Petitioners leave the court's premises yesterday
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Friday February 8, 2013.
The Supreme Court yesterday ruled that it would not
order the Electoral Commission (EC) to supply three petitioners challenging the
validity of the election of John Dramani Mahama as President, with Results
Collation Forms from 275 Constituencies and Declaration Forms Pink Sheets from
26,002 polling stations.
There was also indication as to when proper trial
will commence with strong indications that by the close of the month the court
will go into full trial.
The unanimous decision, however, is a subtle
validation of the petitioner’s request since the court affirmed the EC’s
argument that the petitioner’s party, New Patriotic Party (NPP) and all others in
the election were given copies of the documents during the December 7 & 8,
2012 general elections and could not turn around to claim them.
Additionally, the nine-member panel presided over by
Justice William Atuguba granted the petitioners’ application seeking leave of
the court to amend the petition and add more polling stations.
As it is now, the petitioners: NPP presidential
candidate Nana Addo Dankwa Akufo-Addo, his running mate, Dr. Mahamudu Bawumia
and the party’s Chairman, Jake Otanka Obetsebi-Lamptey have been allowed by the
highest court of the land to add 7,107 polling stations to the original 4,709 polling
stations filed.
The total number of polling stations now stands at 11,916
where the petitioners claim was “vitiated by gross and widespread
irregularities and/or malpractices which fundamentally impugned the validity of
the results.”
The court finally dismissed another application
filed by the 3rd petitioner (National Democratic Congress - NDC) asking
for certain further and better particulars from the petitioners. NDC lead
counsel, Tsatsu Tsikata was not in court yesterday as reports say his out the
country.
Ruling
on Production & Inspection of Documents
When the case was called, Justice Atuguba said his
colleague Sophia O. Adinyira was to read the unanimous opinion of the court on
whether or not the court should order the EC to furnish the petitioners with Results
Collation Forms from 275 Constituencies and Declaration Forms Pink Sheets from
26,002 polling stations.
Justice Adinyira said that before the petitioners
filed the application, they (petitioners) had written to the 2nd
respondent (EC) on 21st January for production and inspection of the
documents but the EC had refused.
She said the petitioners had argued that the
documents in the custody of the EC were public documents, and had insisted that
once pleadings had not closed, they (petitioners) were entitled to them, adding
that the petitioners used Article 21 of the Constitution to urge the court to
order the EC to furnish them.
The court said that the EC had insisted that the
documents being requested had already been given to all the parties that
contested the 2012 general elections and that the petitioner’s party NPP was also
given copies.
Justice Adinyira said that even though the highest
court of the land had not developed specific rules for such applications, it
was relying on Order 21 Rule 8 (1) of C.I. 47 and Order 21 Rule 11 (1) of the
same instrument.
“The documents being asked for production and
inspection are public records in the official custody of the 2nd
respondent and the petitioner’s party and all others involved in the election
of December 2012 were given copies.”
The court cited Evidence Act 1975 NRCD 233 Section
1668 (8) to back its decision to refuse to order the EC to furnish the
petitioners with the documents.
The court held that it was “unnecessary” for the
petitioners to apply for the documents when they already had copies.
Justice Adinyira said that the petitioners could not
raise any concern about the document in their possession to warrant the court
to take any action saying the request is superfluous and unnecessary.”
The court also said that the timing for the request
was “premature” in view of the fact that court had given a ruling in respect of
the application for further and better particulars.
The court held that even though the constitution
enjoins the courts to protect the rights of all persons to information, the
reliance on Article 21 (f) of the constitution for the instant application is “rather
lame.”
“That does not disclose any need for the court to ask
the 2nd respondent to bring documents for inspection. A refusal
would not infringe on the petitioners’ rights.”
As a result, Justice Atuguba ordered that the motion
for production and inspection of documents was dismissed.
Motion
To Amend Petition
Afterwards, the court heard the application for
leave to amend the amended petition filed by the petitioners.
Phillip Addison, counsel for the petitioners told
the court that at the last adjourned date, the 3rd respondent (NDC)
had indicated to the court that it was going to raise an objection to the
amendment which the court granted but added that “we still have not seen any
affidavit in opposition filed.”
NDC
Backtracks
Samuel Cudjoe who standing in for Tsatsu Tsikata,
counsel for the NDC then told the court that “we decided not to file again.”
Justice Paul Baffoe-Bonnie then asked counsel
whether the NDC was no longer opposing the petitioner’s application to which
counsel replied “We will abide by whatever decision court takes.”
Justice Sulley N. Gbadegbe then cut in to say that
the court’s decisions were binding and the NDC needed to make up its mind
whether to oppose or support the application to which Mr. Cudjoe again said “We
no longer oppose the application.”
Nana Ato Dadzie of the NDC speaks for the NDC
Tony Lithur, counsel for the 1st
respondent (President Mahama) also said his client does not intend to oppose
the petitioners application to amend the petition.
Addison
Moves Motion To Amend Petition
Mr. Addison then moved the motion where he made
corrections to typographical errors, added, amended and substituted certain
paragraphs.
He said the application to amend the petition had
become necessary due to the discovery of instances of “irregularities and
malpractices” in the elections.
