Tuesday, August 27, 2013

OBJECTION! OBJECTION!! OBJECTION!!! HOW NINE JUDGES RULED IN ELECTION PETITION


One of the boxes containing the Petitioners address

Posted on: www.dailyguideghana.com

By William Yaw Owusu,
Reporting from the Supreme Court,
Accra.

Tuesday, August 27, 2013

Re-categorization of Exhibits
By a 5-4 majority with Justices Atuguba, Adinyira, Gbadegbe, Akoto-Bamfo dissenting, the court overruled an objection by Mr. Tsikata that the petitioners were seeking to re-categorize some of their exhibits.

The court in another majority of 5-4 with Justices Dotse, Anin-Yeboah, Baffoe-Bonnie and Gbadegbe dissenting, sustained Mr. Lithur’s objection that the petitioners were leading evidence on the issue of padding at the re-examination stage.

The court by a unanimous decision sustained the respondent’s objection to the tendering of a document prepared by the petitioners on the re-categorization of some of the exhibits due to mislabeling.

Asiedu-Nketiah in the box
On Thursday May 23, lawyers for both 1st and 3rd respondents indicated that Johnson Asiedu-Nketiah, General Secretary of the NDC was to testify for both parties.

As the NDC General-Secretary proceeded with his evidence-in-chief, the court by a majority of 5-4 with Justices Ansah, Owusu, Anin-Yeboah and Gbadegbe, dissenting, overruled an objection by Mr. Addison that Mr. Asiedu-Nketiah could not be asked questions by Mr. Tsikata on his (Asiedu-Nketiah) participation in the election.

The court unanimously sustained another objection by Mr. Addison that Mr. Tsikata could not ask Mr. Asiedu-Nketiah further questions on a pink sheet for MA Primary School Asokwa polling station with Code F191201.

Asokwa Pink Sheet
The court again unanimously sustained Mr. Addison’s objection that Mr. Tsikata could not tender the Asokwa pink sheet in evidence because it was not part of the 11,842 that were filed as exhibits and subsequently rejected the document.

Mr. Tsikata had sought to prove widespread irregularities by using the Asokwa pink sheets showed that the petitioners deliberately selected the strongholds of the NDC to make a case.

The court unanimously overruled Mr. Addison’s objection that Mr. Tsikata could not ask Mr. Asiedu-Nketiah to testify on the allegation that some NPP leaders asked their members to wear white in the run up to the declaration of the election results by Dr. Afari-Gyan because victory was beckoning.

Amicus Files for Review
On Tuesday, May 28, 2013, just as proceedings were commencing, Benony Toni Amekudzi came in to move a fresh motion on notice for the court to review its decision that blocked him from becoming Amicus Curiae and after a protracted argument, the court unanimously dismissed the application saying “we think that Article 64 is a unique and special provision as we held in our earlier ruling and nothing that has been urged on us moves us to change our position to that effect.”

Abroad Voting Myth
Following the dismissal of the Amicus Curiae, the case proceeded with Mr. Addison’s objection after Mr. Tsikata claimed the petitioners had said that voting took place abroad and the court in a 6-3 majority decision with Justices Atuguba, Gbadegbe, and Akoto-Bamfo dissenting, sustained the objection. The court subsequently expunged that piece of evidence from the records on Mr. Addison’s request.

Mr. Tsikata concluded the examination-in-chief of Mr Asiedu-Nketiah and the cross-examination of the witness by Mr. Addison began.

By a majority of 5-4 with Justices Ansah, Owusu, Anin-Yeboah and Akoto-Bamfo dissenting, the court sustained Mr. Tsikata’s objection that Mr. Addison could not ask Mr. Asiedu-Nketiah whether the non-signature of Presiding Officers on the pink sheets were an irregularity since it was a question of law.

Juaso Court Hall Pink Sheet
On Wednesday, May 29, 2013, the court sustained Mr. Tsikata’s objection that a pink sheet for Juaso Court Hall from which Mr. Addison was trying to question Mr. Asiedu-Nketiah was not in evidence.

Akwapim South Collation Form
The court by a 5-4 majority with Justices Ansah, Owusu, Anin Yeboah and Baffoe-Bonnie dissenting, sustained Mr. Tsikata’s objection that Mr. Addison could not tender the Akwapim South Collation Form through the witness and the document was subsequently rejected.

