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Full content: SC administering on solicitor's application to urge respondents to affirm

IN THE SUPERIOR COURT OF JUDICATURE, THE SUPREME COURT (CIVIL DIVISION) SITTING IN ACCRA ON THURSDAY THE 11TH DAY OF FEBRUARY, 2021 


CORAM: YEBOAH (CJ) (PRESIDING), APPAU, MARFUL-SAU, AMEGATCHER, PROF. KOTEY, OWUSU AND TORKORNOO JJ.S.C 


WRIT NO. J1/5/2021 


ARTICLE 64 OF THE CONSTITUTION AND SUPREME COURT RULES, 1996 


(C. I. 16) AS AMENDED BY C. I. 74 AND C. I. 99) 


Corrected PRESIDENTIAL ELECTION PETITION 


Official ELECTION HELD ON 7TH DECEMBER, 2020 


JOHN DRAMANI MAHAMA – PETITIONER 


Also, 


1. Discretionary COMMISSION – 1ST RESPONDENT 


2. NANA ADDO DANKWA AKUFO-ADDO – 2ND RESPONDENT 


Gatherings: PETITIONER REPRESENTED BY JOHNSON ASIEDU NKETIA 


First RESPONDENT REPRESENTED BY JEAN MENSA, CHAIRPERSON 


Second RESPONDENT REPRESENTED BY PETER MAC-MANU 


Guidance: TSATSU TSIKATA WITH HIM TONY LITHUR FOR THE PETITIONER 


JUSTIN AMENUVOR FOR 1ST RESPONDENT WITH HIM A. A. SOMUAH ASAMOAH 


AKOTO AMPAW FOR 2ND RESPONDENT WITH HIM FRANK DAVIES, KWAKU ASIRIFI AND YAW OPPONG 


Administering 


The central issue brought up in this criticism is whether the first and second Respondents in this request could be constrained by this court to give proof despite their express sign to the court that they don't plan to do as such. 


This request was brought under article 64 (1) of the 1992 Constitution. The appeal looks to challenge the legitimacy of the appointment of the President in the2020 Presidential Elections led on the seventh December 2020. 


At the end of the Petitioner's case, Counsel for 1stRespondent declared to the court that the first Respondent doesn't mean to illustrate any proof for the situation and, thusly, needed its case shut. Direction for the second Respondent related himself with the position taken by the first Respondent and emphasized that the second Respondent would likewise close his case since he was not citing any proof. 


Both advice presented that, having respect to the proof drove by the Petitioner through his Witnesses, they don't consider it significant to cite any proof in the matter. The two Counsel depended on Order 36 r 4 (3) of the High Court (Civil Procedure) Rules, CI 47 and Order 38 R 3E (1) and (5) of CI 47 as altered by the High Court (Civil Procedure) (Amendment) Rules 2014, CI 87. 


Learned Counsel for the Petitioner has contradicted the position taken by the Respondents and contended that the Respondents particularly the first Respondent can't decline to show proof in this appeal. The grounds whereupon Counsel for the Petitioner restricted the Respondents' choice not to show proof are that they have both chosen to cite proof, in that they havefiled and served Witness articulations, as requested by the Court. 


Insight for the Petitioner contended further that the first Respondent specifically, other than documenting a response to the request, has likewise explicitly removed to an oath contrary to an application to serve interrogatories, in which the Chairperson demonstrated her accessibility for questioning. 


At last, it was battled by Counsel for the Petitioner that the first Respondent's Chairperson plays out a vital Constitutional capacity and as such should be made to show proof in this request to represent her stewardship to individuals of Ghana. 


In their entries under the steady gaze of the court, Counsel for Respondents, especially for the first Respondent looked to depend on Order 36 r 4(3) of CI 47 and Order 38 r 3E of CI 87. 


We have painstakingly analyzed the above principles and are of the assessment that the arrangement that is applicable in the assurance of this issue is Order 38 r 3E of CI 87, which explicitly manages the utilization of Witness proclamations in common preliminaries. 


We consider this standard to be urgent taking into account the position taken by Counsel for the Petitioner among others that, the recording and administration of a Witness explanation suggests that a gathering has chosen to cite proof at the preliminary. 


We review that the documenting and administration of Witness articulations, for this situation, was in consistence with a request for this Court as a component of the pre-preliminary conventions before preliminary started. 


It is likewise an undisputed certainty that a Defendant for a situation can choose whether to cite proof at the end of Plaintiff's case, when such a Defendant is called upon by the Court to open their guard. 


