The petitioners in court yesterday
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday January 30, 2013.
The Supreme Court yesterday sitting on the petition filed by New Patriotic Party (NPP) presidential candidate, Nana Addo Dankwa Akufo-Addo and two others challenging the declaration of John Dramani Mahama as President by the Electoral Commission (EC) was inundated by horde of applications filed by parties in the case.
Currently, the nine-member panel chaired by Justice William Atuguba is hearing an application filed by the Electoral Commission (2nd respondent in the petition) and another filed by the, President Mahama (1st respondent in the petition), all asking the petitioners for ‘further and better particulars’ of the 4,709 polling stations where the petitioners are alleging irregularities in the just-ended general elections.
When the long back-and-forth argument was concluded, the petitioners also moved another application for interrogatories asking the court to order the 2nd respondent (the EC) to furnish them with the list of voters, including peace keepers, students, embassy staff who were registered abroad.
The EC had claimed that over 200,000 people were registered abroad whereas earlier reports suggested that they were far less than 5000.
The highest court of the land has already disposed of an application for joinder that was filed by National Democratic Congress (NDC) to be part of the case and had ruled that the NDC is an interested party to the petition and have thus automatically become part of the case.
With the filing of the applications, the court would have to conclude and make decisions before the main petition could proceed.
There were heated arguments as the applications were moved and the issue of whether it was right for the court to hear counsel for the NDC when the 3rd respondent has not filed any answers to the applications, also came up.
James Quarshie-Idun, supported by Anthony Dabi and Stanley Amarteifio, representing the EC was the first to move his application for further and better particulars from the petitioners: Nana Addo Dankwa Akufo-Addo, his running mate, Dr. Mahamudu Bawumia and NPP Chairman, Jake Otanka Obetsebi-Lamptey.
He said under Rule 69 (a) sub Rule 4 of Supreme Court Amendment Rule 2012 of C.I. 74 enjoins the petitioners to provide ‘further and better particulars’ to the applicant for the case to move on.
“We made specific references filed by the petitioners in respect of which we are asking for orders to ask the petitioners to provide us with further and better particulars.”
He said the EC is requesting the petitioners to provide the names of and codes of polling stations where the petitioners are alleging that voting were done without prior verification.
He also said that the EC needs the petitioners to furnish them with the polling stations where different results were recorded but had the same code numbers.
Mr. Quarshie-Idun said they also need particulars of the polling stations (in the form of names and codes) where the petitioners are alleging that there were widespread instances where there were no signatures on the sheets provided the party agents.
Justice Sulley Gbadegbe, a member of the panel then cut in to ask counsel for the EC to refer to the affidavit and not the petition but Mr. Quarshie-Idun replied that “I answered the petition because that contained the facts. I could not answer the affidavit.”
After a few minutes of a give-and-take argument, Justice Atuguba said “He (Justice Gbadegbe) has taken notice so you can proceed.”
Proceeding, Mr. Quarshie-Idun said “we are entitled to know which are the 4,709 out of the entire over 26,000 polling stations so we know how to answer them.
He argued that once the petitioners were able to provide further and better particulars for three polling stations where they claimed the votes of Nana Akufo-Addo were reduced and that of President Mahama padded, they should be able to provide the rest of the 4,709.
He asked the court to consider ‘persuasive force’ to get the petitioners to furnish the EC with further and better particulars.
“We will be taken by surprise if they do not indicate to us the names the polling stations and their codes. We are asking them to give us particulars of the facts.”
Tony Lithur, assisted by Dr. Abdul Bassit Aziz Bamba, representing President Mahama also moved another motion for further and better particulars since the court had indicated that they wanted to take the two applications together before the petitioners put in an opposition.
Mr. Lithur said that they filed the application under the same rules used by the EC to make the request.
He cited both local and foreign cases to buttress his point and his line of argument compelled Justice Anin-Yeboah to find out from counsel whether a ‘petition’ can be deemed to be a ‘pleading’.
Mr. Lithur said “petition is not a pleading but the general rules of litigation are no different,” before Justice Atuguba also wanted to find out the effect of counsel’s argument.