Tony Lithur Reprimanded
Mr. Addison then handed the respondents a huge document containing particulars of all the 11,842 polling stations and as the court clerk brought it to Mr. Lithur, the President’s lawyer threw the document away thereby drawing a reprimand from the bench and a subsequent apology from Mr. Lithur.

Nii Amanor Dodoo, testified on behalf of KPMG

The court asked Mr. Addison to rephrase his question on the booklet containing 11,842 polling stations since Mr. Tsikata was objecting to the fact that the document was not in evidence.

Quashie-Idun’s Re-examination
After Mr. Addison had concluded his cross-examination, Mr. Quashie-Idun instead of also cross-examining Mr. Asiedu-Nketiah as the rules permit rather asked questions that suggested that he was re-examining the witness.

This incensed Mr. Addison who protested vehemently at the EC’s counsel’s behaviour saying: “My lords, this cross-examination is gradually turning into a re-examination, I mean, questions are being asked on my cross-examination and I don’t think it is fair.  I mean, the man has given evidence, so cross-examine him on his evidence, not what I have cross-examined him on because as it is, it is re-examination you are doing.”

The judges after discussing the matter in chambers returned to rule unanimously that “The 2nd Respondent is entitled to cross-examine but not to re-examine the witness.  Counsel for the 2nd Respondent, therefore, should base his questions on the evidence-in-chief of the witness and questions concerning the version of the 2nd Respondent’s case.  To that extent, the objection is sustained.”

Once Mr. Quashie-Idun was confined by the court to “base his questions on the evidence-in-chief of the witness and questions concerning the version of the 2nd Respondent’s case,” he threw in the towel and said “my lords, that will be all for the witness.”

Afari-Gyan in the box
On Thursday, May 30, 2013, Dr. Afari-Gyan sat in the witness’ box for the first time to testify as the Chairman of the EC and the Returning Officer of the Presidential Election but the petitioners wanted clarification from the court over the commissioner’s appearance since in the run up to the proceedings he never deposed to any affidavits in the petition.

“Dr. Kwadwo Afari-Gyan is representing the Electoral Commission in his capacity as a party to this case and the Returning Officer to the general elections of Ghana.  He can, therefore, pursuant to the directives for trial in this case given on 2nd April, 2013 give oral evidence on behalf of the 2nd Respondent,” the court unanimously held.

Afari-Gyan’s Lecture
The court in a majority of 6-3 with Justices Ansah, Owusu and Anin-Yeboah, dissenting, overruled Mr. Addison’s objection that Dr. Afari-Gyan’s evidence-in-chief was turning into a ‘lecture.’ This was after the Commissioner appeared to narrate a history of elections instead of concentrating on what happened in December 2012.

On Monday, June 3, 2013,  the court in a majority of 7-2 with Justices Dotse and Baffoe-Bonnie, dissenting overruled Mr. Addison’s objection that the EC did not plead in their affidavits about where the Biometric Voters Devices were kept and how they have been used subsequently and could therefore not testify on those pieces of evidence.

Biometric Device Print Outs
The court by a majority of 7-2, with Justices Atuguba and Akoto-Bamfo, dissenting sustained an objection of Mr. Addison when Mr. Quashie-Idun tried to tender in evidence through Dr. Afari-Gyan, print outs containing information from the biometric verification device.

By a 7-2 majority decision with Justices Atuguba and Akoto-Bamfo dissenting on the grounds that the parties affected thereby must be heard, the court sustained an objection by Mr. Addison that Messrs Lithur and Tsikata did not have to intervene in the petitioners’ counsel objection raised to Mr. Quashie-Idun’s tendering of a polling station register in the Shai Osudoku Constituency.

However, Mr. Addison’s objection to the tendering of the polling station register was overruled.

Tendering of Registers
On Tuesday, June 4, 2013, the court by 8-1 majority decision with Justice Baffoe-Bonnie dissenting, overruled Mr. Addison’s objection that a polling station in the Nsuta Kwamang Beposo Constituency in the Ashanti Region could not be tendered in evidence.

The court once again in a 8-1 majority decision with Justice Baffoe-Bonnie dissenting, overruled Mr. Addison’s objection that a polling station in the Wa East Constituency in the Upper West Region could not be tendered in evidence.

