The witness for the Electoral Commission (EC) in the 2020 presidential election petition (EC), Mrs Jean Mensa, who is also the Chairperson of the EC, will not give any evidence, lawyers for the EC have indicated to the Supreme Court.

The announcement by the lead counsel for the EC, Mr Justin Amenuvor came as a surprise to many.

After the cross examination of Mr Rojo Mettle-Nunoo, the third witness for the petitioner, Mr John Dramani Mahama on Monday [February 8, 2021] his lead counsel, indicated to the court that the petitioner has closed his case.

It was expected that the first respondent (EC), would have put a witness in the person of Mrs Jean Mensa in the box for her evidence-in-chief to be followed by cross examination, however, Lead counsel for the EC, Mr Justin Amenuvor, told the apex court that his client, has decided not to adduce any evidence and therefore the court should decide the petition filed by former President John Dramani Mahama on its merit.

He premised his argument on Order 36 (4) sub rule 3 of the High Court (Civil Procedure Rule ), C.I 47, which he argued allowed the respondent to decide not to adduce any evidence.

Tsatsu Tsikata's submission

In response, lead counsel for the petitioner, Mr Tsatsu Tsikata, opposed the stance taken by the EC’s lawyer.

He argued that so far as Mrs Jean Mensa, the Chairperson of the EC had put in a witness statement, and had indicated that she will testify, she had “elected” to give evidence and by the rules of court, she must give the evidence.

Below is a transcript of what transpired

Chief Justice Anin Yeboah: "By court, PW3 (Rojo) is discharged as a witness."

Tsatsu Tsikata: "My lord we are most grateful. That is the end of our case."

Chief Justice: "Ok. By court, the case for the petitioner is closed. Yes, Mr Amenuvor."

Justine Amenuvor: " My Lords with respect, we will like to submit that in view of the evidence submitted by the witnesses of the petitioner and the last cross examination so far, speaking for the first respondent, I'm of the view that there is sufficient evidence before the court for this petition to be determined and therefore my lords, it is the first respondent's case that we do not wish to lead any further evidence and therefore we are praying that the court proceeds under Order 36 rule 43 and C.I. 87 Rule 3(E)(5) and we hereby on that basis close our case."

Bench: "Mr Amenuvor what then happens to your witness statement? You filed a witness statement and the witness statement is supposed to be subjected to...it is going to stand as your evidence-in-chief, and therefore it is supposed to be subjected to cross examination?"

Amenuvor: "My lords under C.I. 87 under Rule 3 (E)(5), if a party who has served a witness statement does not call a witness to give a witness statement at the trial, and put the witness statement in as just evidence, any other party may put that witness statement in as hearsay evidence. So my lords, we are saying that we are not calling any further witnesses, if the court decides to treat our witness statement as hearsay evidence, well the court is entitled to, but we are not calling any further evidence."

Tsatsu Tsikata: "My lords respectfully, we need to understand the nature of what is being put forward clearly."

The Chief Justice then explained in a nutshell what was put forward by the first respondent to Mr Tsikata.

C.I. 47. Order 36 Rule 43 states: "Where a defendant elects not to adduce evidence then whether or not the defendant has in the course of cross examination of a witness of the plaintiff or otherwise put in a document, the plaintiff may after the evidence on behalf of the plaintiff..., state the case on behalf of the defendant."

Tsatsu Tsikata: "Respectfully, it is our respectful submission that counsel for the first respondent does not have it open to him to take the course that he just proposed to this court.
"Order 36 Rule 43 specifically says that where the defendant elects not to adduce evidence.

In this proceedings the respondent has put in a witness statement, so my lords, the election that they made to submit a witness statement to the court, is a clear indication that they made an election to the contrary, because my lords, in this proceedings at the point of case management, your lordships asked questions from all the parties, as that witnesses being called, and it is at the point of this management where such an election is notified to the court."

"At that point, they elected to submit a witness statement. Now that witness statement is not yet in evidence and it is true but this is referring to an election, the point of election came at the case management and we are respectfully submitting that this witness cannot run away from cross examination when they had elected, when they had elected, my lord when they had elected."

The Chief Justice intervened at that point and suggested to Mr Tsikata not to use the word "run away" which "people may interpret it" and suggested she is "evading cross-examination” and Mr Tsikata agreed to adopt that word.

Bench: "Mr Tsikata, assuming we were not dealing with witness statements we were giving oral evidence, when does a party, will have elected to give evidence."

Tsikata: "At the case management stage."

Bench: "If a party is called upon to testify and then he tells the court, I do not intend to testify, that is what we say the party is unwilling to adduce evidence."

Tsikata: "My lords respectfully that is not the situation under the rules amended to provide for case management."

Bench: "Mr Tsikata, now, are you saying that if he decide to call five witnesses or six witnesses and you put in five or six witness statements, you cannot at any point in time tell the court that, though you have put in six witness statements, you are not going to call all the six. Can't you say that?

Tsikata: "My lords you can say that, but that is not what is in Order 36, which is what they are coming under."

Bench: "Under the normal civil procedure, if a plaintiff closes its case and the defendant realizes that the case the plaintiff has, has no substance or does not establish the reliefs he is claiming and there will be no need for him to testify, he can tell the court that he will not testify..."

Justices on the bench such as Justices Gertrude Torkornoo, Nii Ashie Kotey and Samuel Marful-Sau asked Mr Tsikata whether a witness can be forced to give evidence.

The Supreme Court has adjourned the case to Tuesday for the lawyers to address the court on the issue and for the court to make a determination.