SUPREME COURT OF G HANA

IN THE SUPERIOR COURT 07 JUDICATURE IN THE SUPREME COURT OF JUSTICE

ACCRA - A.D. 2021Wrif No. 4I/5/2021

ARTICLE 64 OF THE 1992 CONSTITUTION AND SUPREME COURT RULES, 1996 (C.I. 16) (AS AMENDED BY C.I. 74 AND C.I. 99)

AMENDED PRESIDENTIAL ELECTION PETITION PURUSANT TO LEAVE GRANTED BY THE SUPREME COURT DATED J 4 ^ JANUARY 2021

Presidential Election held on the th day of December, 2020

BETWEEN

JOHN DRAMANI MANAMANo. 33 Chain Homes, Airport Volley Drive, Accra. GL-128-5622

AND

1. ELECTORAL COMMISSION National Headquarters, Accra

Petitioner

] si Respondent

2. NANA ADDO DANKWA AKU7O-ADDO 2°d RespondentH/No. 2, Onyoa Crescent,Nimo, Accra

2N^ RESPONDENT'S AFFIDAVIT IN OPPOSITION TO PETITIONER'S MOTION 7OR REVIEW OF THE RULING O7 THE SUPREME COURT DATED

16/02/21

I, KWAKU ASIRIFI ESQ., of 67, Kojo Thompson Road, Adabroka, makeoath and say that:

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N£R 7OR OAT”p qc\**"*

1. I am one of the lawyers of 2 respondent in this Petition and hove the authority of 2n• respondf3'nt to de p O se to this offida Vit iF\ opposition in respect of matters that have come to my personal knowledge, information and belief, unless otherwise expressly stated.

2. At the hearing of this application, Counsel shall seek leave of the Court to refer to all relevant processes filed to date in this Petition as if same had been reproduced hereto and sworn to by me.

3. 2nd respondent has been served through his Counsel with Petitioner's Motion for Review of the rulinp of the Supreme Court dated 16/02/2J and is opposed to same.

4. I contend the application is misconceived, raises no exceptional circumstances that has occasioned a miscarriage of justice and it is on abuse of the process of the Court.

5. The application raises no new matter and is only a rehash of the arguments by Coun5el for petitioner in the proceedings of 15/02/21 and as such foils to properly invoke this Court’s review jurisdiction.

s In the circumstances, I pray that the present application be dismissed and punitive cost awarded against applicant.

WH£REfORE, I swear to this affidavit in opposition.

SWORN IN ACCRA THIS )

DAY OF FEBRUARY 2021 ) "D E P 0 N E N T

The Registrar, Supreme Court,

Accra.

AND TO THE ABOVE-NAMED:

1. PETITIONER OR HIS LAWYER, TONY LITHUR ESQ., LITHUR BREW & CO, NO. 110B, 1 KANDA CLOSE, KANDA, ACCRA.

2. 1S* RESPONDENT OR ITS LAWYER, JUSTIN AMENUVOR ESQ., AMENUVOR & ASSOCIATES, NO. 8 II ODARTEY OSRO STREET, KUKU HILL, OSU, ACCRA.

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at, ..... ......

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.......RegistrarS UPR E f¥\E COURT OF GHANA

IN THE SUPERIOR COURT 07

JUDICATURE IN THE SUPREME COURT

OF JUSTICE ACCRA - A.D. 2021

Wrif No. J7/S/202 f

ARTICLE 64 07 THE CONSTITUTION AND SUPREME COURT RULES, 1996

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

AMENDED PRESIDENTIAL ELECTION PETITION PURUSANT TO \EAVE

GRANTED 0.Y THE SUPREME COURT DATED 14°^ JANUARY 2021

Presidential Election held on the th day of

December, 2020 BETWEEN

JOHN DRAMANI MAHAMANo. 33 Chain Homes, Airport Valley Drive, Accro. GL-I 28-5622

AND

1. ELECTORAL COMMISSIONNational Headquarters, Accra

2.NANA ADDO DANKWA AKUFO-ADDOH/No. 2, Onia Crescent,Naima, Accra

Petitioner

1 st Respondent

2nd Respondent

2 ^ RESPONDENT’S STATEMENT 07 CASE IN OPPOSITION TO

PETITIONER’S MOTION 7OR REVIEW OF THE RULING OF THE SUPREME

COURT DATED 16T^ FEBRUARY 2021

FACTS1. At the close of Petitioner/Applicant’s (“Applicant") case,

Counsel for 1 st respondent announced to the Court that 1 s’ respondent does not intend to adduce any evidence in fhe case and therefore wished to close its case. 2•• respondent’s counsel also expressed to the Court on intention not to adduce any evidence in the matter. Counsel for petitioner objected to the announcement by counsel for 1• and 2nd respondents to close their case without adducing evidence. The Court, accordingly,invited oral arguments from counsel on the lawfulness of 1› and 2nd respondents’ election not to adduce evidence following theclose of petitioner’s case. The Court delivered its ruling on 1 ) h February 2021 and dismissed the objections to 1›’ and 2nd respondents’ decision not to adduce evidence in the matter. On thot some day (i.e.. 11lh February 2021), petitioner filed onapplication to re-open his case and some was dismissed on 16thFebruary, 2021. On 18th February, 2021 petitioner yet again filed an application for review of the Court’s Ruling doted 16lh February, 2021.

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2. The instant review application is mounted under article 133 of theConstitution,1992, and Rules 54, 55 & 56 of the Supreme Court Rules (C.I.16) (as amended). 2nd respondent is opposed to theapplication and will proceed to argue his opposition to same.

WHETHER THE APPLICATION SATISFIES THE CONDITIONS FOR THE

GRANT OF A REVIEW

3. Respectfully, My Lords, 2n^ r€ spoF\de F\I submits that th€2 iFIS toF\t application by petitioner does not properly invoke

article 133 of the Constitution,1992, as well as Rule 54 of the

Supreme Court Rules, 1996 (C.1.16). Under article J 33(1),

“The Supreme Co«rt may review any decision mode or given

by if ox snch grounds and svbjecf fo such condifions as may

be prescribed by rules of court.”

4. The grounds for review have been set out in Rule S4 of C. I.J 6 asfollows:

“7he Courf +aY review any decision mode or given by it

on any of fhe fo/lowing grounds:

o. Excepfiono/ circnmsfances w'hich hove resv/fed in a

miscorr/age of i «›fice.

D. Discovery of new and impo¥anf moffer or evidence

which offer fhe exercise of 4ve di/igence was not

wifhin fhe App/iconf’s know/edge or con/d not be

proc/uced Dy him af fhe lime when fhe decision

was given."

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5. With respect, My Lords, the scope of review applications has been determined by this Court in a long

line of authorities. In Mechonica/ Lloyd r Narfey (f987- 1988) 2

GIR 598 9 664, the Supreme Court per Adade JSC, held

thus:“7he review jurisdiction is nof infendeé as a try on by a

parfy losing on oppea/. neither is if meant to De

resorted to as on emofiono/ reaction fo an

vnfovourobfe Judgment.”

6. The Supreme Court reiterated the legal criteria for review

applications in Quarfey v Cenfra/ Services Co. 1f4. {f 996-97J

SCGIR 398 as follows:

“The review jvrisdicfion is a specia/ jurisdicfion and

not an appe//ofe jurisdiction confered on fhe Courf

and fhe Cou0 wou/d exercise that speciofjuriscficfion in

favour of on oppliconf only in excepfionof

circumsfonces. This implies fhof such on application

should satisfy the Court fhof fhere has deen some

fundomenfo/ or basic erior which fhe Covrfinadvertent/y

committed in fhe course of

considering ifs jvdgmenf ond wbich fundomenfa/ error

has resu/fed in gross miscarriage ofj«stice."

7. Wuakn JSC also emphasized this principle in Afronie v Quarcoo

/›sgzj x c‹e s»i at‹s›-‹px trus:“7here is on/y one Supreme Courf. A review Courf is

not on oppe//ofe covrt fo sif in judgment over fhe

Supreme Courf.”

