Legal arguments on whether Jean Mensa should testify or not

Justine Amenuvor: My lords, with your kind petition, if I may read section 62(2): “If a witness who has testified is not available to be examined by all the parties to the action who choose to attend and examined, and the unavailability of the witness has not been caused by any party who seeks to cross examine the witness, the court may give its discretion to exclude the entire testimony or any part of the testimony as fairness requires.” My lords, the Evidence Act.

Judge: Mr Amenuvor.

Amenuvor: Yes my lords.

Judge: Considering the relevance of this case.

Justine Amenuvor: My lords, the point I choose to make with this section is that even if a witness enters a witness box…

Judge: …the defendant or respondent can elect not to profess the evidence in the case that is the issue before us.

Amenuvor: My lords, I made that point yesterday, and it takes the case of 1st respondent that having heard the evidence of the witnesses of the petitioner and the cross-examination by us, it is our humble submission that we don’t require any further evidence for this court to determine this matter, and, therefore, we don’t intend to call evidence.

My lords, I wish to refer you lordships to the case of Alma vs Hydrofone Estate Ghana Limited. It is a decision of the Supreme Court reported in 2013/14 II Supreme Court of Ghana Report 201551. My lords, at page 1567; my lords, with your kind permission, I may read…

Judge: What is the title of the case?

Justine Amenuvor: Alma vs Hydrafone Estate Ghana Limited. My lords, the Supreme Court, speaking through speaking through His Lordship Benny JSC, held as follows: “A court has no duty to call upon any party to testify in any case. The court acts as an empire and only hears such evidence that the parties will profess. Whether the parties testify or not, it is none of the court’s business. Indeed, for a court to insist that a party should testify would amount to the judge sending into the arena of conflict. After determining the triable issue, the tried court leaves the field clear for the parties themselves to decide who will testify. We know of no law or rule, which entitles a court to call upon a party to testify in the action. If such a law or rule does exists, we will venture to say it is inapplicable under our legal dispensation,” my lords.

So, my lords, it is our submission that the petitioner has brought us to court. She has led evidence. She has closed its case. We don’t think that there is anything more for us to say. It is our election and it’s a risk we have taken. Even if, indeed, the petitioner has a good case, my lords, I believe that he should be dancing and be happy. It is our submission that…

Judge: …

Justine Amenuvor: My lords, I am sorry. I withdraw it. I finally submit that if we go or I refer the court to the case of Presidential Election Petition Special Edition. The first one, my lords, the main judgement is reported in page 61 of the Special Edition of the Supreme Court of Ghana Law Report, thus 2013. I will refer your lordship to page 217, and also to the judgement of Adinyra JSC on whom the burden of truth lies in the presidential petition. Therefore, my lords, it is our submission that our application that we made yesterday be upheld.

Judge: Do you intend to also?

Akoto Ampaw (AA): Yes my lords. My lords, we associate ourselves with the submissions made by counsel for 1st Respondent. And, in addition, we wish to refer your lordships to the case of Joseph Aknu-Baffoe and two others vs Lawrence Boako Supreme Court of Ghana Report 2013.

Judge: Mr Akoto Ampaw can you kindly spell (the name as mentioned).

AA: Joseph Aknu-Baffoe and two others vs Lawrence Boako Supreme Court of Ghana Report 2013 page 56; where the court held, referred to Agboso & Kotei & others 2003/2005 I Ghana Report. Reads as follows: “A litigant who is a defendant in a civil case doesn’t need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court is to make a determination of fact or of issue, and that determination depends on evaluation of facts and evidence, the defendants must realise that a determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his cause or case by producing before the court such facts or evidence to adduce the determination to be made in his favour.”

And, this is the important section: “The logical consequence to this, if he leaves no such facts or evidence the court will be left with no choice to evaluate the entire case on the basis of the evidence of the plaintiff.”

My lords, so when we elect not to adduce evidence, we do so at our own risk and we fall on the sword if after evaluating of the plaintiff or the petitioner in this case, the court comes to the conclusion that the plaintiff has met his burden of producing evidence and the burden of proof. So, my lords, we believe that the petitioner ought to be very happy that the case will be determined on his evidence, including his evidence in chief and the evidence elicited from him during cross examination.

Judge: But the petitioner did not give evidence.

