively subjecting parliament's law to the rules of god committee that is fundamental mrs chikata yes are you suggesting that sea ice do not go to parliament sea ice go to parliament they go to parliament in a different way from how statues go to parliament that is why the constitution makes a distinction between the exercise of powers by people such as the electoral commission who take the sea ice to parliament and if there's no objection it goes through that is a different process from a statute which is an act of parliament which overrides subsidiary legislation a lot there can't be any question and if if your lawsuits have an issue with that i'm afraid that that is just fundamental error there can't be any question that subsidiary legislation such as is contained in a constitutional instrument that brings into effect what the rules of community the rules of court have done there can be any question that those are subordinate to the evidence act there can't be any question about that so where that where where in your ruling your lord should say that you are not going to apply the evidence act because there is a rule of course and that rule isn't that the exercise of our discretion which prefaces the section that you read the lord it's that those are not the terms of the ruling the terms of the ruling that your lordships gates the terms of your ruling are very clear and unless the ruling is being rewritten the terms are very clear namely that the evidence section we wish to state that this is our page 10 of the ruling we wish to state and practically that section 26 of the evidence act which is on conclusive presumption is not applicable in this case in view of order 38 rule 3e5 that is what the ruling says it doesn't say that in the exercise of my discretion this and it doesn't say that it just said it is not applicable that is what it says nothing more nothing less mr chingata yes do you have a list of everything that the panel took into account before coming to that conclusion it is a ruling of the panel that we are here to question and the ruling in its terms is what is before us obviously i'm not in the minds of the panel and i'm not able to divine whatever went on in their minds except my reference to the terms of the ruling and my laws in any event order 38 rule 3e5 has nothing whatsoever to do with application of the evidence act section 26 order 30 8 3 5 it reads as follows that is as amended by ci 87 if a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as hearsay evidence any other party may put the witness statement in as he has the evidence that provision has nothing to do with the section 26 which the court was stating emphatically is not applicable because of this order the terms of this order are themselves very clear they do not have anything to do with what section 26 says what section 26 says is again not controversial what section 26 of of the evidence act says is simply establishing a conclusive presumption a conclusive presumption in a circumstance where somebody has put before the court clear indications by way of affidavits that she will be available to be cross-examined that leads to what section 26 describes as a conclusive presumption based on the estoppel by own statement in section 26 except as otherwise provided by law including a rule of equity when a party has by his own statement actual mission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief the truth of that thing shall be conclusively presumed against that party or his successes and interest in any proceedings between that party or his successes in interest and such relying person or his successes in interest order 38 3 e 5 has no relevance in terms of that and our submission and our submission is simply that the court cannot sideline the operation of a statute by reference to subsidiary legislation which in any case has no relevance to the issue of section 26. my nodes we indicate in ground c and in ground d so we've dealt with a b and c we indicate in ground d we took we take b and c together and i argue in relation to b and c that the fundamental errors consist of sidelining legislation in favor of subsidiary legislation and in relation to ground c sidelining it in favor of subsidiary legislation which is irrelevant to the issue in the statute anyway and so we moved to grand d and in grand d our submission is that here again the court made no reference whatsoever to order 38 rule 10 of ci47 now indeed section 58 of the courts act and section 58 of the courts act is a section which even gives power to your lordships to call a witness and that section has been properly applied so in other words apart from our ability supine upon reopening of our case apart from that there is also the opportunity for this court itself to call a witness and the circumstances and with the court does that those circumstances are exemplified in the case of wardia and bukhari worthy and booker in 1976 two ghana law reports 371 where the court of appeal the then apex court proceeded as follows and this is from the judgment of justice of appeal archer as he then was after judgment had been reserved in this court it was felt that this court should not be placed in the same situation and with the court below found itself it was therefore decided to ascertain the truth in this matter and so on and based on that the court had recourse to the courts act to ascertain the truth of the matter and then the court went on to point out that just that invitation of the witness to come and testify had brought up a very important piece of evidence which if it had been abused in the court below would have spread that quote that torment of exploring whether or not the certified true copy of the plan from the land department was the plan intended before jackson j and the court even goes on to say one can understand mr joe rhino's initial reservations but that's but as this additional evidence has enabled this quote to ascertain the truth beyond all doubt we think by allowing this additional evidence to be admitted mr randolph conducted himself in the best traditions of the bar indeed those words in respect of the pro the best traditions of the bar evoke some nostalgia in the hearts of some of us and my lords we we are respectfully saying that the ruling that your losses gave did not even advert to order 38 rule 10 which we had indicated was the basis on which we were seeking to reopen our case he didn't even advert to that and it was therefore paying curious we say also in ground e which i move on to now that the ruling was fearing curium article 1913 of the constitution and has occasioned a great miscarriage of justice and article 1913 is the provisions on the right to a fair trial in this court and we show in our submissions on that matter how this supreme court adverted its mind to a decision of the supreme court of the netherlands in which the supreme court of the netherlands was highlighting the importance of ascertaining the truth in matters that were before it and that was made to displace in the interest of the right to a fair trial it was made to displace even international relationships as being something that the court would have referenced to that decision in the case of chatting and the republic is a decision that we have cited in our submissions and i will not go further into that except to underline the fact that the supreme court of the netherlands whose reasoning was adopted by the supreme court of ghana also considered it appropriate that in the interest of ascertaining the truth it was of value to the court he had to call it witness once again i'm curious about something if it was so important to you to have a particular person testify for you why did you not present that as part of your pre-trial positions lords we could not for the reason that i've given a few times in this court at the time that first respondents chairperson was the person who had filed a witness statement on behalf of well first of all had filed an affidavit of verification of the case of the first respondent subsequently filed a witness statement on behalf of the first respondent and my lords in essence you were hoping to rely on her coming to testify and found yourself without that and that is why now you are asking that she comes as a witness after everyone has closed their keys my lord is that what you're saying my lord what we're asking is for our case for us to have leave to reopen our case that witness as we've indicated had sworn affidavits in response to our application for interrogatories in response to application for stay in relation to that and in those she had given every indication that she would testify we have no reason to believe that she wasn't telling the truth we had no reason to believe that she didn't mean it when she saw those affidavits we had no reason to believe that anybody in the court would have assumed other than that she would testify in fact the day that it was announced that she would not testify on that day the your lordship themselves expressed you know some surprise and that was the reason why you adjourned to the next day for arguments to be raised and so on so my lords method when you announced that you had closed your case what did you mean nothing more nothing less we had closed our case and when we announced that we are seeking to reopen our case i mean exactly that nothing more nothing less we