Philip Addison - Lead counsel for petitioners
By William Yaw Owusu
Friday, August 23, 2013
11,000
Witnesses Threat
On Thursday, March 14, 2013 when
everybody thought the proceedings was finally getting underway, an avalanche of
groups and individuals filed series of applications to join the petition as
interested parties.
They
were specifically seeking to join the process to lend support for President
Mahama and the NDC and the court proposed
that “the motion for joinder be moved by the first set in a representative
capacity for all the other motions listed in the same matter for hearing today
and all others having the same interest of intent.”
After Kwabla Dogbe Senanu, representing the
joinders had moved the joint motion, President Mahama, the EC and the NDC all
said they did not oppose the application but the petitioners vehemently opposed
the move.
The
court unanimously dismissed the NDC joinders saying “it
is quite clear that the concerns of the applicants can better be redressed
through the adduction of evidence, where necessary, which they can
realistically and effectively do under the negis of the present parties
particularly of the 3rd Petitioner and 3rd Respondent
respectively.”
Application for Directions
Immediately the joinders were thrown out, an
application on notice filed by the petitioners asking for directions of the
court on the next step was called but before Mr. Addison could move it, Mr.
Codjoe was up on his feet describing the process as ‘alien to the rules.”
Mr. Codjoe’s objection was unanimously overruled by
the court when it held that “the preliminary objection even if technically
valid is not outside the purview of Rule 79 of C.I. 16. In particular r. 50 of C.I. 16 falling under
the original jurisdiction of this court relating to the filing of memorandum of
issues cannot in view of the definition of original jurisdiction in Rule 4(b)
(c) covering an extension of C.I. 16 be said to be clearly excluded by Rule 69
(c) (i) nor is Rule 5 of C.I. 16 necessarily excluded.”
The court then gave the parties 7 days to “try to
reach a common memorandum of the issues for trial,” and said that “in the event
of any disagreement communicated to the Registry of this court, the court shall
fix a date from the final settlement of the issues and related matters.”
No Agreement
On Tuesday April 2, 2013, when the parties could
not reach an agreement on the memorandum of issues, the court through Justice
Gbadegbe set out the issues for them.
Issues Set for Trial
The issues were: ‘Whether or not there were
statutory violations in the nature of omissions, irregularities and
malpractices in the conduct of the Presidential Elections held on the 7th and
8th December, 2012’ and ‘Whether or not the said statutory violations if any,
affected the outcome of the results.’
Power point Request
The court then rejected the petitioners’ use of
power point presentation and other ICT gadgets needed to facilitate the trial
after vehement protestation from all the respondents.
Further and Better Particulars for 28 Locations
Mr. Quashie-Idun again moved a motion for further
and better particulars of 28 locations outside the 26,002 polling stations
where the petitioners alleged that voting took place without their knowledge
before Mr. Addison submitted that they were restricting it to only 22.
The court ruled that “in view of the petitioners’
restriction of themselves to the 22 of the 28 locations in respect of which
particulars had been given, the application relating to the residue thereof
lapses and is dismissed.”
Tony Lithur - Lead counsel for President Mahama
By a majority of 6-3, with Justices Atuguba, Ansah,
Adinyira, Dotse, Baffoe-Bonnie and Akoto-Bamfo, with Owusu, Anin Yeboah and
Gbadegbe dissenting, “the application in respect of the proposed paragraph
18(a) of the 2nd Respondent’s amended answer to the second amended petition is
granted, same to be filed by the close of 3rd April, 2013.”
Rules of Engagement
The court then directed that “to expedite the
determination of this case the trial will be by affidavits.”
The court also said “parties themselves may lead
oral evidence. Oral evidence by any
other person may be allowed where compelling reasons are given.”
Subsequently, the court ordered that “the
petitioners should file their affidavits of the witnesses they propose to rely
on in proof of their case on or before 7th April, 2013,” and also added that
“the respondents should likewise file the affidavits of their witnesses within
5 days from the service upon them of the petitioners’ said affidavits.”
The court also said that “cross-examination and
re-examination of all the affidavits may in the discretion of the court be
allowed.”
Variation of Orders
Just as the petition was to commence, the EC on
Wednesday, April 10, 2013, filed a motion asking the court to vary its earlier
orders with regards to the procedure adopted for the trial.
Even before the court could rule on the matter, Mr.
Tsikata requested to make an input into Mr. Quashie-Idun’s argument but Mr.
Addison vehemently opposed it insisting that Mr. Tsikata even though served
with the EC’s application did not deem it fit to either file any document
indicating to support or reject the EC’s move and there could not be allowed to
make an oral submission.
The application for variation of the court’s own
orders was unanimously dismissed even though Mr. Tsikata was allowed to make
the input and he supported Mr. Quashie-Idun.
Live Coverage
In what can be described as the first of its kind
in the history of the judiciary, the court on Tuesday, April 16, agreed to telecast
the proceedings live on television and radio, probably taking a cue from what
had happened in Kenya in a similar petition.
All the parties agreed to the telecast and this was
after Danquah Institute, a pro NPP policy analysis group had pushed for the
live coverage and NDC related outfits opposed it.
James Quashie-Idun - Lead counsel for EC
Bawumia Starts Evidence
On Wednesday, April 17, 2013, Dr. Mahamudu Bawumia,
the 2nd petitioner started his testimony as the principal witness
for the petitioners and was led in evidence by Mr. Addison.
All the counsel for the respondents took turns to
raise objections to Dr. Bawumia’s line of evidence in the preliminary stages of
his evidence-in-chief but the court unanimously overruled them saying “the
objection raised is covered in paragraph 30 grounds 1(a), 2(1) (a) and 3(1) and
the ensuing particulars stated there under as numbers (1) - (8) of the
petitioners’ second amended petition filed on 8/2/2013.”
