More Drama Over 2020 “Stolen Verdict” -As Mahama Files To Reopen Case & Subpoena Against Jean Mensah

John Dramani Mahama, the petitioner in the election petition case John Dramani Mahama, the petitioner in the election petition case

The petitioner in the election petition case, John Dramani Mahama, has filed a motion at the Supreme Court for leave to reopen his case.

Mr Mahama's lead lawyer, Tsatsu Tsikata, is also seeking to have the Chairperson of the Electoral Commission (EC), Jean Mensa dragged into the witness box and cross-examined through a subpoena application.

The legal team, has also served notice of seeking a review of the Supreme Court's ruling on a decision by the Chairperson of the EC not to mount the witness box, which many have argued is a recipe for chaos, as it amounts to a slap on the face of public policy and avenue to cause distrust for public institutions.

Mr Tsikata, is seeking to trigger these processes after his objection to a decision by the EC and President Akufo-Addo, first and second respondents not to call any witness was dismissed.

The legal team, has also served notice of seeking a review of the Supreme Court's ruling on a decision by the Chairperson of the EC not to mount the witness box.

Interestingly, although Mr Tsikata, had indicated he was going to seek a review, file a process to reopen the case to have Jean Mensah subpoena, the Supreme Court has asked that all the parties in the case file their respective closing addresses by Wednesday, February 17, 2021.

The lawyer had closed his case in anticipation of Jean Mensah and President Akufo-Addo's Peter Mac Manu,to be cross-examined, but that never happened as the respondents also closed their cases and prayed the court not to adduce evidence.

The petitioner objected to this application, but the court on Thursday, February 11, 2021, ruled that it cannot compel Jean Mensa to take the witness box.

The ruling also applied to the second respondent, Nana Akufo-Addo, who was expected to present Peter Mac Manu as his witness.

The legal papers indicating that the petitioner will subpoena the EC Chairperson to testify if the application is granted, were filed yesterday immediately after the court ruling.

The application will be heard on Monday, February 15, 2021.

Meanwhile, one of the lawyers for the petitioners, Marietta Brew Appiah-Oppong, has said that her side will put in a subpoena application to get the EC Chair, Jean Mensa to testify in the witness box.

"We disagree [with the ruling]. It is as simple as that. We have nothing to do about the decision of the court but accept it, and so we are going to file for an application for review. Counsel for the petitioner has announced that he will file a review of today's decision of the court. You heard the Lordships, they said no one can stop us from filing an application", she noted during a post-trial press conference.

Justifying why the EC Chair must mount the witness box, Marietta Brew Appiah-Oppong, reiterated the numerous occasions where the Commission has refused to provide information thereby questioning the transparency and accountability of the electoral management body.

"The Chairperson in the past has said she will be available for cross-examination. We have an EC who when a request for interrogatories was served on her in the past, she refused to respond. The EC has to be accountable to us and tell us how she made those errors. There are questions we have to put to her [Jean Mensa] that no one can answer. She alone can answer", Madam Appiah-Oppong added.

Legal representatives of the petitioner said, they are in disagreement with the apex court's decision and will therefore use the lawful means to have the EC Chair testify in the case. This is after the Supreme Court's ruling yesterday in a unanimous decision, upheld an application by the two respondents –the Electoral Commission and President Nana Akufo-Addo– not to have their witnesses testify.

Chief Justice Kwasi Anin-Yeboah, who read the ruling in court yesterday, February 11, 2021, said the judges were not convinced by the contrary arguments made by Tsatsu Tsikata, lead counsel for the petitioner.

He also said they were given a limited jurisdiction in the Election Petition case and that they do not intend to go beyond that jurisdiction.

"We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64 (1) challenging the validity of the election of a president. Simply put, we are not convinced, and we will not yield to the invitation being extended to us by counsel for the petitioner to order the respondents to enter the witness box to be cross-examined. Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce evidence in this petition," he added.

Mr Tsikata, had closed the case and was seeking to cross-examine Jean Mensa, but his hopes were dashed as the respondents refused to open their defence and also closed their cases.