are seeking leave to reopen our case in circumstances where a person who has deposed to affidavit saying she will be available for cross-examination and while your ladies should specifically have intimated that the question that we're seeking to raise in interrogatories could be as offering cross-examination i'm sure your lady she was not forgotten that bridge and in that context your leadership had said that aren't we crossing a bridge that we have not got to and we indicated that at the stage of interrogatories we still found it appropriate to anticipate that but your leadership said the bridge will be that bridge is no longer there when you said that you had closed your case and you meant it nothing more nothing less what did you mean i i don't i really don't understand what more your leadership wants by way of an answer we meant that we have closed our case and we have closed our case and subsequently we sought leave to reopen our case well leadership cannot say that we are not able under the rules under your inherent jurisdiction to ask for your leave to reopen your case i don't believe that that is a suggestion that your leadership is making i don't think i've said any success but it just it's very difficult to comprehend i just wanted to understand what you meant when you said i answered that question i think twice nothing less and unsatisfied with the answer my lord we continue finally to the last ground that the ruling was in breach of article 296 and very simply put what we are saying is that that ruling is completely unreasonable in terms of in terms of what are often referred to as the onesbury principles and your leadership your leadership had leadership justice georgina wood as she then was in the case of in the case of tbc and musa against a top bar for 2005-2006 supreme court law reports page one two one your ladyship's your leadership at page 131 expressed the specific terms of what such unreasonableness amounted to and by saying that hey that is a plaintiff in this case succeeded in showing that the case fell within the irrationality or unreasonable rule in that the decision arrived at by the tdc defies logic and common sense or accepted moral standards and that without meaning any disrespect to the tbc no sensible or reasonable person called upon to apply his or her mind to the decision to be taken could have come to that decision in short the decision to throw him out of the house and force a residential plot on him is irrational and unreasonable and we are saying respectfully that your lordships in the exercise of your discretionary powers unfortunately failed to advert your minds to relevant statutes introduced irrelevant considerations which prejudiced a fair exercise of discretion as required by article 296 of the constitution it is our submission that holding the first respondent and particularly his chairperson accountable for the exercise of powers conferred by the constitution and statute justifying the circumstances of this case that that chairperson be called upon to testify using the time-tested subpoena procedure that we seek to invoke in this case my lords there is no question that the process of review is among the ways in which corrections are made by your lordships and as as as aqua that you got your time yourself may i just finish in a minute because i'm in the middle of a sentence is that allowed okay as i may finish as aqua uh indicated in the kublex case heeding the promptings of conscience as he put it heeding fidelity to the judicial oath he found it appropriate to reverse a decision of the ordinary bench may each of your lordships decide in accordance with your conscience and your judicial oath ultimately and even more profoundly it is for the chairperson of the first respondent to come forward to testify as she indicated on oath she would do i conclude with prophetic words that were spoken centuries ago for they saw the wind and they shall reap the whirlwind these are the words of the prophet josiah to be found in hosea chapter eight verse seven he that has an ear let him hear thank you order in god please hold on yes we are very mentally opposed to this application for review number three lord we have fired an affiliate in opposition as well as a statement of peace and we rely on it lost under article 33 1 of the constitution this quote may review what 133 oh my gosh 133 one of the constitution this court may review any decision made or given driving on sad grounds and subject to such conditions role that is hit by the rules of court committee and indeed i love the rules of god committee as 1996 ci 16 and lost the specific rule on review of rule 54 lost this cut is the final cost of the land we concede that the court is not infallible but beloved your losses may change your mind in an application for review only when certain conditionalities have been met because those conditionalities have been set out imparter number two versus after number two to 2013 2014 one supreme court of ganga law reports five six nine at pages five seven nine two five eighteen laws i will not read those conditions about their day but it's only when those conditionalities have been met that the review panel should seriously consider the merits of the application lost our submission that the conditionality set in rule 54 of ci 16 and attendata have not been met by the applicant in this application laws with the greatest respect the grounds are basically an academic treaties of alleged erroneous pronouncements made by a lawsuit panel of seven indeed if we want to give some credit to the grounds my laws they are best additional grounds that have been felt without leave of your court in terms of an appeal but they do not form grounds for reserve for which my laws should grant this application my love may i refer your losses to the ruling that has generated this review at pages 11 with your kind permission your lawsuits held accordingly in weighing the propriety of reopening proceedings to merit to permit new or additional evidence to be led or tended the court will typically consider the following broad questions one will the evidence if it has been presented during the trial have had any influence on the result two could the evidence have been obtained before or during trial by the excise of due diligence then your lawsuit concluded thus in this application the petitioner has not given us an incoming of the new or french evidence he wants to bring to the fall neither has he disclosed how that evidence would advance the course of his petition now i believe that this is the cross this is the ruling that the court made and the absence of any attack or any submissions regarding this this application must fail love i say further as amid federer that the grounds are very misconceived and have no bearing at all on your ratio that have set out above even as submissions were made by the council for the applicant and even as i'm speaking still my laws the court is still not aware it still doesn't have the inkling of the evidence that the applicant wants to pretend to to lead for which the case should be reopened and now this leads me to the world year case that was cited by council for the applicant because in that case the evidence was known the evidence was what was that there was an issue about exhibit a and by agreement of counsel the court then said that let an expert come and testify as to the authenticity of the documents so in that case the court allowed further evidence just because the evidence that the effect was being called was known this is not the situation in this case because what has been done is that there has been arguments that bother on the nature of an appeal indeed if my laws look at paragraph three of the affidavit in support with your kind permission if i may read he says that at the hearing of this application i shall through my counsel sick leave of this honorable court to refer to all processes filed in this case up to the date of the hearing of this application clearly indicating to your lordships that he is going to argue and appeal and that is why your lordships days of previous process yes you see so in emotions yes what you try to do is that instead of seeking leave when you are on your feet you have to refer to it yes you can capture it in the affiliate so don't ask for this one no no no no melody if my lord could hear me on the point the point i seem to make is that as a result of that the submissions that were for example dealt with on the 18th have been brought in for example section 26 of the evidence of was dealt with that's the point i see to make by referring to this submission my loss this court has set time without number that the review jurisdiction is not an opportunity giving to a party to come and argue the case again as if the review panel is sitting in judgment on appeal over the ordinary panel and this is what millennial friend has sought to do laws may i crave your indulgence to refer to the standard bank offshore trust company limited this is national investment bank we lost a civil motion number j7 through 15 through 2017 laws jsc delivering the ruling of the court admonished saw losers at the 17 of the judgment does from the ratio with your campaign from the ratio of the decided cases of this court on review it is immaterial if the applicant for a review considers the decision of the ordinary court to be wrong in law