Counting the loss: Mahama won one out of 13 applications filed in election petition

Many were inclined to believe the 2020 election petition hearing will be characterised by much drama and a display of legal jargons.

But one thing that appears to have stuck in the minds of the populace since the petition started on January 19, is the word, dismissed and struck out.

The petitioner John Dramani Mahama has had the unfortunate of hearing the word slapped to the faces of his legal team led by Tsatsu Tsikata.

Within this short period, counsel of the NDC Flagbearer, has filed tons of applications questioning the Supreme Court decisions and steps.

In all, the petitioner’s team has filed 13 applications, where eight of them were dismissed, four struck out and one granted.

The Electoral Commission, on the other hand filed just one application —  the abridgement of time, which was struck out.

President Nana Akufo-Addo’s team did not file any.

Theghanareport.com brings you a chronology of events as it happened with regards to applications.

• Interrogatories dismissal

It all started on January 26, 2021, when the team had their interrogatories application dismissed.

Interrogatories are a formal set of written questions propounded by one litigant and required to be answered by the opposing party or parties in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.

The interrogatories application was to demand answers to some 12 key questions, the petitioner said was relevant in discovering the ills of the December 7, elections.

They sought to haul the Electoral Commission Chairperson Jean Mensa to witness box but the Supreme Court disagreed.

The application was dismissed, unanimously by a seven-member panel, on ground that the new constitutional instrument 99 does not give them much room for interrogatories.

The court explained that “reference was made to the 2013 [presidential election] petition in which an application for interrogatories was granted by the Supreme Court.

“However, subsequent to 2013, several statutory amendments have been made by C.I. 99 of 2016 which has restricted the practice and procedure of this court as regards Election Petition.

“Indeed, Rule 69 of the Supreme Court amendment in C.I. 99 directs the expeditious disposal of petitions and sets timelines for this court to dispose off the petition. The amendments provide us [court] with the new procedural regime and strict timelines.

“We are strictly bound to comply with C.I. 90 and therefore we will not apply Order 22 of C.I. 45 of 2004 in these circumstances. We, accordingly, refuse to grant the application and same is accordingly dismissed,” the court said.

• Review of interrogatories ruling

The petitioner, however, challenged the ruling of the court and filed a review of the ruling on January 26, 2021.

The petitioner has maintained that the court “fundamentally erred in law when it held that C.I. 99 repealed or otherwise excluded the application of C.I 47 either in whole or in part”.

“We want this court to make a volte-face and grant leave for the interrogation to be served on the first respondent,” the concluding part of the application read.

A volte-face is a total change of position, as in policy or opinion. The expression comes from the French language. The petitioners wanted a U-turn of the decision by the seven member panel.

This time, a nine-member sat for the review. After a barrage of arguments, the new panel upheld the apex court’s earlier ruling.

Mr Mahama’s request to ask the Chairperson of the Electoral Commission some questions was tossed out for the second time.

In its ruling on Thursday, the nine-member panel said the arguments raised by the petitioner’s legal team does not merit a grant of their application.

The panel said the application submitted had not met the threshold to apply for review and subsequently dismissed it.

The court presided over by the Chief Justice noted that there was no new, important matter or evidence that the petitioners had raised in its review argument.

“We have read the processes and have listened to counsel, we are not satisfied that the applicant has met the statutory requirement of rule 54(a) of C.I. 16 in order to succeed in an application for review. The application fails and it is accordingly dismissed,” the Chief Justice read out a unanimous ruling.

Read: Don’t bring God into court matters – EC Counsel to Tsikata

• Inspection of documents application dismissed

With several attempts to get the court to change its stance with regard to the interrogatories application, the petitioner raised the issue of inspection of documents.

Lead counsel for Mr. Mahama, Tsatsu Tsikata had argued that access to the documents will ensure a fair determination of the case.

He insisted it had been established during the cross-examination of Johnson Asiedu Nketia that some areas had multiple summary sheets showing different results.

An application that was again dismissed by the apex court.

The seven-member panel in its decision read by Justice Anin Yeboah stated that the applicant had not denied having copies of the documents being requested.

The judges said no new evidence had been given by the petitioner to warrant the court granting the application for the original documents to be handed over to the petitioner.

The court said its detailed decision would be incorporated in the final ruling on March 4.

• A third attempt by the petitioner tossed out

This was after all three witnesses of the petitioner had testified – the NDC General Secretary Johnson Asiedu Nketia, representatives of Mr Mahama in the strong room, Dr Micheal Kpessa Whyte and Robert Joseph Mettle Nunoo.

The petitioner shortly after closed his case, urging the respondents counsels (Justin Amenuvor and Akoto Ampaw) to do same.

What this meant was that the Electoral Commission was not under any obligation to provide a witness.

The court gave all parties a chance to argue it out and after the decided that it cannot force or subject a witness to testify.

The seven-member panel said they cannot extend their mandate beyond what the law mandates them to do, therefore cannot employ societies laws to subject the witness to testify.

Justice Anin Yeboah maintained that no provision in the constitution or statute has been pointed out by the petitioner to show the EC chairperson is subject to different rules contrary to settled rules of procedure and settled practice.

• Petitioner filed for a review for Jean Mensa to testify

The review panel affirmed a seven-member panel decision that the Electoral Commission cannot be compelled to call its Chairperson Jean Mensa to testify in the election petition.

They relied on rule 54 of the Supreme Court rules (C.I 16) to insists that the conditions meriting a review had not been met.

• Reopening case application

After the back and forth, the petitioner pushes his last card. Mr Tsikata files for a chance to reopen his case and in effect subpoena the EC Chairperson, Jean Mensa.

But the apex court, in a unanimous decision dismissed an application by the 2020 NDC presidential candidate seeking leave to reopen his case.

Backing this stance, the CJ said the petitioner has not indicated how the evidence he intends to solicit from the EC Chairperson will help to determine the case.

He also stated that the arguments raised by the petitioner are almost the same as those raised in the objection to the first respondent’s decision not to call a witness; thus Section 26 of the Evidence Act is not applicable in this case.

The CJ concludes by indicating that the EC Chairperson was not on trial hence she cannot be asked to vindicate herself.

• Review panel to hear reopening application

The review panel dismissed a request that it reviews its decision not to allow the petitioner reopen his case.

Dismissing the review application, the CJ maintained the earlier ruling that the petitioner has not indicated how the evidence he intends to solicit from the EC Chairperson will help to determine the case.

He explained that a review jurisdiction should not be seen and used as an emotional reaction to an unfavorable judgment. In effect, the review cannot be used as an opportunity by the petitioner to further advance their case or fill lapses.

• Mahama’s first and only victory

In all these failed applications, the petitioner had only one victory. On January 15, Mr Mahama was given the opportunity to correct errors in their application.

The request was granted on ground that the amendment does not affect the substance of the petition.

Regarding the motions that was struck out. The NDC General Secretary Asiedu Nketia and Joseph Robert Mettle Nunoo had portions of their witness statement struck out.

Three stay of proceedings were tossed out the door.

Supreme Court Panel

Chief Justice Kwasi Anin Yeboah presiding at all times.

Aside from the CJ, the other panel members are Yaw Apau, Samuel K. Marful Sau, Nene Amegathcher, Professor Ashie Kotey, Mariama Owusu and Gertrude Torkornoo.

The new additions to the panel included Imoro Tanko, Henrietta Mensa Bonsu and Avril Lovelace Johnson.

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