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Much fuss is being made about the interactions that occurred between the Election Commissioner on the one hand, and Mr. Mettle Nunoo and Dr. Kpessa-Whyte on the other. But whatever happened in that Strongroom has nothing to do with the petitioner’s case. The petitioner claims that the results were manipulated or padded to favor the second respondent, and that if the results were not so manipulated and padded, the second respondent would not have crossed the 50% + 1 vote threshold to win the election. Those were the main issues that were expected to form the assessment of the chief petitioner’s case. This case is not about who tricked whom into leaving the Strongroom, or who announced the results and when. The petitioner has the sole burden of proving his case by witness statements accompanied by valid evidence or by direct examination. Nothing else matters.
And taking these issues into account, whatever the petitioner’s witnesses have told the Tribunal about what Jean Mensah told them is an inadmissible hearsay and should have formed a fundamental objection on the part of the defendants’ lawyers. The rules of hearsay are set out extensively in the rules of evidence and are so complicated that exceptions sometimes swallow the rules. But the layman can simply understand a main feature of the hearsay rule by imagining that every time someone (called a witness) sits on a witness stand under oath to tell the court that someone said something to him; So that’s a classic example of inadmissible rumors. This is because rumors are simply the report of someone else’s words by a witness. This is generally not allowed as evidence in a court of law. In legal terms, we say that the rumor is an extrajudicial statement offered to prove the truth of what it claims. And here both Dr. Kpessa-White and Mr. Mettle Nunoo were allowed to testify that the EC told them to leave the vault. While the Overlords are debating whether or not that fact occurred, they should keep in mind that even if it is fact, it should not be considered in the case by hearsay. Interestingly, another witness is being admitted to corroborate the rumor, and video clips are likely to be admitted to confirm the interaction. But the entire interaction, as claimed by the two respondents, is an inadmissible rumor and should have been characterized as such and dismissed without investigating its truth.
The other point is, what does the interaction have to do with the petitioner’s chief case? How do you push the question of whether the votes were tampered with or padded? Even if it is true, does the fact that these two men left the Strong Chamber on the instructions of the Electoral Commission lead to any conclusion that the numbers were changed or that the votes were filled? Or that some conspiracy took place to alter the results? And even if it is true that the numbers were altered or the votes were filled in or some mistakes were made, do these facts support the petitioner’s claim that the winner did not reach 50% + 1 vote, so there should have been a run? ? -off? And how do you show that in court? Remember that the burden always falls on the petitioner alleging fraud to prove fraud. It is not the Defendants’ duty to help you prove your case. If Defendants’ attorneys do that, that will amount to incompetence on their behalf!
And that’s where the Discovery theme comes in. There are those who are proposing the theory that the Supreme Court should have allowed Discovery for the petitioner. They claim that through Discovery, many materials could have been obtained to reinforce the petitioner’s case. But all aspects of Discovery are subject to objections by the parties receiving Discovery’s requests. To the extent that questions in interrogation, production, admission, and statement can be objected to on valid grounds, it is wrong for someone to assume that there is any obligation on the part of an opposing party to agree to Discovery requests. Only a disclosure request is required because it provides easy details of the parties and their issues. Therefore, it follows that allowing Discovery has nothing to do with automatically obtaining the information the lawyer wants. An opposing party may object to any of the requests to the extent that the attorney gets nothing by proposing a discovery. That can lead to what we call a Motion of Obligation, which is a separate and independent procedural device to request the Court to intervene to force compliance with Discovery’s requests. Even here, there is still no guarantee that the court will make the order.
In Ghana, as we already know, Discovery is not an inherent part of the legal system per se, and must be decided at the discretion of the court. And here, citing CI99, the Supreme Court has already denied the petitioner access to Discovery. I believe that the law adequately supports the denial since the requests appear to be a fishing expedition: it appears that the petitioner cannot fulfill his burden of proving before the Court that the elections were rigged or that the votes were padded; and he was trying to abuse the Discovery process to secure his materials and prove his case. This is not allowed even when discovery requests are freely interpreted as available …… ..
In quantum coda, therefore, the interactions of the Plaintiff / Plaintiff’s agents with the Electoral Commissioner in the Strong Chamber constitute an inadmissible rumor and must be ruled as such by the Court. Even if it is allowed, it is also irrelevant as evidence to prove the question of whether or not the elections were rigged the votes. The Strongroom scenario described by the witnesses is also not relevant to proving the petitioner’s case, insofar as it will not show relevant evidence to advance the petitioner’s claim that the vote was rigged or that the results were padded. Focusing on that scenario can also constitute a fishing expedition, or a distraction and a red herring when the petitioner has not been able to prove his case so far to show that he is entitled to redress.
Dr. Samuel Adjei Sarfo, Esq.
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