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Nana Akufo-Addo & Dr. Mahamudu Bawumia
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday May 16, 2013.
There was near confusion between the bench and the
bar in the ongoing landmark Presidential Election Petition at the Supreme Court
yesterday when both sides appeared to be deadlocked over certain issues.
Additionally, another snap but heated argument appeared
to have ensued between Justices William Atuguba, chairing and Sophia O.
Adinyira over a decisions taken by the former.
The
Caution
As the argument became heated and things were
getting out of hand, Justice Atuguba cautioned: “You see, we have authority; we
don’t want to exercise it too much, but we cannot be overrun too.”
How
it all started
The heated arguments started when Mr. Tsikata
continuously tried to ask questions on areas that he had already covered
starting with the letter purportedly written by the 3rd petitioner
(Jake Obetsebi-Lamptey) to the 2nd respondent’s chairman (Dr.
Afari-Gyan) when the results were trickling in.
Atuguba
Vrs Adinyira
As the 3rd petitioner’s letter generated
heated argument, there was argument between two judges on the line of Mr.
Tsikata’s questions.
Counsel:
In the affidavit of representatives of the first and third respondent, we have
made a number of very clear statements about changing allegations and so on and
we are seeking to establish that these statements that we make are appropriate
and we are seeking to establish it on the basis of their own letter and their
own statement.
Justice
Atuguba: what we are saying is that; for that purpose you
have tendered this exhibit [the NPP Chairman’s statement] and all the
allegations are there before us. The question is whether you agree with them or
you don’t. By saying that to that extent, you can compositely deal with them
and we proceed instead of minute questions.
Counsel:
Dr. Bawumia, the allegations that were made by the third petitioner –the
Chairman of your party-, in the statement that were attached to the letter,
those allegations are not true, are they?
Witness:
No, I cannot say that; on the 8th and 9th, we had so many
allegations and complaints across the country. The first petitioner (Nana Addo
Dankwa Akufo-Addo) said we can’t really go by allegations so let’s examine the
primary records of the elections, so that is why we put together a committee-which
is what I headed-, to examine the record because it is only the record that we
can bring to court. We cannot just go by allegations and this is why we brought
this (the petition) to court. After examining the records, we brought
allegations of Over-voting, Voting without verification, No signature,
Duplicate serial number etc that is our case that we’ve brought to court
Justice
Atuguba: I don’t think this really addresses (the
question)…(Mini argument ensue between Justice Atuguba and Justice Adinyira )
Justice
Adinyira:..It does…
Justice
Atuguba: No, no, it doesn’t
Justice
Adinyira: It does…
Justice
Atuguba: well, I hold a different view (Justice Adinyira
interrupts inaudibly but Justice Atuguba parries her protests)…Oh! please, you
have your way of looking at it….
Tsatsu Tsikata
Tsatsu
Continues
After the brief altercation on the bench, counsel
steps in to make a request to continue his cross-examination.
Counsel:
My lords, I will respectively wish to proceed…He has given an answer, I want to
proceed to my next question regardless of whether his answer answers my
question or not….
Justice
Atuguba: Well, it’s not quite like that; you may not care
whether a question is answered. We are trying the matter and if it is important
to track the case, we can insist on an answer. (Now referring to the witness).
From what you have said, to me personally, I am not clear that addresses (the
question)
Witness:
Okay my lord, may I just clarify then: What I am saying is that I cannot say
for sure whether these allegations are true or not, we can only support it with
evidence and we looked at evidence and we brought the ones we can support and
this is what we have before the court.
Justice
Atuguba: Okay, that’s fair enough.
Counsel:
Now that statement alleging a conspiracy between the first respondent and the
third respondent is not true.
Witness:
That is not what we brought to court. When we had the election…(Counsel cuts
in)
Counsel:
That statement is not true, can you answer my question?
Witness:
I cannot conclusively say whether it’s true or not. We have not come to court
to prove that particular case, we have come to court because of over-voting and
so on.
Justice
Atuguba: (Referring to the witness) the first paragraph
constitutes an answer to the question, the rest of it are gratuitous excursions
which we have repeatedly said should be exercised…let us move forward.