Ampaw: Yes, the witnesses.

Judge: That the petitioner should be happy but …

Ampaw: Yes the petitioner should be happy, because let’s use the advance by his witnesses, is the matter before this court together with the evidence we have elicited from him, from the witnesses in the course of cross examination. So we think that our decision works in favour of the petitioner. And in any evidence, the petitioner cannot by law compel us to enter the witness box and adduce evidence. My lords, we will also wish to observe that the English cases of Alexander vs Raison that counsel…

Judge: Spell Raison.

(President of the panel gives a directive that was not clear)

Judge: Spell Raison.

Ampaw: After searching through his document spelt the name.

Judge: Unless you are abandoning your reference, else you have to give us the citation.

Ampaw: My lords, I can’t immediately identify the citation. But, my lords, the main point we wish to make is that the English Civil Procedure Rules make provision that the party that seeks to raise or notify the court that he doesn’t intend to leave without adducing evidence do so timeously. And our point here is that our rules, both C.I. 47 and C.I. 87, and indeed, our CI 47, takes inspiration from the English Court Civil Procedure rules of 1998. The fact that our justice did not reproduce that text was for an election…

Judge: You haven’t provided that text.

Ampaw: My lords, the text.

Judge: You can hold on if you cannot provide.

Ampaw: My lords, the case of Alexander and Raison is reported in King’s Bench Report 1936 Volume 1 at 169. And, my lords, since Alexander and Raison there have been various commentaries and decisions commenting on that decision. And, my lords, it is our submission that the English courts have currently moved to a position where they recognise that a submission of no case may be entertained by a defendant, may be entertained by the court, even in a situation where there is no jury. But, my lords, for us, the significant point here is that for now we have not indicated to the court that we will be making a submission of no case. So those series of authorities cited in support of submission of no case will not apply. We don’t think that these authorities will apply in this situation. Our position and submission is that the petitioner has adduced evidence and closed his case. We have taken the position that in our assessment they have not discharged the burden of proof or the burden of producing evidence. And, therefore, we will not plead further evidence. The court will determine the case which has closed on the basis of the evidence before it. So, my lords, we are of the view, especially in the light of the provisions of C.I.87, that we are entitled not to adduce any evidence. We are entitled not call any witness, and all at the petitioner may do if he so wishes is to tender our witness statement as hearsay evidence. Unfortunately for the petitioner, he has closed his case so he cannot even do that. Accordingly, we pray that our prayer to elect not to adduce evidence be held. We pray accordingly.

Tsikata: My lords, it is our respectful submission that the 1st & 2nd Respondents had, in fact, adduced evidence in this case. My lords, let’s be perfectly clear with what we are dealing with here before… The 1st Respondent has put in a witness statement, and my lords, I will prefer to concentrate on the 1st respondent and at the end I will make a few remarks about the 2nd respondent. I believe the 1st respondent is at the heart of this case. So clearly before us is that 1st respondent has put in a witness statement signed by its Chairperson, Mrs Jean Aduwei Mensa, who is the Returning Officer; the constitutionally-designated Returning Officer of the election, who also signed the constitutional instrument under which the election took place, C.I. 127. An instrument which places specific duties on her alone? She also signed the answer to the petition on behalf of the 1st respondent. In respect of the answer, she signed an affidavit of verification. In respect of the witness statement, she signed a statement of truth. All these and more affidavits on Mrs Jean Adukwei Mensa that we shall refer to later in our submissions are before this court.

We invite your lordships to take judicial notice of Mrs Jean Mensa’s … to the Glory of God in making her declaration on 9th December 2020.

And actually she knows that the truth shall we decree. Yet, instead of coming into the witness box for the truth to make her free, her counsel is, in effect, saying to this court that she will not mount the witness box. Your lordship will note that counsel for the 1st respondent is not seeking to withdraw the answer of 1st respondent with the affidavit of verification that has been sworn by the Chairperson. Counsel for the respondent is not seeking to withdraw her witness statement either. In fact, I heard, just a moment ago that it is being proposed and we should put it in by way of hearsay or statement and all that.  These are nothing to do with a hearsay matter.

Ampaw: My lord, I never said they should they should put it in, with all due respect.

