Nana Akufo-Addo and Dr. Bawumia leave the courtroom
Posted on: www.dailyguideghana.com
By
William Yaw Owusu
Thursday April 11, 2013.
The Supreme Court yesterday showed a glimpse of what
it is capable of in the landmark election petition when it demanded the
whereabouts of Chairman of the Electoral Commission (EC), Dr. Kwadwo Afari-Gyan.
This was after the nine-member panel chaired by
Justice William Atuguba had unanimously dismissed an application that the EC
filed to ask the court to vary the orders it had earlier gave when setting out
the mode of the trial.
The
Query
After Justice Atuguba had read the ruling affirming
its order of April 2, another panel member Justice Jones Victor Dotse wanted to
know from counsel for the EC who the Returning Officer of the presidential
election was.
Judge:
Who is the Returning Officer of the Presidential election?
James
Quarshie-Idun (Counsel): the Returning Officer for the Presidential
Election is Chairman of the Electoral Commission.
Judge:
Mr. Quarshie-Idun, does it not concern you that since we started this case the
Returning Officer has never set foot in this court?
Just as counsel attempted to make inaudible answer
to the question, Justice Anin-Yeboah another panel member added “he has not
even sworn a single affidavit,” in reference to Dr. Afari-Gyan.
EC’s
U-turn
Following EC’s motion on notice, the court which had
fixed Tuesday, April 16, as the definite date for the hearing of the election
petition had to recall the parties yesterday for it to hear the motion.
The EC had five days upon receipt of the affidavits from
the three petitioners to file its particulars to enable definite hearing to
begin next week Tuesday April 16.
However, the commission made a U-turn asking the
court to vary its orders by allowing the petitioners to close their case before
it (EC) is ordered to tender its evidence and other documents; a request the
petitioners called for its dismissal in their affidavit for opposition.
The courtroom was not packed as is usually the case
and it might be due to the way the case was hurriedly recalled but security was
tight as usual.
NPP presidential candidate for December 2012
election, Nana Addo Dankwa Akufo-Addo (1st petitioner), his running
mate, Dr. Mahamudu Bawumia (2nd petitioner) were in court while Yaw
Buaben Asamoah announced himself as representing the party’s Chairman, Jake
Otanka Obetsebi-Lamptey who is the 3rd
petitioner.
None of the NDC executives who always throng the
court was present but the EC was represented by Amadu Sulley, a deputy
Commissioner.
EC’s
Moves Motion
Moving the motion, Mr. Quarshie-Idun said Order 33
Rule 4 (1) of C.I 47 give direction as to the mode of trial and as a petition
of first instance; Order 36 Rule 4 of C.I. 47 prescribes the direction of the
trial.
According to the EC counsel, the petitioners had a
‘burden of proof or persuasion’ in the matter and the court needed to ask them
to close their case before they (EC) should be asked to file their supporting affidavit.
“Since in the instant suit, this honourable court is
functioning as a trial court or a court of first instance, it is respectively
requested that, taking into account that the petitioners have a burden of proof
or persuasion that the petitioners should be ordered to open their case,
present their evidence (oral evidence and evidence of affidavit) and close
their case before the 2nd respondent is required to open its case,
present its evidence and close its case.”
He cited Sections 14 and 17 of the Evidence Act which
puts the burden of proof on the petitioners to discharge before the respondents
could be asked to file their affidavits saying “We are urging the court to
consider our application in that direction.”
“We are yet to be served with the affidavit filed by
the petitioners. Will they be entitled to file supplementary affidavit? These
are questions that could arise.”
He said if the petitioners are made to close their
case before the EC files its affidavit, any documents obtained during
cross-examination would be part of the number of documents to be filed.
According Mr. Quarshie-Idun, the order they are
seeking “will not cause any delay or hinder the expeditious hearing of this
case,” adding “While they close their case, we will be required to file ours
within a short deadline.”
“It would avoid a bumpy ride and objections along
the way,” counsel submitted.
He said C.I. 47 is clear on the procedure for the
trial saying “We will come with our evidence at the appropriate time.”
Petitioners
Oppose Application
Philip Addison, lead counsel for the petitioners vehemently
opposed the EC’s application describing it as “a failed review application.”
