FULL TEXT: Supreme Court's judgement on dismissal of Mahama’s application to re-open case

The seven-member panel of the Supreme Court hearing the ongoing election petition on Tuesday, February 16, 2021, ruled against an application by the petitioner, John Dramani Mahama to reopen his case.

The application by the lawyers of the petitioner was to essentially enable them file a subpoena against the Chairperson of the Electoral Commission of Ghana, Madam Jean Mensa.

Read the court's full ruling below:

When the Petitioner, in this case, closed his case with the testimony of his third and last witness Mr. Robert Joseph Mettle-Nunoo on the 8th of February 2021, the Court, as our procedure rules on trials provide, called on the 1st Respondent to open its defence by the calling of its witness, whose witness statement had already been filed on the orders of the Court.

This witness happened to be the Chairperson of the 1st Respondent Mrs. Jean Adukwei Mensa. Counsel for the 1st Respondent told the Court that he had weighed or scrutinized the case of the Petitioner as presented by his three witnesses and in his view, the Petitioner had not provided any substantial evidence in proof of his case, for which the 1st Respondent had to mount the witness box to testify in answer.

The 1st Respondent, therefore, prayed the Court to determine the petition on the oral testimonies and data presented by the Petitioner through his witnesses and decide the main issue at stake, which is; whether or not none of the twelve (12) Presidential candidates who contested the 7th December 2020 Presidential elections did obtain more than 50% of the valid votes cast in the said elections.

The 2nd Respondent, who was declared as winner of the elections by the 1st Respondent, which declaration ignited the filing of the instant petition, associated himself with the 1st Respondent on its prayer and told the Court he also did not desire to give any testimony through his attorney as contemplated.

According to him, the Petitioner did not discharge the burden imposed on him by law to produce sufficient evidence to buttress his case, so there was no need for him to say anything in explanation. He supported 1st Respondent’s prayer that the Court should resolve the petition on Petitioner’s evidence only since the burden was on him to prove the reliefs he is seeking.

This position of the Respondents to close their case without adducing any evidence at all, which the law permits them to do, did not go down well with the Petitioner. Counsel for the Petitioner resisted this position of the respondents and prayed the Court to compel the 1st Respondent’s Chairperson specifically, to testify as 1st Respondent’s witness, since she had filed a witness statement to that effect and therefore had elected to testify. As for the 2nd Respondent, Petitioner said he was not bothered about his refusal to testify.

The Court adjourned for the parties to submit legal arguments for its determination on the matter, which they did. On the 11th of February, 2021, the Court dismissed the Petitioner’s objection to the Respondent’s decision not to testify and gave reasons in a written ruling delivered for that purpose.

One of the reasons given by the Court in dismissing the objection of the Petitioner was that this Court could not compel the 1st Respondent to call its Chairperson as its witness as Rule 3E (5) of Order 38 of the High Court Civil Procedure Rules, (C.I. 47) as amended by (C.I. 87) permits them to do so.

Immediately after the Court’s ruling on the issue, the Petitioner filed the instant application. It was filed on the same 11th February 2021 and almost around the same time that this Court delivered its ruling dismissing Petitioner’s objection to the closure of respondent’s case.

There is no doubt that the instant motion was triggered by the ruling of this Court in which the Court endorsed the Respondents’ prayer not to volunteer any evidence whatsoever. The Petitioner did not hide this feeling and expressed it lucidly under paragraphs 15, 16 and 17 of his affidavit in support of the application as follows:

“15. As a result of the ruling of the Court of Thursday, 11th February 2021, it has become necessary, I am advised and verily believe, that my counsel use the subpoena powers of the Court under Order 38 rule 10 of C.I. 47 to compel the attendance of the Chairperson of 1st Respondent to appear and testify in court.

16. At the time my counsel closed my case, the representation that had been made by each Respondent to the Court, and specifically to me, was that witnesses who had filed witness statements were going to testify. It, therefore, came as a surprise that both Counsel for Respondents announced on Monday, 8th February 2021 that this was no longer the case.

17. My Counsel is seeking leave of the Court to re-open my case to enable the subpoena referred to above to be served on Mrs. Jean Adukwei Mensa, so she can appear before the Court to testify.”

The application is headed; “MOTION ON NOTICE FOR LEAVE TO RE-OPEN CASE OF PETITIONER TO ENABLE CHAIRPERSON OF ELECTORAL COMMISSION TO TESTIFY”.

18. From all indications, the target of the Petitioner in this application is not the 2nd Respondent who has also filed a witness statement through an attorney, but the Chairperson of the 1st Respondent. The application, which is not known under our rules of procedure, has been brought under our inherent jurisdiction, as contended by counsel for the Petitioner. According to Petitioner, he is praying this Court to re-open his case, which this Court has declared closed on his own instructions, to enable him subpoena the Chairperson of the 1st Respondent to testify as a hostile or adverse witness.

The Petitioner advanced almost the same arguments he made before the Court during his objection to the closure of Respondents’ case. The Respondents have strongly opposed the application and have cited both local and foreign judicial decisions to support their arguments.

