Nana Akufo-Addo & Dr. Mahamudu Bawumia leave the court
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday May 23, 2013.
There was objection galore at the ongoing landmark
Presidential Election Petition, when principal witness Dr. Mahamudu Bawumia was
re-examined at the Supreme Court yesterday.
Almost every question posed by the petitioner’s lead
counsel Phillip Addison was charactorised by concerted objections from all
counsel for the three respondents namely Tony Lithur (for President John
Dramani Mahama), James Quarshie-Idun (Electoral Commission) and Tsatsu Tsikata
(National Democratic Congress).
As a result, the nine-member panel chaired by
Justice William Atuguba had to spend considerable length of time before either
overruling or sustaining the objections in each instance.
The re-examination of Dr. Bawumia became possible
following the announcement by Mr. Tsikata that he had brought his
cross-examination to an end after 13 days of grilling the witness but had indicated
that he would conclude finally subject to the report to be submitted by KPMG, a
reputable international accounting firm that has been chosen to count the
number of pink sheets attached as exhibits by the petitioners.
Following the objections, Dr. Bawumia who normally
spoke for hours in previous proceedings was virtually on holiday yesterday as
most of the questions he was supposed to answer were truncated by the
objections from the respondents counsel.
First
Salvo
It was Tony Lithur who fired the first salvo when he
objected to Mr. Addison’s question on further and better particulars that Dr.
Bawumia had been referring to during cross-examination in respect of
particulars and pinks sheets covering 11,842 polling stations with their
specific categories of violations, malpractices and irregularities.
Just as Dr. Bawumia said “Yes, my lords, I have the
further and better particulars, Mr. Lithur objected vehemently.
Tsatsu Tsikata & Tony Lithur with ET Mensah
Mr.
Lithur: Objection! There is no ambiguity here, the
questions were answered directly and clearly...in our cross-examination, the
scope is very clear, it can’t be used as an opportunity to lead evidence in
chief…. (Counsel for the third respondent Mr. Tsatsu Tsikata also rose to
object to the question)
Mr. Tsikata supported Mr. Lithur saying “the further
and better particulars are part of the pleadings in this proceeding and there
is really no basis on which some document claimed to be further and better
particulars by the witness can be put in at this point in time. The further and
better particulars were filed in the pleadings and we have copied of what was
filed, I believe your lordships have copies of what was filed.
Mr.
Quarshie-Idun: My lords, I also object to the line of
questioning on the same grounds stated by my learned friends.
Counsel:
My lord, the witness was accused of misleading the court, and that the further
and better particulars did not contain the information that he says it
contains. That is a matter that goes to the goes to the credibility of the
witness, and we are entitled in re-examination to raise that issue and vindicate
the credibility of the witness. The further and better particulars is a
document that has been supplied to all the respondents and therefore it is not
a document that will take any of them by surprise. They have asked questions on
it; they have denied certain information that is in it…My lord, there are quite
a number of authorities on the point and because I foresee my learned friends
getting up every now and again to object, maybe I should refer your lordships
to the authorities we have so that a ruling is made to clarify the issue (He
referred the court to several precedents including the case of NDK Financial
Services versus Arnold Agyei, Richard Agyei, Benjamin Agyei and Sophia Mensah.
Mr. Lithur cuts in)….
Mr.
Lithur: I suppose when it comes that are covered by our
legislation, resort to Common Law decisions are quite irrelevant and the
relevant position as contained in the Evidence Act, 1975 (He reads the relevant
portions)…Clearly, re-examination as of right only arises when it’s a new
matter contrary to the authorities that my learned friend have read….It is an
amazing suggestion indeed that what is considered as pleading is being sought
to be tendered, I think it’s completely inappropriate.
Mr.
Quarshie-Idun: My lords, I would also just briefly add
that this is a matter on which we have earlier pleaded that we have not
received the full complement of the 11,000 odd exhibits my lords. As far back
as 27th of February, in paragraph 18 of our second amended answer,
this pleading was made, so it is not a matter that first came up in
cross-examination.
Mr.
Tsikata: I may also just add that the pleading in respect to
the further and better particulars that were ordered by your lordships were
responded to in terms that were documented before the court and those documents before the court, need no
further tendering in evidence, they are already part of the record of this
court.