8. The Supreme Court again in 7omak/oe v 7he Aepobfic (207 7J Ï

SCGLä 19, holding I, held as follows:

"7he review juËsdicfion of fhe S«preme CouH was not

an appe//ale jurisdicfion, 6of a specia/ one.

Accordingly, on issve of /aw that had 6een argued

öefore fhe ordinary bench offhe Supreme Courf ond

ôefermined by fhof courf. con/d nof ôe revisifeô in a

review app/icafion, such os in fhe insfanf case. simp/y

öecouse the losing parfy had not ogreed with fhe

determination. Even if fhe decision at fhe ordinary

bench on oppeaf from fhe jndgment of the Conrf of Appeal, were ›vrong. it would not necessoË/y meon fhof

fhe Sopreme Covrt wou/d ôe enfiffed to correcf that error. 7hof was an inherenf incidenf of the fino/ify of the judgment of fhe Supreme Court as fhe linal oppe//ofe

court.”

9. Dale-Bart JSC summed up the principles governing the review

jurisdiction in inferno/ Revenue Service v Chope/ Hi// Ltd {20I0J SCGLR 827 at 850 especial/y 852-853 as follows:

“/ do not consider thot this case deserves any lengthy treafmenf. I think fhat the applicant represents a c/assic case of o losing porty seeking to re-argue its appea/ under the garb of a review opp/ication. It is important that this Courf shou/d set ifs face against

such endeavour in order fo protect the integ^›”!Y *^! the review process.

This Court has reiterofed time without number that the review jurisdiction of tñis coorf is not an

appel/ate jurisdiction, but a special one. Accordingly. an issue of low

that bas been convossed Defore the 6ench of five ond on which fhe court han mode a deferminofion cannot be revisifeô in a review appficafion, sim@!Y Decovse fhe losing poitp doer nof ogree with fhe deferminofion. Kbis unfortunate/y is in suDstance whot the entrent app/icotion öefore this courf is."

10. The Court in Arfhur {No.2} v Arfhor (No 2J {20 fJ-20Ï4J ÏSCG1R

569 reiteroted the guidelines to be considered in review

applications as follows:“We are therefore constroined to send o note of caution

to all those who apply for the review jurisdiction of this Couû in respect ofru/e 54 (o) of C.I. Ib to be mindfo/ of

the following which we set out os o road mop. /t is

neither an exhaustive list nor one that is cast in iron

such that it connot be varied ôepending upon the

circcmstonces of each case.

/iJ in the first ploce, it mvst De estab/ished thot the review app/ication was fi/ed within the

time lines specified in ru/e 55 of C.I. lb.

(ii) Thot there exisf exceptional

circumstances to warrant a consideration

of the

(iii) That fhese excepfionol circumstances hove led to some fundamento/ or basic error in the judgment of the ordinary Dench.

/ix/ 7hat these have resulted into miscarriage of i•› tice (it could be gross miscarriage of

i ustice or miscarriage o* i«stice simp/iciterj.

{v} The review process show/d not De turnedinto another appea/ against the decision of the ordinary Dench.

It is only when the above conditions have 6een met to the satisfaction of the CouN that the review shOuld serioo *!Y consider the merits of the opplication."

11.The Supreme Court has had numerous occasions to state the above principles. Therefore, a losing porty is not entitled to use fhe review process to re-argue a case which he has lost fair and square, or to merely prevail upon the Court to have a second look at his case. A review is an invocation of the Court’s specia/ jurisdiction for a reconsideration of a decision based on very specific and limited grounds set out in Rule 54 of C. I. 16 and not its appellate jurisdiction.

12. 2n^ respondent submits that none of fhe grounds for a review of a decision of this Court has been invoked by the applicant. There is no new or important mafter or evidence which has been adduced; neither has any exceptional circumstance which has occasioned a grave miscarriage of justice been established for the grant of this application. Just as on the occasion of all other review applications by the applicant herein,

what the Court will observe from the instant application is a party aggrieved by a

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determination of a legal objection by this Honourable Court seeking a second bite at the cherry. The applicant files this application and seeks to persuade the Court on fhe same points which he foiled to persuade the Court on, during the hearing ofhis application to reopen his case and to subpoena 1 strespondent's chairperson. This, it is submitted, is insufficient for the invocation of the review jurisdiction of this Court.

13. It is submitted that all the matters raised by the applicant in this application, if not raised by the applicant and exhaustively dealt with in the ruling of the delivered on 1/ th February 2021, ore a weak attempt to improve on those arguments. Weaccordingly submit thot following upon the earlier unmeritorious review applications that we dismissed by this Courf, the instant application is manifestly on abuse of process, more so when there has been a continuous defiance in respect of matters that have been determined by this Court and yet Counsel for petitioner argues his case o5 if the Court had, in fact ruled in his favour. Equally abusive of the Court process has been the deliberate omission or suppression of vital ports of legislation Counsel seeks to rely upon for the simple reason thot those ports would simply expose the untenable position of Counsel’s submissions.

14. We now turn to address petitioner’s grounds for filing the instant review application. We will be dealing with the grounds

Ground the Rulinof the Court waser incuriom section 72 of

miscorrio ustlce to the alicont.

according to the order in which Counsel for petitioner addressed them. Grounds (a) & (b) will be argued together.

a) the Ruling of the Court was per incuriom section 72 of the

Evidence Act 1975 (NRCD323) and has occasioned grove

miscarriage of justice to the applicant.

b) the ruling of the Court was In fundamental error In subjecting

statutory provision in the Evidence Act 1975 (NRCD 323) to the

provisions of subsidiary legislation especially Order 38 r 3E

(5) of CI 47 as amended by CI 87: and has occasioned a grove

miscarriage of justice to the Applicant.

c) the Cou0 fundamentally erred in its interpretation of Older 38

r 3E (5) of CI 47 as amended by CI 87.

d) The ruling of the court was per incuriom of Order 38 r 10 of CI

47 and section 58 of the Couñs Act 1993 (Act 459)

e) the ruling of Court was per Incuriom Article 19 (13) of the

Constitution has occasioned a grove mlsconlage of justice to

the Applicant.

f} the ruling of the court was in breach of orticle 296 of the

Constitution and has occasioned a grove misconioge of

justice.

the Evidence Act 1975 [NRCD323) and has occasioned orove

15. It is instructive to note from the onset that Counsel for the applicant did not canvass section 72 of NRCD 323 in support of his case at the hearing of his application to re-open his case. However, in this review application, he seeks to advance the effect of that statutory provision as the main anchor for his application and chastises the Court for not taking account of thaJ provision in its ruling of 16/02/2021. Having regard to the fact that applicant did not argue the effect of section 72 of NRCD 323 in the application to re-open his case, the attempt to do so now amounts to seeking a review simply on the basis of arguments that applicant now considers superior. It is our humble submission that it is no ground for review thot applicant has some superior argument or is in a position to better reargue his case is definitely no ground of review.

1 6. Further, a court’s failure to analyse or examine the effect of a statutoy provision on the facts of a case before fhat court is not sufficient basis for the review of its ruling or judgment. It must be demonstrated that the failure to analyse the effect of the provision in issue occasioned a miscarriage of justice. The applicant has made no case for reviewing the ruling of 16/02/2021 based on the fact that the Court did not examine section 72 of NRCD 323. On the contrary, we will demonstrate that section 72 of NRCD 323 does not avail the applicant.