Mr. Quashie-Idun had indicated that there were five registers involved and once the court had admitted three in evidence with only Justice Baffoe-Bonnie dissenting in each occasion, Mr. Addison told the court that he was not going to raise objections on the registers again.

Fight Over Afari-Gyan
Immediately Mr Quashie-Idun concluded his evidence-in-chief of Dr. Afari-Gyan, there was a furore between the 1st and 3rd respondents on one hand and the petitioners on the other over who should cross-examine the witness first.


Victor Kojogah Adawudu filed President Mahama's address

After a back-and-forth argument between Messrs Lithur and Tsikata on one and Mr. Addison on another, the court unanimously ruled that applying provisions under Section 69 of the Evidence Act “We have experienced the tendency of when counsel for the 2nd Respondent was cross-examining the 3rd Respondent to treat the same as if it were re-examination leading to a sustained objection in that regard by counsel for the petitioners.”

“To avoid such a pitfall we are of the view that counsel for the 1st and 3rd Respondents should first cross-examine the witness 2nd Respondent per Dr. Afari-Gyan before the cross-examination by counsel for the petitioners.”

Lithur Cross-Examines Afari-Gyan
On Wednesday, June 5, 2013, Mr. Addison objected vehemently to Mr. Lithur’s attempt to cross-examine Dr. Afari-Gyan on a document that had been filed in the court and was even yet to be moved by EC’s counsel, describing the move as ‘professional misconduct and unethical.’

The court unanimously held that as to the rights of counsel for the Petitioners to object to the propriety of the 2nd Respondent’s supplementary affidavit introducing the attached documents into evidence as his clients are thereby affected, he had the right to raise the said objection.

The court however, overruled Mr. Lithur’s preliminary objection about whether or not counsel for the Petitioners should be allowed to raise an objection during his cross-examination.

Tsatsu Cross-Examines Afari-Gyan

Mr. Tsikata took over the cross-examination of Dr. Afari-Gyan and it went on successfully without any objection.

Addison Grills Afari-Gyan
Mr. Addison wanted Dr. Afari-Gyan to testify on the Electoral Commission of Ghana Voter Registration Form 1A but Mr. Quashie-Idun objected saying it was not in evidence. However, upon Mr. Addison’s insistence that he did not intend to tender the document, the EC counsel withdrew the objection.

KPMG Writes To Court
Justice Atuguba then announced that they were truncating the proceedings to deal with the KPMG matter which was bubbling. The judge told the packed court that they received a letter from KPMG “seeking classifications on matters arising from the orders we made,” and this sparked a heated argument between the petitioners and respondent’s counsel in spite of the fact that the issue had been discussed in chambers earlier according to the justices.

Atuguba’s Set
Mr. Tsikata in the course of the argument requested that to make the report acceptable by all, there was the need for some form of ‘control mechanism’ and suggested the use of the set served on the president or other members of the panel to track the counting exercise.

After the parties had agreed to the request by the 3rd respondent’s counsel, the court held: “It is therefore ordered that for the avoidance of doubt and in line with the consent agreement reached over the modality for the count of the pink sheets with the parties counsel in chambers on 9th May, 2013. The Referee do use the set of exhibits of pink sheets of the Presiding Justice of this panel to crosscheck and finalize count of the said pink sheets.”

Smooth Cross-Examination
On Thursday, June 6, 2013, the cross-examination flowed without any major interruption since the only objection raised was subsequently withdrawn by Mr. Quashie-Idun when Mr. Addison offered to reframe his question to Dr. Afari-Gyan.

On Monday, June 10, 2013, the court did not have to rule on any objection since those raised were subsequently withdrawn. The court closed quite early for the parties to meet representatives of KPMG over the counting exercise.
On Tuesday, July 11, 2013, the court unanimously sustained Mr. Quashie-Idun’s objection that Mr. Addison could not ask the EC to produce the Adaklu Constituency Register.

By a majority of 6-3 with Justices Atuguba, Ansah and Gbadegbe dissenting, the court overruled Mr. Quashie-Idun’s objection that Mr. Addison should not ask Dr. Afari-Gyan to explain how the pink sheets were brought to Ghana.
The court by another 6-3 majority decision with Justices Dotse, Baffoe-Bonnie and Akoto-Bamfo dissenting, sustained Mr. Quashie-Idun’s objection that Mr. Addison’s question to Dr. Afari-Gyan on whether tampered evidence envelopes had numbers, was being repeated.

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