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I don’t know the bases for which people claim the petitioner has not made a case against the EC yet and so the petitioner should lose but as far as I am concerned a case has been made against the EC and a failure to respond should lead to a judgement against them.
In the first place some things speak for themselves and on their own if not explained could lead to a decision against you.
On 9th December, 2020 the EC chair declared results in the presidential elections.
A summation of the percentages of each candidate results in more than 100%. This is a case of the petitoner against the EC which remains unanswered.
It is the case of the petitoner that that declaration by it’s contents alone is null and void and since you cannot have more than 100% in a declaration answers are required from the EC. If they fail or refuse to explain it on oath then that assertion stands against them in the Petition.
Also, in a purported statement issued by the same EC, claiming to change the earlier declaration, that letter was unsigned. What is the legal effect of such a letter on a declaration and what was the legal bases for doing so?
These are documents in evidence and also remains unanswered and a failure to answer on oath should go to the benefit of the petitoner.
As far as I am concerned the petitioner has already made a serious case against the EC and it is upon the EC realizing that if they should open their defense they would be heavily and seriously embarrassed that’s why they have chosen not to open their defense.
Indeed I have not heard anywhere in the submission of the EC that the reason why they would not allow the EC chair to take the stand is because the petitioner has not been able to discharge the burden on him. I have not heard this argument anywhere apart from sympathisers of the NPP especially in the media pushing forward this assertion.
As far as I am concerned, it is the NPP lawyer Mr. Akoto Ampaw who took advantage of the discussion that ensued between Tsatsu Tsikata and the bench when the EC lawyer announced to the court that they elect not to adduce evidence.
Infact, that discussion prompted Akoto Ampaw to say they also intend not to open their defense by calling any witness and would rather make a submission of no case.
If anyone has any evidence anywhere which show that the reason the EC chair is not taking the stand to lead evidence is because the petitioner has not made any case against the EC please point it out to me and I’ll gladly concede on this point.
In fact, under the rules of court which was relied on by the EC to inform the court that they do not intend to adduce evidence, that rule is not about submission of no case, which means there is no case to answer after the conclusion of the plaintiff’s case.
Submission of no case is different and very different from refusal to take the stand to adduce evidence. They are two different legal principles so no one should confuse the two. Infact, this case presents an opportunity for the public to learn and know the difference between the two.
Unfortunately, a huge section of the public led by many in the media are rather misleading the public regarding these two significant but different legal standards.
What you must understand is that where a party refuses to adduce evidence, what the person is saying is that let the court decide the case based on the evidence so far led. It’s as simple as that. It has nothing to do with whether or not the plaintiff has discharged some burden on him or not.
This legal principal of refusal to lead evidence is usually adopted where the person relying on it fears that if he or she decides to open their defense they are likely to introduce incriminating evidence to their detriment for which reason they would not open their defense and hope that the evidence led so far may not be enough to get them in trouble. But even in a situation where there’s enough evidence, whatever consequences thereof would be less compared to the situation where they actually open their defense.
It’s just like being confronted with two evils, what you do is chose the lesser evil and this is exactly what I think the EC is doing and nothing else.
Now to the main issue of the Petition, I am of the strong view that if the EC does not open their defense, the evidence so far led by the petitoner is enough for the petitoner to be granted his reliefs.
And below are my reasons:
The standard of proof which prevails in criminal trial is not the same in civil trials.
Under criminal trial the standard is very high and remains on the prosecution throughout it’s case until it closes it case before the burden may shift to the defense.
However in civil trials the burden is not static. It shifts like the pendulum throughout the trial.
This is so because the burden imposed on the parties in a civil matter is not the same as in criminal trials. The burden in civil trials is only on preponderance of probabilities or in other words balance of probabilities. It basically means it is the side that the judge decideds to believe at the end of the day based on the evidence so far led.
