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Lawyer Ace Anan Ankoma Writes:

Notice is served: this is gonna be a tad long.

I keep reading this argument that because article 64 proceedings are ‘SUI GENERIS,’ (to wit of its own kind; unique) somehow, known rule of evidence do not or should not apply, and that the common law-based adversarial system of justice should be swapped for or mixed with the civil law-based inquisitorial system. I disagree. The law is still "he who alleges must prove," irrespective of the kind of case it is. I say so for the following reasons:

1. The court has pronounced on this ‘sui generis’ matter several times. In SABBAH v THE REPUBLIC, Wood CJ said “a constitution being sui generis must be construed in the light of its own wording and not on the basis of words found in any other constitution, let alone the statutory provisions of another jurisdiction, would not permit this.” In NPP v GBC, the court said “a Constitutional document must be interpreted sui generis to allow the written word and the spirit that animates it to exist in harmony. Reference must be made to stated objectives in the Constitution so that the emphatic pointers to its spirit are not missed. The Constitution itself points the way to its liberal interpretation.”

2. In KUENYEHIA v ARCHER, Francois JSC said "any attempt to construe the various provisions of the Constitution, 1992 relevant to the present inquiry must perforce start with an awareness that a constitutional instrument is a document sui generis to be interpreted according to principles suitable to its peculiar character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. Though basic rules of statutory construction may provide the first steps, they should strictly be kept at the first rung as servants and never elevated in flight as maters.” And in EX PARTE CHRAJ (RICHARD ANANE CASE), the court said “a well-established principle of constitutional construction is that a national constitution is sui generis and must be interpreted according to its own character or wording.” None of these cases support(s) this rather strange contention on the non-applicability of our known rules of evidence.

3. When article 64 provided for the filing of election petitions, it did not also provide for the rules of evidence, or practice and procedure that would apply. On the latter, because no existing rules of practice and procedure existed, the article was careful to specifically vest the power to make them in the Rules of Court Committee. I posit that article 64 did not need or have to make a similar provision for the applicable rules of evidence because we already have them in statute. That is why I find it difficult to accept that the courts could or should literally make up or conjure rules of evidence that would apply, notwithstanding the rules in the existing Evidence Act.

4. The Evidence Act constitutes part of our laws both as statute on account of article 11(1) and as “existing law” under article 11(4). Clearly, absent any specific provision in article 64 that would point to or suggest that another set of evidentiary rules should apply, the existing rules under the Evidence Act will apply to every matter before our courts. To the extent that the statute is not being used to specifically defeat the letter and spirit of the Constitution (and I do not see that that is happening, yet), I find no basis in an argument or suggestion that seeks to turn the existing evidentiary rules on their heads and urge adopting any hitherto unknown and inapplicable rules of evidence.

5. Section 1(3) and (4) of the Evidence Act says in part that the court determines whether a party has met the evidentiary burden, and that the failure (add: refusal or neglect) to meet it, means the case will be determined against that party.

6. Under section 10, the burden of persuasion still is “the obligation of a party [not another party] to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court,” involving the requirement to “establish the existence or non-existence of a fact by a preponderance of the probabilities.”

7. Under section 11, burden of producing evidence still is “the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue,” involving the requirement of “a party [and no other party] to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

8. Thus the basic rule of evidence is and remains that except in the known exceptions (to wit statute, implied or criminal defence and on specific trial issues), the burden of persuasion does not shift. It remains on the plaintiff/petitioner/applicant. It is the evidentiary burden that shifts, and even then, only when that burden has been discharged.

