MIND YOUR LANGUAGE!

Phillip Addison, lead counsel for petitioners

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, May 17, 2013.

The persistent argument with panel members trying the landmark Presidential Election Petition currently at the Supreme Court coupled with use of uncivil language almost landed Tsatsu Tsikata, lead counsel for ruling National Democratic Congress (NDC) in trouble.

For making statement that “This is not the time to be retrograde in the way we proceed,” the NDC lawyer was reprimanded by the bench for such indecorous language.

 “Counsel, I don’t know whether you are getting angry. Please mind your language”, Justice Vida Akoto Bamfo warned.

Yesterday -while addressing the bench-, Mr. Tsikata who has been criticized several times for using rather strong language in court, described the manner the judges were handling a particular argument as “retrograding”. The Supreme Court judges took particular exception to this statement and were quick to issue him a stern caution.

Warning

“Mind your language,” a soft spoken Justice Akoto-Bamfo, a member of the panel warned the NDC counsel after he made a comment that seemed to have ruffled the feathers of the bench.

Mr Tsikata earned the reprimand while trying to tender a list he prepared exclusively before continuing his cross-examination of Dr Mahamudu Bawumia but Mr. Addison raised an objection.

Mr. Addison: My lords, we are objecting to the tendering of this list … (Justice Atuguba intervenes)

Justice Atuguba: I don’t understand, exhibit 32 is in evidence?

Counsel: No, but this is a further list….

Tony Lithur & Tsatsu Tsikata

Justice Atuguba: A different 32?

Counsel: It’s not a different 32, my lords, I think I made myself very clear; this list is in reference to exhibit NDC 32, but in this list reference is made to the counterpart serial number information that has been provided, and in addition to that counterpart serial number, we provided the information about the duplicates which is the one the witness has confirmed…(He tries frantically to justify the need to tender this contentious list as part of exhibit NDC 32 which was already in evidence, claiming the witness has confirmed it). The witness has confirmed it and my lords; this is no time to just retrograde in the way that we proceed in respect of…… (Justice Akoto-Bamfo cuts in, obviously not pleased with the tone and the choice of words being used by counsel)

Justice Akoto-Bamfo: Counsel, counsel, I don’t know whether you are getting angry…

Counsel: No my lords, I cannot be angry, your lordships.

Justice Akoto-Bamfo: So please mind your language, that’s all that I can say… (Justice Atuguba adds to the caution)

Justice Atuguba: Yes, let’s avoid presumptuous language….

Mr. Tsikata eventually apologized to the court and offered to explain the context within which he made the statement insisting that he did not mean to be disrespectful to the court.

Mr. Tsikata eventually apologised to the court and offered to explain the context within which he made the statement insisting that he did not mean to be disrepectful to the court.

He said his comments had been misconstrued and that he rather wanted the trial to move speedily.

Controversial Lists

On Wednesday when Mr. Tsikata appeared to be ending his laborious cross-examination, he said he would conclude ‘subsequent’ to the petitioners’ provision of a list of counterpart polling stations that shared same serial numbers during the election which had become a contentious issue in the case.

Dr. Bawumia agreed to provide the list and when it was finally brought, Mr Tsikata said he was not going to tender what the petitioners brought to the court.

As he asked Dr. Bawumia to identify a list he (Tsikata) had prepared and appeared to be asking questions based on that list, the petitioners lead counsel Phillip Addison asked him to first tender it and the questions could flow from there.

Nana Akufo-Addo & Dr. Bawumia

Mr. Addison: My lords, the questions that counsel has been asking arises out of information that we have supplied to them, and we think that these documents should first be tendered so that the questions van follow.

Counsel (Tsatsu): (Pulling out the supplementary list drawn out of the main list) my lords, we wish to tender that list, a list which read “Same Serial Number and Counterpart Duplicate”. Reference number NDC 33.

Mr. Addison: My lords, we are saying that list arises out of the information that we have supplied so our document-the pairing-, should go in [for tendering] first….

Counsel: Well, as you can see, we have presented the information from that on this list that we are tendering. So for my cross-examination at the moment, the material is available for him [the witness] to answer.  At the appropriate time, they can tender the information that they have provided in its bulk.

