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Why Supreme Court struck out 5 out of Rojo's 32 paragraphs witness statement

BY: Justice Agbenorsi
Robert Joseph Mettle-Nunoo
Robert Joseph Mettle-Nunoo

The expected cross-examination of Mr Robert Joseph Mettle-Nunoo , a witness for former President John Mahama in the 2020 election petition, could not come off Friday after a lengthy legal argument over the acceptability of some of the paragraphs in his witness statement.

The legal arguments by the opposing counsels in the petition culminated in a ruling in which the Supreme Court struck out five of the 32 paragraphs contained in the witness statement of Mr Mettle- Nunoo.

In a unanimous ruling, the seven-member panel of the apex court, presided over by the Chief Justice, Justice Kwasi Anin Yeboah, held that the five paragraphs struck out were not born out of the pleadings in the petition or the evidence as required by the rules of court.

“We are of the opinion that paragraphs 4, 5, 6,7, 18 ought to be struck out as they have no foundations in the pleadings or supported by the evidence and the same is hereby struck out.

“The remaining paragraphs in the witness statements are maintained . The petition is hereby adjourned to Monday, February 8 for cross examination of Mettle-Nunoo,” Justice Anin Yeboah, read.

Witness

Mr Mettle-Nunoo, whose witness statement was filed last Thursday (February 4), was to have been cross-examined yesterday via Skype from his residence.

However, when the case was called, counsel for the President, Nana Addo Dankwa Akufo-Addo (second respondent), Mr Akoto Ampaw, raised a concern as to whether there was a judicial officer at the witness’ residence.

According to him, the concern was a major one for the second respondent.

That, he said, was to ensure that the witness was not being assisted by someone in the course of cross-examination.

Lead counsel for the petitioner, Mr Tsatsu Tsikata, did not oppose the concern raised by Mr Akoto Ampaw.

The court, subsequently, arranged for the Registrar of the Supreme Court, Mr Matthew Antiaye, to be dispatched to where Mr Mettle-Nunoo was expected to be cross-examined from.

Paragraphs in contention

Mr Akoto Ampaw, in his objection to the 23 paragraphs in Mr Mettle-Nunoo’s witness statement, argued that the said paragraphs were not born out of the pleadings of the petitioner.

He added that some of the paragraphs in contention were an attempt by the petitioner to correct some of the problems that arose out of Dr Kpessa-Whyte’s cross-examination.

The paragraphs included four, five, six, seven, eight, nine, 10, 11, 12, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 29, 30 and 31.

Statement

For paragraph four, Mr Mettle-Nunoo said prior to the declaration on December 9, 2020, the Chairperson of the EC did not perform the duties she was supposed to perform in order to declare a winner of the election.

With paragraph five, he said, the EC had an official video recording of the events in the strong room.

For paragraph six, Mr Mettle-Nunoo testified that dedicated fax machines, as well as printers and computers, which were manned by EC officials, were provided for the strong room and were to receive faxes from the regional collation centres in the full view of agents of candidates and then projected on an overhead projector in the strong room as the results were received.

In paragraph seven, he said what happened, part of the time, was that one of the deputy directors of the EC, Dr Sereboe Quaicoe, would, from time to time, bring into the strong room what was claimed to be a regional collation sheet.

In paragraph eight, Mr Mettle-Nunoo said on many occasions, he and his colleague, Dr Michael Kpessa-Whyte, pointed out errors in figures and words on the sheets that were brought in which ultimately affected the total and assigned results, adding that “this sometimes led to EC officials making phone calls on the basis of which they sought to explain and correct some of the things we pointed out”.

For paragraph nine, he testified that when they pointed out problems on the Eastern Regional collation sheet, another one was subsequently brought in and claimed to be a corrected version.

The “corrected” version, he said, could not have been what was produced at the regional collation centre at the time the collation was done and was, therefore, not an authentic document.

Other paragraphs

For paragraph 10, he noted that some of the time, when the EC officials said they were "correcting" errors, their officials had already signed the regional summary sheets and, yet, they accepted that corrections were needed.

In paragraph 11, he alleged that position by EC officials misled him into signing the regional collation sheet for the Ashanti Region because there was no signature of the agent of the petitioner at the regional collation centre on the regional collation sheet for the Ashanti Region.

In paragraph 12, he added that it was his express understanding that the entire election processes required very importantly a transparent assembling and collation of results so that no single vote of those who cast valid votes is left out of account.

In paragraph 15, he noted that there was no regional collation undertaken for Bono East and no regional collation form (Form 11) was brought into the strong room by the time that he and his colleague, Dr Micheal Kpessa-Whyte, left the premises of the EC.

For 16, he said they observed that the regional summary sheet published by the EC while the process was ongoing had different figures compared to the one given to them in the National Collation Centre

Again in paragraph 17, he said they were waiting to get feedback on some matters from the EC when they heard the declaration of the results by the EC.

With regard to paragraph 18, he testified that some of the regional summary sheets were not signed by the agents of the candidates.

Mr Mettle-Nunoo, in paragraph 19, said he made a mistake when he signed the summary sheet in the EC strong room which had not been signed by their agent at the Western North collation centre.

Also, he noted in paragraph 20 that he could not point out his mistake to the EC Chair.

In paragraph 22, he added that he had learnt from officials at the NT Headquarters before he got to the EC headquarters on December 9, 2020, that there was likely to be a stakeholder meeting of key players in the presidential elections,

He said in paragraphs 23 that the EC Chairperson, Mrs Jean Mensa, had informed him that there had been a meeting held earlier in the day between the Petitioner and the Peace Council of which he was not aware.

For 24, he testified that he was shocked to realise how Mrs Mensa had proceeded to make a declaration of results at a time when she knew that he and his colleague had left the premises at her instance

With regard to paragraph 25, he noted that they left their belongings on the premises of the EC and that they had no other reason to leave aside from the assurance from the EC.

TV interview

In paragraph 26, Mr Mettle-Nunoo said Mr Peter Mac Manu, who was representing President Akufo-Addo in the case, acknowledged in a television interview on Metro TV, that he knew they were coming back and said so to a colleague of theirs who came to the strong room after they had left.

For paragraph 29, he said when he got to the petitioner’s residence, they realised that the EC Chair was in the process of announcing the results.

In paragraph 30 and 31, he said he had been part of election outcomes in which his candidate won and where his candidate lost but was principled, adding that “Clear errors, as have been admitted by the EC in these elections, undermine the credibility of the poll and also cast grave doubts on the integrity of those assigned responsibilities for the free, fair and transparent conduct of elections.

Response

Mr Tsikata, while opposing the objections, said there was no basis for striking out any of the paragraphs and that the paragraphs were key to the process that led to the declaration of the results.

He further submitted that most of the matters raised by counsel for the second respondent had already been raised in cross-examination of witnesses to the petition during cross-examination.

Ruling

The Chief Justice, in reading the ruling, said: “We’ve considered the submissions of both counsels and the testimony and the pleadings in this petition’’.

He said the paragraphs ought to be struck out because they had no foundation in the pleadings or supported by the evidence, adding that “ the same is hereby struck out and the remaining paragraphs in the witness statement are maintained.”

The court further adjourned the case to Monday February 8, for the cross-examination of Mr Mettle-Nunoo.