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.
EC
Motion
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.”
Mahama’s
Application
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.
On
EC
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.”
On
Mahama
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’s
Request
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.”
Addison’s
Objection
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.
EC’s
Response
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.
Mahama’s
Response
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.
EC
Responds
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.
Addison
Objects
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.”
Court
Decides
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.
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