or has an emotional reaction to it as in this case the magnitude of the amounts involved or the shutting of the door to applicants because of the fraction of time in instituting a fresh action there are these are not factors that a review bench normally takes into consideration at all now in that case too the court went on and held that the rules of the court forms an integral part of the laws of ghana and consequently they must be given an equal amount of respect in order to produce the sanctity in court proceedings mr maneuver yes are you referring to me as a sole loser i i argued that application for review before this quote i was starting where you you were so few years ago yeah and i i lost that application well well i lost the the the review panel from that view of you the review panel from the view of you my lord and indeed of your client my lord incidentally my leonard friend was on the other side in damage and he got a review yes because the case of mechanical lloyd was limited versus naughty again is there on the point lost arguments have been made in this port regarding fair trials my loss i asked just a couple of questions of the petitioner this petition malos has been conducted in a piecemeal fashion which is one of the things that ci9 deprecates first others of the court are disobeyed trial witnesses then no you yourself intimate that i am going to call five witnesses you call two and then you come back to the thought oh my lord i forgot one person permit me it is permitted you call that person yes oh my my beloved this is the issue of frederick my loss with the greatest recovery issue of petra has been raised and i'm saying that he has been given fair trial in the way the case has been conducted my lord love then we go from there to having called the third witness what is your pleasure oh my loss i close my case of your own volition not it is my submission therefore that the petitioner was given every opportunity he was fairly ahead in this proceedings and what has been filed with you number three is an abuse of the course processes and the application ought to be dismissed in lemony mr maneuver you have not addressed us on the reference to josiah the gospel according to josiah my lord i i i i met that please my lord i my point i wish to make on that if you permit me is that god is a god of conscience and god does not use use thought processes to elicit conscience no god is the cause of conscience and therefore you do not bring caught god into the courtroom to now claim that because of god application should be granted that's my response we are opposed to this application and my laws we rely upon affidavits in opposition filed on the 21st of february together with our statement of case my lord our first submission is that this application woefully fails to satisfy the conditions for the grant of a review application as in our view it does not demonstrate any fundamental error committed by the court which has locationed the practitioner and miscarriage of glasses and on that ground alone this application ought to be dismissed summarily my lords now on grant a of petitioners application the practitioner refers to section 72 of the evidence act now my lord section 72 of the evidence act with us so it's said to sub one subject to the discretion of the court in a civil action a party or person whose relationship to a party makes his interest substantially the same as a party may be called by any adverse party and examined as if on cross-examination at any time during the presentation of evidence during at any time my lords during the presentation of evidence by the party calling the witness my lord it is very significant that in this statement of case there is a deliberate omission of the controlling word evidence by the party of evidence that is and i i see no reason to believe that this was inadvertent because it is repeated twice and on both locations this critical word is left out that means of evidence now what is the significance of adding of evidence reading section 721 including of evidence it means that a party can only exercise that right when he has not closed his case that's what it means and i want to repeat this section 72 which appears to fall ground the backbone of this application relates to a situation where a party has not closed his case now in this instant situation the party had closed his case so the court had no business referring to 1672-1 because it was irrelevant to the circumstances of the case and my lord it is my submission that knowing that they have closed their case the the petitioner disingeniously omitted of evidence and and with all due respect this is highly improper so my lords all the submissions around section 17 two that the court uh was playing queue ram or section 72 are totally unmaterial and irrelevant now my lords we proceed to deal with grounds b and c council for petitioner has argued that on the 38 rule 3e 5 cannot override section 26 of the evidence act because in his view the evidence act is a substantive legislation and um other 36 is subsidiary 38 sorry it's subsidiary my loads that may it may well be the case that other 30 8 rule 3e 5. is subsidiary legislation but the point here the critical point here is that the very principal act this is the evidence act section 26 by itself delimits the application of the main text by the words subject subjective subject to a rule of law or equity oh my lord there can be absolutely no doubt that order 38 35 is part of the loss of ghana so it is because of the specific provisions of 1626 that the court could then look at on the 38th rule 3 e5 and rely upon it in making its ruling so my lords respectfully i think it is misconceived to suggest that in doing so the court has committed a fundamental error by allowing a subsidiary legislation to trump a substantive act of parliament now lord we would next address rule 1 b now grant c which relates to at 459 section 58. my brand gandhi randy my lords in my respectful view 1658 of at 459 it's completely irrelevant to the matters before the court because the matters before this court which is the subject matter of the review application relate to the course decision not to reopen the case that is the decision of the court now section 58 reads in any proceedings and at any stage of the proceedings i court either on its own motion or on the application of any party may summon any person to attend to give evidence or to produce any other document this provision presupposes that the party who is applying to someone another has not closed his case now this is obvious common sense it is very clear that this provision cannot relate to a situation where a party has closed his case and my lord these are the ways in which provisions of the law have been persistently cited out of context perhaps to middle east those who do not know the law so my lord it is a respectful submission that a reference to section 58 of the evidence act sorry of the courts act in this situation is totally misconceived and should never have been made by council [Music] we wish also to make the point here for the last time that the chair of the first respondent has never made any undertaking that she would mound the witness box it's like that the petitioner could claim that he relied on it to his detriment all that the the chair on the first respondent was to re repeat what the law is that is all that you need below and if your lordships go to other 22 rule the 22 sure now all that the the chair of the first respondent did was to repeat the position of the law which is that if you fail to obtain interrogatories in relation to a matter you may during cross-examination elicit the same information that is all it was never an undertaking and the beggars believe that the petitioner and council are basing this statement of the law as an affidavit an admission or a representation that they relied upon to their detriment and i i therefore wish to submit that a reference to that the position of the first respondent's chair on this matter can never constitute because she has the right to refuse not to enter the witness box and the court has ruled definitively on this this application for review of the decision to reopen cannot be the back door through which that earlier ruling can be considered the court has ruled on it and that ruling all of us including council for the practitioner lords the fair hearing argument my lord there are five minutes more very well my lord i thought i had a lot more minutes unless honestly a lot of things i've made out of my case so if you are five right out of the thirteen last five minutes round e relates to the allegation of which of his right to fair hearing my lord the right to fair hearing is a right that all parties to a suit are entitled to so it the court has ruled that the respondents have the right to elect not to induce evidence that is their right under the law therefore to seek to reopen your case so that you can compel the first respondent to his chair to enter the box it's a bridge of the first respondent's right to fair heaven also a lot which are considered you that no evidence or analysis has been made by council for petitioner that sustains their claim that their right to fail hearing has been breached indeed this court has been more than accommodating to the first respect the petitioner they defied the court order with impunity not to