Atuguba, Addison in hot exchanges over 203 polling stations

BY: Samuel K. Obour

Mr Justice William Atuguba, Presiding Judge

Day 21 of the presidential election petition hearing ended on a sour note when counsel for the petitioners and the presiding judge entered into an altercation.

The fiery exchanges between Mr Philip Addison andwere so bellicose that sitting had to end abruptly with the bench reminding lawyers of its authority.

Tension soared, tempers flared but the court eventually had its way, and stuck to its unanimous rejection of the petitioners’ documents which sought to introduce re-categorisation of irregularities at 203 polling stations.

Mr Addison’s beef was that he could not comprehend why the court should sustain his questions on re-categorisation of irregularities at the 203 polling stations but disallow the petitioners to tender documents which bordered on the re-categorisation.

Although the bench made it clear that it would not allow Mr Addison to re-introduce the document which had been rejected by the bench, following an objection from lawyers for the respondents that it did not bear any exhibit number, Mr Addison stood his grounds, and urged the court to reconsider its decision, and allow the petitioners to properly label the document and re-tender it today (Thursday, May 23, 2013).

The nine-member panel had sustained objections from the lawyer for the President, Mr Tony Lithur, counsel for the NDC, Mr Tsatsu Tsikata, and the lawyer for the Electoral Commission (EC), Mr James Quashie-Idun.

The basis of Mr Tsikata’s objection was that the list did not have any relationship with matters that had arisen during the cross-examination of Dr Bawumia to warrant it being tendered in evidence as an exhibit.

According to counsel, the attempt to smuggle in what should have been done during examination-in-chief was not appropriate and must, therefore, not be entertained by the court. 

Mr Lithur added that the document did not indicate which exhibit it was emanating from.

But Mr Addison explained that the document contained the list of re-categorisation of polling station codes and serial numbers and added that his side could not maintain the old exhibit numbers because the categories had changed.

“The Exchanges”

After the court’s rejection of the documents, Mr Addison informed the court that what it (court) had done amounted to “overruling” its own earlier ruling.

Mr Justice Atuguba expressed the feelings of his colleagues and said, “We allowed you to follow proper procedures which you did not do properly.”

But Mr Addison indicated that “we are talking about substantial justice here,” and accordingly prayed the court to give the petitioners leave to come back today (Thursday, May 23, 2013) with a properly labelled document.

Apparently losing patience with Mr Addison, Mr Justice Atuguba’s seethed:  “You did not withdraw and we voted on it,” adding that “if you had retreated we could have probably considered that.”

Mr Addison at a point pleaded with the court to use its discretion but Mr Justice Atuguba replied that “the matter has been ruled upon”. 

No Dictation to Bench

At that point some members of the bench began packing their personal belongings in apparent gesture that the court had closed for the day, while Mr Addison stood on his feet and queried if the petitioners should take it that the re-examination had been curtailed by the court.Philip Addison, Counsel for petitioners

Mr Addison’s phrase “through the back door”, which was in reaction to the court’s decision not to allow the tendering of the list for 203 polling stations, infuriated Mr Justice Atuguba, who blurted that there was a limit the bench could tolerate the bar and virtually bellowed, “We cannot take dictation from the Bar.” 

 “We are not dictating to the bench. We want to lead further evidence on re-categorisation,” Mr Addison emphasised, but that comment seemed to have been the last straw that broke the camel’s back as Mr Justice Atuguba threw caution to the wind and affirmed, “We have heard you. We understood you. You cannot insist. The matter is closed.”

“The Reporting”

The situation was so intense that counsel for the President, Mr Tony Lithur, had to report Mr Addison to the bench for refusing to hand over the documents to a court clerk to be marked as rejected.

According to Mr Addison, there had been instances where rejected documents of the respondents were not tendered in evidence but Mr Lithur expressed surprise with Mr Addison’s comments and urged him (Mr Addison) to “show respect to the bench”.

Mr Justice William Atuguba spoke on behalf of his eight other colleagues who showed signs of closing for the day, while Mr Addison stood on his feet to demand that justice be served on the petitioners.

His call for the interest of justice seemed to have infuriated the panel the more and this was exhibited through Mr Justice Atuguba, who reminded counsel that he had had the opportunity and had exhausted it.

Numerous Objections

The court’s sitting was earlier fraught with numerous objections from lawyers for the respondents to questions posed by Mr Addison.

The objections began immediately Mr Addison posed the first question in his bid to re-examine and seek clarifications from Dr Mahamadu Bawumia, the star witness of the petitioners challenging the legitimacy of President John Dramani Mahama.

Before the close of proceedings, seven objections had been raised by the lawyers for the President, the Electoral Commission (EC) and the National Democratic Congress (NDC), Mr Tony Lithur, Mr James Quashie-Idun and Mr Tsatsu Tsikata respectively.