Phillip Addison
Counsel:
If it’s part of the record, I ‘m wondering why my learned friends are opposing
it. Again, counsel for second respondent indicated what we were saying. He says
that the further and better particulars do not contain all the information that
we are asserting it contains. We think it is a matter that should be tendered
before this court to have a look at it and see whatever we are saying is true
or not….(Judges confers and the objection was sustained, but counsel rose to
ask the court to furnish him with the reasons for sustaining the objection to
serve as a guide).
Justice
Atuguba: There is a number of reasons, but I will just give
one: The pleadings are already part of the records and their tender in evidence
is out of place.
As a result, Mr. Addison reframed his question
asking “Dr. Bawumia, during cross-examination, you told the court that you were
no longer relying on the 11,842 polling stations, and that you have deleted
from that list 704 polling stations, now all attempts by you to give a list of
these 704 polling stations were resisted by counsel for respondents, now do you
have a list with you?” to which Dr. Bawumia responded “Yes my lords.”
Mr. Lithur again raised objection…
Mr.
Lithur: Objection! the witness was very clear about the
time when he was testifying where he has deleted polling stations that he did
not require for this case and that evidence was given under examination-in-chief.
In fact during the examination-in-chief, he was permitted to tender a revised
analysis based on the polling stations that he said he had deleted and pursuant
to that, he delivered to this court as exhibit, a list of polling stations that
they said they were no longer going to rely on. This was when he was leading
evidence. My lords, if the witness had this material before the commencement of
trial, he ought to have -during the time he was giving his evidence in chief-,
given that to the court. Being confronted in cross-examination with materials
that he has supplied which shows numerous duplications, what they are trying to
do is to clean up the table. I think that is not part of the scope of
re-examination; the opportunity was there when he was testifying, this is not a
matter that they can use re-examination to reintroduce…. (Mr. Tsikata also rose
to support a similar view expressed by his colleague. Mr. Quarshie-Idun was
also in full support)
Counsel:
My lords, we are seeking to tender this document with leave of the court. The
respondents have had every opportunity to cross-examine the witness on 11, 842
and therefore it includes those that he is relying on and those he says he is
not relying on. Now this list would assist the court in ascertaining the case
of the petitioners, which has narrowed it down from 11,842 to 11,138(He
referred the court to the proceedings of April 24, 2013 where the judges agreed
that furnishing them with a list of the deleted polling stations would be useful
to the court)….I think this is the appropriate time to tender the list of 704
polling station that the petitioners say they are no longer relying on. (Mr.
Tsikata protested, saying that if a new list was tendered, then he would be
forced to cross-examine on that list.)
Counsel:
It is not a new list, it is contained in the 11,842 polling stations, they have
had the opportunity to cross-examine the witness on these polling stations. We
are assisting the court by providing this list of 704 polling stations which
the witness says he is no longer relying on. Several times, reference was made
by the witness during cross-examination; he was not given the opportunity to
tender it and now is the time to tender it to with the leave of the court. As I
have already pointed out, your lordships thought that it will be useful to have
it….(Judges confer again, Justice Atuguba read the ruling)
Justice
Atuguba: 7 to 2, Akoto-Bamfo and Gbadegbe dissenting,
objection is over-ruled.
CD
Rom
The petitioners then sought to tender the CD Rom which
they said contained exhibits in electronic form of the 704 polling stations
that they say they no longer rely on them in their analysis.
The respondents again objected arguing that the
court already have enough exhibits to decide the matter but Mr. Addison parried
the objections saying the CD-ROMs were to ease the evaluation.
Justice Atuguba later sustained the objection so the
CD Rom was not tendered.
Otiko Afisa Djaba, Asiedu-Nketiah & Yaw Boateng Gyan
6,823
Polling Stations
Counsel:
Dr. Bawumia, during cross-examination, counsel for third respondent suggested
to you that your duplicate serial numbers category-the exhibit P series-,
involve half of the 6,823 polling stations and that you have double counted and
padded this category of polling stations and pink sheets, simply to mislead the
court and increase the number of polling stations in order to shore up your
claim. He asked you to provide a list of counterpart duplicate serial numbers,
of which you did and which was used in cross examination, but which however,
counsel refused to tender. Do you have the list with you?
Witness:
Yes my lords, I have the list.
