Tsatsu’s review submission that failed to convince the judges

Tony Lithur: My lords, there are two applications scheduled for this morning. One is for stay of proceedings in view of the fact that the court has scheduled for today. I pray you indulgence for application for stay of proceedings.

Judge: …for extension of time and you also did before the ordinary bench. That was why decided that we can take…Oh the lead counsel is now in. He can take the review.

Tony Lithur: Yes, Mr Tsikata will take the review.

Tsikata: My lord, respectively we have application for a review before your lordships.

Judge: Time management, you have 30 minutes.

Tsikata: Very well.

Judge: There will be no extension of time.

Tsikata: I’m sorry, I didn’t hear that.

Judge: There will be no extension of time.

Tsikata: The application for review is brought under Article 1.33(1) of the Constitution and rule 56 of the Supreme Court Rules. I respectfully move in terms of the motion paper and the supporting affidavit. And this review is in respect of our application to reopen our case and your lordships ruling is our first exhibit attached to the application. In our respectful submission as our ground ‘a’ indicates, this ruling was firm in section 72 of the Evidence Act 1975 and has occasioned a grave miscarriage of justice. There is no question that in your lordships ruling, there is no reference or so ever to section 72 of the Evidence Act. Instead, there is a reference to Black Law Dictionary, which is an English law text. No reference is made to Section 72 of the Evidence Act. Section 72 of the Evidence Act is a Statute of Ghana, no reference is made to that and instead reference is made to an English law textbook, which is not what is binding on your lordships. That is why we say respectfully, that decision is firm inquira of Section 72 of the Evidence Act.

And my lords, the authorities are clear and we have cited “The Republic against Tetteh,” 2003/2004, Supreme Court of Ghana Law Report, 140, where the lordship in the Supreme Court reversed a unanimous decision that they themselves have given and they reversed that decision on the basis that they have failed to take into account the Armed Forces regulations, which was part of what their duty was as a Court of Ghana. They have failed to take it into account. And so the lordships in the Republic against Tetteh reversed a unanimous decision that they had taken and they unanimous corrected an error.

Now my lords, in another ruling your lordships had given in this case recently, your lordships have said that even if you did not refer to a certain statute in your judgement, we have not shown it has occasioned a miscarriage of justice. My lords, respectfully, that is a fundamental error. Republic and Tetteh shows that once there is no reference to a statute binding your lordships, we don’t need to show further that there is a miscarriage of justice.

The failure to apply the statute of law of Ghana is enough a miscarriage of justice, in accordance with the decision of the Republic and Tetteh. And if no compliance with a statute of Ghana and that is not a miscarriage of justice, respectfully I don’t know what a miscarriage of justice is.

Section 72 is very simple and is this; Section 72, subject to the discretion of the court in a civil action, “Party or a person [no sound]” …the ruling was a fundamental error in subjecting provisions in the Evidence Act to the provisions of subsidiary legislations.

[No sound]…of our application of our grounds Ground ‘b’ says the ruling was in fundamental error in subjecting such provisions in the evidence Act to the provisions of the subsidiary legislation.

My lords, there again, nothing could be more basic than the fact that a statute is superior to subsidiary legislation. The Rules of Court Committee are not [no sound] in ground ‘b’. So we have dealt with ‘a’, ‘b’ and ‘c’. We indicated in ground ‘C’   [court interjects]. We took ‘b’ and ‘C’ together and argued in relation between b and c, and indicated that the fundamental error consist of sideling legislation in favour of subsidiary legislation and in relation to ground ‘c’, which is irrelevant to the issue in the statute anyway. And so we move to ground ‘D’.

And in ground ‘d’, our submission is that here again, the court made no reference whatsoever to Order 38 r 10 of C.I. 47 nor indeed Section 58 of the Court Act. And Section 58 of the Court is the Section, which even gives power to your lordships to call a witness and that Section has been properly applied, so in other words apart from our ability to subpoenaed upon reopening of our case, there is also the opportunity for this court itself to call a witness.