Learned Counsel for the Petitioner urged on the Court that he wanted the Chairperson of the 1st Respondent to testify as an adverse witness of the Petitioner. Counsel also made references to paragraphs 31, 32 and 33 of the affidavit in support of the application as to why he wanted the Chairperson of the 1st Respondent to testify.

The other point Petitioner’s lawyer kept urging on the Court was that the Chairperson performs an important constitutional duty and must be made to account to the people for her stewardship and to vindicate herself. The question is; how can the Chairperson of the 1st Respondent vindicate herself when she is not on trial before us? She has neither been personally sued nor arraigned before this Court on any complaint or accusation (civil or criminal) for which she has to explain or account to anybody for anything she has done or not done.

It is the Institution, the Electoral Commission, which she heads, that has been accused by Petitioner of not having performed its constitutional duty according to law. Does the Petitioner need the personal testimony of the Chairperson of the Institution sued before he could prove or establish the alleged non-performance of this constitutional duty by the 1st Respondent? We do not think so.

What indeed, baffles this Court is the intimation by Counsel for the Petitioner that he intends to call the Chairperson of the 1st Respondent as an adverse witness. Black’s Law Dictionary, Ninth Edition, edited by Bryan A. Garner, defined a ‘hostile witness’ as; ‘A witness who is biased against the examining party, who is unwilling to testify or who is identified with an adverse party….also termed, ‘adverse witness’. A hostile or adverse witness, as the definition shows and as we understand the term in practice, is, therefore, a witness who has been called by a party to testify in support of his or her case and who, whilst in the witness box under examination-in-chief, becomes hostile and gives evidence contrary to the party who called him and in support of the opponent’s case. The party, in such circumstances, can apply to the Court to treat such a witness who is already in the witness box, as a hostile or adverse witness. This would enable the party calling him to cross-examine him as if he is a witness of his opponent to solicit the truth in respect of the issue at stake. A witness who has not yet entered the witness box to testify cannot, therefore, be called an adverse or hostile witness under any circumstances.

This Court exercises its inherent jurisdiction, inter alia, to correct errors in procedure and to ensure that no miscarriage of justice is occasioned during a trial. Inherent jurisdiction, which is also referred to as the ‘inherent powers doctrine’, is the principle that allows courts to deal with diverse matters over which they have intrinsic authority. 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 of 11th February 2021, has occasioned him any miscarriage of justice. That decision is backed by law, particularly our rules of procedure, case law and settled practice. We demonstrated this in our ruling of 11th February 2021 when we rejected Petitioner’s objection to the Respondents’ decision not to testify.

At the time this application was filed, Petitioner had expressly closed 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 the Court. He is not entitled to his prayer as of right. It is subject to our discretion and before we can exercise our discretion in his favour, he must satisfy certain basic conditions as laid down by case law.

The general expectation imposed on all litigating parties is to place the whole of their case before the Court at the time of the hearing. The process of invoking the inherent jurisdiction of the Court at the close of the cases of the parties to re-open a closed-case in order to adduce fresh or further evidence is thus, an extraordinary step, which the importance of finality of litigation frowns upon, save the presence of exceptional circumstances. In the Canadian case of OAKLEY v ROYAL BANK OF CANADA, 2013 ONSC 145 [2013] OJ No. 109 (SC), Andre, J held:

“The Court requires the parties to litigation to bring forward their whole case… In both civil and criminal matters, the Crown or plaintiff must produce and enter in its own case all clearly relevant evidence it has…

On the other hand, a trial judge has the discretion to permit a plaintiff to re-open its case. This discretion however, must be exercised judicially. It must involve a scrupulous balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice”.

Though this Canadian case is not binding on us, it has a persuasive effect as it espouses the principles governing re-opening of closed cases for the purposes of adducing fresh or further evidence. Back at home, our own Benin, JSC (then Benin, J) gave a similar holding in the case of KOMBAT v LAMBIM [1989-90] I GLR 324 at p. 326 as follows: “The general rule of evidence was that after a prisoner’s case was closed, a judge should only call a fresh witness when a new matter had arisen ex improviso which could not have been foreseen. Such witness could in a civil case only be called with the consent of all the parties. And although the Evidence Decree, 1975 (NRCD 323), permitted a court to call or re-call witnesses, it was subject to the general rule”.

