Nana Akufo-Addo & Dr. Mahamudu Bawumia
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Friday, May 17, 2013.
Supreme Court yesterday declined a request by Tsatsu
Tsikata, National Democratic Congress (NDC) lead counsel in the ongoing
Presidential Election Petition and others to cross-examine some witnesses of
the petitioners, including two NPP members of parliament (MPs).
The nine member panel threw out the motion asking
the court to enable the respondents including President Mahama and the
Electoral Commission (EC) to cross examine Freda Prempeh, MP for Tano North and
Dr Kwabena Twum Nuamah, MP for Berekum East four other witnesses of the
petitioners saying that they have enough information.
The motion on notice, seeking leave of the court to
cross-examine the witnesses, was first filed by the ruling National Democratic
Congress (3rd respondent) and followed by President John Dramani
Mahama, and the Electoral Commission who are 1st and 2nd
respondents respectively.
Phillip Addison
The
Ruling
The nine-member panel chaired by Justice William
Atuguba held that with all the evidence available in the petition, the court
did not need any further evidence.
He explained that the cross-examination being sought
are already covered saying “They are all covered; we are saying that we have
enough materials to cover. The evidence is flowing and it’s enough….that’s what
we are saying. We don’t need all those things.”
“We have considered the three applications for leave
to cross-examine the various witnesses and have come to the conclusion that
various types of evidence have been supplied on these matters, both by the
evidence of the second petitioner in the ensuing cross-examination and the pink
sheets and affidavits filed by the parties.
We think that these and any further evidence would
suffice to enable us assess the various factual matters involved without the
protraction in the cross-examination of the witness covered in these
applications. In the circumstances, the applications are refused,” the court
held.
Witnesses
The respondents were seeking to cross-examine
Kwabena Twum Nuamah, NPP MP for Berekum East, Eugene Sackey, Freda Prempeh, NPP
MP for Tano North in the Brong Ahafo Region and Abdulai Abdul Hamid who all
swore affidavits as witnesses for the petitioners.
Tony Lithur
The witnesses have alleged in their
affidavits in support of the petition that the Electoral Commission (EC)
annulled some of the polling stations’ results in their constituencies where
there were over-voting and other alleged irregularities.
The
Motion
The NDC motion filed by its lead counsel Tsatsu
Tsikata could not be moved on May 14 because, President Mahama and the EC had
just filed similar applications and the court’s registry had given President
Mahama and the EC returning dates of May 16 for their motions to be moved.
As a result, the court pushed the NDC motion to same
day so that all the three motions could be moved at the same time.
Before the applications were moved, the court
directed that once they were on the same subject-matter, the respondents should
consolidate the motion before moving after which other counsel could make
addresses.
Tony Lithur, lead counsel for President Mahama then
told the court that he would prefer Mr. Tsikata to move the motion.
Mr. Tsikata then took the floor advancing his
argument to the effect that inviting the witnesses to be cross-examined would
serve the interest of justice since they would help the court to ascertain the
truth.
“The truth of the matters that each of those
witnesses has testified to before this
court is a very important basis. There is no allegation before you that any of those
witnesses is not available for cross examination…and we may well wonder why a
party which has proffered the testimony of certain witnesses be so eager to
protect them from cross examination.”
“It is also clear that in the testimony of the main
witness of the petitioners, they have also sought to rely on the allegations in
those affidavits, so the testimony of the main witness which has been
challenged is very much the subject matter of, not only the continued
cross-examination of that witness, but would clearly be the subject matter of
the cross examination of this witnesses,” in reference to Dr. Mahamudu Bawumia,
a principal witness in the case.
James Quarshie-Idun
Mr. Tsikata held that “it is also clearly the case
as we take each of those individuals that they claim to personal knowledge of
the matters in respect of which they have deposed to their affidavits.”
“In the case of Abdulai Abdul Hamid, he was actually
a presiding officer at a polling station in respect of which there has been
testimony before this court.
There is no better person than Mr. Abdulai
Hamid-the presiding officer at that polling station-to provide evidence, and
the petitioners did provide his evidence and they should not run away from the
cross examination of their own witness….
He also said that the evidence of Kwabena Twum
Nuamah, Eugene Sackey, Freda Prempeh were important adding “If indeed, these
are people who have personal knowledge of the matters, then under
cross-examination, we would be able to establish whether they are telling the
truth in their affidavits or they are not telling the truth.”
“It is our submission that this court and the
process before this court would be well served by obtaining testimony from
people who claim to have personal knowledge of the fact to which they depose.”
He described the petitioners’ opposition to the application
as “somewhat strangely, because this are their witnesses and they have deposed
to affidavit filed on the 13th of May and deposed to by Dr. Bawumia.”
Tsatsu Tsikata
“Essentially, their claim in opposing the application
is that there is some other testimony before this court from the second
respondent. We ought to be allowed to cross examine them, and it’s clearly in
the interest of fairness and of justice in this proceeding that they be cross-examined
to test the veracity of the allegations that they have.”
“There is no basis in the affidavit in opposition
for denying us our entitlement to cross examine witnesses on evidence that is
being put before you,” he held.
EC
Supports Tsikata
James Quarshie-Idun, representing the EC said that
the subject matter of the evidence of the affidavit that they were seeking seek
to cross-examine the deponents to, was not pleaded either in the original
petition, the first amended petition or the second amended petition.
“We stated this paragraph 12 of the affidavit sworn
to by Amadu Sulley, Deputy Chairman of the second respondent on 16 April, 2013.
If these material facts had been pleaded, we would have had the opportunity of
responding to them in our answer or amended answer.”
Addison’s
Opposition
In his response, Philip Addison, lead counsel for
the petitioners vehemently opposed the respondents attempt to cross-examine the
witnesses.
He said matters under discussion were no longer in
controversy since the EC in its own affidavit had confirmed the cancellation.
He told the court that the petitioners were not
opposed to the request to cross-examine Abdulai Abdul Hamid and one Fuseini
Safianu who were said to be Returning Officers during the election.
Mr. Addison told the court that the EC at some stage
in the trial tried to have the petitioners pleadings in respect of the
subject-matter struck out but the court refused and since that move failed, the
commission never gave any indication they were contesting the issue.
Amadu Sulley & Dr. Kwadwo Afari-Gyan
He said that the matters that the EC is seeking to
cross-examine the witnesses on are not in dispute asking “what purpose does
cross-examining the witness serve when the EC in its own affidavits show that
some polling station results were annulled.”
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