TsatsuTsikata’s argument for re-opening of Mahama’s case
Note: Not from the very beginning
My lord, the affidavit continues with an indication of the matters that took place following that circumstance. And my Lords, we wish to underline the fact that in the affidavit of the chairperson of the Electoral Commission, she had made clear that we will not be prejudiced by certain decisions of this court because we would have the right to cross examine, the necessary implication of those statements in a number of affidavits, not just one.
The necessary implications of those statements, My Lords… [interjection from the bench: Mr Tsikata, can you show us the rules under which you are coming?]
My Lord’s, we will appreciate that it is under the inherent jurisdiction of the court that the court grants leave of such circumstances, where we have taken a step and we are seeking to reverse the taking of that step.
That is in the inherent jurisdiction of the court to grant. And my Lords, the circumstances that we referred to of affidavits that were deposed to by the chairperson of the 1st Respondent, those circumstances point clearly, to why we could have reasonable expectation at the time of closing our case that, that chairperson will be testifying.
We have completely reasonable expectation that based on her own affidavit, which are in effect sworn statements.And my Lords, these sworn statements actually have very precise legal effect in terms of evidence laws of this country.
Section 26 of Evidence Act, it is provided as follows; “except otherwise provided by law or including a rule of equity, when a party by its own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest inany proceeding against that party or other interest in any proceeding between that party or his successor’s in interest.”
Now my Lords, the effect of this conclusive presumption is also provided for in section 24 of that evidence Act: “where a basic fact that gives rise to a conclusive presumption are found or otherwise established in the action, more evidence contrary to, conclusively be considered at a tribunal of fact.”
My Lord’s, this legal position as far as the effect of what was in there, of the affidavit of chairperson of the 1st Respondent is concerned. This legal position was also recognised by this court in the Case ‘Sefa and Asiedu No2 against the Bank of Ghana’ No 2 and Gyamfi Number 2 against the Bank of Ghana Number 2, consolidated. The citation my Lords is 2013 to 2014 in the Supreme Court of Ghana Law Report at page 530.
My Lords, this was the decision of this court comprising his lordship Anin Yeboah JSC as he then was and Justices Baffoe Bonnie and Gbedegbe, justices of the Supreme Court. And the Lordships reversed an order of a single Justice, and in reversing that order, the Lordships made reference to the terms of this Evidence Act and Justice Gbedegbe whose decision was agreed to by the other Justices had this to say at page 532: “By the operation of the effect of the depositions made in the application before the High Court, the applicant, that is the respondent Bank of Ghana, is coached by the section 26 of the Evidence Act, which is commonly referred to as estoppel by own statement or conduct as provided in NRC….” Then Justice Gbedegbe proceeds to quote section 24 and said ….
My Lords, the point that I’m making respectfully is that in this decision of the Supreme Court, your Lordships determined that statements in affidavits that have been filed in respect of these proceedings establish a conclusive presumption, which could not justify exercising a discretion to grant leave to adduce evidence.
Now in this case, we are saying by parity of reasoning that we have a situation where the chairperson of the 1st Respondent has in affidavits made clear that the petitioner in no way be prejudiced because the questions that the petitioner sought to have in the interrogatories, those could be the subject matter of cross examination.
My Lords, obviously by that time, she had filed a witness statement and she clearly tendered and expressed as her intention to testify. And my Lords, will see that the statement of case filed by the 1st Respondent in the opposition for the application filed for review, and that is one of the attachments to our application and I believe that it is marked “recall”
Judge: Mr Tsikata
Tsikata: Yes my Lady
Judge: Kindly clarify something for me.
Tsikata: Yes my Lady
Judge: You want to re-open your case for the 1st Respondent to testify as your witness?
Tsikata: My lord, not the 1st Respondent. We want to seek to reopen our case and my Lords, as I indicated we are not seeking leave to serve a subpoena. The serving of the subpoena, the right to serve a subpoena is under order 38 rule 10. The person that we intend to serve the subpoena on is the Chairperson of the Electoral Commission, the Returning Officer, that person is not the same person as the 1st Respondent evidently, but that is the person we intend to serve the subpoena on. It is not on the 1st Respondent.
