During the Supreme Court hearing today, the Petitioner officially closed his case. Then to the surprise of everyone, the First and Second Respondents told the Apex Court that they will not call any witness.
This generated a heated legal exchange between the opposing lawyers.
The Respondents are entitled to move for a directed verdict if, in their view, the Petitioner has failed to meet its burden of production.
The standard for evaluating such a motion is whether the Petitioner has failed to establish a prima facie case in support of the reliefs that he seeks. That is, the Petitioner is not required to overwhelmingly prove every element of its case. It is a low burden indeed and such applications are frequently denied.
Furthermore, once such a motion is made, the Petitioner has the right to an opportunity to supplement its evidence so as to defeat the motion.
An Article 64 petition is however sui generis. The returning officer is not just a necessary and a material party but more important she is the only person who can provide definitive evidence that rebuts the Petitioner’s claims.
She performs a public function and has a responsibility to answer the Petitioner’s questions. Such answers are important to all parties and the country as a whole to remove any clouds surrounding the election outcome.
Not only should the Returning Officer want to tell her side of the story, the Court must actually be interested in hearing what she has to say. This is especially so in light of the Court’s rulings denying the Petitioner access to some materials in the Returning Officer’s custody.
It is also my belief that the Petitioner should be able to call the Returning Officer and treat her as a hostile witness, if she chooses not to appear to defend her witness statement.
The only reason the Returning Officer should be shielded from the witness box is if the Court concludes that the Petitioner’s case does not meet the prima facie test.
On the other hand, the Second Respondent, in my opinion, is neither a necessary nor a material witness. It is entirely within his right not to enter the witness box.