ATUGUBA GOES WILD

Posted on: www.dailyguidegahana.com

By William Yaw Owusu

Tuesday, June 25, 2013

Justice William Atuguba, Chairman of the nine-member panel in the presidential election petition yesterday tackled DAILY GUIDE when he singled out the private newspaper for publishing what he said was inaccurate ‘reportage’ about his ‘pink sheets’.

At the packed hearing at the Supreme Court, Justice Atuguba said he was serving a final warning to the media and lawyers who misreported the proceedings stating “any person be it in the media or not who crosses the final touchline of proper coverage reportage will be met with the appropriate response.”

Final Warning

“We’ve been giving warnings, warnings, warnings without achieving results. We did not want to take any drastic action, but it is our duty to uphold the authority of the state, we have no power to let down the authority of the state; the power is not ours so we do not want to surrender the authority of the State to any individual or group of people, the authority of the State is paramount,” he complained.

“We have drawn attention to unacceptable statements made by counsel and the media and given indication that we would not accept that situation, but it seems not to be yielding any fruits. Accordingly, we are taking the position that any person, be it in the media or not, who crosses the final touchline of proper coverage and reportage on our court proceedings would be met with the appropriate response from this court. As I said, it is to uphold the authority of the state,” he continued.

“Because when the authority of the State is submerged to the authority of individuals, then the State ceases to exist and anarchy over mighty subjects then reign. We cannot accept that. Let me give examples: …There was a publication in the DAILY GUIDE, giving a certain twist to the alleged discovery of my pink sheets; the pink sheets that were lost have been found; I have directed that KPMG should come for them and when they come for them, it’s going to balance out certain things….

“Another matter about the final report, I was informed by my colleagues that the entire report was already in the Press before even we [the Judges] received it. So let it be known that much as we do not want to visit any unpleasantness on anybody, it is our bounding duty to uphold the authority of the State in its judicial sector and therefore this acquisition of uncontrolled power to do what people want in relation to twists and spins on our proceedings would be halted through the sanctions of the Court, we think we are clear”.

Tussle Over KPMG

Meanwhile there was heated legal scuffle when the Presidential Election Petition hearing resumed yesterday at the Supreme Court in Accra.

Matters came to a head when the petitioners’ lead counsel, Philip Addison, made an innocuous request to the court to ask KPMG, a reputable international accounting firm chosen by all the parties as referee in the count of the number of Pink Sheets used as exhibits, to furnish the petitioners with electronic soft copy of the report submitted to the court.

Soft Copy Tussle

Just as the judges were to decide whether or not the petitioners should be given two days to assess the report, Mr. Addison put in another request to KPMG through the court for the firm to provide the electronic soft copy of report.

This request brought Tony Lithur, lead counsel for the 1^st respondent (President John Dramani Mahama) to his feet arguing vehemently that before the exercise all the parties agreed with KPMG that no soft copy would be made available to the parties but rather, a single soft copy would be kept under lock and key.

Mr. Addison rebuffed Mr. Lithur and said he did not understand why there will be an opposition to their request adding that the Petitioners needed a soft copy and had asked for it.

“If the Respondents don't need it there is no need asking for it but they cannot object to the provision,” he argued.

Mr. Lithur’s vehement protestation brought Justice Rose C. Owusu, a member of the panel to intervene, asking counsel if he did not think the referee was the best person to state such a position.

“Leave it with the referee for him to say…let the referee tell the court,” the judge told Mr. Lithur.

Mr. Quarshie-Idun said he was associating himself with the sentiment expressed by Mr. Lithur added that if the petitioners wanted a soft copy they could as well scan the hard copy given them into soft copy.

Mr. Tsikata said it was agreed before the process started that only hard copies will be given and it was for good reason.

He said in order not to compromise the report it was agreed soft copies would not be given and added that for a court that saw hard copies ‘transmogrified’ in numbers “it is dangerous to have soft copies.”

KPMG Clarification

The court then invited the KPMG representative to clear the air on the matter and Nii Amanor Dodoo who had earlier introduced himself to the court as Head of Audit Practice at the accounting firm, said ordinarily KPMG does not give soft copies to the parties they work for due to risk management issues.

He said KPMG categorically mentioned it to the parties during the audit that they would not give soft copies out and Mr. Dodoo said if the parties did not understand issue on how conclusions were reached, accounting firm was ready to take the parties through the process. 