file witness statements at the time they were ordered to they have even again defied the court's order to file closing addresses and perhaps the court may once again accommodate their defense of the highest court of this land and then they turn around to talk about fair hearing in our respective view their case should have been struck out when they failed to file their witness statements as ordered by the court or it could have been struck out and as we speak now since they have defied once more to file their closing address this case can be settled without their closing address and it will be fair trial a lot i'm saying it will be fair trial for that to happen possibly the court is once again going to accommodate them so they should be the last people to be mounting the high horse and talking about breach of their right etc my lord our our respectful submission is that this allegation of breach of their right to fair trial it's an invitation of the to the court to go on a frolic which has absolutely nothing to do with the issues before this honorable court as to whether any person any of the two parties the petitioner or the second respondent obtain more than 50 percent of the valid votes class in the 2020 elections presidential dimensions again the reference to 296. it's in our view quite surprising yes my laws the court was right in the tdc case to hold that the ads complained of were unreasonable and irrational by my laws in the instant application before your losses the petitioner has failed once again very badly to demonstrate the facts which ground the allegations of unreasonableness or irrationality because those facts my lord are based on the grounds that he has dealt with earlier on a b c d which we have demonstrated to be hollow and of no merit accordingly my lords we believe that when we submit that the application is devoid of merit it is deserving of summary dismissal and given the fact that the arguments are only a rehash of earlier arguments and the introduction of irrelevant provisions for the consideration of this court we pray that in this exceptional situation this application be dismissed as an abuse or process will be dismissed as an abusive process and cause what's that love to be here with your leave um make a couple of brief references my late friend for the second respondent i heard him a little while ago say that we are acting in breach of the right of the chairperson of the first respondent as far as testifying is concerned as far as our indication that we are seeking to subpoena this concern and below that's a matter of law respectfully it is not for the second respondent to bring up a witness's claim to immunity whether on the basis of a right to fair hearing or self-incrimination or whatever it is not for the council for the second respondent to bring up a witnesses claim to me and the witness must themselves that witness must his or herself i should say his or herself put forward whatever claim she seeks to make to immunity and the lord i believe that that was the reason for our reference to the the case uh concerning the ifc's immunity and so on and my lord's counsel for the second responder and also sought to suggest that i had somehow sought to mislead the court in terms of section 72. oh that's a very serious incident oh it's not actually an incineration it was very express very express statement on his spot and my lord [Music] i i can only say that council is obviously not clear about the nature of the application that is before you because the nature of the application that is before your lordships is to seek to reopen our case for the presentation of evidence that's the nature of the application that is before you so reading section 72 about the presentation of evidence and making it seem as if what we are doing is somehow foreclosed because we are close our case just shows that he hasn't understood why we're in court this morning because my laws were in court asking your lordships to reopen our case so that we can go according to certain processes that's what we're in called for so for him to be saying that we are trying to mislead you by not referring to during the presentation of our case and so on that is just a clear failure to appreciate the terms of section 72 and my lord he completely does not address the point that we make that section 72 was not even referred to by your lordships and that your losses ruling is fair in curium of that section are you done i have one question for you yes you your arguments you dwell muslim section 26 uh section 26 of the evidence act can you show me any conflict between section 26 and order 38 is there any conflict between section 26 another 28 38 38 rule 3 e5 is there any conflict my lords i was referring to the fact that the ruling implies that there's a conflict and that the in the ruling it says this section is not applicable because of order 383 and you might as well notice that i in fact went on to argue i argued that rule 38 3e5 in fact has nothing to do with section 26. your logic may recall that i argued that so i was specifically referring to what was in the ruling the terms of the ruling are clear so it was not a matter of the court preferring uh subsidiary legislation two substantives that's what the court said i mean i read it the court said we didn't we wish to state emphatically that section 26 of the evidence act which is on conclusive uh presumption is not applicable in this case in view of order 38 but it doesn't mean that the court was preferring or rising raising 38 against above section 26. that is not what we meant well i leave that to your lordship but the language of the ruling is what i'm referring to but i leave it entirely to your lordship i i the language is that it is not applicable in view of something else so that other thing is being made applicable whereas section 26 is not being made applicable i mean there's no running away from that if you say this is not applicable in view of this then it means that what is you say is applicable look you're setting aside that is what i'm not it doesn't make it superior to section 26 but my laws how can your lawsuit say that section 26 is not applicable in view of 38. yes but my lord as i and that was the other point i was going to make respectfully and and i'm glad that it has come up reference has been made to your ruling in respect of another application in which you did seek to consider section 26 and then we argued that no reference had been made was pairing qrm section 26. he's not ruling again no reference was made to section 26 at all in your ruling in that case your lawsuit said effectively yes we didn't we didn't um we didn't make reference to that section 26 but we haven't been shown that a miscarriage of justice has arisen because we didn't make reference to it and my respectful submission is that and i did say so that is itself fundamental error and your lawsuit should take the opportunity to correct that error because you didn't make reference to section 26 and you sought to justify that by saying that no miscarriage of justice has been shown to you and my submission was that when you don't apply a statute there is no reason for miscarriage of justice to be a further ground a different form i'm sorry when you don't make a reference it's different from not applying well my lord if you don't even make a reference you can't apply i mean if you don't even make a reference to it you can't apply it i mean you make a reference to black's law dictionary black's law dictionary you make a reference to that black's law dictionary is not binding on this code the stating common law rules which have been changed by statute in this court but you make reference to black's law dictionary but you don't make reference to the statute that is finding on you but that is very curious that's wrong no no no that is your opinion well that is indeed my opinion and i think it's backed by a plethora of authorities of this court they're caught with rice to consider itself all rise and that's the end of the oral argument today and this has to do with a review of the court's own 16th of february ruling in respect of application by mr muhammad to reopen his case another attempt to get the supreme court to reopen a closed case is what it is and that is what mr mohammed's lead lawyer chachichikata seeks to do and indeed he's been making the oral argument questioning essentially taking the ruling of the court questioning the ruling of the panel uh i will be taking you back to where we have come from just to give a bit of background and then you can appreciate where we are in this process uh remember that after the testimony of mr mohammed's third witness mr robert joseph metal nunu on the 8th of february the petitioner closed his case the court then called on the first respondent the electoral commission to open its defense by calling its witness mrs jean mensah but the easy's lawyer justin amanuvo told the court that after listening to all the petitioners witnesses he thought the petitioner had not provided any substantial evidence in proof of his case for which the ec had to take the witness box to testify and answer justina manuel therefore wanted the court to determine the petition on the oral testimonies and data presented by the petitioner through his three witnesses the second respondent mr kufwado associated himself with the ec and told the courts