Counsel:
In that same statement, there is a specific allegation about Savelugu
constituency. Now in this petition, you are not relying on any blue sheets, are
you?
Witness:
No, we are relying on the pink sheets, by and large.
Counsel:
And indeed, that statement about what happened in Savelugu Constituency, the
people who can testify to that would be the Presiding officer at that polling
booth, right? And the collation centre people, those would be the people who
can testify; you are not in a position since you were not there?
Witness:
The record of the pink sheet would show exactly the results were from all the
particular polling stations in that constituency. It is not the case that we
have before this court.
Counsel:
What I asked you was: the people who could speak to what happened as alleged in
the statement, are people like the Presiding Officer in that constituency and
the collation centre returning officer, is that not correct?
Witness:
The pink sheets would speak for themselves as a record of the elections in
Savelugu constituency.
Counsel:
That allegation about what transpired in the Savelugu constituency is not true,
I‘m putting it to you?
Witness:
Well it is not the case we brought to court.
Atuguba
Vrs Bawumia
Justice
Atuguba: He is reading from your (Election) petition, isn’t
it?
Witness:
No, he is not reading from our petition, he is reading from a letter that the
Chairman of the NPP….(Justice Atuguba cuts in)
Justice
Atuguba: But it’s part of your case anyway…(His statement
eliciting murmurs from the court room).
Witness:
No… (Interrupts again)
Justice
Atuguba: Ah! It (the statement of Jake Obetsebi Lamptey) is
now being used as part of the proceedings, that’s what I’m saying…and to that extent,
he can ask you questions to that effect, and confine yourself to the purview of
the question.
Counsel:
That statement that you read out, that allegation is not true.
Witness:
I have not had the full compliments of all the polling stations in Savelugu to
make a final determination of that.
Counsel:
As at now, you are saying you have not had, so at the time you made this
allegation, there was no basis for it.
Witness:
Well, at the time the allegation was made, I ‘m not quite sure how many pink
sheets were used in arriving at that particular allegation. But that is not
part of the case we brought to this court.
Dr. Bawumia
Counsel:
(Again asks witness to read another paragraph from the statement from the NPP
Chairman. The paragraph talks about a “pattern of fraud” where votes were
subtracted from the first petitioner and added to the first respondent). In
this petition, when you were asked to provide Further and Better particulars of
the allegation of padding in favour of first respondent and a reduction to the
disadvantage of the first petitioner, you produced three examples, is that not
correct?
Witness:
As I said, there are many ways to kill a cat; we provided 11,842 examples and
there are different ways of padding. In terms of specific one, there are three
polling stations we pointed to, of which we are only relying on one right now.
Counsel:
Dr. Bawumia, so when a statement such as you read is made by the third
petitioner, you appreciate the seriousness of that, do you not? (Counsel for
petitioners, Philip Addison interjects.
Atuguba
Vrs Addison
Mr.
Addison: My lords, is it a question? (Justice Atuguba
interrupts)
Justice
Atuguba: That’s not a necessary question (referring to Mr.
Addison). The statement is there; its effect can be seen and accessed by
everybody…..
Counsel:
Now in your petition, you are not alleging criminal act on anybody’s part, are
you?
Witness:
I think our petition speaks for itself. We are not alleging criminal act, we
are alleging violations of the law; malpractices and irregularities, that’s
what we are alleging in our petition.
Counsel:
And fraud is not part of your petition?
Witness:
Yes my lords, (Justice Atuguba interrupts by reminding the counsel that the
pleadings of the petitioners are already before the court)
Justice
Atuguba: But the pleadings are before the court…
Akoto-Bamfo
Vrs Tsatsu
Counsel:
But my lords, with respect, the evidence that has been given, the language that
is sometimes used in the evidence, makes it necessary to be clear about what is
being alleged…..(Justice Atuguba laughs). There has been evidence provided-I
don’t need to repeat it- But there’s been evidence provided which needs to be
made clear that there isn’t an allegation of fraud because of some of the
evidence that we have had….(Justice Vida Akoto-Bamfo interrupts)
Justice
Akoto-Bamfo: Counsel, the court would draw the
necessary conclusions …
Counsel:
Very well… (He continues) Now, if you look in the statement, (Asks the witness
to read the second paragraph which talks about systematic manipulation. Witness
reads on but Justice Rose Owusu interrupts)
Owusu
Vrs Tsatsu
Justice
Rose Owusu: …We have travelled this way
before…because he has repeatedly said that that is not their claim. (Referring
to counsel) You draw the necessary inferences you want to make because you
cannot put questions which are argumentative and also repetitive.