9. Therefore, where a plaintiff announces that "the plaintiff has closed its case," that plaintiff is in effect telling the court that the plaintiff has completely discharge its burden and (more importantly) that if only the evidence that it has led is considered in the matter, the plaintiff should win the case. In other words, if the defendant does not lead any evidence to contradict what you, the plaintiff has led, the plaintiff should win. And so, you then hope that your opponent (the defendant) will be unable to meet its evidentiary burden. If your opponent then claims that it will not lead evidence, then the matter should go to judgment where the court has only your evidence to evaluate. Hopefully, the matter will end in your favour – but only if you have discharged your probative and evidentiary burdens. It is never the law, that when a plaintiff closes its case, it can then claim that its case also depends wholly or partially on a defendant (or any other person) testifying. That claim in and of itself admits that the plaintiff has not fully discharged the probative and evidentiary burden, and that it should lose the case.

10. And, contrary to the arguments of the APOSTLES OF SUI GENERIS, this rule applies whether the case is a civil case invoking private or public law, or is a constitutional matter. That is why in MENSIMA v ATTORNEY-GENERAL, Acquah JSC (as he then was) said: “The requirement for proof of an allegation in a trial applies to all branches of legal suits, including that of constitutional law litigation... The standard of proof is the civil standard of a preponderance of probabilities, which must be vigorously applied.”

11. And, notably in NDC v EC (COUNCIL OF STATE ELECTIONS CASE), the plaintiff claimed that because some ministers had written letters removing DCEs and government-appointed assembly members, the assemblies were not properly constituted for the purposes of elections to the Council of State. Even though the defendant denied those allegations, the plaintiff did not exhibit any of the alleged letters. The court, speaking per Acquah JSC said: “The National Democratic Congress did not in its statement of case supply any particulars, nor copies of the alleged letters, neither did it attempt to produce any other evidence in proof of the existence of these letters, in the face of the defendant’s denial. The substratum of the National Democratic Congress’s complaint therefore remains a mere allegation unsupported by any evidence necessary to prove its validity… Failure by the National Democratic Congress to furnish the relevant particulars, documentary or otherwise in proof of its allegation of the withdrawal of the district chief executives and the government nominees, is sufficient to entitle this court to dismiss the action.”

12. Although his Lordship still dealt with the issues raised, for whatever they were worth, he concluded that “In the instant case, since the plaintiff produced no evidence in support of his allegation that at the time of filing this suit, the district chief executives and the government appointees of all the district assemblies, had been withdrawn, he cannot succeed in his quest for a declaration and an injunction to prevent the holding of elections for regional representatives to the Council of State.”

13. Even though Ampiah JSC dissented (on another ground), he agreed with the rest of the court, saying “To allege that a person has breached a constitutional provision requires the production of sufficient, cogent and clear evidence to support the allegation. Unfortunately what we have before us from both sides cannot be said to be sufficient, clear and cogent. In the statement of case for the plaintiff, it alleges that certain letters were written. These letters were the source of its allegation. Yet, these letters were not produced before us. No dates were given of these letters and they were not even mentioned as some of the documents relied on. The defendant on its part referred to notices for the conduct of the elections, dates for such elections and the list of persons nominated for the electoral college elections. Yet, these notices were neither produced before us, nor were they referred to in the list of documents relied on. Of course, generally, the plaintiff who seeks the declaration or claim and who must succeed on the strength of his own case and not on the weakness of the defendant, must fail in such a situation. In such paucity of evidence as has been presented to us, the court is being called upon to determine the issues in the case.”

14. MY CONCLUSION: Unless the Supreme Court decides to depart from these long-standing principles (and providing reasons for the departure, of course), our law, as at today is that HE WHO ALLEGES MUST PROVE. That also means that you cannot hang the destiny of your case on what your opponent might or might not do in court. If you go to court alleging that something has or has not happened, the burden is on you to provide the evidence. And that becomes a tad difficult when you have admitted that you indeed have that evidence in your possession, custody and power, but boldly (and probably calamitously) testify that you decided not to bring that evidence to court.

Mabrɛ. Pardon typos

Thought provoking articles, write-ups and analysis of Political, Social, Entertainment, Sports, Environment and more, concerning Ghana. GHanalysis is where Ghana Thinks.