Counsel informed the court that the number of
polling stations affected by instance of irregularities and malpractices were
increasing from 4,709 to 11,916.
He said the petitioners were ready to supply ‘further
and better particulars’ to the respondents with respect to the additional
polling stations that did not form part of the 4,709 earlier granted by the
court.
EC
Opposes Amended Petition
James Quarshie-Idun, counsel for the EC opposed to
the petitioner’s application saying that they (petitioners) should have filed a
proposed amendment to the particulars.
He said it was due to the fact that an applicant’s
motion for ‘further and better particulars’ could be different from another’s
that they were opposing the petitioner’s application.
He said once the petitioner’s had raised allegation
of voting in 28 polling stations which were not part of the 26,002 supervised
by the EC, it was for them to show to the court how they came about adding that
what the petitioners had filed “does not meet the order for ‘further and better
particulars.’
Justice Gbadegbe asked the EC counsel whether he was
aware that there were consequences if the petitioners failed to comply with the
court’s order to provide ‘further and better particulars,’ and that the
petitioners were bound to comply with the order before they (petitioners) take
the next action.
Mr. Quarshie-Idun said that “we are entitled to know
the ones that we are supposed to answer.”
Court
Rules On Amendment
After a break, the court unanimously granted the petitioners
application to amend the petition and asked that the petitioners should serve
the respondents with ‘further and better particulars’ of the polling stations
that were added to the petition.
The court said the petitioners have two days from
the day of the ruling to file the amendment and the respondents have seven days
to file their answers to the amendment.
NDC
Motion For Further and Better Particulars
When the court ruled on the amendment, the NDC counsel
then moved a motion for ‘further and better particulars’ to request the
petitioners to furnish them with certain documents.
Mr. Cudjoe said “We have seen the ruling together
with the orders asking the petitioners to furnish the respondents with ‘further
and better particulars’ but it is still important we move our motion.”
He said that if they (NDC) did not move its motion
and the court made some decisions it could affect their rights adding “we want
an independent order from the earlier order.”
NDC
Counsel Grilled
“We want a separate order in order to preserve our
rights,” he argued.
But when Justice Atuguba asked him whether he was
aware of the existing orders of the court in respect of what they were seeking,
counsel said “the consequences in not applying for the particulars will disable
us from bringing further applications for particulars.”
Justice Anin-Yeboah then asked the NDC counsel to
supply the court with authorities of what counsel was seeking to do since
according to the judge “I have not come across this submission in any
jurisdiction.”
Justice Gbadegbe said that Order I Rule 2 of the
High Court Rules defeats the argument being made by Mr. Cudjoe.
The judge asked if the NDC was not in court at the
instance of the 1st respondent (President Mahama) whom the court has
already granted his application for ‘further and better particulars’ before adding
that counsel needed to limit himself to the orders that was not given to the
respondents.
Mr. Cudjoe told the court that the orders to the 1st
and 2nd respondents were specific adding “so far as we have not been
granted an express order, we will be restrained from future application.”
Justice Atuguba then asked the NDC counsel to
proceed with his application as it relates with differences in particulars.
Mr. Cudjoe said that they wanted ‘further and better
particulars’ on how the petitioners were able to aver that the 1st
respondent ’s (President Mahama) figures are far in excess.
Mr. Addison then cut in to say that all the
particulars that the NDC is seeking had been dealt with by the court and that
paragraph 23 of the petition answered the NDC’s request.
Mr. Cudjoe replied that what paragraph 23 talked
about was deductions and not excess votes.
Justice Gbadegbe said that everything that the NDC
counsel was looking for was in the petition adding “we understand counsel’s
difficulty because the paragraphs have been mixed.”
Even when Justices Atuguba and Jones Doste sought to
straighten things for the NDC counsel, he still insisted that “we are not
withdrawing this application.”
Court
Throws Out NDC
The court went ahead to unanimously dismiss the NDC’s
application for ‘further and better particulars’ when Justice Atuguba said “since
Mr. Addison in effect has submitted that some aspects of the petition should be
read together, the mischief read by the NDC counsel disappears.”
Mahama
Withdraws Application
Tony Lithur was then to move the 1st
respondent’s application for interrogatories but he said “we have had a second
thought.”
He said that because the petitioners had amended
their petition to add more polling stations, they would withdraw and study the
figures since they are at liberty to re-apply.
The court accepted counsel’s submission and struck
out the application with liberty to re-apply.
Emerging
Issues
When the court was about to retire to chambers, Mr.
Addison drew the juustices’ attention to the fact that the rules of the court
are silent on what happens next after filing the amended statement.
Gloria Akufo speaks for the NPP
He said “we want directions from the court” and
Justice Gbadegbe asked the bar to “put your heads together.”
Justice Atuguba said that Rule 69 C 1 of C.I. 74
gives the court the power to start the trial 15 days after the respondents have
filed their answers.
Mr. Lithur said that the court should take judicial
notice of the fact that the numbers involved in the petition is huge and asked
the court to give the parties convenient period within which to prepare for the
trial.
The court then ordered the respondents to file the
amended answers to the petition 14 days from service.
The parties are then expected to come to court for
directions as to when full trial should commence.
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