JOHN MAHAMA VRS. EC & ANOR...Some random thoughts

 I think the Petitioner is swimming upstream insisting JM the female must testify because the EC has already filed a witness statement on her behalf and also affidavits clearly signalling a readiness and ability to enter the witness box. The Supreme Court has decided to stick to the letter of the law and precedents on that score to cement the long accepted legal position that if she says she wont go into the box, she cant be compelled. 

I see no need for the Petitioner to go for a review on that. It will be another mountain to scale and the unanimity on the earlier effort, it may not end well. 

What I think the Petitioner should do first of all is to get the court  to state the legal status of the witness statement at this time. The Respondents must tell the court what they want done with their statements. If they say they will not rely on it, the court will have to strike it out, which has dire implications  for the Respondents.  If they say they rely on it, then the rules in CI 87 allows the Petitioner to tender that statement as hearsay evidence. So in my humble opinion, the Supreme Court must first determine the status of the statements.

 I do not see all that being done, in my estimation. In the circumstances, If i was a player in the game, I would have focused on that which would have allowed me to have a shot at madam's statement if I cannot get her physically to cross-examine, mindful of the fact that the court reserves what weight to put on hearsay evidence. 

Remember that under the rules, the Petitioner can only know that the Respondents would not go into the box only after he has closed his case, not before. Now, if the rules say that in that event, the Petitioner can tender that statement as hearsay evidence, it must imply that the court should grant leave to the Petitioner to reopen its case in order to do this. Note it is not to reopen.the case in order to subpoena JM the female. For me, the argument to reopen is stronger after the status of the witness statements have been settled, especially in an indication that it will not be relied on. 

Remember Madam is not a party. She is just an unused witness and if that statement is struck out, she would not even be on the records of the court at all. If that statement is struck out, I see no legal objections to her being subpoenaed as the Returning Officer of Ghana's Presidential elections to testify by the Petitioner. A subpoena on Jean Mensah, as the Returning Officer may have firmer ground than an effort to get into the box as an unutilised witness for the 1st Respondent, who has indicated she would not testify. 

But, this is not as of right. Leave of the court must be sought. The only question is whether leave will be granted by the SCOG? But that is why the status of the witness statements of the Respondents have to be settled as they shape the legal options for the parties. For me as a practitioner bored with the 'sexless practice" Covid-19 has foisted on the fraternity, this has been a fascinating opportunity to have insight into law at work, full throttle, from all the parties. 

So many things to learn from what is going on. We will see where this pans out. Our law grows with each new application pending the final verdict.

Breda Osimi