Now, the judge, among other things, in deciding which of the two stories to believe would have to compare the evidence led on both sides throughout the trial and then would also consider other factors such as credibility of the witnesses, the weight to attach to the pieces of evidence before it, the demeanor of the parties and a host of other considerations, all this while being guided by the law and the standards of the respective burdens. At the end of the day if sufficient evidence is led on the material facts before the court the party gets judgement in his favor.
But what is critical at the end of the day is both sides telling their stories.
If during the proceeding one side decides not to take the stand to adduce evidence, it rather becomes an easier job for the judge because there’s no other story to compare with.
In essence, since there’s nothing else to compare with, unless the evidence already led by the party has been so discredited not to be reliable, the court has no choice than to rely on it to give judgement in the favor of the party that has given evidence.
This fact seems to be lost in the trail due to the media war currently ongoing.
With regards to the Petition at hand, the petitoner has given evidence and closed his case.
For the record, it is only the petitoner that has led evidence in the matter and is the only one with his story before the court.
Unless the EC and or the 2nd respondent can show that the petitioner’s evidence is so discredited not to be relied upon, the petitoner should win his case because there’s nothing else to compare with for the court to be able to decide which case is more probable than the other.
In addressing the notion in the minds of some people that because the petitoner has not come to court with his figures he has not discharged the burden, I want to correct for the record that the burden in a civil matter is not static and that it keeps shifting like a pendulum.
In addition, the burden is unlike in a criminal trial where it is so high on the prosecution.
Thirdly, and for the record, it is only the petitoner who’s testimony and assertion has been subjected to cross examination.
So far, everything that has been filed by the EC and the 2nd respondent are mere pieces of paper until they mount the box to defend it and to subject them to scrutiny in a cross examination.
Indeed, pleadings are not sworn statements to be relied upon by a court unless the party has opened and closed his case and subjected himself and all his evidence to cross examination by the other party.
So once the EC has failed or refused to mount the box to open their defense, whatever they have filed is meaningless in the court unless any of the parties decide to introduce it into evidence.
So although, the EC has filed an answer to the Petition and denied the assertions being made by the petitoner, those denials mean nothing unless and until they have mounted the box to challenge the assertions of the petitoner and allowed themselves to be cross examined.
As things stand the case of the petitoner remains largely uncontroverted and unassailed for which reason the petitoner should win if the EC still refuses to take the stand.
Now as a reminder, let me add that the assertions of the petitoner which remains uncontroverted includes the following:
- That the declaration of 9th December, 2020 is null and void as the total percentage of all contestants put together exceeds 100%. This is still a fact which has not been debunked by the EC.
- The EC cannot by a press release and by an unsigned letter try to change a declaration that has already been done. The EC has not been able to legally justify this conduct so far.
- Any subsequent and purported change/correction was not done in accordance with law. Same as point 2.
- That none of the candidates obtained the 50% plus 1 requirement of the law to be declared. Remember different figures have been put out by the EC as the total valid votes cast. Meanwhile there’s no explanation for each different figure. This is a conduct that can only be explained by the EC and the burden is strictly on the EC. Same as point 1 and 2 above.
And many others.
What people need to know is that the case of a party is not only what he says during cross examination. It includes the pleadings and testimonies of his witnesses as well as documents and other pieces of evidence that are part of the record but not in the glare of the public.
A few wrongly answered questions do not mess up the entire case of a party. It is the totality of the evidence led which determines the case of the party.
And I say this because many who observe proceedings are not lawyers and so are quick to jump to conclusions.
And with this being a politically charged case, with lots of media propaganda, fertile ground is easily created for the public to be misled. Law doesn’t work the way the ordinary man thinks. There is always more to it and that’s why I have taken the time to expose a few things about the law in order to lower expectations and more importantly not to feed too much into the propaganda war that is currently going on especially about the case of the petitoner. If the EC should fail to lead evidence, it is more likely to lose the case than not and I know they are aware of this, except to say that, I believe their decision is more of a choice between two evils.