Judge: Alright! So she is coming to testify in what capacity?
Tsikata: She is coming to testify on the basis of the subpoena because she is a public official. My lady, we all know that subpoenas are very often used in the context where for instance, a public official who may not wish to be identified as testifying, so to speak, as a witness in one party or the other, who can be subpoenaed so that in her independent capacity they can bring to the court matters that are relevant to the determination that the court is making.
Judge: I asked this question because of your paragraph 15. You said as the ruling of the court on Thursday, 11th February, it has become necessary I am advised and verily believe that Counsel use the subpoena powers of the court of Order 38 rule 10 of C.I 47 to compel the attendance of chairperson of the 1st Respondent to appear and testify.” So you will subpoena her to come and testify in what capacity?
Tsikata: As a witness. I’m not sure in what capacity.
Judge: Witness of who? The court or…?
Tsikata: No. She is our witness. As the Evidence allows she is treated as adverse witness, what in common law, is what is referred to as a hostile witness.
Judge: You want to treat her as a hostile witness? Assuming your application is granted? You intend to treat her as a hostile witness?
Tsikata: Yes that is what we are saying. Naturally, My Lords, at this stage her status as a hostile witness or adverse witness under the Evidence Act, at this stage that is not an issue before you.
Judge: No! No! It is totally, it is totally an issue because we have to exercise our discretion to grant or refuse your application and we can only exercise our discretion on extremely appropriate grounds. We need to know what she is coming to do. I mean whose witness is she going to be? The capacity is important.
Tsikata: She is coming as a witness of the petitioner described in the Evidence law of Ghana as adverse witness and in common law described as a hostile witness, that is the capacity in which she is coming.
When your ladyship ask in terms of capacity, I was not very clear what capacity meant but in this context in it is as adverse witness that is the capacity under the law.
My lords, ideas also alluding to the statement of case of the 1st Respondent, in which that is exhibited to our affidavit as part of “recall 1”. It is exhibited as part of “recall 1”. Exhibit “recall 1” is part of the affidavit in position for motion on notice for review as well as the statement of case that was accompanying that.
And in the statement of case, which I was referring to, counsel states at paragraph “4”: “the petitioner does not suffer any injury to his to his rights if the application for review is refused as he still has the opportunity to solicit the same answers during cross examination. Unless it is his case that he does not have the full complement of his case and needs the answers to file in.
So here is counsel for the 1st Respondent stating clearly that we don’t suffer any injury. The petitioner to his right if the application is refused for the reasons that I have given. And that is exactly what Mrs Mensa herself states in her affidavit. So my Lords, if on the basis of that position that we found ourselves in, where there have been clear representations that this person was actually going to come for cross examination. It was within our rights to rely on that representation, which has even come under the Section 26 and section 24 of the Evidence Act be determined as a matter of conclusive presumption.
My Lord’s, the reason I thought of that. At this stage where we are simply applying to reopen our case from the stage of subpoena, your ladyship, you are entirely right that you do want us to be candid with you about why we are going to subpoena so that you can exercise your discretion appropriately. I fully understand that but the distinction I wish to make for the sake of clarity is that once your Lordships grant us leave and we file a subpoena, which is then serve on her, that is not the end of the matter because it is still open to her for instance whether for human right or any other reason to make application to the court to say I should not have to come to court and be crossed examined to be treated as adverse witness.
She will do that by invoking a witness of some sort. And my lord that is a process that your lordships are very well aware of. It was a process that was described …in this Supreme Court in a case called Tsatsu Tsikata against the Republic, 2011, in Supreme Court of Ghana Law Report at page 1. The Supreme Court then goes into the issues of how a particular witness who raised a claim of privilege and how it was dealt with by the court.
