President Mahama
Dr. Kwadwo Afari-Gyan
Nana Akufo-Addo
Posted on: www.dailyguideghana.com
William Yaw Owusu,
Reporting from the Supreme Court,
Accra
Thursday August 22, 2013
“The petitioners have been able to
demonstrate, by the show of a preponderance of evidence of invalid votes, which
go to affect the declared results by the Electoral Commission for John Dramani
Mahama in the December 2012 Presidential Election,” Philip Addison, lead
counsel for the petitioners.
“At least the first
and third petitioners have been part of this electoral system for years.
Inventing such a claim is, therefore, an act of bad faith. It was an invention
by petitioners to bolster their case and should be wholly dismissed as
adventurous,” Tony
Lithur, counsel for 1st respondent President Mahama.
“My Lords we would respectfully submit
that the petitioners have failed to prove their case before your Lordships, not
one single vote ought to be annulled, they have not justified the annulment of
a single vote under any of the categories that they have cited,” James Quashie-Idun,
lead counsel for the 2nd respondent Electoral Commission (EC).
“The petitioners’ claim
is factually empty, with no supportable evidence being produced. It is legally
pathetic; the petition is poor in arithmetic and extremely poor in logic,” Tsatsu Tsikata
lead counsel for the 3rd respondent National Democratic Congress
(NDC).
These were the final comments of the
legal teams when they took turns to impress upon the nine-member panel in their
final day of oral addresses at the Supreme Court in Accra Wednesday, August 7,
2013.
The Presidential Election Petition which
arguably is the biggest test for Ghana’s democracy yet was filed by New
Patriotic Party (NPP) December 2012 presidential candidate Nana Addo Dankwa
Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake
Otanka Obetsebi-Lamptey after the Electoral Commission through its Chairman Dr.
Kwadwo Afari-Gyan declared National Democratic Congress (NDC) candidate John
Dramani Mahama as President-elect.
The petition which for the first time in
Ghana’s judicial history was beamed live on television and other radio
networks, initially cited President Mahama and the EC as 1st and 2nd
respondents but the NDC later argued its way to become the 3rd
respondent.
The
panel
The panel has Justice William Atuguba as
its president with Justices Julius Ansah, Sophia O. Adinyira, Rose C. Owusu,
Jones Victor Dotse, Anin Yeboah, Paul Baffoe-Bonnie, Sulley Nasiru Gbadegbe and
Vida Akoto-Bamfo forming the Coram.
The
Legal Teams
The petitioners have Philip Addison as
lead counsel, supported by Stephen Dapaah Addo, Gloria Akuffo, Frank Davies,
Alex Quaynor, Akoto Ampaw, Kwame Akuffo, Nana Asante Bediatuo, Godfred Yeboah
Dame, Egbert Faibille and Prof. Kenneth Attafuah.
Tony Lithur represents President Mahama
with support from Dr. Abdul Bassit Aziz Bamba while James Quashie-Idun (lead),
Anthony Dabi, Stanley Amartefio, Freda Bruce Appiah and Stephanie Amartefio
representing the EC.
The NDC has Tsatsu Tsikata as lead
counsel with Samuel Codjoe supporting.
As Ghanaians and
the whole world await the verdict of who actually should have been declared
President by the EC on Sunday, December 9, 2013, DAILY GUIDE digs deep
into how the nine justices ruled in terms of votes
on interlocutory issues.
Preliminary
Objection
The first objection, be it preliminary,
was raised by the petitioners when the court sat for the first time on
Thursday, January 10, 2013, to hear a ‘Motion for Joinder’ filed by the NDC who
were seeking to be respondents in the petition.
The nature of the objection raised by
the petitioners through Mr. Addison was never made in open court although it
was subsequently withdrawn. Sources said later that the objection had to do
with the composition of the bench.
“We have learnt in chambers that the
matter relates to the composition of this panel. We have decided that the matter be raised by
formal motion for the same to take its normal course. In the circumstances, we
adjourn the Motion for Joinder by the National Democratic Congress (NDC) sine die,”
Justice Atuguba, made it clear in the ruling, accepting the withdrawal.
Dotse’s
Observation
The case was re-listed and on January
16, and the NDC joinder was back on. It was at the beginning of the proceedings
that Justice Dotse, offered to make an ‘observation’. He then revealed that
Abraham Amaliba, a lawyer and one of the NDC communicators had gone on radio to
accuse him of being a member of the NPP before throwing a challenge to “Amaliba
and the ilk” to prove he was indeed NPP member.
Justice Dotse hoped that “the general
public, especially Lawyers, rather than make statements which as it were seek
to distort, break and destabilize the dignity and independence of the
Judiciary, will strive to uphold and safeguard the said principles, dignity and
independence upon which any civilized judiciary thrives.”
Justice Atuguba also added that “I want
to emphasize again that this country is a very solid country but is breaking
down. I am saying so; it is breaking down because principles are being chopped
down to almost pedestrian levels and it is not good for this country,” when
rumours later spread that the presiding judge was the person the petitioners
wanted out of the panel.
From
4,709 to11, 842
When the petition was filed, the
petitioners attached 4,709 polling stations Statement of Poll and Declaration
of Results forms popularly called Pink Sheets due to its colour, as exhibits of
polling stations where they felt things went wrong in the December 2012,
presidential elections.
The petition was subsequently amended
and 7,133 were added to the 4,709 to make11, 842 when the petitioners said they
had completed their analysis and before the trial advanced the petitioners
indicated that they were no longer relying on more than 700 pink sheets.
