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Opinions of Thursday, 4 February 2021

Columnist: Dr. Samuel Adjei Sarfo, Esq.

Time for change of trial procedures in Ghana’s courts

File photo of the Supreme Court of Ghana File photo of the Supreme Court of Ghana

Note: If you can correctly pronounce “procedure” and “procedural”, perhaps you can read and follow this article………

A trial in the courts of the USA reveals a highly structured procedure to elicit the truth and to arrive at the destination of justice. But the trial in the Supreme Court of Ghana has exposed a trail of trial defects, namely convolution, delays and redundancy and inefficiencies. The purpose of this essay is therefore to describe the trial process and procedure in the USA, and to compare it to the trial process and procedure unraveling in the Supreme Court of Ghana, and conclude by arguing that Ghana’s legal process. i.e., the whole of its trial procedure, could benefit greatly by the adoption of the USA trial model.

In the USA, the pretrial processes of any civil suit involve Discovery, consisting of Disclosure, Admissions, Production, interrogatories and sometimes Deposition. The area of Discovery is also not the purview of this paper, neither is the practice of Summary Judgement which could arise out of the discovery process to terminate proceedings. Also, settlement procedures will not be discussed.

In the USA, a case may be tried either by a jury or by the bench (i.e. by the judge). The process of selecting the jury from the venire (voir dire) is not within the scope of this paper; neither is it the concern of this paper to speak to case management, which involves all of the above together with the timelines for trial actions and trials. The purpose of this article is simply to give a general and generic purview of the trial itself, from beginning to the end.

The trial begins with opening statements by both sides. The opening statements set forth the roadmap for the description of facts and the evidence that will be adduced to support them. For example, the plaintiff will tell his story and state that the evidence will show that there were several instances of rigging and padding in the last elections. And that the extent of the rigging and padding, if properly analyzed, will lead to the conclusion that Akufo Addo did not procure 50%+1 of the votes. Respondents/ defendants will also deny these claims in their opening statements, and note to the court that it would also prove that the winner won fair and square, and that Petitioner’s petition will rely on conclusory evidence, speculations or patent lies.

In short, the opening statement is the process by which each side pitches its case and gives the judge or jury the foretaste of what the litigants will prove with evidence according to the facts and issues at stake. After the opening statement, it is then the turn of the Petitioner/plaintiff to make his case in chief,

The case in chief is made by the calling of the plaintiff’s witnesses who will be subjected to direct examination, cross-examination, or redirect and recross as the case may be. The petitioner’s case is established through the direct examination during which all objections could be made in the context of the examination. The witness need not have made any prior written statement; but if he has sworn an affidavit, that could be produced to impeach him, i.e., it could be shown to demonstrate that he is lying to the court or he has even perjured himself. Again, no prior witness statement is required in the process here, and therefore there is no need to expunge any witness statement on grounds of the objections of contesting parties. You take the oath to tell the truth and proceed as required.

All objections are raised during the live testimony of the witness itself. The objections are also prescribed by law, and may comprise issues of relevancy, long winding narration, inadmissible hearsay, unresponsiveness of witness’ answers, leading questions, matters not in evidence etc.…..All these are clearly set out within the bosom of the laws of evidence, and the astute lawyer will accurately quote the basis of his objection in law to impress the court. If a lawyer fails to properly raise an objection timely, he will waive the objection on appeal.

The next thing that can occur concurrently with the live testimony is the adducement of evidence. The way to tender evidence is also set up in the rules of procedure (Ask permission to approach the witness, hand him the document/piece of evidence, ask questions on it, ask to tender the evidence in Court………:

Lawyer: May I approach the witness your honor?

Judge Go ahead.

Lawyer (handing document to the witness): Please can you identify the document I have given to you?

Witness: It is a contract/lease

Lawyer: That contract between who and who?

Witness: Between Jill and John,

Lawyer: Can you read the first three paragraphs?

(Witness reads portions of contract)

Lawyer: Plaintiff will now turn into evidence his Exhibit No. 1, being contract between Plaintiff and Defendant.

Judge: Any objection?

Opposing Counsel: No objection, Your Honor.

Judge: The court will admit into evidence Plaintiff’s Exhibit 1…….

If there is any valid objection during the testimony or to any of the evidence, the judge simply sustains or overrules the evidence. If the judge sustains the objection, the question or answer cannot be made; but if the judge overrules the objection, the witness will have to answer the question….

The direct examination has its own iron clad rules, the major one of which is that you cannot ask leading questions on direct…..

After the direct examination, then comes the cross, which is best described as hostile questioning of the opponent’s witness. The witness can be subjected to a battery of leading questions: He can be questioned on prior statements; he can be challenged to admit or deny a statement, or he can be impeached for telling lies. What to keep in mind is that whether direct or cross, the lawyers have to stay on the issues as demarcated for trial, and they should ask the questions to prove or disprove the claims. The lawyer should control his examination, and should not allow the witness to lecture……

After the cross examination, if the opposing counsel has indeed inflicted damage, the plaintiff’s lawyer can ask for redirect, working to cover those areas where his witness has fallen short. The other side can still redirect to cause the damage, until one of the lawyers terminate the proceeding by strategically stating, “No further question.” If you don’t have any damage, don’t imagine one because you can ruin your case by prolonged cross and recross.