Justice Atuguba: In any case, we also need it. If it is not in evidence, we can’t follow (Counsel explained rationale for extracting their own list from the petitioners’ master list, but his explanation did not appear to have convinced the bench enough, causing Justice Jones Victor Dotse to step in)

Justice Dotse: Mr. Tsikata, I think the problem really arises because while you and counsel for the petitioners - and possibly the witness-, have new lists which have been formatted according to the list which you presented, we don’t have any. So anytime you make reference to their list, we don’t have anything to match our records with that is why we think it would be useful to have those lists tendered for us to go on along with you.

Tsatsu’s Insistence

Counsel: Very well…My lords I take it that they are seeking to tender them…. (Murmurings in the court room). My lords, with respect, we asked for information in order not to have the court’s time taken through every one (of the pink sheets in the list( and the point I’m making is that, in terms of the information provided, and for the purposes of my cross-examination, the information that they have provided is included in what we are tendering [the supplementary list from the petitioners’ list], so what we are tendering actually addresses the issue that his lordship was asking about….we can tender this (the supplementary list), we don’t need to tender their information list because it’s not part of our case….(Justice Atuguba interrupts by trying to seek further clarification on the various lists emanating from the list of duplicate polling stations)

Majority & Minority Leaders in Parliament

Counsel: My lords, we have no problem with him (witness) refreshing his memory with the list that he composed and that’s exactly what is happening; he is using that. My lords, with respect, I must be clear, I do not intend to tender their list…

Justice Atuguba: That why I am saying that if the witness in using his list would facilitate your cross examination that is going on, why can’t he put it in?

Counsel: My lords, the petitioners are not presenting their case at the moment (Justice Atuguba interrupts)

Justice Atuguba: No, no, no, in cross-examination, it is evidence relating to your questions in cross examination; it is something that the answers he is giving and it can’t go in [in evidence]?

Counsel: My lords, it cannot at this stage go in as my exhibit

Justice Atuguba: That’s why I am saying that it will go in as his.

Counsel: My lords, I’m not really familiar with a situation where during cross-examination, you can have counsel for the petitioners tendering exhibits. I’m not familiar with that… (Justice Atuguba laughs and cuts in).

Justice Atuguba: So if you elicit a fact from the witness, and its documentary, and it’s relevant in cross-examination, because it is in cross examination, it can’t come in (as evidence)?

Counsel: No my lords, I didn’t say it can’t come in; I said I am not tendering it…. (Justice Atuguba cuts in again)

Justice Atuguba: That’s why I told you that if it goes in, it’s standing to their name, not yours.

Counsel: My lords, at this point, I’m in the process of cross-examination, that’s why I say I am not familiar with the process that you appear to be describing. The process that you appear to be describing is of petitioners tendering an exhibit in the middle of my cross-examination, I’m not familiar with that, that’s the honest truth; I’m not familiar with it.

Justice Atuguba: You are saying he can use it to refresh his memory, isn’t it?

Counsel: I don’t have a problem with that

Atuguba ‘Puzzled’

Justice Atuguba: The question you have posed is puzzling because this one, he is not tendering any real document, he is only using as a cross-reference to your list. It is a cross-reference facilitating the reference to the references you are making in cross examining him and to facilitate the tracking of this and you say this cannot go in?

Counsel: My lords, I say I am not seeking to tender it…

Justice Atuguba: That’s I’m saying if it goes in, it goes in his name, and you still seem to have a problem with that?

Counsel: Yes, but if I’m not tendering an exhibit, then in what sense is it going in? I am cross-examining him at the moment

Justice Atuguba: It is part of his answers to your cross examination…

Counsel: My lords, respectfully, the part of the answers that I needed for the sake of my cross-examination I reproduced in the list that I am tendering and he is confirming the information on the list by reference to his own information.

Ruling

The judges then went into a snap conference in the presence of the audience and delivered a ruling to the effect that the tendering was differed till re-examination stage.

Justice Atuguba said “the witness, it is said by Ansah, Rose Owusu, Annin-Yeboah and Gbadegbe JSC, can identify the document and tender it later. Adinyira, Dotse, Baffoe-Bonnie and Akoto-Bamfo, the witness can tender it during re-examination.”

“Atuguba JSC, the court has power under section 69 of the Evidence Degree to allow the tendering of the document at this stage. Section 69 (a) of the Evidence Degree provides as follows: (He quotes the relevant section)….Per Annin-Yeboah JSC, the court must have the document or else the cross-examiner cannot proceed any further.”

It was after the ruling that Mr. Tsikata made those statements, receiving a reprimand from the court.

Sitting continues on Monday May 20, 2013 for Mr. Tsikata to continue his 11^th day of cross-examination.