Counsel:
My lord, I am not….
Tony Lithur
Justice
Rose Owusu: But you have gone that way before….
Counsel:
I have not have him look at this paragraph, I’m not sure when you said we’ve
done that before…(Justice Rose Owusu tried to refer counsel to earlier
questions relating to what he is about to ask, but counsel insists he is yet to
tackle the particular issue he is about to raise. The encounter between counsel
and Judge went on for a couple of minutes. Counsel insists he is entitled to
cross-examine on the statement. Eventually Justice Atuguba steps in.)
Justice
Atuguba: But sometimes it can be dealt with compositely. I
can foresee you (the counsel) questioning the veracity of every paragraph, why
don’t you compositely say that all those allegations there are not true?
Counsel:
My lords, with respect, certain passages are particularly pertinent to my
cross-examination. The allegation of systematic manipulation across the country…
(but Justice Atuguba cut in)…“but the bottom-line is the veracity or not,
that’s what matters.”
Justice
Rose Owusu: …I thought this statement was made
before the commencement of this proceeding. Subsequent to the making of this
statement, they (the petitioners) have put the case in the form of a petition…I
don’t really see the value of that document.
Counsel:
My lords perhaps if I am allowed to continue my cross-examination, it would be
clear…but as your lordships direct…if your lordships are not going to allow him
me to refer him to another passage in the document, I can proceed, if that’s
the direction.
Justice
Atuguba: …just tidy them up in one question instead of
taking time seriating to the same effect anyway that is our concern….
White
Garment For Church
Counsel:
Now before this letter was written, your party had asked your supporters to
appear in white in Church and victory was yours.
Witness:
Am not quite sure… (Mr. Addison cuts in)
Addison:
My lords, I’m not quite sure sometimes, I feel reluctant to get up, this really
should not be a question that should be asked in this court; we are serious
here.
Counsel:
My lords, he hasn’t answered by question (The bench helped him out and reminded
him that the witness answered that he was not sure). I just asked a question
(Counsel repeats the same question again)…
Witness: I am not sure about that my
lord.
Counsel:
I believe I am entitled to ask that question, and I’m entitled to an answer.
Witness:
I am not sure….
Counsel:
Before that statement was issued, your party on Saturday was claiming that from
your information, your party had won the elections, is that not true?
Frank Davies & Godfred Yeboah Dame
Witness:
I am not sure about the specific claim, but I’m saying that we thought we were
winning the election on the night of the 7th (December). As I said
before, everything seems to be changing on the 8th, that is
my…(Counsel interrupts)
Counsel:
I am not asking about what you thought, I am saying that you made public
declarations that you have won-from the result that you had-, you made public
declaration about that, is that not the case?
Witness:
Well, I’m not aware, the only person that declares a result ultimately is the
Electoral Commissioner, and am not aware that we can declare the result…We can
also express our feeling maybe….(Justice Atuguba interrupts)
Justice
Atuguba: Dr. this is unnecessarily off-tangent. The question
is whether your people declared… (Addison intervenes)
Sit
Down!
Mr.
Addison: My lords, we are being subjected to a number of
irrelevant questions and when the irrelevant questions are asked and the
witness is giving the answers, he’s being stopped in giving the answer whereas
the questioner is not stopped from these irrelevant questions that are being
asked. I think it is unfair. If he asked those questions, the witness should be
allowed to give a full answer to those irrelevant questions.
Justice
Atuguba: Now you have to take care about what your view is
about relevancy. We are following the case and relevancy depends on us…(Addison
tries to interrupt earning him a sharp caution from Justice Atuguba). Will you
resume your seat and listen to me! The questions about declarations and all
that, if you feel they are irrelevant, as far as I am concerned, they are
vitally relevant to this case, and the answer he has to give should be
pertinent.
Mr.