And the circumstances in which the court does that, those circumstances are exemplified Owodei and Bukari, 1976, II Ghana Report, 371. Where the Court of Appeal, then the Apex court proceeded as follows, and this from Justice of the Appeal, Archer, as he then was: “After judgement had been reserved in this court. It was felt that …with the same situation, which the court below found itself. It was, therefore, decided to ascertain the truth in this matter …” and so on and based on that it has come to the court to ascertain the truth of the matter.

And the court went on to point out that just as invitation of a witness to come and testify had brought up a very important piece of evidence, which even it has been adduced in the court below, it would have spared the court the torments of exploring whether or not the certified copy of the land and Planning Department… was tended.

And the court even goes on to say, one can… initial reservation but as this additional evidence has enabled this court to ascertained the truth beyond reasonable doubt, we think by allowing this additional evidence, as admitted Mr. Randof conducted himself in the best traditions of the Bar. Indeed those in respect of the best traditions of the Bar invoke some nostalgia in the heart of some of us.

And my lords, we are respectfully saying that the ruling that your lordships gave, did not even adverts to Order 38 r 10, which we had indicated, was the basis on which we are seeking to reopen our case. It did not even advert to that and it was therefore perim require. .

We say also in ground ‘e’, which I moved on onto now that the ruling was perm inquira to Article 19(13) of the constitution and has occasioned grave miscarriage of justice. And Article 19(13), is the provisions on the right to a fair trial in this court. And we showed on submission in that matter how this supreme court adverted its mind to a decision of the Supreme Court of the Netherlands, in which the Supreme Court of the Netherlands, was highlighting the importance of ascertaining the truth in matters that were before it. and that was made to displaced in the interest of right to a fair trial. It made to displaced in any international relationships as being something that the court would have reference to. That decision in the case of Tsatsu Tsikata and the Republic, is the decision we have cited in our submissions and I will not go further into that expect to underline the fact the Supreme court of the Netherlands who reasoning was adopted by the Supreme court of Ghana, also considered it appropriates that in the interest of ascertaining the truth, it was of value to the court to call the witness

Judge: Mr Tsikata, once again I’m curious about something, if it was so important to you have a particular person testifying for you, did you not present that as part of your pre-trial positions.

Tsikata: my lords, we could not for the reason that I have given a few time in this court. At the time that 1st respondent chairperson, was a person who has filed a witness statement on behalf of… first of all has filed an affidavit on behalf of the 1st respondent and subsequently filed a witness statement on behalf of the first respondent.

Judge: So in essence you were hoping to rely on her coming to testify and found yourself without that and that is why you are now asking she comes as your witness after everyone has closed their case. Is that what you are saying in essence?

That witness, as we indicated, has sworn affidavit in response to our application to respond to our interrogatories and in those, she has given every indication that she will testify, we have no reason to believe that she was not telling the truth. We have no reason to believe that she did not mean it when she has sworn affidavit.  We have no reason to believe that anybody in the court would assume other than she would testify. In fact the day that she answered she will not testify, on that day, your Lordships themselves expressed you know some surprise and that was the reason why you adjourned to the next day for arguments to be raised and so on.

Judge: Mr Tsikata when your announced that you have closed your case what did you mean?

Tsikata: Nothing more, nothing less that we have closed our case and we announced the we are seeking leave to reopen our case, I mean exactly that. Nothing more, nothing less. We are seeking leave to reopen our case in circumstances where a person who has deposed to affidavit she will be available for cross examination and where your ladyship, specifically had intimidated that the questions that we were seeking to raised in the interrogatories could be asked in cross examination. I’m sure your, ladyship had not forgotten about that bridge and in that contest your ladyship had said ain’t we crossing a bridge we have not got to. And we indicated that at the stage of interrogatories, we still found it appropriate to anticipate that. But your lady ship said that bridge will be there but that bridge is no longer there.

