The Changing Tunes of the Supreme Court: Is Jean Mensa the same as the EC?

I could not follow proceedings in court today due to an equally important engagement. But thanks to technology, I have watched excepts of the proceedings. Honestly, I was shocked to hear Chief Justice Anim Yeboah argued that Madam Jean Mensa is a party to the election petition by virtue of the fact that she is the returning officer for the presidential election and also because she filed a witness statement signed by her to support the EC’s defence. This is shocking and surprising because this argument ought not to have come from the Chief Justice.

The doctrine of separate corporate personality, though of Company law ‘origin’, is a notorious doctrine that has enjoyed satisfactory application in Constitutional law. It is trite that the Political Parties Act treats political parties as natural persons. Natural person means that a political party can sue and be sued. It also means that a political party is distinct from those who registered it or those who constitute it’s executives. In this sense, it has generally been accepted that the head of the EC is not the EC. The EC Commissioner is a separate legal entity while the EC also stands on it’s own. This is not up for debate.

The rules of Court Committee in their wisdom never stated in any of the CIs regulating the conduct of Election petitions that the EC Chair is the same as the EC. To be exact, it was for good reasons that the rules stated that in election petitions, the EC as an entity should be the 1st respondent. The rules never stated anywhere that the EC Chair should be a party to the petition. If the Chief Justice’s argument was to stand, then it would be safe to conclude that all permanent staffs of the EC are parties to the petition. Such a position will throw the law into an unimaginable level of absurdity.

The Chief Justice’s position, respectfully, is even more difficult to accept if the Court’s own position, ventilated through Justice Nene Amegatcher, some few weeks ago that the court was not comfortable with lead counsel for the Petitioner’s constant referral to the name of the EC chairperson instead of the EC. The Court was of the opinion that the EC Chair was distinct from the EC. Today, the same Court, contrary to it’s earlier position, is urging us to accept that the EC Chair and the EC are same legal entity. Incredible!

When the argument is stretched further and the legal clock is rolled backwards to 2013, Anim JSC’s, as he then was, dissenting opinion on the NDC’s joinder application is completely at odds with his opinion today. If the Chief Justice’s position is accepted, then it will be safe to say that the NDC is also a party to the petition since the petitioner was the presidential candidate of the NDC. Respectfully, statutes, case law and text book writers do not agree with the Chief Justice’s position. It will be an unprovoked assault on the doctrine of separate corporate personality if the Court is persuaded by the Chief Justice’s position and relies on same to disallow the Petitioner’s application. This is without prejudice to the tomorrow’s ruling.

The argument that because Jean Mensah filed a witness statement so she is a party to the election petition is, respectfully, a malnourished argument. No amount of legal vitmains and calciums can cure it’s malnourishness. More so when Jean Mensa abandoned her witness statement and has urged the court to treat it as hearsay evidence, and the Court, speaking through the Chief Justice, indicated in it’s last ruling on whether or not a witness could be compelled to testify, that so far as the court was concerned, there was no evidence of witness statement filed by Jean Mensa before them.

Chief Justice Anim Yeboah explained in that ruling that until Jean Mensah’s witness statement was tendered in evidence, it could not be treated as evidence before the court. He went on to poignantly differentiate between witness statements and affidavits. The question then is, if per the law, there is no evidence of witness statement filed in the name of Jean Mensa, then which witness statement did the Chief Justice relied on to articulate his opinion today?

Regardless of how the ruling goes tomorrow, the country’s legal luminaries have alot to do…I won’t add the rest.