17. Lord Reid in the English case of RONDEL vs.

WORSLEY [J 967] 3 WLR 1666 had the occasion to emphasize Counsel’s duty in partaking in the administration of justice as follows:

“Every counsel has a •›^!Y IO his c/ïent fearlessly to

raise every issue, advance evey argument, and ask every question, however distastefv/, which he thinks will help hisclient’s case. Bul. as an officer of fhe cooX concerned in fhe administration of josfice, he has an overriding duly fo

fhe courf, to fhe standards of his profession. and to fhe

public. which may and oßen cfoes /eac/ fo confîicf with his clienf’s wishes or wifh whof the c/ienf fhinks ore his

peaona/ interesfs. Covnse/ mvsf nof mźs/ead the cou7,

he must not lend himself to costing ospersions on the

otber party or witnesses for whom there is no sufficient Dosis in the information in his possession, he must not

withhold oofhorifies or documents which m• Y fef/

agoinsf his c/ienfsöut which fhe law or fhe standards of his profession require

him to produce. And bY so octing he may well incur the dïsp/eøsore or worse of his client..."

Ï 8. This dictum finds expression in rule 47of The Code of Ethics ofthe Ghana Bar Association as

follows: “47. lock of

frankness:

It is the c/oty of a lawyer fo be aDso/ute/y fair, fronk and candïd in all his dealings with the Court, his fellow /awyeæ, anö other parties to the proceeding5, svbject on!Y to not betraying ńis

clïent’s cøuse, obandonïng his /ega/ rights, or äisclosing his confidences.“

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19. It is imperative at this stage of our submissions to highlight Counsel for petitioner's erroneous quotation of section 72(1) of the Evidence Act (NRCD 323) by the omission of two crucial words. The effect of the omission of those words in our view is not a coincidence but a rather disingenuous attempt by Counsel for petitioner to put a skewed interpretation on section 72(1) to support this tottering application for review. Your Lordships will notice that section 72 (1) was misquoted throughout the applicant’s statement of case.

20. Counsel for petitioner misquoted section 72(1) of NRCD 323 asfollows:

“72. Adverse witness in a civil action

(T) Subject to the discretion of the Court, in a civi/ action a parfy, or a person whose re/ationship to a parfy makes the interest of that person subsf

an*'•!! Y the same as the porf /. ‹›*«Y be called by on odveoe parfy and examined as if on cross-examination ayonv time durina the aresenthuie n

the witness."

a ca/ ma

21. One may legitimately ask: during the presentation of what?

For clearly this sentence is incomplete.

22. In fact, section 72(1) of NRCD 322 actually provides as follows:

“72. Adverse witness in a c/vi/ action

(\ ) Subject to fhe discretion of the Court, in a civil action a r•**Y. ^ a person whose re/ationship fo a

porfy makes the interest of that person suDsfantia//y

the same as the porfy. may be called 6y an adveoe party ané examined as if on cross-examination at onv time durina the presentation ol evidence 6v the oarfv collina the witness .”

23. By omitting the words “of eYiéence” which appear after the phrase “at any time during the presentation”,

Counsel for petitioner sought fo render section 72 in a manner that would make if applicable even after a party has closed his case. On the contrary, there are two conditions precedent to the application of section 72 of the Evidence Act. First, a porty who seeks to rely on section 72 to treat another party or that party’s witness as an adverse witness does not have on automatic righf to do so but must secure the favourable exercise of the Court’s discretion. It is of considerable importance to highlight the legal significance and essence of the opening words to section 72(1)which are: “subject to the discretJon of the Court ....”. The significance of the phrase “soDject fo” has been made abundantly clear in a number of binding judicial precedents

emanating from the Supreme Court. One of such cases is Asore v Attorne Y-Genera/ (The CRC case)1 ps follows:

“7he meaning of the opening words of article 289(I)

namely "su»iect to” hove Deen authoritative/y pronounced Dy this courf in previous decisions of this cocrf inc/vding Edvsei /No 2) v the Attorney-Genera/.2 Examining the words “suDject to” in the context of article289 (I) on the point, the power confereé on Par/iament

to amend the constitution most be read to mean that the scope of the power conferred by the artic/e cannot

be construed without reference to other parts of the

constitution. It is indeed. a recognition that there ore other parfs of the constitution which are concerned with the power to amend the constitution. As the

worc/s by which the power to amend is conferred on Par/iamenf itself begins with a caveat, so to say, one

must read the entire constitution in order to find out

whether there are any limitations on the power

granted to Par/iament before deciding if that power

is exc/osive (in) nature."

24. Thus, the grant of an application under section 72(1) even when a party has not closed his case would require the Court to exercise its discretion judicially by having regard to the incidents of the burden of proof among others.

' Writ No JI/l5f2015 dated 14 October 2015. [1998—99] SCGLR 753 at 791.

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25.The second condition and more fundamental precedent to applying to treat another porty or its witness as an adverse witness is that it must be “of any time during fhe presenfofion of evidence by fhe parfy co//ing fhe wifness". This presupposes that petitioner herein could only have exercised the opportunity provided by section 72(1) at the time of presenting his evidence and before he voluntarily closed his case. Failing that, the only circumstance in which petitioner might avail himself of section 72(1) of NRCD 323 will be where he is granted leave to re-open his case.

26. Counsel for the applicant has failed to show thaf he sought to call the adverse witness during the presentation of petitioner's evidence. Notwith5tonding the fact that 1 st respondent’s chairperson had filed and served a witness statement, that didnot preclude her from exercising her right to elect not to adduce evidence. It is, therefore, no excuse for the applicant to say that he foiled to apply to treat 1 s’ respondent’s chairperson as an adverse witness before closing his case because she had filed a witness statement.

27. Thus, until the applicant satisfies the conditions precedent for re-opening his case, section 72(1) of the Evidence Act will not even arise for this Honourable Court’s consideration. Further, just as

cross-examination of an adverse witness is contemplated by Section 72 to take place before the

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examining party closes his/her case, subpoenas are also to be requested during the presentation of evidence by the party requesting the issuance of the subpoena(s). No exception is made in the law fOr a party IO 5Ubpoena another party or that party’s witness after the party requesting the subpoena has closed his case.

28. The essential requirements of the law for a party seeking to re- open his case were thoroughly considered

by this Court in its ruling of 16/02/2021 from the last

paragraph at page 6 through to pages 7, 8, 9, 10 and 11 of

the ruling. At page 6, their Lordships stated as follows:

“AI the time this application was fi/ed, petitioner had express/y c/osed his case, likewise the Respondents. He

is therefore seeking our discretion to re-open his case

and to lead further evidence, which evidence he never disclosed to tbe Court. He is not enfif/ed to his prayer as of right. /t is subject to our discretion and before we can exercise our discretion ›n his favour,

he must satisfy certain 6asic conditions as laid down b

Y case low. the

generol expectation imposed on all litigoting potties is toploce the whole of their case 6efore the Court at the time of the hearing. 7he proce5s of inVOking the

inherent jurisdiction o f the Courf at the close of the cases of the parfies to re-open o c/osed case in order to oddcce fresh or further evidence is thus,

an extroordinory step, which

the imporfonce of finality of litigation frowns upon. save

T the presence of exceptionol circumstances”.

29. At pages 10 and 11 of the ruling, their Lordships did not mince words when they further reiterated the settled practice pertaining to the duty of a court when on application to re- open a case is brought before it as follows:

"We wish to reiterate that by settled practice, and in the absence of express rules to that effect, a

trial judge, just like this Covrf in this tr›o/ petition, has

a wide discretion to re-open proceedings before a

judgment is rendered. 7hat discretion is, however, one which shou/d be exercised sparingly and with

restraint, as motions to re- open necessori/y invo/ve a

ba/oncing of the accountobi/ify of counsel for

decisions regording the prosecution of its case and

the interests of justice. According/y, in weighing the

propriefy of re-opening proceedings to permit new or

additiona/ evidence to be led or tendered, the Court will fypica//y consider the fo/lowing 6rood questions:

i. Wou/d fhe evidence. if if had been presenfed during fhe frio/, have hod any influence ox fhe resvttl

ii. Cou/cf fhe evictence hove been oDfoined before

or during frio/ by fhe exercise of reasonable

éi/igence?