The lead counsel for the EC, Justin Amenovor on Monday, February 8, 2021, indicated to the court that the 1st respondent [Electoral Commission] does not intend to call any witness to testify and relied on Order 36 Order sub-rule 4 and 38, rule 3 (e) sub-rule 1 and 5 of CI 47 as amended by CI 87 as the basis for their decision to close their case and not call a witness.

Likewise, lead counsel for President Akufo-Addo, Akoto Ampaw, also announced that the New Patriotic Party's 2020 Campaign Manager, Peter Mac Manu, would not be taking the witness box for cross-examination.

Mr Ampaw argued that the petitioner has not been able to make a solid case in court, hence the decision to close their case.

But Tsatsu Tsikata disagreed.

Mr Tsikata, thus accused Mrs. Mensa of evading cross-examination. He subsequently told the court that they intend to re-open their case.The court, however, directed the petitioner and the respondents to file their closing statements by February 17, 2021.

Marietta Brew Appiah-Oppong, while confirming the legal team's subpoena application, also gave an indication that their side will file a review motion on the ruling to have Jean Mensa dragged into the dock and be cross-examined on the declaration of December 7 polls which is being disputed.

"We disagree. It is as simple as that. We have nothing to do about the decision of the court but accept it, and so we are going to file for an application of review. Counsel for the petitioner has announced that he will file a review of today's decision of the court. You heard the Lordships, they said no one can stop us from filing an application", she noted.

Justifying why the EC Chair must mount the witness box, Marietta Brew Appiah-Oppong reiterated the numerous occasions where the Commission has refused to provide information thereby questioning the transparency and accountability of the electoral management body.

"The Chairperson in the past has said she will be available for cross-examination. We have an EC who when a request for interrogatories was served on her in the past, she refused to respond. The EC has to be accountable to us and tell us how she made those errors. There are questions we have to put to her [Jean Mensa] that no one can answer. She alone can answer", Madam Appiah-Oppong added.

Below is the Affidavit in support of the Mr Mahama's motion

I am the Petitioner and Applicant herein. The facts in this affidavit, unless otherwise stated, are within my personal knowledge, information or belief.

2. On 30th December 2020, I caused to be filed at the Registry of the Honourable Court, a Petition against Respondents who were duly served with the Petition and, thereafter, entered appearance.

3. At the hearing of the application, Counsel will crave leave of the Court to refer to all processes filed in the Court up to the date of the hearing of the instant application, as if same were reproduced here in extenso and sworn to by me on oath.

4. The case has proceeded to the point where, at the end of the testimony of my third witness on Monday, 8th February 2021, after the witness had been discharged, my Counsel notified the Court that I had closed my case.

5. The Court thereupon called upon 1st Respondent to open its case, at which point Counsel for 1st Respondent notified the Court that the witness of 1st Respondent, Mrs. Jean Adukwei Mensa, whose witness statement had been filed on the 22nd January 2021, was not going to be called to testify.

6. Counsel for 1st Respondent referred to Order 36 rule 4(3) of the High Court (Civil Procedure) Rules, (C.I. 47) as well as the Order 38 rule 3E (5) as the basis for the indication he had given to the Court.

7. My Counsel immediately rose and began to show why Order 36 rule 4(3) of C.I. 47 could not justify the position being taken by Counsel for 1st Respondent, since the pre-condition in that provision, namely that 1st Respondent had elected "not to adduce evidence" had not been met and was not the case here.

8. As my Counsel was proceeding with his argument, His Lordship the Chief Justice indicated that the Court would wish all Counsel to come and address the Court on the legal issues that arose from the step being taken by 1st Respondent, which Counsel for 2nd Respondent indicated was also the position of 2nd Respondent. The Court, therefore, adjourned the case to Tuesday, 9th February 2021.

9. On the said Tuesday, 9th February 2021, the Court heard arguments from Counsel for the parties and adjourned to Thursday, 11th February 2021 to give a ruling.

10. On Thursday, 11th February 2021 the Court ruled that Counsel for Respondents were within their rights not to call any witness even after submitting witness statements from those witnesses.