Though the above decision made reference to the calling or re-call of a witness by the trial court, the same principle applies where it is any of the parties who applies for such a call or re-call after the close of their cases. One of the leading cases on applications to re-open cases is the Canadian case of 671122 ONTARIO LTD. v SAGAZ INDUSTRIES CANADA INC., 2001 SCC 59, 2 SCR 983 (SCC), which was referred to us by counsel for the 2nd Respondent. In that case, the court approved of a two-stage test, which was first articulated in SCOTT v COOK [1970] OJ No. 1487, 2 OR 769 (HCJ). That test, which is intended to assist the trial judge in exercising his or her discretion to re-open a trial, requires the applicant to:

19. Show that the evidence he or she seeks to adduce is such that, if it had been presented at trial, it would probably have changed the result, and

20. Prove that such evidence could not have been obtained by reasonable diligence before the trial.”



This same test is what a party, who intends to lead fresh or further evidence in a trial or on appeal, must satisfy before a court could grant such a request. In the case of POKU v POKU [2007-2008] SCGLR 996 at p. 998, which was cited by counsel for the 2nd Respondent, this Court, per Wood, C.J. expressed the principle succinctly in the following words:

“The rule is intended to assist an applicant who has made a genuine attempt to look for the evidence and has met with failure. Courts ought, therefore, to be adept at unmasking attempts by a dissatisfied party coming through the backdoor and under the cloak of having come by new or fresh evidence, seeking to fill in gaps or lapses in his or her case; for the rule is not meant to aid the slothful or the indolent, the careless, negligent or reckless litigant whether acting pro se or through counsel.

The application is not granted on compassionate grounds; neither is it meant to give the slovenly, particularly a litigant acting through counsel and who fails at the trial to marshal his facts carefully or fails to conduct his case properly by presenting essential evidence at the trial or through the necessary cross-examination; or also fails to conduct the necessary investigations which would have thrown light on or strengthened his case or give him or her a second chance at rebuilding his or her case.”

This same point was made in the case of ANNOBIL v OBOSU [1982-83] 1 GLR 585 at p. 587, per Osei-Hwere, J, which was referred to us by learned counsel for the 1st Respondent. The court, relying on the English case of YOUNG v KENSHAW; BURTON v KENSHAW [1989] 81 L.T. (N.S.) 531 at p. 532 – CA, held that the rationale behind the denial or grant of permission to order a new trial upon the discovery of further evidence must be the same as that which denies or grants permission to lead further evidence after the close of the case for the parties. In all the examples cited, the defendants did testify and the plaintiffs found the need to call for fresh or further evidence to buttress their case, though the courts, in almost all the instances, refused the applications. In the instant case however, the respondents decided not to testify at all so no situation arises for there to be the need for the petitioner to call further or fresh evidence to clarify anything, be it a doubt or a point raised in the testimony of the Respondents, since there was none.

The Petitioner, in his submissions, made reference to Section 26 of the Evidence Act, 1975 [NRCD 323], which he says operates as estoppel against the 1st Respondent for failing or refusing to call a witness as contemplated by the filing of a witness statement. The section provides: “Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) that party or the successors in interest of that party, and (b) the relying person or successors in interest of that person”.

We wish to state emphatically that section 26 of the Evidence Act, which is on Conclusive Presumptions, is not applicable in this case in view of Order 38 Rule 3E (5). 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 the 11th of February, 2021. Again, the Petitioner did not decide to close his case after the testimony of his third witness just because the Chairperson of the 1st Respondent had filed a witness statement. This is because, in law, a plaintiff or petitioner does not require evidence from his or her adversary, in an adversarial system as ours, to prove his or her case. The authorities are legion that a plaintiff or petitioner, succeeds on the strength of his or her own case but not on the weakness of his or her adversary’s case.

Conclusion

We wish to reiterate that by settled practice, and in the absence of express rules to that effect, a trial judge, just like this Court in this trial petition, has a wide discretion to re-open proceedings before a judgment is rendered.

That discretion is, however, one which should be exercised sparingly and with restraint, as motions to re-open necessarily involve a balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice. Accordingly, in weighing the propriety of re-opening proceedings to permit new or additional evidence to be led or tendered, the Court will typically consider the following broad questions:

i. Would the evidence, if it had been presented during the trial, have had any influence on the result?

ii. Could the evidence have been obtained before or during trial by the exercise of reasonable diligence?

The Court will also assess: the relevance, necessity, and materiality of the proposed evidence; the effect, if any, the re-opening may have on the expeditious conduct of the trial at large and the importance of the integrity of the trial process; and finally, whether the other party will be prejudiced if the re-opening is allowed or a miscarriage of justice perpetrated if it is not.

As we have already indicated in this ruling supra, the Petitioner, in this application, has not given us an inkling of the new or fresh evidence he wants to bring to the fore through the Chairperson of the 1st Respondent and how that evidence would assist this Court to do justice in the matters under consideration in this petition. Neither has he disclosed how that evidence would advance the cause of his petition.

For the above-stated reasons, we find no merit whatsoever in Petitioner’s application to re-open his case for the sole purpose of compelling his adversary’s intended witness to testify through a subpoena, without indicating the sort of evidence he intends to solicit from the said witness and how that evidence is going to help the Court in resolving the dispute before it. We accordingly refuse the application and proceed, without any hesitation, to dismiss same.

The Court adjourns the petition to Thursday the 18th of February, 2021.

(SGD) ANIN YEBOAH

(CHIEF JUSTICE)

(SGD) M. OWUSU (MS.)

(JUSTICE OF THE SUPREME COURT)