Featuring thought provoking articles, write-ups and analysis of Political, Social, Entertainment, Sports, Environment and more, concerning Ghana. Intelligent and thought provoking contents are sourced from a wide range of sources including the Ghanalysis reporters, freelancers, students, policy makers and thinkers. Enjoy and add your thoughts.

09/02/2021

Lawyer Ace Anan Ankoma Writes:

Notice is served: this is gonna be a tad long.

I keep reading this argument that because article 64 proceedings are ‘SUI GENERIS,’ (to wit of its own kind; unique) somehow, known rule of evidence do not or should not apply, and that the common law-based adversarial system of justice should be swapped for or mixed with the civil law-based inquisitorial system. I disagree. The law is still "he who alleges must prove," irrespective of the kind of case it is. I say so for the following reasons:

1. The court has pronounced on this ‘sui generis’ matter several times. In SABBAH v THE REPUBLIC, Wood CJ said “a constitution being sui generis must be construed in the light of its own wording and not on the basis of words found in any other constitution, let alone the statutory provisions of another jurisdiction, would not permit this.” In NPP v GBC, the court said “a Constitutional document must be interpreted sui generis to allow the written word and the spirit that animates it to exist in harmony. Reference must be made to stated objectives in the Constitution so that the emphatic pointers to its spirit are not missed. The Constitution itself points the way to its liberal interpretation.”

2. In KUENYEHIA v ARCHER, Francois JSC said "any attempt to construe the various provisions of the Constitution, 1992 relevant to the present inquiry must perforce start with an awareness that a constitutional instrument is a document sui generis to be interpreted according to principles suitable to its peculiar character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. Though basic rules of statutory construction may provide the first steps, they should strictly be kept at the first rung as servants and never elevated in flight as maters.” And in EX PARTE CHRAJ (RICHARD ANANE CASE), the court said “a well-established principle of constitutional construction is that a national constitution is sui generis and must be interpreted according to its own character or wording.” None of these cases support(s) this rather strange contention on the non-applicability of our known rules of evidence.

3. When article 64 provided for the filing of election petitions, it did not also provide for the rules of evidence, or practice and procedure that would apply. On the latter, because no existing rules of practice and procedure existed, the article was careful to specifically vest the power to make them in the Rules of Court Committee. I posit that article 64 did not need or have to make a similar provision for the applicable rules of evidence because we already have them in statute. That is why I find it difficult to accept that the courts could or should literally make up or conjure rules of evidence that would apply, notwithstanding the rules in the existing Evidence Act.

4. The Evidence Act constitutes part of our laws both as statute on account of article 11(1) and as “existing law” under article 11(4). Clearly, absent any specific provision in article 64 that would point to or suggest that another set of evidentiary rules should apply, the existing rules under the Evidence Act will apply to every matter before our courts. To the extent that the statute is not being used to specifically defeat the letter and spirit of the Constitution (and I do not see that that is happening, yet), I find no basis in an argument or suggestion that seeks to turn the existing evidentiary rules on their heads and urge adopting any hitherto unknown and inapplicable rules of evidence.

5. Section 1(3) and (4) of the Evidence Act says in part that the court determines whether a party has met the evidentiary burden, and that the failure (add: refusal or neglect) to meet it, means the case will be determined against that party.

6. Under section 10, the burden of persuasion still is “the obligation of a party [not another party] to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court,” involving the requirement to “establish the existence or non-existence of a fact by a preponderance of the probabilities.”

7. Under section 11, burden of producing evidence still is “the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue,” involving the requirement of “a party [and no other party] to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

8. Thus the basic rule of evidence is and remains that except in the known exceptions (to wit statute, implied or criminal defence and on specific trial issues), the burden of persuasion does not shift. It remains on the plaintiff/petitioner/applicant. It is the evidentiary burden that shifts, and even then, only when that burden has been discharged.