11. In respect specifically of the witness statement filed on behalf of 1st Respondent by its Chairperson, Mrs. Jean Adukwei Mensa, the Court decided that, since she had not been called as a witness by 1st Respondent for her witness statement to be admitted in evidence she would give under oath, she was not available to be cross-examined as my Counsel had argued before the Court.

12. It is as a result of this ruling of the Court that, I am advised by Counsel and verily believe, it has become necessary in the interest of justice and for fairness in the adjudication of this case, for my Counsel to seek the order herein being sought.

13. In an affidavit sworn to by the Chairperson of the Electoral Commission, Mrs. Jean Adukwei Mensa, in earlier proceedings in connection with an application by Counsel on my behalf to serve interrogatories on 1st Respondent and in the review application related thereto, she had indicated that the interrogatories were not necessary because the questions could be asked of her in cross-examination. I attach herewith copies of the said affidavit, marked as Exhibit "RECALL 1".

14. I also attach herewith the ruling of the Court dismissing the application for leave to serve interrogatories, as well as the ruling of the Court dismissing an application for review of that decision. These are marked, respectively as Exhibits "RECALL 2" and "RECALL 3".

15. As a result of the ruling of the Court of Thursday, 11th February 2021, it has become necessary, I am advised and verily believe, that my Counsel use the subpoena powers of the Court under Order 38 rule 10 of C.I. 47 to compel the attendance of the Chairperson of 1st Respondent to appear and testify in court.

16. At the time my Counsel closed my case, the representation that had been made by each Respondent to the Court, and specifically to me, was that the witnesses who had filed witness statements were going to testify. It therefore came as a surprise that both Counsel for Respondents announced, on Monday, 8th February 2021, that this was no longer the case.

17. My Counsel is seeking leave of the Court to re-open my case to enable the subpoena referred to above to be served on Mrs. Jean Adukwei Mensa, so she can appear before the Court to testify.

18. I am advised by Counsel and verily believe that the subpoena documentation to be served on Mrs. Jean Adukwei Mensa is ready for filing once leave is granted to re-open our case.

19. I am advised by Counsel and verily believe that it is in the interest of justice, and of a fair trial as required by the Constitution, that the Court exercise its discretion to allow me to re-open my case in order to have the Chairperson of 1st Respondent and the Returning Officer of the Presidential Election in respect of which this Petition has been filed, to appear and testify in these proceedings.

20. This witness has a unique role under the Constitution in respect of the Presidential Election that took place in Ghana on 7th December 2020, and having her testify is critical for this Court in order to ensure compliance with the Constitution; more so as the witness to be subpoenaed did make a declaration whose constitutional validity I am challenging in this suit.

21. Furthermore, in the proceedings to date, Counsel for 1st Respondent has challenged the testimony on oath of my witnesses, including testimony provided by PW2, Dr. Michael Kpessa-Whyte, that Mrs. Jean Adukwei Mensa had, in a meeting with PW3, Mr. Robert Joseph Mettle-Nunoo, (who also testified as PW3), sent the two witnesses who were serving as my agents at the National Collation Centre (popularly referred to as the "strong room"), to go and deliver a message to me, with the promise that she would have a dispatch rider go and escort them back before she would make a declaration.

22. I am advised by my Counsel and verily believe that Counsel for 1st Respondent, could only challenge the account of PW2 in the manner he did based on the instructions of 1st Respondent, particularly its Chairperson, Mrs. Jean Adukwei Mensa.

23. Indeed, I am advised by Counsel and verily believe that Counsel for 1st Respondent would have professionally misconducted himself if he had no basis from the instructions that he obtained from 1st Respondent, particularly its Chairperson, Mrs. Jean Adukwei Mensa, to put across to the said PW2 what he put to the witness.

24. It would be fair to all parties if Mrs. Jean Adukwei Mensa testified to what transpired in the meeting between Mr. Mettle-Nunoo and herself so as to settle that important issue, which is relevant to matters before this Court.

25. During cross-examination, Counsel for 1st Respondent put to PW1 evidence of vote padding at certain polling stations contained on a pen drive that is in evidence, in effect an acknowledgment by Counsel that more votes were stated as having been cast for certain candidates than had, in fact, been cast. Counsel could, again, only have put that to the witness on the basis of his client's instructions. In the witness statement of PW1 he provided a sample from 26 constituencies of vote padding (Exhibit "F").