The President’s counsel said “a petition in terms of articulating a person’s cause of action is not different from the claims.
He said “in order to ground a cause of action, it is essential to isolate and identify the polling stations to which the allegations of irregularities occurred” since the petition is only concerned about 4,709 polling stations and not the whole election.
“They must be identified by name and code since they form the petitioner’s cause of action.”
He said “by their own pleadings, there is a manner in which polling stations are identified and they must provide the codes as provided by the 2nd respondent (EC).
“This petition is about numbers and essentially it is a conglomeration of numbers that that the petitioners have picked which they are seeking to annul.”
He said the courts should order the petitioners to provide for each polling station the number of votes that are the subject matter of fraud, irregularity or malpractice.
He argued that if that is done by the petitioners, it would help to “narrow down the issues, adding “it helps us to determine the actual number of witnesses.”
When Justice Atuguba alerted counsel to the fact that he was re-arguing the motion, Mr. Lithur took notice and went on to say “they (petitioners) did not provide sufficient particulars and on a good day I would have asked that this petition be struck out.”
Justice Atuguba then asked if that was what Rule 69 allows a party to do and counsel said “I said on a good day. The petition is not giving guidance about the exact nature of the case.”
“They are seeking to do ambush litigation. This is not guerrilla warfare where you can hide to do your own things. It is not an ordinary litigation. It is firmly grounded in Article 64 of the Constitution and the rules of court that seeks to operationalise that power must be seen to be assuming those powers.”
Petitioners Oppose to Applications
Philip Addison, supported by Gloria Akuffo, Frank Davies, Alex Quaynor, Akoto Ampaw, Kwame Akuffo, Nana Asante Bediatuo, Godfred Yeboah Dame, Egbert Faibille and Professor Kenneth Attafuah, then opposed the application for further and better particulars of the EC and President Mahama.
Responding to the EC, Mr. Addison said that the commission filed an answer to the petition and where they answered every paragraph and they were able to do so because of High Court Rules Order 11 Rule 7 (1).
“We set out the material facts for which we are relying on. We set out the nature of the irregularity. All we are waiting for is to give evidence.”
He said that ground 3 of their petition sets out the particulars of violations of irregularities adding “the categorical denial of same of these allegations were in the 2nd respondent’s (EC) answers.”
He said that the EC has custody of the originals of the pink sheets and could not turn around to claim it from the petitioners adding “they must have verified from the sheets before declaring the results.”
He said that there can be no question of surprise if the applicants were not given further and better particulars.
Justice Paul Baffoe-Bonnie then asked Mr. Addison to address the court on the fact that the petitioners have specifically mentioned 4,709 polling stations and that was what the applicants were seeking to be given details and counsel said “that will amount to giving the respondents the evidence we intend to give in this court.”
Justice Rose Owusu cut in to ask what then was the purpose of the petitioners providing details for three polling stations which they said the 1st petitioners votes were reduced and the 1 respondent’s votes were padded.
Mr. Addison responded that those allegations would not be determined based on just looking on the plain sheets and added that but the rest which were not given are there on the plain sheets which they intend to use as evidence.
Justices Annin-Yeboah, Jones Dotse and Gbedegbe all cut in at some points to ask why the petitioners had failed to give specific details of the 4,709 polling stations and Justice Gbadegbe was concerned about the practice whereby all the legal teams were resorting to arguments set out in the petition instead of the affidavits files.
Mr. Addison replied that “we have set out the facts in our affidavit. What we are being asked to disclose will amount to giving them the evidence that we are going to provide.”
Turning his attention on President Mahama’s request, counsel said that “the 1st respondent did not write to us for further and better particulars as it is the practice and must be struck out.”
When asked by Justice Owusu about what Rule 69 (a) (4) of C.I.74 meant, counsel said “Indeed 2nd respondent (EC) wrote first to the petitioners before bringing this application.”
“There are categorical denial by the 1st respondent and they said they will put the petitioners to strict proof. That burden will be discharged by evidence and now that you say you will put the petitioners to strict proof you come back to say that you want further evidence which we intend to use.”
“They say the petition lacks any basis in law or fact yet they are here to ask for further and better particulars.”
