Hearing commenced at 9:30am. Mr Tsikata was not present when hearing commenced but appeared soon after announcement of parties and Counsel
Petitioner’s Counsel moved his motion for review of the ruling of the Court dated 16/02/21 where the Court refused petitioner’s application to reopen case for the sole purpose of subpoenaing the Chair of 1st respondent to testify.
Counsel submitted that the ruling was without regard to Section 72 of the evidence act and the failure of the Court to refer to the section altogether in their ruling was a fundamental error which the Court ought to correct. He further submitted that he need not show miscarriage of justice that has occasioned as a result of the the failure to refer to the said section.
Petitioner’s Counsel also submitted that in the hierarchy of laws of Ghana, the Evidence At ranks above the subsidiary law of Court rules hence the Court erred when its ruling purported to put the provisions of the Court rules above the Evidence Act. He argued further that even the provision of the rules of Court cited by the Court was irrelevant to the determination of the application before the Court.
Petitioner’s Counsel also submitted that the Court failed to make reference to Order 38 rule 10 of C.I. 47 and also that the failure to consider Petitoner’s right of fair hearing under article 19(13) of the Constitution, 1992 also was a fundamental error. He cited the Tsatstu Tsikata v The Republic where the Supreme Court relied on a decision of the Nederland’s Supreme Court to override a confidentiality term in an international agreement.
Justice Torkornoo quizzed petitioner’s Counsel on why they did take the necessary steps while presenting their case if the presence of this witness was so crucial to them.
Petitioner’s Counsel repeated the fact that at the close of petitioner’s case, they had every reason to believe the Chair of 1st respondent would testify.
Counsel concluded his submissions by imploring the Justices to be Fidel to their judicial oath and quoted Hosaiah Chapter 8:7 .
Justice Mensah Bonsu asked Counsel what he meant when he said petitioner had closed his case after calling their witnesses and Counsel responded that he meant they had close their case; nothing more, nothing less.
COUNSEL FOR 1ST RESPONDENT
1st respondent’s lawyer opposed the motion and referred to Article 133(1) of the 1992 constitution and rule 54 of the Supreme Court Rules. He submitted that the review jurisdiction was a special one not akin to an appeal. Counsel rebutted the case of Wordie v Bukarire cited by petitioner’s counsel and contended it was inapplicable since the Court knew then, which evidence had been adduced. In this case, they had refused to show which evidence they intend to adduce just as the court stated in ints ruling by the ordinary bench. Counsel continued that the rules of court formed an integral part of the justice system and should not be devalued. He cited the case of Standard Trust Offshore and finally concluded that petitioner should be the last person complaining about fair trial since the Court had overly indulged the petitioner in spite of his conducting his case piecemeal. He prayed the Court to dismiss the application.
In heeding an invitation by Justice Amegatcher to respond to the bible quotation, Counsel submitted that God does not apply his conscience in a Court room and it is the law that prevails in Court not moral matters of God.
COUNSEL FOR 2ND RESPONDENT
Counsel started by noting that the application did not satisfy the conditions of a review hence it should be dismissed on its face. He continued that Petitoner’s Counsel had deliberately omitted the operating word of “of evidence” in his quotation of section 72 to create the impression that an adverse witness could be called at anytime. The section however applied to only when a party’s case was opened. The court did therefore need not to refer to it as the petitioner’s case had closed.
Counsel continued that, contrary to the submission of petitioner’s Counsel, the Court did not rank subsidiary legislation over Section 36 of the evidence act because the introductory words of section 26 provides “Except as otherwise provided by law, including a rule of equity”, the section therefore yields to rights in any other law such as the subsidiary legislation which the Court relied on.The submission was therefore misconceived.
Counsel deprecated the persistent attuned of petitioner’s Counsel in citing statutory provisions out of context and placing unfounded interpretations on certain provisions. He submitted that the petitioner had consistently defied the orders of the Court and cannot turn round to complain about fair hearing. He prayed the Court to dismiss the action as an abuse of the COurt’s process and award punitive cost against petitioner though this was a constitutional matter. He further prayed that the judgment in the matter be settled without the address of petitioner since he had refused to comply with the Court’s orders.
In a brief reply, petitioner’s Counsel responded to submissions of respondent’s Counsel and answered questions from the Bench on whether there was any conflict between Section 26 of Evidence Act and Order 38 r 3(E)5.
The Court recessed.
RULING OF THE COURT
The Court dismissed the application of the petitioner for the Court to review its decision to re-open to the case of petitioner. The Court in a lengthy ruling went thoroughly through the grounds of the petitioner and cited cases and discussed why it was not minded to grant the application.
APPLICATION FOR EXTENSION OF TIME TO FILE CLOSING ADDRESS
Petitioner’s Counsel applied for leave to file his closing address out of time and in spite of opposition, the Court granted it and gave petitioner up to the close of day, 23/02/21 to file his closing address.
The Court adjourned to 4/03/21 for judgment.
CONTEMPT OF COURT BY DR AYINE
The Court invoked its inherent jurisdiction and summoned Dr. Ayine to show cause why he should not be committed for contempt of court for comments made on 16/02/21 suggesting the Court had a predetermined mind. Dr. Ayine apologised unreservedly to the Court and his Counsel, Frank Beecham ESQ., also apologised profusely on his behalf.
The Court asked Dr. Ayine to purge himself of the contempt by retracting and apologising infront of the press. The Justices admonished the Dr Ayine to conduct himself in a manner deserving of a former Attorney Genera.
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