26. The representative of 2nd Respondent in these proceedings has also admitted in a television interview that there was vote padding and indicated that their side would be able to show vote padding that went in favour of Petitioner. A video of this statement by Mr. MacManu was attached to the witness statement of PW1 and marked as Exhibit "G".

27. Vote padding is a serious violation of the right to vote of those eligible to vote, who each has a single vote. The effective admission by both Respondents, through what their respective Counsel put to PW1, is a serious indictment on the electoral process conducted by 1st Respondent. The Chairperson would, in fairness, have the opportunity through the subpoena process to come and testify in court of what the facts are in relation to such serious violations in the electoral process.

28. 1st Respondent and its Chairperson have previously highlighted efforts they made, especially through the biometric verification process for which huge sums of taxpayers' money was spent, to ensure that such vote padding did not occur. The Chairperson would be able, as a witness, to help the Court determine whether, as Counsel for 1st Respondent has put to PW1 in cross-examination, and as the representative of the 2nd Respondent in these proceedings has openly proclaimed, this indeed happened and to what extent.

29. Even more fundamentally, there is testimony before the court, especially by PW2 and PW3, that the Chairperson of 1st Respondent, Mrs. Jean Adukwei Mensa, did not in fact even begin to undertake the assembling and collation of results that came in from the Regional Collation Centres, as she was required to do by Regulation 44(10) of C.I. 127.

30. Furthermore, there was evidence from all my witnesses of failures of constitutional duties of fairness and lack of due process by Mrs. Mensa in her conduct in respect of her steps prior to her declaration. It is again in the interest of justice that this Court hears from Mrs. Jean Adukwei Mensa in respect of these important issues.

31. There is also testimony of my witnesses about certain documents which officials of 1st Respondent have put forward as not being authentic documents, a very serious matter in respect of which Mrs. Jean Adukwei Mensa ought to be heard.

32. The testimony of PW2 that the Form 13 which Mrs. Jean Adukwei Mensa had claimed to be what she used to set out the results which she purported to have declared was not, in fact, the form provided for in C.I. 127, is another vital matter in respect of which testimony from Mrs. Jean Adukwei Mensa is required in the interest of justice.

33. In her affidavit resisting our application to have the Court order the production of certain documents for inspection, the Chairperson of 1st Respondent herself again effectively admits what PW1 had stated, namely, that the purported Form 13 was never made available to my agents. I attach a copy of the said affidavit marked as Exhibit "RECALL 4".

34. I am further advised by Counsel and verily believe that this Court itself has power to summon a witness in order to ensure the just determination of this Petition.

35. It is because Counsel for 1st Defendant, on 8th February 2021, acted in a manner contrary to previous representations to the Court and to me, the Petitioner, that it has become necessary for my Counsel to seek leave to re-open my case.

36. Indeed, the Court itself acknowledged that it had not expected that turn of events, hence the Court's decision to have Counsel for all parties come the next day to address the Court on the legal issues arising from the indications given to the Court, first by Counsel for 1st Respondent and then, by Counsel for the 2nd Respondent, that they would not be calling their witnesses, for whom they had previously filed witness statements.

37. My Counsel did also indicate clearly in Court, on Tuesday, 9th February 2021, that prior to that date, relying on the representations made specifically by Mrs. Jean Adukwei Mensa herself in affidavits before this Court, we believed that Mrs. Jean Adukwei Mensa would be testifying under oath. I am advised by Counsel and verily believe that these prior statements constituted an estoppel by own statement and conduct.

38. I am further advised by counsel and verily believe that after a subpoena is served by my lawyers on the Chairperson of the Electoral Commission, if she wishes to invoke, for instance, a witness immunity such as protection against self-incrimination, or any concern about violation of her human rights, she would be entitled to put that forward for the determination of the court.

39. Wherefore I swear to this Affidavit in support of the application herein to re-open our case for the specific purpose of serving a subpoena on the Chairperson, Mrs. Jean Adukwei Mensa, to come and testify before this court.

Source: www.theheraldghana.com