Jean Mensa Escapes Tsatsu’s Legal Trap
The desire of the Lead Counsel of the petitioner in the 2020 presidential election petition, Tsatsu Tsikata, to take the chairperson of the Electoral Commission, Jean Mensa, through a hectic cross-examination to extract information from her, has been shuttered, as the Supreme Court has thrown out his prayer to have the case re-opened.
The seven-member panel, hearing the petition brought to it by Mr John Dramani Mahama, the 2020 presidential candidate of the National Democratic Congress (NDC), unanimously ruled against the petitioner’s application to re-open his case.
The petitioner had told the court he wanted to re-open his case, which he closed on his own volition, to subpoena Jean Mensa to testify as a hostile witness.
The move, according to counsel for the petitioner, was necessitated by the resolve of the respondents to close their cases just after the third witness of the petitioner had been grilled.
The respondents told the court that on the basis of the evidence brought before the court by the petitioner, together with records of testimonies by the three witnesses of the petitioner, the respondents do not intend to adduce evidence and thus prayed the court to close their cases.
Though the petitioner disagreed with that stance and argued against same, the court in its ruling on February 11, 2021, held the position of the respondents, saying the court could not compel a witness to testify.
The petitioner had told the court that he had closed his case, with the expectation that the respondents would mount the dock to give testimonies, especially as they had filed witness statements.
Surprised by the sudden turn by the respondents, particularly the 1st respondent, counsel for the petitioner then filed an application to re-open his case to subpoena the chairperson of the 1st respondent to testify.
In his argument, Tsatsu Tsikata told the court that because the 1st respondent surprisingly decided not to call a witness, the petitioner should be given an opportunity to deal with some issues that came up during the cross-examination of his three witnesses.
According to Tsikata, it was only Jean Mensa who could tell the truth.
Meanwhile, the two respondents together opposed the application to re-open the petitioner’s case, arguing that the strength of the petitioner’s case should not be on the supposed weakness of the respondent.
The court set Monday, February 15, 2021 to hear arguments from the three counsels, but adjourned proceedings to yesterday to rule on the application.
Giving its ruling at day 16 since the commencement of the hearing, the Supreme Court, speaking through Chief Justice Kwasi Anin-Yeboah, said that the petitioner had not indicated how the evidence he intended to solicit from Jean Mensa, would help to determine the case before it.
Again, the court emphasised that the success of the petitioner’s case is dependent on his evidence and that the decision to close his case was not based on the fact that Jean Mensa had filed a witness statement and was to testify.
According to the court, Section 26 of the Evidence Act was not applicable in this case, as the petitioner had argued.
The court also explained that the chairperson of the 1st respondent is not on trial hence she cannot be asked to vindicate herself.
That notwithstanding, it was the strong position of the court, in its ruling yesterday, that the petitioner was not entitled to an application of that nature as a matter of right, but by the discretion of the court.
“That discretion is, however, one which should be exercised per rules and with restraint as a motion to re-open necessarily involves a balancing of the accountability of Counsel for the decisions regarding prosecutions of this case and the interest of justice.
“Accordingly, we weighed the propriety of re-opening proceedings to permit additional evidence to be led or tendered and Court will typically consider three broad questions. Will the evidence, if it had been presented during the trial, have had any influence on the result? [The second question is] could the evidence have been obtained before beginning trial by the exercise of reasonable diligence?” the court asserted.
The Bench said it found it baffling, the sole purpose behind the application to re-open the case, which was to have Jean Mensa subpoenaed.
The court, therefore, concluded that: “We find no merit or so why the petitioner in his application to re-open his case for the sole purpose of compelling his adversaries’ intended witness to testify through a subpoena without indicating the sort of urgency he intends to solicit from the said witness and how that evidence is going to help the court in resolving the dispute before us.
“We accordingly refuse the application and proceed without any hesitation to dismiss it,” it added.
Meanwhile, the court, before yesterday’s ruling had ordered the parties to file their written addresses by today and potentially would take oral addresses tomorrow, and then adjourned to a date for judgement.
But counsel for the petitioner, had yesterday filed two applications, which would be heard tomorrow.
They are: Stay of Proceedings and Review of the court’s ruling of February 11, 2021, which held that Jean Mensah could not be compelled to testify.
The court will be moved on this application tomorrow, Thursday, February 18, 2021.