The Courf will a/so assess: the re/evance, necessify,

and materiality of the proposed evidence, the effect, if any, the re-opening may have on the expeditious conduct ofthe trio/ at large and the impoNonce of the integritY ! the trial process, and finally, whether the other paNy will De prejudiced if the re-opening is allowed or amiscarriage of justice perpetrated if it is not. As we

hove a/ready inéicateé in this ru/ing supra, fhe

pefifioner. in this opp/icofion, has not given vs an inkling ol fhe new or fresñ evidence fte wnnfs lo

brin9 fo fñe fore through the Chairpenon of fhe fst

respondenf and how fhof evidence wou/d ossist fhis

Covrt fo do justice in the mahers oncfer consideration in

this petifion. Neifher ho5

he disc/osed how fhof evidence wou/d advance fhe

cause of his pefifion. For the obove stated reasons, we

find no metit whatsoever in petitioner’s opplicofion fo

re-

open his cose for the sole purpose of compelling his

odversory’s intended witness to testify through a

subpoena, without indicating the Sort of evidence he intends to so/icit from the said witness and how fhat evidence is going to help the Court in reso/ving the

dispute Defore it.” (Emphasis ours)

30. Thus, the Court’s decision of 16/02/2021, was fundamentally hinged (and correctly so) on the exercise of its discretion in considering an application for re-opening a party’s case, based on sound reasoning. Indeed, the applicant has in this review application once again foiled to satisfy the prerequisites for the grant of leave to re-open his case. To that extent, section 72 of NRCD 323 is not as relevant to this review application as applicant contends. Even if it were relevant, applicant has failed to demonstrate how a failure to consider it in the ruling of l 6/02/2021 led to a miscarriage of justice.

31. My Lords, we soy, without relish that petitioner’s penchant for faking parts of lows or decisions of the Court to mount a blistering attack on the Court ought to be deprecated in no uncertain terms. Indeed, we shall point out similar instances in petitioner'5 sUbmissions in previOu5 and the instant presentation in which petitioner has adopted this invidious selective approach especially in a manner that seeks to embarrass the Court.

32. 9epub/ic v 7eheh, whose correct citation is (200J-2004J 7 SCGL9 f40, heavily relied upon by the applicant, was actually decided per incuriom. We agree with the editor of the law report that, the ratio of thot case, i.e., that it was unlawful for the court martial to give a decision with reasons, actually sins against the constitutional safeguards of a fair hearing. In the

circumstances, we pray Your Lordships to dismiss Ground (a) as being unmeritorious.

Ground (b) The ruling of the Cou0 was In fundamental error in

subjecting statutory provision In the Evidence Act 1975 (NRCD

323) to the provisions of subsidiary legislation especially Order 38 r

3E (5) of Cl 47 as amended by Cl 87; and has occasioned a grove

misconioge of justice to the Applicant.

33. My Lords, petitioner seeks, at page 5 of his statement of case,to orpue grounds "b and c together". My Lords, petitioner has expended enormous enerpy in his bid to impugn part of the decision of the Supreme Court dated 1 Cth February 202J.Petitioner founded his attack on the part of the court’s decision at page 10 of the ruling “that secfion 26 of the Evidence Act is not app/icab/e in view of Order 38 rule 3E (S) " According to petitioner, that holding “amounts to having subsidiary legislnfion — Cl 47 as amended bz Cl 87 — oveaide the express terms of statute.” Petitioner also contends thaJ it amounts to "a fundamental lego/ error". He pontificates with imperious disposition thus:

“If is inconceivable thot o Constitutiona/ instrument of the Rules of court Committee wovld De made to override on Act of Parliament. Yet this is exactly what tñe tuling purported lo do.”

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34.My Lords, it our respectful submission that an open-minded reading of section 26 of the Evidence Act clearly shows that pefifioner’s unchoritoble attack on the Supreme Court’s reliance on Order 38 rule 3E (5) in holding that “Section 2d of the Evidence Act ... is not applicable in this case” is untenable. The Court did not make section 26 of the Evidence Act subservient to Order 38 rule 3E(S) of C.I. 47 in any part of its ruling as alleged. This is because in reading Section 26 of the Evidence Act one cannot discount the legal significonce of the prefix “Excepf as ofherwise provided Dy low, including a role of eqvify...”.

35. The phrase, “Except as ofherwise...” is in pari materia with the

words “soDjecf to...” whose legal significance has been poignantly articulated in this submission with supporting

binding precedent.

36. /N 7HE MATIE# OF: B/MBJL1A NA SALIFU DAWUN/ (SU8STITUT€O BY SANGNAR/GU 1ANA SHANI AZUMAH) JUO

REGEN7 OSMAN MANAMA VRS ANDAN/ DASANA

(SUBS7/7U7€D BY NYE17NBORGU NAA YA¥U8U ANDANJ DASANA} AZUMAH NA7ONGMA CHlEfTAINCY APP. NO.J2/01/20t7: 23RD MAY 2018, the Supreme Court applied section 26 of the Evidence Act with a view to clarifying its true legal significance and applicability. The Court took pains to explicate the statutory precondition inherent in section 26 of the Evidence Act and accordingly noted:

21

“In fhe first p/ace, the section 26 says "except as ofherwise provided Dy low ( or ru/e of equifyJ.

meaning fñe estoppel does nof opply in ull coses.”

37. It is instructive to note that in the instant petition the Supreme Court has emphatically held that Order 38 r 3E (5) of C.I. 47 as amended by C.I. 87 permits a porty to decide whether or not he would submit himself to give evidence even after he has filed his Witness Statement or any previous statement giving indication thot thot person will not operate as estoppel against thot person. Thus, this position of the law "cannot be defeated by the principles of estoppel" as the Supreme Court held in the Dowvni case above as well its earlier decision in Attorney- General v Faroe Atlantic Co Ltd [2005-2006] SCGLR 271.

38. This simply means that in applying section 26 to ground a conclusive presumption of estoppel, the Court must have regard to other applicable law whether substantive or subsidiary, and/or rules of equity which may bar the creation a conclusive presumption. This so because the very Act of parliament in question, that is section 26 of the Evidence Act itself subjects its command to any "low or rule of equity".

39. In this case, all the alleged representations made

on oath by the chairperson of 1 respondent regarding petitioner's opportunity to cross-examine were made prior to petitioner

22

filing his witness statements and calling his witnesses to testify. Thus, 1st respondent or its chairperson would not hove been in o position to even properly evaluate petitioner’s evidence inorder to take an informed decision to exercise her legal right to elect not to adduce evidence.

40. My Lords, it is pertinent to note that the affidavit depositions by 1 * respondent’s chairperson in opposition to petitioner’s earlier application for leave to serve interrogatories and related applications for review and stay of proceedings, could not and did not constitute representations thot could create a conclusive presumption that 1s' respondent’s chairperson would be available for cross-examination come hell or high water!

41. In our humble view, the depositions on oath and submission of Counsel for 1 st respondent that petitioner may exercise his right to cross-examine the witness for 1 st respondent on the matters in respect of which he sought interrogatories, merely stated theeffect of Order 22 ruIe1(6) of C.I. 47 as well as a generally known common law principle on interrogatories, viz., disallowing on interrogatory does not necessarily shut the door to adduction of evidence on a palicular matter; one may utilise the process of cross-examination to elicit relevant evidence not allowed by way of interrogatories. It

certainly does not mean thot the party making the submission has undertaken thot he or she will necessarily lead evidence in a matter.

