A lot of hullabaloos is being made about the interactions that occurred between the Electoral Commissioner on one hand, and Mr. Mettle Nunoo and Dr. Kpessa-Whyte on the other hand. But whatever occurred in that Strongroom has nothing to do with the Petitioner’s case. The Petitioner is claiming that the results were rigged or padded to favor the Second Respondent, and that were the results not so rigged and padded, the Second Respondent wouldn’t have crossed the threshold of 50%+1 vote to win the elections.

Those were the main issues expected to form the gravamen of the Petitioner’s case in chief. This case is not about who deceived who to leave the Strongroom, or who announced the results when. The sole burden is on the Petitioner to prove his case through witness statements accompanied by valid evidence, or through direct examination. Nothing else matters.

And with these issues in view, whatever the Petitioner’s witnesses have told the Court about what Jean Mensah told them is inadmissible hearsay and should have formed a foundational objection by the Respondents’ lawyers. The hearsay rules are expansively set out in the rules of evidence, and they are so complicated that the exceptions sometimes swallow the rules. But the layman can simply understand a main feature of the hearsay rule by imagining that whenever somebody (called a declarant) sits in a witness box under oath to tell the court that somebody told him something; then that is a classic example of inadmissible hearsay. This is because hearsay is simply the report of another person’s words by a witness.

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This is usually disallowed as evidence in a court of law. In legalese, we say that hearsay is an out of court statement offered to prove the truth of whatever it asserts. And here, we have both Dr. Kpessa-White and Mr. Mettle Nunoo being allowed to state that the EC told them to leave the strongroom. While the Supreme lords are debating whether or not that fact occurred, they should note that even if it is indeed a fact, it ought not be considered in the case on hearsay grounds.

Strangely enough, another witness is being admitted to corroborate the hearsay, with video clips likely to be admitted to confirm the interaction. But the whole interaction, as being asserted by the two declarants, is inadmissible hearsay and should have been characterized as such and dismissed without inquiring into its truth.

The other point is what does the interaction have to do with the petitioner’s case in chief? How does it drive the issue of whether or not the votes were rigged or padded? Even if true, is the fact that these two men left the Strongroom upon the instruction of the Electoral Commission lead to any conclusion that the numbers were changed, or that the votes were padded?

Or that some conspiracy took place to alter the results? And even if true that the numbers were altered or the votes were padded or some mistakes were made, do these facts support the averment of Petitioner that the winner did not make it to 50%+1 vote, and so there should have been a run-off?  And how do you prove that in court? Remember that the burden is always on the Petitioner who is alleging fraud to prove the fraud. It is not the duty of Respondents to help him prove his case. If Respondents’ lawyers do that, that will amount to incompetence in their representation!

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 And that is where the issue of Discovery also comes in. There are those who are propounding the theory that the Supreme Court should have allowed Discovery for the Petitioner. They claim that through Discovery, many materials could have been elicited to bolster the Petitioner’s case. But every aspect of Discovery is subject to objections by a party served Discovery requests. To the extent that questions in Interrogatory, Production, Admission and Deposition can all be objected to on valid grounds, it is wrong for anybody to assume that any obligation exists on the part of an adversarial party to acquiesce to Discovery requests.

Only a Request for Disclosure is compulsory because it gives easy particulars of parties and their issues. It follows therefore that permitting Discovery has nothing to do with automatically getting the information counsel wants. An opposing party can object to any of the requests to the point that counsel gets nothing by propounding discovery. That can then lead to what we call a Motion to Compel which is an independent and separate procedural device to solicit the intervention of the Court to force compliance of the Discovery 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 has to be decided upon the discretion of the court. And here, citing CI99, the Supreme Court has already denied Petitioner’s access to Discovery. I think the law adequately supports the denial since the requests appear to be a fishing expedition: It appears that Petitioner cannot discharge his burden of proving to the Court that the elections were rigged, or that the votes were padded; and he was trying to abuse the Discovery process to secure their materials to prove their case. This is not permissible even where Discovery requests are liberally construed to be available……..

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In quantum coda therefore, the interactions of Petitioner/Plaintiff’s agents with the Electoral Commissioner in the Strongroom constitute inadmissible hearsay and should be ruled as such by the Court. Even if allowed, it is also irrelevant as evidence to prove the issue as to whether or not the elections were rigged or the votes padded.

The Strongroom scenario being described by the witnesses is also not relevant to prove the Petitioner’s case, insofar as it will show no relevant evidence to advance the petitioner’s averment that the voting was rigged or that the results padded. A focus on that scenario may also constitute a fishing expedition, or a distraction and red herring where the Petitioner has not been able to prove his case so far to demonstrate that he is entitled to any relief.

Credit: Dr. Samuel Adjei Sarfo, Esq.


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