So we are clear in our minds, that it will be within her right in protection against self-incrimination or whatever it is, it will be up to the witness to make that claim and put it before the court ….
In that particular case the lower court actually allows the witness a privilege of an immunity rather and the Supreme Court overruled the lower court and said that the claim of immunity was not well grounded. So it will be opened to her to take whatever step she felt appropriate.
But my lords, in our respectful submission, this is a witness who in fact has every reason to accept a subpoena and to come and testify in order to vindicate herself and her role.
This is a witness who have every reason to do that. Of course, it is her judgement of what steps she takes. I wish to submit respectfully that this witness has every reason to vindicate her role and her office by coming to testify in this proceedings.
My lords, as we have previously indicated, this is a witness who gave glory to God for what she was doing and appropriately, in our view it will honour that God she gave glory to in making her purported declaration, if she will come forward as a witness.
Judge: Mr Tsikata withdraw that statement
Tsikata: My statement is it will honour that God if she comes for as a witness of truth?
Judge: But Mr Tsikata, you know the exercise has a purpose? Everything we do in court must have a purpose.
Judge: Excuse me please, everything we do must have a foundation and must have a premise and must have a purpose and must have objective. So our only interest… so when you talk about speaking the truth et al that is totally at large. Our interest is the focus, direction and what is your focus and direction. That is what we are interested in. Or you don’t think we should be interested in your focus direction.
Tsikata: My lady, My lady it is not at all at large.
Judge: All right
Tsikata: Because in this proceedings counsel for the 1st Respondent obviously from the instructions from her has challenged the truth of witnesses that we have put forward. And the accounts that were given of interaction with her. Counsel has challenged the truth of what those witnesses are saying.
In particular, in the case of PW2, Dr Kpessa Whyte, Counsel incessantly put to him that the account that he was giving of why they left, he and PW3, Mr Robert Mettle-Nunoo, the premises had to do with the instructions they received from her. Counsel challenged the truth of what the witness was saying. The witness sometimes have to say but why would we leave and leave our bags there. And why would we do that. If this was not the case why would we do that. And counsel for the 1st Respondent put to him that he wasn’t there in the meeting. Then we have Mr Mettle-Nunoo also come to testify. So my lords the truth of what happened in terms of these interactions that took place on the 9th December before the declaration, the truth is essential and it would honour the God that she serves and glorifies. She will come and testify as to the truth that is what we are submitting.
Judge: Can we just limit ourselves to the affidavit in support of your application?
Tsikata: My lord, in the affidavit, we have made quite clear that this truth is very crucial. We made it very clear.
Judge: But as to the God that she serves and all that, I think that word should not. I don’t think that is appropriate.
Tsikata: My Lord, that was in the declaration that we can all take judicial notice of. My Lords, I don’t say that in a light vein, I say that in a vein of solidarity with in giving glory to the God that she serves. And I say that God is the God of truth and it would honour that God if she will come forward to testify to the truth.
And my Lords, in the affidavit in paragraph 21 “furthermore in the proceedings to date, counsel for 1st Respondent has challenged the testimony on oath of my witnesses including testimony provided by PW2, Dr Michael Kpessa Whyte that Mrs Jean Adukwei Mensa had in a meeting with PW3, Mr Robert Joseph Mettle-Nunoo, who also testified as PW3, sent the two witnesses who were serving as my agents at the National Collation Centre popularly referred to us Strong Room to go and deliver a message to me with the promise that she would have a dispatch rider go and escort them back before she will make a declaration. “
My Lord’s that is a matter on which hearing her address the truth of that. It’s important as affidavit goes on to say in paragraphs 22 and 23. Counsel could only challenge the witness testimonies.
Tsikata: paragraph 21 and now I’m moving to 22 and 23.
Judge: I thought you stated earlier that the process should be divided into two and that at this stage we are really dealing with whether the petitioner to reopen his case, I think it would be advisable if you stick to that one. If that is granted then we could deal with the issue of the subpoena and the truth and all of that. So I think it will help if we stick with the distinction you yourself drew earlier.
