Lead Petitioner Nana Akufo-Addo leaves the court yesterday
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday February 6, 2013.
The Supreme Court has unanimously ruled that parties
involved in the petition challenging the declaration of John Dramani Mahama as
President by the Electoral Commission (EC) in the December 7&8, 2012
general election, should share documents.
The nine-member panel therefore ordered the
petitioners, the New Patriotic Party (NPP) presidential candidate, Nana Addo Dankwa Akufo-Addo, his running mate Dr.
Mahamudu Bawumia and the party’s National Chairman, Jake Otanka
Obetsebi-Lamptey to furnish the respondents: President John Mahama and the EC
with details of all the 4,709 polling stations where the petitioners are
alleging irregularities.
The panel chaired by Justice
William Atuguba again ordered the EC to also furnish the petitioners with
particulars of Ghanaians serving abroad including foreign service officials,
students on government scholarships abroad, Ghanaians working in international
organizations and security service personnel returning on duties and the mode
of registration.
The EC and President Mahama moved separate
applications for ‘further and better particulars’ to get the court to order the
petitioners to furnish them with the names and codes of the 4,709 polling
stations that they (petitioners) claim there were irregularities while the
petitioners also moved their application to get the EC to supply them with the
list of voters registered abroad.
Court’s Orders
The court ordered that all the
parties have 7 days from the date of the court’s sitting (yesterday) within
which to comply with the ruling.
The court’s consolidated ruling in
respect of the three applications was read by Justice Sulley N. Gbadegbe.
He said that since the stakes in
the case were high, the court had an obligation to ensure that all the parties
have adequate information on which to rely on.
Granting the applications of the EC
and President Mahama, the court held that “it is fair for those who raised the
allegations to provide further and better particulars to assist the court in
resolving the petition.”
Allowing the Petitioners’
interrogatories, the court again held that the answers given by the EC to the
petition “lacked specificity in relation to the number of voters registered
abroad.”
When Justice Gbadegbe completed reading
the ruling, Justice Atuguba took the floor to issue the orders and said “we
have adopted as stated in the statements of the applicants”.
In respect to the EC, the court
held that the petitioners should supply the commission with paragraphs A, C, D,
E, F of their grounds and paragraph 20 of the petition.
In the case of President Mahama,
the court ordered the petitioners to furnish him with grounds 2a, 4a, 5a and b,
6a and b, 7a and b, 8a and b, 9, 10 and 11a, b, e, f and i.
Turning to the EC, the court said
“let the 2nd respondent answer the petitioners all the grounds set
out in the petitioner’s application for interrogatories.”
Tsikata’s Objection to Petitioners Application
When the court finished its ruling,
the petitioner’s motion seeking leave of the court to amend its petition to
enable them add more information to the petition was called.
Mr Tsikata and Tony Lithur leave the court
Just as Phillip Addison, lead
counsel for the petitioners was to move the motion, Tsatsu Tsikata, counsel for
the 3rd respondents, National Democratic Congress (NDC) raised an
objection about how the petitioners filed the process.
He said that the NDC filed the
preliminary objection because the court’s registry received the petitioners’
application at 9:20am on 31st January and filed a notice for
withdrawal at 3:45pm before filing another application on the same
subject-matter five minutes later at 3:50pm.
“They indicated that they were
withdrawing it and seeking leave to amend the amended petition with liberty to
re-apply but it is an abuse of the court’s process,” counsel argued.
Mr. Tsikata’s argument was that
since the petitioner’s filed a notice for withdrawal, they (petitioners) also
needed to seek leave of the court before filing the current application saying
“Our preliminary objection is in respect to that application filed at 3:50pm.”
He said that the notice of
withdrawal filed without leave was “improper,” adding “the reason why leave is
required is simply that the courts are ceased with this petition.”
Mr. Tsikata argued that “if it was
sought to withdraw an interlocutory application that process requires leave.”
He said that the key objective of
the nature of the petition is that “the court controls its processes,” adding “it
is not for a party to dictate the process by which they come before the court.”
He argued that “leave is not automatic
in relation to this petition,” adding “they basically made up their rules. In
the morning they files an application and when they are a little bit awake,
they withdraw and file another one. The court should not countenance these
kinds of behaviours.”
Some NPP lawyers
At this point Justice Jones Dotse
cut in to repeat the bench’s admonishing that the bar needed to be decorous in
their statements and Mr. Tsikata said he was withdrawing his ‘a little bit
awake’ comment.
According to Mr. Tsikata, a party
cannot start a process change their minds without informing the court, before
filing once again and said that C.I. 74 is specific on how things should be
done adding “Order 17 Rule 2 (1) frowns on what they have done.”
“Even if that motion for withdrawal
were effective as at the time when it was filed then without obtaining the
liberty to re-apply they cannot come before the court with an application in
exactly the same terms.”