Judge: Mr Tsikata when you said that you closed your case and you meant it, nothing more nothing less, what did you mean?

Tsikata: Really don’t understand what your ladyship what by a way of an answer. We meant that we have closed our case and we have closed our case and subsequently we sought leave to reopen our case. You lady ship cannot say that we are not able under the rules in your inherent jurisdiction [no sound] to ask for leave to reopen our case [no sound]. …I don’t know that is suggesting that you lord [no sound].

Judge: I don’t think in have said any such things so

Tsikata: but that is very difficult to comprehend

Judge: I just wanted to understand what you meant what you meant that you have closed your case

Tsikata: I just answered nothing more nothing less.

Judge: I’m satisfied with answer sir.

Tsikata: My lords we continue finally to last ground that ruling was in breach of Article 2 (9(6)). My lords very simply puts, what we are saying that ruling is completely unreasonable in terms of what I often refers to as Wensbrick principles and Her ladyship by the TDCs, defied logic and common sense or accepted moral standards, which prejudice a fair exercise of discretion as we call in Article 2(9(6)) of the constitution.  It is our submission that holding the first 1st respondent, particularly the chairperson accountable for the exercise of powers conferred by the Constitution and statute justifying the circumstances of this case that chairperson be called upon to testify using the time tested subpoena procedure that we seek to invoke in this case.

My Lord’s, there are no question that the process of review is among the ways, in which  corrections are made by your Lordships and as Ackwah [court interjects: Mr Tsikata your time is up.]

Tsikata: May I just finish in a minute because I’m in the middle of a sentence, is that is allowed?

Judge: Okay you may finish

Tsikata: As Ackwah indicated in the Cobweb case, heeding  to the fountains of consciences  heeding to the fidelity to the judicial oath ,  he found it appropriate to reverse a decision of the ordinary bench. May each of your lordship decide in accordance with your conscience and your judicial oath.  Ultimately and even more profoundly,  it is for the chairperson of the 1st respondent to come forward to testify as she indicated on oath she will do.

I conclude with prophetic words that were spoken centuries ago, “For they sown the wind, they shall reaped the whirlwind. These are the words of the Prophet Hosea, to be found in Hosea chapter 8: 7. He that has ears let him hear.

Justine Amenuvo: My lords are vehemently opposed to this application for review number three. My lord, we have filed an affidavit in opposition as well as a statement of case, we rely on it. My lords, under Article 1(33(1)) of the Constitution, this court reviews any decision made or given “…”  My Lords, even the Constitution recognises the role that is played by the rules of court committee.  And, indeed, my Lords, the rules of court committee as the Supreme Court rules 1996, CI. 16 and my lords, the specific on review is rule 54.

My Lords, this court is the final court of the land, we concede that the court is infallible, but my Lords, your lordships may change your minds in the application for review only when certain conditionalities have been met.

My Lords, those conditionalities have been set out in Arthur No 2 vs Arthur No 2, 2013/2014, I Supreme Court Ghana Report, 569, at pages 57… and 580. My lords, I will not read those conditionalities but they are there. My lords it is only when those conditionalities have been met that review panel should seriously consider the merit of the application.  My Lord’s, it is our submission that the conditionalities set in rule 54 of C.I 16 and …panel of 7.Indeed, if we want to give some credit to the grounds, there are at best additional grounds that have been filed without leave of your court in terms of appeal but they don’t form grounds for review for, which my Lord’s should use proceed to merit or to permits him for additional evidence.