23

42. Counsel for petitioner also misconstrued the dictum in Sefa Asiedv (No.2} v. Bank of Ghana {No.2j Consolidated}

{20IJ- 20 l4j f SCG1R 530 because in thot case, the evidence

that leave was sought to adduce was found by the court to

have been long available to the applicant therein. The

circumstances in this case are very different. The EC’s

depositions on oath did not relate to facts or evidence that ore

germane to the determination of the Petition but rother an

affirmotion of the provisions of Order 22 rule 1 (6) of C.I. 47 as

espoused above. The EC chairperson’s depositions could also

not trump the prerequisite of relevance and thot is precisely

why in the ruling dismissing the application for leave to serve

interrogatories, Your Lordships mode no reference whatsoever

to the opportunity to cross-examine but rather petitioner’s

failure to satisfy the relevoncy test. Indeed. the ruling of the

court dismissing the said application was not based on any

promise or undertaking by the chairperson of } St respondent.

43. It is our respectful submission that in the light of the provisions of Order 38 rule 3E(5) of C.I. 47, a court cannot infer the creation of a conclusive presumption that compels a porty or its witness to testify. To do so will be to disregard a rule of law (albeit procedural) which gives such party and its witness(es) the right to elect not to testify. Further, such interpretation would be tantamount to jettisoning the incidents of the burden of proof as enshrined in the Evidence Act itself. Such construction would

24 | ”

not only be contrary to the plain and ordinary meaning of section 26 but absurd and repugnant. It is instructive to note in this regard that the prefix to section 26 did not distinguish between statutory and subsidiary legislation, and so, to the extent thot there is no inconsistency between section 26 of NRCD 323 and Order 38 rule 3E(5) of C.I. 47, this Honourable Court was right in holding that section 26 would not apply in the circumstances of this case.

44. Indeed, it has been held in a number of judicial authorities that even where a law does not subject itself

to rules of equity a court may so do in the interest of justice.

This proposition of law was relied on in 7ekyi Mensah v

Ackon3, and endorsed by Atuguba, JSC, in the Presidentia/

E/ection Petition case to the effect that “equity has, since I b8b, addressed itself to what has Deen described os the task of decorously disregarding an Act of Par/iomenf"*

when the provisions of an Act of Parliament ore clearly

inconsistent with the rules of equity, such as port- performance. What is incontestoble and indeed trite is that,

except otherwise provided by law, equity will not suffer a

person to be compelled to give evidence against himself or

herself whether as a party or not, hence the opening words

of section 26 of the Evidence Act thus “Excepf as ofherwise

provided by law, including a r«/e of ecioifv ..."

[1980] GLR 779.Ibid; p 786. The nuanced import of this proposition of law has been adequately addressed under chapter 2.

25

45. It is noteworthy that rules of equity are also integral part of the Laws of Ghana under Article 11 (2) of the Constitution 1992. Clearly, Section 26 of the Evidence Act has subjected itself to other lows, including those mode by the Rules of Court Committee. As already stated, “Rules" such as Constitutional instruments like C.I. 47 and C.I. 87 are integral port of the lows of Ghana. The Supreme Court was therefore absolutely right when it relied on Order 38 3E (5) as the applicable law and not section 26 of the Evidence Act. In doing so, the Court, contrary to the strange proposition of petitioner on this matter did not commit any “fundamental legal error" or occasion any miscarriage of justice.

46. In paragraphs 19 and 20 of his statement of case, the applicant sought to bolster his argument with the separate legal personality principle propounded in Sa/omon v So/omon as affirmed by this court in Morkor v Kuma /Eost Fisheries Case/ [1998-99] SCGLR 620. In doing so, Counsel for the applicant sought to distinguish between 1 st respondent as a corporate body and its chairperson as an individual with distinct functions under the 1992 Constitution. The whole point of this distinction is to circumvent the ruling of the Cout on 1/02/2021 that, aparty cannot be compelled to testify, so thot petitioner can compel 1 st respondent’s chairperson fo testify because she is

not a party to the Petition but the witness of a party.

26 | /’

47. My Lords, we hold the view thot petitioner’s argument and reliance on the authorities cited is both flowed and premature. It is flawed because on the peculiar facts of this case, 1" respondent as on inanimate body con only act and or adduce evidence through a human representative which in this case happened to be its chairperson whose interest in the suit is substantially the same as 1 st respondent. Consequently, as foras this Petition is concerned, any attempt to subpoena 1 strespondent’s chairperson who actually represents 1› respondent in these proceedings, has the same effect as subpoenaing l s’respondent who’s right to elect not to adduce evidence has been confirmed by this Court in its ruling of 11/02/21.

48. In any event before detaining the Court with the plausibility of the dichotomy canvassed by Counsel for petitioner, there is a bridge that petitioner must first cross and it is why we soy that his argument is premature. That bridge or hurdle thot must be surmounted is the requirements for re-opening a party’s case. Having closed his case, petitioner cannot subpoena anyone, whether a party or witness, until leave has been granted for him to re-open his case. Counsel for petitioner, himself, conceded this two-stage approach during his oral submissions on his initial application to re-open petitioner’s case, which we reproduce extensively below. Counsel for petitioner in the proceedings of 15/02/21, took the

position that, all he was requesting from the Court was for the re-opening of case and any other issue

27

relating to the subpoena would be ripe for discussion after leave had been granted for the re-opening. The following ensued at various pages of the record of proceedings (ROP) of 15/02/21 starting from page 5.

49. “8y Courf: Kindly clorify something for me. You want to re-

open yovr case for the I"respondent to testify as your

wifnessfi Coonse/ for pefifioner: My Lord, nof fhe tst

respondenf. We want to seek to re-open ocr case and as /

indicated, we ore not seeking leave to serve the soDpoena. The serving of a subpoena or fhe right to

service a scDpoeno is provided for under 38 Rule 10. The peoon fhat we intend to serve the suDpoena on is the

Chairperson of the E/ectoro/ Commission, the Reforming

Officer. Thot person is not the some as the I s’ respondent, evidently.

»Y Covrf: 3o, she is coming to testify on what copacifyfi

Counsel lor pefifioner: 3he is coming to tesfify on the 6asis of the subpoena 6ecause she is a pub/ic official. My Lord will know that subpoenas are very often used in the context

where a pub/ic officiol who m=Y IOt Wish to be identified as

testifying, so to speak, as a witness of one porty or the other. But who con 6e snbpoenaed so that in their independent capacity, they

con &ring to the cocrt matters which ore re/evant to the

determinotion thot the court is making.

By Covrf: A witness of who, the Cocrt or the petitioner*

28

Counsel for pefitioner: No, our witness, 6ut as the Evidence

Law a/lows. she is treafed as on Adxeoe Witness. What in common law is referred to as a Hosti/e Witness.

8y Courf: Assuming yovr app/ication is gronted, you intend totreat her as a Hosti/e Witnessfi

Covnse/ tar pefitioner: Yes, thot is what we are saying. My

Lords, respectfu//y, at this sfage her status as an Adverse

Witness, Hosti/e Witness thot is not in issue Defore you.”

50. When pushed further by the Court to demonstrate the status of the Chairperson should the matter be

reopened, petitioner’s Counsel stated at page 7 thus:

"Covnse/ for pefitioner: She is coming as a Witness of the petitioner described in the evidence laws of Ghana as an Adverse fitness and in common low described as a Hosti/e Witness. That is the capacity in which she is coming. When your Ladyship asked in terms of capocify, I was not vey c/ear what capacity

meant but, in this context, it is as an Adxene

Witness...".

51. Even after the above submission, petitioner’s Counsel still maintained his position that the application before the Court should only deal with the issue of re-opening his case and leave the determination of all other matters relating to the intended witness's status or whatever privileges or immunity she may want to claim to when the re-opening has been done. At

pages 8-11 of the ROP, petitioner’s Counsel submitted in support of the above as fo//ows:

“Covnsef for pefîfioner: “.... And my Lorc/s. the reason / sought to separate this stage where we are

si• *P!Y opplying for leave to re-open our case from the stage of the sobpoena, ond your Lordship is entirely riglnt that you do want us to be candiÖ with you about why we are going to svDpoeno her, so

that you can exercïse Your discretion oppropriate/y

ond I fully onderstand that. But the distinction that I

wisb to make for the soke of c/aËfy is that, if Your

Lordships grant us leave ond we fi/ed o scDpoena

which is then sewed on her. that is not the end of the matter. Because it is still open to her, for instance, whether for human righfs or any other reason, to mode an app/ication to the court and say I should not have to come and öe cross-exomined or be treoted as an Advese W›tness”.