he also did not desire to get testimony through peter mcmayne as contemplated according to elite lawyer kotom pow the petitioner did not discharge the burden imposed on him by law to produce sufficient evidence to back his case so there was no need for him to offer an explanation of course the petitioner's lawyer chachuchikata raised an objection and said jin mensah filed a witness statement therefore she had elected to testify the panel dismissed mr chikato's objection on the basis that the court could not compel the ec to call jin mensah as a witness because the high court civil procedure rules permits the ec to do so it is based on this that the petitioner wanted the court to reopen the case to enable a subpoena to be served on madam jin mensah so she can appear before the court and testify now we know that that ruling did go against the petitioner and once again there is a review because the petitioner through his lawyer wants the court to depart from that elia unanimous ruling kojiang singh is here with me uh but we're also joined by a lawyer mr bobby bunsen uh joins us via zoom we'll just get him into this conversation thank you so much for your time thanks for being here hello mr bunsen yes can you hear me thank you for having me okay great thank you for uh joining us so you know we've all been following this procedure and i'm thinking that the mood today in court in terms of where the petitioner's lawyer came from things were a bit tense today i don't know how you would describe what we've seen this morning well it's it's as suspected the sticks are very high with this election petition and of course the petitioner wants to make sure that with every ruling that comes they exhaust all possible avenues um to attend the ruling if it's not in their favor the supreme court is the highest court of the alarm so you don't have a right of appeal against any of the decisions that they deliver but you have a right to review and i believe that is within the petitioner's right to make that application except that you know when some of the depositions contained in the affidavit in support and some of the arguments contentions made in the statement of case and the response is that camus made it very uh intense because sometimes there's a thin line between you know attacking the judgments attacking the reasoning behind the judgment and then attacking those who deliver the judgment and it's a matter of um legal everybody trying to display his legal which you know what you can do what you cannot do so it's interesting it's good for legal development or the development of the law great uh let me just bring kojo yang tsing in in terms of the mood and what we've witnessed today there there are some areas that we'll get into uh with our lawyer yes uh it was uh different you could tell that the petitioner is uh well the stakes are uh high they've always been high throughout this case but at this point where the the foundation of whether they proceed or not is it revolves around whether they can reopen their case so this this particular arguments uh that we heard from mr chikata had a certain amount of urgency that was perhaps extra to what we've seen in the past and he he really outlined his arguments in ways that uh uh kind of pointed to his legal basis for suggesting that the ruling of the court be uh well upended because in his view the ruling well it's it's sought to bring in aspects that uh he would have expected the the law could rely on superior uh sources or superior definitions he talked about the fact that um the rules of evidence were not even referred to and instead we heard definitions from black's law um black's law which in many instances the supreme court has well kind of uh shall we call shall we say overruled or you know superseded with them with statutes and he felt that if we already have statutes why are we referring to black's law i don't actually know what the rules of evidence say and how different they are from what black's law says when it comes to what a hostile witness is or an adverse witness is and that was the point that mr chikata was referring to and whether indeed even if the supreme court had recognized mr chikato's argument uh about madame jean mensah being an adverse witness or being invited as an adverse witness whether that would fundamentally have changed the supreme court's decision at the end i don't know these things but mr chikata certainly took the time to point out every single way in which he felt that the ruling that was handed down by the supreme court well did not address the issues as he saw them but yes i think that the mood was more tense mr um mr aminovo also made his very measured um uh responses he seemed more in a subdued mood same for mr kutumpao in comparison to times when we've seen them quite fiery in their delivery um the fire today was on the side of mr shikata very interesting well the the electoral commission believes there are no exceptional circumstances or legal bases uh that warrants the intervention of the court indeed they contend that this review is an appeal in disguise of an early application to serve interrogatories which was refused by the court on january 19th i want to get our lawyer back into the conversation uh mr manson again just like any review it is very difficult to get the supreme court to depart from an earlier unanimous ruling but you said something earlier what are you attacking in a review is it the ruling do you pick the each of the grounds or the reasoning and attack or what exactly because sometimes we get confused by the choice of words sometimes i i i understand i believe that but for my legal training i would love to have been confused because it almost always looked like another venue to react to the points that was agreed before the courts earlier which were not successful but a review jurisdiction of the supreme court is grounded in rule 54 of the supreme court rules then it provides clearly that you have a right to apply for review if you're able to demonstrate exceptional circumstances which has resulted in or which have resulted in miscarriage of justice now in all the plethora of cases that were cited as lawyers we recite in support of application for review you realize that the most common means of establishing that there are exceptional circumstances that have resulted in this kind of justice is where you see that the supreme court did not advert their mind to a binding legal principle or a statutory provision or they did not take cognizance of an exhibit which was before them or evidence and which if they did would have you know made the decision go the other way than they did and so reviews are not another avenue for you to re-argue completely your whole case that you did for which the decision went against you and that is why in an application for review you must demonstrate on the face of it the very basis for which you are bringing the review if you look at the application for review by mr checker he sorry by by the practitioner he he stated clearly that his bases are that one the supreme court did not avert their minds to the provision of um section 72 of the evidence act and that is the argument that uh or the the analysis that mr yang singh was making that the the according to the petition of the supreme court preferred their definition in black slave nationality through what was stated in the evidence decree if if in the evidence act if if mr chikata is able to demonstrate that the definition in the black small disneyland is fundamentally different from the definition in the evidence act then mr chikato would have made a case but i believe that the provisions in the evidence act and what is featured in that blacksmith disneyland are there for everybody to see it's a matter of wideness a matter of choice and so even if a judge or which is who he sees with the jurisdiction of a matter did not advert his mind to a statutory provision but the conclusions that the judge arrived at are supported by those 33 provisions then it should be difficult to say that the mere fact that the judge did not admit his or her mind to that strategy provision means that the judge has aired for which reason it forms the basis to review in the case of the supreme court review their decision and that is a very tough medal for mr checkout to to look at the the the other interesting aspect will be the balance between the subsidiary legislation which is the rules of the ie the ci-47 which forms the basis of the witness statements which were fired and then the prohibitions of the evidence decree and you would see uh justice or you had just a smartphone accident um was the latter part of the submission that are you saying that the true statute the two provisions are inconsistent with each other because you see before or before you decide that one law should override and border another law you must not decide whether or not the laws are inconsistent with each other and there have been instances where the supreme court have interpreted statutory provisions which on the face of it may seem inconsistent with a substantive law but then they've interpreted it to me that the two of them can be accommodated and that if you interpret it if you interpret the two provisions purposively then you'll arrive at a conclusion where the two of them can be just a pull side by side and they can be applied and so they are not