We are of the considered assessment that it would not be right in law to hold that a gathering is considered to have chosen to show proof when that gathering records and serves a Witness explanation in consistence with a Court request. 


To hold so would imply that once a gathering records and serves a Witness articulation that party obligatorily needs to mount the observer box and show proof at the preliminary. This position isn't a result of the standards. 


To be sure Order 38 r 3E (5), unmistakably gives in any case as follows:- 


"(5) If a gathering who has served a Witness explanation doesn't call the observer to give proof at the preliminary or put the Witness proclamation in as gossip proof, some other gathering may place the Witness articulation in as prattle proof.'' 


The above guideline infers that when an observer explanation is documented and served the gathering who recorded same may decide not to give proof at the preliminary. The standard is the equivalent in viva voce proof where a gathering or witness who mounts the observer box, affirms in boss and neglects to turn up for interrogation. 


Such an observer can't be constrained by the court to show up for questioning. He endures the punishment of the proof being erased from the record. This is actually the position the Respondents have taken in this appeal where the two respondents have chosen not to cite proof despite the fact that they have documented and served observer explanations. 


The above principle additionally focuses to the way that an observer articulation recorded and served doesn't comprise proof in law till the creator of the assertion mounts the observer box, makes the vow and asks that the observer explanation be embraced as proof in boss compliant with Order 38 r 3E(2), which gives in this manner: 


"(2) Where an observer is called to give oral proof under subrule(1), the observer proclamation of that witness will remain as the proof in head of that witness except if the Court in any case orders.'' 


Taking into account the away from of the principles alluded to above, we disagree with the accommodation of Counsel for the Petitioner that when, as for this situation, a response to the request was documented at the pleadings stage and Witness proclamations recorded, the Respondents had chosen to show proof at the preliminary. 


We are additionally of the assessment that the documenting of oath in interlocutory applications with affidavit that the deponent would be accessible for interrogation doesn't make the deponent compellable to cite proof at the preliminary. 


Advice for the Petitioner has contended that in light of the fact that the first Respondent plays out a vital Constitutional obligation, when it is sued in an activity, for example, in this casedifferent rules ought to be applied. 


In any case, Counsel neglected to allude us to any arrangement of the 1992 Constitution or any resolution which necessitated that the first Respondent, being a Constitutional body ought to be exposed to various standards of the Court and our own industry did notunearth any such power. 


The law is that parties under the watchful eye of this court should consistently agree with the known principles of strategy and settled work on directing the ward of this court paying little heed to the idea of the case. See Oppong v. Head legal officer and Others (1999-2000) 2 GLR 402. 


The first Respondent isn't dependent upon any various principles of method since it is a Constitutional body. The evidential obligation forced by law on an individual looking to challenge an official political decision result has been settled by this Court in the 2013 political decision appeal case intituledAkufo-Addo and Others v. Mahama& Another (2013) SCGLR(Special Edition)73. 


Subsequent to refering to with endorsement a few choices of Courts in some Commonwealth nations prominently Nigeria, Uganda, Kenya, and Canada, Adinyira JSC closed at page 218 that: 


''Appropriately the solicitors bear the weight of evidence to set up not just that there were infringement, oversights, acts of neglect and inconsistencies in the direct of the official political decision hung on seventh and eighth December 2012 yet additionally that the said infringement, exclusions, misbehaviors and abnormalities, assuming any, influenced the consequences of the political race. It is after the solicitors have set up the previous that the weight movements to the respondents, to set up that the outcomes were not influenced. The limit of confirmation ought to, on a basic level, be over the equilibrium of likelihood.'' 


We have refered to Adinyira JSC's decree to commute home the legitimate suggestion that a Petitioner in a political decision debate stands or falls on the strength of their own case and never on the shortcoming or in any case of the proof of the Respondents. 


Insight for the Petitioner refered to us the instance of SumailaBielbiel v. AdamuDramani& Attorney – General No. 4 (2012) 1 SCGLR 374, in which this court requested a gathering to illustrate proof since that gathering had just cited proof as a sworn statement. 


That case is unmistakable based on what is before us now and it should be perused in its setting comparative with current realities under the watchful eye of the court at that point. All things considered this court was managing an accommodation of no case in a preliminary conceding testimony proof, not at all like the current request where this court is managing Witness articulations which are unworn and are not yet proof. 


For sure, the qualification between that case and the current case is plainly exhibited in the decision of Dr. Date-Bah, JSC who conveyed the decision of the court. At page 357 of the report the learned legal adviser conveyed himself as follows

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AMEGATCHER OWUSU SC TORKORNOO

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