The Supreme Court was scheduled to start the 2020 Election Petition hearing at exactly 9:30 Greenwich Mean Time (GMT) Tuesday, January 26, 2021, however, Tsatsu Tsikata, Lead Counsel for the petitioner, John Dramani Mahama, was nowhere to be found.
Lawyer Tony Lithur, who is second in command to Mr Tsikata, told the court after it was ready to conduct the business of the day that the Lead Counsel was on his way coming, hence, pleaded with the seven-member panel to stay proceedings to afford his senior the opportunity to join in.
Unfortunately, the panel, presided over by Chief Justice Anin-Yeboah, refused the request, saying the court gave a specific time for the trial to be conducted, hence, they will not retire to their chambers to wait for Mr Tsikata.
The Chief Justice, together with other members of the panel – Justice Yaw Appau, Justice Samuel Marful-Sau, Justice Nene Amegatcher, Justice Professor Nii Ashie Kotey, Justice Mariama Owusu and Justice Gertrude Tokornoo – urged Mr Lithur, who is also an experienced counsel, to conduct the case instead.
While at it, Mr Lither informed the court that the petitioner, as result of an application of stay of proceedings filed on Thursday, January 21, could not file his witness statements, exhibits and preliminary legal objections, as ordered by the court at the Day-3 sitting.
The judges, unhappy with the move by the petitioner, since it was deemed a disregard for the courts orders, asked Mr Lithur why he wanted to stay proceedings and yet had gone ahead to file new processes a day before.
The justices then retired to their chambers and came out with a decision that although the petitioner had filed an application to stay proceedings pending the hearing of an application for a review of its earlier notice to serve interrogatories on the first respondent, Electoral Commission (EC), he could have complied with the court’s orders.
According to the decision read by Justice Anin-Yeboah, before the court listens to any further applications by the petitioner, it was imperative that its prior orders are complied with to enable the business of conducting the petition done in an orderly and expeditious manner, as directed by C.I. 99.
He continued that whatever issues that may arise from the interrogatories filed by the petitioner, if allowed on review or acceded by the 1st respondent, can be incorporated in the due conduct of the trial.
Nonetheless, he said: “We don’t appreciate the current state of pleading, and applications filed should make room for the parties to seek further audience while ignoring the prior directions and orders of the court, to the extent that orders of this court had not been complied with.”
Chief Justice Anin-Yeboah then referred the petitioner to the following rules of the court, Rule 69 (C4b) of the Supreme Court rule C.I 16 as amended by C.I. 99, which reads: “The court may dismiss the petition where the petitioner fails to file the processes regarding the petition within the specified time, or hear and determine the petition when the respondents fail to file their answers or the processes regarding their answer within the specified time. Indeed, this position in the procedural rules of the Supreme Court relating to presidential election petition is echoed through the different hierarchy of court in current case management structure, and will not be compromised.”
He continued on the same trajectory that Order 32 rule 7 of A, sub-rule 3 of the High Court civil procedure amendment rule 2004 C.I. 87, which governs trials in the High Court, has a similar provision which states that where a party has failed to comply with any of the directions given at a case management conference or pre-trial review or both, the judge may make the following:
a. by striking out the action if the non-complying party is a plaintiff
b. or strike out the defence and counter, if the non-complying party is a defendant
c. or order any party to pay a cost or make any appropriate order
On this note, he stated that the petitioner was again directed to file his witness statements on the matters raised in his petition and other pleadings, and his response to the preliminary objection by close of day, Wednesday, January 27, 2021.
Failure to comply with the order on the part of the petitioner, he said, would compel the court, with no other option, to proceed to invoke the sanctions listed above.