The question arises from the rules governing witness statements and their use at trial in Ghanaian courts. A party who files a witness statement is not automatically obligated to call that witness at trial. The rules are quite clear that a party is not bound to call the persons for whom they have filed witness statements. A party may call the witness, introduce the statement as hearsay evidence under the Evidence Act, or abandon the statement entirely — each option carrying different procedural consequences.
A. The Witness Statement Regime
Under Ghana's procedural rules, witness statements are filed in advance of trial and exchanged between parties. The purpose is to give advance notice of the evidence each party intends to adduce, enabling the opposing party to prepare for cross-examination and to assess the strength of the case against them.
However, the filing of a witness statement does not create an obligation to call that witness. A party retains the right to elect, at the close of pleadings or at the appropriate point in the proceedings, whether to call a particular witness. This discretion is an important feature of the adversarial system — it allows parties to make strategic decisions about their cases in light of how the evidence develops at trial.
The rules are quite clear that a party is not bound to call the persons for whom they have filed witness statements. The decision whether to call a witness is, in general, a matter of tactics and judgment for the party concerned.
B. The Electoral Commission's Position
The Electoral Commission is a constitutional body established under Article 43 of the 1992 Constitution. It is not a natural person — it is an institution. When it is joined as a respondent in election petition proceedings, it must designate an individual to give evidence on its behalf. The question of whether that individual must be the Chairperson, as opposed to any other authorised officer of the Commission, is a matter of institutional representation rather than a constitutional requirement.
There is no provision in the Constitution, the Electoral Commission Act, or the rules governing election petition proceedings that requires the Chairperson personally to testify. The Commission is entitled to be represented by any officer who is competent to give evidence about the matters in issue. Where the Commission chooses to file a witness statement by the Chairperson, it retains the option — as with any other party — of deciding at trial whether to call that witness.
C. The "No Case to Answer" Dimension
The submission of no case to answer has a specific and confined role in civil proceedings. It is available where, at the close of the petitioner's case, the evidence adduced is so manifestly insufficient that no reasonable tribunal could find in the petitioner's favour on the evidence as it stands. It is not available merely because the respondent believes the petitioner's case to be weak — it requires the case to be so deficient as to be incapable of supporting a finding in the petitioner's favour.
Where a respondent elects to make a no case submission, the procedural consequences are significant: the respondent typically foregoes the right to adduce evidence if the submission fails. This is a matter of considerable practical importance in election petition proceedings, where the respondent's own evidence may be critical to explaining the conduct of the election.
D. Strategic Options for Petitioners
Where the Electoral Commission chooses not to call its Chairperson as a witness, the petitioner has several options available under Ghanaian procedural law. The petitioner may seek the court's permission to reopen its case and call additional witnesses. Alternatively, the petitioner may seek to introduce the Commission's filed witness statement as hearsay evidence under the Evidence Act, which would give it some evidentiary weight while denying the Commission the opportunity to have the statement tested in cross-examination.
A further option is to apply for leave to cross-examine the deponent of a witness statement that the respondent does not intend to call. The court's discretion in such applications is broad, and the petitioner would need to demonstrate that the witness's evidence is material to the issues in the case.
E. The Evidential Standard
Courts ultimately determine election petitions by evaluating whether the evidence as a whole meets the applicable legal standard. In Ghana, the burden of proof in election petitions lies on the petitioner, who must establish the alleged irregularities to the standard required by law. The absence of the Chairperson as a witness does not automatically lower or shift that burden.
What the absence of an anticipated witness may do is affect the weight of the evidence adduced by the respondent and, in appropriate cases, permit the court to draw adverse inferences. The circumstances in which such inferences may properly be drawn are, however, limited, and the court must be satisfied that the failure to call the witness is not adequately explained before drawing any adverse inference.
F. Conclusion
The Electoral Commission Chairperson is not a mandatory witness in election petition proceedings. The Commission, as a party, retains the same discretion as any other party to decide which witnesses to call, subject to the ordinary rules of procedure and evidence. The petitioner's remedy where a material witness is not called lies in the procedural tools available — hearsay applications, applications to cross-examine, and submissions on adverse inference — not in a rule that compels the Commission to produce a specific individual.
The strength of any election petition ultimately turns on the evidence adduced and the legal standards applicable to the specific irregularities alleged. Procedural strategy, while important, does not substitute for substantive proof.