52. The Court duly adopted a bifurcated approach of dealing with only the re-opening of fhe case first and all

other matters later. This is evidenced by its ruling of

16/02/2021 and at pages 14, 15 and 18 of the ROP for

15/02/20201. At page 18 in particular Counsel for petitioner

stated as follows:

“Before moving to the Affidavit in Opposition filed b Y *he

2•d respondent, I am Dound to draw your Lordships

attention again to just a coup/e more paragraphs of

the I” respondent’s Affidavit in Opposition. Paragraph

23

30

where she saY•- Counsel Reads OUt. *•*Y * rds again, this is o fotaf misapprehension of the operafion of Order 38 Rvfe TO because we are nof asking yov fo covse asubpoena fo De issued against her. Af/ we ore here for isfo ask for os fo be allowed fo re-open our case”.

53. From the above passages from the record of 15/02/21 which resulted in the ruling of 16/02/21, the question thot begs to be answered is why petitioner’s Counsel, who consistently maintained thot the application he moved on 15/02/21 was only for the Court to consider the re-opening of his case and not more, would turn around to completely disregard the Court's extensive discussion on why it had refused to re-open petitioner’s case as found at pages 6 to 12 of the ruling and rather hinge his review application on the incidental comment by the Court on who an adverse witness is, to seek a review of the ruling. Pefitioner's Counsel by his submissions above is deemed to know that the thrust of the decision of the Court on 15/02/21, relates to the application to re-open case and it is only in relation to thot, which an error if at all, may warrant a review if a miscarriage of justice occurred.

54. The attempt by petitioner to make a distinction between the Chairperson and 1 respondent is impractical. Indeed, petitioner’s Counsel’s response to the Submissions of respondents on 15/02/21, he stated

at page 59 as follows:

"M/ kOFC/S. /TlGly I "^*!”!^ YOur leave just make one short point in response as a matter of low. I just wish to point out that we could not at the time we c/osed our case os a matter of law, we cou/d not have sobpoenaed Mrs. Jean Menso because she had a Witness Statement thotshe had filed in this court on beha/I of the 1 st

Respondent."

55. Suffice it to soy thot If petitioner’s Counsel, recognizes thot he could not have subpoenoed the Chair of EC, Mrs. Jean Mensa when she filed a witness statement because she did so on behalf of 1 st respondent fhen petitioner’s Counsel con still not subpoena her since even with the election not to adduce evidence, she still remains the representative of 1 s respondent on record and as such remains a party to this petition. We therefore invite Your Lordships to dismiss Grounds (b) and (c) as devoid of merit.

Ground (d) The ruling of the court was per incuriom of Order 38 r

10 of CI 47 and section 58 of the Cou¥s Act 1993 [Act 459)

56. Having regard to Counsel for petitioner’s request for submissions on Order 38 10 of C.1.47 to be deferred as reproduced in paragraph 48 of submissions above, it is quite disingenuous thot Counsel for petitioner now asserts that the Court did not advert its mind to that provision. Needless to say, Order 38 rule 0 ofC.1.47 would only deserve the Court’s ottention if petitioner had

satisfied the conditions precedent for the grant of leave to re-open his case.

s7. My Lords, Counsel for petitioner's ossertion that the Court did not advert its mind to Order 38 r 10 of CI 47 is not

borne out by the record. On the contrary, the Court, in its

Ruling dated 16/2/2021, actually took cognisönce of Order JB r

10 of Cf 47 before proceeding in the latter port of ils ruling to

dismiss petitioner’s application on the basis that he had failed

to satisfy the requirements of re-opening his case. The Court stoted at pages

4 of its ruling as follows:

"There is no dou6t that the ïnstanf motion was triggered öy the ruling of this Couü in which the Court endorsed the Respondenfs’ prayer not lo vo/cnteer any evidence whatsoever. 7he petitioner

dick nof hide this feeling ond expressed it luci«!Y under paragraphs 15, l6 and 17 of his affidavit in suppoû of the app/icafion as lo//oWs:

“f5. As o resoff of fhe ruling of the Court of Thuadoy. I T” Feöruary 202 f, if has öecome

necessary, / am advised ond ver'*Y be/ieve, thof

my covnse/ vee fhe subpoeno powers of fhe Co«rf under Order 18 rv/e Ï0 of C.t. 47 fo compef fhe attendance ol fhe Choirperson of Ïsf üespondenf fo oppeor ond fesfify in courf.”

58. What petitioner fails to understand is that the Court’s refusal to accede to his invitation to grant leave for

petitioner’s case to be re-opened for purposes of serving o

subpoena on Choirper5on of T respondent does not render the

ruling under review per incuriom since the Court’s decision

was consistent with its earlier ruling concerning 1 st and 2nd

respondents’ election not to adduce evidence. Petitioner has

rather been repetitive and has resorted to what may be

described as ‘legal submissions propaganda’ particularly

when the same argument rejected many times by the court is

what he has been canvassing all this while. It is instructive to

note at page 4 of the ruling under review the Court stated:

“According to petitioner, he is praying this Court to

re- open his case, which this Cocrt has declared c/osed on his own instructions, to enaD/e him

soDpoeno the Chairpeoon of the 1st Respondent to

testify as a hostile or adverse witness. The petitioner

advanced a/mosf fhe same arguments he made before

the Courf during his o6jection to the closure of Respondents’ case.“

59. Unsurpri5ingly, the Court was not persuaded at all to change its position on the issue of 1 s’ r espon ds.F\I ’ s 0. IO.Ction

F\ Ot to addUce evidence as well as the unequivocal decision

made voluntarily by petitioner to close his case. At page 9 of

the Ruling dated 16/2/2021 the Court stated thaf:

“In all the examples cited, the defendants did testify and

the plaintiffs found the need to ca// for fresh or further

34

evidence to buttress their case, though the courts, in almost all the instonces, refused tñe applications. In fhe insfonf case however. fhe responcfenfs decided nof fo fesfify af all so no sifuafion arises for fhere fo be fhe need fOf the pefifioner lo ca// ft rfher or fresh evîdence lo c/oËÇ

anything, öe if a dovöf or a poinf roisecf in fhe fesfimony of fhe Aespondenfs. since fhere was none."

60. My Lords, it is our contention that ground (d) is incompetent and fundamentally misconceived. Learned counsel for petitioner devoted paragraphs 21 and 22 of his statement of case to argue this ground and ended up exposing grave confusion that has been running as a thread through the numerous and applications that he has been filing since the inception of thePetition, which have been found to be unmeritorious. Due to the manifest confusion, it is imperative to explain the meaning and proper context for the doctrine of per incuriam before demonstrating how inappropriate it is for petitioner to impugn the ruling of 16/02/21 as having been rendered per incuriam.

61. “Per incuriom" as a concept was considered by C.C.K. Allen in Low in the Making, and at page 246, he explains

“incuriam" as meaning literally, “carelessness". A decision

which is reached per incuriom is one reached by carelessness

or mistake, and can be avoided. In Moret/e lfd V. wokeling

(l955J 2 QB 379 the English Court of Appeal speaking through

Lord Evershed MR stated that,

“As o genera/ ru/e, the on/y coses in which decisions shoc/Ö öe held to have been given per incuriom are those decisions given in ignorance or forgetfo/ness of some inconsistent stototory provision or of some authorify Dinding on the coorf concerned: so that in such cases some part of the decision or

some step in the reosoning on which it is öased is found, on that account, to öe demonstraD/y wrong.”