9. Therefore, where a plaintiff announces that "the plaintiff has closed its case," that plaintiff is in effect telling the court that the plaintiff has completely discharge its burden and (more importantly) that if only the evidence that it has led is considered in the matter, the plaintiff should win the case. In other words, if the defendant does not lead any evidence to contradict what you, the plaintiff has led, the plaintiff should win. And so, you then hope that your opponent (the defendant) will be unable to meet its evidentiary burden. If your opponent then claims that it will not lead evidence, then the matter should go to judgment where the court has only your evidence to evaluate. Hopefully, the matter will end in your favour – but only if you have discharged your probative and evidentiary burdens. It is never the law, that when a plaintiff closes its case, it can then claim that its case also depends wholly or partially on a defendant (or any other person) testifying. That claim in and of itself admits that the plaintiff has not fully discharged the probative and evidentiary burden, and that it should lose the case.

10. And, contrary to the arguments of the APOSTLES OF SUI GENERIS, this rule applies whether the case is a civil case invoking private or public law, or is a constitutional matter. That is why in MENSIMA v ATTORNEY-GENERAL, Acquah JSC (as he then was) said: “The requirement for proof of an allegation in a trial applies to all branches of legal suits, including that of constitutional law litigation... The standard of proof is the civil standard of a preponderance of probabilities, which must be vigorously applied.”

11. And, notably in NDC v EC (COUNCIL OF STATE ELECTIONS CASE), the plaintiff claimed that because some ministers had written letters removing DCEs and government-appointed assembly members, the assemblies were not properly constituted for the purposes of elections to the Council of State. Even though the defendant denied those allegations, the plaintiff did not exhibit any of the alleged letters. The court, speaking per Acquah JSC said: “The National Democratic Congress did not in its statement of case supply any particulars, nor copies of the alleged letters, neither did it attempt to produce any other evidence in proof of the existence of these letters, in the face of the defendant’s denial. The substratum of the National Democratic Congress’s complaint therefore remains a mere allegation unsupported by any evidence necessary to prove its validity… Failure by the National Democratic Congress to furnish the relevant particulars, documentary or otherwise in proof of its allegation of the withdrawal of the district chief executives and the government nominees, is sufficient to entitle this court to dismiss the action.”

12. Although his Lordship still dealt with the issues raised, for whatever they were worth, he concluded that “In the instant case, since the plaintiff produced no evidence in support of his allegation that at the time of filing this suit, the district chief executives and the government appointees of all the district assemblies, had been withdrawn, he cannot succeed in his quest for a declaration and an injunction to prevent the holding of elections for regional representatives to the Council of State.”

13. Even though Ampiah JSC dissented (on another ground), he agreed with the rest of the court, saying “To allege that a person has breached a constitutional provision requires the production of sufficient, cogent and clear evidence to support the allegation. Unfortunately what we have before us from both sides cannot be said to be sufficient, clear and cogent. In the statement of case for the plaintiff, it alleges that certain letters were written. These letters were the source of its allegation. Yet, these letters were not produced before us. No dates were given of these letters and they were not even mentioned as some of the documents relied on. The defendant on its part referred to notices for the conduct of the elections, dates for such elections and the list of persons nominated for the electoral college elections. Yet, these notices were neither produced before us, nor were they referred to in the list of documents relied on. Of course, generally, the plaintiff who seeks the declaration or claim and who must succeed on the strength of his own case and not on the weakness of the defendant, must fail in such a situation. In such paucity of evidence as has been presented to us, the court is being called upon to determine the issues in the case.”

14. MY CONCLUSION: Unless the Supreme Court decides to depart from these long-standing principles (and providing reasons for the departure, of course), our law, as at today is that HE WHO ALLEGES MUST PROVE. That also means that you cannot hang the destiny of your case on what your opponent might or might not do in court. If you go to court alleging that something has or has not happened, the burden is on you to provide the evidence. And that becomes a tad difficult when you have admitted that you indeed have that evidence in your possession, custody and power, but boldly (and probably calamitously) testify that you decided not to bring that evidence to court.