necessarily inconsistent but then you must apply them so that they will operate within the same space and i believe that is one test that that the supreme court would have to arrive at the conclusion please continue to stay with us we want to get our correspondent jose vaccable uh to to give us you know some background uh filler i feel like joseph cable joins us from the supreme court uh joseph first of all i mean we we had because we we started from the very beginning so we know who is representing each of the parties but there was somebody seated right behind mr chachuchikata was that dominicani yes uh doctor aimee was sitting right behind me there it's also pretty much performed attorney general resource assistant at that particular sport as well okay all right so generally we started by acknowledging that things have been a bit tense today you were inside there how was the feeling like i think that is an accurate description of how things started out today and i mean it commenced with the fact that the course did indicate that they were limited message questions with 30 minutes for his submissions and their responses and uh to the questions that were pushed i mean i've been quite tired and uh some words that have been used in some instances are not at the kind of west we are familiar with potential covering their course but uh west like unreasonable among others uh were used coaching various decisions and making reference various things that have transpired in their coursewomen so it seemed a bit tense in terms of the interaction uh from the panel specifically uh related to mr secretary in the panel when they were asking questions and responses that were given and it's not uh any deviation from what we have seen because in the course of this particular trial but that didn't happen again this morning i'm curious joseph the issue of the written addresses do we know if the petitioner has complied with that earlier order as we speak now the information that we have indicates that the first respondent and the second respondent have found the irs and addresses the practitioner is here to follow the written address and in fact on friday you heard mr chicago was not just seeking to stay the proceedings that of course was built to take for for it to take place aside from uh their wings they were seeking to do two things one to host the proceedings and to uh to put the cost order on food the orders related to the filing of the written address and so that's what he was wearing i caught attention to that i resulted in that interruption i haven't keep justice for minutes and so our information and then after being taught in fact you heard mr campbell make reference to it again at the last part of the proceedings we are even getting an indication that a request may be made for the extension of time to permit the filing of that particular recent address but you recall that the court had against indicated on friday that a reserve arrives to give the filing of the written address to complete the wealthy casa pointed it out to the accord and even by way of the rule and how it occurred the procedure is that it has to be found by the participant in terms of one thousand the other response but mr kosampa responded at that time that it is the case that the court has the right to determine how it's proceeded and the court has determined that to be filed simultaneously so that should be the procedure of it and mr kadampa did inform the court that until uh the protesters thought yes the court should not make the arrest madrid available to the resistance so we have also been taking ourselves try and get copies of what has been found and we are still finally successful joseph we see two justices not entirely new to this process of review uh rejoined tell tell us about the two justices so there is justice amaditanko uh and also and justice professor hamista amenta bunsu and like you pointed out these are the same teacher hadith who joined the review of interrogation ruling and you recall mr tikata in the course of the argument today made reference to a bridge he was referring to professor henrikh mkhitaryan who in the course of mr qatar arguing for a reason of the interrogation had asked mr sikata whether the questions that they are seeking to serve on the ec person whether they could not ask those questions during cross recommendation and so she is part of this panel as well as adjusting somebody tells the formerly of the cosplayer who joined the supreme court i left that four years ago and so that is by way of the competition now and so the nine judges came in and it creates another situation that would still happen at the other time you recall on the other occasion uh mr sikasa had made a point that in terms of the state of the series it should have been dealt with by the senator and in the first place there is a state of proceedings and then then you had the nine member panels coming and what mr scatter did i caught attention that there is a fear of proceedings pending and there's also there is the record said that now i remember so what they do is they deal with this on whatever where conclusion that cost which is they're still proceedings to be remains outstanding and of course we'll have to do a constitution for that member panel now come back and the question will now be again will they still proceedings debut at that point in time or i mean it obviously depends on whatever they say that report will take on that matter because if they review their decision and hold the view that the practitioner should be allowed to reopen the case to mean that what proceedings should take place going forward it affects how things go because subpoena would have to be fought against i told joseph that uh before mr chikata walked in to address the court on the issue of the review mr tony litter the other lawyer on the petitioner's side attempted to withdraw the stay of procedures application yes so it's actually um i've made reference to that and informed the caller mr tikata kemi uh he did point out uh to record that uh those are matters that are still outstanding and they keep that other points responded that in terms of that particular question it has to be tells you by the ceremony so yes you are right on that score that there were there was a bit of a different communication coming from the same type relative to that particular person okay jessa finally do you have any idea when the panel will return to give a ruling on this matter we do not know for now except that in terms of what we have seen in times past it mostly takes between 30 to 45 minutes for them to come back in so that is what we are working with here in the courtroom and many of those who are here not a lot of moved very far away from the course because as we have seen in times past it shouldn't take long but they just arrive at the conclusion and come back and deliver the ruling let's confirm to ask joseph before you go is there any fresh application before the courts on this election petition at this time now no the application has brought windows which is likely to be hard has to do with the extension of time for return addresses to be found and so inventors have been started yesterday for now there is no fresh application before the course the only one that remains has to do with the state that was already filed and the regular report has gone on research to deal with now okay joseph cable we'll let you go for now thank you very much that's our correspondent jose vancouver he's sitting through the process in cots and he will be bringing us a lot more we've got our lawyer also zoom mr bobby benson maybe you can help us with the state of procedures application and where we are with that what what does it all mean right now but the the stay of proceedings application obviously is to because the court had made an order for the parties to file their written um submissions for them to give a date for the for the judgment on the petition so this day of proceedings is an attempt to halt that the implementation of that process um or that order or they're carrying it out by the parties until the review this current review application is determined but the filing of the stay of proceedings does not in itself stay proceedings that is a principle that has been determined by the court and so the fact that you have filed a state of proceedings does not unlike an application for injunction in itself state proceedings that state of proceeding would have to be determined before you can say that then the proceedings should be stayed but uh at the end of the day that is why the supreme court said despite the filing of the state of proceedings the parties should proceed to comply with their order which i believe that they would i mean judging from the way the supreme court demonstrated their displeasure with their you know the the decision of the council for the petitioner not to file their witness statement on to that state's head i believe that they would have advised themselves and and proceed to file their written addresses irrespective of the outcome of the present application but what is interesting is that last week when the court got to know that they had not complied with the order we didn't get the same kind of reaction there was no strong reaction to that well the the the cuts uh i believe that the the masters of the urus uh having haven't given that strong