Tsikata: My lords, it is true he didn’t say we should. I believe he said we are entitled or able to so if I said should let me correct myself. To add the difference to the correct language used. I believe it is true I said we should, and he said some to the effect that we are entitled to. or we are able to put it in he is giving us free legal advice, which is like Free SHS, which some people like, some people don’t like. But, anyway my lords, the point that I just made that offer of free advice of tendering hearsay is frankly legally meaningless as far as…

So counsel for 1st Respondent is not seeking to withdraw the witness statement; counsel is simply announcing that at the end of the case for the petitioner that 1st respondent is not going to call the witness who have submitted the witness statement, thus the Chairperson of 1st respondent, who submitted a witness statement and the Returning Officer of the presidential election and the constitutionality of whose declaration is at the heart of this case. Indeed, issue number ‘2’, that your lordship set out for the determination of the petition reads, “whether or not, based on the data contained on the declaration of 1st respondent for the…” my lord, there is a missing word from there.

Judge: That is a certified copy.

Tsikata: So my lords, let me proceed we can later on find out what is missing. I think the point I was making is quite clear; that the issue number 2, whose formulation will be clarified in the due course; that issue relates to what was done on the declaration on the December 9th. That issue relates to that declaration and eventually we may come back to the formulation of that. So it is the constitutionality of that declaration that is at the heart of this case and that is reflected in issue number 2. And it is our respectful submission that what is being put before you now is not only an affront to justice, but it is not in accordance with the rules of this court, and we respectfully submit it must not be countenanced by this court.

Now counsel seeks to rely on Order 36 Rule 4(3) and also C.I.87. Then eventually, the Evidence Act. And I wish to go through those provisions. C.I.47 Order 36, which comes as it was rightly pointed out, it counts in the part of the Order, which is headed “Order of Speeches” and the head note for its worth said order of speeches. Rule 4(3) provides quite simply “where the defendant elects not to adduce evidence, the defendant may at the close of the plaintiff’s case open the case of the defendants and act on behalf of the defendant…close it at which the plaintiff makes a speech and reply.”

Now my lords, it is clear in that provision it goes beyond just order of speeches, and so, which was the point that I was making yesterday but…

Judge: …

Tsikata: My lords, but we are dealing with order 36 r4(3). And I’m submitting that if you look at the dispositive part of that, r4(3) makes it clear that, that  rule has nothing to do with what is being proposed. That rule 4(3) is saying where the defendant elects not to adduce evidence, then whether or not the defendant has in the course of cross examination of the witness or the plaintiff or otherwise put in a document. The plaintiff may, after the evidence on behalf of the plaintiff had been given, close the plaintiff’s case. And then the plaintiff may then state the case of the defendant. That is all that the provision says.

Now, my lords, what this is dealing with, in the context of a civil trial, is obvious. What it is dealing with is that when we announced that we have closed our case. When we do this; saying that if the defendant elects not to adduce evidence they come first in the order of addresses. That is essentially what it means. They come first in addressing the court about their case so they may state the case. That is what this is dealing with.

Judge: Mr Tsikata, when you say the come first do you mean the plaintiff or the defendant?

Tsikata: The plaintiff comes first. That is what this provision is saying. In the event that they elect not to adduce evidence.

Now, my lords, this provision cannot be the pretence for what counsel for 1st respondent seeks to do, namely preventing cross examination of a witness who has already submitted a witness statement before this court. And that witness statement was submitted on 22nd January 2021 based on oath and orders of this court at the case management conference. It is our respectful submission that by filing its witness statement, 1st respondent has clearly crossed the bridge as far as opening the witness up for cross examination is concerned. That bridge has been crossed…

My lords, in determining issues regarding leave for serving interrogatories on 1st respondent…

Judge: Please, Mr Tsikata, before referring us to Order 36, I want you to read Order 38 Rule 3(e) sub rule 5 of C.I.47 as amended by C.I 87. That is in respect of written statements. Order 38 that is in respect of witness statement, rule 3(e) sub rule 5. You can read sub rule 1 before you go and read sub rule 5 before you will appreciate the import of the rule.

Tsikata: Order 38 rule 1?

Judge: Rule 3(e) sub rule 1 & 5.