62. The Supreme Court speaking through Edward Akufo-Addo,

JSC adopted the dictum of Lord Evershed MR in Nye r NYe

[1964] GLR 95 at 97. In assessing whether the Court’s ruling

was in fact per incuriam Order 38 rule 10 of C.1.47, it is

important to consider the provision. For convenience of

reference Order 38 r 10 of CI 47 is reproduced below:

“Form and issve of wËf of svbpoena10. (1) A writ of subpoeno sha// be as in Form 14 in the

Schedule.

{2} the issue of a writ of SUbpoeno takes place upon

its Deing sea/ed b Y on offices of the registry of the

Court out of which it is issued.

/3} Before a writ of subpoena is issued a request as

in Form 15 in the Schedule for the issue of the writ sboll De filed in tbe registry ont of which the writ is to

issue. and fhe reqvest shal/ contain the name ond

address of the parfy issuing the writ, if fhe parfy

issuing is octing in person, or the name or firm and

bosïness adc/ress of thot parfy’s !«• Yer ond also (if

the lawyer is the agent of

onotherJ the name or firm once business ocJdress of thel*uwyer's principal.”

63. My Lords, there is nothing in the foregoing provision of Order 38 r 10 which provides basis for petitioner’s contention that your ruling of 16/2/2021 was per incuriam. This rule does not contain any indication that a porty who has effectively clo5ed his case but subsequently intends to subpoena a witness is automatically entitled to be gronted leave to re-open his case. It is strange for petitioner to contend that Court’s refusal to permit re-opening of petitioner's case is per incuriom of Order 38 r 10 of C147. This is grossly erroneous, and certainly another demonstration of intellectual lack of candour.

64. The Court had clearly concluded thot ] st and 2nd respondents’ election not to adduce evidence, together with petitioner’s closure of case and petitioner’s failure to demonstrate evidence that may be elicited from the chairperson of 1 st respondent fo be subpoenaed made it inappropriate for the Court to exercise itsdiscretion to permit re-opening of petitioner’s case.

65. Petitioner’s insistence on failure of Court to cite and follow Order 38 r 10 is not only misleading but a desperate

attempt to put something on nothing as Lord Denning famously

stated in Benjamin 1eonord MocFoy v United Africa Company

Limited (West AfricaJ [1961] 3 All ER 1169 “You connof put

something on nothing ancf expect if fo slay fhere. /f wi/I

co/lapse.”

37 I

** 66. In the same vein, petitioner’s contention that your Lordships’ ruling of 16/2/2021 is per incuriam section 58 of Act 459 is palpobly misconceived and demonstrates lock of proper appreciation of circumstances under which the court or anyparty may summon a witness. We procced to quote the said provision for analysis:

"58. In any proceedings, and at any stoge of the proceedings, a courf either on its own motion or on the

application of any party, may summon any person to otfend to give evidence, or to produce any document in his possession or excerpts from it subjecf fo any

enocfmenf or rv/e of law."

67.The power of the court suo motu or at instance of party to compel witness to testify is "subject to any enactment or ru/e of law". In our respectful submission, the rules of court including Order 38 r 3E of Cl 47 as amended by CI 87 which the Court has applied in dismissing petitioner’s earlier objection to respondents’ election not to adduce evidence is one of the enoctments cognizable under section 58 of Act 459 as limiting the power of the court to grant leave for a witness to be summoned. Moreover, coselaw is another example of rules of law contemplated by section 58 of Act 459 thot may qualify the power of court to summon a witness. We respectfully submit that this Court in its ruling delivered on 11/2/2021 (specifically page 5)

38

settled the question of whether 1st respondent or its choirperson can be compelled to testify after electing not to

adduce evidence. At page 5 of the ruling doted 11/2/2021 the

Court held:“In view of the c/ear provisions of the ro/es referred to

above. we do not agree with the submission of

Counse/ for the petitioner thot when, as in this case,

an answer to the petition was filed at the pleadings

stoge and Witness statements fi/ed, the

Respondents had elected to adduce

evidence ot the trfa/. We are olso of the opinion thot the filing of affidavit in inter/ocutory opp/ications with

deposition fhat the deponent w’ou/d be ovoi/ab/e for

cross-examination éoes not make the deponent

compe//aD/e to adduce evidence at the tria/.

Coonse/ for the petitioner has argued that

Decavse the I Respondent performs a vey

important Constitutiono/ duty, when it is sued

in an action sock as in this case different ru/es shou/d

be opp/ied. However, Counsel fai/ed to refer us to any

provision of the 1992 Constitution or any statute which reqvired that the I" Respondent, being a

Constitutional body should be subjected to different

rules of the Court and our own industry did not unearth

any such outhorify. The law is that parfies Defore UIS

COUFt /TIUSt 0/WOOS COW[D!Y WiU the known ru/es of

procecfure and settled practice regulating the

jurisdiction of this courf regard/ess of the nature of

the cose. See Oppong v. Attorney-Genera/ & others1999-

2000) 2 GLR 402. 7he est Respondent is not svloject to

anz different ro/es of procedvre because it is o Constitutions/ Dody.”

68. The Court in its ruling under review (i.e., ruling dated 16/2/2021) did not have to follow Order 38 r 10 of CI 47 and section 58 of the Courts Act 1993 (Act 459) as same were inapplicable. Consequently, petitioner’s allegation that the ruling was per incuriom is untenable. Again, we submit that since the ruling was not per incuriam Order 38 r 10 of CI 47 and section 58 of the Courts Act 1993 (Act 459) no miscarriage of justice has been occasioned and this ground (d) of instant review must be dismissed.

Ground (e) the ruling of Court was per incuriom Article 19 (13) of

the Constitution has occasioned a grave miscaniage of justice to

the Applicant.

69.This ground is incompetent to the extent that Counsel for petitioner is alleging violation of petitioner’s right to fair trial merely because the Court acfed in accordance with settled low by not compelling 1 st & 2n^ respondents to enter the witness box to adduce evidence contrary to their unmistakable and unequivocal election not to adduce evidence. In our respectful submission, this did not occasion any miscarriage of justice to petitioner as there is no cross-petition and petitioner bears the burden of proof on all his allegations.

70. Furthermore, the decision in Tsatsu Tsikata v The Republic [2011] SCGLR 1 urged on this Court by petitioner’s Counsel is not relevant to the determinotion of this review application becausecounsel for petitioner cited it in support of his speculative argument that ] st respondent’s chair can assert immunity whenshe enters the witness box. Truly, the 7sikofa case is completely distinguishable and does not provide any assistance to the Court as far as this review application is concerned. Apart from the fact that the Tsikata cose was a criminal matter, the accused had also not closed his case. In the instant Petition all parties have closed their respective case5. Having regard to the Court’srulings of 11/2/2021 and 16/02/2\, the question of 1 strespondent’s chairperson pleading immunity when so summoned to testify does not arise and the submission by petitioner in that respect does not conduce to doing substantial justice but an exercise in futility.

Ground f) the ruling of the court was in breach of article 296

of the Constitution and has occosloned a grove miscarriage

of justice.

71. My Lords, this ground is not only unfounded but a rehash of unmeritorious submissions canvassed before the ruling of 16/02/21. Petitioner's Counsel asserted in paragraphs 42 and 43 thot the Court failed

to advert its mind to relevant statutes in theexercise of its discretionary powers in its ruling of 16/02/21. According to Counsel, the fact that both t st respondent and its

41

chairperson exercise powers conferred by the Constitution and statute surely justifies compelling the chairperson to testify as port of the Court’s judicial oversight over their actions. Counsel alluded to serious circumstances such as evidence of irregularities including changing figures [the particulars and effect of which were conspicuously missing from his statement of case] and contended thot the Court acted unreasonably in failing to exercise its discretion to compel 1" respondent and its chairperson to testify in order to enhance transparency and credibility in their roles, which is essential to democracy.