On the second day of Dr. Bawumia’s testimony on
Thursday, April 18, 2013 when he sought to tender in evidence documents which
tabled all the polling stations the petitioners said they had deleted from what
they submitted, the respondents again vehemently objected compelling the court
to retire into chambers to decide.
When the judges returned, they unanimously
overruled the objection and the document was tendered in evidence.
In the process of objecting to the tendering of the
document, Mr. Tsikata accused the petitioners’ counsel of “unethical conduct”
and Mr. Addison after the ruling sought to urge the court to compel Mr. Tsikata
to withdraw the comment but he (Tsikata) refused and Justice Atuguba asked Mr.
Addison to “leave it there.”
Lithur vrs Bawumia
Mr. Addison concluded Dr. Bawumia’s
evidence-in-chief and Tony Lithur took over for the cross-examination.
On Monday, April 22, the cross-examination continued,
with Mr. Lithur bombarding the Economist with a series of questions.
Pink Sheet Count Hint
As heated arguments ensued between the parties over
who was using the right pink sheets, the need for an audit of how many were
actually filed, came up strongly and Justice Atuguba on behalf of the court
said “as at now, we are in difficulty as to the manifestation of the problem as
a real problem, so I think you (Lithur) can proceed with the cross-examination.
We have overruled the application with liberty to reapply.”
On Tuesday, April 23, 2013 Mr. Addison raised an
objection to Mr. Lithur’s question on a statement purportedly made by
Kyerematen Agyarko, Campaign Manager of Nana Akufo-Addo in the December
election that the election was free and fair but the court unanimously
overruled the objection.
Quashie-Idun vrs Bawumia
On Wednesday April 24, Mr. Lithur ended his
cross-examination of Dr. Bawumia and Mr. Quashie-Idun took over the baton.
Mr. Addison raised an objection to the EC counsel’s
attempt to know from Dr. Bawumia the processes involved in counting at the
polling stations and how it ends up in collation centres before being sent to
the EC headquarters, but the court unanimously overruled the objection.
Tsatsu Tsikata - Lead counsel for the NDC
The court again overruled Mr. Addison’s objection
in relation to a letter that the NPP wrote to appoint agents to some of the
polling stations that the petitioners claimed were non-existent.
On Thursday, April 25, 2013, the court in a 6-3
majority decision with Justices Atuguba, Adinyira and Akoto-Bamfo dissenting,
sustained Mr. Addison’s objection that the pink sheet for the polling station
where Dr. Bawumia voted in the Northern Region should not be allowed in
evidence by the EC since it was not part of the places where the petitioners
are complaining of irregularities and malpractices.
The court again in a 7-2 majority with Justices
Dotse and Baffoe-Bonnie, dissenting, overruled Mr. Addison’s objection that the
EC could not tender in evidence Form 1C which Dr. Bawumia had said was part of
the form used to prepare ID Cards for voters.
Mr. Quashie-Idun then urged the court to adjourn
proceedings partly due to fatigue.
Tstatsu Vrs Bawumia
On Monday, April 29, 2013, Mr. Tsikata took over
from Mr. Quashie-Idun for the cross-examination of Dr. Bawumia and the court
overruled Mr. Addison’s objection that Mr Tsikata could not cross-examine the 2nd
respondent.
Mr. Addison’s objection was that “we have all along
known that the interest of the 1st and 3rd respondents
are the same. In this court they have made it manifest by filing a joint
affidavit,” but the court held that Mr. Tsikata could proceed.
In the course of the exercise, Mr. Tsikata’s
reference to an original pink sheet where he tried to ask Dr. Bawumia a couple
of questions brought Mr. Addison to his feet to object to the line of
questioning saying it was not in evidence and the court unanimously sustained
counsel’s objection.
On Tuesday, April 30, 2013 Mr. Tsikata tried to tender
through Dr. Bawumia to enable him ask questions on pleadings that the
petitioners said they had abandoned and Mr. Addison vehemently opposed the move
before the court through Justice Atuguba stopped the NDC counsel’s move saying
“we will rule that the amended petition, the previous pleadings together with
the affidavit fall out and cannot be referred to.”
Amicus Curia Brief
On Thursday, May 2, 2013 when everybody thought the
petition was proceeding, Benony Tony Amekudzi, an NDC sympathizer surprised the
court with an application for leave to file an Amicus Curia (friend of the
court) brief which was not even properly laid before the court.
After the court had heard his argument to the
effect that a sitting President could not be sued, Mr. Amekudzi was
subsequently thrown out
by a unanimous ruling that “in any case the ground
of the application would prima facie stultify Article 64 of the Constitution
and the Rules of Part VIII of C.I. 16 relating to the same, in as much as an
election petition at any rate can be commenced before a person becomes
President on being sworn into office.
The application is therefore dismissed.”
Shut Up!
On Monday, May 6, 2013, there was tension in the
courtroom when Mr. Tsikata asked Mr. Addison to “shut up!” after the petitioners’
counsel wanted to draw the court’s attention to the fact that the 3rd
respondent’s counsel could proceed with his cross-examination and not “address”
the court.
Mr. Addison: My lord is counsel addressing the court?
Mr. Tsikata: Can you shut up! Can you let me finish?
Mr. Addison: My lords, these rude words that counsel is using
we are capable of replying and I think that the court should call on him to use
decorous language.
Mr. Tsikata: My lords these interruptions are really
unnecessary and I think they are very trying.
Justice Atuguba: Alright, please let’s
go back to the rules of the game, all complains should be addressed to the
bench for appropriate redress.
To
be continued Monday
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