Addison Replies Tsikata
Reacting, Mr. Addison said they
noticed an error on the first application and filed a corrected application at
3:50pm saying “both had a return date of February 5.”
He said as at the time of filing
the application, there were no response from the respondents and the petitioners
were still in control of the process.
He said it was wrong for Mr.
Tsikata to argue that the petitioners were abusing the court’s process when it
was within their rights to withdraw and re-file the application since the
respondents had not filed any responses.
Citing authorities, Mr. Addison
said that “We are not dealing with the withdrawal of the petition but this is a
simple application.
He said that there was no need to
seek leave of the court before re-filing the application because at that time
the petitioners were in total control of the process.
The court then went on break to
decide on the objection and when the judges returned they unanimously overruled
the objection and Justice Atuguba said Mr. Addison could proceed with the
application on its merits.
Application to Amend Petitioner’s Petition
Mr. Tsikata then told the court
that the NDC had not waived its right to oppose the petitioner’s application to
amend the petition and add more information to it.
He said there were several issues
raised in the amended statement which needs answers from them.
The court subsequently adjourned
the proceedings until February 7 for the NDC to file its affidavit in
opposition so that the petitioners could move the motion.
NDC’s ‘Further & Better Particulars’ Application
After this, Mr. Tsikata told the
court that the NDC has an ‘application for further and better particulars’ from
the petitions awaiting hearing.
He proposed to the court that the
orders made earlier in respect to similar applications by the President Mahama
and the EC, be replicated but added however, that the petitioners had opposed
their application and for that matter he needed to move the application.
He said he would ask the court to order
the petitioners to specify the violations in one of their paragraphs opposing
the NDC’s application.
Nana Ato Dadzie is dwarfed by journalists
Justice Gbadegbe then asked Mr.
Tsikata if he intended to withdraw the application judging from the fact that
the court’s ruling on similar applications had been made.
Justice Doste also asked Mr.
Tsikata to get the earlier order made by the court with regards to similar
applications to enable him narrow down the issues if he (counsel) intended to
proceed with the application.
Mr. Tsikata told the panel that the
NDC was not withdrawing the application and would move it.
Mr. Addison then cut in to say that
if similar ‘further and better particulars’ was what the NDC wanted, the court
had already given the orders and they could follow the direction.
The court again adjourned the
proceedings until February 7, for the NDC to move its ‘application for further
and better particulars’.
Mahama’s Application for Interrogatories
Afterwards, Tony Lithur, counsel
for President Mahama also wanted to move an application that is seeking leave
to serve the petitioners with interrogatories within the terms of the exhibits
before the court.
Mr. Addison cut in to say that per
the court’s ruling for the parties to share documents, “there is much common
grounds.”
“Some of the issues you are asking
them to serve have been taken care of by the applications for further and
better particulars. They need the court’s order to study where they think they
should respond,” counsel submitted.
Petitioners Application for Production & Inspection of
Documents
Finally, the petitioners moved an
application asking the court to order the EC to produce documents for
inspection and to make copies.
According to the petitioners, they
need the Result Collation Forms from all the 275 Collation Centres as well as
Pink Sheets of all the 26,002 Polling Stations to further make a case.
Mr. Addison said that they were
making the request because of the answers given by the EC in respect to the
petition, adding that the documents being requested “are public records in the
official custody of the EC.”
He argued that under Article 21of
the Constitution, the petitioners are entitled to request and make copies
thereof.
Another batch of NPP lawyers
He said that the application can be
brought at anytime of the case adding “we have brought it at the earliest
opportunity.”
EC’s Opposition to Petitioners Application
James Quarshie-Idun, counsel for
the EC strongly opposed the petitioners application, citing C.I. 47 of the High
Court Rules Order 21 Rule 6 to make a point.
He said that the EC gave the
document on request to all the political parties that contested the election
and the petitioners’ party had copies and could not turn around to demand it
again.
“They have all the documents that
they are asking us to supply them. They are on a fishing expedition and most
importantly, deep sea fishing.”
The EC counsel argued that
provisions of copies is not a mere practice but it is required by law and cited
Registration 36 (2) (3b) of Public Elections 2012 of C.I 75 as setting out the
rules.
He also cited Registration 40 of
C.I 75 as addressing what takes place at the collation centres after which
every party representative was given copies of what had transpired.
He said that the burden of proof is
on the petitioners to establish the allegations and described the request as
“oppressive.”
Addison Comes Again
Replying on point of law, Mr.
Addison argued that “we have a constitutional right to access public records in
the custody of the EC. What we are seeking to do is in Order 21 Rule 1.”
The court again adjourned the
application until February 7 for ruling on whether or not the EC should supply
the petitioners with the Result Collation Forms as well as the Pink Sheets.
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