Gabby Asare Otchere-Darko, a leading member of the governing New Patriotic Party (NPP) says the lead counsel for the petitioner in the ongoing election petition, Tsatsu Tsikata, should admit that he has been outsmarted by the counsels for the respondents.
“When you say the person declared as the winner did not win the election, it is for you to show to the court why. You do not allege and expect the respondents to make your case for you if they opt to mount the witness box.
“Calling of witnesses is an option which a party can choose not to exercise if indeed that party sees it as not necessary. Tsatsu should simply admit that he’s been outsmarted! It’s left with populist submissions for the ears of party activists,” Asare Otchere-Darko posted on his Facebook wall.
He said “A party cannot force the other party to rely on a witness statement filed and cannot tell the court to compel a party or its witness to the case to testify. The same way the petitioner elected not to testify or elected not to call all five witnesses he had indicated he intended to call, it is not the business of the petitioner to determine for the respondent how the respondent may conduct her case!
Burden of proof
“The burden of proof is on you who is alleging to persuade the court with material evidence that indeed the 1st respondent was wrong to declare the 2nd respondent as the winner of the December 2020 presidential election. If your pleadings and witness statements have not been sufficient for you that’s your headache!” Gabby Asare Otchere-Darko added.
After the cross-examination of Robert Joseph Mettle-Nunoo, the third witness for the petitioner by Akoto Ampaw, counsel for the second respondent, and Justin Amenuvor, counsel for the first respondent, Tsatsu Tsikata informed the court that, they have closed their cases.
Counsel for the respondents had initially indicated to the court that they would call one witness each for which witness statements were filed but later disclosed that they do not intend to call those witnesses anymore.
It will be recalled that on Monday, the lawyer for the EC, Justin Amenuvor, served notice that he will not be calling any witnesses because the petitioner in the view of the EC, has not put up any evidence that has been challenged or defended by the 1st respondent (EC) in the case.
According to him, he based his decision on Order 36, Rule 4(3) of CI 47, which states that; “Where the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on behalf of the plaintiff has been given, close the plaintiff’s case and the defendant may then state the case of the defendant”.
When the court reconstituted on Tuesday, counsel for the petitioner, Tsatsu Tsikata, in his address argued that Jean Mensa must be in the witness box at all cost because it is in the interest of justice.
According to him, the position taken by the first respondent is a clear case of evading cross-examination.
Tsikata contended that as the person responsible for the declaration of presidential results, Mensa owes it to Ghanaians to be accounted to them after the 7 December elections.
He noted that the EC chair had in her affidavits given a clear indication that she will be available for cross-examination based on which the court ruled against his application for interrogatories.
The Supreme Court will rule on the issue on Thursday (11 February 2021).