reaction in the in the in the previous situation i believe they may want to avoid a situation where they are seen to be being antagonistic towards their lawyers or the petitioners because the lawyers of the petitioners should know what the it's required of them by this stage and if they give a deadline for you to file and you do not fire remember you cannot file without them giving you extension of time so if they get to that bridge i'm sure they'll find a way of crossing it how often do you do you hear prophetic words in constitutional matters before the supreme court uh mr chikata quoted josiah age seven and in the end he said he who has ears let them hear well you would have it will interest you to know that there are countless court decisions that uh began with um either well i have not read any quotation from the quran yet but there are countless of them that commence with quotations from the bible and mr chikata is it's not it's not it's known to normally premise such argumental quotations from the bible and it's it adds to the beauty of the law um you know the the the the basis of law depending on with the jewish potential school of thought that you belong to its morality and and the basis of morality most for most of us would be the bible and so it's it's not strange because the bible has quotations about justice about delivery of justice about hearing the other side you know the story about the woman who kept knocking on the door of a judge and the judge finally said you've been disturbing me for long let me give you what you want it's it's often quoted by judges if people keep coming to them so it's it's not it's not unusual especially with matters involving mr chikata kojo you are yeah you want to give some prophetic words because i i had a smile on my face when i heard mr chikata reading uh jose chapter eight verse seven uh they saw the wind and reaped the whirlwind uh it goes on by the way that uh that particular bible verse and it talks about how even the labor of the the farmer will come to nothing the stock will bear uh you know no flour and even if it does foreigners will come and eat it you know so so mr chikata is uh seeming to to uh sound a very stark and dire warning but the the kernel of that particular verse is that your punishment will exceed your crime you will sow the wind but you will reap the whirlwind you know and i wonder what in particular mr chikata seeks you know to communicate with that i'm sure in due course we will all get to understand it but what i found interesting was that one of the judges on the bench mr amigachia one of the two who have been added um [Music] just uh justice forgive me um no no my gosh i was chilling already on the panel yes on the ordinary panel that's correct he asked for a response to that from the first respondent i thought that was interesting the first respondent had completed his remarks without touching on that but mr megachar wanted to know can i come on can i ask bobby bun said something just on this uh mr banson i thought issues referred or the other lawyers can make points uh you know comment on points of law but since this is not law uh was it i don't know what the question is even right now uh is this normal i guess with every whatever uh proceedings um like that there's what it's called the obita which is something that it just simply refers to by the way it's not very connected to the essence of the contestants before their court so i believe that it may have been out of just that they asked the other lawyer to respond perhaps if he had any biblical quotation to to cut him to do that he would have referred to it uh similar to the encounter between jesus and the devil on the mountain you know it was a battle of quotations this is interesting because i know i know i know the first time a thing like this came up in courts when the other lawyers attempted to they were asked not to because they could only come in on the point of law and this was this was not an issue of a point okay well thank you something else yeah um i i wanted to just um make a certain observation of as we were talking about the mood of court today and mr chikata seemed quite fired up in his um arguments today um in fact to the point where he he describes some of the aspects of the ruling as unreasonable he also used an expression near the end when he came back to rebut a point that had been made by the respondents he actually said that um um some for the for the courts to put aside the rules of uh evidence and go for black's law was per incurrium which and thank goodness for for our ability to learn during this election petition but it means with lack of regard for the law so here is mr chikata essentially saying that the supreme court has set aside the law and uh he's saying this in reference to the the the referral to black's law when there exists an evidence you know um rules of evidence the statute covering that the evidence act so i found that very interesting but again we are seeing mr chikata actually quite bold in his um descriptions of the actions of the supreme court and we don't always get instant responses from the supreme court to some of these bold uh proclamations that mr chikata makes and you may have seen in social media commentary how people suggest that mr chikata you know perhaps uh is operating on something similar to fergie time uh for manchester united fans mr alex alex ferguson had this amazing ability to somehow let the clock stop when his team still had work to do and it appears that that favor that he had with the gods of football mr chikata appears to have with the gods of law well it's a election petition updates and prowl association with petrol saw also dbs roofing and co-op mixture uh just before we take a breather bobby bunsen is a lawyer he's uh joined us bazim i just want to ask you before uh we let you go there was a an issue of one of the justices essentially drawing mr chicas mr chikati's attention to the fact that they consider they take a lot of things into consideration before arriving at any decision but mr chikata also did say that he was addressing what was in the ruling we know that a lot of things happen and they consider many things but would this be uh maybe i'm not sure the first time is appropriate uh but where a justice of the supreme court is telling you that we consider many other things before arriving at a decision apart from what you just read in our ruling [Music] and this is your most credible news source this is your news our election petition updates is associated with petrosol dbs roofing and koa mixture well the court has been here in arguments advanced festival by the petitioner lawyer for the petitioner chachi chikata we've heard from the lawyers for the second the first and second respondents in this case as well uh advancing arguments uh you know seeking that the court will rule in their favor it's an it's a an application to reopen a closed case if you just join us uh well we're waiting for the court to return with a decision but as we do that here except of the arguments advanced and caught this morning 30 minutes very well there will be no extension of time i'm sorry i didn't hear there will be no extension of time the application for review is brought under article 33 1 of the constitution and rule 56 of the supreme court rules i respectfully move in terms of the motion paper and the supporting affidavit and this review is in respect of our application to reopen our case and your lordships ruling is our first exhibit attached to the application and in our respectful submission as our ground a indicates this ruling was sparing curium section 72 of the evidence act 1975 and has occasioned a grave miscarriage of justice there's no question that in your lordship's ruling there is no reference whatsoever to section 72 of the evidence act instead there is a reference to black's law dictionary which is an english law text no reference is made to section 72 of the evidence act section 72 of the evidence act is a statute of ghana no reference is made to that and instead there is a reference made to an english law textbook which is not what is binding on your lordships that is why we say respectfully that that decision was paying qm section 72 of the evidence act and my lords the authorities are clear and we have cited republic versus republic against teter which is 2003-2004 supreme court of ghana law reports 140 where their lordships in the supreme court reversed a unanimous decision that they themselves had given and they reversed that decision on the basis that they had failed to take into account the armed forces regulations which were part of what their duty was as a court of gun they had failed to take it account they are failed to take in your account and so their lordships in republic against teter reversed a unanimous decision that they had taken and they unanimously corrected an error now my lord's in an another ruling your lawsuits are given in this case recently your lawsuits have said that even if you did not refer to a certain statute in your judgment we have not shown that in occasional miscarriage of justice my laws respectfully that is fundamental error republican tata shows that once there is no reference to a statute which is binding on your lawsuit we do not need to show further that there is a miscarriage of justice where failure to apply a statute of the