Hearing commenced today at 10:00am. After parties and Counsel announced themselves, Counsel for petitioner informed the Court that a point of law had arisen yesterday during his reply to 2nd respondent’s submissions and he had that morning served letters on parties intended to allow him address that point since it would be crucial in the decision of the Court. He further added that he had attached a list of authorities he intended to rely on.
The Court speaking through the Chief Justice informed petitioner’s Counsel that the matters he intended to argue were matters of law which the Court had already taken cognisance of hence would proceed to deliver their ruling.
The Court in its ruling recounted the circumstances leading to petitioner’s application for leave to re-open case to subpoena the Chairperson of 1st respondent. The Court noted that it was Counsel for petitioner who informed the court he didn’t intend to call any further witnesses hence had closed petitioner’s case following which the respondents were called to open their case. The respondents decided not to open their case since in their view, insufficient evidence had been led in support of the petition. Consequently, they prayed the Court to close their case but this was fiercely resisted by the petitioner’s Counsel and the court after addresses by the parties gave a ruling on 11-02-21. The Court noted that indeed it was this ruling that triggered the application to re-open case as admitted in paragraphs 15, 16 and 17 of petitioner’s affidavit in support.
The Court noted that the application had been brought under the inherent power of the court and therefore the petitioner ought to demonstrate why the exercise of that discretion should be in their favour.
The Court stated that the argument that they want the Chairperson to be subpoenaed to vindicate herself was untenable as the Chairperson was not on trial in the matter before the Court. It was the Electoral Commission as an institution, which had been sued for some constitutional breaches and that the Court did not think that the petitioner required the presence of the Chairperson to prove that some unconstitutionality had occurred.
The Court observed that its inherent jurisdiction is exercised in certain circumstances but the petitioner had failed to demonstrate any miscarriage of justice that has occasioned him as a result of the decision of the 1st respondent not to testify through its Chair. Additionally, the petitioner had failed to demonstrate which evidence he intended to solicit from the Chair of the EC to warrant the exercise of the Court’s discretion in his favour.
The Court continued that an application to re-open case is granted in exceptional circumstances and a decision to grant such an application must be subject to a scrupulous balancing act between the parties. The Court referred to the cases of Komabt v Lambim and the Canadian case of Ontario Limited v Sagaz, all of which were cited by 2nd respondent’s Counsel in his submissions.
The Court also referred to the cases of Poku v Poku where Wood CJ(as she then was) advised that granting leave to adduce fresh evidence was not meant to aid the indolent, reckless, or negligent litigant who fails to marshall all the essential facts in support of his case and comes back to seek another opportunity to build the case. Annobil v Obosu was also cited, all of which were mentioned by counsel for 2nd respondent in his submissions.
The Court stated that in all the cases cited, the defendants had testified and their testimony warranted the re-opening of the case for Plaintiff to lead some further evidence. Since the 1st respondent through its Chair had elected not to testify, no case had been made by petitioner on why the case he voluntarily closed should be re-opened.
The Court concluded that that petitioner had failed to give an inkling of the fresh evidence he intended to adduce and how it was going to help the Court in dealing with the issues set for trial.
Accordingly, the application to re-open case to enable EC Chair to testify was dismissed.
Petitoner’s Counsel informed the Court that they were in the process of filing a review to the decision of the Court dated 11-02-21 but the Court stated that its earlier orders on filing closing addresses and returning on Thursday stood unless the matter was scheduled by the registry to a different date.
Case therefore stands adjourned to Thursday, 18/02/21.
Content created and supplied by: AgyarkwahJustice(nanabagist) (via Opera News )