The objections bordered on further and better particulars for 11,842 polling stations, deletion of 704 polling stations out of the 11,842, tendering of soft copy version of deleted 704 polling stations and objection to the categorisation of cross-matching of polling stations with same serial numbers which, in other words, provided additional information for the court’s attention.

Other objections raised by the respondents included the seeking of clarification on whether or not Dr Bawumia acted in bad faith in his bid to champion his ambition to be Vice-President by selecting polling stations from strongholds of the NDC as places where irregularities occurred during the polls, re-categorisation of polling stations, as well as the methodology adopted by Dr Bawumia for his final analysis.

Other members of the panel were Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.

The Re-examination and Objections

Dr Bawumia had undergone 13 days of cross-examination from Mr Tsikata, after he had given his evidence-in-chief and been cross-examined by Mr Lithur and Mr Quashie-Idun respectively after the commencement of the substantive hearing on April 17, 2013.

It was the turn of Mr Addison to re-examine him at the court’s sitting in Accra yesterday to seek clarifications on some matters that had emerged during the cross-examination but his first question which sought to seek clarification on whether or not Dr Bawumia had provided particulars from 11,842 polling stations was objected to.

According to Mr Lithur, there was no ambiguity on the issue of further and better particulars supposedly supplied by the petitioners and for that reason, Mr Addison could not use the re-examination as an opportunity to lead evidence-in-chief.

Supporting Mr Lithur’s objection, Mr Tsikata submitted that the respondents and the court had copies of further and better particulars provided by the petitioners and, therefore, that question could not be posed to the witness during re-examination.

Mr Quashie-Idun backed the objection but Mr Addison explained that as far as the respondents had sought to attack the credibility of the witness, and further accused the witness of misleading the court, it was crucial for the witness to be allowed to clear any doubts.

Mr Lithur responded and pointed out that re-examination was meant to clear ambiguities and issues on new matters that might arise during cross-examination and emphasised that what Mr Addison sought to do “was merely a disguised attempt to rehash matters that explanations have been given”.

Ruling on First Objection on Further and Better Particulars Clarification 

In a unanimous decision, the nine-member panel sustained the respondents’ objection and maintained that the issue on the provision of further and better particulars by the petitioners were part of the court’s records.

Deletion of 704 Polling Stations 

After the first ruling, Mr Addison then sought to seek clarification on why Dr Bawumia was no longer relying on 11,842 polling stations and rather on 11,138 polling stations after deleting the names of 704 polling stations where alleged irregularities occurred but lawyers for the respondents once again objected to that line of re-examination.

According to Mr Lithur, the issue on the deletion of the 704 polling stations was on record and as such it was not necessary for the court to allow the witness to tender the list of the deleted polling stations.

Counsel argued that the petitioners were attempting “to clean up the table on numerous duplications” and added that what the petitioners were seeking to do was completely inappropriate.

For his part, Mr Tsikata said the list should have been presented and tendered in evidence at the examination-in-chief stage, adding that the document had been tendered and had been labelled as Exhibit C1-C11.

Mr Quashie-Idun also lent his support to the objection.

However, Mr Addison informed the court that Dr Bawumia was not given the opportunity to tender in evidence the said exhibit.

Majority 7-2 Decision Overrules Objection

In a 7-2 majority decision, the court overruled the respondents’ objection and allowed the tendering in evidence of the list for the deleted 704 polling stations. 

Mrs Justice Akoto-Bamfo and Mr Justice Gbadegbe sustained the objection but Mr Justice Atuguba, Mr Justice Ansah, Mrs Justice Adinyira, Ms Justice Owusu, Mr Justice Dotse, Mr Justice Annin Yeboah and Mr Justice Baffoe-Bonnie overruled the objection.

Tendering of Soft Copy of Deleted 704 polling stations overruled

After the tendering of the list of 704 polling stations, Mr Addison sought to tender in evidence the CD-Rom containing details of the 704 polling stations but the court upheld Mr Lithur’s objection.

Polling Stations with Same Serial Numbers

With reference to answers to Mr Tsikata’s queries on cross-matching of polling stations with same serial numbers, Mr Addison wanted to lead Dr Bawumia to tender in evidence a list of 6,823 polling stations when Mr Lithur indicated he was not opposed to the tendering of the said list but had issues with the provision of additional information which had not been requested for.

The issue Mr Tsikata had with the document was what he termed “typo errors” but the court later urged the witness to correct the said errors.

Granting the tendering of the list of 6,823 as exhibits, the court overruled Mr Lithur’s objection to the categorisation of the documents which, in other words, provided additional information for the court’s attention.