law of ghana is enough of a miscarriage of justice in accordance with the decision republic and tether and if non-compliance with a statute of ghana if that is not a miscarriage of justice respectfully i do not know what is a miscarriage of justice section 72 is very simple in its terms section 72 subject to the discretion of the court in a civil action or in a civil action a party or a person whose relationship to a party makes his interest substantially the same as a party may be called by any adverse party and examined as if on cross-examination at any time during the presentation of evidence by the party calling the witness yet this is what your lordships say in your ruling on page five your lordship say the question is how can the chairpers know the first respondent vindicated so when she is not on trial before she has neither been personally sued nor arraigned before this court on any complaint or accusation for which she has to explain or account to anybody it is the institution the electoral commission she has that has been accused by the petition of not having performed israel nothing else i mean respectfully that is not even true we have respectfully brought the attention of this called her family her singular failure to perform her rules we do not simply come before this call talking about the first respondent as a commissioner we specifically have raised issues the heart of this case is about hair declaration but these are the questions and then your losses go on what indeed baffles this court is the intimation by counsel for the petitioner that he intends to call the chairperson or first respondent as an adverse witness blacks law dictionary defined a hostile witness as so and so there's a whole quotation from black's law dictionary then it it carries on in effect to say that it is only when a witness is in the box that he can be declared a hostile witness my lord that is not the law of god the law of ghana is not what blacks law dictionary is saying or what their logics based on black local dictionary are saying the law of ghana is what i read from section 72 that says a party may be called a party may be called it's not that when they are in the witness book then they can be turned into a hostile witness that is not what the statue law of ghana says and my lord it is fundamental and egregious error when on the basis of black's law dictionary we have the courts of ghana going against the statutes of the land ground b of our application of our ground ground b says that the ruling was in fundamental error in subjecting statutory provisions in the evidence act to the provisions of subsidiary legislation my lord there again nothing could be more basic nothing could be more basic than the fact that a statute is superior to subsidiary legislation the rules of court committee are not of a higher standing than the parliament of ghana and so when you have a judicial decision of the highest court of the land effectively subjecting parliament's law to the rules of court committee that is fundamentally mr chicago yes are you suggesting that sea ice do not go to parliament sea ice goes to parliament they go to parliament in a different way from how statues go to parliament that is why the constitution makes a distinction between the exercise of powers by people such as the electoral commission who take the cis to parliament and if there's no objection it goes through that is a different process from a statute which is an act of parliament which overwrites subsidiary legislation my laws there can't be any question and if if your lawsuits have an issue with that i'm afraid that that is just fundamental error there can't be any question that subsidiary legislation such as is contained in a constitutional instrument that brings into effect what the rules of commit the rules of court have done there can't be any question that those are subordinate to the evidence act there can't be any question about that so where in the ruling your lord should say that you are not going to apply the evidence act because there is a rule of court and that rule isn't that the exercise of our discretion which prefaces the section that you read lord it's that those are not the terms of the ruling the terms of the ruling that your lordships gains the terms of your ruling are very clear and unless the ruling is being rewritten the terms are very clear namely that the evidence section 20 we we wish to state that this is our page 10 of the ruling we wish to state and practically that section 26 of the evidence act which is on conclusive presumption is not applicable in this case in view of order 38 rule 3e5 that is what the ruling says it doesn't say that in the exercise of my discretion this and that it doesn't say that it just said it is not applicable that is what it says nothing more nothing less mr chinatown yes do you have a list of everything that the panel took into account before coming to that conclusion it is a ruling of the panel that we are here to question and the ruling in its terms is what is before us obviously i'm not in the minds of the panel and i'm not able to divine whatever went on in their minds except my reference to the terms of the ruling and my laws in any event order 38 rule 3e5 has nothing whatsoever to do with application of the evidence act section 26 order 38 three even five it reads as follows that is as amended by ci 87 if a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as usa evidence any other party may put the witness statement in as yes the evidence that provision has nothing to do with the section 26 which the court was stating emphatically is not applicable because of this order the terms of this order are themselves very clear they do not have anything to do with what section 26 says what section 26 says is again not controversial what section 26 of of the evidence act says is simply establishing a conclusive presumption a conclusive presumption in a circumstance where somebody has put before the court clear indications by way of affidavits that she will be available to be cross-examined that leads to what section 26 describes as a conclusive presumption based on the estoppel by own statement in section 26 except as otherwise provided by law including a rule of equity when a party has by his own statement actual mission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief the truth of that thing shall be conclusively presumed against that party or his successes and interest in any proceedings between that party or his successes and interests and such relying person or his successes and interests or the 38 3e 5 has no relevance in terms of that and our submission and our submission is simply that the courts cannot sideline the operation of a statute by reference to subsidiary legislation which in any case has no relevance to the issue of section 26. my nodes we indicate in ground c and in ground d so we've dealt with a b and c we indicate in ground d we took we take b and c together and i argue in relation to b and c that the fundamental errors consist of sidelining legislation in favor of subsidiary legislation and in relation to grant c sidelining it in favor of subsidiary legislation which is irrelevant to the issue in the statute anyway and so we moved to grand and in grand d our submission is that here again the court made no reference whatsoever to order 38 rule 10 of ci47 now indeed section 58 of the court's act and section 58 of the court's act is a section which even gives power to your lordships to call a witness and that section has been properly applied so in other words apart from our ability to support upon reopening of our case apart from that there is also the opportunity for this court itself to call a witness and the circumstances with the court does that those circumstances are exemplified in the case of wardia and bukhari one day and booker in 1976 two ghana law reports 371 where the court of appeal the then apex court proceeded as follows and this is from the judgment of justice of appeal archer as he then was after judgment had been reserved in this court it was felt that this court should not be placed in the same situation and with the court below fund itself it was therefore decided to ascertain the truth in this matter and so on and based on that the court had recourse to the courts act to ascertain the truth of the matter and then the court went on to point out that just that invitation of the witness to come and testify had brought up a very important piece of evidence which if it had been abused in the court below would have spread that quote that torment of exploring whether or not the certified true copy of the plan from the land department was the plan attended before jackson j and the court even goes on to say one can understand mr joe randolph's initial reservations but not but as this additional evidence has enabled this quote to ascertain the truth beyond all doubt we think by allowing this additional evidence to be admitted mr randolph conducted himself in the best traditions of the bab indeed those words in respect of the pro the best traditions of the bat evoke some nostalgia in the hearts of some of us and my lords we we are respectfully saying that the ruling that your losses gave did not

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Id: UH6whWf6QFs

Length: 129min 38sec (7778 seconds)

Published: Mon Feb 22 2021