Then your lordship conclude that in this application … any attack…this application must fail. It still doesn’t have the incline of the evidence that the applicant

By agreement of counsel, the court then said that let an expert come and testify the authenticity of the documents. In that case the court allows further evidence just because the evidence which the expert was being called was known. This is not the situation in this case. My lords, what has been done is that there has been arguments that bother on the nature of appeal. Indeed, my Lords, look at paragraph ‘3’ of the affidavit in support. With your kind permission, if I may read? He says “at the hearing of this application I shall through my counsel seek leave of this honourable court to refer to all processes filed in case up to the date of hearing of this application.” Clearly, indicating to your Lordships that he is going to argue on appeal and that is why your lordships… [Court interjects]

Judge: It is an based on previous motions.. in motions, what you try to do is that instead of seeking leave on your feet to refer to it you can capture it in your affidavits  [no sound]

Another judge: Mr Amenuvor are you referring to me as …loser. I argued that  application for review for the court (laughter at the background) I was standing where you were some few years ago and I lost that application.

Amenuvour:  Well, my lord, the review panel formed that view of you. (laughter at the background) The review panel formed that view of you and, indeed, of your client my lord. My lord, incidentally, my learned friend was at the other side was in that matter and he got the review.

My lord, the case of Mechanical Lloyds Limited vs Nartey, again, is clear on the point my Lords, arguments had been made in the is court regarding fair trial, my Lords, I ask just a couple of questions of the [sound]… This petition has been in a piecemeal faction, which … one of the things that C.I. 999….. first orders of the court are disobeyed,  file witness statement no. You yourself intimate that I’m going to call five witnesses, you called two and you come back to the court.  My lord, I forgot one person, permits me, and it is permitted.  You called that person [Court interjects]

My Lord’s, with the greatest respect, the issue of fair trial has been raised, and I’m saying that he has been given a fair trial. In the way the case has been conducted my Lords.

My Lords, then we go from there to having called the third witness, what is your pleasure, my Lords, I close my case of your own volition. My Lords, it is my submission, therefore, that the petitioner was given every opportunity. He was fairly heard in this proceedings and what has been filed review number three is an abuse of the court processes and the application ought to be dismissed…

Justice: Mr Amenuvor, you have not addressed us in reference to the Gospel according to Hosea.

Amenuvor:  My Lords, my point I wish to make on that, if you permit me, is that God is a God of consciences, and God doesn’t use court processes to elicit conscience.  No. God is a God of conscience and therefore you don’t bring God into the court to now claim that on God applications should be granted. That is my response.

 

Akoto Ampaw’s submission

Akoto: My Lords, we oppose this application and, my lords, we rely upon our affidavits in opposition filed on the 21st of February together with our statement of case.

My lords, our first submission is that this application woefully failed to satisfy the conditions for the grounds of a review application, as in our view, it does not demonstrates any fundamental error committed by the court, which has occasioned the petitioner in the miscarriage of justice. And on that ground alone, this application ought to be dismissed.

My lord, on ground ‘a’ of the petitioner’s application, the petitioner refers to section 72 of the Evidence Act.  Now, my Lords, Section 72(1) of the Evidence Act reads “…”  My lords, it is very significant that in his statement of case there is a deliberate omission of the controlling word, evidence by the party. And, I see no reason to deem that this was inadvertent because it is repeated twice. An on both occasions, this critical word is left out is evidence.

What is the significance of adding evidence to even section 72 (1) including of evidence. It means that a party can only exercise that right when he has not closed his case. That is what is means and I want to repeat this, Section 72, which appears as the backbone of this application relates to a situation where a party has blot closed his case.

Now in this instant situation, the party had closed it case, so the court had no business referring to Section 72 (1) because it was irrelevant in the circumstances of the case. And my, lords, it is my submission that knowing that they had closed their case, the petitioner’s dis-ingenuosly omitted evidence and, with all due respect, this is highly improper.

So my Lords, all the submissions around Section 72 that the court was perinquiram of Section 72 are totally unmeritorious and irrelevant.

Now my Lord’s, we proceed to deal with grounds b and c. And my lords, counsel for petitioner had argued that order 38 r 3E (5) cannot override section 26 of the Evidence Act, because in his view, the evidence act is a substantive legislation and hmm order 36 subsidiary.  Sorry 38 subsidiary, My Lords, that may well be the case that Order 38 r 3E(5) is a subsidiary legislation but the critical point here, is that the very principal Act, the Evidence Act Section 36 by itself delimits the application of the main text by the words subject to Rule of law or equity.