Mr. Addison reminded the KPMG official that it was the daily print out which they agreed not to have soft copies and not the final report and insisted that  the final report was not the property of KPMG but the state and therefore they could impose their procedures on the state.

Mr. Dodoo then told the court that the agreement was in general terms and added that soft copies was not to be given out whether it is a draft copy or a final copy. 

The court after the give-and-take argument in a 7-2 majority decision with Justices Annin-Yeboah and Sulley Nasiru Gbadegbe dissenting, ruled dismissed the petitioners request and adjourned the proceedings to Wednesday June 26.

The Report

As the legal teams announced themselves to the court, Justice Atuguba asked them if they had all received the KPMG report and if so, needed their comments.

The all responded in the affirmative before Mr. Tsikata got to his feet to say that he would prefer  KPMG to present the report to the court to enable them to compare if is similar to the draft copy in their possession before making comments.

Messrs Lithur and Quarshie-Idun supported the views shared by Mr. Tsikata but Mr. Addison said the petitioners would need more time to study.

He says they made extensive comments on the draft report submitted by the referee and they would need to crosscheck if their comments were incorporated in the final report.

Justice Atuguba suggested to the parties to ‘consent’ to the final copy without having to drag officials of KPMG to the dock to answer questions about what went into the audit.

Justice Atuguba said he was making the suggestion because the parties were involved in the process but also said that the parties had the right to cross-examine KPMG after Mr. Tsikata had continuously pushed for the document to be tendered by the accounting firm.

The panel chairman had further said that he was convinced that no matter the regime of the law of evidence a country used, the parties could agree to a report by consent. 

KPMG Testifies

The Head of Audit Practice at KPMG, Nii Amanor Dodoo who was present in court was then asked to mount the witness’ box to present the document and the court asked him a few questions.

Mr. Dodoo who said he was mounting a witness’ box for the first time said KPMG was appointed referee in the respect of an exercise for the count of pink sheets and they had concluded the report.

He said he submitted the main body of the report and its accompanying appendixes contained in five volumes and added that they also produced 15 copies to the Registrar for onward submission to the parties.

Mr. Dodoo who was clearly sweating in the box then tendered the document and all the parties accepted it without any objection before Justice Atuguba expressed the Judicial Service’s profound gratitude to KPMG for the ‘invaluable service’ rendered the court free of charge.

The panel chairman however, told the KMPG official that he might be recalled to the box if the parties so wish to have some clarity on issues and said “you are temporarily discharged with the gratitude of the court.’

Two Days

All the parties subsequently commended KPMG for their services before Justice Atuguba sought to know from Mr. Addison the way forward about his cross-examination of Dr. Kwadwo Afari-Gyan, Chairman of the Electoral Commission.

Mr. Addison replied that the conclusion of the petitioners’ cross-examination hinged on the audited pink sheets and therefore they needed about two clear days to study the report.

The respondents, starting from Mr. Lithur vehemently opposed the two days request and said in his view the petitioners could use yesterday to study the report and proceed with the case today.

Mr. Tsikata added that all parties have been presented with the draft copies of the report and nothing much, except a brief summary had been added and said that two days to study the report was ‘unjustifiable’.

Mr. Addison then came in strongly holding that he understood why the 1^st & 3^rd respondents wanted only a day to study the report because they made ‘little comments on the draft copy’.

He said the Petitioners had made ‘substantial comments’ on the draft report and they needed to satisfy themselves that the comments had been incorporated in the final report before insisting that the petitioners would be the last persons to seek to delay the proceedings.

He said that an outstanding motion in which the petitioners are asking for an order to compel the EC to provide some collation sheets which had been fixed for today, could be extended to Thursday for the application to be moved.

Justice Paul Baffoe-Bonnie, another member of the panel then asked the petitioners counsel to explain what he meant by ‘two clear days’ and Mr. Addison said specifically that they would need Tuesday and Wednesday to look at the report and return to  court on Thursday but the judge retorted that “this is a bit too much.”

Mr. Tsikata, supported by Mr. Lithur then wanted the petitioners to proceed because the court on June 13, specifically ‘stood down’ the testimony of Dr. Afari-Gyan for the report to be issued and once that had been done, the petitioners needed to continue with the cross-examination.

However, Justices Owusu and Jones Dotse and Baffoe-Bonnie took turns to say that the standard practice is that once the report had been tendered, there was the need for the ‘tenderer’ to explain issues where necessary before the witness could proceed with his evidence.