Election Petition: Mahama’s eight unanimous defeats at the Supreme Court

John Dramani Mahama, the Petitioner in the ongoing Election Petition has lost all Rulings by the seven justices, as well as nine justices on review sometimes, unanimously on applications that he prayed the court for.

The respective counsel for the 1st and 2nd Respondents opposed the Petitioner’s applications anytime it was made known to the court.

According to the Respondents, the Petition filed before the Supreme Court by the Petitioner lacks merit, therefore, they did not allow their witnesses to testify.

The seven Justices hearing the Petition are Chief Justice Kwasi Anin Yeboah, Justices Yaw Appau, Marful Sau, Nene Amegatcher, Prof. Kotey, Mariama Owusu, and Gertrude Torkonoo.

On occasions when there were review applications, the following Justices joined the regular seven justices to rule on the application. The Justices are Amadu Tanko (all three occasions) and Prof Henrietta Mensa Bonsu (twice) and Avril-Lovelace Johnson (once).

Supreme Court rulings:

The applications filed by the Petitioner which were dismissed are:

1. Inspection of documents of the EC

An application by lawyers for John Mahama to inspect the documents of the Electoral Commission was dismissed by the court on February 3, 2021.

In his reading of the verdict, Chief Justice Kwasi Anin-Yeboah stated that “the proceedings so far show that the petitioner has copies of the documents which were the subject of the instant application.

"We are of the view that no proper case has been laid before us to warrant the exercise of our discretion in favour of the applicant," the CJ declared.

“Order 29 of C.I. 47 which is the basis of this application should not be read in isolation, it should be read in conjunction with Rule 11 of the said Order.”

He added that Section 166 of the Evidence Act 323 of 1975 “makes it clear that a duplicate of a document is admissible to the same extent as the original unless a genuine question is raised as to the authenticity of the duplicate. No issue has been raised against the authenticity of the document in possession of the applicant.”

2. Interrogatories application for the EC to answer 12 questions

Another application by John Mahama which was rejected by the court was seeking leave of the court to ask the chairperson of the EC some twelve questions.

The application was filed on Monday, 18 January 2021 by the counsel for John Mahama.

Moving the motion on Tuesday (date), Mr Tsikata argued that the objective of the application was to “narrow down” the issues for the trial. The court, however, rejected the request on grounds that the lawyers failed to prove the relevance of the interrogation to the substantive case.

“Interrogatories under Common Law is discretionary, it should be granted or refused when all the circumstances are taken into consideration. It should be noted that the questions seek to elicit answers to the issues raised by and the reliefs sought in the petition. Interrogatories must be relevant to the issues and relate to the matter in controversy between the parties, in this case, the petitioner and the 1st Respondent.

“The Court is of the opinion that the crucial issue of relevancy has not been established in this application. Reference was made to the 2013 Election Petition titled: NANA ADDO DANKWA AKUFO-ADDO & 2 ORS VRS JOHN DRAMANI MAHAMA & 2 ORS [2013] SCGLR 50, in which an application to serve interrogatories was granted by this 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 Petitions,” parts of the court’s ruling read.



3. Mahama’s motion for EC Chair to admit errors

Having seen his application for interrogatories rejected, John Dramani Mahama filed a motion praying the court to have the chairperson of the Electoral Commission admits to some errors she made in the declaration of the result.

The motion was opposed by the lawyers of the EC and Nana Akufo-Addo who accused John Mahama of trying to use dubious means to obtain information from the EC.

Akoto Ampaw, the lead counsel for Akufo-Addo described it as a fishing expedition.

The motion was quashed by the judges.

4. Review of Interrogatories application

The Supreme Court dismissed former President John Dramani Mahama's application for a review of its decision that disallowed him from asking the Electoral Commission (EC) 12 questions.

A review panel of the court in its ruling Thursday, January 28, said that the applicant had not met the threshold to apply for review and was subsequently dismissed.

Two additional justices, Justice Imoro Tanko and Justice Henrietta Mensah Bonsu were added to the original seven-member panel for the review application.



5. Application for Jean Mensa to face cross-examination

John Mahama chalked his fifth defeat in the petition when the court upheld a request by the first respondent to not have its chairperson, Jean Mensa mount the witness box.

Lawyer Justin Amenuvor had prayed the court that the petitioner had failed to adduce enough evidence to compel him to bring forth his client as a witness.

The court upheld the decision, stating that "We are reminded to state that our jurisdiction invoked in this election petition is limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under article 67 clause 1. Simply put, we are not convinced and will not yield to the invitation being extended to us by the counsel for the petitioner to order the respondents to enter the witness box in order to be cross-examined.

"Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce testimonies in this petition,’ the Chief Justice said.



6. Application to reopen case

The Supreme Court on Tuesday, February 16, 2021, dismissed an application by the petitioner to allow him to reopen his case.

Lead counsel for John Mahama, Tsatsu Tsikata had argued that a rejection of their motion would be a travesty of justice.

But the court in a ruling read as usual by Chief Justice Anin Yeboah said Mahama cannot hide under the pretext of reopening his case to subpoena Jean Mensa.

“A witness who has not yet entered the witness box to testify cannot, therefore, be called an adverse or hostile witness under any circumstance. The petitioner has not demonstrated to us in any way that the decision of the respondents not to testify which was upheld by this court in its ruling on February 11, 2021, has occasioned any miscarriage of justice.”

“The rules permit a party to call or not to call a witness who has filed a witness statement to testify, as the mere filing of a witness statement does not constitute an election to testify as we rightly held in our ruling on February 11, 2021. Again, the petitioner did not decide to close his case after the testimony of his third witness just because the chairperson of the first respondent has filed her witness statement. This is because, in law, a plaintiff or petitioner does not require evidence from his or her adversary in a system like ours to prove his or her case… The plaintiff or the petitioner succeeds on the strengths of his or her own case and not the weakness of his or her adversaries’ case,” he added.



7. Jean Mensa cannot be compelled to testify

A nine-member review panel of the Supreme Court unanimously affirmed the seven-member panel's decision that the Electoral Commission cannot be compelled to call its Chairperson Jean Mensa to testify.

The original panel ruled that the EC boss's filing of a witness statement does not mean she has to testify.

The Chief Justice in reading the decision of the court explained that no provision in the constitution or statute has been pointed out to show that the EC Chairperson can be subjected to different rules contrary to established rules of procedure and settled practice.

8. Review application to reopen case of Petitioner

The Supreme Court for the third time unanimously dismissed a review application filed by the petitioner in the on-going election petition.

This particular review was for the petitioner John Dramani Mahama to reopen his case and hopefully subpoena the EC boss Jean Mensa in the ongoing election petition.

The nine-member panel presided over by Chief Justice Anin Yeboah said that there was no legal basis and merit for the review application to be granted.

The panel further stated that a review is not a platform for an emotional reaction to an unfavourable judgement.

“If he had won, the court would be right but if he had lost, the court would be wrong in its decision,” the Chief Justice quoted from a decided case.

The court also said, “The court’s rulings are binding on all other courts so we must ensure that we are not opening Pandora’s box that can become a stepping stone for abuse of court processes at other levels of the judicial system.

The interest of justice is not only the interest of one party in the dispute but must necessarily be an outcome arrived at through the proper balance of what the law has prescribed.”

The court also held that the deposition filed was done by the Electoral Commission, who is a party in the case and not the EC Chairperson Jean Mensa in her capacity, so the petitioner cannot compel the EC boss to testify.

The panel said that although the petitioner continues to insist on calling the EC boss as an adverse witness, the petitioner’s team still fails to tell the court what new evidence they want to bring to advance their case.