Tsikata: If a party has served a witness statement and that party wishes to rely at the trial on the evidence of the witness who made the statement, that party shall appoint the witness to give oral evidence, unless that party shall call that witness to give oral evidence. Unless the court otherwise ordered, or that party puts a statement in, that party has put in as hearsay evidence. So it is in fact that party…

Judge: Let go the sub rule 5.

Tsikata: Let’s be clear.

Judge: You read 5 in addition so that…

Tsikata: Now, 5 reads “…” now, my lords, this is what I was going to address your minds to various statements made in affidavit of the Chairperson of the 1st respondent in connection with that data. My lords, I believe if you will allow me to proceed with the order of my submission, I will explain whatever concerns you have about C.I. 87, and… because my lords we are dealing with a situation here, where in determining the issues regarding leave for serving interrogatories on the 1st respondent, the fact that what was in the interrogatories could be the subject of cross examination was a critical aspect of what was urged on the court by 1st respondent. There was an affidavit filed on 22nd January 2021 by the Chairperson in opposition to motion to review court refusal to allow interrogatories to be served. And this what it says in paragraph 7 “…” This is the Chairperson in her affidavit stating that the applicant does not suffer any injury to his right; the applicant has the opportunity to solicit the answers he seeks during cross examination, if he so wishes.

There is another affidavit of 25th January 2021 by the same Chairperson of the 1st respondent in an affidavit in opposition to our motion for stay of proceedings, and then she states in paragraph 5, as follows “…” these are statements of the Chairperson who is now seeking to evade being cross examined. And the 1st respondent, it is beyond doubt that she herself knew that cross examination was imminent in terms of the processes of the court. So our submission is that it is the combination of the filing of the statements, and the clear statement in the answers in the affidavit that we have quoted from, that makes clear her own intimations to this court; that she will be subjecting herself to cross examination; that is clear in her own words under her own hand.

Judge: Mr Tsikata kindly, can’t she change her mind?

Tsikata: There have to be a good reason to change her mind. And, my lords, indeed, my lords, if she changes her mind that should be openly put to this court, and the court may have power to disallow that change. Yes, and if your lordship will allow me to…

Judge: Tsikata are you implying that the averment in the affidavit she is stopped from saying that she not giving evidence

Tsikata: Yes. She has made representations to this court and to other parties in this case, specifically to the petitioner. She has made those representations.

She cannot now resign from that representation and unless there is a good reason. My lord, I will come to the issue of when there is a good reason for anything. The court, as your lordship did, when there was a paragraph 1-17… When there is a good reason for something to be done of course

Judge: Mr Tsikata, there is no good reason here?

Tsikata: That is what I’m submitting, because it has not even been put forward in that particular case. The good reason was the witness himself had noticed there was a mistake in the statement of truth. A statement of truth is basically a format from the solicitor’s office. And the witness has signed 1 to 32, and he had not signed the statement of truth and made a reference to paragraph one, and made an application for amendment. So that is a completely different situation from what we have here.

Judge: Mr Tsikata, one minute, is there a reason why a witness should mount a witness box?

Tsikata: Yes my Lord. There is a lots of reasons, especially when that witness is the declaring officer with a constitutional mandate.

Judge: I’m not even going down to the 1st respondent’s Chairperson. You know, in this whole hearing, the witness filed a witness statement and we don’t take them on the face of its value. We have to put her in the witness box to swear an affidavit or an oath to the effect that what is contained in my witness statement. You know until that is done… As soon as you file your witness statement then you go on to cross examine the witness.

Tsikata: No, my Lords, we were dealing with specific circumstances of an election petition under the terms of C.I. 99 that your lordships have sometimes used to strike down the operation of C.I. 47.

Judge: Are you suggesting this is a case that is different from all other cases?

Tsikata: Your lordships I have said so in C.I. 99.

Judge: What is there C.I.99 just the witness statement, which automatically becomes a statement on oath.

Tsikata: There is, in fact, nothing in C.I 99 about a witness statement as your ladyship knows. There is nothing about a witness statement. This being imported from C.I. 47, and that is part of the issues we are having here.

Judge: And so witness statements are automatically statements on oath?

Tsikata: My Lords, the tenure of the witness statement, as well as the answer in an election petition. My Lords, in a normal statement of claim in a High Court you don’t have the plaintiff having to sign, having to verify an affidavit. You don’t have that.