Addison: My lord, I take objection to the question relating
to going to church and wearing white, I think that it is irrelevant. It is the
position we take, if the court rules that it is relevant, fine, but we take the
view that it is irrelevant so far as these issues are concerned.
Justice
Atuguba: I see… (Laughing) he has answered those questions,
but wearing white and what not relates to the claim to electoral victory and
that line of it cannot be irrelevant to a case; if you look at the case before
us and the issues involved.
Mr.
Addison: As the court pleases.
Tsatsu
Runs Out of Questions
It was evident at a point before the break that Mr.
Tsikata was running out of questions as he was repeatedly flagged down by
Justice Atuguba.
More than 7 questions continuously asked by the
experienced NDC counsel were all disallowed by the court leaving him struggling
to ask more questions.
Tsatsu
Thrown Out
Before the cross-examination commenced, the court
read an outstanding ruling, sustaining the objection raised by Mr. Addison that
Mr. Tsikata had continually referred to the witness as dishonest and that the
petitioners had shown bad faith.
The court held that once the 1st and 3rd
respondents had averred in some of the paragraphs of their answers over the
issues counsel could not ‘re-plough’ the same grounds during cross-examination.
KPMG
Gesture
After the break, Justice Atuguba announced that
KPMG, an international accounting firm agreed on by the parties to be the referee
in the counting of how many pink sheets have been used as exhibits by the
petitioners, had agreed to do the counting free of charge.
Justice Atuguba then directed the Registrar to write
formally to the firm, expressing the appreciation of the Judicial Service
before asking the audience to applaud them.
In the ruling that brought KPMG into the picture, the
accounting firm has the duty of auditing the evidence brought in by the
petitioners by counting the quantity of pink sheets in the court’s records and distinguishing
each category of malpractices being alleged by the petitioners; “…specifying in
respect of each pink sheet, polling station name and its code number and
exhibit number if any. In doing so the said referee should make a true and
faithful count of the said exhibits of pink sheets according to and under the
various categories of alleged electoral malpractices in issue before this court,”
the court ordered.
Nana Ato Dadzie & Gabby Asare Otchere-Darko
Tsatsu
Trudges On
When everybody thought Mr. Tsikata had finished his
cross-examination, he came back and released 20 pink sheets which he asked the
witness to identify and tell the court if it was part of the further and better
particulars supplied by the petitioners on the orders of the court.
Indeed, he had sent a signal before the break that
he was going to conclude subsequent to the provision of a list he asked Dr.
Bawumia to compile and which was not readily available.
As things stands, it is unclear when the NDC counsel
will finish cross-examining Dr. Bawumia but many legal experts are of the view
that he might be winding up after 10 sittings for the exercise.
Counsel:
Take a look at these 20 pink sheets and tell this court whether they are part
of the further and better particulars that the court ordered you to provide.
Witness:
I have gone through it and 11 are part of the 11842 that we are relying on. The
others are part of the 11,916 part of which we no longer rely on.
Dr. Bawumia explained that they dealt with over
500,000 documents and in the process “we inadvertently printed 9 out of the 20
which were not supposed to be part of our case.”
Counsel:
I suggest to you that one error made by the 2nd respondent’s
officials is no different from the errors you have made before this court.
Justice Jones Dotse then cut in to ask Mr. Tsikata
whether the errors he referred to were in respect of the general picture or in
respect of the 20 pink sheets just introduced.
Mr. Tsikata replied that he was referring to the
whole issue before Dr. Bawumia answered that “There is a big difference between
our error and the error of the 2nd respondent.”
He added that “The errors of the 2nd
respondent affected the results they declared but what we have done has not
affected our analysis.”
Dr. Bawumia again disagreed with Mr. Tsikata that
they petitioners did not supply 11,842 polling stations and also said that it
was wrong for counsel to hold that all the 20 pink sheets were not part of the
further and better particulars.
Counsel:
All you are seeking to do in this case is to create the impression that you
supplied all the further and better particulars.
Witness:
Impressions cannot make cases, facts make cases.
Sitting continues today and the court is expected to
hear the motions filed separately by all the respondents, seeking leave of the
court to cross-examine some of the witnesses of the petitioners who filed
affidavits in the case.
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