My Lord’s, there can be absolutely no doubt that order 38 r 3e (5) is part of the laws of Ghana. So it is because of the specific provisions of  section 36 that court could then look at Order 38 r 3e (5) and rely upon it in making it ruling. So my lords, respectfully I think it is misconceived to suggest that in doing so court has committed a fundamental error by allowing a subsidiary legislation champ a substantive Act of Parliament

My lords, we will next address ground D, which relates to Act 4 (5 (9)) of Section 58. My lords, in our respectful view section 58 of Act 4 (5 (9)) is completely irrelevant to the matters before the court. Because the matters before this court, which is the subject matter of the review application relates to the court’s decision not reopen the case. My lord, that is the decision of the court. Now Section 58 reads “…” My Lords, the provision presupposes that the party who is applying… This is obviously commonsense.  It is very clear that this provision cannot relats to a situation where a party has closed his case. And my lords, these are the ways in which provisions of the law have been persistently cited out of content. Perhaps you may…those don’t know the law.

So my Lord, it is our respectful submission that a reference to section 58 of the Evidence Act, sorry of the court’s Act in this situation is totally misconceived, and it should never have been made by counsel.

My Lords, we wish also to make the point here for the last time that the chair of the 1st respondent has never made any undertaking that she will mount the witness box such that the petitioner could claim that he relied on it to his detriments.

My Lords, all that the chair did was to repeat that, and that is all that she did. And if your Lordships go to order 22 r … all that the chairperson of the 1st respondent did was that to of you failed obtain interrogatories to a matter you may during cross examination elicit same information that is all.

It was never an undertaking and it is beggars belief that the petitioner and counsel are basing this statement of the law as an admission or representation that they relied upon to their detriment. My lords, i therefore wish to submit that a reference to the deposition of the 1st respondent chair on this matter can never consist an extopple. Because she has the right to refuse not enter the witness box and the court has ruled definitively on this.

This application for review of decision to reopen cannot be the backdoor through which that earlier ruling can be considered. The court has ruled on it and that ruling binds all of us including counsel for the petitioner.

The fair hearing argument

Judge: you have five more minutes

Akoto: Very well.  My lords, i thought i have more minutes.     Unless your Lordships think i have made up my case so

Judge: out of the 30, you have 5 minute.

Akoto: My Lord’s, ground ‘e’ relates to allegation of breach of right to fair hearing. My Lord’s, them right to fair hearing is a right that all parties to a suit are entitled to. So the court has ruled that respondents have the rights to elect not to adduce evidence, that is their under the law. Therefore to seek to reopen your case so that you can compel the 1st respondent who chair to enter the box is the breach of the 1st respondent right to fair hearing also.

My Lord’s, it is our considered view that no evidence or analysis have been made by counsel for petitioner that sustains their claim that their right to fair hearing has been breached.  Indeed, this court has been more than accommodating to the petitioner. They defy the court’s order with impunity not filing witness statement at the time they were ordered to. They have even defied the court order to file closing address and perhaps the court may once again accommodates their defiance of the highest court of the land. And then they turn around to talk about fair hearing.  In our respective view, that they case should have been strike out when they failed to file the witness statement as ordered by the court or it could have been strike out.

And as we speak now, as they have defied once more to file their closing address this case can be settled without their closing address and it will be fair trial. My lord I’m saying it will be fair trial for that to happen.  Possibly there is once again going to accommodates thst. So they should be the last people to be mounting them high horse talking about breach of their right to fair trial.

My Lord’s, our respectful submission is that this allegation of the breach to fair trial is an invitation to the court to go on a fole has absolutely nothing do with the issues before this honourable court, as to whether any person, any of the two parties, the petitioner or the 2nd respondent obtained more than 50% of the valid votes cast in the 2020 president elections.

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