The Supreme Court on Tuesday dismissed a motion filed by the former president John Mahama to reopen his case in order to call the chair of the Electoral Commission, Jean Mensa, as a “hostile witness” in support of his case.
Giving its unanimous ruling, Chief Justice Kwasi Anin-Yeboah said Mahama (the petitioner) has not convinced the court with the sort of evidence he needs from Mensa or explained how that evidence will help in the final determination of the case.
Therefore, the apex court maintained that the development makes it difficult for it to exercise its discretion in favour of the petitioner and hence “the application is dismissed”.
It also determined that a witness who has not yet mounted the witness box cannot be described as a “hostile witness”.
Watch judges at the Supreme Court deliver full ruling below:
When the court convened on Monday, the lead counsel for the petitioner, Tsatsu Tsikata, argued that the petitioner was taken aback by the respondents’ decision no longer to call their witnesses because they did not believe the petitioner had made a case that warranted a response from them.
He further noted that the application is seeking leave from the court to reopen his client’s case to give him an opportunity to subpoena Mensa to testify as a hostile witness.
This leave, if granted, the petitioner’s lawyer said, will go a long way to clarify certain matters which are of great importance to them.
Lawyers for the respondents vehemently opposed the petitioner’s application.
According to the first respondent’s lead lawyer, Justin Amenuvor, the instant application before the court is an attempt on the part of the petitioner to call his adversary to testify on his behalf.
Amenuvor told the court that if this prayer were to be granted, it would amount to collapsing the adversarial litigation system of Ghana.
The application, he further argued, is an abuse of court process established since 1876, when the then Gold Coast received the common law in its jurisdiction.
The lead lawyer for the second respondent, Akoto Ampaw, submitted in court that the petitioner’s application seeking the court’s permission to reopen his case is an attempt to adduce fresh evidence in the case after he had, on his own, called three witnesses and closed his case thereafter.
He argued that the ruling governing the grant of such an application is twofold: covering availability of evidence and its effect.
First, Akoto Ampaw argued, the fresh evidence was not available and could not have been discovered by the petitioner even with the highest level of due diligence. Second, the evidence the petitioner intended to adduce would have no material effect on the case.
“It is our submission that the petitioner has not been able to demonstrate that his latest application meets these high thresholds set out in law for the application to be granted,” he told the Supreme Court.
After hearing the parties in the case, the Supreme Court panel, consisting of Chief Justice Anin-Yeboah together with Justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Nii Ashie Kotey, Mariama Owusu and Gertrude Torkonoo, dismissed the case.
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