Counsel:
Now what would you like to do with the list?
Witness:
I would like to tender it if it pleases the court.
This time around the respondents counsel did not
raise any objection except for Mr. Lithur to say “I am making some reservations
about the list,” and for Mr. Tsikata to say there were ‘typos’ that needed to
be corrected.
The court then overruled Mr. Lithur’s objection
regarding the ‘categories session’ on the list which he identified when he
expressed the ‘reservation’ and ordered the typos to be rectified.
Mr. Addison then asked Dr. Bawumia to address the
accusation by Mr. Tsikata that the petitioners deliberately selected
violations, irregularities and malpractices from polling stations in the
strongholds of President Mahama but just as the witness answered, Mr. Lithur
objected again.
The 1st respondent counsel argued that
when the question was posed during cross-examination, Dr. Bawumia denied it
categorically and that there was no ambiguity which needed re-examination.
Mr. Addison pointed out that the respondents were
attacking the credibility of the witness and also bad faith had been raised by
Mr. Tsikata and the Dr. Bawumia needed to clear the air once and for all.
The court in a 6-3 majority decision with Justices
Julius Ansah, Rose Owusu and Annin-Yeboah dissenting, sustained the objection.
Methodolgy
Question
Mr. Addison again asked Dr. Bawumia to explain to
the court the methodology used in concluding his analysis since during
cross-examination; the witness had been attacked by the respondents for padding
pink sheets to make up the numbers.
Mr. Lithur objected saying that it was a matter for
examination-in-chief which the petitioners failed to do and were seeking to introduce
it at re-examination stage while Mr. Tsikata said “the court’s function cannot
be seized. Issues of methodology are completely irrelevant.”
Mr. Quarshie-Idun for his part said “this is not a
matter for re-examination but a matter for addresses,” but Mr. Addison replied
that padding of pink sheets was raised in cross-examination and did not come up
during examination-in-chief.
“He has been called dishonest when he insisted there
was no double-counting. This is the opportunity to clear the air,” Mr. Addison
argued.
The court, in a 5-4 majority with Justices Jones
Dotse, Paul Baffoe-Bonnie, Annin-Yeboah and Sulley Gbadegbe dissenting,
sustained the objection.
The
clash
In the latter stages of the proceedings, there was a
near clash between the bench and Mr. Addison when said the court was compelling
him to ‘truncate’ his re-examination.
The court had unanimously ruled that a document Mr.
Addison sought to tender in respect of re-categorization of some of the
exhibits could not be tendered and was subsequently marked as ‘Rejected’.
However, Mr. Addison was of the opinion that once
the court had earlier in a 5-4 majority overruled the respondents counsel
objection about re-examining on the re-categorization of some of the exhibits that
the witness said were mislabeling during cross-examination, he was seeking
leave of the court to get the right document to tender in evidence.
Justices Atuguba, Sophia Adinyira, Sulley Gbadegbe
and Vida Akoto-Bamfo dissented.
The court later unanimously sustained an objection to
the tendering of the document in respect of re-categorization of some of the
exhibits because it said the document bore no exhibit number and that respondent’s
counsel had been able to convince the court that allowing the document to go in
would mean an introduction of evidence through the back door.
Gloria Akuffo
Counsel:
My lord, this issue has been ruled on by the court, it will amount to
re-arguing the same old point. We talk of re-categorization; this is a list
which shows the new category and the old category, the Region, the
Constituency, the Polling station, polling station code and serial number. I
don’t know what else they want to be there. We say that we are showing the
re-categorization and that is exactly what has been done in this document. We
have argued at length on this, your lordships have gone in, you come back;
you’ve ruled on it, you are still taking up objections to it, it would be
endless.
Mr.
Lithur: My lords, it’s the exhibit number that are
re-categorized, there is no exhibit number…
Justice
Rose-Owusu: Mr. Addison, I thought your question
was which polling stations that are affected by your re-categorization, so it
is not the whole of the pink sheets that they are talking about. So as he is
saying, at least you must indicate exhibit and the polling stations which have
been moved from one category to another.