Judge: In a matrimonial petition, you do. This is just a different form that is replicated along the journey.  If along the journey of … some come in an originating motion; some come in petition and some by writ… that is all or?

Tsikata: That is not all. Your lordships would have said otherwise. You lordship had said election petition under C.I. 99 has special characteristics, and that is part of…

Judge: That changes the law on witness statement, because we know that witness statements are potential evidence. The word is potential. That is why the statement of truth is there. And so long as it is not sworn, it can’t be evidence. Judicial decisions are based on evidence. Judicial decisions are taken when a witness comes into the box and takes the oath.

Tsikata:  My Lords, this why I’m drawing your attention to the difference in the election petition case, where the petition and the answer are signed. In this case the Chairperson signed the answer and signed a statement of affidavit on verification, and not only that, she also signed the witness statement with the statement of truth.

Judge: As her potential evidence?

Tsikata: No, it is not potential evidence.

Judge: What is it?

Tsikata: Not as her potential evidence.

Judge: Let’s agree on that; whether a witness statement can be evidence.

Tsikata: Very well. My Lords we ought to agree that the filing of the witness statement means an election to add evidence.

Judge: Mr Tsikata, can you look at Order 38 rule 3e (2)?

Tsikata: It would have been useful for me to respond to their submissions.

Judge: You look at 38 rule 3e (2), the same rules but the 2.

Tsikata: This is C.I. 87. Very well, and this is under General Rule.

Judge: So let me read: “Where a witness is called to give oral evidence…” so it is only when the person is called upon to give evidence then his witness statement become his evidence-in-chief. By law, the mere filing of a witness statement does not constitute evidence.

Tsikata: My Lords, it constitutes an election to admit evidence.  It is election… what we are dealing with is very clear on order 36 that we are relying on. It says where the defendant elects not to admit evidence and my submission has been that they elected by the witness statement, by affidavit, in which she said so and so. So I said it is the election.

Judge: So assuming we are opening a trial by witness statement and the defendant comes to court and he says he himself is going to testify and will call five witness, and at the end of his witness, he decided that, my Lords, I am not going to give evidence, neither am I going to call any witnesses, would he be banned from saying so? But he has initially informed the court that he himself was going to testify and call five witnesses.

Tsikata: My Lords, that is why I said it depends on the context, and in this case we are dealing with the context of an election petition with its characteristics. And we are saying respectfully that the context of the election petition, where the petitioner has put in a petition, the petitioner has put in a statement of verification, an affidavit of verification, and you have the answer and this chairperson signs the answer on behalf of the first respondent, and after signing that she also signs a number of affidavits.

Judge: So Mr Tsikata the petitioner in this case has signed the petition, can he be compelled to come and give the evidence?

Tsikata: My lords,that is not the point.

Judge: What is good for the goose is good for the gander.

Tsikata: The witness has not filed a witness statement.

Judge: He has filed a petition. He has deposed several affidavits. Can we compel him both on interrogatories?

Tsikata: The petitioner has not filed a witness statement in accordance with your orders.

Judge: What is more greater? What is more serious than pleadings?

Tsikata:  My Lords, it is not a question of what is more serious. It is a question of what the rules are. The rules say when the defendant elects not to add evidence…

Judges: I’m saying that you are addressing us. I’m saying that you have referred to several affidavits of the Chairperson of the 1st respondent. I’m saying that in the same vein, the petitioner has deposed to several affidavits before us, but we cannot compel him.

Tsikata: In no affidavit of the petitioner does he say that I’m going to subject myself to cross examination and therefore you don’t need to serve me interrogatories. Nowhere has the petition…

Judge: Mr Tsikata. …

Tsikata: My Lords, can I’m answer one at a time.

Judge: Very well.

Tsikata: My lord, the petitioner has nowhere said I’m going to be present to cross examination and then resign on that. The petitioner has never said that. In fact, the petitioner has not filed a witness statement.  The petitioner has said he is relying on his witnesses, which he is entirely allowed. So nobody can compel him to come and be cross examined. And the point that I was making in respect of what is in the affidavit, this Chairperson is that she herself, in opposing an application to serve on her interrogatories… to the fact that she is going to be available to be cross examined. She says so. I read it in her affidavits. …this cannot be a legitimate comparison to the status of the petitioner and the status of the Chairperson.  It cannot happen.  The logic of the situation compels only one resolution. The affidavits that I’m reading, and I will read some more before I’m done, those affidavits state clearly her disposition to be cross examined.  And she uses that as a basis for opposing the leave for interrogatories application. She uses that so you can’t discount that. And there is nothing that the petitioner has done in his affidavit compared to that.