Mabrɛ. Pardon typos

03/06/2020

GhanaFeed

Rex Omar defends Sammy Gyamfi's controversial Post

Musician and former band member of the defunct NAKOREX band has expressed his support for Sammy Gyamfi's controversial Post.

On Tuesday, the NDC communications Director posted a picture comparing Ghana's decision to ease lockdown to George Floyd's murder.

An event which have sparked widespread anger worldwide.

Whiles a lot of people condemn Sammy Gyamfi for the distastefulness of the post,
Rex Omar insists that the post has semblance to a picture posted by Wikileaks News.

Rex Omar who has recently joined the droves of former artists who have taken to politics, replied to a comment on his post " Don't you see the resemblance of the message in the Cartoon Sammy sent? Look at the message and not the peripherals" after being challenged that the two addressed different issues.

Rex Omar recently won a GHS 200,000 suit against Joy Daddy.

kkantakufore.com 10/06/2019

[V/R]: MAC D Empire launches Media Merit Award (MEMA) - Kantankufore News Ghana

Mac D Empire has released a press statement announcing an award scheme for the media personalities in Volta Region dubbed Media Merit Award (MEMA). This is an award scheme solely for the indigenous Volta media personalities.

kkantakufore.com Mac D Empire has released a press statement announcing an award scheme for the media personalities in Volta Region dubbed Media Merit Award (MEMA). This is an award scheme solely for the indigenous Volta media personalities. A portion of the statement described the criteria and who qualifies "Th

primenewsghana.com 18/05/2019

Ghana's David Adjaye used mud to design the pavilion at Venice Art Biennale (PHOTOS)

primenewsghana.com Ghana's David Adjaye has stolen the headlines at the Venice Art Biennale, after using mud to design the pavilion.

kkantakufore.com 15/05/2019

Oti Region: Special request to the President for critical projects in the Krachi Traditional Area - Krachi Youth - Kantankufore News Ghana

kkantakufore.com The Krachi Youth Association has come out with a presser stating a request from the President of the Republic of Ghana, Nana Addo Dankwa Akuffo Addo. This was done as a result of the President's visit to the region since it creation earlier this year. In the statement, they mentioned how the crea

kkantakufore.com 14/05/2019

GhanaSpurs: Tottenham Hotspur awards their Ghanaian fan base group - Kantankufore News Ghana

kkantakufore.com In modern-day football where fan base has become a thing of global recognition and not only home-base of a football club. GhanaSpurs, the official supporters group for English based football club Tottenham Hotspur has received great recognition for their immense contribution. Ghana-Spurs won t

kkantakufore.com 09/05/2019

NC Special Cup: Hearts draw goalless with Liberty as Bechem hold Kotoko to 1-1 draw - Kantankufore News Ghana

kkantakufore.com Asante Kotoko were held to a frustrating 1-1 draw by Bechem United at the Baba Yara Stadium, Kumasi in the NC Special Cup on Wednesday. Prince Adu Kwabena gave Bechem a 2nd minute lead but Fatawu Safiu restored parity with a fine freekick two minutes later. The draw leaves Kotoko four points b

kkantakufore.com 09/05/2019

Newly recruited teachers to hit the streets on May 17 over unpaid salaries - Kantankufore News Ghana

kkantakufore.com A group calling itself the Association of Newly Recruited Teachers (ANRT) say they will demonstrate on May 17 over their 7 months unpaid salaries. The group are unhappy about what they call ‘snail pace’ approach in processing their salaries. In a statement signed by the president of the group

kkantakufore.com 09/05/2019

NC Special Cup: Hearts draw goalless with Liberty as Bechem hold Kotoko to 1-1 draw - Kantankufore News Ghana