He said the nature of the alleged offences have been itemized or set out in the petition saying “what we have given the respondents is enough. It has enabled them to put up comprehensive answers.”
Tsatsu Tsikata, representing the NDC sought to make an argument and the court said they were taking a short break.
After the break Mr. Tsikata got on his feet to make an input since he says the NDC is an interested party and had to be heard but Mr. Addison objected saying Mr. Tsikata had not filed any application showing the NDC’s interest in the two applications.
The NDC counsel said as indicated in their answer after being asked to join the case, they intend to apply to the court to strike out certain pleadings in the petition which he says “are offensive” to the rules or ask the petitioners to provide further and better particulars as the EC and President Mahama had done.
“He better allow us to be heard because we have already served notice. We will apply to the court because the petition lacks adequate particulars.”
At this time tempers were beginning to fly as Mr. Addison cut in to ask the court “In what capacity does counsel make this submission. If he wants to raise any argument he should file it on notice so that we can respond to it.”
“We are no more sure what the rules of the court are. They keep springing surprises on us.”
Judges Retire to Chamber
As the argument became heated, the court adjourned the proceedings for to enable the judges to decide on whether or not Mr. Tsikata could be heard without a formal application filed.
The judges then came back and ruled in 8 -1 majority decision (Atuguba dissenting) that Mr. Tsikata cannot be heard.
The EC then came in to respond on points of law to the petitioners objection and Mr. Quarshie-Idun said the petitioners had raised an allegation of fraud but Mr. Addison rebutted and said they did not do so.
Tony Lithur then took floor and said that there is nowhere in the 1st respondent’s submission did they ask for particulars on voter turnout saying “particulars are general but we need specifics.”
Petitioners’ Application for Interrogatories
The court then called another application in which the petitioners want to seek leave of the court to order the EC to serve them with the list of voters registered abroad.
Called an application for interrogatories, the petitioner specifically asked the EC for particulars of Ghanaians serving abroad including foreign service official, students on government scholarship abroad, Ghanaians working in international organizations and service personnel returning on duties.
Mr. Addison said “we have filed this application due to the 2nd respondent’s answer to our petition on the subject of voters registered abroad.”
He said in answer to the petition, the EC had given different figures to which they needed clarity adding “we are saying that the difference of those the EC said they registered is far less than we are being told.”
He said that the petitioner are invoking the inherent jurisdiction of the court to look at the application for interrogatories.
Responding, the Mr. Quarshie-Idun said that the petitioner’s application is premature and added that even the application for further and better particulars had not yet been determined.
Counsel wanted the court to look at the rule for inspection and production of document in the same vein as the application for interrogatories but Justices Annin-Yeboah and Gbadegbe said the rule are different and should be looked at separately.
Tsatsu Comes Again
Mr. Tsikata got up once again to request that the NDC be allowed to respond to the petitioner’s application saying that with the nature of interrogatory application all the parties in the matter needed to be heard.
Justice Baffoe-Bonnie cut in to say that the application strictly concerned the EC and they could have gone ahead to answer the questions raised in the application.
Mr. Tsikata replied that “I don’t see why a party in a proceeding can be isolated in the application to be heard and not be asked to respond.”
Lithur Supports Tsatsu
Tony Lithur in support said “we should be allowed to contribute in this application. To constrain us to constantly file an application on any issue cannot be the best.
Mr. Addison told the court that they were not blocking the parties from making an input into the matter but they were asking them to follow the rules of the court by filing officially adding “unless the rules of the court are no longer necessary, the respondents can decide to do anything they like.”
The court again decided to give a ruling on whether or not the NDC can be heard and in a 6-3 majority, the court said the NDC can be heard but must file officially.
Justices Baffoe-Bonnie and Annin Yeboah had ruled that the NDC could not be heard while Atuguba said Mr. Tsikata could be heard on points of law now.
The remaining Justices said the NDC could be heard but needed to file on notice.
The case was adjourned to Thursday January 31, 2013 for the NDC to be heard on the petitioner’s application for interrogatories and also for the court to decide whether to grant the separate requests of the EC and President Mahama, asking the petitioners to supply them with further and better particulars.