Judge: Mr. Tsikata, all that I’m saying is this; if a party comes to court and informs the court he us going to give evidence and would call a few witnesses and later on he changes his mind; that because of certain things that have happened I don’t  intend to give evidence, neither do I intend to call witnesses. I can get the party wrong or can the court compel that because of the statement that he had made, or can he be compelled to testify?

Tsikata: My Lords, what I stated clearly is that order 36 rule 4 (3) is clear in its sense; where the defendant elects not to add evidence and so and so. My lord, I have said that in this case this 1st respondent has elected both by filing a witness statement, and also he is elected by her affidavits,  in which she was rejecting our request for certain information to be provided by her, and she …to use wait when I’m being crossed examined you can put it to me. That is the effect of what she said in her affidavits.

Judge: Can she change her mind?

Tsikata: If she changes her mind; that is why I have said there are proper ways to effect that. At the moment we do have that situation. My Lords, I will further indicate that the dispositive part of Order 26 rule 4 has nothing to do with what is being done before you. That dispositive part that says “…”

Judge: Yes. My brother on my right referred you earlier on to Order 38 rule 3 e(5) which deals specifically with a witness statement.  There is a limitation we can put on witness statements if the witness has got into the witness box and taken the judicial oath.

Tsikata: My lord, with respect, that is an erroneous interpretation.  In effect, what that rule reads “…” it is a positive part of that. It says any other party may put in a witness statement as hearsay… that is a dispositive.

Judge: So it allows the court to call a witness who has filed on oath?

Tsikata: My lord, it says if a party who has served a witness statement…

Judge: Mr Tsikata, in your writ you know, relief 4, the number of witnesses that the witness intended to call was five, eventually called two, and you plead of the court and add one. But were we going to insist because you have written in your writ that you will call five witnesses go and bring the five witnesses?

Tsikata: My Lords, we have not filed five witness statements. My lord, we have not filed five witness statements. That analogy does not…

Judge: I have already… until the witness enters into the witness box that is when… it is not evidence yet.

Tsikata: This is not the position of this Supreme Court in the case Sumila …vs Adamu Dramani and the Attorney General. As far as I’m concerned it is unreported.

Judge: It is.

Tsikata: My Lords, let me stick to a decision delivered 23 May 2012; the citation 374, and this is what Dr Datse Baah said in the ruling of the court: “…” which included your lordship the Chief Justice. Reading “…”

Judge: Mr Tsikata, please we are dealing with a witness statement which is not sworn.  You are talking about an affidavit that is sworn. A witness statement cannot be evidence that is where we depart. You are talking about affidavits that are sworn; a witness statement is not sworn.

Tsikata: My Lords, in this case witness statements are also verified as statements of truth. My Lords, I have referred to affidavits sworn to by the Chairperson.  The ruling of this court…

Judge: ….as far as for me a witness statement. .. you have not taken the judicial oath to speak the truth for her to be cross examined. For her witness statement to be adopted as evidence-in-chief, that document it is just a potential evidence is not proper evidence before this court.

Tsikata: My Lord that evidence indicate an election to add ice evidence that is what I’m submitting.

Judge: Is that evidence?

Tsikata: My Lord, the rules that we are dealing with talk about rules to add evidence. And I’m saying it is an election to adduce evidence. And, my lord, going back to the issue of whether it has been sworn or not, the order that we are dealing with is in accordance with. .. Counsel for the 1st respondent it is an order where he is reading is where when the defendant elects not to adduce evidence. That is the arterial basis for which he is putting forward the submission to you. Your Lordships are taking me away from the language of that order. Where you elect to adduce evidence; and your Lordships are going into an issue where he has called the evidence. These are two different scenarios.  If he has been elected by virtue of the witness statement that they themselves said they have filed; if he has clearly…

Transcription by Bernice Bessey and Isaac Akwetey

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