No matter how many witnesses, this is the procedure to follow unless the witness is an expert witness, whereupon there is a strict procedure to question him to establish his credentials and experience and qualifications.

The end of the Petitioners/Plaintiffs Witnesses’ testimonies signals the end of his case in chief. And here, the trial could be terminated at once by a Motion for Directed Verdict. That Motion is stating to the Court that Plaintiff/Petitioner has not proved his case. And that there are no cognizable issues for trial; Remember that the burden is always on the Petitioner/Plaintiff to prove his case, either by a preponderance of the evidence or by a clear and convincing evidence. If the issue began with a claim by that side that it will adduce evidence to prove that the election was stolen, the votes rigged and the results padded, you will ask the simple question as to whether the Petitioner has proved his case. And if all these questions are answered in favor of the Petitioner, remember that he will still have to show in this instance whether or not the rigging and paddings cited are all sufficient to vary the results in his favor, or force a run-off.

If you consider all that has happened in this Mahama petition, you will realize that nothing the witnesses say impinge on the issues. Even if you assume that whatever claims they make are correct, the conclusion could be drawn that they have not proved their case. And the weapon to deploy in this instance is what we call A Motion For Directed Verdict, stating to the court that the Petitioner has neither proved any element of its case nor recited any cognizable rule of law under which relief could be granted.

More likely than not, the Court may still deny the Motion and let the full trial unfold. But that Motion is still key because it allows the Movant to hone his ideas on the trial summary itself, pointing out huge holes in the opposing counsel’s arguments. When it gets to the final argument, you would merely repeat the argument on Direct and supplement it with your defensive arguments.

But that is the first part of the trial: The making of the Plaintiff’s case in chief. The second part is all about the defense. Here, the direct examination will be conducted by the defense counsel who also calls his witnesses and subjects them to direct questioning. Opposing counsel will then subject them also to cross examination under the same rules of evidence and the procedure for tendering of evidence. Objections are on the same code. And the direct examiner will not be able to ask leading questions upon objections. The tables are now flipped under this instance, and after the direct and cross, there will be redirect and recross as required until the defense rests.

The final phase of the trial is the closing argument. Here, the first to go is the Petitioner/Plaintiff, followed by the defense. But if the Plaintiff’s lawyer has reserved time for his rebuttal, he can rise and challenge your closing argument. That practice is very beneficial to the plaintiff and should never be skipped. Lawyers secretly fear that a rebuttal often loses them the case: It can deliver the coup de grace.

After this phase, a judge or jury will deliver judgment after the judge has taken the matter under advicement; or the jury have taken the matter under consideration`.

This then is the full format for evidentiary trial throughout the courts from justice to the district courts. Appeals beyond that level is almost always a review of what happened at the trial court, and at that level, the court may either grant or deny oral argument to expatiate on the records and briefs. Appellate practice has its own specialty here in the USA, and my impression is that it is more like researched writing competition between and among lawyers!

Now, if you remember the Supreme Court proceeding in this particular electoral proceeding, the judges cut off the Discovery portion altogether, thereby obstructing the Petitioner’s access to interrogatories, admissions, disclosures and production. That was done via CI 99 which the Court profusely cited. There is no summary judgment practice in Ghana so the Respondent had no means of proving to the court that there were no issues of material facts and evidence, and that Respondent was entitled to judgment by law. But Witness Statement was insisted upon, whereby the court expunged portions of it as irrelevant. But in the end, there was no case in chief established through the direct examination of the witnesses who had become the prisoners of their own prior statements. Once the trial began, there was no opportunity for live objections by lawyers; witnesses were subjected to questions and hamstrung from any creative or new answers. There were no proper tendering of live evidence for scrutiny or interrogations…..In short, the trial was defective,,,,,,,

The long arguments on the witnesses’ statements were unnecessary and a waste of time. Granting expungement of part of witness statement was arduous and offensive since all these could have been done live on the spur of the moment and while witnesses were being questioned live!.

On a caveat, it is recognized that every country has the right to set up its own laws and procedural practice. But the question remains as to whether what is happening in the Supreme Court of Ghana makes for judicial efficiency, or it is a sheer waste of time of the law lords. It seems to me that they are chained to moribund laws and procedures as symbolized in their wigs and gowns.

But the systems of laws have always changed and evolved and so change is the castanet that dictates the rhythm of the law; and even if we are afraid to copy from the West, we should understand that we began by copying from the USA which also copied from the Anglo- Saxon laws and Graeco-Roman edicts. The Greeks and the Romans also copied from the Egyptians. To wit, ever so often, we must change our rules and copy from others, even if what all this does is to introduce some coherence and efficiency into our legal processes and procedure.