Counsel:
My lords, that is what is shows; that is what it does….(Judges confer again)
This is our document and we wish to tender it through the witness and we have
indicated the categorization, we can’t maintain the old exhibit numbers because
the category has changed and this is what we have indicated on this….My lords,
if the court would like us to put the old exhibit number on them, we would do
that…(Mr. Quarshie-Idun, agreed with the suggestion for exhibits to be affixed
with exhibit numbers. Mr. Lithur drew attention to the fact that the situation
has implication on people’s votes, judges consults and eventually, Justice
Atuguba read the ruling)
Justice
Atuguba: By unanimous decision, the objection is sustained.
Counsel:
My lords, so what does that mean, we have to provide the exhibit numbers
Justice
Atuguba: When an exhibit is tendered and rejected or
rejected, it has to be marked “tendered” and “rejected”
Counsel:
My lords, we made the offer to put in the exhibits…
Justice
Atuguba: That one…(laughs and counsel interrupts)
Counsel:
This court has ruled that we can ask these questions [about the re-categorized
list] and if there is any
dissatisfaction with the manner in which it has been done, it can be corrected
because this would amount to over-ruling your earlier ruling which gave us the
right.
Justice
Atuguba: Not at all, we allowed you to follow suit properly
and you didn’t follow properly so that is it.
Counsel:
But my lords, we are talking of substantial justice here; this court has said
that we can give evidence on the re-categorization and there is an issue about
exhibit numbers. We are praying that the court gives us leave so that tomorrow,
we would bring another list with the exhibit numbers. This is in the interest
of justice.
Mr.
Tsikata: My lords, counsel for petitioners had the
opportunity to tender, we raised an objection, it has been sustained. He had
indicated before lunch that he will end his re-examination. My lords, we are
not in the world of Houdini, I do not think that we should entertain this
shuffling of things without any specific references and that’s what your
lordships have ruled.
Counsel:
My lords, we are seeking to come back tomorrow first thing in the morning to
tender in the document with the exhibit numbers. As regards the
re-categorization, this court has ruled, and has ruled that we can give
evidence on that….
The
Give-and-take
Justice
Atuguba: Apart from this, do you have any further questions
in your re-examination?
Counsel:
My lords, subject to this [re-tendering the re-categorization exhibits], we
would end our re-examination….
Justice
Atuguba: In these circumstances, because the matter has been
ruled upon, that ends the proceedings of re-examination
Counsel:
No my lords, that’s not the end of the re-examination…
Justice
Atuguba: But you said subject to….
Counsel:
Well, my lords, there was a ruling in this court allowing us to lead evidence
on the re-categorization, as it is now, through the back door, we have been
denied that right. The same right given to us has been taken away and
therefore, we cannot say that we have ended re-examination…
Justice
Atuguba: Well, our view is that this is ended because your
last question was about this tendering and the ruling on it closes the matter.
You said subject to tendering the document, which we have ruled on, so for us,
we have closed the matter.
Papa Owusu Ankomah and Johnson Asiedu-Nketah
Counsel:
My lords, in view of the present ruling, we think that it is only fair, that we
are allowed- in the interest of justice, to carry on with our re-examination;
unless of course the court is curtailing our right to re-examination. Are we to take it that our re-examination has
been curtailed by the court?
Justice
Atuguba: Mr. Addison, we have ruled that following our
understanding of what you did. You said you have just one question.
Counsel:
No, I didn’t say I have one last question, I said the subject to the ruling of
the court…
Justice
Atuguba: Yes, and the ruling of the court …(Addison
interrupts)
Counsel:
The court ruled in our favour and somehow through the backdoor, that ruling has
been negated….
Justice
Atuguba: What ruling…
Counsel:
In that ruling, the court gave us the right to go on with leading evidence in
the re-categorization and somehow, it’s been negated.
Justice
Atuguba: Look, I think that we have tried to be tolerant,
but we cannot take dictation from the bar….
Counsel:
My lords, we are not dictating to the bench, we are asking for leave from the
court. If this document has been refused to go in, we would like to lead
evidence on the issue of the re-categorization because the document that we are
going to tender in support of our case has been refused now, that’s all we are
asking for, we are not dictating to the bench….
Justice
Atuguba: (On top of his voice) Mr. Addison, we have ruled,
we heard all that you said and we have explained to you that if you had
retreated, we would have probably considered that, but you did not….
Counsel:
So the court is curtailing our re-examination?
Justice
Atuguba: We have not curtailed, we have gone according to
your undertaking….
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