“The argument put forward this morning by the EC was
strongly urged on this court by the 1st respondent’s (President
Mahama’s) counsel (Tony Lithur) and it was refused. Today, the 2nd
respondent (EC) comes to court to repeat the same argument.”
Mr. Addison said the rules relating to review not
been complied with by the EC to warrant the grant of the application and added
that C.I. 47 which governs presidential election petition expressly sets the
rules.
Gloria Akufo and Akoto Ampaw are part of the petitioners legal team
He said the court has already held that the case was
going to be determined by affidavit evidence pursuant to C.I. 74 but the EC
“has come here relying on C.I. 47 High Court Rules when specific arrangements
have already been made.”
“It is a special kind of trial which the rules have
been made. The various orders cited is a matter determined by the court.”
Mr. Addison said Order 36 Rule 4 (1) cited by EC
counsel relates to addresses in the High Court saying “At that stage, all
parties have filed their pleadings, led evidence and addresses are to begin.”
He said “If their application is allowed, it will
mean that the respondents will conduct their case at the back of the
petitioners. They will file after the petitioners have closed their case.”
NDC
Supports EC
Tsatsu Tsikata, counsel for the NDC got up and told
the court that “I would like to be heard on points of law relating to the
matters in the application.”
Mr. Addison cut in to say that “I do not know if
counsel (Tsikata) is going to support or oppose the application. If he is, he
should have been allowed to speak before I responded to the 2nd
respondent’s application. As it is, he is going to speak behind me.”
Mr. Tsikata said “it is important he allows me to
speak,” and before he could end his statement, Justice Atuguba said “you can go
ahead.”
Tony Lithur and Tsatsu Tsikata represent President Mahama and NDC respectively
The NDC counsel said that the EC’s application had
been brought under C.I. 47 and it was appropriate that reference was made to
enable the court to conduct the trial.
He argued that per the court’s order, Article 133
(1) has been ‘overridden’ by C.I. 74, saying any attempt to use C.I. 74 to
override the power of review will be inappropriate.”
He said the EC’s application is not an application
for review but one that is asking the court to vary its orders.
Mt. Tsikata said the court should take into consideration
the realities on the ground before issuing out orders.
He said currently the court’s registry had not yet
served the 3rd respondent with the petitioners’ affidavits but
admitted that “there is a lot of documentation that the registry has had to deal
with,” before urging the court to make the variations being proposed by the EC.
Addison’s
Cut In
Mr. Addison cut in again to complain to the court
that Mr. Tsikata “is not restricting himself to factual matters.”
Justice Paul Baffoe-Bonnie, another panel member
came in to say that the court was very specific on the orders it gave saying
“we said five days after you have been served.”
In spite of the judge’s intervention, Mr Tsikata went
ahead trying to draw the court’s attention to the fact that the petitioners
party (NPP) issuing press releases about issues that are before the court.
“We are scandalized by their (NPP) propaganda,” he
said adding “if we are not served on time we are likely to come on the hearing
date and the case cannot go on.”
At this point, Justice Doste cut in to tell Mr.
Tsikata that he should have allowed Justice Baffoe-Bonnie to complete his
statement before interjecting to which the NDC lawyer apologized.
He said “We are eager for the case to start but the
realities on the ground may make things difficult. All we are saying is that if
there is not a variation of the order it will not benefit further hearing.”
Tony Lithur, representing President Mahama did not
support or object the EC’s application except to say that the EC counsel needed
to clarify what was said.
EC’s
Application Dismissed
After a long break, the court gave its unanimous ruling
through Justice Atuguba who said “we do not think the court should shackle
itself with interlocutory orders.”
The court said with regards to the objection to the
propriety of the orders already given, “we hold that inherent orders do not
operate in the face of express rules.”
Nana Ato Dadzie speaks for the NDC
It said C.I. 47 cited by the EC is ‘misconceived’
and cited a precedent in election petition in Nigeria where the court used
special rules to dispense justice.
Justice Atuguba said the applicant cannot expect
that the petition is dealt with using ‘ordinary rules’ and added that all laws
must “bow to the constitution”, adding “it is deducible that the presidential
election petition must be dealt with in expeditious manner.”
“Application is without merit and same is dismissed,”
the court ruled.
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