The
Joinder
After the controversy surrounding the composition
of the panel had been resolved, Tsatsu Tsikata, leading the NDC moved the
application for joinder on January 16 impressing on the court to allow NDC to
join the petition because the ruling party was an ‘interested party’ to the
petitioners’ action.
An objection by Mr. Addison that Mr.
Lithur leading President Mahama, could not argue for the NDC, had to be ruled
on by the court. By a majority of 6-3 with Justices Rose C. Owusu, Anin Yeboah
and Sulley Nasiru Gbadegbe, dissenting the court ruled that Mr. Lithur could
“be heard on point of law concerning this application as the factual matter.”
In the main application for joinder, the
court in a 6-3 majority decision on Tuesday, January 22, 2013, ruled that the
NDC could join the petition and thus became 3rd respondent.
Justices Atuguba, Adinyira, Owusu,
Dotse, Gbadegbe and Akoto-Bamfo ruled that the NDC should be joined to the
petition since they sponsored President Mahama as candidate while Justices
Ansah, Anin Yeboah and Baffoe-Bonnie dissented saying President Mahama was
capable of defending himself.
Further/better
particulars and interrogatories
On Tuesday, January 29, 2013, President
Mahama and EC (1st and 2nd respondents) respectively
moved a motion for ‘Further and better particulars’, requesting the court to
compel the petitioners to provide details in terms of name, code and the issues
involved of the polling stations they (petitioners) are complaining about .
On the same day, the petitioners also
moved an application for interrogatories from the EC. “My lords, we are seeking
an order for the 2nd respondent to answer interrogatories with respect to the
categories of persons in foreign countries, country by country and date of
registration of the following: Foreign service officials, students abroad on
government scholarship, other Ghanaians working abroad with international
organizations as well as service personnel returning from international peace
keeping as pleaded by 2nd respondent,” Mr. Addison told the court.
In the course of Mr. Addison’s motion,
Mr. Tsikata sought to be heard in the ensuing argument but the petitioners
counsel vehemently opposed the move insisting that the NDC counsel had not
filed any formal application to participate in the argument.
By a majority of six Justices: Ansah,
Adinyira, Owusu, Dotse, Gbadegbe and Akoto-Bamfo ruled that Mr. Tsikata could
“be heard under application for interrogatories provided he files a written
process.”
Justices Anin Yeboah and Baffoe-Bonnie
held that Mr. Tsikata could not be heard while Justice Atuguba ruled that Mr.
Tsikata “can be heard now on points of law. So the decision by 6 that you can
be heard provided you file some process,” before the case was adjourned.
On Thursday, January 31, 2013, Mr.
Tsikata who had filed a written process as directed by the court, argued
against the petitioners’ application for interrogatories and the court fixed
Tuesday, February 5, 2013 for ruling on the three applications relating to
further and better particulars as well as interrogatories that were argued.
Grant
of Further & Better Particulars
On the next date, the court unanimously
held that “The application for further and better particulars by the 2nd
Respondent is granted”.
The court said “Let the petitioners
supply the particulars required of paragraphs (a), (c), (d), (e) (f) of Ground
(1) of paragraph 20 of the petition and Ground (2) of paragraph 20 thereof, in
terms of the 2nd Respondent’s application.
In respect of the 1st Respondent, the
court directed that “Let the petitioners supply the particulars in respect of
paragraphs 2 (a), 4 (a), 5 (a), (b), 6 (a) (b), 7 (a) (b), 8 (a), (b), 9, 10,
119(a) (b), (e), (f), (g), (h) & (i) as stated in the respondent’s
application for the same.
Petitioners
Interrogatories Granted
The court also asked the EC to “answer
all the Interrogatories as set out in the Petitioners’ application for the
same,” and further ordered: “Let all these orders be complied with within 7
days from today by each respective party.”
Production
& Inspection of Documents
On Thursday, February 7, 2013, the
petitioners’ motion for production and inspection of documents specified in the
body of their motion paper of January 31, was dismissed unanimously by the
panel.
Application
to Amend Petition
On the same day, the petitioners’
application to amend the amended petition was moved by Mr Addison and
unanimously granted by the court. The application had been delayed to enable
the NDC which had just been joined to the process, to file their affidavit in
opposition.
In granting the application, the court
said that “the further and better particulars ordered of the petitioners by
this court on the 5th day of February, 2013 should mutatis mutandis apply to
the additional polling stations introduced by the grant of the petitioners’
application to further amend their petition this 7th day of February, 2013.”
The court then asked the petitioners to
file the amendment within two days and the further and better particulars filed
within 7 days from the ruling.
NDC
Further & Better Particulars
Just as the court was retiring to its
chambers, Samuel Codjoe who was representing the NDC in the absence of Mr.
Tsikata said he was also moving an application for further and better
particulars due to some ‘mischief’ in paragraph 27 of the petitioners’
affidavit.
After a back-and-forth argument over the
relevance of the motion the court unanimously dismissed the NDC application
saying that “since Mr. Addison for the Petitioners in effect has submitted that
paragraphs 27, 22 and 23 of the petition should be read together so as to
arrive at their import of paragraph 27, the mischief dreaded by the 3rd
respondent thereby disappears.”
The court further held that “the residue
of any difference is a matter of address or objection at the stage of the
adduction of evidence. We, therefore,
dismiss the 3rd Respondent’s application for further and better particulars
relating to the said paragraph 27 of the petition.”
To be continued tomorrow.
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