Tsikata: My lord I’m grateful for that indication. Suffice to say that I moved a little bit beyond that premise because of the issue of discretion. The basis of which your Lordships will exercise that discretion and so we have in …to put before you what we are going to do if you grant us the leave. That is the only reason and then when the issue of …
Judge: I think that is sufficient
Tsikata: Very well. My Lord’s we will be guided by… I’m pleased to see that your Lordships agreed with the distinction that I made in the first instance. Because my lords, my respectful submission is that at this stage there is a sufficient basis from the circumstances that arose, I believe on the 9th February when we closed our case and when there was expectation that the chair person of the 1st Respondent will actually come and testify on behalf of the 1st Respondent. And my Lords, I believe it goes without saying that your Lordship the chief justice himself expressed some surprise at the turn of events and for that reason asked us to come back the next day in order to address your Lordships fully on the legal issues that arose.
So my lords, talking the truth, I now proceed to response to affidavit in opposition that were filed apparently yesterday with some Valentine messages to us. And my lords in the affidavit of the 1st Respondent, in opposition to this motion, it is my respectful submission that there is an unfortunate confusion as regard what the issues in this application are. That confusion includes claiming that we are here trying to review or appeal against the ruling of the 11th and so. My Lords, we are not here for that purpose. We intimated that we are filing a review application as well and you know we are within our rights to do that but we are not here for that purpose as suggested.
And there are various claims that I don’t wish to go into because claims about vested rights which your Lords…, which frankly are wrong. Your lordships to my hearing didn’t talk about birth vested right and I have gone through the ruling several times. But my lord the most stacking passage in this affidavit in opposition is the passage in which the chairperson says something to do with disqualification. My Lords, I wish to quotes the exact words of that passage.
Judge: give us the paragraph
Tsikata: Yes this what I’m referring to. My Lord’s this paragraph 24: “again I’m advised that the subpoena is issued to a person not to a party to testify for a party on whose behalf it is issued. 1st Respondent is a party and disqualified and so am I.”
1st Respondent is a party and disqualified and so am I. My Lord’s the rules about qualification to be a witness are provided for in Section 58 of the Evidence Act as well as Section 59. Section 59 reads: “Except as otherwise provided by this decree, every person is competent to be a witness and no person is disqualified to testifying to any matter.” My Lords, in order to think where she got her disqualification from testifying as a witness from. “1st Respondent is a party and disqualified and so am I.” My lords, section 58 does not make that possible.
Section 59 goes on and that is section about disqualification. So perhaps we can look for some guides. 59 (1) “a person is not qualified to be a witness if he is: a. Incapable of expressing himself so as to be understood either directly or through interpretation by one who can understand him. “ I think we have any doubts that the chairperson, is a person who is very capable of expressing herself so as to be understood.
Then “a person is not qualified to be a witness if: b. Incapable of understanding the duty of a witness to tell truth.” My Lords if any witness or anybody wishes to rely on that on behalf on the chairperson, theyare welcome to do so and claim to this court that she is incapable of understanding the duty of a witness to tell the truth, but these are the disqualifications mentioned in section 59.
The final one, which is 59 (2) “a child or a person of sound mind is competent to be witness unless he is disqualified by sub section 1 of this section” so even a child is competent to be a witness unless he is disqualified under those provisions. So my lords, I cannot imagine what this basis of disqualification that is blazingly throw in our face in paragraph 24. And it goes on even more remarkably, that “a person subpoenaed is punishable by committal.” What does that mean? I mean a person who is subpoenaed, unless they don’t tell the truth. If they don’t tell the truth then off course they may face some consequences.
And then finally, I’m advised that the decision of this court rendered the proposed subpoena irrelevant. My lords, with the greatest respect. [COURT interjects].
My Lords, not only is the question of law. The point I’m making is – those claims about committal and so on, they arise in the second stage that we are talking about and not at this stage and, therefore, your Lordships should not countenance what is in the affidavit.