72. Like a broken record, Counsel for petitioner repeated his assertion that “at no earlier stage could petitioner have caused a subpoena to be served on 1 respondent’s chairperson than at the lime after petitioner had closed his case, since she hod earlier filed a witness statement which indicated she was going to testify on behalf of 1 s Fe Sp O Fl d f2 F lt . H£ ' t he F\

argU O.s that t he preferoble approach that the Cou# should have adopted to advance fhe interests of justice and to ensure a fair trial would have been to grant petitioner leave to re-open his case.

73. It is evident from our submissions on petitioner’s grounds (a) to (e) and the Court’s rulings of 11/02/21 and l 6/02/21 that all of Counsel for petitioner’s arguments are based on a flowed logic that requires the Court to

ignore the statutes, rules of procedure and coselaw that ensure that parties are afforded a fair hearing. This Court has pronounced that the right to fair hearing is one

42

that all parties to a di5pute hove. It is also significant that Counsel for petitioner woefully failed to indicate the relevant statutes that the Court failed fo consider in exercising its discretion to dismiss the application to re-open petitioner's cose.

74. Suffice it to say thot the applicant has no grounds to graduate to allege breach of discretionary duty in relation to compelling a party or its witness to testify when the conditions precedent for re-opening his case in the first place have not been met.

75. The right of a party to proceedings to testify also includes the right of a party to remain silent, i.e., the party’s right not to testify. This, we consider to be a fundamental human right of parties to proceedings in Court which must also be protected by the Court when warranted by low as in this case. Counsel’s insistence thathe could not have anticipated 1st respondent’s election not toadduce evidence notwithstanding the provisions in Order 38 rule 3E(5) betrays his lock of appreciation of that provision of law which caused him to be shortsighted in planning the presentation of petitioner's evidence. He cannot blame the Court for his lapses and thereby elevate them to a failure by the Court properly to exercise its discretionary powers.

76.While the decision of this Court in TDC & Musah v. Akta Balfour is unassailable, petitioner has woefully

failed to demonstrate how thl5 COurt s ruling of 16/02/21 on the application by petitioner to re-open his case is unreasonable or irrational.

43

n O

’* 77. We submit that the duty to be fair in the exercise of discrefionary power under article 296 does not trump the right of a party to a petition not to odduce evidence, a right equally protected by common law and fortified by the article T 1 of the Constitution, 1992. It is crucially important to emphasize thot the adversarial character of litigation including Presidential Election petition has not been abolished by the Constitution 1992. Thus, the committed no error with respect to its refusal to exercise its discretion to allow petitioner re-open hi5 case based on the sound reasoning in the Court’s ruling of 16/02/21 which have been reproduced in our submissions on ground (a) above. The reasons advanced for dismissing petitioner’s application to re- open his cose still hold and, in the circumstances, this review application must fail.

78. This Honourable Court judicially exercised its discretion after taking into consideration the affidavits filed and submissions of Counsel for all the parties. Petitioner’s submissions on ground (f) ore a rehash of the lengthy and laborious submissions made viva voce which did not find favour with the Court and must not be countenanced.

CONCLUSION79.My lords, Counsel for petitioner has mounted this

review application deploying his legal armoury on very

questionable grounds. In some cases, for instance, in respect of the relevance

44 |

and import of section 72 (1), he disingenuously excludes the controlling clause of the sub-section, namely “of any time durinQ fhe presentafion of evidence by the partY CCL/ling the witness” for a rendition that omits “of evidence” in order improper/Y *O

support the argument thot the Court comitted a fundamentalerror in dismissing the petitioner‘s application to re-open his cose. In other cases, Counsel doggedly holds onto earlier positions he held which hove since been definitively pronounced upon by the Court as erroneous, as if no such determination had been made by this Honourable Court, A typical example is Counsel’s assertions, with a flair of arrogance that by the text of Order 38 Rule 3E (T ) and (5), a party elects to adduce evidence, as soon as he files his or her witness statement, when the text in fact allows of only one interpretation: a porty elects to rely on his witness statement, when he enters the witness box and adopts his statement on oath. This occurs long after he has filed his witness statement and served same on the other parties. On the other hand, Counsel, when it suits him, has stoutly defended the position that exhiblt5 Attached to the witness statements of respondents cannot be tendered through petitioner’s witnesses as they are not in evidence. Then, again, Counsel has refused to accept the limitation of the words “Except as otherwise provided by law, including a rule of equity” in the text of section 26 of the Evidence Act (NRCD 323). On that basis, he proffers his outlandish submission that to

argue that Order 38 Rule 3 E places such limitation on the general text of section 26 of the Evidence

Act (NRCD 323) is to permit a subsidiary to override an Act of

T parliament.

80. It is our respectful submission that these and similar arguments of Counsel for petitioner make it difficult not to conclude that the application has noJ been brought in good faith and is not an abuse of process. From the ratio of the decided cases, it is immaterial if petitioner considers the decision of the ordinary Court to be wrong in law and holds any other reason apart from what is stipulated in Rule 54 of the Supreme Court Rules, 1996 (C.I. 16). Based on the strict conditions set out in Rule 54 of C. 1.16 and the plethora of authorities that elucidate that rule, we submit that petitioner has not satisfied the Court that he ought to be gronted a review of the ruling delivered on 11/02/21. We therefore pray that the instant application be dismissed with punitive costs.

DATED AT KWAKWADUAM CHAMBERS, ACCRA THIS 21S° DAY

OF FEBRUARY, 2Ag¿

”"r or 2nd RespondentAkufo-Addo, Prempeh & Co.

Solicitors Licence No. eGAR 01391/2 I

The Registrar, Supreme Court, Accra.

AND TO THE ABOVE-NAMED:

1. PETITIONER OR HIS LAWYER, TONY LITHUR, ESQ, LITHUR IIREW &CO, KANDA, ACCRA

2. 1*° RESPONDENT OR ITS LAWYER, JUSTIN AMENUVOR, ESQ, AMENUVOR & ASSOCIATES, NII ODARTEY OSRO STREET, OSU.

LIST OF AUTHORITIES

1. Arfic/e 113 offhe Consfifvfion, t9922. Avfe 54 offhe Svpreme Co«rf Rules. 7996 {C.f. t6ÿ3. Avfe 47ot The Code of Ethics al fhe Ghana Bar Association4.Secfion 72{Ij of fhe Evidence Acf f97S (NRCD J2J5. Section 26 ol fhe évidence ActI975 {NRCD 3336. Order 38 rule 3E(S) of C.I. 47 os omended by Cl 877.Order 18 Rule 10 of C.1.478. Section 58 of fhe Cou7s Act 1991 (Act 459)

9.Mechanicof floyd v Narfey {7987- t988J 2 GLR

598 0 664 f0. Qvarfey v Cenfrof Services Co. 1fd. (i996-97J SCGLä 398

AFonie 'r Quorcoo (i992j 2 G1P S67 of S97-592f2. 7omokfoe v 7he RepvDfic /20T fJ 7 SCGLR 29

7 3. Internal devenue Service v Cñopel Hil/ £fd JOO I PIJ SCGtIt 827nf 850

›4. Arfhur {No.2} v Aühur (No 2} {20iJ-20f4J 7SCG1ü 56fS. Ponôef vs. Worsfey {f967J 3 WLI F66616. Asare v Â0orney-Genefo/Writ No JE/75/2075 dofed Ï4

Ocfober 2015

17. £epubIic v Ie0ehJ2003-1004J I SCGLit 140

18. In 7he MoKer of: BimDiffo Na Safifu Datum {Su6sfifufed âySangnarigu Lana Sñani Azumañ) Juo Regenf Osman

48 I ›’

Mohomo VRS Andani Dosono (Substituted 8y Nyelinborgu Noo ¥’akuóo Andani Oosono) Azumoh Nofongmo Chieftoincy APP. NO.J2/01/2017: 23RD MAY 2018

f 9. Sefo Asiedu (No.JJ v. Bank al Ghana (No.2j Conso/idofed}{20 iJ-2074J 7 5CG1R 530

20. More//e Ltd V. Wake/ing {f955J 2 Qè 379