kkantakufore.com Asante Kotoko were held to a frustrating 1-1 draw by Bechem United at the Baba Yara Stadium, Kumasi in the NC Special Cup on Wednesday. Prince Adu Kwabena gave Bechem a 2nd minute lead but Fatawu Safiu restored parity with a fine freekick two minutes later. The draw leaves Kotoko four points b

kkantakufore.com 09/05/2019

EC gets 12 months extension from Court to implement ROPAA - Kantankufore News Ghana

kkantakufore.com The Electoral Commission (EC) has been given a 12-month extension by the High court to implement the Representation of the People Amendment Act (ROPAA). The Representation of the People Amendment Act (ROPAA) is the law that permits Ghanaians living abroad to vote in national elections. The cou

kkantakufore.com 09/05/2019

[VIDEO]: Lucas Moura hat-trick stuns Ajax, Spurs moves on to make it an 'English' UCL final - Kantankufore News Ghana

kkantakufore.com Ajax and Tottenham figured to be hard-pressed to replicate the drama that took place at Anfield on Tuesday, but they might have found a way to surpass it. Ajax seemed to be in control of their Champions League semifinal after first-half goals from Matthijs de Ligt and Hakim Ziyech, but Tottenham

kkantakufore.com 09/05/2019

Rainstorm displaces over 200 students of Oppong Memorial SHS - Kantankufore News Ghana

kkantakufore.com Over 200 students of Oppong Memorial Senior High School at Kokofu in the Ashanti region, have been displaced after rainstorm wreaked havoc on the boys’ dormitory. The incident occurred at the time students were at the dining hall enjoying supper.Authorities have been forced to convert classroom f

kkantakufore.com 08/05/2019

McDan ITF World Tour: Ghana has the pedigree for hosting global competitions - Kantankufore News Ghana

kkantakufore.com The Deputy Minister for Youth and Sports, Hon. Curtis Perry Okudzeto has lauded the McDan Group led by it’s Chief Executive Officer, Dr Daniel McKorley, for successfully hosting the McDan ITF World Tour, Ghana 2019. Addressing patrons at the finals held in Accra on Sunday, May 5, 2019, at the Acc

kkantakufore.com 08/05/2019

Mahama gov't put Komenda Sugar Factory on sale after 2 months of reopening - Trade Minister - Kantankufore News Ghana

kkantakufore.com Mr. Alan Kyerematen the Minister for Trade and Industries has alleged that during the leadership of former President John Dramani Mahama the Komenda Sugar Factory was for sale just two months after it inauguration. Mr Kyerematen disclosed this in a Meet The Press section on May 7, 2019. “They

kkantakufore.com 08/05/2019

Shatta Michy refused to travel with me because she wanted to party with 'big men'- Shatta Wale - Kantankufore News Ghana

kkantakufore.com Ghanaian hiplife artiste Shatta Wale has disclosed that her baby mama Shatta Michy refused to travel with him on several occasions because she wanted to party with big men. The maverick artiste in an interview on Joy FM on May 5, 2019, revealed that he had to force Michy to travel with him but an

kkantakufore.com 08/05/2019

[VIDEO]: Man proposes to girlfriend during church service - Kantankufore News Ghana

kkantakufore.com A Nigerian man has given girlfriend the surprise of her life last night when he proposed to her during service at the Redeemed Christian Church of God, City of David parish, Lagos yesterday May 7th in Nigeria. In a video sighted online, the young man was seen making his intention to marry his gi

kkantakufore.com 08/05/2019

E/R: Final year student dies after Barca and liverpool football match - Kantankufore News Ghana

kkantakufore.com A final year Engineering student of the Akwatia Technical School Hebert Danso Atiko, who happens to be a Liverpool fan died on Tuesday night after the football match between Barcelona and Liverpool in the Eastern Region. According to reports he collapsed and died yesterday May 7, 2019, after his

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