Supreme Court must be interested in hearing Jean Mensa in witness box - Lawyer

Private legal practitioner and accounting professor, Professor Kwaku Asare aka Kwaku Azar has penned an opinion stating it would be important for the court to hear the side of the Electoral Commission (EC) in the election petition although they have filed not to put a witness in the witness box.

It is the view of the lawyer that the EC boss, Jean Mensa performs a public function and has a responsibility to answer the Petitioner’s questions.

Lawyer for the Electoral Commission (EC), Justin Amenuvor on Monday, February 8 told the panel hearing the election petition that it will not put its witness, Jean Mensa in the witness box.

This was after the petitioner told the court it has closed its case.

Mr Amenuvor told the court that given the evidence of the petitioner’s witnesses who were cross-examined in the case, they do not want to lead any further evidence.

“Given the evidence of the petitioner’s witnesses under cross-examination so far, of those witnesses, speaking for the 1st respondent, it is the 1st respondent’s case that we do not wish to lead any further evidence and therefore we are praying that this matter proceeds under Order 36 Rule 43 and CI 87 rule 3 (e) 5, we hereby and on that basis close our case.”

But lead counsel for the petitioner, Tsatsu Tsikata, however, objected to the move by the lawyer for the 1st Respondent.

Reacting lawyer Kwaku Azar said it would be important for the court to hear the side of the EC considering the case of the petitioner.

"Such answers are important to all parties and the country as a whole to remove any clouds surrounding the election outcome.”



He added: "Not only should the Returning Officer want to tell her side of the story, the Court must actually be interested in hearing what she has to stay. This is especially so in light of the Court’s rulings denying the Petitioner access to some materials in the Returning Officer’s custody.

It is also my belief that the Petitioner should be able to call the Returning Officer and treat her as a hostile witness if she chooses not to appear to defend her witness statement.

The only reason the Returning Officer should be shielded from the witness box is if the Court concludes that the Petitioner’s case does not meet the prima facie test.”

Read his full statement below.

The Respondents are entitled to move for a directed verdict if, in their view, the Petitioner has failed to meet its burden of production.

The standard for evaluating such a motion is whether the Petitioner has failed to establish a prima facie case in support of the reliefs that he seeks. That is, the Petitioner is not required to overwhelmingly prove every element of its case. It is a low burden indeed and such applications are frequently denied.

Furthermore, once such a motion is made, the Petitioner has the right to an opportunity to supplement its evidence so as to defeat the motion.

An Article 64 petition is, however, sui generis. The returning officer is not just a necessary and a material party but more important she is the only person who can provide definitive evidence that rebuts the Petitioner’s claims.

She performs a public function and has a responsibility to answer the Petitioner’s questions. Such answers are important to all parties and the country as a whole to remove any clouds surrounding the election outcome.

Not only should the Returning Officer want to tell her side of the story, the Court must actually be interested in hearing what she has to stay. This is especially so in light of the Court’s rulings denying the Petitioner access to some materials in the Returning Officer’s custody.

It is also my belief that the Petitioner should be able to call the Returning Officer and treat her as a hostile witness if she chooses not to appear to defend her witness statement.

The only reason the Returning Officer should be shielded from the witness box is if the Court concludes that the Petitioner’s case does not meet the prima facie test.

However, the Second Respondent, in my opinion, is neither a necessary nor a material witness. It is entirely within his right not to enter the witness box.

The problem is not in our stars, but in ourselves, that #SALL are being treated as underlings who have no seat in Parliament.

Da Yie!