Mr Lithur sprang to his feet after the court’s ruling and stated, “My Lords, we did not object. It was an observation,” to which Mr Justice Atuguba stated, “Objection overruled as regards the category section.”

NDC Stronghold/Bad Faith

On suggestions from the respondents that the petitioners deliberately chose the strongholds of the NDC to do their analysis on alleged irregularities, which according to them amounted to bad faith and an attempt by Dr Bawumia to pursue his Vice-Presidential ambition – Mr Addison asked Dr Bawumia what he had to say to that.

Mr Lithur then got up and reminded Mr Addison that the witness had, during the cross-examination, categorically denied such assertion and, therefore, it was not necessary for his colleague to ask that question.

Disagreeing with Mr Lithur, Mr Addison said the alleged bad faith sought to attack the credibility of the witness and insisted that such issue could arise in re-examination especially when it bordered on “distortion of facts”.

6-3 Majority Ruling 

In a 6-3 majority ruling with Mr Justice Ansah, Ms Justice Owusu and  Mr Justice Annin Yeboah dissenting, six members of the court, namely Mr Justice Atuguba, Mrs Justice Adinyira, Mr Justice Dotse, Mr Justice Baffoe-Bonnie, Mr Justice Gbadegbe and Mrs Justice Akoto-Bamfo sustained the objection.

List on Re-Categorisation of Polling Stations 

Continuing with his re-examination, Mr Addison asked the witness to tell the court which polling stations underwent re-categorisation of irregularities but Mr Tsikata said the petitioners had not amended their petition and affidavit in support.

According to Mr Tsikata, it would amount to re-opening of the case if Dr Bawumia was allowed to answer the question on re-categorisation of irregularities.

Mr Lithur and Mr Quashie-Idun aligned themselves with Mr Tsikata.

Responding, Mr Addison stated that the labelling and re-categorisation of irregularities were borne out of the pink sheets, adding that such evidence would not affect the substance of the irregularities listed by the petitioners.

Mr Tsikata, in his reply, said the petitioners’ pleadings had not been amended while Mr Lithur added, “Categorisation is so essential and fundamental to the case. They want to change the fundamental nature of their case and must be given a resounding rejection.”

Opposing his colleague lawyers, Mr Addison submitted that the petitioners were not changing anything and explained that the re-categorisation was necessitated from the huge data the petitioners had to gather as a result of violations in the pink sheets.

The court overruled the objection to questions on the re-categorisation but eventually overruled the tendering in evidence a document containing the re-categorised polling stations due to improper labelling.

Methodology for Final Analysis

Mr Addison then asked Dr Bawumia to inform the court of the methodology he used in using single polling stations to arrive at his final conclusion into analysis on irregularities recorded during the December 7 and 8 Presidential polls.

“This is not a new matter,” Mr Lithur said in protest to the question, and stated that the petitioners had the opportunity at the examination-in-chief stage to lead evidence to that effect, adding that having ceased that opportunity, the witness’s time had expired.

Adding his voice to Mr Lithur’s, Mr Tsikata argued that the court’s functions could not be usurped once the factual data had been put in the court’s records.

He said the issue of methodology was “completely irrelevant”. 

For his part, Mr Idun said the issue was appropriate for address.

Mr Addison’s Position

Mr Addison explained that the issue arose during the cross-examination stage and it was, therefore, important to show there was no double counting.

“The witness was called dishonest several times on the issue of double-counting,” Mr Addison added, and therefore stressed the need for the court to allow the witness to state the methodology used.

Objection Sustained in 5-4 Majority Decision 

Mr Justice Atuguba, Ansah, Mrs Adinyira, Dotse and Akoto-Bamfo sustained the objection but Dotse, Annin Yeboah, Baffoe-Bonnie and Gbadegbe dissented.

End of Re-examination

Mr Addison announced the end of re-examination of Dr Bawumia. 

However, Dr Bawumia can be recalled to answer questions from either parties, after the international audit firm, KPMG completes the audit of pink sheets.

Affirmation of May 9 and May 21, 2013 Ruling

The court announced after returning from its recess that KPMG had brought a letter seeking clarification on whether or not it (KPMG) should audit pink sheets submitted to other respondents in the case but Mr Justice Atuguba announced that the court still stood by its May 9 and May 21, 2013 ruling which said KPMG should audit only exhibits submitted to it by the court.

The Petition

The hearing of the substantive petition – which has the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, as petitioners – began on April 17, 2013.

The petitioners have alleged that the December 7 and 8, 2012 presidential election was fraught with malpractices of over-voting, non-signing of pink sheets by presiding officers or their assistants, voting without biometric verification and duplicated serial numbers of pink sheets.

However, President Mahama, the EC and the NDC have denied that any such irregularities occurred during the election.

Story: Mabel Aku Baneseh

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