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Nii Amanor Dodoo of KPMG
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday, July 10, 2013
The Supreme Court yesterday
declined a motion request seeking to recall KPMG, an accounting firm, which was
chosen by all the parties to count the number of pink sheets filed by the
petitioners in the ongoing Presidential Election Petition.
The application for ‘leave to
remit part of the issues to the referee’ was filed by the three petitioners who
are challenging the validity of the Electoral Commission’s declaration of John
Dramani Mahama as President in the December 2012 general election.
The court however, directed
the petitioners to prepare a list of 1,545 polling stations which they
(petitioners) insist KPMG failed to consider as part of the report submitted to
the court and use it in the cross-examination of Dr. Kwadwo Afari-Gyan,
Chairman of the EC.
KPMG has already submitted
the report and Nii Amanor Dodoo, Head of Audit
Practice and a senior partner at the accounting firm has since been
cross-examined by the parties.
Time Allotted
In a rare move, the court
allotted time to all the parties in the movement of the motion as done
elsewhere in some jurisdictions.
The justices gave each legal
team 10 minutes for the motion and 5 minutes to reply on points of law and the
court said the move was to ensure speedy disposal of the case.
Addison’s Motion
Moving the motion, Philip
Addison, lead counsel for the petitioners said they are dwelling on Order 28
Rule 3 (4) of C.I. 47 and not C.I. 75 which he said was an error in the motion
paper.
He said apart from requesting
KPMG to determine the fate of the1,545 pink sheets which they say could easily
be identified, they were also asking the court to recall the accounting firm to
determine the unique pink sheets involved in the 2,876 pink sheets found in
Justice Atuguba’s set which were not found in the Registrar’s set.
He said “The referee itself
had sought further directions in respect of those pink sheets” and added that
KPMG had stated in the report that a decision was to be made on those pink
sheets so recalling them was not out of place.
Mr. Addison
argued that he was convinced that if the unique counts were made, it would be
clear to the court the number of polling stations filed by the petitioners to
greatly assist the court.
He then
tried to put some figures together and said would add up to the number filed
but Justice Sophia O. Adinyira, a member of the panel who was reminding all
counsel about the time allotted to them said “we have all the figures before
us, is there anything you can add because you have only one minute.”
Mr. Addison
then said that what the petitioners were seeking “is well within the boundaries
for the referee.”
Mahama’s Opposition
Dr. Abdul
Bassit Aziz Bamba, speaking in place of Tony Lithur, lead counsel for President
John Mahama vehemently opposed the motion saying “it is to unduly delay the
proceedings.”
He said the
order to the referee was “very specific” and there was “no ambiguity.”
“The instant
application doesn’t come within the contours of the referee’s mandate,” adding
“ the application is not about a truthful and faithful count…it is about
establishing the identity of the polling stations.”
When Justice
Jones V. Dotse another member of the panel requested to know from counsel if
the order was not in respect of pink sheets count Dr. Aziz Bamba said, “there
is nothing in the order making them to identify the pink sheets using the
further and better particulars.”
Justice Paul
Baffoe-Bonnie another panel member asked Dr. Aziz Bamba to read the second
bullet of the order before Justice Annin-Yeboah also cut in to ask counsel the
reason why KPMG at a point asked for direction from the court during the
counting exercise.
Counsel said
that was an issue for the court to determine and added that other legal matters
were involved including shifting the burden of evidence by the petitioners.
Justice
Adinyira reminded counsel that “at least there were exhibit numbers” on the
pink sheets that the petitioners say KPMG did not include in the report but Dr.
Aziz Bamba replied that “they are all listed in the report.”
EC’s Opposition
James
Quarshie-Idun, lead counsel for the EC opposed the application saying it was
too late for the petitioners to make the request.
He said
having contested the election in all 275 constituencies, filed the petition,
amended it and filed a lengthy affidavit in support of the case, the
application will cause undue delay since the burden of proof lied on the
petitioners.
NDC’s Opposition
Tsatsu
Tsikata, lead counsel for the NDC opposed the motion and said that the Appendix
E5 Volume 5 of the report “explicitly sets out the exhibit numbers for the
1,545 polling stations in the report.”
He said the
referees’ report addresses the court’s order ‘comprehensively’ adding “what the
petitioners are seeking to do is effectively go outside the orders.”
He said when
the respondents raised the need for a referee, the petitioners opposed it and
also opposed their request to cross check the Registrar’s set with the
President of the panel saying “they are asking the referee to come back but
they will add nothing whatsoever to the report.”
Mr. Tsikata
said that the evidence of the referee explained “how we can derive the unique
pink sheets,” adding that the 8,675 unique pink sheets included exhibits that
were outside the range specified in the petitioner’s affidavit and also said
399 had to be deducted for the figure.
“The referee
cannot be asked to back to the further and better particulars. It will draw
back the proceedings…A recourse to the further and better particulars takes us
even further away from the order.”
Addison’s Reply
Replying on
points of law, Mr. Addison said the matters if not addressed, would leave the
KPMG report incomplete and maintained that the application was meant to “tie up
loose ends in the report”.
He said that neither the
petitioners nor respondents had raised any issue
that they could not identify particular
pink sheets but it was rather the referee who had said it could not identify
some of the pink sheets, adding the KPMG action amounted to exclusion of
evidence.
The Ruling
Justice
Atuguba in reading the ruling said the
referee’s report “is auxiliary to the court.”
“The court has the primary
duty to adjudicate the case. Since the materials upon which the petitioners are
standing for their case are the same as they themselves filed in this court,
they are in position to demonstrate with these materials that say the pink
sheet by their own analysis with the aid of the referee’s report, the
respective heads of alleged malpractices in their case.”
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